Volume 140 — Arkansas Reports

Coleman, Judge; 1. Defendant’s motion for a continuance should have been granted. The proper showing was made and the court abused its discretion in refusing a continuance. 99 Ark. 394; 94 Id.. 545; 71 Id. 180; 60 Id. 564; 21 Id. 460. 2. The court erred in refusing to give instruction No. 1-A, asked by defendant. It correctly states the law and is not covered by any other given. 74 Ark. 453; 102 Id. 109; 120 Id. 30-34; 91 Id. 570-575. 3.

B. PricLdy, Judge; 1. The motion to quash the indictment should have been sustained because the names of the witnesses were not endorsed upon it. 33 Ark. 174; Kirby’s Digest, § 2225. 2. It was error to refuse defendant’s motion for a continuance. Due diligence was shown. 3.

8. Steel, Judge; 1. The petition did not contain a majority in number of land owners, acreage or land values as prescribed by law. Kirby’s Digest, §§ 6899-6903-4; 99 Ark. 508; Acts 1915; Act 33i8, § 2. 2. The record shows that court was legally in session when the judgment was entered. Light v. Self, 138 Ark. 221. 1. There is no bill of exceptions in the record. 117 Ark. 377; 86 Id. 456, . 2.

Hay-me, Judge; The court erred in giving instructions asked by the State and in refusing those asked by defendant. There was prejudicial error in the remarks of the State’s attorney and the action of the court thereon. 61 Ark. 174; 63 Id. 176; 72 Id. 139-140; 58 Id. 478; 61 Id. 130; 95 Id. 237. 1. Instructions Nos. 6 and 9 given for the State were properly given. 120 Ark. 193; 76 Id. 515. Nos. 10 and 11 were proper.

Clark, Judge; 1. The court erred in the admission of the evidence of Jesse Hankins in answer to questions by the State’s attorney, as it was hearsay testimony purely, and it was error to refuse to permit Tom Jennings to answer on redirect examination the question as to what was said about taking down the money, etc., as it was a matter vital to the whole case.

Francis Chancery Court; R. J. Williams, Special Chancellor; 1. Both parties were represented by agents and defendant was drawn into a situation different from that intended by her and was entangled in the web woven by real estate agents. The sale to Mrs. Dickason was never complete. She never received a good title to the property described in the deed. The title to the 169 acres was not a marketable title, the description being insufficient. 129 Ark. 334.

The court erred in excluding the testimony of L. F. Fairchild as to what Gfoldsworthy, an absent witness, testified in examining trial. Kirby’s Digest, § 2148; 76 Ark. 515; 33 Id. 539; 60 Id. 400; 95 Id. 172. 2. The court erred in refusing the instructions asked by defendant. No public offense was charged or proven. The prosecuting witness parted with his money in an effort to get appellant to violate the law by selling liquor, or parted with his money in bad faith.

B. Priddy, Judge; 1. The demurrer to the indictment should have been sustained. It charges two offenses and the State should at least hive been required to elect upon which charge the State would proceed. Kirby’s Digest, § 2230; 135 Ark. 243 ; 36 Ark. 55; 37 Id. 224; 50' Id. 305; 92 Id. 413; 118 Id. 35. 2.

reversed. 1. The continuance should have been granted for the testimony of Jess Accord. 2. The testimony fails to show a design on part of defendant or any member of the union to resort to violence. 3. Testimony as to a former written notice was not competent, as defendant was not shown to have been connected with the posting of this notice on the door. 4.

B. Priddy, Judge; 1. The demurrer to the second count of indictment should have been sustained. Each count is a separate and distinct charge — a separate indictment. Clark, Crim. Proc., 288; 3 Ark. 84. Under sections 1560-3, Kirby’s Digest, the indictment does not state facts sufficient to make defendant guilty of being an accessory before the fact. 43 Ark. 99, 149; 56 Id. 515. 2.

W. Hendricks, Judge; When the case was dismissed as to all the original parties plaintiff, it was at an end, and the court had no right or power to permit entirely new parties plaintiff to be brought in where the case had been dismissed as to all the original parties. 94 Ark. 277; 126 S. W. 835. No defect of parties is shown in the motion to dismiss.

Barher, Chancellor; 1. The decree below is erroneous because (1) there is no evidence that J. W. Wheeler declared a forfeiture on the failure to pay the first note due and he died before the second note fell due, and (2) because at no time after the contract could Wheeler or his estate convey the title to Madden in compliance with the contract, and until the vendor could so comply there could be no forfeiture on the part of the vendee. 10 L. E. A. 465-468; 62 S. W. 94. 2.

C. C. Burrow is not liable on either of the notes, as no presentment was ever made or demand for payment made before due date. Kirby & Castle’s Digest, § § 7011-12-14. 2. Burrow signed the notes with the understanding that he was not to be liable. W. S. Wood also signed them and he did not so sign. The notes were never transferred to an innocent holder or purchaser for value without notice. 48 Ark. 426; 103 Fed. 427; 120 N. W. 414.

Steel, Judge; 1. The court should have directed a verdict for the defendant, as the testimony shows that the engineer in charge of the train could not have prevented the killing or that the train ran down the animal. The engineer did not see the mule, but he was sounding the whistle and making every effort to avoid striking the mare and colt and did not know the mule was on the other side and could not see him.

W. Hendrichs, Judge; 1. The second contract superseded the first entered into October 30,1916. The contract was duly signed and it is not contended to be a forgery. The court erred in its instructions as to damages for loss of profits by breach of contract. 65 Mo. 534; 53 L. E. A. 33; 52 Id. 33; 78 Ala. 243; 78 Ark. 336; L. E. A. 1916 B, p. :836. 2. The court erred in refusing a new trial because the newly discovered evidence was material. 1.

