Volume 139 — Arkansas Reports

M. Barker, Chancellor; STATEMENT OP PACTS. This appeal involves the validity of certain rural special schools districts in Union County, Arkansas. On the 24th day of May, 1918, the number of electors required by the statute filed their petition with the county judge of Union County asking that certain territory be organized into a single school district. The petition was accompanied by a map showing the territory asked to be made into the single school district.

Elliott, Chancellor; statement of facts. This action was instituted by the appellant against the appellees, as the Board of Directors of the White River Levee District, for the purpose of preventing them from increasing the assessments against his land and from issuing certain bonds. The White River Levee District was created by Act 97 of the Acts of the General Assembly of the State of Arkansas for the year 1911.

Clark, Judge; The verdict is not sustained by the evidence. There was no “substantial” evidence to sustain it. 50 So. 374. Improper questions were asked and improper remarks were made by the State’s attorney, lb. The collateral matters presented to the jury were highly prejudicial and appellant did not have a fair trial, lb. 1. There was no .error in the opening remarks of the State’s attorney. 66 Ark. 16. 2.

D. Shaver, Chancellor; 1. Dr. Grant had no authority to bind any of the heirs, owners of the place, in any contract with appellee. If he had any authority he exceeded it in leasing it for a period longer than a year. The declarations and transactions of a person are not of themselves evidence of his agency against the principal. 85 Ark. 256.

Haynie, Judge; 1. The county is clearly liable for the expenses of the survey whether the district was formed or not. 106 Ark. 305; 123 Id. 250. The case in 122 Ark. 14-22 does not control this, as the facts are different. 2. The amount of the expense is for a jury to say, or for the court sitting as a jury to fix. Acts 1911, Act No. 221.

H. Dudley, Judge; The order of cancellation is void because: (1) The order was not published as required by law. (2) It was not posted in all the voting precincts as required by law. (3) No valid proof of publication was made. (4) The order shows on its face that there was no valid publication of the notice of the order.

C. Trimble, Judge; 1. It was error to direct a verdict for defendant. There was evidence in plaintiff’s favor which should have been submitted to a jury. 89 Ark. 522; 119 Id. 590; 65 Id. 94; 77 Id. 566; 36 Id. 451; 35 Id. 146; 62 U. 63; 103 Id. 401; 92 Id. 570; 89 Id. 273; 103 Id. 401; 119 Id. 589; 92 Id. 502; 71 Id. 445; 120 Id. 1; 111 Id. 309; 105 Id. 526; lb. 136; 120 Id. 206; 98 Id. 334; Thompson on Negl., ‘§ 3842; 118 Minn. 217; 40 L. R. A. (N. S.) 485; 136 N. W. 741. 2.

A suit in chancery may be maintained to set aside an allowance in the county court for fraud, collusion or mistake. The court had jurisdiction here. 37 Ark. 532; 19 Id. 311; 77 Id. 328. The court found that the charges were fraudulent and properly found that appellant should have judgment for the $829.80, but erred in refusing judgment for $144.75, under section 7174 of Kirby’s Digest. The county having paid the warrants, it would have done no good to set aside the judgments.

Shaver, Chancellor; 1. Appellant clearly had the right to redeem, as the mortgage was not foreclosed in chancery court. Acts 1889, p. 280; Kirby’s Digest, § 5420. Prior to this act Kirby’s Digest, section 5416, was the only authority for sales under mortgages, and the act of 1899 did not interfere with the act of 1879 as amended in 1883, but undertook to provide for waiver of redemption.

W. H. Daubs sued Brown & Hackney, Incorporated, to recover the possession or the value of certain saw logs mentioned in the complaint. The defendant filed an answer denying that the plaintiff owned the logs, and also filed a bond to retain possession of them. The material facts are ns follows: W. H. Daubs was the owner of about 1,000 acres of timber lands situated in, Cleveland and Dallas counties in the State of Arkansas.

