Volume 142 — Arkansas Reports

The Missouri Pacific Railroad Company brought this suit in equity against J. M. Gordon, as sheriff of Conway County and the Conway County Bridge District to enjoin them from taking any further steps towards enforcing local assessments upon the property of the company for the purpose of erecting a bridge across the Arkansas River within the limits of the proposed district.

M. Shinn, Judge; 1. It was error to refuse the continuance. The court abused its discretion in so doing. 60 Arle. 567; 99 Id. 400; 71 Id. 180; 100 Id. 311; 110 Id. 251. 2. It was not proper for the court to usurp the province of the jury in passing on the credibility of the witnesses. 99 Ark. 394; 110 Id. 256. 3. Immaterial and prejudicial evidence was admitted and instruction No. 23 was error. 93 Ark. 410; Wharton on Cr. Law, § § 622-5, 633. 4.

V. Bourland, Chancellor; 1. The court had no authority to appoint the receiver to take charge of the funds, books, papers, etc., at an enormous expense, when the commissioners and the secretary were ready and willing to perform all those duties without additional expense. Act 579 was not unconstitutional and void, and the decree is against the clear preponderance of the evidence. Am. & Eng. Enc.

The court based its findings and judgment on the Miller case in 212 S. W. 310, but that ease does not control, as the provision of the war clause there is entirely different from this. All limitations in an insurance policy are construed most strongly against the insurer. 17 L. E. A. (N. S.) 1011. All doubts should be resolved in favor of the insured and against the insurer. 25 Cyc. 739; 30 Pa. Sup. Ct. 456; 172 N. W. 152.

M. SKiwn, Judge; 1. Tbe continuance should have been granted. Defendant had used all diligence to get Rice ’s testimony and failed without his fault. His testimony was important to the defense, and material. 2. It was error to overrule the motion for change of venue. Kirby’s Digest, § § 2317-18; 68 Ark. 466. 3. The verdict is not supported by the evidence but is against the clear preponderance. Adkisson v. State, ante, p. 15. 4.

The evidence is insufficient to sustain the finding that defendant set out the fire. The cause of action arose in the State of Oklahoma and the laws of that State govern as to liability, if any. 113 Ark. 265; 64 Id. 291. Review the evidence and contend that the greatest probation force of the proof is to show a mere possibility that the cotton was set on fire by defendant’s train. This is dearly insufficient. 16 S. E. 958; 112 N. W. 1121; 153 Pac. 872; 174 Id. 510 ; 28 Mo.

W. Hendricks, Judge; Poole was not exempt from service of a summons in this case and the court properly directed a verdict for appellee. 45 L. R. A. 613; 126 Ark. 398; 53 Id; 51; 76 Id. 376. The sale was brought about and procured by the efforts and labors of appellant and under the law he was entitled to recover the commission. Cases supra. See also 23 L. R. A. 632. 1. Appellee was not exempt from service of a summons and 126 Ark. 389 is not in point. 2 R. C. L. 482. 2.

Mc-Mahan, Chancellor; 1. The power to create special road districts for. improvement is given only for the purpose of improving public county roads already laid out or recognized by the county court. The improvement necessarily becomes a part of the original road. 92 Ark. 93; 89 Id. 513; 118 Id. 294; 133 Id. 64; 118 Id. 119; Page & Jones, Tax by Assessment, § i859. The roads also must be definitely designated and described.

Ham-mo ch, Chancellor; 1. Act 237, the Bradley County Road Act (1919). is unconstitutional and void and is governed by the decisions in 89 Ark. 513; 118 Id. 294, and not by the principles in 213 S. W. 762. 2. It arbitrarily leaves out lands in the central portion of the county and of the twin districts and lands are arbitrarily assessed, although distant from the road and not benefited. 48 Ark. 370; 130 Id. 70; 196 S. W. 931.

E. L. Johnson, Judge; 1. It was error to refuse the continuance. 99 Ark. 394-9: 38 Id. 174. 2. Hearsay testimony was admitted. 16 Ark. 628; 10 Icl 638. 3. There was no proof that the wire was worth over $10. 1. The continuance was properly refused. The motion does not come within the provisions of our statute. Kirby’s Dig., § 6173. No abuse of discretion by the court is shown. 40 Ark. 114; 79 Id. 594; 100 Id. 132; 103 Icl. 354; 109 Id. 450; 110 Id. 402; 79 Id. 594. 2.