Steel, Judge; 1. The court erred in not directing a verdict for . defendant. The uncontradicted evidence of the engineer and fireman when reasonable, as here, as a matter of law overcomes the presumption of negligence and authorizes a verdict for defendant. 78 Ark. 234; 66 Id. 439; 67 Id, 514; 89 Id. 120; 53 Id. 96; 69 Id. 659. The evidence here is fully set out and is conclusive that there was no negligence on part of appellant or trainmen.

The old common law rule of warranty, that in order to satisfy an encumbrance the covenantor convey to-the covenantee either the lands contracted for with a good title or lands of equal value has been changed and the measure of damages now prevailing is the purchase money paid with interest or the value of the land at the time of the conveyance as estimated by the purchase price. 15 C. J., p. 1318, § 223; 7 R. C. L. 1167; 1 Ark. 313; 59 Id. 195; 54 Id. 195. 2.

P. Henderson, Chancellor; 1. The original judgment of the Garland Chancery Court was a money judgment, and appeal was taken to this court and supersedeas bond filed, which superseded the judgment, and judgment was rendered against appellant and sureties in the Supreme Court and should have been enforced from this court and not the lower court. 44 Ark. 178. 2.

Barker, Chancellor; 1. The sale of the land by the administrator of R. O. Taylor was a valid sale and vested the title in the vendees on its confirmation. The widow had conveyed her homestead rig’hts. The minor children were with their mother in another State and the lands were subject to the payment of debts of the deceased R. O. Taylor, and the sale was valid. Kirby’s Digest, § 3898; art. 9, § 3, Const. 1874; 21 Cyc. 458.

Humphries, Chancellor; Mrs. Mattie E. McGuire, under the rule in Shelley’s case, acquired the fee simple title under the fourth clause of the will of Mrs. Laura Ewing. The language is plain and unambiguous, and evidence of the testator’s intention not admissible nor competent to sustain a different meaning. 40 Cyc. 1433; Jones on Ev., p. 599, § 475; 40 Cyc. 1436. Mrs. McGuire took the fee simple estate. 58 Ark. 303; 129 Id. 155. 1.

The money did not belong to James and Moss or either of them. The title to the property was in P. Moss and the possession was that of the law. Obtaining it by order of court or otherwise was no violation of appellee’s rights or possession and no cause of action could arise. 38 Ark. 528; 4 Cyc. 653.

Martinecm, Chancellor; The special act is invalid for want-of proper notice in accordance with section 24, article 5, Constitution of 1874, and because indefinite with respect to the commencement of the road and uncertainty as to boundaries of the district and the lands included. The act is indivisible, and its conflicting clauses render it void. 34 Ark. 224.

Steel, Judge; 1. The court erred in quashing the service and dismissing the complaint. The concern was properly sued in its own name, Manufacturing Wood Workers Underwriters. Acts 1915, p. 610. It was a voluntary association without incorporation, but upon methods and forms used by incorporated bodies for the prosecution of a common enterprise. 5 C. J. 1333; 96 Miss. 720; 24 L. E. A. 298. 2.

Coleman, Judge; 1. The court erred in overruling defendant’s motion to dismiss. The act of March 18, 1889, is violative of our State Constitution and the 14th( Amendment. Art. 12, § 11, Const. 1874. Kirby’s Digest, section 834, violates article 12, section 11, and is a discrimination against foreign corporations, and the Independence Circuit Court had no jurisdiction. 2. The act of 1889 violates the 14th Amendment U. S. Constitution. 125 U. S. 181.

Coleman, Judge; The court erred in sustaining the demurrer. The probate court had no exclusive jurisdiction of claims against the estate of deceased persons. 7 Ark. 84; 134 Id. 411; 210 S. W. 145. Our circuit courts also have jurisdiction of such- claims. 7 Ark. 78; 14 Id. 237; 30 Id. 756; 90 Id. 340; 49 Id. 51; 51 Id. 361; 210 S. W. 145. The demurrer was properly sustained.

Tbe court erred in not diiecting a verdict for defendants. The proof wholly fails to sustain the allegations of plaintiff as to negligence. Plaintiff was not in the ordinary discharge of his duties nor in the place where his duties were, but was where he ought not to have been, and the injury was the result of his own contributory negligence.

B. Sorrells, Judge; The evidence clearly proves that C. C. Harrison was at the time of the injury complained of a public ferryman within the purview of the law and as such liable as a common carrier for the loss. 26 Ark. 3. Custom also had made it a public ferry and our statute made it a public ferry, as it was over a navigable stream. Kirby’s Digest, § 3556. The court, by its instruction and modification, nullified our statute by its modification.

B. Sorrells, Judge; 1. Instruction No. 2 given for defendant is fundamentally erroneous. In no ease can tlie defense of other employment operate to defeat entirely plaintiff’s cause of action; plaintiff is at least entitled to nominal damages. 18 R. C. L. 528; 6 L. R. A. (N. S.) 99, note; 44 Pa. St. 99; 84 Am. Dec. 419; 58 Ark. 617-623; 9 Id. 194; 49 111. App. 304. 2.

Prohibition to Baxter Circuit Court; J. B. Balcer, Judge; 1. Act No. 48 as amended by Act 103, Acts 1919, named the county court as being the arbiter and gave it power to approve or disapprove the plans of the commissioners and provided for no appeal to the circuit court. The approval or disapproval by the county court was in no sense litigation nor was it an adversary proceeding. It was purely a matter of local concern of administration and legislation.