M. Barker, Chancellor; STATEMENT OE FACTS. On the 22nd day of March, 1917, J. G. Brown brought this suit in equity for the purpose of quieting his title to 200 acres of land in Columbia County, Arkansas.

H. Dudley, Judge; 1. The danger from falling through an open door into the tank was patent and visible and was a risk assumed by Longino. 4 Thompson on Negligence, § § 4608-10. Deceased was of full age and intelligent and accepted the risk knowingly. 5 Id., § 4644. The rule laid down has been adopted by this court. 97 Ark. 486-8; 57 Id. 503; 105 Id. 526-532; 77 Id. 367 (374). Plaintiff was experienced and intelligent.

Wood, Chancellor; The acts are unconstitutional and void. The Board of Directors were illegally organized and the assessments are unjust, unequal and excessive. The lands were assessed as town lots when they should have been assessed as acreage lands as other lands were assessed. Act 80, Acts 1915, leaves out many lands, aggregating 50,000 to 60,000 acres, subject to assessment.

Elliott, Chancellor; Upon the remand of the cause as per the order of this court a decree of foreclosure should have been entered for the amount, with 8 per cent, interest, as Williams’ tender was not sufficient. See opinion on former appeal to this court and the directions therein. Interest should have been allowed. The court below did not follow the directions in the order and judgment of this court.

Robertson, Chancellor; 1. Before appellee can recover he must establish the fact that he owns land east of the railroad and he has failed to do so. He cannot rely on the weakness of appellant’s title. His only claim is under Buford, and Buford had no title to any land east of the railroad. McCaleb, the common source of title, sold to Sellers, oúr grantor, the SW!4 and the W% of SE1^ of section 28—less 194 acres west of the railroad.

McMahcm, Chancellor; STATEMENT OF FACTS. J. Sam Rowland et al., plaintiffs below, appellees here, instituted this action in the circuit court of Boone County, Arkansas, against one C. E. Sarber, and Rinehart and Gore, defendants below. Rinehart and Gore are the appellants here.

The court erred in refusing to instruct the jury to find defendant Edwards not guilty; but also erred in its instructions to the jury, as no crime was proven under the law. 133 Ark.' 1; 135 Id. 470. Confess error under the rulings of this court. 202 S. W. 39; 205 Id. 814; 206 Id. 51; 129 Ark. 106. Perhaps defendant was guilty of selling liquor, but he was not on trial for that crime.

The verdict for punitive damages is contrary'to the law and the evidence. There was no evidence to justify such a judgment. 80 Ark. 260; 96 S. W. 1067. 2. A verdict of any kind against the Fort Smith Iron & Steel Mills is also contrary to both the law and the evidence. 3. Julia Arnold was not liable at all and was entitled to a verdict. 4. The court erred in not sustaining the demurrer, or special plea to the jurisdiction.

H. Dudley, Judge; 1. The provision in the old contract for a termination thereof in case of sale was valid and binding on Patterson, even though he did not know before signing it that Simonson was not the owner of the land. 2.

McMahan, Chancellor; 1. Appellee wilfully and maliciously injured the property of appellant and liability for the act was not released by his discharge in bankruptcy. Bankrupt Act of February 5, 1903, § 17; 242 U. S. 138; 37 Sup'. Ct. 38; 61 L. Ed. 205; 112 N. Y. Supp. 987; 210 N. Y. 175; 104 N. E. 135; 195 TJ. S. 176; 49 L. Ed. 147; 193 TJ. S. 473-485; 748 L. Ed. 754, 759-760; 24 Sup. Ct. Rep. 505; 97 S. E. 78.

Martinecm, Chancellor; 1. The only question is the construction of the will of George L. Basham, deceased. 2. The issues here are similar tó, if not identical with, the case in 115 Ark. 400, and control the case. See also 81 Id. 480; 104 Id. 445. The chancellor erred in his construction of the will, and this court should reverse and enter judgment for Parma Collette Basham.