Steel, Judge; Taking our statutes together (Kirby’s Digest, sections 3494-5, 7111, Acts 1903, page 51), the county should pay the fee. The general revenue act does not repeal the.acts of February 25 and December 13, 1875. The Legislature is presumed to have known of the prior statutes and to have enacted with reference thereto. 76 Ark. 446.

Clark, Judge; I.1 The court erred in excluding the evidence of Elsie Thompson that the child was born fully developed. She qualified as an expert. 5 Enc. of Ev., pp. 535, 658; 45 Yt. 29; 56 N. H. 227; 22 Am. Rep. 441; 100 Ark. 232; 117 Id. 8. 2. The court erred in instructing the jury as to reasonable doubt. 39 Ark. 275-280; 111 Id, 457, 465-6. 1.

Hay-pie, Judge; STATEMENT1 OP PACTS. Peter Davis brought separate suits in the circuit court against the Planters’ Gin Company and the Garland Gin Company to recover the value of five bales of cotton claimed to have been lost in the gin' yards of the defendants. The facts in the two cases being the same, the suits were consolidated and tried together.

Reeder, Chancellor; STATEMENT OF FACTS. M. M. Irwin, doing business as Heber Hardware & Furniture Company, brought this suit in equity against J. E. Dugger, Sarah C. Dugger, and M. Gr. Dugger, to set aside certain deeds which it is alleged J. E. Dugger executed to his co-defendants in fraud of the rights of his creditors.

Barker, Chancellor; The lands were donated to the levee district upon certain restrictions and limitations, conditions subsequent, which were not performed, and the lands reverted to the grantor. 113 Ark. 32; 91 Id. 407. The burden of proof was on appellee. Kirby’s Digest, § 3107. There is a statutory presumption in favor of the Land Commissioner’s deed. 96 Ark. 447. The burden was on plaintiff to show that it has complied with all the conditions imposed by law and it failed.

Haynie, Judge; 1. Appellant was not due appellee any commissions on orders until the goods were shipped; the verdict is contrary to the law and evidence, and the giving of plaintiff’s instructions and the refusal of defendant’s were erroneous.

Did the court have jurisdiction? 2. Is the evidence sufficient to sustain the findings and decree ? On the first neither fraud nor mistake were alleged and the court had no jurisdiction. 63 Ark. 576; 40 S. W. 710. No appeal from the decision of the commission was provided for in Act 257, Acts 1909, page 764. 90 Ark. 413; 119 S. W. 251. See also 94 Ark. 217; 126 S. W. 713. The findings of assessors and boards are conclusive, except where otherwise provided.

Shaver, Chancellor; The burden was on the plaintiff and he has sustained it by proving that the consideration, $3,000, as expressed ip the deed? was in fact not the real considerption; bpt the real consideration was that Mulkey would furnish the money to operate the business and did not do so. No part of the expressed consideration was ever paid or intended to be paid and the case should be reversed. 1.

II. Dudley, Judge; 1. The court erred in overruling the motion to dismiss for misjoinder of parties plaintiff. The hogs were owned by Block and Mitchell jointly as partners. 2. The court erred in refusing to grant defendants’ motion for a peremptory instruction, as there was no competent evidence of delay in shipment and consequent shrinkage of value of the hogs or of negligence in handling and delay. 96 Ark. 384; 97 Id. 82. 3.

Tlie constitution and laws of tbe order formed part of tlie contract and must have been complied with before there was any liability. 1 Bacon on Ben. Soc., § 81; 80 Ark. 419; 104 Id. 538; 81 Id. 514; 136 Id. 355. When the assured became a member he assented to all its by-laws and is conclusively presumed to have made himself familiar with them. 104 Ark. 538-544; 1 Bacon on Ben. Soe., § 1199; 19 R. C. L., § 17, pp. 1198-9. He must take notice of the laws of the order.

A. Dickson, Judge; 1. The evidence is not sufficient to sustain the verdict. The defendant was not guilty of negligence. The uncontradicted testimony shows that the sudden and unanticipated assault could not have been foreseen by the most' vigilant observation, and the unexpected conflict was repelled by the conductor promptly 'and successfully. No. liabilty was proved against defendant, and plaintiff failed absolutely to show the violation of any duty'to her, as a passenger.