Appellee, though a minor when the contract with intervener was made, had the right to disaffirm after coming of age and dismiss the suit, and she did so. Un-' der the law no contract could he entered into with a minor which would be binding after she became of age, and if intervener had a contract it was subject to repudiation and disaffirmance after reaching majority.

B. Priddy, Judge; 1. Tbe court erred in permitting the testimony concerning the sample to go to tire jury, and in refusing to exclude. There is nothing in the orders indicating that the silos were sold by sample or that any representations were made by the agent about any samples whatever.

A. Falconer, Chancellor; 1. The demurrer should have been sustained because (1) the court had no jurisdiction and (2) the complaint failed to state a cause of action against appellants. The administration was still pending in the probate court. Art. 7, sec. 34, Const.; 18 Cyc. 1289; 96 Ark. 222-229; 33 Id. 727; 48 Id. 544; 51 Id. 75, 79, 80; 90 Ark. 444-451; 96 Id. 251-264; 98 Id. 63. 2.

The proof clearly establishes that Barger knew nothing as to the company’s limitation as to his age; that he made true answers to all questions asked him by the agent of the company, who took his application and wrote his answers; that said agent knew of the limitation as to age and knowingly misstated his age in the application, and said agent never at any time advised the insured as to the misstatement as to his age, and insured never learned of the same; that the insured…

Colemcm, Judge; 1. The failure of the court to sustain the demurrer, and further to declare from the evidence that no fraud was practiced on it by plaintiff, were errors for which the judgment should be reversed and the petition to vacate dismissed. Kirby’s Digest, § 4433; 39 Ark. 107-110; 93 Id. 462. 2.

R. Eaynie, Judge; 1. There was error in refusing to require the complaint to be made more specific. Acts 1913, p. 494. The • Bank Commissioner was trustee for the stockholders as well as the bank’s directors. The stockholders are entitled, as matter of law, to an accounting from the commissioner. Certainly where he makes an assessment of 100 per cent., they are entitled to know why he does so. There is no presumption that the commissioner could do no wrong.

Martineau, Chancellor; Under section 741, Kirby’s Digest, a married woman may relinquish her dower by joining her husband in a deed and acknowledgment, etc. Under this section she could only release her dower by joining her husband in a deed to a third person, but this was amended by act 324, Acts 1919, 241, so as to allow wives to release dower by a separate instrument to her husband’s grantee or anyone claiming title under him, etc., and the court erred in sustaining…

M. Jackson, Judge; J. D. DeBois and Avery M. Blount, for appellant. The court erred in dismissing the appeal, as the transcript and all the papers showed that the appeal was duly taken in time on the statutory affidavit made within the 30 days. Art. 7, sec. 14, Const. 1874; Kirby’s Digest, §........., p. 70. The Legislature can not enlarge or abridge the Constitution. 48 Ark. 82.

Franklin Circuit Court, Ozark District; James Gochrcm, Judge; 1. - Tke court erred in striking from the amended complaint the clause alleging negligence. This error appears on the face of the record, and the error was prejudicial. 184 S. W. 456; 123 Ark. 119; 165 Ky. 632; 177 S. W. 445.

Robertson, Chancellor; 3. No fraud was proved, and there was no mutual mistake. The contract was in writing and oral testimony was not admissible to show that the parties intended to make a different contract. 78 Ark. 574; 80 Id. 505; 94 Id. 130; 13 Id. 573; 67 Id. 62; 78 Id. 574; 83 Id. 105; 86 Id. 162; 94 Id. 130; 95 Id. 131 104 Id. 483.. 2. The testimony fails to'show that a mutual mistake was made. 102 Ark. 326-.

The indictment was not found and returned into court by the grand jury. Gould’s Digest, chap. 52, § i87; 33 Ark. 180; 93 Id. 290. 2. The evidence does not sustain the verdict. There is no proof that defendant manufactured or brewed liquors of any kind. Outside of appellant’s admission that she made the stuff found in her residence, there was no evidence of the corpus delicti. 3.

Coleman, Judg’e; 1. Tbe circuit court had no jurisdiction to try the issues, as the county court had exclusive jurisdiction under our Constitution to ascertain the compensation due the land owners. Act 338, Acts 1915, page 1400’; 134 Ark. 121; art. 7, § 28. 2. Road districts are not liable for damages in the maimer as held by the court below. 110’ Ark. 416; 58 Miss. 197; 94 Ark. 380; 121 Col. 96; 53 Pac. 401; 36 N. W. 267; 14 Cyc. 1057; 118 Ark. 1. 3.

B. Priddy, Judge; 1. This is 'a suit for conversion or damages of personal property in the sum of $300, and the justice had no jurisdiction. Kirby’s Digest, § 4552. 2. The lease was verbal and not to be performed within a year, and hence within the statute of frauds. Kirby’s Digest, § 3654; 48 Ark. 485; 46 Id. 80; 65 Id. 604; Carnahan v. Terr all, 137 Ark. 407.

E. L. Johnson, Judge; The court erred in refusing defendant’s instruction No. 1. 117 Ark. 296. But whether this instruction should have been given or not, the evidence does not sustain the verdict. Confesses error in that the evidence does not sustain the conviction, as there is absolutely no proof that the cotton defendant sold was the same cotton stolen the night before.

