Volume 137 — Arkansas Reports

S. Lake, Judge; STATEMENT OE EACTS. - Appellees instituted this action in the circuit court against appellant to recover possession of a certain forty acre tract of land in Howard County, Arkansas. The land originally belonged to Josiah McDaniel, who received it by patent from the United States. He died owning and in possession of the land. Appellees were his sole heirs at law and all were minors at the time of his death.

<p>Specific performances — fraud of plaintiff. — Where a purchaser of land, fraudulently conspiring with his father, took cotton that had been mortgaged to the vendor by the father and out of 'the proceeds paid one of his purchase-money notes, and offered to pay his other notes, he was not entitled to specific performance of his contract of purchase.</p>

H. Dudley, Judge; STATEMENT OE EAOTS. R. M. Stewart while riding in his automobile across a public railroad crossing in the town of Turrell, was struck by a south-bound passenger train of the St. Louis-San Francisco Railway Company and severely injured and his automobile badly damaged. He sued the railway company to recover damages.

This case falls sqnarely within our statute. Kirby’s Digest, § 3666; 51 Ark. 71; 67 Ark. 526; 110 Id. 389. 2. It was error to exclude the certified copy of the decree. The objection was general. It was res adjudicata. The decree was final and can not be attacked collaterally.

E. Martineau, Chancellor ; STATEMENT OP PACTS. The appellant sued the appellee, seeking to enjoin the latter from trespassing upon a certain tract of land which he described in his complaint.

S. Maples, Judge; STATEMENT OE EAOTS. Tbis is an action for commissions for procuring a purchaser for real estate. Tbe plaintiffs are John R. Harris and N. H. White, composing the firm of Harris & White, real estate agents, and the defendant is W. C. Stone, who owned a farm near Fayetteville, Arkansas.

<p>Appeal from Arkansas Circuit Court, Southern District; Thos. C. Trimble, Judge;</p>

G. Trimble, Judge; 1. The verdict is contrary to law. The evidence does not justify the modification of defendant’s instruction No. 2. 2. The remarks of the court call for a reversal.

F. McMahan, Chancellor; 1. It was not necessary to furnish a list of creditors who had no goods in the Whitaker stock at the time of the sale. If these creditors had no interest in the goods, they would have no interest in the money received for them in the sale to Griffin, and, under the Bulk Sales Law, they are without remedy so far as the stock of goods is concerned. 185 S. W. 263. 2.

T. Humphries, Chancellor; At the time Mitchell left appellant had an artisan’s lien as well as a statutory lien, and he told appellant to keep the car until he paid appellant. An artisan’s lien is not dependent upon the statute. 122 Ark. 466. Any word or act by Mitchell showing an intent to pledge the property would be sufficient to constitute a pledge. 22 Am. & Eng. Enc. of L., 2nd ed., 851.

T. Wood, Chancellor; 1. A plaintiff in ejectment must rely upon the strength of his own title. 92 Ark. 87. The burden of proof was on appellee on filing the cross-bill. The rule is applied in suits to remove clouds or quiet title. 74 Ark. 202; 80 Id. 34; 87 Id. 185; 155 U. S. 404. 2. Appellee seeks to divest title from Lucinda Morris and acquire title on the theory that Lucinda held as trustee for her husband Anderson Morris.

<p>Appeal from Desha Circuit Court; W. B. Sorrells, Judge;</p>

H. Coleman, Judge; Appellant’s lands were relieved of further assessment by the chancery decree. The sum paid by him was in full of all assessments and the decree is a bar to all further assessments. Act 318 Acts 1911, § 20, p. 886. The decree does not support appellant’s contention. The assessment was merely for the construction of the ditches, but the Act expressly provides for further assessments for cleaning out the ditches, etc. Act 318, Acts 1911, § 20, etc.

M. Elliott, Chancellor; 1. The report of commissioners is insufficient to justify the chancellor in ordering sale. 49 Ark. 104; 77 Id. 317; 55 Id. 205; 81 Id. 462. 2. The commissioners were not proper persons; residents of the county. Kirby’s Digest § § 5778-9; Kirby & Castle’s Dig. § § 7219, 7220; 90 Ark. 502-3; 49 Id. 109. 3. The price was inadequate. 58 Ark. 401; 117 U. 5. 180; 58 Ark. Law Rep. 407. 4. It was error to overrule the motion to consolidate.