Elliott, Chancellor; The contract shows appellee purchased the tractor and that he never paid for it as he agreed. It was delivered to him as per contract. A satisfactory demonstration was not agreed to in the contract of sale. The contract contains no warranties or representations other than those that it was sold as a 24-brake horsepower, 16 tractive horsepower, and was warranted to develop the horsepower at which it was rated.

Shaver, Chancellor; statement of facts. On the 17th day of March, 1919, Wes Vaughan brought this suit in equity against A. F. Rugen and John Turner for the specific performance of an oral contract for the sale of 40 acres of land. According to the testimony of Wes Vaughan, the contract of sale was made in October, 1917.

M. Shinn, Judge; STATEMENT OE EAOTS. F. D. Shults sued W. W. Fendley in the circuit court to recover bn a promissory note. The note was exhibited with the complaint and is as follows: “$500. October 3, 1910. “January 1, 1911, after date we promise to pay to the order of F. D. Shults five hundred and no one-hundredths dollars at 10 per cent, interest per annum from date until paid. Value received. • “ (Signed) “Jno.

101 Ark. 451; 40 Id. 68. The evidence clearly shows that it was the intention of the parties that Myrtle May Claridy was to have a part of the land when it was paid for, as she had furnished part of the money in paying therefor. 101 Ark. 451; 79 Id. 69; 81 Id. 478; 96 Id. 281; .89 Id. 452. The evidence fails to meet the requirements of a resulting trust by parol. In the main it is neighborhood gossip. All the circumstances refute the idea of such a trust.

Martineau, Chancellor; 1. The relation between Solmson and Deese had changed from that of principal and agent to that of vendor and vendee at the time the purchase contract was entered into on March 23, 1919. The testimony of the members of the Board of Control reveals the true facts as to the purchase of the farm as they occurred and they had undertaken the performance of the obligation placed upon them by' the Legislature.

V. Bourlcmd, Chancellor; The chancellor erred in his findings of facts and conclusions of law. The trust was created for the benefit of the estate and not merely as a bounty for the children. Dr. Bailey had in mind at the time the trust was created the thought that real estate values in Fort Smith would enhance in value from year to year on account of well known public improvements contemplated.

Clark, Judge; The court erred in giving the three instructions on its own motion. The court in effect instructed the jury that appellant Rogers did, fail to order out the cars and this, was erroneous and g’reatly prejudicial. There is no evidence that any changes were made in the written contract by telephone or otherwise, but if so there was no new consideration for such change. 112 Ark. 165-223. 1.

Reeder, Chancellor; 1. Kirby’s Digest, sections 2650 to 2653, are evidently designed to enlarge the common law doctrine of advancements and to ascribe to the donor that intention most favorable to an equal distribution of his property •among his children. Such has always been the doctrine of this court. 45 Ark. 481; 68 Id. 405; 69 Id. 629; 97 Id. 568. 2.

Coleman, Judge; 1. It was error to permit witness Britt to testify that appellee sold the land to Vance, as it was clearly the expression of a conclusion of law. 13 Ark. 461; 97 Id. 176; 70 Id. 423; 62 Id. 510; 114 Id. 516; 1 Thompson on Trials, § 377; 66 Ark. 494; 91 Id. 427. 2. The case should be reversed because of newly discovered evidence which was not merely cumulative, but was such as would probably have changed the result of the trial.

M. Jackson, Judge; The court erred in refusing to direct a verdict for appellant, as appellee promised in writing to pay Russell’s account, $122.80. The statute of frauds does not apply, as the promise was in writing and an original and not a collateral undertaking. The statute of frauds does not enter into this case.

Eaynie, Judge; STATEMENT OP EACTS. Appellant sued appellees for damages for the breach of a contract of the sale of a car of flour by the former to the latter. The contract is as follows: “Contract between The Company, Olathe, Kansas, and ‘ ‘ Ship to Gentry, Buchanan & Co. “At Prescott, Ark. “When: In 30 days P. O. B. “Routing..................................................................... “Terms: Arrival B/L attached. “Through Bank of Prescott, Bank. “No. bbls. Brand.