<p>Appeal from Johnson Circuit Court; A. B. Pridcly, Judge;</p> <p>1. The prosecuting witness was not sufficiently corroborated as to the promise of marriage. Kirby & Castle’s I>ig-est, § 2216; 130 Ark. 149; 27 Id. 16; 35 Cyc. 1364; 101 Ark. 45; 93 Va. 815; 365 S. W. 366; 15 A. & E. Enc. PI. & Pr. 246; 9 Ala. 641; 89 Iowa 573; 102 Pa. St. 48; 104 Mo. 644; 46 Tex. Cr. 290; 65 S. W. 475; 63 Id. 317; 48 Id. 192; 31 Id. 366.</p> <p>2. Mrs. Basham’s testimony was incompetent and no corroboration. 101 Ark. 45; 54 Iowa 743; 55 Id. 258; 50 Id. 317; 86 Ark. 30; 126 Id. 98; 77 Id. 23; 84 Id. 67; 111 Iowa 69; 132 Id. 196; 78 Iowa 123; 110 N. Y. 188.</p> <p>3. There was no proof that'Bessie Miller was a single woman. The burden was on the State to prove this and it failed. 35 Cyc. 1345.</p> <p>4. The promise must be unconditional. A promise conditioned upon pregnancy is not sufficient. 15 Col. App. 220; 114 Pac. 585; 38 S. E. 341; 66 Id. 619; 132 S. W. 225; 110 N. W. 380; 15 Ann. Cases, 222; 144 N. Y. 361; 39 N. E. 343; 78 Hun. 509; 29 N. Y. Supp. 542; 30 Id. 87; 22 L. B. A. 840; 42 Am. St. 700; 35 Pac. 36; 114 S. W. 841; 119 Id. 866; 136 Id. 1095; 166 Id, 135.</p> <p>5. It was error to refuse the motion for continuance. 115 111. App. 157; 131 Mich. 474.</p> <p>6. There was error in the instructions given and refused and in permitting the remarks of counsel for the State. 87 Ark. 464.</p> <p>1. The testimony of the prosecutrix was sufficiently corroborated. 40 Ark. 482; 77 Id'. 468-472; 92 Id. 421; 67 Id. 416; 73 Id. 291.</p> <p>2. The proof shows she was a single woman. All the circumstances show this. 130 Ark. 149-155.</p> <p>3. The promise of marriage was unconditional. 113 Ark. 520; 135 Id. 221. The instruction asked by defendant was properly refused. 113 Ark. 520; 135 Id. 221.</p> <p>4. The motion for continuance was properly refused, as no diligence was shown to obtain the witness.</p>

McMahan, Chancellor; 1. The action is barred by limitation and no notation of payments appear upon the face of the record to extend the time. Kirby’s Digest, § 5079. Wanting such notice of extension of time, the grantee took title free from the lien of the mortgage, regardless of secret equities existing between mortgagor and mortgagee. Appellant was a bona fide purchaser. The conditions in the deed were all fulfilled, and the deed vested absolute and immediate title.

B. Priddy, Judge; 1. All evidence and statements of counsel as to a “smoky condition” of the entry were inadmissible and should have been excluded, as there was no allegation in the complaint that such a condition contributed to the injury, nor did counsel for plaintiff ask for an amendment to conform to the proof. 124 Ark. 455; 113 Id. 359; 102 Id. 581; 85 Id. 325; 31 Cyc. 680; Am. Ann. Cases 1912 A, 638 and note. 2.

H. Dudley, Judge; Promptly after the dismissal of this cause in the circuit court for the first time, 'appellants duly prosecuted their appeal to this court and when it was dismissed caused the mandate to he filed in the circuit court and move for a judgment against appellee and his sureties. This was in apt time. Art. 7, § 11, Const.; Kirby’s Digest, § § 1319, 6871.

Martinecm, Chancellor; 1. Appellees did not by virtue of defending the Mc-Gahey suit obtain any attorneys’ lien upon the land conveyed to the bank. At the time of the conveyance by Fromholtz to the bank the land was not encumbered by any lien in favor of appellees. Appellees had no attorneys’ lien. 208 S. W. 797; 47 Ark. 86. 2. The evidence does not sustain the findings of the chancellor.

A peremptory instruction should have been given for defendant because plaintiff, failed to prove that appellant was a corporation and because of the failure of assured to pay assessment No. 117. 37 N. E. 353; 73 Fed. 774; 155 Id. 92; 102 N. W. Rep. 190. 2. The court erred in not excluding the testimony of witness Tol. Johnson, which was hearsay merely. 3.

T. Wood, Chancellor; 1. The testimony of Spivey’s personal attorney, George, as to matters that should be shown by the corporation records was incompetent under Kirby’s Digest, § § 3905, 3093. 2. Defendants have not competently shown the measure of good faith required of them as trustees of the corporate assets and they should be held responsible to the widow and administratrix of J. R. Spivey, deceased. 1.

Circuit Court, Fort Smith District; Paul Little, Judge; 1. Payne was the-agent of appellee to sell cars; he was the general agent of Fioretti in selling cars in Fort Smith, and his local representative there. A person dealing with an admitted agent has a right to presume that the agent is a general agent. 103 S. W. 79; 146 Id. 130; 132 Ark. 371; 201 S. W. Rep. 508. 2.

Haynie, Judge; 1. The assured having engaged in aviation, as an aviator, and failed to notify the clerk of the camp within thirty days of his changed occupation and failed to pay the assessments required by the Constitution and bylaws, plaintiff can not recover as the certificate became void. Miller v. III. Bankers Life Assn., ms. op., April 28, 1919; 208 S. W. 587; 52 Ark. 201-206; 1 Bacon on Ben. Soc., § 81; 80 Ark. 419; 81 Id. 514; 105 Id, 140-143; 1 Bacon, Ben.