J. Driver, Judge; 1. The action is barred by limitation. There was a breach of warranty at the instant the deed of Quinn and others was executed and delivered and the statute began to run. The title was in the U. S., 32 Ark. 714, and cases cited; 33 Id. 593, 598; 59 Id. 634; 74 Id. 351; 17 L. R. A. (N. S.) 1183-4 and note. 2. The contract of January, 1911, did not take the case out of the statute.

I. Worthington, Judge; affirmed. The evidence does not sustain the conviction. We have no statute covering the offense and the proof shows no crime under the common law. 40 Ark. 60; 94 Id. 207; 30 N. J. L. 102-110; 16 Tex. App. 82-3; 96 Ala. 44; 11 So. 128. The indictment charges a common law offense. Kirby’s Digest § § 623-4 ; 38 Ark. 637; 9 R. C. L. 218, § 2. The evidence shows a violation of law. Supra.

J. Driver, Judge; 1. The same issues involved here were tried in the ease in 125 Ark. 136. The subject matter is the same and the parties are identical. The whole matter is res adjudicate. 97 Ark. 450; 96 Id. 540; 94 U. S. 351. 2.

T. Wood, Chancellor; STATEMENT OE EAOTS. This suit was instituted by the appellee against the appellants.

W. Wade, Judge; STATEMENT OF FACTS. This appeal is from a judgment of conviction of the crime of seduction. Eva Wilder, the prosecutrix, testified that she was 23 years of age; that she had kept company with the appellant off and on for two or three years up to the middle of March, 1917, when she had sexual intercourse with him. During the year preceding he had visited her sometimes two or three times a week and sometimes about once a month.

C. Rodgers, Special Judge; STATEMENT OE EAOTS. Dora Webb sued tbe Kansas City Southern Bailway Company for damages for the death of her minor son, alleged to have been caused by the negligence of the defendant. The material facts are as follows: On February 10th, 1918, Earl Webb, a boy fourteen years of age, in company with some other boys boarded an extra freight train southbound, at the water tank at the city of Mena, Arkansas.

B. Sorrells, Judge; 1. Nutter’s testimony with reference to the remark of appellant about getting his gun, etc., his reporting the occurrence to the sheriff and procuring a warrant from the justice of the peace, was competent in order to explain Dickinson’s presence where the trouble occurred, and to show that Nutter acted on the sheriff’s advice in procuring the warrant. It was not hearsay and was properly admitted. 10 R. C. L. 959 § 133; 83 Kan. 703, 708. 2.

H. Dudley, Judge; STATEMENT OE EAOTS. This is an appeal by the widow from a judgment of the circuit court affirming the judgment of the probate court in refusing to allow certain exceptions filed by her to the final account of the administrator of her deceased husband’s estate.

M. Jackson, Judge; 1. The evidence is not sufficient to warrant the verdict. No false pretense is proven, nor intent to defraud. 102 Ark. 452; 50 Id. 430. 2. The indictment is bad. Cases supra. The evidence is sufficient. Kirby’s Digest § 1689. There is no error in the instructions and the indictment states an offense within the. statute.

B. Haynie, Judge; 1. The evidence shows no négligence in the construction of the dam. It was constructed according to the plans and directions of the engineer and skillfully done. 2. The court erred in giving and refusing instructions to the jury and the verdict is against the evidence. 110 Ark. 416; 118 Id. 1; 170 S. W. 1012; 91 Ark. 41; 120 S. W. 391; 170 Id. 1012. There is no error in the instructions.

Court; J. B. Baker, Judge; STATEMENT OF FACTS. This is an action in replevin by Oscar Ellis, as guardian of Madeline Hightower, a minor, against G. M. Caruthers, as administratdr of the estate of S. W. High-tower, deceased, to recover the possession of three promissory notes which he alleged belonged to his ward and which were wrongfully detained from her by the defendant. The notes in question were introduced in evidence and were payable to the order of Madeline Hightower.

