Volume 135 — Arkansas Reports

<p>Appeal from Crawford Circuit Court; Jas. Cochran, Judge;</p> <p>The surety was not liable for costs accrued after the death of Miller. Kirby & Castle’s Digest, § 7740; Kirby’s Digest, § 6298; Kirby & Castle’s Digest, § 7738-; 1 C. J. 215; 31 Ark. 643; 15 C. J. 74; 1 Boot (Conn.) 259; 9 Conn. 235; 2 N. H. 552; 23 A. & E. Ann. Cas. 1037; 110 Ark. 317; 3 Id. 136; 11 Id. 675; 1 Hill (S. C.) 41; 115 Mass. 26; 79 Fed. 408; L. B. A. (N. S.) 1917-B 990.</p> <p>The surety was liable on the bond for costs. The bond remained in full force until the case was finally disposed of. Kirby’s Digest, § 6298; Kirby & Castle’s Digest, § 7738; 7 Ark. 149; 3 Id. 136; 11 Id. 675, 685; 29 Kan. 487; Kirby & Castle’s Digest, § 7810.</p>

8. Lake, Judge; 1. It was- error not to allow appellant to prove by the assessment books the value of the horse. 65 Ark. 278, 284; 30 Id. 362, 371. The weight to be given it was for the jury. 2. There was no proof of injury to the horse. Juries can not base their verdicts upon conjecture or speculation. 88 Ark. 231; 92 Id. 297; 88 Id. 510; 105 Id. 161. 3. The instructions are erroneous. An automobile has the same right on the roads as a horse and buggy. 58 Minn. 555.

T. Wood, Chancellor; 1. Eugene A. Causey only took a life estate in the lands in section 16, remainder to his heirs, the plaintiffs. Kirby’s Digest, § 735; 116 Ark. 233; 67 Id. 517; 75 Id. 19; 95 Id. 18; 98 Id. 570. Neither the life tenant nor any court could defeat the rights of the remainder-men. The life tenant could not convey to Tillar more than a life estate. 116 Ark. 233; 117 Id. 170-1.

The matter in controversy in this snit was settled in 201 S. W. 504. The directed verdict is grievously wrong, and contrary to that decision. 2. The question should have been submitted to a jury. 140 Pac. 439; 57 Ark. 461; 38 Am. St. 254. Under the contract appellants were entitled to recover. We were not allowed to prove the services rendered nor their value. 3. The court erred in overruling the demurrer and •in not sustaining the motion to dismiss.

J. Driver, Judge; 1. Oral testimony that the contract was to run a year was admissible. 60 S. W. 1010; 17 Cyc. 745; 2 Elliott on Contracts, § 1634; 11 N. Y. S. 724; 81 Ark. 373; 11 Am. St. 920; 26 Am. Dec. 542. 2. The contract was not void for want of mutuality. 94 Ark. 9. See, also, 18 N. E. 790; 106 U. S. 144; 96 Ark. 184. 3. The garnishment proceedings were no bar to this. 20 Cyc. 1101; 25 N. E. 1000; 37 Pa.

Martineau, Chancellor; 1. The demurrer should have been sustained. The complaint is defective. Kirby & Castle’s Digest, § 7533, subd. 3, 7538; 41 Ark. 42. It does not allege performance of the conditions in the contract. It is a mere gratuitous subscription and no consideration is alleged. 132 Ark. 361. The condition was a condition precedent. Kirby & Castle’s Digest, § 7572. No allegation of performance is made. 30 Ark. 186; 84 Pa. St. 388; 64 Id. 627; 93 Id. 472. 2.

Barker, Chancellor; 1. Appellee is a lawyer while appellants are ignorant negroes and were clients of his. They employed him in a suit, and he obtained their signatures to the deed to the lands through fraud and fraudulent representations. 73 Ark. 575. The evidence shows fraud and that there was no consideration for the deeds. 2. The foreclosure decree is void because no service was ever had upon Maggie Nesbit and Ellen Modest. Kirby’s Digest, § 6053.

M. Elliott, Chancellor; 1. A dedication by one not the owner is ineffectual. 2 Greenleaf on Ev. 663; 14 Mich. 12; 90 Am. Dec. 220; 47 Neb. N. W. 633; 37 Id. 956; 61 S. E. 951; 6 So. 656; 76 Ind. 244; 47 N. W. 633. Porter has a perfect record title and to defeat his title a valid dedication by the holder of the title or his predecessor must be shown. 2. There is no presumption in favor of the title of a dedication. Proof of ownership is necessary. 28 So. 700; 37 N.E. 956-9. 3.

Francis Circuit Court; J, M. Jackson, Judge; 1. The motion of the receiver to dismiss the action as to him should have been sustained. The receiver had been discharged and his duties terminated and he was no longer liable. 97 Ark. 373; 34 Cyc. 480; 156 Fed. 735; 53 N. E. 816; 7 Id. 537; 19 Id. 477. 2. The verdict for compensatory damages is excessive.

W. Hendricks,, Judge; 1. The court erred in its declaration of law and in refusing to declare the law as requested by plaintiffs. Appellees were the only heirs at law of Emma Baker, who designated no one as her beneficiary. But such designation was not necessary when deceased left living heirs. Kirby & Castle’s Dig., § 2850; 77 Hun, 6; 28 N. Y. S. 276; 29 Oh. St. 557; 24 Oh. Ct. Ct. 717; 114 111. 108; Act 462, Acts 1917, § 6. 2.

The land was never conveyed by Mrs. Simmons to Bryson. Bryson never acquired title. The deed to Bryson was never delivered. Tiedeman on Real Prop. (3 ed.), § 576-8; 8 R. C. L. 973-4; 24 Ark. 244; 84 Id. 610; 77 Id. 89; 98 Ú. 466; 100' Id. 427. A deed to pass title must be delivered during the lifetime of the grantor. 93 Id. 324; 116 Id. 142; 8 R. C. L. 988; 14 Pac. 530; 13 L. R. A. 714. 2. The deed was not even an escrow. 89 Ark. 191; 122 Id. 548.

