Volume 141 — Arkansas Reports

Elliott, Chancellor; 1. The decree should -be set aside, under Kirby’s Digest, section 4431, subdivision.4. Appellant’s showing of fraud or mistake is complete. Appellant was deprived of his day in court. 128 Ark. 50. An act of the court should prejudice no man. Broom, Legal Maxims 99. The act of the court deprived appellant of his right to be heard by the court to which he had .applied for relief. It closed the-door of justice to him. 128 Ark. (Montague v. Craddock).

Coleman, Judge; The complaint stated facts sufficient to constitute a cause of action grounded upon negligence. It stated facts and not merely a conclusion of law. 83 Ark. 78; 118 Id. 1.

The evidence shows that the cutting was the result of a mutual combat without the slightest malice or intent to kill on part of appellant. Blankenship was the initial mover in the whole matter, he used the first insulting language, struck the first blow and threw brickbats at Rufus Slaytor as he ran off. There is no proof of malice or intent to kill,; both are necessary, 88 Ark. 579. 2. It was error to give instruction No. 1 for the State. 82 Ark. 64; 88 Ark. 579.

Shaver, Chancellor; The overdraft of W. J. Mauney can not be offset by a deposit acquired by him after the insolvency of the bank. 3 E. C.- L. 253; 21 L. E. A. 280, 647; 14 Id. 656. The set-off was properly allowed and there is no error. 98 Ark. 294.

Martillean, Chancellor; 1. The decree should be reversed because (1) there was a bona fide contract between Bransford & Son and Lonoke whereby water was to be furnished during the life of the contract at á stipulated price and (2) Kirby’s Digest, sections 5445-5448, inclusive, do not authorize appellee or the court to fix arbitrarily his own rates, and (3) there has been no mutuality of contract between the town of Lonoke and Bransford & Son upon any other rate than that set…

B. Haynie, Judge; 1. It was prejudicial error to refuse instruction No. 4 for plaintiff. The evidence shows that W. S. Campbell was in absolute control of the work of construction and was to get all the profit, but that A. O. Campbell was the contractor and responsible for the obligations.

Appellant was the only person in his section that had .a fence and kept this bull in a 'pasture enclosed by a lawful and secure fence; and the animal was out on this occasion without his knowledge or consent, though he used due care and caution. The law does not require that appellant should keep the bull within an enclosure. 37 Ark. 568; 46 Id. 208; 48 Id. 366; 94 Id. 458 ; 61 Id. 197.

The foreign corporation was not doing business in this State without complying with Act No. 313, Acts 1907. 136 Ark. 52. Held: that the contract and transactions constituted doing business in Arkansas contrary to our law and that the notes could not be enforced. There is nothing in the record to show that the business dealing involved an interstate commerce transaction and this is fatal to plaintiff’s contention.

Clark, Judge; 1. The court erred in its instructions in assuming as proven certain facts which were in issue. Under our statute and decisions an indictment for adulterous incest must allege that the defendant was a married man; this is a material allegation and must be proved to the satisfaction of the jury (not the court) and beyond reasonable doubt. 58 Ark. 3; 113 Id. 257.

B. Baker, Judge; 1. The debts or claims are barred by limitation. Kirby’s Digest, § 5073; 23 Ark. 169; 48 Id. 282; Kirby’s Digest, § § 79, 186. The contention of appellants is certainly true as to tbe 60 acres over and above homestead and dower. 37 Ark. 155; 47 Id. 475. 2. Petitioners are barred by laches. 63 Ark. 409; 37 Id. 160. The lands yere assets in the hands of the administrator to pay debts. Kirby’s Digest, § % 79, 186. The plaintiffs are barred by 20 years laches.

Martineau, Chancellor; Our decisions on attorneys’ fees and compensation authorize the chancery court to take jurisdiction of the case at bar. 35 Ark. 247, 268; 133 Id. 422; 103 N. W. 1068. See also Baxter County Bank v. Davis, 137 Ark. 459, and Johnson v. Mo. Pac. By. Co., 139 Ark. 507; 85 N. Y. 283. See also as to attorneys’ liens, 168 U. S. 311; 27 N. Y. Supp. 687; 51 Am.

B. Eaynie, Judge; Under the indictment and evidence we contend: 1. That the court erred in allowing the witnesses for the State to give evidence of an assault by Will Brooks on John Law and in refusing instructions 1, 2 and 6 for defendant. On the State’s theory Will Brooks killed Irene Crawford in a felonious attempt to kill John Law, but the evidence clearly shows that the killing of Irene was an accident, not intended.

' Appeal from Phillips Circuit Court; J. M. Jackson, Judge; 1. It is obvious that both the agreements between Kindel and appellant and appellees had appellant were made and to be executed in Iowa, and the laws of that State, and not Arkansas, should govern this case. 134 Ark. 495. The law of the place governs, ' as interpreted by the courts of that State. Ib.; 44 Ark. 230; lb. 213; 47 Icl. 54; 126 Id. 14; 13 C. J. 250 and note 24; 110 Pa. 478; 1 Atl. 532.