W. Hendricks, Judge; The plaintiff was entitled to interest on each item of its account from maturity. The court so instructed the jury. 36 Ark. 355; 46 Ark. 87; 98 Ark. 519. The court erred in submitting the question of waiver of interest to the jury and not in instructing the jury to find for plaintiff. The plaintiff waived the right to charge interest, and the court properly submitted that question to the jury. The scintilla of evidence rule should certainly apply.

Francis Chancery Court; E. D. Robertson, Chancellor; Appellant’s argument touching the validity of the tax title is not abstracted because the opinion does not discuss the points argued.

F. McMahan, Chancellor; 1. The land in controversy being the homestead of H. A. L. Watts, the execution and delivery of the deed vested both, the legal and equitable title in his children without reference, to his creditors. 52 Ark. 101; 44 Ark. 180. 2. Neither Peter Adams and Asa Watts as first mortgagees nor Geo. T. Blair as second mortgagee, are bona fide purchasers, and are not entitled to protection as such. 102 Ark. 45; 27 Ark. 557-560; 105 Ark. 201. 3. Geo.

R. Haynie, Judge; The court erred in refusing the mandamus. Every land owner has the right to have his lands correctly assessed as to description and acreage on the tax books. There was an error made and it was the duty of the sheriff to correct it. It was purely a ministerial duty to correct the error. 113 Ark. 142; Kirby’s Digest, § § 6989, 7180.

M. Barker, Chancellor; STATEMENT OF FACTS. In April, 1906, S. W. Anderson married Mrs. Rosie Wilson, a widow with two children, the oldest a girl named Lena, then about six or seven years old, the other a. boy named Junius, who was then about four years of age. These children lived with Anderson for about six years, when they left him to live with their grandmother.

S. Lake, Judge; Act 200, Acts 1915, is void because it has no enacting clause. 27 Ark. 266; 101 Ark. 473; Const. Art. 5, Sec. 18. Act. 409, Acts 1907 is a quarantine measure only and does not contemplate cattle dipping, nor provide a penalty for failure to do so. 90 Ark. 343; 190 S. W. 436. The penal section of Act 409 was not followed in the indictment. Nothing less than a charge in the language of the statute can answer. 53 Ark. 334, 336.

B. Baker, Judge; The court erred in sustaining the demurrer to the complaint. The demurrer admits the facts stated herein for the purpose of passing upon the question raised. 94 Ark. 505; 94 Ark. 453-456. The complaint must be tested on the demurrer by its own allegations. 46 Ark. 537; 87 Ark. 418-423. Where one paragraph of a complaint states a cause of action on demurrer the whole complaint should be overruled. 72 Ark. 29; 32 Ark. 131.

E. Martineau, Chancellor; 1. The main objection to appellant’s title is that the delinquent list for taxes of 1893 does not contain the caption set out in Kirby’s Digest § 7086, although it contains the notice of sale as prescribed. The section requires the list and notice to be recorded but not the caption. 55 Ark. 218; 34 Fed. 701; 140 U. S. 634.

E. Bennett, Special Judge; 1. The special judge was disqualified by reason of being county examiner. He was an appointee of the county judge. Art. 7, § 18, Const.; 25 Ark. 623. 2. The estimates of costs were not shown in the petitions for the district and not included or mentioned in the notice given by the clerk. The order for the road was therefore void. 123 Ark. 205. Acts 1915, p. 1400.

This suit was commenced as a summary proceeding by a client against his attorneys to compel them to surrender money collected for them. The attorneys filed aii answer verified by affidavit showing that there was a bona fide dispute as to the facts on which the right of the attorneys to retain the money was dependent. The attorneys claimed the right to retain the money under án agreement with the client which was in writing and which was made a part of their answer.

A. Falconer, Chancellor; STATEMENT OP PACTS. In 1916 Nakdimen brought suit against Brazil and the Midland Savings Loan Association. Among other things the court found that Nakdimen agreed to convey to Brazil a certain tract of land in Oklahoma of the agreed value of $3,000, and that Nakdimen refused to deliver a deed to the land according to the agreement.

S. Lake, Judge; It was error to allow plaintiff to impeach his own witness. 118 Ark. 460; 102 Id. 590; 72 Id. 582; 114 Id. 542; 109 Id. 213; 112 Id. 477. There was no error in allowing evidence to impeach the witness as he had made statements different from his present testimony. Kirby’s Digest, § 3137; 102 Ark. 588, and cases cited by appellant. There is no error and the judgment should be affirmed, as the evidence fully sustains the judgment.