Cochran, Judge; 1. Incompetent testimony was admitted. The testimony is full of irrelevant and immaterial matters. 2. The court erred in submitting to the jury the question of plaintiff’s arrest and imprisonment. The city marshal arrested him on his own judgment and without solicitation or instructions from any one connected with defendant. The ticket seller had no authority as an employee to call an officer. He acted outside the scope of his authority.

I. Worthington, Judge; 1. The court erred in dismissing the petition and refusing an appeal. Art 7, § 33, Const.; lb. Art. 7, § 114; Kirby’s Dig. $ § 1487, 3006, 1492; 53 Ark. 417; K. & C. Dig. § 8988. 2. Although the Act (No. 422, Acts 1911), makes a provision for an appeal the right exists under the constitution and general statutes. 90 Ark. 219; 95 Id. 385; 117 Id. 4. Appellant was a party to the record and aggrieved. The appeal was properly dismissed.

E. Martinecm, Chancellor; No force, violence, threats nor intimidations were used. The “picketing” was peaceful and not unlawful. It was error to grant the injunction. 50 L. R. A. (N. S.) 412; 109 S. W. 30; 96 Ark. 618; 162 S. W. 652; 161 N. W. 523; 100 N. Y. S. 292; 16 R. C. L. 454-7; 164 N. Y. S. 522; 159 Fed. 500; 171 Pac. 121; 197 Fed. 221; 163 Pac. 107; 62 S. E. 236; 166 Fed. 45; 238 Fed. 728; 78 N. Y. S. 860; 117 N. E. 582.

Elliott, Chancellor; The petition is not sufficient, nor in the form prescribed by statute. K. & C. Dig., 6826; 33 Ark. 497; 71 Id. 4; 84 Id. 395; Kirby’s Dig., § 5667 et seq. The petition was sufficient. K. & C. Dig., § 6826; 47 Ark. 31; Kirby’s Digest, § 6091; 97 Ark. 334; 112 Id. 254; 125 Id. 388; 126 Id. 318; 86 Id. 231; 95 Id. 496; 103 Id. 127; 95 Id. 575; 103 Id. 209, 299; 115 Id. 88; 112 Id. 254; 122 Id. 326; 203 S. ¡W. 33.

T. Humphries, Chancellor; There was no authority to make the changes. The commissioner had not the power under the act to make the changes. 133 Ark. 491. See also 123 Ark. 205; lb. 298; 124 Id. 234; 126 Id. 318; 127 Id. 310. The changes were authorized by law and within the authority of the commissioners. All the changes were such as “better carry out the improvement as originally contemplated. ’ ’ The original plan was not changed.

M. Jackson, Judge; 1. All contracts in excess of the revenue are illegal and there can he no innocent purchaser. 120 Ark. 361; Kirby’s Digest, § § 7311, 7318; 118 Ark. 521; 117 S. W. 13; 127 Ark. 171; 122 Id. 561. 2. Defendants are officers and limited by the law. They had no authority to make the purchase or bind the district. 51 Ark. 116. Mandamus never lies to compel officers to do an act not authorized by law. 17 Ark. 80; 101 Id. 583; 102 Id. 181. 3.

8. Maples, Judge; The residence of deceased was proven to have been at G-arfield, Arkansas. His absence from this State for five years, and that no one had seen or heard from him. The presumption is that he was dead. Kirby’s Digest, § 3081; 54 Ark. 70; 46 111. 230; 92 Am. Dec. 248. The verdict is contrary to the law and the evidence. Wilks was not a resident of Arkansas. The presumption of death by five years absence was not proven.

J. Driver, Judge; 1. The undisputed testimony is that Lane was an independent contractor. Appellee was Lane’s employee and appellants were not liable for Lane’s negligence or that of his employees. 53 Ark. 503; 54 Id. 209; 54 Id. 424 ; 55 Id. 510; 77 Id. 551; 81 Id. 195; 111 Id. 486; 118 Id. 561; 60 S. E. 654; 58 N. H. 52; 30 Atl. 346; 62 S. E. 436; 1 K. B. 851; 124 Pac. 844; 146 N. W. 241; 1 Sweeney (N. Y.) 545; 65 L. R. A. 445-467 M. 469 Q; 17 L. R. A. (N. S.) 375. 2.

44 Ark. 437. The bid and contract are valid, and fix the price at $91,000, and not 70% per cent, of that sum. There was no fraud nor collusion, and the bid was the lowest. The price was fair and reasonable. 103 Ahk. 468. The “70-125 base” was a mere notation indicating the price at which warrants could be sold. 44 Ark. 437 is an entirely different case, and does not apply. STATEMENT OE EAOTS.

Coleman,, Judge; 1. It was error to dismiss the appeal of tbe St. Louis, Iron Mountain & Southern Railway Company. It was the owner when tbe district was formed. The proper affidavit for appeal was filed in time. Acts 1915, § § 11, 25, 14, etc. Tbe affidavit can be waived. 95 .Ark. 148; 31 Id. 489. 2.

J. Driver, Judge; 1. The trial court did not properly make the distinction between false improvement and malicious prosecution. 11 R. C. L. 791-2; 18 Id. 11, 12-20, 21; 64 Ark. 453; 32 Id. 166. There was no legal prosecution here and no crime charged. 15 L. R. A. 707; 58 Iowa, 447. See 2 Blackf. 259; 32 Pa. 168; 39 Am. Dec. 124; 30 Pa. 344; 35 S. E. 558; 4 Car. & P. 456; 27 S. E. 680; 36 L. R. A. (N. S.), 230. 2. It was error to give instruction No. 2. 100 Ark. 320.