M. Jackson, Judge; 1. • The provision in the bill of lading that when goods are received on private or other sidings, they shall be at the owner’s risk until the car is attached to a train, is of no effect under the Cummins Amendment to Interstate Commerce Act. 38 U. S. Stat. at L., pp. 1196-7.

B. Haynie, Judge; Tbe court erred in sustaining tbe demurrer and dismissing tbe complaint. Tbe telegraph company was liable for the loss occasioned by its mistake in the telegram. 132 Ark. 339; 106 Id. 122; 126 S. W. 629; 71 So. 183; 133 Ark. 184.

Steel, Judge; 1. The tick eradication law was not properly passed, in so far as by the amendment thereto it was made to include Little Biver County. Act 39 is-amendatory, pure and simple, and section 1 violates every provision of article. 5, section 23, of the Constitution. It attempts to extend the provisions of sections 1 to 6 of Act 86 (1915) by reference to its title only. 49 Ark. 131; 52 Id. 290; Cooley Const. Lim.

W. Hendricks, Judge; 1. The verdict is not sustained by the evidence and the court erred in its instruction No. 1 as to what interest the note drew and the jury’s finding that it drew interest from maturity was not justified by the, evidence in the case. 2. The judgment on the counterclaim is not supported by the evidence. The burden of proving it was on defendant an’d lie failed in Ms proof. 3.

Shaver, Chancellor; 1. The chancellor misconceived the grounds upon which relief was sought, as shown in his opinion, even if the writing was á deed the grantee takes upon a condition subsequent and upon breach the grantor is entitled to declare a forfeiture. 91 Ark. 407. The remedy at law in cases like this is inadequate, and resort is properly in chancery. There was error in the first place in assuming that this was a suit to defeat the deed.

The conrt erred in giving the instructions for the State and in refusing those asked for defendant as to the plea of former conviction. The court virtually by its charge cut off the plea of former conviction. Art. 8, § 2, Const. 1874; 2 Wharton, Cr. Ev. (10 Ed.), § 578, pp. 1187-8; Id. secs. 580-1; 43 Ark. 68; 3 Cr. Ev. § 36; 65 Ark. 38; 72 Id. 419; 115 Id. 376; 130 Id. 325; 45 L. R. A. (N. S.) 977. 2.

<p>Appeal from Clay Chancery Court, Western District; Archer Wheatley, Chancellor;</p> <p>It was error to render a personal judgment against appellant, as no liability is shown by the evidence or alleged in the complaint that he owed any part of the consideration for the property. 73 Ark. 221. The complaint states no cause of action against Reed, the appellant. 8 Ark. 456; lb. 484 ; 25 Id. 570; 66 Id. 113; 74 Id. 468; 89 Id. 117; 107 Id. 353.</p>

V. Bourlcmd, Chancellor; The partition was not fair and equitable. The report was not sworn to and the allotment to appellant was inferior in value and quantity and it was error to refuse to hear testimony as to the quality and value of the land and the fairness and equality of the allotment. Authorities axe not necessary to be cited.

The provisions of act 96, Acts 1913, govern the appointment of hoards of health of cities of the first class and the provisions of act 114, Acts 1917, do not apply and said act does not expressly give the city manager the authority to appoint such board nor divest the city of such authority. 2.

M. Jackson, Judge; 1. Appellant’s request for a peremptory instructtion should have been given, as the undisputed testimony shows that at the time. of the accident appellant had leased the gin to Ledgerwood, who was operating the same as an independent contractor, and appellant had no control or management of same, nor did be hire or discharge the hands or give them any directions. 77 Ark. 553; 54 Id. 424; 55 Id. 510; Elliott on Railroads, art. 1063, p. 1586; Ann.

Coleman, Judge; STATEMENT OP PACTS. Appellants brought this suit against appellee to recover damages in the sum of $701.83 for loss sustained by them in the transportation of a car of cotton seed alleged to have occurred on account of the negligence of appellee.

S. Steel, Judge; STATEMENT OE EAOTS. Dyer & Company commenced this suit before a justice of the peace against Delight. Lumber Company to recover $53.84 alleged to be the balance due it for hay sold to the defendant. There was a judgment by default against the defendant in the justice court. The defendant duly appealed to the circuit court and the case was tried de novo. At the conclusion of the testimony the court directed a verdict for the defendant.

Elliott, Chancellor; STATEMENT OF FACTS. W. I. Booe, a citizen and property owner within the limits of a road improvement district duly organized in Prairie County, Arkansas, under the Alexander Road Law, brought this suit in equity against the commissioners of said road improvement district to enjoin them ■from the issuing of $65,000 in bonds authorized by a special act of the General Assembly passed at the special session held in September, 1919.

Elliott, Chancellor; STATEMENT. OP PACTS. Clea Stock brought this suit in equity against the commissioners of Hazen Street and Sidewalk Improvement District to enjoin them from proceeding further in making the improvement on the ground that the district was not organized in the manner provided by statute and on that account is invalid. The plaintiff alleges that he is a citizen and resident property owner of the town of Hazen.