Elliott, Chancellor; 1. The act is unconstitutional and void. It is really a revenue measure and is unjust, unreasonable and discriminatory and is therefore void. It undertakes to delegate to the county judge the power to fix and levy the tax and to regulate the highways and fix a license fee contrary to article 7, section 28, Constitution. 6 R. C. L. 378-381. 2. It is class legislation. 102 Ark. 131; 112 111. App. 94. 3.

Hay-me, Judge; Tbe court should have set aside the nunc pro tune order. The authority of a court to amend its record by nunc pro tunc order is to make it speak the truth but not to make it speak what it did not speak but ought to have spoken. 72 Ark. 21; 87 Id. 438; 92 Id. 305; 106 Id. 470; 93 Id. 234. The evidence is overwhelming that the order does not recite the facts. 56 Ark. 231; 79 Id. 288. 1.

There was no affidavit and prayer for appeal. Kirby’s Digest, § 1348; 2 Cyc. 4 A, 24 (3). The affidavit was not sufficient under our law. Kirby’s Dig., § 1348; 28 Ark. 297. 2. The petition for mandamus was not sworn to. 26 Ark. 237. 3. The petition for mandamus was not filed in time. He wanted too long. 26 Cyc. 395; Kirby’s Dig., § 5090; 166 S. W. 546. 1. There was no defect in the affidavit for appeal.

The court erred in permitting T. M. Mehaffy to testify as to communications between him and plaintiff. These communications between a client and his attorney were privileged and incompetent without'the consent of plaintiff. Kirby’s Digest, § 3095; 33 Ark. 774. The court erroneously adopted, the view or theory that plaintiff communicated the facts to Colonel Mehaffy for the purpose of having him communicate them to the defendant company.

Reeder, Chancellor; reversed in part; 1. Appellant was entitled to recover for the excess passenger fares exacted not from Gallup himself hut from his traveling salesman, Tindell, as he furnished the money to pay their passenger fares, and the court erred in holding that only Tindell could recover for the excess passenger fare.

H. Dudley, Judge; 1. It was reversible error to refuse tbe continuance. Eaker was defendant’s only witness; be could not be present; due diligence was used to bave him present and to procure bis deposition. 9 Cyc. 105. 2. It was error to take tbe case from tbe jury and direct a verdict for plaintiffs. Tbe undertaking was collateral and witbin tbe statute of frauds, and the question was one for a jury. 97 Ark. 438; 76 Id. 188; 99 Id. 490.

Elliott, Chancellor; 1. The court was without jurisdiction as the testimony shows that the wife was not an actual resident of Arkansas for one year prior to the commencement of the suit. The statute contemplates actual rather than constructive residence. 128 Ark. 543. 2.

Trimble, Judge; 1. The machine was defective and worthless, and the appellee had notice and was not an innocent purchaser without notice and for value. Hemmelberger was a director in all three corporations and the corporations were all charged with notice to its officers. 48 L. B. A. (N. S.) 65; 13 N. Y. 114; 1 Howard (U. S.), 13 Lawy. Ed. 965. 2.

Shaver, Chancellor; 1. The tax deed did not carry the title; the description is too indefinite. 50 Ark. 484; 56 Id. 172; 99 Id. 460; 69 Id. 357. 2. Appellants are not barred. 126 Ark. 1. The doctrine of laches does not apply. The transfer to chancery was done without objection and deprived appellants of no rights. y 26 Ark. 59; 51 Id. 259; 60 Ark. 70. 3. Appellee is not entitled to recover for improvements, as neither Dougherty nor Burns was a bona fide occupant.

. Appeal from White Circuit Court; J. M. Jackson, Judge; 1. , The court erred in compelling plaintiff to elect, as plaintiff had the right of action on both causes or either of them. 2. Plaintiff’s testimony makes a full and complete cause of action for negligence on part of defendant company in the preparation or inspection of its food products. 76 Ark. 352; 114 Id. 145. 3.

Elliott, Chancellor; The act is unconstitutional and void because it undertakes to fix the benefits to accrue from the contemplated maintenance of the road at a per cent, of the assessments fixed by the assessors and because it neither definitely fixed the benefits nor left the commissioners free to do so. The section 7 is vague and indefinite. The Legislature exceeded its powers in the act.

26 Cyc. 619; 47 Ark. 519; 1 S.W. 869; 4 Ark. 452; 23 Id. 704; 121 Id. 302; 18 Am. Rep. 84; 91 S. W. 183; 9'S. W. 500; 59 Atl. 648; 19 S. W. 527; 186 N. Y. 736. Appellee deliberately violated his contract and relieved appellant from all his obligations and the complaint should be dismissed. 1. The evidence does not sustain appellant in his contention.

H. Dudley, Judge; 1. Under the undisputed evidence the lease was terminated by failure of the tenant to pay the overdue rent within the three days after the service of notice. Steel & McCampbell’s Digest, Ark Ter., p. 262, § 7; Rev. Stat. Ark. Ch. 63; 4 Ark. 147; Acts 1845, p. 103, amended by Act December 3,1846, and January 19,1855; Ark. Civil Code, 150-155; Act December 16, 1868, § 11, par. 11; 27 Ark. 460; Act March 27, 1871, pp. 343-348. 2.

V. Bourland, Chancellor; 1. The court has jurisdiction because (1) plaintiff has no adequate remedy at law; (2) it will prevent multiplicity of suits, and (3) plaintiffs and defendants occupy the relation of cestui que trust and trustee, and equitable remedy is sought to prevent the wrongful use of trust funds. Kirby’s Digest, § 1493; 4 Ark. 302; 8 Id. 57; 146 Fed. 8; 134 U. S. 338; 30 Ark. 109; art. 16, sec. 13, Const. 1874; 34 Ark. 603-7; 4 Pom. Eq. Jur.