Harris, Special Judge; 1. Under Act 217, Acts 1917, the quorum court is vested with exclusive jurisdiction to make appropriations for all county purposes and can not make an appropriation which exceeds ninety per cent, of the taxes levied in any one year. The $100,000 appropriation is, therefore, excessive and void. Act 217, Acts 1917; Kirby’s Dig. § 1494, as amended by Acts 1911, p. 188; Kirby’s Dig. § § 1510-11-12, 1502. 2.

W. Hendricks, Judge; 1. The assessment of benefits made by the assessors is void, being a violation of the constitutional and statutory provisions requiring equality and uniformity of assessment because of the different methods used and the arbitrary manner of making same. The assessments were arbitrary and without regard to benefits. Three different methods of assessing benefits were made. The methods must be uniform and the same basis fixed for all. 32 Ark. 38.

There is a total failure of evidence to support the verdict. There is no evidence that appellant was engaged in the manufacture of liquor. 2. No violation of law since January 1, .Í916, was proven. 3. Austin Brown’s testimony was improperly admitted. The time was too remote and appellant had been acquitted of the crime of selling whiskey. 4.

M. Jackson, Judge; It is error to direct a verdict in a criminal case where the offense is punishable by fine and imprisonment. 130 Ark. 234. Confess error. 84 Ark. 564; Act 13, Acts 1917, § 19; 131 Ark. 572; Parker v. State, 130 Ark. 234.

B. Baker, Judge; 1. No request was made in the justice’s court for a cost bond. By going to trial without demanding a cost bond appellee waived his right. Kirby’s Digest, § 2476; 111 Ark. 51: 124 Id. 20: 37 Id. 405. 2. Appellee has never been in jeopardy, as the jury had not been sworn. 48 Ark. 36.

B. Baker, Judge; It was error to direct a verdict. There was no fatal variance. It is true the land was owned by Dozier, but Montgomery had such special ownership or interest as entitled him to the custody and possession of the growing crops. The proof was sufficient to sustain the allegations as to ownership. 80 Ark. 495; 42 Id. 73; Kirby’s Digest, § 1900.

Coleman, Judge; The court erred in refusing instruction No. 1, asked by appellant, and in giving No. 6 for the State. 100 Ark. 189; 76 Id. 286; 40 Id. 511. 1. Instruction No. 6 for the State correctly states the law as to the defense of insanity in a case of this kind. 50 Ark. 511; 120 Id. 530; 100 Id. 189; 133 Ark. 38. 2. Voluntary drunkenness is not a defense for any crime. 40 Ark. 511; 43 Id. 331; 54 Id. 283; 110 Id. 300; 34 Id. 341. 3.

Wade, Judge; 1. The first act of intercourse completes the offense and subsequent acts do not constitute seduction. The first act was at Fort Logan H. Roots within the jurisdiction of the United States. The State court had no jurisdiction. The courts take judicial knowledge of the fact that Fort Roots is a fort of the United States, jurisdiction over which was ceded by the State to the United States.

S. Maples, Judge; 1. The indictment is bad on demurrer. It does not state facts sufficient to constitute a public offense under Act 105, Acts 1913, 407. The State had no power to pass the act under the Interstate Commerce law. Const. U. S., § 8, clauses 3 and 18, and the Mann Act, 8 U. S. Comp. St. 1916, § 8813; 16 Fed. 193; 223 U. S. 1; 227 Id. 308; 48 Mont. 456; Ann. Cas. D 1915, 1017; 136 La. 658. 2. Incompetent testimony was admitted. The wife was disqualified.

E. L. Johnson, Special Judge; 1. There is no evidence to connect Louis Holmes with the offense charged.' 2. The court erred in its instructions and the evidence is not sufficient to warrant a conviction. The language was neither profane, vulgar nor abusive, nor was it insulting or calculated to produce anger. 99 Ark. 142; 9 C. J. 388; 15 Porto Rico, 198. 1. Admit that as to Louis Holmes the evidence is not sufficient. 2. There is no error in the instructions. 33 Ark. 140.

P. Sender-son, Chancellor; The description in the deed was not sufficient and was not notice to a subsequent innocent purchaser and it was error to reform the deed. 131 Ark. 107; 119 Ark. 301. Courts can not supply an omitted description. 137 Cal. 105; 42 Ore. 521. See also 13 Cyc. 606 (2), 549, and note 95; 17 N. X. 620; 95 Ga. 163; 13 Cyc. 543, (11); 89 Ark. 489; 41 Id. 50; 30 Id. 654; 40 Id. 241; 170 Ala. 499; 53 Ark. 55. 1.

J. Driver, Judge; 1. It was error to refuse to disriiiss the appeal of the commissioners. No appeal is allowed in the act (Act 138, Acts 1915, § § 14, 40) to the commissioners except for refusal to enter judgment refusing or rejecting assessments. Sec. 40 does not enlarge the scope of appeals allowed in sec. 14. See 26 Enc. Law (2 ed.) 608-10; 36 Cyc. 1119-20; 61 Ark. 494. 2. Jurisdiction of the circuit court on the Heafer appeal was confined to the land owned by Heafer.

P. Henderson, Chancellor; The court erred in permitting the appellees to file a disclaimer after the cause had been reversed and remanded on the first appeal with directions for further proof as to rents, etc. 73 Ark. 513. It was too late to file the disclaimer. 76 Ark. 423; 79 Id. 185-193. There was no.leave to amend the pleadings. Only leave to take further proof was given. 82 Ark. 51; 89 Id. 450; 94 Id. 329-332.

E. Martineau, Chancellor; 1. W. H. Eagle was a trustee and Joe P. Eagle should be treated as a trustee for plaintiffs. An administrator can not buy at his own sale, directly or indirectly. 87 Ark. 142; 85 Id. 140; 95 Id. 434. Nor at an execution sale. 75 Id. 184. Nor at a commissioner’s sale, tax sale, or any other public or private sale without creating a trust. 102 Ark. 65; 55 Id. 85. There was no confirmation of the sale. 105 Id. 261; 23 Id. 41; 10 Oh. St. 557.