McMahan, Chancellor; 1. This is a suit for money had and received and cognizable only in a court of law, and the chancery'court had no jurisdiction. 89 Ark. 3.85; 85 Id. 439. 2. There is not sufficient evidence or facts in the record for this court to go behind the settlement made. 15 Ark. 51; 101 Id. 335; 75 Id. 266. No offer to refund was made. 62 Id. 274; 74 Id. 270. There was no clear and satisfactory evidence of fraud or mistake. 88 Id. 363. 1.

II. Dudley, Judge; Freeze had no authority to sue; delivery to the carrier was delivery to the consignee, and Freeze was not the consignee nor owner. 105 Ark. 53-57; 111 Id. 521; 118 Id. 17; 127 Id. 607; 115 Id. 221. Freeze was not the party in interest, and was not entitled to recover because of his carelessness in taking the word of a man in whose integrity he stated he had no confidence, and he was negligent in making the shipment. 1.

Francis Chancery Court; A. L. Hutchins, Chancellor; 1. While the act No. 157, Acts 1917, page 814, was legally passed and valid (133 Ark. 64), the assessment of benefits against appellant’s property are unjust, unequal, unequitable and disproportionate and not in accordance with the provisions of the act, and under section 12 of said act the chancery court should be required to equalize the assessments of the entire district, and erred in refusing to set aside the unjust and…

Coleman, Judge; 1. The testimony of Kell and others as to statements made by Homer Davis when he was arrested, etc., were not admissible against appellant. 75 Ark. 297-8; 91 Id. 490; 88 Id. 451; 64 Id. 121; 45 Id. 171; 42 Id. 380; 34 Id. 654. 2. ' Homer Davis was, according to the theory of the State, an accomplice, and a conviction can not be had upon Ms testimony alone. 63 Ark. 461. The question is one of mixed law and fact. 51 Id. 115; 43 Id. 367; 63 Id. 462.

V. Bow-land, Chancellor; When J. T. and Russie Cole moved off the land to Van Burén they lost their homestead right by abandonment, and the plea of homestead is only available to the homestead… Held: and his finding is. sustained by the evidence. Under our laws now a gnantee or the holder of a homestead claim can make defense of homestead in a suit by a purchaser at execution sale. 66 Ark. 382; 75 Id. 591; Kirby’s Digest, § 3902. This case is identical with 75 Ark. 591. ■

R. Haynie, Judge; 1. Defendant’s refusal to dip his cattle was not wilful ; the county agent, though requested, failed to visit the vats nearest his home or give instructions as to preparing the dipping mixture; the vats in the neighborhood had been blown up and in some instances the mixture was poisonous and cattle injured and he was afraid to dip without some protection of the county agent, who refused to visit the vats and furnish protection; the court also refused the…

The “Monette” Act No. 68, Acts 1919, if constitutional, allows the commissioners to let a contract for an illegal and excessive assessment and the plans and specifications are illegal, unauthorized and void. Section Í4 of said Act 68 uses the words “last county assessment” and means for the year 1919, not 1918, and the assessment is excessive and void.

W. Hendricks, Judge; 1. The contract lacked mutuality and definiteness and was terminable at the will of either party. 64 Ark. 398; 110 Id. 444 ; 212 S. W. 313; 96 Ark. 184; 68 Id. 276, 526; 35 Id. 156; 100 Id. 510; 124 Id. 355; 212 S. W. 330; 1 Elliott on Cont., p. 393; 38 A. & E. R. Cases 16; 6 R. C. L., p. 691, ■§ 96; 155 N. W. 319; 42 N. E. 386; 59 Pac. 146; 28 S. E. 998; 47 L. R. A. 343 ; 237 Fed. 860; 194 Id, 324; 212 S. W. 313, 330.

M. Jackson, Judge; 1. The circuit court was without jurisdiction to make the order to establish a drainage district. The act (No. 279, Acts 1909) gives exclusive jurisdiction to the county courts. The amending act, No. 221, Acts 1911, extending the act by reference to its title, etc., is void under article 5, section 22, Constitution 1874. 132 Ark. 27. 2.

Steel. Judge; 1. It was improper to join certiorari and prohibition, two different causes of action. Kirby’s Digest, § 6079. Certiorari does not lie, because tbe record shows no error on its face. 2. Prohibition does not lie to try title to an office. Kirby’s Digest, § 5157; 33 Ark. 191.

Prohibition to Perry Chancery Court; Jordan Sellers, Chancellor; Prohibition- lies, and the writ should issue to the chancery court. It is the only remedy where courts are proceeding without jurisdiction. 26 Ark. 51; 27 Id. 675'; 33 Id. 191; 39 Id. 211. The chancery court is without jurisdiction, and plaintiffs in the court below have an adequate remedy at law.

McMahan, Chancellor; The court had no right to direct that the taxes due upon the land at the date of the confirmation of the sale be paid out of the proceeds of the sale. This was a judicial sale, the rule of caveat em-ptor will apply and the purchaser bought subject to all liens and encumbrances. 32 Ark. 112; 74 Id. 596; 18 A. & E. Ann. Cases, 500; 41 S. E. 247; 117 Am. St. Rep. 425. 1. No motion was made in the lower court to correct the error, if any.