Elliott, Chancellor; The directors should be empowered, as they have no power to build the addition to the school house without first submitting the matter to the electors of the district on proper notice given. This is a special statute and must be strictly construed, and the directors are not authorized to build the addition without first giving notice and getting a vote as provided by-law. Mansf.

Instruction No. 1 given for plaintiff is erroneous, as it assumes that all of Salo’s work was done under the contract of November 2, 1916, with the United Workers of America. It is misleading and evades the province of the jury. No. 2 is open to the same objection. 12i8 Ark. 535. 2. The award is too indefinite to be enforced and the instruction based on it was misleading. 1 Ark. 206. 3. Instruction No. 1 asked by defendant should have been given.

M. Jackson, Judge; 1. The evidence fails to connect defendant with breaking and entering a house as charged in the indictment. At most the only charge made against defendant would be receiving stolen property. There is nothing tending to show the connection of defendant with the burglary. 100 Ark. 188. Mere suspicion is not proof. 68 Ark. 529; 85 Id. 360. 2. The court erred in its instructions as to possession of stolen property. 83 Ark. 194.

P. Henderson, Chancellor; 1. The effect of the contract was to give J. E! Hogue a half interest in the property. 130' Ark. 21; Kirby’s Digest, § § 4458-4460; 123 Ark. 473. 2. The title to.the property and the right to rents was finally determined to be in the Rushing estate and the contract vested in Hogue a half interest. Pom. Eq. Jur., par. 1290, p. 2585; 5 C. J. 912. 3.

M. Jackson, Judge; 1. The use of the two prepositions, “into” and “in,” in the information constitutes a mere redundancy and merely charges the transporting of liquor into this State from another State, and the court erred in its oral instruction to the jury, as defendant was not charged with transporting liquor from one place in this State to another place in this State, and even if it had, the instruction was error, for it was not shown by the evidence that the whiskey was…

P. Henderson, Chancellor; 1. The money on deposit is shown by the evidence to belong to Mrs. A. B. Watson. The earnings of a married woman arising from her services done and performed on her account become her separate property. 47 Ark. 485. The wife did not permit her husband to have the control or management of the time deposits and she never parted with her title, for the presumption is that the husband was acting as trustee or agent of the wife.

Martineuu, Chancellor; The appellants were not served with process, nor were they present at the trial or sale, and the decree and sale should be set aside, not only as to Robert but also as to John Henry Jefferson, Ada, Annie and Esther, as they were not served with process, nor were they present at the trial or sale or represented by counsel. These heirs are willing to pay appellee all sums expended on account of the land purchased, improving it and taxes on it.

L. Hutchins, Chancellor; The complaint states a cause of action and it was error to sustain the demurrer. 122 Ark. 508 and citations. Furthermore answer was filed; the demurrer was thereby abandoned and should not have been acted upon by the court. No cause of action was stated in the complaint. The demurrer was not .abandoned by filing an answer at the same time.

Elliott, Chancellor; 1. Payment to an agent who neither has the note nor is authorized to collect the note, does not bind the principal unless the money actually reaches him. Payment to an agent who does not hold the securities for collection is at the risk of the payer. 54 Ga. 52; 601 Id. 90; Mechem on Agency (2 Ed.), § § 937-940; Story on Agency, § 98; 75 Minn. 316; Smith’s Merc. Law, p. 68; 31 Cyc. 1370.

Clark, Judge; 1. Tbe court erred in overruling defendant’s motion for a- directed verdict at tbe conclusion of plaintiff’s testimony. Davis was not Wing’s agent; tbe terms bad never been agreed upon; tbe most that could be said was that be bad an option to buy at $30 per acre, $2,000 cash. Wing’s offer was never accepted by Davis or Van Natta. Tbe terms of an offer must be accepted unconditionally.

L. Hutchins, Chancellor; 1. Under the law and testimony in this case the court was not justified in finding that there was such a mistake in the conveyance as would justify the finding for appellee. To entitle a party to reform a deed on the grounds of mistake merely, it must be shown that the mistake was common to both parties and that the deed as executed expressed the contract as understood by neither. 71 Ark. 614; 74 Id. 336.

Shaver, Chancellor; The court erred in overruling the demurrer to the response. The onus was on the defendant to fortify by a preponderance of the testimony all the affirmative defenses he set up. 84 Ark. 325.

L. Hutchins, Chancellor; 1. The description of the road to be improved is too vague and indefinite for identification. The agency provided for approving the plans and for levying assessments is not sufficiently designated and the court to enforce the assessments is not definitely specified. The act does not designate with certainty an agency to make the levy nor the court to collect the assessments. 36 Ark. 331. The authorities are too numerous to cite.

Steel, Judge; 1. The court erred in instruction No. 1 for plaintiff in assuming that defendant became the agent of appellee with specific instructions and ignores material issues about which the evidence was conflicting and was misleading and prejudicial. 95 Ark. 108; 93 Id. 564. Instruction No. 2 ignores appellant’s contentions and theory. 2.

B. Priddy, Judge; 1. Under tbe facts and circumstances bere appellant was entitled to a directed verdict as against Warren. 44 N. Y. 640;-11 Utah 29; 130 U. S. 643. 2. However, if a case was made for a jury at all, it was error to give No. 4. Tbe contract was not that of principal and agent, but of purchase and sale, and was not to become effective until signed by Montgomery and Ms sureties, Warren and Hall.