Circuit Court; J. S. Maples, Judge; 1. The indictment is defective. It contains no date when the crime is alleged to have been committed. No date within the statutory period is alleged. 92 Ark. 413; 99 Id. 126; 65 Id. 559; 110 Id. 170. 2. The promise of marriage was conditional on pregnancy. 113 Ark. 520, 169 S. ¡W. 341; 25 Ore. 172; 17 L. E. 151. 3. There was no corroboration of the prosecutrix’s testimony as to the promise of marriage. 113 Ark. 520; 112 Ga. 871.

J. Driver, Judge; 1. Congress by act June 23,1836, vested the title to the school lands in the State as trustee. It is incumbent therefore for appellees to deraign title from the State. 19 Ark. 308. ' 2. Appellees do not claim to own the lands by virtue of any patent issued by the State. The notations and excerpts from the register of school lands, sold and unsold, plats, etc., show, if anything, payment in Confederate money bought at five cents on the dollar.

The demurrer should have been sustained. It was defective — did not state facts sufficient to charge a public offense but charges two separate felonies. 2. The court erred in refusing the instructions asked by defendant. Douglas v. State, ms., August, 1917. 3. The liquor was not intoxicating. It contained no alcohol when seized. 1. The demurrer was properly overruled. Acts 1915, Act 30, § 2. It follows the language of the statute. It does not charge two offenses.

W. Wade, Judge; 1. The evidence is conflicting and very unsatisfactory. There is no positive testimony against defendant except the girl’s. The jury did not believe him guilty or they would have found the death penalty. The proof of identity is very uncertain — the girl was mistaken. The evidence fails to identify defendant as the criminal. The description is conflicting and uncertain. 2. An alibi was proven. 3.

The contract was a sale, not a mortgage, and is void under the Bulk Sales Act No. 88, 1913. The sale was complete and consummated before the contract was reduced to writing. It has all the elements of a sale; it passes title and possession and is unconditional, and Boss is to act only as agent of Oates. 222 Mass. 587; 127 G-a. 454. 2. If a mortgage it is void as to appellant as in fraud of creditors. 23 Ark. 262; 7 Ark. 269. 3. Oates should be held as receiver under the act.

S. Lake, Judge; 1. Appellant was indicted as a principal but on the trial adopted the theory that he was present aiding and abetting, etc., under Kirby & Castle’s Digest, § 1646. The evidence does not prove the crime and the burden was on the State. It failed. He was not shown even to have aided and abetted. 2. The court erred in refusing instructions 3, 6 and 8 asked by defendant. They state the law. 81 G-a. 592; 8 S. E. 450; 14 Wash. 527; 45 Pac. 145; 53 Am.

C. Rodgers, Special Judge; The indictment alleges facts sufficient to .constitute a public offense. Kirby’s Digest, § § 1960-1. It was not necessary to allege that the sheriff had a warrant. Kirby’s Digest, § 2119; 96 Ark. 477; 107 Id. 99. The indictment does not state facts sufficient to constitute a public offense. The particular circumstances of the offense charged are not set forth.

A. Falconer, Chancellor; 1. The chancery court had no jurisdiction nor authority to make the order. It was void. There was no trust. The estate was not liable for attorneys’ fees, trustees’ fees, costs, nor expenses. 125 111. 64; 104 Id. 64; 53 S. W. 197; 66 N. J. L. 37; 177 111. 82; 76 N. W. 418; 120 Cal. 447;- 52 Pac. 804; 134 Mass. 240; 163 Pa. St. 35; 62 N. W. 557; 60 Id. 843; 112 Cal. 447 ; 76 N. W. 418; 18 Pac. 499. 2.

if. Dudley, Judge; STATEMENT OE EACTS. Appellant sued appellees to recover commissions alleged to be due him for selling certain real estate belonging to appellees. The facts necessary to present the issues raised by this appeal, briefly stated, are as follows: A. O. Burton, appellant, is a real estate broker in Mississippi County, Arkansas, and had been for eight or ten years prior to the transaction involved in this suit.

Argues the merits of the case which are not decided. There is no bill of exceptions in the case. It is not shown when it was filed or signed. A bill of exceptions is necessary to enable the court to consider and decide the questions raised. 72 Ark. 264; 96 Id. 175; 117 Id. 118.

Under Acts 1911, page 28, appellees had only one year within which to redeem. Act 43, Acts 1915, can not extend the time because it could not be retroactive nor defeat nor impair nor divest vested rights. 127 Ark. 341; 112 Id. 6; 63 Id. 573; 117 Id. -606. 2. After the year expired the time could not be extended. The act is not retroactive nor can not it affect vested rights. 29 Fla. 79; 30 Am. St. 95; 194 U. S. 415; 40 Ark. 423; 51 Id. 453.

The complaint stated facts sufficient to constitute a cause of action, and it was error to sustain the demurrer. Vann took trust funds with notice of the trust and subject to the trust and is liable. 96 Ark. 573; 89 Id. 168; 69 Id. 43; 68 Id. 71. 2. The Surety Company was entitled to be subrogated to all the rights of Hamilton’s wards. 37 Cye. 434, and par. C; 39 Id. 549, 557, 572.

This is a suit in equity for the reformation of a deed. The plaintiff, P. C. Cain, alleges that he bought several parts of lots of ground in the city of Conway from JV D. Collier, and that by a mistake on his part, coupled with fraud on the part Of Collier, a part of the ground so purchased by him was omitted from the deed.

J. Driver, Judge; 1. The court invaded the province of the jury in giving instruction No. 6. 2. The verdict on the second count is contrary to the evidence. 3. The evidence shows that Bickman wrote, signed and endorsed the check in the presence of Koonce. The jury found that defendant was not guilty of forgery and hence was not guilty of uttering a forged check. Confess error in giving the 6th instruction.