D. Shaver, chancellor; I. The demurrer should have been sustained and it was error to overrule it because Haynie, the trustee, was not retained as a party plaintiff. He was a real party in interest and could alone maintain the suit. Appellee was not a proper party and without legal capacity to sue. Kirby’s Digest, § § 5999-6002. 2. Cuffman’s books were inadmissible as evidence.

B. Priddy, Judge; 1. The affidavit of appellee’s sworn account was not admissible. The affidavit was not taken and certified according to law, that such account was just and correct. Kirby’s Digest, § 3151. An affidavit is not allowable on trial of an issue unless opportunity has been given the adverse party to cross-examine affiant. None was given here. 42 Ark. 355.

L. Grcmb, Special Judge; statement of facts. This is an appeal from a judgment of tbe circuit court quashing an execution on the ground that the judgment upon which it was issued was void. The material facts are as follows: On the 5th day of November, 1912, the Washington Fire Insurance Company brought suit in the Sebastian Circuit Court for the Greenwood District against Daniel Hogan and John W. Jasper upon an open account.

Martinecm, Chancellor; This court has repeatedly held that in the construction of a statute effect should be given, if possible, to every clause. 2 Ark. 250; 11 Id. 44; 15 Id. 555; 17 Id. 651; 22 Id. 369; 28 Id. 203; 67 Id. 566; 76 Id, 309; 89 Id. 378; 99 Id. 149; 71 Id. 561; 109 Id. 60. The court below erred in disregarding the language of section 3 of the Alexander act. There are two limitations in the act.

R. Hayme, Judge; 1. There was error in plaintiff’s first instruction, and the error was not cured in any other.

Marlin&cm, Chancellor; STATEMENT OF FACTS. This suit questions the constitutionality of Act No. 436, passed at the 1919 session of the General Assembly. The act is entitled, “An Act Creating the Pulaski County Road Improvement District No. 10.” Section 4 of this act divides the territory embraced in the entire district into six sub-districts designated as sections.

G. Hammock, Chancellor; STATEMENT OE EAOTS. This appeal questions the constitutionality of Act No. 202, passed by the 1919 session of the General Assembly, which is entitled “An Act Creating Desha Road Improvement District No. 2.” The act is very similar to and in many respects is identical with the act attacked in the case of Cumnock v. Alexander, the opinion in which case is rendered simultaneously with this opinion.

A. Dickson, Judge; The court erred in overruling the demurrer and in giving instruction No. 1. Kirby’s Digest, § 1902. This statute does not include fruit trees. In construing a statute inapt words should be disregarded and the intent gathered from the whole act read in connection with its title and evident purpose. 86 Ark. 518. Penal statutes are construed strictly and the general words should be restrained for the benefit of him against whom the penalty is inflicted.

119 and 133 Id. 491. The case in 130 Ark. 44 is conclusive. The questions here are settled by 125 Ark. 329. See also 202 S. W. 831; 123 Ark. 205; 76 Id. 197; 85 Id. 171; 99 Id. 1; 112 Id. 342; 130 Id. 44. There was no abuse of discretion of the county court in laying out laterals. Here the laterals are moderate in amount. Two of the laterals only straighten out the road as sanctioned in 202 S. W. 831.

This is an action by the appellant against the appellee to recover damages for the alleged destruction of a certain steam shovel and steam shovel boom. ’ The appellant alleged that it delivered the shovel and boom to the appellee for carriage from Fort Smith to Riverton, according to the contract for shipment, and that they were worth the sum of $6,000, for which the appellant asked judgment.

This action was instituted by George Eickhoff against Oscar Winn to recover lots 5 and 6, block 1, in the city of Argenta. Eickhoff alleged that he was the owner by virtue of a tax deed executed to him by the State of Arkansas on the 27th day of August, 1903; that the deed was based upon the forfeiture of the taxes for 1899.

This is a bill in equity filed by the assignee of purchase money notes given to a vendor under an executory contract of sale to subject the estate to the payment of his debt. The facts are as follows: On the 27th day of July, 1908, W. E. Ward and Lucy C. Ward, his wife, executed a bond for title to J. T. Man-waring to 160 acres of land in Craighead County, Arkansas.