T. 'B. Mayfield sued the Home Mutual Benefit Association upon two certificates of insurance. Tbe material facts are as follows: The Home Mutual Benefit Association is located at.Fayetteville, Arkansas, and is engaged in tbe business of writing life and accident insurance on tbe mutual or co-operative plan.

Coleman, Judge; STATEMENT OE EAOTS. S. M. Casey instituted this action in the circuit court against Earl C. Casey, R. R. Case, and J. S. Handford, to recover damages for false arrest or false imprisonment and they seek to justify the same on the ground that it was legal. The material facts are as follows: The Union Bank & Trust Company was at the time of the transaction complained of, engaged in the b'anking business at Bates-ville, Arkansas.

Reeder, Chancellor; Patents should not be set aside except upon the most convincing evidence. 119 Iowa 6; 97 Am. St. Rep. 279. It is not possible to divest the title of defendant and allow the commissioner to issue a deed after hearing a •contest, as the State was not a party and had parted with its title.

Henderson, Chancellor; The statutory grounds of divorce, desertion and indignities such as to render condition intolerable, must be proven by a fair preponderance of the testimony. 90 Ark. 40; 97 Id. 125; 170 S. W. 485; 104 Ark. 385; 105 Id. 194; Blue v. Blue, 174 S. W. 237. The court had jurisdiotion to grant the divorce on the cross-complaint. Kirby’s Digest, § 2674.

Martineau, Chancellor; Under the original contract appellant contracted for 25 acres of land for $1,000. Defendant could not give bim a good title to all the land, and the contract failed and was abandoned by agreement, and a new agreement made, which was void because not in writing. Kirby’s Digest, § 3654, subd. 4.

W. Smith, Judge; 1. The court erred in giving plaintiff’s instruction No. 1. Taken as a whole it fails to show that the eating of the hair off the manes and tails of the animals was caused by hunger or that keeping the mules in the car more than thirty-six hours was the proximate cause thereof. The injury was caused by inherent vices or natural propensities of the animals. 46 Ark. 236; 83 Id. 87.

M. Barber, Chancellor; 1. The bonds were issued without authority of law and therefore void, as there was no election at which directors could be authorized to issue the bonds. Rural special school districts were not to be governed by the laws of special school districts except as provided for in the act. The Acts 1909 and 1911, Acts No. 321 and No. 169, support our contention. Act 25, Acts 1913, does not expressly repeal any law and repeals by implication are not favored.

The complaint states facts sufficient to constitute a cause of action, and it was error to sustain the demurrer. Kirby’s Digest, § 623; 1 Kinney on Irrigation and Water Eights (2 Ed.),'par. 319. 2. Courts may grant injunctions in all cases of illegal or unauthorized taxation or assessments. Kirby’s Digest, § 3966; 30 Ark. 101; 59 Id. 344, 35S; 22 Cyc. 767; 27 Id. 1270; 37 Id. 1251; 33 Ark. 441.

Elliott, Chancellor; Ex parte affidavits can not be accepted as competent evidence to support a decree for divorce. 5 Am. Dec. 419; 34 N. E.-20; 23 So. 703; 34 111. -306. The evidence must be upon depositions .taken upon due notice. Kirby’s Digest, §§ 3166, 3169, 3177-8; 3182-8; 70 Ark. 409. A deposition is simply written testimony, and sometimes used synonomously with affidavit. 25 Fed. Cases 441-2; 53 Am. Dec. 270; 23 Fed. Cas.

Elliott, Chancellor; The tax sale was illegal and void because the school taxes were not properly levied by the county court. 100 Ark. 494; 29 Id. 340. There is no record evidence that the tax was even levied. 103 Ark. 581. The record shows a substantial compliance with our statutes and' previous decisions as to the levy of the taxes. 68 Ark. 340; 100 Id. 488; Kirby’s Digest, 1499, 7594-5, 7678.

E. L. Johnson, Judge; 1. The court erred in the remarks made in the presence of the jury. 107 Ark. 469; 51 Id. 147; 54 Id. 489; 62 Id. 126; 70 Id. 420. 2. The bill of exceptions was not properly certified. 9 Ark. 133; 28 N. E. 1022; 16 Id. 786. 3. The judge’s remarks were prejudicial and error. Supra. 4. Instruction No. 9 was error, and it was error to overrule the motion to quash the indictment, as it was not returned according to law. 1.