The act reduced the territory of Greene County to less than 600 square miles and is unconstitutional and void. The suit was properly brought and in the names of the proper parties. Const. Art. 13, § 1. Proof aliunde was admissible. The section is self-executing and mandatory and the infraction thereof is addressed to the judiciary. 34 Ark. 224; 27 Id. 202; 33 Id. 497; 35 Id. 56; 80 S. W. 443. See also 17 R. C. L. 972, § 345.

The summons served on defendant was sufficient to support the decree rendered in the cause. 20 Ene. PI. & Pr., 1145; 163 TJ. S. 454; 40 Md. 210; 19 Ark. 253. 2. It was amendable to conform to the complaint and should be treated as amended if necessary. 32 Cye. 534D; 71 111. 354; 8 Ind. 354; 5 Id. 192; Moor. 230; 7 Mo. 173; 14 Abb. Pr. 364; 1 Tex. 481; 40 Cent. Dig. 230. 3. But if defective or insufficient the defect was waived by defendant filing an answer.

The appellant brought this action against the appellees, who were commissioners of Street Improvement District No. 1, and of Storm-sewer, Curbing and Guttering District No. 1, of the city of Blytheville, Ark.

McMahan, Chancellor; 1. Appellees are barred by the decree of confirmation in 1903. Kirby’s Dig. § 656-7; 188 S. W. 810. 2. The cause should have been dismissed because of want of capacity in appellees to sue. The proof wholly fails to show any individual interest in the two individuals named as plaintiff. Bradley had been a trustee, but Lawrence was not; neither had he any individual interest. 3.

There is no substantial evidence of negligence and plaintiff assumed the risk as matter of law. A peremptory instruction should have been given for defendant. 122 Ark. 445. But plaintiff was guilty of negligence and assumed the risk. No negligence of defendant or its employees was proven. The rabble rake was in operation. The physical facts show this. 79 Ark. 608. There was no duty to warn, plaintiff knew the circumstances. Plaintiff can not recover as a matter of law.

H. Evans, Judge; 1. It was error to give the State’s instruction No. 2 that proof of actual penetration, etc., was sufficient. There was no issue as to penetration and it is misleading. The penetration was admitted. Other elements are also necessary. 33 Cyc. 1504; 11 S. W. 106; 3 Id. 784. 2. The State’s instruction No. 8 is too general. The elements of rape should have been mentioned. 3. No. 9 as to reasonable doubt was error.

Mc-Mahan, Chancellor ; STATEMENT OP PACTS. Appellant brought three separate actions in the Benton Circuit Court; one against E. C. Hill; one against Gr. W. Wilmoth; one against A. P. Ash. Appellant alleged that he was the owner of the particular tract of land, described in each of his complaints, and that each of the defendants named in the respective complaints was in the wrongful possession of the land described.

P. Taylor, Special Chancellor; The court erred in sustaining the finding of the special commissioner. The evidence sustains the finding and decree. The debt has never been paid and the equities of Sachs were transferred to Weil. Weil and the bank have the right to sne in the name of Sachs and the bank.- Kirby’s Digest, § 6001.

8. Maples, Judge; 1. It was error to allow credit for the Strode debt. It was charged to the administration in a former account which was approved, and that is an . adjudication of his liability. 2. It was error to allow credit for the insurance premiums paid on the policy, as the policy was void. 3. It was error to allow the credit for traveling expenses, in addition to commissions and expenses of administration. 4.

R. Eaynie, Judge; 1. The evidence is not sufficient to sustain the verdict. The extrajudicial confession was not supported by any other proof. Kirby & Castle’s Digest, § 2555; 94 Ark. 343; 73 Id. 407; 115 Id. 566; 117 Id. 539.. 2. It- was error'to refuse' to give instruction No. 4 and other instructions. 3. ' The remarks of the prosecuting attorney were prejudicial. 1. The evidence is ample to support the verdict.

The evidence is sufficient to sustain the conviction. 2. The motion for. continuance was properly overruled. Due diligence was not shown and no prejudice is shown. There was no showing that the presence of the absent witness was reasonably expected at a future term of court. 62 Ark. 543; 103 Id. 509. Besides appellant had the benefit of the testimony of this witness as his testimony was read to the jury. 90 Ark. 384. 3.

W. Smith, Judge; 1. Plaintiff’s instructions 1, 2 and 3 should have been given and defendant’s Nos. 2, 3 and 4 should have been refused. Plaintiffs earned the commission, and it was defendant’s duty to furnish a good marketable title when a willing purchaser was found. 112 Ark. 566. 2. . The owner of the land did not act in good faith; the purchaser was secured within the time limit and the failure to make the trade was the owner’s fault.

B. Sorrels, Judge; 1. Evidence of threats was admissible. 16 Ark. 568; 29 Id. 261; 69 Id. 148; 55 Id. 593; 72 Id. 436; 76 Id. 493; 79 Id. 594. 2. It was error to refuse appellant the right to prove the reputation of deceased for being dangerous and quarrelsome. 29 Ark. 348-262; 13 R. C. L. 916; 108 Ark. 104. 3. It was error to refuse instruction No. 10. 108 Ark. 104; 13 R. C. L. 821. 1.

T. Wood, Chancellor; The order was void as the plaintiffs were under fourteen years of age. It was void on its face. Kirby’s Digest, § 1309; 54 Ark. 627; 123 Ark. 389; 185 S. W. 798; 48 Ark. 305. The order was not void on collateral attack. The court had jurisdiction. 100 Ark. 69; 47 Id. 413.

T. Humphries, Chancellor; STATEMENT OF FACTS. On the 10th day of October, 1916, the Citizens’ Bank instituted this action in the circuit court against J. W. Brown and R. W. Brown, administrator of the estate of T. J. Brown, deceased, defendants, and Taz D. Hunt, garnishee.