H. Evans. Judge; 1. The “juvenile act” is unconstitutional, and hence appellant’s conviction of delinquency by the Independence Court was void. Kirby & Castle’s Digest, § 1561, being section 2 of the juvenile act of 1911. It creates a court unknown to and not mentioned in our Constitution. Art. 7, sec. 1, Const. 1874; 7 R. C. L. 981; 102 111. 218; 81 S. W. 435; 108 Id. 563; 60 S. E. 78; 1 Pin. (Wis.) 449; 45 Ala. 103; 36 Atl. 662. 2.

W. Hendricks, Judge; STATEMENT OE EACTS. On May 26, 1919, W. B. Hughes, as trustee, and others brought this suit against Lloyd England, as receiver of the State National Bank of Little Rock, Arkansas, for the sums respectively set opposite their names. The plaintiffs allege in their complaint that the State National Bank of Little Rock, Arkansas, was a corporation organized under the laws of the United States and engaged in the banking business.

H. Vaughan, Special Chancellor; 1. The court erred in not taking into account the unassigned dower of the widow. Ingraham was the real • purchaser of the land at the sale. 2. The filing of the mandate of this court was in effect the beginning of a new suit and notice was necessary and was not given. The sale of the lots subject to the dower interest was erroneous. Kirby’s Digest, § § 5776-5785. 1.

L. Hutchins, Chancellor; STATEMENT OP PACTS. Appellants, who are property owners within the proposed road improvement district, brought this suit in equity against appellees, who are commissioners of said proposed district, to enjoin them from proceeding to construct the road provided for.

Reeder, Chancellor; A guardian can not buy his ward’s land, and this case falls squarely within 54 Ark. 640; 96 Id. 573; 129 Id. 149. No case is cited by appellee to the contrary. 112 Ark. 141 is not in point. Pom. Eq. Jur. (3 Ed.), § 961. Uberrima fides is required, aud the benefit to the guardian invalidates the deed or sale. 1.

Barton was clearly subrogated to the rights of T. M. Neal. 04 Ark. 273; 86 Ca. 198; 124 Ind. 254; 123 Ala. 125; 71 Iowa 106. 2. Tht deed of Mary J. Matthews to her mother was void because she was one of the parties to receive the benefit of the foreclosure saiq to Barton and because made for the benefit of a debtor wlum insolvent. 10 Ala 231; 3 Md. 11; 47 W Va. 106; 69 N. Y. 1,87. 3. As to Barton’s right to subrogation,-see alsu 56 Aik. 73, 85 Ala. 233.

Martineau, Chancellor; ¡Before appellee oan recover, it must show that the sums alleged to have been paid ont were paid, and that it was legally liable for the sums, paid under the bond, and that Peay was legally liable for said sums. The liability of a surety is identical with that of the principal. If Peay was not liable for the sums alleged to have been paid, then appellee was not liable and it can not recover from Peay.

Ilaynie, Judge; 1. Tbe sheriff was disqualified, and the coroner should have selected the talesmen, and the verdict is not supported by the evidence, as the liquors found were not spirituous or fermented within our statute. 203 S. W. 838. 2. The court erred in its instructions. 152 U. S. 570; 149 Id. 586; 74 S. E. 500. 1. There was no error in overruling the motion to disqualify the sheriff.

James Bourland, the husband, is not liable for the torts; of his wife committed in his absence. Since the marked woman’s act of 1915, the husband is no longer liable. ^02 Ark. 351; 64 Id. 381; 44 Id. 401. All these cases are’ tksed on the law prior to 1912.

Mc-Mahan, Chancellor; 1. The act is unconstitutional, invalid and void, because it gives a roving commission to improve, build or repair any highway or any portion of a highway or road in the district, including the streets and alleys of three incorporated towns. There must be no uncertainty as to the highways to be improved. 115 Ark. 88; 86 Id. 21; 97 Id. 341; 116 Id. 167 ; 90 Id. 29; 118 Id. 123.

Coleman, Judge; . The consideration of a contract is always open to explanation by parol evidence. 26 Ark. 451. The contract provided for inspection at Sedgwick, but where had at destination the custom of the trade was admissible in evidence, and the court erred in ruling out the proof of the custom of the trade. 89 Ark. 591; 106 Id. 410; 85 Id. 568; 81 Id. 560; 69' Id. 318. 1. The abstract of appellant is insufficient, and the appeal should be dismissed. 2.

O. Hammock, Chancellor; 1. The court erred in decreeing performance of acts not provided for by the instrument sought to be enforced. 2. The finding as to the inchoate dower right of the wife is without evidence to support it and arbitrary and unjust. 3. The facts do not justify the decree in enforcing specific performance, as nothing had been paid on the contract, and the evidence clearly establishes a rescission of the contract.

V. Bourlcmd, Chancellor; 1. The court erred in sustaining the demurrer to the amended complaint and dismissing the complaint and afterwards enjoining defendants from borrowing money or selling bonds. No allegation of the complaint warranted this. The court was only called on to determine the validity of the act. 106 Ark. 39. 2. The act here in question is almost a literal copy of Act 265, Acts 1917, construed in 130 Ark. 507. 3.