M. Barker, Chancellor; The decree granting the relief prayed in the cross-bill is erroneous. The fact that Emerson waived the forfeiture as late as 1907 would not give Marble and his estate an indefinite time in which to pay and demand a deed. 77 Am. Rep. 848; 68 Am. Dec. 87. While time is not ordinarily esssential in specific performance, it is material, and the delay must be explained and accounted for. 4 Pomeroy, Eq. Jur., § 1468; 146 S. W. 495.

<p>Telegraphs and telephones — federal control — recovery for mental suffering. — Where the negligent act complained of was committed while defendant’s telegraph lines were under control and operation of the United States Government, pursuant to joint resolution of July 16, 1918, and the President’s proclamation of July 22, 1918, defendant was not liable for damages for mental anguish under Kirby’s Digest, section 7947, and suit can not be maintained under it.</p>

Clark, Judge; STATEMENT OE FACTS. F. H. Hemann, as administrator with the will annexed, of the estate of C. H. Hemann, deceased, brought this suit in the circuit court against Geo.' F. Zimmerman ■ to recover $1,200' with the accrued interest. In his complaint he alleges that C. H. Hemann in his lifetime was the owner and in possession of $1,200 and delivered it to Geo. F. Zimmerman for safe-keeping.

R. McIntosh, Special Chancellor; STATEMENT OR FACTS. Appellants brought this suit in equity against appellees to compel appellees to deliver to them a deed to certain lands comprising about 1,300 acres, and for the possession of said lands. Appellees deny that the deed had ever been delivered or that the appellants were the owners of, or entitled to the possession of the lands in controversy.

L. Hutchins, Chancellor; STATEMENT OP PACTS. On the 1st day of December, 1917, appellants brought this suit in equity against appellees and asked that the latter be declared mortgagees in possession of the land described in their complaint and that an account be taken of the rents and profits between the parties to the suit.

McMahan, Chancellor; 1. The complaint in case is insufficient, and the circuit court erred in overruling the demurrer to the complaint.

Francis Chancery Court; A. L. Hutchins, Chancellor; The court erred in holding that the partnership was one at will, determinable at the pleasure of either party. The decree is not sustained by a preponderance of the evidence, but it shows that it was for at least three years. 227 U. S. 489; 5 Ark. 376; 116 Ala. 247; 158 Ind. 292; 193 111. 121; 16 111. 402; 84 Icl. 121. The evidence shows that a dissolution was not sought at a reasonable time.

. The finding of the chancellor is, clearly against the weight of the testimony. 2. Roche had no notice, actual or constructive, of the extension of time for removing the timber. 3. If the insertion of the clause, “subject to a timber contract expiring March 1, 1920,” was notice to Roche, he exercised such diligence as would absolve from the charge of negligence in making inquiry with respect to this matter. 4.

Shaver, Chancellor; Pipe lines in a city are clearly personal property and not taxable-for benefits to construct a road. 129 Ark. 547; 121 Id. 113; 81 Id. 208. No specific authority is granted by Act 153, Acts 1919. Kirby & Castle’s'Digest, § 8577; 119 Ark. 255. The chancellor erred in sustaining the demurrer. Oases supra. No question is raised here as to the assessment of the main line.

MoMaham, Chancellor; The decree is against the clear preponderance of the testimony. It fails to show that appellee was mentally incapable of acting intelligently in matters of business, and the burden was on her to show this. The evidence shows that plaintiff had no cause of action and no right to recover. 110 Ark. 416; 60 Id. 39; 14 R. C. L. 1307, § 480. Appellee was a life tenant in possession, and it was her duty to pay the taxes, etc. 1 Washburn on Real Plop.

B. Priddy, Judge; 1. It was error to admit as testimony the conversation between Webb Covington and James K. Gear-hart. 92 Ark. 159; 62 Id. 286; 69 Id. 648; 21 Id. 387. 2. It was error to admit any evidence in the case, as no cause of action was stated in the complaint. Kirby’s Digest, § § 6096 to 6119; 64 Ark. 510; 44 Id. 205; 8 Id. 74; 49 Id. 277. The evidence was insufficient to take the case to a jury. 3. .