The court misconceived the purpose and intent of the statute under which these proceedings were had. 25 Ark. 265. The statute is derogatory of the common law and must be construed strictly as against the county, and liberally in favor of the holders of the warrants. 65 Ark. 142; 51 Ark. 34. . While such statutes are mandatory in form, a substantial compliance with their terms is sufficient. 110 Ark. 222; 127 Ark. 498.

Martineau, Chancellor; STATEMENT OF FACTS. This was a bill of interpleader filed in the chancery court by the Home Life & Accident Insurance Company in which it stated that there were rival claimants to the proceeds of a policy of insurance, and that it did not know to which of them it should make payment.

H. Dudley, Judge; STATEMENT OF FACTS. W. R. Hawkins instituted this suit against Clinton Fraser for the recovery of damages sustained by him in consequence of the killing of two of his mares and a colt .alleged to have been done by the defendant’s stallion. The material facts are as follows: Clinton Fraser resided at Jonesboro, Arkansas, during the latter part of 1917, and the first part of 1918.

April 23, 1917, James Bona, Jr., was run over and killed by an automobile. He was a little over three years of age, and was standing on the steps of his home at the southeast corner of Fourth and Spring streets, Little Rock, Arkansas. The car was being driven by L. GK Hinkson, an employee of S. R. Thomas Automobile Company and S. R. Thomas, who at the time had the possession and control of the car.

R. Haynie, Judge; The verdict of the jury is not supported by the evidence. The jury had no right arbitraily to disregard the testimony of the three disinterested witnesses. 118 Ark. 349; 101 Ark. 532; 53 Ark. 96. The court erred in refusing to allow Dr. Cannon to answer the question propounded for the reason that the relation of physician and patient did not exist. 112 Ark. 534.

A. Falconer, Chancellor; 1. The court’s holding that appellee’s plea of former adjudication was well taken because of appellant’s failure to plead the homestead right in the former suit, is in direct conflict with the decision of this court in Bunch v. Keith, 64 Ark. 654. See also 55 Ark. 55. No mention of these cases is made by the court in Baker v. Hudson, 117 Ark. 492, relied on by appellee, and it cannot be that the latter case was intended to overrule the former.

M. Jackson, Judge; 1. It is clear that the statutes regulating the selection of the grand jury were not complied with. If these statutes are mandatory, the case should be reversed with directions to quash the indictment. Kirby & Castle’s Dig., § 2362, 5227, 5233, 5234, 5246, 5247; 60 Ark. 589; 75 W. Va. 7; 89 Miss. 147; 10 Am. Cases, 963-967; 17 Am. & Eng. Enc. of L. (2 ed.), 1262.

John Schaap brought suit in the municipal court of Texarkana, Arkansas, against the State National Bank of Texarkana, to recover on certain checks which he alleges belonged to him and which were collected by the bank and held by it after demand made by him for the amounts so collected.

B. Sorrells, Judge; 1. The verdict is without evidence to support it. The testimony is different from that on the former appeal. 131 Ark. 155. The compress company’s manager did not testify here that he would not have delivered the cotton without the clearance and the contract between the railway and compress company is not in evidence. There was a complete delivery of the cotton and' a verdict should have been directed for appellant. 2.

W. Wade, Judge; The court should have directed a verdict for the appellant. There was no binding contract entered into between the parties. A contract to be enforcible must impose mutual obligations on both the parties thereto. 131 S. W. 460; 187 S. W. 327; 7 Am. & Eng. Ency. of Law, 114. There was no testimony as to the terms of the contract except that of the appellee and witness J. B. Keys.

I. Worthington, Judge; 1. The court erred in overruling defendant’s motion for a continuance because three of his witnesses were in the army and beyond the reach of the court, whose testimony would have contradicted and tended to lessen the weight of the testimony of Mahan, the State’s principal witness. 2. Defendant was justified in firing the first shot in self-defense.

Francis Circuit Court; J. M. Jackson, Judge; It was error to sustain the demurrer. The demurrer admits that defendants are holding by virtue of a pretended election held under Act 117, Acts 1917, which election was void. Appellants were duly appointed by the governor according to law and the governor’s power-of appointment was not revoked by the act of 1917, p. 623.