Steel, Judge; 1. The evidence is insufficient to support the verdict. If plaintiffs were entitled to anything the jury should have found for the full sum of $1,500, or nothing. 'The jury could not legally disregard the undisputed evidence. 96 Ark. 12; lb. 500; 101 Id. 536; 116 Id. 82. The verdict rests purely on speculation or conjecture and should not stand. Ill Ark. 112; 116 Id. 82; 117 Id. 638; 171 S. W. 517. 2.

E. Dudley, Judge; 1. The school board sold the bonds to Speer & Dow, and under the contract and the law and evidence the judgment should have been for plaintiff for $352.70 as architect and $221 as superintendent. 2. There was no breach of the. contract by appellant, and there is error in the instructions. The two contracts were separate and distinct, neither resting on the other. 1. The two instruments should be construed as one contract. 127 Ark. 535; 108 Id. 69. 2.

Steel, Judge; The evidence is not sufficient to sustain the verdict. Appellant was indicted as a principal, but on the trial the State adopted the theory that he was present aiding and abetting tbe crime. Kirby & Castle’s Digest,, section 1646, does not relieve tbe State of tbe burden of proving at least some agency employed by defendant in the alleged commission of tbe crime. Tbe State wholly failed to do this.

Steel, Judge; STATEMENT OR FACTS. The First National Bank of Mena commenced this suit against T. A. Allen and C. E. Sutton before a justice of the peace to recover the sum of $50. From a judgment rendered against them the defendants duly appealed to the circuit court, where the case was tried de novo.

Clark, Judge; 1. The dissolution of the corporation abated ¿11 actions against it. Kirby’s Digest, §§ 957-8; Thompson on Corp. (1910 Ed.), par. 6562-4-5-9; 116 Ark. 74; 21 Wall. 609; 3 Story 658; 69 S. E. 822. The motion to abate should have been granted, as the corporation had been duly dissolved. 116 Ark. 74; 144 U. S. 640; 8 Pet.. 281; Cook on Corp. (190i8 Ed.), § 642; 10 Cyc. 1316-17; 68 Dl. 348'; 111 Pac. 1073; 120 Fed. 165; 74 Id. 425; 7 R. C. L., pp. 735 to 740. 2.

The contract was in general terms, there being no agreement for the supply of any definite amount of current nor any .guaranty that there would be no inter.ruptions, nor promise to take any definite amount, nor any special object for which, current was taken. The contract was in general terms for the sale of current of electricity without any special provisions whatever. The proof shows defendant exercised the highest degree of care at all times.

W. Hemlrichs, Judge;. 1. Proper service was not had on appellant. Sec. 17, act 462, Acts 1917; 69 Ark. 429-396. The summons was served upon the State Insurance Commissioner and J. L. Hawkins, an alleged collector for defendant, but not an agent for service. 69 Ark. 429, 396; 251 Fed. 171; 251 Id. 71. The doctrine of estoppel does not apply here. 1 Herman on Estoppel, p. 14; 218 U. S. 573.

<p>Prosecuting attorney — pee on affirmance. — Where thirty defendants were separately indicted for the same offense, and by consent were tried together, and one judgment of conviction entered, and an appeal prosecuted to the Supreme Court and affirmed, the prosecuting attorney is entitled to a single fee of twenty dollars only on such affirmance, and not to a separate fee for each of the convictions.</p>

L. Eutchms, Chancellor; 1. In view of the circumstances supporting Cannon’s testimony and discrediting Foster’s, the court erred in its findings as to fraud and mistake. The evidence shows both. 2. Mistake upon part of plaintiffs as to the location of the land called for by the deed is shown conclusively, and the deed should have been canceled. 3. There was a material failure of consideration.

District; Paul Little, Judge; STATEMENT OR EACTS. This is a proceeding by an attorney against a railroad company to enforce his claim and lien for attorney’s fees under the statute in a personal injury action.

M. Jackson, Judge; STATEMENT OE EAOTS. Mattie Lee Hill, administratrix of the estate of W. L. Hill, deceased, brought this action against the Yazoo & Mississippi Yalley Railroad Company to recover damages for the death of her husband and intestate, W. L. Hill, which was caused by his attempt to jump from the stage plank of the transfer boat of the defendant at Trotter’s Point, Mississippi, his body striking the guard of the boat whereby he received injuries from which he…

G. Hammock, Chancellor; STATEMENT OE PACTS. The General Cooperage & Timber Company and H B. Carter brought this suit in equity against Z. T. Hedges and G. W. Moore to recover an amount alleged to be due them under a contract for the sale of certain staves.

Reeder, Chancellor; 1. The court erred in refusing to confirm the reports of Williams and that of McCaleb, the board of surveyors. Kirby’s Digest, ch. 5; 36 Ark. 446-9; 44 Id. 166; 68 Id. 580; 76 Id. 153. This was an arbitration and settled the question. The boundary line as actually run and established by the surveyor general governs. 128 U. S. 691-7; 158 Id. 253; 197 Id. 510; 188 Ark. 48. 2. All the proof shows that all the fence belongs to Weaver.