.Appeal from Pulaski Circuit Court, Third Division; G. W. Hendricks, Judge; 1.

B. Holy field, Special Judge; 1. The court erred in giving the instructions asked by appellee and in refusing those asked by appellant. The services were rendered by a member of the family of the intestate, and there was no contract, express or implied, to pay for his services rendered his mother, and there was no liability for the services rendered. 82 Ark. 136; 18 Atl. 129; 18 S. W. 517; 47 Penn. St. 534; 96 N. C. 149; 75 Ark. 191; 82 Id. 136; 2 S. E. 453. 2.

Appellants were certainly entitled to a jury trial, fairly and impartially under proper instructions. The indictment charged a misdemeanor only, and the judgment should be reversed, as appellants were, under the Constitution, entitled to a jury trial. This is a misdemeanor and the only defense was that the vats had been blown up. The trial judge therefore was authorized, after hearing the evidence, in directing a verdict of guilty.

Tbe judgment was void for want of jurisdiction and tbe execution should be quashed and tbe judgment vacated.* Tbe complaint does not state a cause of action over wbicb tbe justice of tbe peace bad jurisdiction. Const., art. 7, sec. 40. The Constitution confers no jurisdiction on justices of tbe peace in matters ex delicto but only ex contractu. Jo Johnson was liable, if at all, for a tort.

Reeder, Chancellor; 1. The will of Henson Kenyon gave the fee title to Emeline Owens and the limitation over in case of her death without issue was void; the deed to Lady was only sufficient to pass any title which she may have had at the time the deed was executed and would not pass after-acquired title; all transactions between the parties prior to the deed were merged in the deed and could hot avail by estoppel or otherwise.

S. Steel, Judge; 1. It was .error to give the 12th instruction for the State, as there was no testimony upon which to base it and ignores defendant’s right to act in necessary self-defense. 2.

JET. Dudley, Judge; The court erred in sustaining the demurrer, the appellant was not bound to file complaint with the county court at the first term after the publication of the notice of assessment. Act No. 1Ó3, Acts 1917, p. 485. His lands were United States homestead lands', and he had not received a patent therefor, and they were not subject to assessment. They were taken wrongfully, to his great damage.

Hagnie, Judge; 1. A verdict should have been directed for defendant (1) because the uncontradicted evidence shows that more than one-third of the lumber was different from that ordered and that the shipment was promptly refused and plaintiff promptly notified and (2) the evidence shows that the contract was mutually rescinded. 13 Corp. Jur., sec. 4, p. 2634 et seq.; 47 Ark. 519; 57 Id. 257. The contract was rescinded. 2.

Steel, Judge; 1. The court erred in giving instruction No. 1 for the State, because there is no proof that the gun taken was the property of the United States Government, except the conclusion testified to by Mr. Beavers, and there is a variance between the indictment and the proof, as the proof shows that the depot was the property of the Missouri Pacific Railroad Company and so was the money, and not that of the Missouri Pacific Railway Company. 2.

Elliott, Chancellor; 1. There was no evidence to justify the finding that the mortgages were given or kept on record to cheat or defraud plaintiff or any one else. In order to set aside a conveyance for being fraudulent as to future creditors, it must be shown that the debtor reasonably had in mind or contemplation the contracting of future debts at the time the conveyance is made.

Steel, Judge; Upon the evidence defendant was entitled to a peremptory instruction to return a verdict for him. There is no evidence that appellee produced a purchaser, ready, willing and able to pay $3,500 cash. The court’s instruction was error, and the verdict is contrary to the evidence, and the court should have directed a verdict for defendant.

G. Boss, Judge; 1. - Appellee was not discharged; he quit of his own accord. A reduction of wages under the proof was not a discharge. 208 S. W. 790. 2. Appellee made no demand as required by statute that his money or a valid check be sent to a station where a regular agent was kept and was not entitled to any penalty. 128 Ark. 312; 87 Ark. 132; 88 Id. 277. The cause of action should have been dismissed as to the railroad company. 254 Fed. 880.

Mc-Mahan, Chancellor; A parent may deed his land to his son in consideration of support and maintenance during his life, strengthened by the fact that the father was. to receive a certain sum of money and one-third of the proceeds of the farm. 67 Ark. 526; 186 Id. 169; 97 Id. 13; 96 Id. 589.

Colemam, Judge; The Independence Circuit Court had jurisdiction to hear intervener’s petition. The order of the Director General was void under the act of Congress. 174 N. Y. Supp. 60; 210 S. W. 283; Kirby’s Digest, § 463. See also 5 Ark. 429; 27 Id. 315; 55 Kan. 331; 49 Ga 375; 77 Ark. 148; 91 S. W. 8; Kirby & Castle’s Digest, § 7538; 18 Conn. 71; 29 Id. 515; 15 N. Y. St. Rep. 598; 65 N. C. 478; 69 Id. 189; 12 Ark. 369; 41 Kan. 152; 2 Tenn.

Goleman, Judge; Makes the same points and cites the same authorities as in No. 2 ante, contending that the court erred in denying his petition to intervene and to reinstate the cause. The whole matter is res judicata; the judgment of the 'Baxter Circuit Court concludes the matter. 29 Ark. 80; 84 Id. 203. 1 R. C. L., sec. 24; 1 Cyc., sec. 275.

L. Hutch-ms, Chancellor; The act was constitutionally passed and does not impair the obligation of a contract. 204 S. W. 497; 163 Id. 585; 168 Id. 1156-1159 ; 204 Id, 386, 1074; 207 Id. 799. The city had no vested rights.. The Helena Water Company was only bound to furnish hydrants at certain rentals. Where not constitutionally inhibited, the power to fix rates is a legislative faculty which is delegable to a public service commission. 207 S. W. 299.