Thornton, Special Chancellor; The undisputed evidence shows that Lockhart was insane at the time of the execution of the deeds and they are void and the property subject to plaintiff’s claim. 106 Ark. 230. Plaintiff was a creditor within the meaning of our statutes when the deeds were executed. It only remained for the jury to ascertain and find her damages. The deeds made Lockhart insolvent.

E. L. Johnson, Judge; Tbe bill passed by both Houses is not the bill signed by the Governor. The records are conclusive of this. The courts are the judges and must determine whether the act ever became a law. 103 Ark. 46. See also 19 Ark. 256; 44 Id. 548; 90 Id. 176; 32 Id. 414; 34 Id. 263; 6 Wall, 499; 40 Id. 221; 32 Id. 496; 72 Id, 565; 41 Id. 475; 33 Id. 17; 40 Id. 200; 41 Id. 475; Cooley Const. Lim., 135; 49 Id 333.

Francis Circuit Court; J. M. Jackson, Judge; The verdict is contrary to the law and the evidence, and the court erred in its instructions to the jury. Taylor, Landl. & Ten. (9 ed.), § 551, 553; 98 Ark. 606; 93 Id. 78. The court also erred in refusing to give No. 1 asked by appellant and in allowing the pretended lease to be read in evidence, and the verdict is excessive.

The verdict is not supported by the evidence, but is against it. The proof is insufficient to show the “present ability to do bodily harm,” and there could not be a specific intent to kill at the time, as the pistol was not in shape to fire at the time the alleged assault was made, nor was a specific intent to kill shown by the testimony, but all the proof is against it...... 1.

The court erred in transferring the cause to the chancery court, and 2. The court erred in its findings and decree. The exception to the muniments of title that the sale was made to a partnership and that the Christian names of each partner are not mentioned is fully and clearly settled in 65 Ark. 503. It is also settled in the agreed statement of facts, and the decree of the chancery court in February, 1880, term.

Sorrells, Judge; 1. The court erred in giving instructions 1, 2, 3 and 4 for plaintiff and in refusing No. 6 for defendant, as requested, and in modifying it. 99 Ark. 384; 83 Id. 61; 122 Id. 272; 123 Id. 594. Deceased’s own negligence directly contributed to the injury, and there could be no recovery. lb.-, 108 Ark. 95 (108); 36 Cyc. 1537; 72 Ark. 572; 27 A. & Eng. Enc. Law (2 ed.) 63-72; 24 Atl. 596; Booth, St. Ry. Law, § 303, and cases cited. 2.

8. Steel, Judge; 1. The court should have directed a verdict fo” defendant. The engineer’s evidence is reasonable, consistent and uncontradicted, and rebuts all presumption of negligence. 66 Ark. 439; 67 Id. 514; 89 Id. 120; 78 Id. 234. The killing was unavoidable. 53 Id. 96; 69 Id. 659. 2. It was error to read section 8131 of Kirby & Castle’s Digest to the jury. 24 Ark. 499; 55 Id. 588; 63 Id. 477. The rule is not changed in 116 Ark. 514.

Act 465 of the Acts of 1919, passed on the 28th of March, 1919, provided “that the school district of Special School District No. 5 of Mississippi County, Arkansas, be authorized to sell and convey by warranty deed a fee simple title to the SE14 and Ey2 of the SW14 of section 16, township 15 north, range 11 east, Mississippi County, Arkansas, and to reinvest the money obtained from such sale.

eo. R. Haynie, Judge; The court erred in giving instruction No. 1 directing a verdict.

' By Act No. 148, approved March 1, 1919, the Legislature passed an act creating an improvement district for the purpose of improving and constructing a hard-surfaced road from a point in the city of Conway to Damascus, a distance of twenty-two miles, all in Faulkner County, Arkansas. Road Acts of 1919, vol. 1, p. 374.