Elliott, Chancellor; 1. The court erred in refusing to put appellant in possession of the lands purchased by him.

M. Jackson, Judge; 1. The court erred in directing a verdict for defendant. It was a case for a jury under the evidence and the law. 89 Ark. 368; 96 Id. 451; 107 Id. 158; 7 C. J. 639. 2. The law presumes that a deposit belongs to him who deposits it with the bank and in whose name it is entered. 177 Fed. 164; 120 Id. 526; 69- N. E. 215. A forged-check does not protect the bank from a suit by the true owner and depositor. 57 N. Y. S. 525; 208 N. Y. 218. 1.

Coleman, Judge; There was no competent evidence to convict appellant, even treating the information as amended by the evidence introduced. Whitley v. State, 140 Ark. 425. He was not an aider and abetter in transporting the liquor from one place to another in this State. Mere silence in the presence of crime is not sufficient to convict. 81 Ark. 173.

B. Sorrels, Judge; There is no legal evidence on which the verdict could be legally based and if instruction No. 1 asked by defendant and given by the court is a correct theory of the law, and it is, had been followed by the jury, defendant was entitled to an acquittal. The verdict is contrary to the evidence. 55 Ark. 502. The evidence is ample to convict of the crime charged, resisting the execution of legal process. Kirby & Castle’s Digest, § 2110.

Kirby’s Digest, section 7172, applies to the facts of this case, which are undisputed, and appellees are not bona ficle purchasers for valuable consideration and without notice. Appellees’ contention that this statute has no application to balances found due from a collecting' .officer on the readjustment of his accounts but only to balances on original settlements is unfounded and erroneous.

' Appeal from Sebastian Circuit Court, Greenwood District; Paul Little, Judge; There are two questions only for this court to decide: (1) The question of assumed risk and (2) whether the verdict is clearly against the instructions of the court and in the face of the evidence. The tramway was dangerous, and plaintiff knew it and assumed the risk. The court erred in giving the second instruction for plaintiff. 56 Ark. 206; 77 Id. 376; 81 Id. 343-6; 96 Id. 391; 1 Roberts ’ Fed.

There was no corroboration of the female witness. Kirby’s Digest, § 2043; 40 Ark. 482; 77 Id. 16, 46i8; 73 Id. 265; 86 Id. 30; 92 Id. 421; 84 Id. 67; 102 Id. 263; 77 Id. 23; 135 Id. 173. 2. A verdict of not guilty should have been instructed, as there was no legal corroboration of the prosecutrix’s testimony. 3. The court erred in permitting the State to contradict Dr. Armstrong. 101 Ark. 45; 112 Id. 481. 4.

Steel, Judge; 1. The court should have admitted the records of the prohate court showing defendant’s lunacy. 8 R. C. L. 189; 31 Cal. 576; 63 N. Y. 409; 12 Pa. St. 159; 34 Ohio St.. 394; 61 Kan. 87; .l McClain, Or. Law, 136; 14 R. O. L. 620. ' 2. The court erred in. refusing to give instruction No. 3 for defendant on reasonable doubt. Brickwood-Sackett on Instructions, § 2649, p. 1701; 71 Ark. 291. 3.

L. Hutchins, Chancellor; 1. Mrs. McDaniel having paid the indebtedness secured by the trust deed is entitled to be subrogated to all the rights of Goodman Brothers, J. M. Baker, Julius Goodman and Effie N. Richards. 134 Ark. 526. Jas.

8. Harris, Special Chancellor; 1. The check for $500 from Stanford to Ross and the written correspondence constitute the written contract and the court erred in not decreeing specific performance, as there was part performance of the contract which took the case out of the statute of frauds.

We concede that the order given the salesman, Weaver, for goods was under the statute of frauds, not binding, but if Katter actually accepted and received part of the goods and paid for same the sale was binding under the statute, and the court erred in giving instruction No. 1 for plaintiff. 2. It was also error to refuse instruction No. 3 for plaintiff. This instruction presents every phase of the case as made by the pleadings and evidence.

Appeal'from Pike Circuit Court; James S. Steel, Judge; The offenses charged were inseparable and two misdemeanors. There was no demurrer. 32 Ark. 204. Both wife and child abandonment were charged, and the burden was on the State to prove every constituent element of the offense charged. 70 S. W. 130. It was necessary to prove that the refusal or neglect was without ‘ ‘ lawful cause.” Chambelayne, Mod. Law of Ev., vol. 2, sec. 960 ; Enc. of Ev., p. 802.

H. Dudley, Judge; 'STATEMENT OE EACTS. A. B. and J. C. Walker brought separate suits against A. H. Huckaby before a justice of the peace to recover the value of certain lint cotton. A verdict was rendered in favor of the plaintiff in each case in the justice court, and the defendant appealed to the circuit court. There the cases were consolidated for the purpose of trial.

William Bowlin died testate on the 31st day of December, 1915, in Crawford County, Arkansas, owning a valuable estate consisting of both real and personal property. John M. Weaver was duly appointed executor of his will, and upon application to the probate court was also appointed to appraise the value of the estate for the purpose of ascertaining the amount of inheritance taxes to be made thereon.