It was error to permit plaintiff’s counsel to ask the jurors whether they were stockholders in any insurance company writing indemnity insurance. 131 Ark. 6. This case fairly settles the present case. See also 104 Id. 1; 154 Pac. 159; 150 N. Y. S. 93; 154 S. W. 1070;-145 Pac. 1066; 172 S. W. 987.; 166 S. W. 643; 146 N. Y. S. 762; 102 N. E. 778; 130 Pac. 9/86. The error was harmful. 90 N. E. 724; 159 N. W. 832. See also 79 N. E. 854; 126 S. W. 242.

Under the facts it was unjust to tax the costs against appellants. In replevin where the original taking was not tortious, demand before suit is essential. Here the proof shows no demand made for the inspirator or pump, and no proof of wrongful taking by appellants. 35 Ark. 169; 82 Id. 362. Under the proof appellant’s motion to retax the costs should be sustained. The evidence is conclusive that Scott made a demand for the inspirator.

W. 709 settles the only question raised here, that the county is liable for the salary claimed under Acts 1919, No. 337. The meaning of the Legislature is determined from the language of the act. 36 Cyc. 1116; 104 Ark. 597; 36 Cyc. 1114. The act fixing the salary is not unconstitutional and the judgment should be reversed. 132 Ark. 245.

W. Hendricks, Judge; 1. No proper service was had upon appellant, and the court had no jurisdiction, as it was a fraternal beneficiary society of Illinois with its office in Chicago, and it never applied for a license and was never authorized to do business in Arkansas. Acts 1917, § 17, art. 462; 59 Ark. 593, 606-7; 218 U. S. 573; 197 N. Y. 279; 139 Am. St. Eep. 879; 251 Fed. 171; 204 U. S. 8, 21-2.

M. Balter, Chancellor; 1. Appellants ’ ancestor, Dan W. Fellows, had title, and the payment of taxes in Calhoun County did not set section 5057 of Kirby’s Digest in operation and bar appellants by limitation. The lands being in Calhoun County, the sale for taxes in Bradley County was void. 23 Ark. 370; 37 Cyc. 950; 79 Ga. 721; 9 Ohio 163; 68 Pa. St. 260; 103 Ark. 579; 37 Cyc. 951; 94 N. Y. S. 488.

B. Priddy, Judge; 1. The court abused its discretion in refusing the continuance and forcing defendant to trial. 107 Atl. 554; Fotmtain v. State, October Law Notes, pp. 123 and 107. 2. The court erred in refusing instruction No. 4 and the verdict is against the evidence. He was rushed into trial without a chance to procure his testimony. 1. The continuance was properly refused. The motions and overruling were not brought into the record by bill of exceptions. 2.

Francis Chancery Court; A. L. Hutchins, Chancellor; To recover, plaintiffs must show (1) receipt of the money by the bank, with knowledge of its trust character; (2) appropriation or conversion by the bank of the fund to a purpose contrary to the trust, as in this case, by a credit to the individual account of Mrs. Evans and by allowing same to be checked out until exhausted;' (3) that no settlement has been received by the wards from the guardian or any other person for…

Act 99, Acts 1919, is constitutional and 73 Ark. 243 does not apply. 2. It was not repealed by act No. 276, Acts 1919. 45 Ark. 90; 50 Id. 132; 68 Id. 130; 107 Id. 381. Act 99 is repealed by act 276, but, if not, it is unconstitutional. 110 Ark. 204; 117 Id. 54. The $50 paid the State for license and the 16 per cent, exacted by the county cover the same privilege and is double taxation and void.

Appellee filed a petition in the county court for the establishment of a road from her house across the land of appellants in order to get to another tract of land owned by her for the purpose of cultivating it. Appellants opposed the opening of the road on the route in question on the ground that appellee could obtain another road mostly on her own land and alleged that the opening of the road on the route in question would be a great inconvenience and loss to appellants.

Steel, Judge; STATEMENT of facts. This is an aotion in replevin by John C. Henderson against Alice Ellege to recover certain personal property.

“Open notorious possession” as applied to adverse holding of land by another means that the claim of ownership must be evidenced by such acts and conduct as are… Held: fenced and cultivated the land according to said line, the agreement was binding on them and all claiming under them. 23 Ark. 708; 71 Id. 248; 75 Id. 405. 2. An agreement may be inferred from long acquiescence and occupation according to such line and the parties are bound thereby. 23 Ark. 708;-75 Id. 405. 3.