R. Hayme, Judge; 1. Appellant was indicted as principal but convicted as an accessory after the fact. The judgment is not sustained by the evidence. 109 Ark. 498; 37 Id. 274 ; 41 Id. 173; 96 Id. 58; 109 Id. 389; 34 Id. 632. 2. Improper evidence was admitted and the argument of the prosecuting attorney was improper and prejudicial. 101 Ark. 153; 55 Id. 598; 96 Id. 8; 58 Id. 481; 70 Id. 305. 3. Evidence as to the head of the steer was hearsay. 70 Ark. 562.

R. Hayme, Judge; 1. Appellant honestly believed that the steer was the one he owned and had bought from Williams. This phase should have been submitted to the jury on proper instructions, but the court refused. 98 Ark. 149; 97 Id. 153. 2. The court erred in amending No. 2. 71 Ark. 459; 128 Id. 35. The evidence is ample and there is no error in the instructions. 78 Ark. 490; 89 Id. 24; 73 Id. 407; 26 Id. 334; 128 Id. 35, 38.

This is a suit in equity by J. C. Honey against John Monteith to enjoin the latter from maintaining an embankment across a watercourse and causing the water usually flowing therein to set back upon plaintiff’s land and overflow it. The watercourse in question is called Johnson Creek. It is a very crooked stream and flows generally in a southeasterly direction. Before entering the plaintiff’s land, Johnson Creek flows in a southerly direction and then turns and flows eastward.

M. Elliott, Chancellor; 1. The appeal was taken within the six months. The decree was rendered November 12, 1917, and the transcript filed April 5, 1918. ' 2. All the testimony as to the alleged lost contract was incompetent. Besides it was contradictory of the will. The case in 102 Ark. 30 is not in point. Parol evidence was not admissible to establish a trust or vary ;the terms of a written will. The alleged contract is vague and indefinite if established.

P. Henderson, Chancellor; 1. Appellant compromised his indebtedness with the bank and paid $2,250 in full satisfaction of all its claims and demands, and the bank accepted it in full payment and issued its receipt. If a mistake was made, this would not affect the composition and settlement. Appellant offered to correct the mistake, if made. The appellees’ claim was satisfied. 85 Ark. 439; 89 Id. 385. 2. An accord was made and agreed to and a tender of satisfaction made.

Coleman, Judge; 1. Tbe statement of facts was all tbe evidence before tbe court and it was error to go beyond tbe record and consider any pleading or contention not raised by the complaint. 2. Tbe court erred in refusing appellant judgment for its debt although the attachment was wrongfully sued out. 3. Appellee was a non-resident and entitled to no exemptions in this State. 190 U. S. 294-9,104 Ark. 234-5; 1. Loveland on Bankruptcy, § § 128, 890; 196 IT. S. 149.

T. Humphries, Chancellor; 1. In addition to the amounts allowed by the court below appellant is entitled to credit for $200 expended during the overflow and $90.50 for shingles lost. 2. ' On the counterclaim set up in the cross-bill appellee is liable for damages for failure to advance money to pay for logs necessary to keep the mill running, the profits on which would be $2,400. 3.

M. Elliott, Chancellor; 1. Appellant was only ten years old when the summons was delivered to her and no copy was served on her father, guardian, mother or other person in control of her. The court acquired no jurisdiction although the record recites that each of the defendants was duly .served with process. 22 Cyc. p. 680 § 7; 83 Ark. 201; 124 Id. 331; 96 Pac. 1005; 18 L. R. A. (N. S.) 405. See also 22 Cyc., note 50; 1 Duv.

B. Sorrels, Judge; 1. The court erred in setting aside the judgment. No fraud is shown, nor unavoidable casualty or misfortune. Kirby’s Digest, § 4431, par. 7; lb. § 4433; 39 Ark. 107; 93 Id. 462. Mere negligence of one’s attorney is not sufficient. 104 Ark. 45. 2. The party must show that he was not guilty of' negligence or carelessness. 114 Ark. 493. Due service was had and notice given. 106 Id. 230. 3.

G. Trimble, Judge; The issue raised here was never raised or passed on by the chancery court or by the Supreme Court. The matter was never res adjudicata. 66 Ark. 366; 124 Id. 435; 18 Id. 142; 24 A. & E. Enc. Law (2 ed.), 784. 1. The parties are the same as well as the subject matter. The same transaction is involved and the matter is clearly res adjudicata. 15 Ark. 555; 19 Id. 62; 39 Id. 531; 47 Id. 31. 2. The former judgment is conclusive. 65 U. S. 24; 7 Wall. 619; 94 IT.

.Appeal from Lee Circuit Court; J. M. Jackson, Judge; This ease was before this court in 119 Ark. 592 and 128 Id. 129. -The petition. contained a majority of the electors in tbe district. The petitions bere were accepted and acted upon as genuine. There is no showing that tbe signatures are not genuine. The petitions are jurisdictional. 49 Ark. 18; 51 Id. 48; 70 Id. 449. Tbe judgment should be reversed and tbe district dissolved as a clear majority petitioned.

E. Martineau, Chancellor; STATEMENT OF FACTS. This action was instituted by two residents and tax payers of the city of Argenta against the clerk and treasurer of the city, respectively, to enjoin the payment of the sum of $150, a monthly sum allowed the mayor of the city of Argenta by resolution of its council, which, so far as is pertinent here, reads as follows: ‘ ‘ That there shall be, and is hereby appropriated out of any moneys now on hand, or that may hereafter…

W. Hendricks, Judge; STATEMENT OP PACTS. Will Shepard sued Charles E. Wells to recover damages for injuries inflicted by an automobile which he alleges was at the time driven by a chauffeur of the defendant in a negligent manner. The facts as proved by the plaintiff are substantially as follows: On the morning he received the injury, plaintiff was walking north on Spring Street on the sidewalk on the east side thereof.