Shower, Chancellor; 1. Under the will of the father, - Dennis McLendon and M. F. Smith took a fee simple title' to their respective tracts. 58 Ark. 303; 3 Id. 147; 29 Id. 418; 13 Id. 88; 98 Id. 553; 116 Id. 565; 104 Id. 439; 105 Id. 458; 115 Id. 9; lb. 184; 111 Id. 163; 22 Id. 567; 115 Id. 400. Under the will the widow took a life-estate in all the lands, remainder to certain children.

Steel, Judge; 1. The court erred in refusing to permit the witness, Harris, to testify that he saw the prosecuting witness having sexual intercourse with McKinnon. 22 R. C. L. 1211; 10 R. C. L. 936; 33 L. R. A. (N. S.) 477; 54 Ark. 25. 2. Also in excluding the testimony of Nonus Harris. 42 Pac. Rep. 953. 3. It was error to allow the prosecuting attorney to ask defendant as to acts of intercourse with the prosecutrix after she was 16 years of age. 97 S. W. 566. 4.

W. Smith, Judge; 1. The demurrer should have been sustained to the indictment. It charges no offense. The rules and regulations promulgated by the Board of Control were not disobeyed. The county was in the. free area, and it was no violation of law to fail to dip cattle in Union County after March 1, 1919. 208 S. W. 436 has not been overlooked, but is should be overruled.

Francis Circuit Court; J. M. Jackson, Judge; 1. It was error for the court to hold that Tom Hampton, Jesse Pharr and C. E. Phillips were competent jurors. They had expressed opinions on the case and were disqualified as jurors. 45 Ark. 170; Const., art. 2, § 10. 2. The court erred in giving the State’s instructions and by the refusal of the one asked by defendant as to what constituted an assault. 3. Defendant was prejudiced by the charge of Special Judge J. Walker Morrow. 4.

' The verdict is not supported by the evidence. The evidence is overwhelming that the deceased was the aggressor and completely to blame for his death and that he made a murderous assault on defendant. 2. It was error to refuse a change of venue, and the court abused its discretion in refusing. The petition and supporting affidavits were made according to law and the supporting witnesses were credible. 3.

The court erred in permitting defendant to testify as to transactions between him and appellant’s decedent. Kirby’s Digest, § 3093; 48 Ark. 133; 46 Id. 306; 50 Id. 157; 82 Id. 136; 123 Id. 266; 132 Id. ,441. The clause applies also to special administrators, as the word “administrator” as used applies to all, whether general or special. 2.

L. Hutchins, Chancellor; Section 1 of act 91, Acts 1915, is unconstitutional and void, as it violates section 23, article 5, of the Constitution. It is an attempt to extend the provisions of the act by referring to the numbers of the section and act without re-enacting them. 52 Ark. 290; 49 Id. 131; 29 Id. 252; 13 Mich. 481; 200 S. W. 275.

P. Hendersom, Chancellor; • The act as well as the ordinance of the city itself is void and unconstitutional. The statute provides an unjust and discriminatory method of classification, which renders it void and exempts from tax persons, firms, etc., who pay a tax to the city or State on gross incomes. The ordinance was not passed according to law nor published as required by law. 56 Ark. 370; 100 Id. 406; 40 Id. 105; 98 Mass. 219; 36 Ind. 90; 23 Mich. 457; Dillon, Munic.

The court erred in overruling the demurrer to the answer. Act 196, Acts 1911, sections 7 and 8, only apply to the parent act and not to subsidiary districts. These sections only apply to the parent district, and subsidiary districts have no power to issue interest-bearing bonds when principal and interest greatly exceed the benefits assessed.

The statute of limitation must be based upon open, notorious, hostile possession and an honest claim of title against the world, and the court erred in not giving defendant’s instructions. Blashfield Inst, to Juries, pp. •1328 and 1324. Plaintiffs were allowed to introduce the chancery decree, but defendant was not allowed to introduce the evidence of Baker, the surveyor, taken to maintain the decree, or any of the surveyors.

Francis Circuit Court; R. J. Williams, Special Judge; 1. The court erred in its oral instructions. The undertaking to pay John Elby’s debt was an original one and based upon a new and original consideration, taking it out of the statute of frauds. An agreement not to exercise a legal right is a valid consideration to support a contract. 110 Ark. 327; 45 Id. 67; 76 Id. 292; Ib. 1; 106 Id. 465; 96 Id. 46. 2. The court erred in giving plaintiff’s instruction No. 1.

F. McMahan, Chancellor; 1. The court erred in overruling the demurrer filed by the city of Siloam Springs -to the complaint. There was a clear misjoinder of parties defendant and plaintiffs had an adequate remedy at law. 113 Ark. 239. 2. The court erred in overruling the motion of the city to make the complaint more definite and certain. Dillon on Mun. Corp., par. 1051-2 and 1051 A; 117 Am. St. 749; 188 Miss. 456; 42 So. Rep. 204. 3.