H. Dudley, Judge; 1. The conduct of plaintiff subsequent to the settlement estopped him from pleading its invalidity.

P. Henderson, Chancellor; STATEMENT OP PACTS. This is a suit for divorce brought in the chancery court on November 15, 1916, by Mary Koehler against Robert Koehler on the statutory ground of cruel and barbarous treatment. On October 18, 1917, Robert Koehler filed an answer and cross-complaint.

E. Martineau, Chancellor; STATEMENT OF FACTS. Nora Vestal, the widow' of Joseph W. Vestal, deceased, brought this suit in equity against Charles Vestal and the other children of said decedent for the purpose of recovering the possession of five acres of ground and and the greenhouses thereon which she claimed were a part of decedent’s homestead.

S. Lake, Judge; The evidence does not sustain the verdict. The appellee broke the original contract himself and his own letters show it. The court erred in its instructions to the jury. 93 Ark. 472; 98 Id. 760. Purely speculative profits cannot be recovered. 134 Ark. 345; 203 S. W. 836. There is no error in the instructions. Appellee did first breach the contract.

Tbe law of this is settled and tbe statute is not unconstitutional. Arbitrary discrimination was proven and appellant bad paid all dues for service and complied with all tbe rules and regulations. 94 Ark. 533; 102 Id. 547; 238 IJ. S. 482. Tbe complaint stated a cause of action and this court bas twice beld that tbe statute is not unconstitutional. 93 Ark. 11. See also 64 Ark. 650; 7 Ark. 405; Ib. 542; 10 Id. 186; 26 Id. 17; Ib. 133.

A. Falconer, Chancellor; 1. This is the second appeal in this case. 132 Ark. 64. The facts and evidence are substantially the same. The law is settled by the former decision and the court below disregarded the findings of this court on remand of the case and the findings of the chancellor are against the evidence.

Humphries, Chancellor; 1. The preponderance of the evidence shows appellee was under 16 years of age when the order removing her disabilities was made and the order authorizing her to sell was not-void.

H. Dudley, Judge; The evidence here is materially different from that on the first appeal. 132 Ark. 282. In the present case there is no evidence to support the verdict. No liability of defendant is proven because (1) Bryeans started the difficulty.

The contemplated improvements are not sufficiently described in the petition, map and specifications and the order of court is not definite enough. Acts of 1915, p. 1308, § 1, “A,” “B,” and § 7. The notice was not sufficient. 191 S. W. 9; 113 Ark. 193; 115 Id. 88; 86 Id. 21; 97 Id. 341; 103 Id. 269; 116 Id. 167; 103 Id. 65; 90 Id. 29; 59 Id. 344; 60 Ark. L. R. 496. Separate and distinct roads were improperly joined in one district. 30 Ark. 513. 2.

W. Hendricks, Judge; STATEMENT OF FACTS. The appellee brought this action against the appellant to recover on policy of life insurance.

• The facts proven show substantial performance of the contract and the engineers of the district so found and reported and the sewer was accepted. Knowing of all defects and having $12,000 to remedy these defects assumed the task of remedying them and expended over $8,000 foolishly and for additional matters which were the fault of the board’s engineer and not of the contractor. A careful inspection should have been made and attention of the contractor called thereto.

Wade, Judge; STATEMENT OP PACTS. This is au action brought by Dovie Gwin by her next friend, Clark Haynes, to recover an automobile, a cow, and certain household furniture. After the original complaint and affidavit in replevin had been filed, the plaintiff filed an amendment thereto stating a particular description of the property claimed and the value of each article thereof.

71 Ark. 185; 70 Id. 512; 134 U. S. 68; 3 Words and Phrases (1 ed.), and 8 Id. 7064; 1 Id. 559; 34 Ark. 93; 94 Id. 7; 74 Id. 340. Appellee not only had the opportunity to read but actually read and signed the contract and understood it. Supra. Improper arguments and statements made which were prejudicial. 87 Ark. 461; 12 A. & E. Enc. Law, 727. These improperly influenced the jury and there was no testimony upon which to base them. Supra.