M. Jackson, Judge; 1. The undisputed facts show that deceased was not “engaged” in the army or naval service at the time of his death in the contemplation of the contract, and under the provisions of the policies the company is liable for the full amount of the policies, and the insured had not reached a flying status in his training for a commission and consequently a permit was not necessary.

M. Jackson, Judge; 1. The statute of frauds has no application, and appellee should not have been allowed to vary the terms of the written contract by showing that certain portions of the land were not included in the contract. The court erred in sustaining objection to question asked witness J. E. Neal as to notice to exercise the option. The terms of the contract did not provide for an option to renew but granted to the lessee the privilege of extending the term.

<p>Appeal from "White Chancery Court; John E. Martinean,, Chancellor;</p> <p>1. Act No. 213, Acts 1917, was repealed by Act No. 82 (1919). It covers the whole subject-matter and clearly repeals it by implication. 76 Ark. 34; i32 Id. 306; 10 Id. 588; 27 Id. 419; 31 Id. 19; 43 Id. 425; 46 Id. 438; 47 Id. 488; 65 Id. 508;, 70 Id. 25; 76 Id. 32; 1 Lewis’ Sutherland Construction of Statutes, sec. 202; 6 B. Mon. 146; 40 N. J. L. 257; 105 Ark. 79; 88 Id. 324; 70 Id. 27.</p> <p>2. Act 213 could not be amended by Act 128 (1919) for the reason it no longer existed, having been repealed by implication. 32 Ark. 294. It could not be revived by reference to same by title only. Art. 5, sec. 23, Const. 1874; 122 Penn. 627; 14 Hun. 438; '49 Ark. 131.</p> <p>3. Act 213 is invalid because the House journals did not show the first and second readings. The allegation of the complaint as to the failure to show these readings is fatal and the act is void and the decree should be reversed with directions to overrule the demurrer.</p> <p>1. Special act No. 82, Acts 1919, does not repeal by implication act No. 213 of 1917. Repeals by implication are not favored. The acts must be upon the same subject and there must be a plain repugnancy in their provisions or the later act must cover the whole subject of the first act and embrace new provisions plainly showing that the later was intended as a substitute for the first. 92 Ark. 602; 101 Id. 244; 112 Id. 437; 123 Id. 187; 23 Id. 307; 76 Id. 443 ; 34 Id. 499. "There must be irreconcilable conflict between the acts. 48 Id. 159; 56 Id. 45-47; 96 Id. 145; 120 Id. 530. Where there is no necessary conflict there is no implied repeal. 19 Ark. 630-633; 53 Id. 337; 54 Id. -346; 76 Id. 443. They must be so inconsistent that both can not have effect. 28 Ark. 317; 131 Id. 227; 132 Id. 481; 132 Id. 450. While these roads may have a common starting point they have an entirely different ending point, and there is no repeal by implication.</p> <p>2. The act is not void because the House journal does not show the first and second reading of the bill. Article 5, section 22, of the Constitution of 1874, does not require the recording of the first and second reading of a bill on the journal, and the failure of the journal to show the reading of the bill does not render the act void. 36 Cyc., p. 950; 20 Colo. 1; 36 Kan. 545; 55 Minn. 451; 129 N. C. 275.</p> <p>■ 3. Where an act is duly signed by the Governor, deposited with the Secretary of State and published as a law it is presumed to have been duly passed unless otherwise shown. 103 Ark. 109; 131 Id. 291.</p> <p>4. Act 128 -of Acts 1919 is not a nullity by reason of the repeal of act 213 by No. 82, for act No. 82 never became a law so far as it applied to WTiite County. See section 27 of said act. Any part of said act No. 82 that applied to White County was repealed by said act 128 before any petition and order of court could be had under act 82, and under act 82 there could have been a road district through Pulaski, Lonoke, White and Jackson Counties and which did not cover the same territory from North Little Rock to the Missouri State line without traversing the same route mentioned in act No. 213, which runs to Batesvifie, Arkansas.</p> <p>1. The act was repealed by implication. See authorities cited by co-counsel. 36 Cyc. 1071-1072 and cases cited. The acts are repugnant and in conflict and the last act must govern. 36 Cyc. 1073, citing 57 Ark. 508; 6 Id. 24.</p> <p>2. The later act covers the whole subject and embraces new provisions and the former is repealed, as the later act was intended as a substitute. 36 Cyc. 1078 and cases cited; 82 Ark. 103; 80 Id. 411; 65 Id. 508; 47 Id. 488. _ Comparing the two acts they are seen to be clearly repugnant. 123 Ark. 187; 214 S. W. 23. Act 213 of 1917 was repealed by No. 82 of 1919. The attempt to remake act 213 by reference to its title in act 128, Acts 1919, is futile and does remake the statute.</p>

Ross, Judge; The court erred in overruling the demurrer to the complaint. 50 Ark. 300. Appellant had the right to take the mare from Porter because he owed and would not pay. Appellant paid Porter $163 for use of the mare when she was rightfully ours.

The chancery court of Mississippi County had no jurisdiction to order a sale as to the plaintiff’s interest because she was a non-resident and the probate court had jurisdiction; the deed made under said decree by her guardian to Mitchell was void and she never has been divested of title; the deed of Mrs. Todd and her daughters to Mitchell constituted plaintiff and Mitchell tenants in common and defendants are also tenants in common with plaintiff; that the payment of taxes…