A. Dickson, Judge; STATEMENT OP PACTS. This suit was instituted to récover commissions which J. W. Pumphrey, as a real estate agent, claimed from Wales-Riggs Plantations, a domestic corporation. The subject-matter of the suit is a farm of 128 acres which it is alleged the defendant, Wales-Riggs Plantation, authorized the plaintiff, J. W. Pumphrey, to sell for $5,126 upon a basis of 5 per cent, commissions for his services.

Reeder, Chancellor. STATEMENT OE EAOTS. T. J. Sharum brought this suit in equity against C. O. Corcorren, Bettie Corcorren, Lizzie Burel and A. P. Hager, to foreclose a vendor’s lien on certain lands.

Steel, Judge; 1. The undisputed facts of this' case show gross negligence, and the verdict is therefore contrary to the law. • 137 U. S. 604; 39 Am. St. Rep. 172. 2.. Instruction No. 3 is not a correct statement of the law.' 5 Cyc. 187. 3. Instruction No. 5 does not state the law correctly, because it makes the sole standard to measure the degree of care required of the bank, the same care' givén to bonds or other valuable papers belonging to the bank or its officers.

Barker Chancellor; 1. There was no delivery of the deed. This is shown by the uncontradicted evidence. The recording is only prima facie evidence of delivery and this is overcome here by the evidence. 98 Ark. 466; 18 C. J. 207; 18 U. S. (L. Ed.), 262; 132 Ark. 438. 2. The court erred in .quieting the title as against appellant. The legal title was in appellant and not in appellee. 98 Ark. 30 ; 60 Id. 70; 86 Id. 150; 196 S. W. 476. 3.

Martmeau, Chancellor; The decree is inequitable in this: (1) There was a mutual mistake as to the thing bought and sold; (2) the written contract was mutually rescinded and a subsequent parol contract made; (3) there is no evidence that appellants breached either the written or parol contract, but there is ample evidence that appellee breached both, and (4) appellants repeatedly offered and were willing to do the very things the court decreed they should do and their not…

H. Dudley, Judge; 1. The court erred in refusing to allow defendant to cross-examine plaintiff relative to his living and cohabiting with his wife subsequent to the alleged separation and in instructing the jury that defendant had made plaintiff his witness and was bound by his action.

y. Bourla/nd, Chancellor; The court erred in overruling the demurrer and enjoining the collection of taxes, as the facts alleged and conceded by the demurrer amount in substance to an honest mistake only on the part of the Tax Commission as to the value of appellee’s property.

Barker, Chancellor; 1. The court erred in dismissing the bill, as the allegations constitute a fraud upon the rights of appellants which should be relieved against in equity and the fraud was not discovered until after the order was made in county court and the time elapsed for appeal. The misrepresentations set forth, if made, and they were, constituted a fraud upon the rights of plaintiffs. Freeman on Judg. (3 Ed.), ch. 6, p. 99; 107 Ark. 136; 194 8.

The law can not incorporate into an instrument what the parties have left out, even though the omission was by mistake. 94 Ark. 130. By reason of our execution lien we have the right to invoke whatever defense F. H. Shackelford might set up as against Robbins, and appellee can not rely upon both his written contract and an oral one engrafted thereon also.

F. McMahan, Chancellor; The court erred in failing to sustain the demurrer to subdivision B. C and D of paragraph 5 and act No. 517, Acts 1919, is not unconstitutional for the reasons set forth in said subdivisions of paragraph 5. The act in no way violates article 5, section 23, of our Constitution, as it does not attempt to revive, amend or extend the provisions of any former law.

W. Hmdricks, Judge; 1. The evidence was not sufficient to justify the court in submitting to the jury the question as to whether or not the hernia was caused by the accident in which plaintiff was struck by a maul. The only witness was Doctor Reed, and his testimony is not definite enough to justify the jury in saying the hernia resulted from the accident. Í23 Ark. 124. 2. The release was binding and prevented a recovery. 102 Ark. 616; 115 Id. 123; 119 Id. 95; 117 Id. 524. 3.

R. Haynié, Judge; A directed verdict should have been given for defendant. No negligence whatever was proved and the evidence of the engineer was not contradicted but Corroborated by other witnesses. The presumption of negligence was clearly overcome. 7i8 Ark. 234; 66 Id. 439; 67 Id. 514; 89 Id. 120; 53 Id. 96; 69 Id. 659; 122 Id. 445. The evidence shows that the engineer was not keeping a proper lookout and that no stock alarm was sounded. 118 Ark. 580; 68 Id. 32.

H. E. Fisher brought this suit in equity against John Laughlin to cancel, as a cloud on his title, a tax deed from the State to Laughlin to certain land in the Osceola District of Mississippi County, Arkansas. The land in question was granted to the State of Arkansas under an act of Congress known as the Swamp Land Grant. The plaintiff derived his title by mesne conveyances from the State of Arkansas.

B. Priddy, Judge; No mortgage was shown except the one given in March, 1914, for $25, and the goods furnished defendant during the year up to November 15 and was absolutely restricted to that year and the mortgage could not be stretched to cover any other than the year 1914without an agreement in writing. It could not be extended by parol. 30 Ark. 745. The mortgage of 1914 was paid off and it got on record by mistake.