It was error to admit hearsay testimony as to what potato buyers said. 1 Wigmore on Ev., § 719; 89 S. W. 978; 68 Id. 448; 12 Id. 816; 56 N. E. 288; 89 Ark. 595. 2. This was a sale of the potatoes and being within the statute of frauds is void and the court erred in its instructions to the jury. 76 Ark. 395.

<p>1. Bail — pending appeal — capital offense. — One who is convicted of murder in the first degree with sentence of life imprisonment is entitled to bail on appeal, under Kirby’s Digest, § 2587.</p> <p>2. Criminal law — appeals—effect on judgment. — An appeal with a supersedeas bond does not vacate a judgment but only stays proceedings under it.</p>

Trimble, Judge; STATEMENT OF FACTS. Terrall Brothers brought suit against R. Carnahan to recover damages for an alleged breach of contract in the sale of certain timber. The material facts are as follows: Charles .Terrall and George Terrall, residents of Lonoke County, Arkansas, formed a partnership called Terrall Brothers.

H. Evans, Special Judge; The indictment alleges that the steer belonged to Grover Fincher but the proof showed that Grover Fancher owned it. The allegation of ownership is material, and should be proved as alleged. 111 Ark. 462; 102 Id. 629; 73 Id. 32; 55 Id. 244; Kirby’s Digest, § 2233. This section has no application where the correct name is not given. The variance is .fatal. Supra. The court should have instructed the jury to find for defendant as requested.

Humphreys, Chancellor; STATEMENT OP PACTS. This was a suit in equity by appellee against appellant for the specific performance of a contract to sell real estate, which is as follows: “I hereby agree in case I get a deed from the Grand Lodge I. O. O. F. of the State of Arkansas, or the trustees of same for the east half northwest 24, 16 1 west, to sell to School District No. 48 of Lawrence County, Arkansas, four acres in the northwest corner of said tract to be laid off in a…

Haynie, Judge; STATEMENT OF FACTS. This action was brought by the appellee Fowler against the Crossett Lumber Company and J. W. Brazell and J. H. Hipp to recover the sum of $70 for services claimed by appellee to be due him for services rendered appellants under the contract for the erection of certain silos.

B. Sorrels, Judge; STATEMENT OE PACTS. This is an action for usurpation of office brought by H. L. Pertuis against C. C. Wiliams under section 7983 of Kirby’s Digest. The material facts are as follows: H. L. Pertuis was a school director of Common School District Number 35 in Lincoln County, Arkansas.

Trimble, Judge; The complaint pleads a contract for work and labor and is not within the statute of frauds. 10 Barbour (N. Y.) 405, 426, affirmed in 8 N. Y. 182; 10 Johnson 364; 18 Id. 58; 8 Cowen 215-219; 1 Rich. Law 199; 44 Am. Dec. 247; 37 Id. 548 ; 68 S. E. 571-2; 121 N. Y. S. 845; 96 N. E. 422; 147 Fed. 641; 196 Id. (C. C. A.) 305; 1 Strange 506. This court should follow the New York rule as stated supra. It was not a sale of the flour within the statute of frauds.

Cochran, Judge; The intention alone is not sufficient; there must be actual occupancy within a reasonable time after the exchange. Kirby’s Digest, § 3900; 104 Ark. 637; 89 Id. 506; 84 Id. 359; 42 Id. 175; 57 Id. 179; 125 Id. 456; 51 Id. (84; 63 Id. 299; 69 Id. 109; 52 Id. 493, 3rd syllabus. The proceeds of a sale of a homestead are not exempt. The town lot was not exempt as it was the proceeds from the sale of a rural homestead and there was no actual occupancy.

Improper evidence was also admitted as to plaintiff’s offer of employment. Kirby & Castle’s Digest, § 5464. Plaintiff was entitled to recover his wages and the penalty. Ib. 92 Ark. 425. 92 Ark. 425 is not applicable. The facts are entirely different. Taking the instructions all together they correctly state the law. No penalty should have been allowed after October 23, 1918.