J. Driver, Judge; 1. The indictment does not charge a crime under the “Bone Dry” Act. 47 Ark. 488. 2. The court erred in the instructions, and the evidence fails to show any violation of law. Mere suspicion is not proof. There was no proof that appellant was transporting liquor for another. 202 S. ~W. 39; 16 Ark. 499; 13 Id. 712; 80 Id. 94; 68 Id. 529; 85 Id, 360; 100 Id. 184. This indictment is good under the statute, and there is no error in the instructions. 202 S. W. 39.

W. Wade, Judge; 1. Hobbs’ testimony is too remote and disconnected and is irrelevant. 23 Cyc. 250, note 24; 124 S. W. 107; 110 S. W. 900; 44 Id. 494; 111 Id. 412. 2. Dixon’s testimony fails to connect appellant with the sale. 3. Holloway’s testimony should have been admitted as to Mattie Foster’s character. 1 Wigmore on Ev., 655, 749; 69 N. C. 75. 4. Luke Wesson was convicted of crime and the records showing this should have been admitted. 5.

W. Hendricks, Judge; STATEMENT OE EAOTS. The appellee who was near 35 years of age, was employed by the appellant, a corporation, having a hardwood mill and doing business in Arkansas. His duties were to feed flooring into what is known as an American flooring machine. The machine was the best that could be obtained in the hardwood business. Appellee represented to appellant that he had had experience as a machine man, and doing inside finishing work.

Kirby’s Digest, § 56-7. The estate was exempt. I'b. § 72-4. The estate was not insolvent. The widow had a right to the horses and could dispose of them. Ib. § 74. She was not barred by failure to make appraisement or file the list in time. 67 Ark. 283. No motion for new trial was filed nor is there any bill of exceptions. There is nothing before this court. 11 Ark. 190; 111 Id. 529; 90 Id. 316; 200 S. W. 132, and many others.

T. Humphries, Chancellor; Tbe road was never abandoned as a highway. The only way to abolish a road established, by order of court, or prescription is the way prescribed by statute. 42 Minn. 391; Kirby’s Digest, § 3008; 10 Ark. 241; 65 N. Y. 57; 103 Id. 77; 16 Wend. 531; 83 Ky. 608; 83 Ark. 336-8; 35 Id. 495. The decree is without evidence to support it. 1.

S. Lake, Judge; 1. The court erred in its instructions to the jury. Appellee was a mere trespasser. 83 Ark. 300'; 88 Id. 172; 57 Id. 461; 99 Id. 422. 2. The verdict is not supported by the evidence. 1. No exceptions were saved to the instructions. 114 Ark. 300; 88 Id. 505. 2. Appellee was not a trespasser and he was entitled to the exercise of ordinary care on the part of appellant’s servants not to injure him. 104 Ark. 409; 93 Id. 15. 3.

J. Driver, Judge; 1. The verdict is against the evidence. The damages, if any, arose from plaintiff’s own neglect. The total damages proven only aggregate $35, and the verdict is excessive. 2. The court erred in refusing to direct a verdict and in refusing to require the jury to answer the interrogatory. 1. The evidence supports the verdict. 46 Ark. 524; 66 Id. 175; 44 Id. 486. 2. The verdict is not excessive. 15 Ark. 452; 24 Id. 55. 3. There is no error in the instructions.

Mc-Mahan, Chancellor; STATEMENT OE EAOTS. On the 8th day of February, 1918, a citation issued out of the chancery court of Madison County upon appellant, J. P. Whorton, commanding him to appear in that court on February 12, 1918, and show cause why he had not paid to the commissioner of that court the sum of $425.96, which sum the court at its August term, 1917, had ordered its commissioner to pay to appellee, Rebecca A. Hawkins, out of the moneys held by appellant for the…

T. Humphries, Chancellor; 1. The facts do not constitute adultery on the part of appellant. 110 N. Y. 658; 71 Id. 137; 9 A. & E. Enc. “Adultery.” 2. The mere indiscretions of tbe wife were condoned by appellee. 23 Ark. 621; 87 Id. 179; 14 Cyc. 637. 3. Tbe charge of cruelty is a recriminatory defense to adultery. 128 Ark. 110; 6 A. & E. Am. Cases 169 and note p. 172. 1. Adultery was fairly proved. 110 N. Y. 658, and cases cited by appellant. 2.

J. Driver, Judge; 1. The indictment is defective as it does not allege that the pistol was loaded with gunpowder and balls. 2 Bishop New Cr. Proc. § 514 (2); Bishop Div. and Forms (2 Ed.) 520 and notes. 2. Incompetent jurors were accepted. 79 Ark. 127. 3. The court erred in excluding testimony of B. R. Hopkins. 3 Wigmore on Ev. § 1730. 4.

Error in the publication of the notice is fatal to the district. 104 Ark. 298; 115 Id. 163; 113 Id. 566; 120 Id. 230. The cases cited are not in point here. Defendants entered their appearance and waived the error under § 8, Acts 1913, Act 177; 119 Ark. 20; 76 Id. 423; 25 Cyc. 203.

C. Hamby, Special Judge; 1. Plaintiff’s instruction No. 1 should have been given. 80 Kan. 746. It was error to give the instruction on the court’s own motion. 2. The demurrer to the cross-complaint should have been sustained. Counterclaims are not assertable in unlawful detainer. Acts 1917, p. 1441; Kirby’s Digest, § 6099, 6101. The old rate is not changed by the new act. Kirby’s Digest, § § 3644-5; 23 Ark. 76; 44 Id. 500; 40 Id. 38; 36 Id. 316, 319, 324.

T. Wood, Chancellor; 1. Appellant complied strictly with the statute and followed the remedy laid down by the law. K. & C. Dig., § § 6322, 3625, 3985. 2. Appellant had the paramount lien and should have the preference as a judgment creditor. K. & C. Dig., § 3985. McCroskey had no valid canse of action. A judgment will not be vacated on motion or complaint until it is adjudged that there is a valid defense. 129 Ark. 136; 84 Id. 527; 94 Id. 348.