8. Lake, Judge; STATEMENT oe facts. Emmett Lindsay by Mary Burk, his mother and next friend, brought this action against the Commonwealth Public Service Company to recover damages for an injury sustained by him in coming in contact with a live electric wire which he alleges the defendant negligently allowed to fall down on the sidewalk in the city of Mena. The defendant company denied negligence on its part and pleaded contributory negligence on the part of Emmet Lindsay.

Coleman, Judge; Appellant was entitled to recover after it later complied with the laws of Arkansas requiring foreign corporations to qualify. The contract here is very similar if not identical with that of Watkins Medical Co. v. Bogus, decided by this court March 24, 1919. The contract created the relation of vendor and vendee and not principal and agent. 126 Ark. 597; 131 Id. 15.

' B. Baker, Judge; Joseph Irby was the father and natural guardian of his son, and he should have been allowed to prosecute the .suit in his own name and for his own use and benefit. It was error to refuse to substitute. Kirby’s Digest, § 3756-7; 32 Ark. 92-96; 95 Id. 355-8. All male persons are minors until they are twenty-one years of age. 79 Ark. 194; 101 Id. 510-12; 107 Id. 561.

R. Haynie, Judge; 1. The court erred in the exclusion of the testimony of Batte and Hicks as to the market value of merchantable cypress lumber and in the admission of appellee’s evidence as to that issue. Appellants did not purchase mill run lumber but merchantable mill run lumber under the contract. Appellants were entitled to prove the market value by sales of the different grades which made up merchantable mill run purchased by appellants.

(2) Being valid contracts and a full disclosure of all facts by the answers, no decree should have been rendered except a dismissal of the suits or decree entered in accordance with the amount… Held: and the decree should be affirmed.

B. Priddy, Judge; 1. The proceeds of the crop belonged to appellant as he had not promised in writing to pay the debt of his son, Sadie, and he was not liable for his son’s debts. Kirby’s Digest, § 3654; 105 Ark. 697; 150 S. W. 146. 2. There is not one word of proof that appellant agreed in writing to settle the supply bill of his son and was not bound to do so under the law. Supra.

See 72 Ark. 586; 45 Id. 158; 105 Id. 380. Courts can not substitute words by writing in the words omitted in a statute. 104 Ark. 597; 106 Id. 522. The entire statute is invalid. 34 Ark. 224; 66 Id. 36; 75 Id. 546. The omitted words in section 11 do not render the act invalid.

G. Hammock, Chancellor; 1. The assessments of benefits are unequal, not uniform and excessive. 2. Many lands are not benefited at all. 3. The assessments are out of proportion to and in excess of benefits. Hence the assessment is illegal and void. 98 Ark. 113; 103 Id. 127; 108 Id. 419; 113 Id. 493. See also 14 Ark. 2i86; 31 Id. 557; 35 Id. 169; 60 Id. 409. The assessments were valid and made according to law.

Elliott, Chancellor; 1. It is conceded by appellee’s demurrer that (1) McCastlain is the owner of the land and (2) that he paid the taxes for every year from. 1902 to 1913, and (3) that the land was assessed to appellant every year from the time he obtained his tax deed until the institution of this suit; (4) that appellee’s tax deed is void because it is based on a void tax sale; that the land was sold without authority of law and for excessive taxes; that it was advertised…

B. Priddy: Judge; 1. Under the undisputed facts appellee failed to make out a case for damages, and a verdict should have been directed for defendant.

Elliott, Chancellor; STATEMENT OP PACTS. Sarah E. Dorris brought this suit in equity against the Chicago Land and Timber Company to quiet her title to a certain forty-acre tract of land in Cleveland County, Arkansas, and to recover damages for the value of certain timber cut and removed therefrom by the defendant.

D. Shaver, Chancellor; The court erred in sustaining the demurrer to the complaint. The complaint alleges that plaintiff’s property. outside of Prescott -will not, and can not possibly be benefited by any of the five roads embraced in the special act. The demurrer admits this, and the property should have been his property from the effect of the act.