P. Henderson, Chancellor; 1. Appellants have real claims which have been allowed and no exceptions filed thereto; they are real creditors of the road and McIntyre and McIntyre & Son who are owners of all the outstanding notes and bonds except those held by Mrs. Garanflo and Gallivan and Phillips are not creditors and ought not to be. allowed to participate in assets of the road until the real creditors of the road are paid in full, and then they will be entitled to…

Martineau, Chancellor; 'The check was given for a valuable consideration and appellee had no right to turn down the check for an act brought about by himself within two days afterwards, whereby the prisoner was pardoned and then violate their agreement and stop payment of the check. 103 Ark. 602 has no application here whatever. The chancellor erred in dismissing the complaint and the decree should be reversed and judgment entered here for the $25 and costs.

Wade, Judge; 1. The petition is jurisdictional. 104 Ark. 145; 119 Id. 592; Ib. ,149; 117 Id. 531, and the provision fixing the time is mandatory. 106 Ark. 306; 116 Id. 417. The order reduced the number of children in District No. 46 to less than 35 and is void under our law. Cases supra. 2. Neither the petition nor the order annexing the territory recited that there were 35 children of school age in District No. 12. Supra. 3.

59 Ark. 1; 37 Cal. 183; 5 Johns. Ch. 555; 9 Foster 533; 6 Wis. 645; 12 Otto (U. S.) 148-161; 8 Kans. 122; 66 Ark. 121; 112 Id. 514; 59 Id. 139; 55 Id. 139. There was no recovery by the attorneys and they had no lien under the Acts of Arkansas. A void judgment confers no rights. Kirby & Castle’s Digest, § 5153; 3 Kans. 150-1. No notice was served in the suit and the defendant was not present. 2 Peters (U. S.) 162.

Haynie, Judge; STATEMENT OF FACTS. J. H. Starling brought suit against J. P. Garner to recover possession of 80 acres of land which he alleges the latter held over after the expiration of his tenancy. According to the testimony of J. H. Starling himself, he rented the land in controversy to J. P. Garner for the year 1917, and Garner went into immediate possession of the land in January of that year.

Martineau, Chancellor; STATEMENT OE EAOTS. This suit was instituted by the appellants against the appellees, in the Lonoke chancery court, to cancel certain deeds and to recover the possession of certain lots in the town of England, Lonoke County, Arkansas. The appellants alleged that they were the children and heirs at law of Mrs. Mattie Spaulding, who died intestate, in Lonoke County, in 1895 seized and possessed of the lands in controversy.

Hayme, Judge; STATEMENT OF FACTS. Tbis action was brought by plaintiffs below (appellees bere), B. H. Pague and P. Pague against tbe defendants, one Williams and Grover Jarvis (appellant bere), to recover tbe possession of twenty-seven mules and five borses. Williams was not served and therefore passes out of tbe suit.

H. Dudley, Judge; STATEMENT OP PACTS. Verna Hogue instituted this action in the circuit court against her husband, Maury A. Hogue, alleging that he had communicated to her a venereal disease. She had summons issued on him in Piggott, Arkansas, on June 27, 1918.

C. Rodgers, Special Judge; STATEMENT OE EACTS. This is an action by tbe appellee against tbe appellant to recover damages for personal injuries. Appellee alleged that on December 26, 1916, be was in tbe employ of the appellant, and under the direction of his foreman . was at work at the appellant’s stave mill at Mena, in Polk County, Arkansas.

Martineau, Chancellor; 1. Desertion is clearly established; the husband knew the whereabouts of his wife, and failed to go to her or allow her to go to him and his intentions were clearly to abandon her. 55 Atl. 996; 104 Ark. 381. The wife’s testimony was sufficiently corroborated lb.; 9 R. C. L. 436. 2. The cause of action “existed” or “occurred” in this State.

McMahan, Chancellor; 1. Doak was not liable because his deed contained the words, “grant, bargain and sell.” These words come within the saving clause of section 731, Kirby’s Digest, and are limited by other express words in the deed. 22 Ark. 72; 31 Id. 101; 74 Id. 348; 84 Id. 415; 98 Id. 501; 153 S. W. 101; 23 Am. Dec. 670. 2. If liable, Doak was only liable for the amount paid by the direct vendee, and not the remote vendee. 7 R. C. L.1178; 11 Cyc. 1170; 15 C. J. 1320.