M. Jackson, Judge; The court erred in sustaining the demurrer because (1) the allegations of the complaint showed title in plaintiff sufficient to maintain action. 53 Ark. 449; 79 Id. 544; 127 Id. 147; 191 S. W. 919; 15 Cyc. 95. (2) The complaint states facts sufficient to constitute a cause of action under Kirby & Castle’s Digest, section 5503; 25 Ark. 134; 27 Id. 55; 64 Id. 240; 105 Id. 307; 79 Id. 544. No demand for performance was necessary. 13 Ark. 69.

W. Clark, Judge; It was the duty of the buyer to furnish the cars. 45 N. E. 126; 27 Atl. 836; 123 Fed. 655; 133 Id. 409; 40 L. R. A. 534. See also 6 L. R. A. (N. S.) 928 and cases cited. But if not appellee at no time claimed failure to get cars as a violation or breach of the contract, but the claim was that Wiegel failed to furnish the rock as required by the contract.

Elliott, Chancellor; 1. The act is unconstitutional and void for many reasons. It conflicts with article 19, section 27, Constitution. It is unjust and arbitrary, as it includes a large territory it can not benefit and omits lands lying nearer and more contiguous, and the improvement is indefinite and uncertain. It also conflicts with article 7, section 28, Constitution. It usurps the jurisdiction of the county court. 89 Ark. 513; 92 Id. 93; 118 Id. 119; 118 Id. 294. 2.

V. Bourland, Chancellor; The letter of Miss Schulte obligated her to pay the full amount of the lumber bill for which the lien was filed. She knew that Foster owed the amount, and that a lien was filed against her property, and that there was a dispute between Foster and Boyer as to a certain payment.

Martillean-, Chancellor; The bill that passed the House and Senate was. not signed by the Governor, and the bill signed by the Governor did not pass the House and Senate. 41 Ark. 475; 72 Id. 569; 49 Id. 333; 83 Id. 465; 86 Id. 529; 71 Id. 541. The records show that every constitutional requirement with reference to the passage of the bill was met. The cases cited by appellant have no application.

W. Hendricks, Judge; 1. The promise was a collateral undertaking which created no debt until'demand for performance; and, demand having been made February 28, 1918, and refused, the suit is not barred by limitation. 4 Ark. 214; 9 Pick. (Mass.) 490. 2. Where the time of payment is not determined but remains to be fixed by one of the parties, a demand is necessary befor^ suit. 4 Ark. 533. 3.

The court erred in holding Jim Tisdale a competent juror and in changing its ruling and excusing him for cause for the purpose of restoring one challenge to appellants. Kirby’s Digest, § 2357. 2. It was error to hold that W. K. Woodcock was a competent juror. 135 Ark. 520. 3.

Shaver, Chancellor; 1. Even according to Mauney’s construction of the lease, there was no actual breach. The chancellor found no actual breach. Since the lessors failed to avail themselves of their right to value the diamonds, they can not be heard to complain of lessee’s failure to do so. 2.

R. Hayme, Special Judge; The court erred in sustaining the demurrer. The communication was not privileged; the charge was libelous; was published with malice and was false. Const. 1874, art. 2, § 6; Kirby’s Digest, § 1850. The demurrer admits all the allegations of the complaint. 42 La. Ann. 955. The language was slanderous per se. 1 Bibb (Ky.) 593; 90 Ark. 117-125. It is libelous to charge one with arson. 86 Ark. 56; 90 Id. 121; 55 Id. 501; 1 Marv. (Del.) 408.

B. Priddy, Judge; The only question is, did the court have jurisdiction? If it did, it erred in sustaining the demurrer. The contract of the purchase and the notes constituted one entire contract and the court had jurisdiction. 59 Ark. 186; 56 S. W. 374; 78 Ark. 490; 95 S. W. 804; 136 S. W. 177; 26 Ark. 240 ; 28 Id. 391; 49 Id. 320; 5 S. W. 339; 10 Ark. 326. The contract was not severable. 13 C. J., p. 564, par. 6, § 530; 10 Ark. 326; 140 S. W. 840; 59 Pa. Sup. 8.