R. Haynie, Judge; 1. It was error to refuse to sustain the demurrer to the complaint and in refusing to give instruction “A” for defendant for a directed verdict.

Haynie, Judge; STATEMENT OE EACTS. Bob Smith was indicted for murder in the first degree charged to have been committed by killing John Blunt. According to the testimony of W. H. Scott, Bob Smith and John Blunt got into a quarrel in a pool room owned by a brother of Smith in Bradley, Lafayette County, Arkansas, one night in October, 1917. Several parties had been playing pool and Scott made a bet with Smith that Blunt would win the next game.

R. Hayme, Judge; 1. The delay was unreasonable and resulted in the loss of the car of potatoes. Both defendants were liable. The railway companies were of course liable, but they were the agents of Yarley & Co. and they were liable also. The contract was to deliver the car to plaintiff at Texarkana, Ark., and Hudgins Co. are not required to look to the railway companies alone for reimbursement. 118 Ark. 20, and notes to 5 Am. & Eng. Ann Cases 263, and 2 L. E. A. (N. S.) 79.

Martinecm-, Chancellor; 1. The Constitution of the G. I. D. did not invest it with jurisdiction to expel members of subordinate divisions, but with appellate jurisdiction only. The power of disfranchisement must be conferred by statute or charter and is not sustained otherwise as an incidental power except where the member has been -convicted of infamous crime by a competent court, or some act against the society tending to its destruction or injury.

E. L. Johnson, Judge; It was error to refuse the instructions asked by defendant and especially No. 5. He was convicted solely upon the testimony of Chris Parker, unsupported and uncorroborated in any way. Higgins does not corroborate Parker on any fact connected with the sale. There was really no sale to Parker, but he was the agent of Malone. Defendant’s theory of the case was not given to the jury by any instruction. 50 Ark. 545.

The contract founded on the compromise of the lawsuit was valid and binding. 43 Ark. 377; 101 Id. 142; 88 Id. 363; 69 Id. 82. It was conclusive in the absence of fraud. 74 Ark. 270. 2. The court erred in permitting the appellee and Honea Crossno to testify about transactions and agreements between appellant and appellee and Honea Crossno .and Crossno and Yanhoozer with regard to the barn that occurred five years before the written contract was made.

Const. 1874, Ark., art. 16, § § 5-6; Kirby & Castle’s Digest, § § 8462, 8516, 8524, 8549. Section 8549 was in effect when the Bodcaw Lumber Company case was decided, also when Harris Lumber Go. v. Grandstajf was decided. 128 Ark. 505. After the decision in the Bodcaw case the Legislature passed Act 262, Acts 1917, materially changing section 8549. This act undertook to make the shares of stock of a corporation property for the purpose of taxation.

<p>Certiorari to Cleburne Circuit Court; J. M. Shinn, Judge;</p> <p>The judgment was void because it was rendered in vacation. Art. 7, § 12, Const.; 71 Ark. 226; 75 Id. 415-20; 89 Id. 85; 202 S. W. 33; 208 Id. 428-30; 103 Id. 571; 116 Ark. 310-14.</p>

Haynie, Judge; 1. Appellant has filed no brief. None of the seven assignments in the motion for new trial can be sustained. The evidence is ample to sustain the verdict. The instructions state the law -correctly, but, if any are bad, no exceptions were saved. 91 Ark. 43; 89 Id. 24; 88 Id. 505. 2. While there must be proof of a debt before defendant can be convicted, yet this was met by the evidence of S. H. Briant. 68 Ark. 490.

G. W. Hendricks, Judge; The court erred in giving instruction No. 1 for plaintiff. Defendant was required to exercise only the highest degree of care consistent with the operation of a mixed log and passenger train. 105 Ark. 276. 1. The instruction complained of has often been approved by our courts. 99 Ark. 366; 119. Id. 392, and many others too numerous to cite. 2.