Taylor to receive payments on the loan-which were never received by Mrs. Taylor. The court erred in allowing credit for these payments to Rose, as he was the agent of Oliver and not of Mrs. Taylor. The evidence is undisputed that Rose was Oliver’s agent in securing the loan and was paid a -commission for so doing and the burden was on Oliver to show the authority of Rose to receive the payments. The notes were not demanded.

Martineau, Chancellor; 1. The council was attempting to exercise its contractual and not its police powers, so the ordinances, if valid, are subject to be submitted to a vote of the people. 82 Ore. 114; Am. Ann. Cas. 1917 E, 996-1000. 2. An ordinance granting a franchise is when accepted a contract.

D. R. Williams, doing business as Williams Brothers brought an action in replevin against John Gunter to recover an iron tank alleged.to be of the value of $200. John Gunter filed an answer in which he denied .that Williams was entitled to the possession of the tank and filed a cross-complaint against Williams for the recovery of certain valves, pipes and tubes, with the value and particular description of each article stated therein.

Stubbs had the superior lien or first lien over all except the Georgia State Saving Association which it is conceded had the first lien. Stubbs holds the second lien or first lien over all except said Georgia State Saving Association. The lien or equity of Stubbs is expressed and appears on the face of the conveyance and was passed to him as assignee under Kirby’s Digest, section 510. A quitclaim deed is notice of outstanding claims. 107 Ark. 487.

T. Humphries, Judge; 1. It was error to enter final decree on the pleadings. The demurrer only went to the second, third and fourth paragraphs of the answer. The first paragraph of the answer was a general denial of the allegations of the complaint. If the court was correct in sustaining the demurrer to the remaining paragraphs it should not have entered a final decree without proof.

Martineau, Chancellor; 1. The Nick Peay Construction Company abandoned the contract without justification or excuse and appellees are bound by the doctrine of account stated and rendered. No answer being received it is binding on defendants. 16 Ark. 202; 41 Id. 502; 47 Id, 541; 53 Id. 155; 55 Id. 376. A copy of the statement was attached to the complaint as an exhibit and no specific objection was made thereto or denial thereof.

Elliott, Chancellor; Acts Nos. 121 and 202, 1917, are null and void because (1) they are local acts and passed in violation of article 5, section 26,.Constitution; (2) being special or local acts they violate also section 24, article 25, of the Constitution, as a general act could have been made applicable and there was then a general act in force 'known as the Alexander Road Law; (3) under section 7, article 2, Constitution, the property owners were entitled to have their…

Elliott, Chancellor; Appellant was never a stockholder in the bank. There was no consideration for the “memorandum of understanding” he signed, and his purchase of stock was brought about by false and fraudulent representations.' The assets and liabilities of the bank were gross misrepresentations and fraud upon him and avoided the agreement to purchase stock. No stock was ever delivered to him.

trict; Thomas C. Trimble, Judge; The court erred in refusing the requests of appellant for findings of facts and declarations of law and the assessments are excessive and unreasonable and a burden on interstate commerce. Railroad property should be assessed on an acreage basis and the same amount per acre as other lands in the district equally distant from the road. The future increase in business as the country develops is not a direct benefit and cannot be considered.

B. Baker, Judge; 1. It was error to allow the witness to testify as to the fair market value of the fruit. The witness was not an expert nor was she shown to have had any knowledge of the value of fruit save and except store fruit at her home in Illinois. The real test was the market value of fruit at Cotter, where it was seized. This is too well settled to even cite authorities. 2. It was error to direct a verdict for appellee.

P. Daily, Special Judge; The court erred in refusing instructions requested by plaintiff and in giving those asked by defendant. 53 Ark. 202; 54 Id. 164; 71 Id. 430; 96 Id. 645; 104 Id. 495; Acts 1913, p. 735, § 2. There are well-defined exceptions to the “stop, look and listen” doctrine, and this case falls within the exceptions. 78 Id. 60; 79 Id. 141.

This is a suit by Susie T. Norfleet against J. K. Hampson and others to recover an undivided 1242/7279 interest in the lands described in the complaint, for an accounting of the rents and profits and for a partition of the lands. The material allegations of the complaint are as follows: Louis Hanauer conveyed the Nodena plantation to D. L. Ferguson, reserving a vendor’s lien for the balance of the purchase money, $21,114.60.