S. Maples, Judge; 1. It was error to direct a verdict. There was at least some evidence to establish an issue and the cause should have been submitted to a jury. 63 Ark. 94; 77 Id. 556; 70 Id. 74; 89 Id. 368; 90 Id. 210; 91 Id. 337; 93 Id. 191; 95 Id. 560; 96 Id. 394; 103 Id. 401; 71 Id. 445. 2. There was evidence of negligence.

McMahan, Chancellor; 1. Equity cases are tried anew in this court and plaintiff has failed in his proof that defendant was laying out a road contrary to the order of the county court. 96 Ark. 434. 2. The order is not void for uncertainty. 102 Ark. 558.The presumption is that the order is valid.

Barker, Chancellor; STATEMENT OE EAOTS. Alice P. Puckett brought this suit in equity against Mrs. Margaret Glendenning to set aside a deed to certain lands made pursuant to a guardian’s sale in the probate court and to have her title to said lands quieted against the defendant.

W. Smith, Judge; •1. The claim was not properly authenticated. Kirby’s Digest, § 114; 66 Ark. 327; 48 Id. 304; Kirby’s Digest, § 7799; 70 Ark. 449. 2. It was error to refuse a jury trial. 109 Ark. 534; 4 Id. 158; 56 Id. 391; 75 Id. 443. It was not waived. K. & C. Dig., § § 7609, 7651. 3. The court erred in not suppressing the deposition of Alex Perdue. Kirby’s Dig., § 3093. He was not a competent witness. 1. The judgment is not contrary to the evidence.

R. Haynie, Judge; The court erred in its instructions. No negligence was proven and plaintiff clearly assumed the risk. 90 Ark. 407; 108 Id. 483; 58 Id. 125; 89 Id. 50; 106 Id. 436; 76 Id. 441. Appellee was guilty of no negligence but appellant was. Appellee did not assume the risk. 182 S. W. 83; 129 Id. 88; 203 Id. 840; 232 IT. S. 94; 182 S. W. 81.

Cochran, Judge; 1. The proof as to the age of Sarah Embrey is far from satisfactory. The court erred in refusing to give instruction “A” and in giving No. 2. The appearance and development of the witness should have been submitted to the jury. The question of fact as to sexual intercourse should have been left to the jury. 2. Cravens’ testimony was improper and prejudicial. 37 Ark. 261; 120 Id. 492. Testimony as to another crime was not admissible. 67 Ark. 112. 1.

The demurrer should have been sustained. The offense is a misdemeanor and the conviction for the first offense did not occur within one year before the return of the indictment for the second offense. Kirby’s Digest, § 2106. 2. As to the particularity with which a conviction for the first offense must be alleged in an indictment for the third offense, see 14 R. C. L., p. 190, § 35; 22 Cyc, 356, § 2; 22 Ark. 323; Ann. Cases, 1914, C. 562, note; 9 Ann.

'F. Mc-Mahan, Chancellor; 1. The plea of usury is not sufficient. It fails to allege a corrupt intent or agreement. 4 Ark. 44; lb. 410. A corrupt agreement and the intention to take or reserve more than the legal rate of interest are essential and must be averred. 26 Id. 356. The burden is on the party who pleads usury. 74 Ark. 241; 83 Id. 31; 105 Id. 653.

F. Mc-Mahan, Chancellor; 1. Appellee purchased from Henley, subject to and with notice of appellant’s claim. Open, notorious, unequivocal and exclusive possession under claim of ownership for the statutory period, gives title. 47 Ark. 533; 54 Id. 273. The legal title can not overrule the equities of the occupants. 13 L. R. A. (N. S.) 54. A subsequént purchaser gets no better title than his grantor had. Ib.

J. Driver, Judge; I. The court erred in refusing to transfer the cause to the chancery court. 46 Ark. 272; 76 Id. 426; 95 Id. 121; 80 Id. 343. A flagrant case of laches is alleged and shown. 81 Ark. 352; Id. 432; 188 Id. 333; 90 Id. 430; 95 Id. 18; 93 Id. 298; 99 Id. 455; 99 Id. 480. 2. Appellants and their predecessors in title had the actual, open, adverse and notorious possession of the land for more than the statutory period under a tax title.

B. Priddy, Judge; The justice had jurisdiction and the summons was duly served upon appellee. The judgment was not void as the justice of the peace acquired jurisdiction of appellee’s person by service. Process served anywhere in the county was valid and the judgment was valid and improperly set aside. 102 Ark. 255; Freeman on Judgm. § 126; 2 Dillon C. C. 351; 55 Ark. 209; Kirby’s Digest, § 4555; 7i8 Minn. 87. Ford v. Adams, 54 Ark. 137, is not in point.

The contract is void as against public policy. 66 Ark. 190; 98 Id. 523; 7l8 Id. 92; 38 Id. 149; 88 Id. 556. 2. The admission of the testimony of E. W. McFarlane was reversible error. 114 Ark. 542; 104 Id. 1. See also 103 Id. 356; 112 Id. 452; 125 Id. 314; 61 Id. 130; 63 Id. 174; 81 Id. 87; 100 Id. 437; 89 Id. 58; 180 S. W. 474. 3. The testimony of McFarlane, Ben Cravens and Holland as experts was improperly admitted.

D. Robertson, Chancellor; 1. No warranty was made by appellant. Mere puffing or commendation is not a warranty. 44 Ark. 216; 45 Id. 284. 2. Appellee had ample opportunity to fieadi the written contract, and he is bound. 119 Ark. 553; 84 Id. 349. 3.

M. Jackson, Judge; 1. The demurrer to the affidavit should have been sustained. It does not allege that the defendant was a common carrier, or that he secured one to bring the liquor into the State, nor does it allege that it was not for his personal use, nor that it was delivered in this State. 60 Ark. L. Rep. 363; 130 Ark. 159. 2. The court erred in its instructions. Cases supra. 3.