H. Evans, Judge; STATEMENT OE EAOTS. This action was begun July 3, 1917, by the appellee against the appellant to recover the possession of a tract of land in Saline County, Arkansas.

Appellee is the owner of the Corning Telephone system. His lines are constructed along the highways from Corning to several nearby towns. Appellants owned and operated a steam threshing machine which was carried from place to place during the threshing season along the highways where the appellee’s telephone wires are strung and into the wheat fields adjacent thereto.

Steel, Judge; 1. Tbe original petition did not contain a majority either in land value, acreage or number of land owners in the district. Acts 1915, 403; 128 Ark. 298; 124 Id. 234; 118 Id. 119; 126 Id. 318, 2. The roads to be constructed and improved were not public roads. Act No. 338, Acts 1915; ¡89 Ark. 53; 118 Id. 119-125. 3. The change in boundaries made the district invalid. 104 Ark. 298; 116 Id. 167. 4.

Steel, Judge; 1. The testimony shows a clear case of self-defense and in defense of each other. 2. The court erred in excluding the testimony of Dr. McClure. His testimony was competent. 55 Ark. 593-8-9; 94 Id. 538-544; 1 Greenleaf on Ev., § 441 OB; 5 Enc. Ed. 534; 74 Ark. 554-6; 34 Id. 520. Dr. McClure’s testimony tended to show that the deceased used brass knucks, a deadly weapon, in the fight and tended to strengthen the testimony of Pone Dean in all respects, etc. 3.

Mc-Mahan, Chancellor; STATEMENT OE FACTS. J. C. Berry brought this suit in equity against Mabel A. Sanders, Jas. C. Ley, J. M. Goldman, A. B. Hamilton, P. R. Papin, A. W. Sanders, F. J. Gilbrault, F. E. Newbery, W. S. Dennison and N. I. Reiter, to recover a commission alleged to be due him under a contract with Jas.

W. Hendricks, Judge; STATEMENT of facts. C. C. Nichols sued the Alfrey Heading Company to recover damages for personal injuries sustained by stepping into a hole of hot water on the premises of the defendant caused by its alleged negligence. The plaintiff was a witness for himself. According to his testimony, he had been working for the defendant at intervals for fifteen years and on the 1st day of November, 1917, he was pinning heading in the turning room for it.

Barker, Chancellor; 1. The transaction was a deed. Plaintiff had no title to the land, either legal or equitable, which must exist to constitute a mortgage. 86 Ala. 289; 5 So. 722; 55 Ala. 607; 96 111. 456; 16 Fla. 466; 13 111. 186; 60 Id. 516; 20 Am. Dec. 145; 77 Pa. 134; .73 111. 156; 172 Id. 82; L. R. A. 1916 B, p. 154, § 98. 2. The evidence fails to show that the deed was a mortgage. 153 S. W. 797.

Mc-Mahan, Chancellor; STATEMENT OE EAOTS. This action was instituted on January 25, 1915, by W. B. Holyfield, as receiver of the Bank of Cave Springs, against W. C. Davis and others. It is alleged in the complaint that the Bank of Cave Springs was an Arkansas hanking corporation and that on the 11th day of May, 1911, the same was insolvent; that W. C. Davis and others, naming them, were stockholders.

The complaint alleges a good cause of action by alleging negligence in general terms and that with the known facts as set out in the complaint, they could have introduced expert evidence sufficient for a recovery without alleging and proving the specific acts of negligence. 29 Cyc. 628; 19 Id. 15, § 4; 107 Cal. 549; 40 Pac. 1020; 48 Am. St. Rep. 146; 29 L. R. A. 718. 2. Res ipsa loquitur rule does not apply here. 29 Cyc. 591-2.

Haynie, Judge; STATEMENT OP PACTS. This is an appeal from the judgment of the circuit court allowing the claim of the News Printing Company of Prescott against Nevada County, for printing done under what is known as the publicity act which was initiated by the people and declared adopted by the Governor on October 13, 1914. See Acts of 1915, p. 1511.

B. Baker, Judge; STATEMENT OF FACTS. This is an appeal from a judgment of the circuit court dismissing’ an attorney’s claim for compensation in an action for damages for injuries resulting in death to a locomotive engineer alleged to have been caused by the negligence of the railroad -company, in whose service he was at the time engaged.

Reeder, Chancellor; 1. The act (No. 82, Acts 1919) is not void and invalid, because (1) it includes lands in Independence County, and no provision is made for the taxation thereof. It was not the intention of the Legislature to embrace any lands outside of Jackson County and the five-mile limit should be construed as meaning all the lands in Jackson County within that distance. The court should be guided by the principles decided in 133 Ark. 64. 2.

Trimble, Judge; STATEMENT OE EAOTS. The appellee, Mrs. F. A. Wright, through her agent ordered three ears of coal from the appellant. It is a written order dated April 3, 1918, directed to the Brown Coal Company, Memphis, Tennessee, instructing them to ship to Mrs. F. A. Wright at Thomwall, Arkansas, three cars of coal. The first car was to be shipped April 20, the others as ordered.

Martmeau, Chancellor; STATEMENT OF FACTS. . This is a suit in chancery to establish a lost will by parol testimony of its execution and contents to the end that it may be duly admitted to probate. On the 16th day of May, 1918, Joseph Kendrick executed his will in the city of Little Rock, Arkansas, and retained it in his possession. He died on July 26, 1918, in the city of Little Rock where he had resided for many years and where all his property was situated.

W. Hendricks, Judge; The testimony shows two brakemen came into the furniture car and saw the three boys sitting in a position of extreme danger and unaware of their peril. Defendant’s employees are charged with the duty of exercising ordinary care to avoid injuring persons in a place of danger. The testimony made out a prima facie case of negligence on their part.

Elliott, Chancellor; 1. The act is invalid for many reasons. The defendant’s demurrer was to an entire paragraph in which both the question of due process and the land owner acting as assessor are raised; if either one was well taken then the demurrer should not have been sustained. 32 Ark. 131; 37 Id, 34. 2.

Shaver, Chancellor; 1. It was error to sustain the demurrer. It was a mere mistake in including section 18 in the district. 130 Ark. 70. 2. This section should be stricken out as unconstitutional and the other valid sections allowed to stand. Sallee v. Dalton, 138 Ark. 549. 3. The bill was properly passed. This case is settled by 130 Ark. 505. See also in point 103 Id. 110; 133 Id. 64. The act should be upheld, notwithstanding the clerical error in writing up the journals.

B. Sorrels, Judge; STATEMENT OP PACTS. This is a controversy between Mrs. Maggie Dunaway, lessor, and R. M. Galbraith, lessee, from the Jefferson Circuit Court over an oil and gas lease.

Elliott, Chancellor; The act is void; the district embraces lands not only in Lincoln County but in Jefferson County. This is a legislative finding that the Jefferson lands will be benefited and the lands should be taxed also. 48 Ark. 370; 86 Id. 231. The county court of Lincoln County cannot tax lands outside the limits • of that county. 115 Ark. 438.

Trimble, Judge; 1. Direct testimony of a party that he is a citizen of a certain locality is competent. 25 A. C. A. 600. But such testimony, if given by a third person, is incompetent as calling for a conclusion on the part of the witnesses. Defendant’s motion to dismiss should have been granted (Act No. 63, Acts 1913), or the case at least transferred to the proper district. 2. There is no proof to support the verdict.

Elliott, Chancellor; 1. The act was never properly passed by the Legislature as the Constitution requires. Art. 5, seos. 21-22. 2. The description 2-36 only embraces the two sections and the act is void for uncertainty. 122 Ark. 491; 105 Id. 380; Standard Diet. (20 ed.), “Hyphen.” 3. The improvements are not connected, as there is a gap of at least a mile between them and the improvements are too remote from each other, etc. 118 Ark. 294. 4.