M. Jackson, Judge; The testimony shows that the tobacco was wholly unfit for the use for which it was sold, and defendant had the right to rescind the sale, and this leaves only the question as to whether Neel should have returned it or whether it was the duty of Steptoe to have returned it according to his instructions from plaintiff,, his principal.

E. Dudley, Judge; The county court, July 12, 1917, established this district, No. 3, and “eliminated” the lands of appellants from the district. No appeal was taken and the judgment became final, and the lands could not afterward be included by extending the boundaries of the district and include a different route. The proceedings against appellants’ lands are void. 69 Ark. 587; 124 Id. 234; 64 Id. 108; lb. 555; Í23 Id. 383; lb. 389; 133 Id. 491; 123 Id. 205.

Martineau, Chancellor; The appointment of appellees as members of the board was illegal and void, as three of the old commissioners had not resigned, and there was no advertisement of the sale of the bonds and no competitive bidding. There was no vacancy on the board at the time the court appointed appellees. Act No. 279, Acts 1909, § 4; act 221 amending No. 279. Before removal of an officer, there must be notice and a hearing. ' 84 Ark. 551 and cases cited.

The judgment of the Tennessee court is valid and binding and the satisfaction of it constitutes a. compíete defense to appellee’s canse of action. 198 U. S. 215; 241 Id. 518; 174 Id. 710; 200 Id. 176; 240 Id. 620; Shinn on Att. & Garn., § 707; 12 Lea (Tenn.), 398; 90 Tenn. 161; 12 Tenn. (4 Yerg.), 461. 2. Appellee can not now rely upon the insufficiency of the garnishment service in the Tennessee court. Supra.

The oral agreement here was collateral to the written agreement, and did not vary nor contradict it, and is not within the statute of frauds. 10 R. C. L. 1037. Appellee granted the extension of time, and a strict performance of the contract was waived by him.

The attention of the court is called to the following decisions on the questions raised: 90 Ark. 272; 94 Id. 471, 493; 112 Id. 1. A forfeiture will not be declaxed except on compliance with the contract by the complaining party. 100 Ark. 565. Appellee can not.complain of the breach of the clearing contract because whatever was done and not done was due entirely to appellees’ conduct. 85 Ark. 596; 102 Id. 152. See, also, 15 Ark. 376; 22 Id. 258; 64 Id. 228.

A. Dickson, Judge; statement of facts. Appellee, as local registrar of District No. 69, in Carroll County, Arkansas, filed in the county court on April 7,1919, his claim against Carroll County for $40.50 for services rendered in regard to registering* the births and deaths for said district during the year 1916. The claim was disallowed by the county court, and appellee appealed to the circuit court, where the claim was allowed and ordered paid.

Haynie, Judge; STATEMENT OE FACTS. T. L. Tennison, trustee of the estate of Scott Bros., bankrupts, brought this suit against J. D. Hanson to recover damages for an alleged breach of two contracts for the sale of cotton. This is the second appeal in the case. On the former appeal the judgment of the circuit court was reversed because the court erred in directing a-verdict for the defendant. Tennison v. Hanson, 136 Ark. 266.

P. Hem derson, Chancellor; STATEMENT OF FACTS. The plaintiff, J. E. Harris, purchased a farm consisting of eighty acres of land from the defendant, W. A. Fleming, received a deed, and paid the whole amount of the purchase money. This suit is brought to rescind the contract of sale on the ground that it was procured by false representations.

H. Evans, Judge; The plaintiff alleged she had a legal contract to teach a four months’ school in district No. 36. Defendants denied this. This made an issue to be tried by a jury. The court erred in taking the issue from the jury. 91 Ark. 335; 105 Id. 106. The court erred in its instructions and in its modifications of defendant’s prayers.

The land was ancestral and not a new acquisition and the intestate had never abandoned it as a homestead. 71 Ark. 594; 54 Id. 11; Thompson on Homesteads, § 2251; 33 Ark. 399; 31 Id. 145; 29 Id. 280; 41 Id. 94. If John C. McElwee abandoned his homestead in 1911 his widow could not re-establish after his death by moving back on it after his death. Cases supra; 101 Ark. 296; 107 Id. 535; 73 Id. 266; 104 Id. 637. 2.

W. Smith, Judge on exchange; 1. There is -no evidence that it was within the scope of J. A. Carr’s authority to pledge the credit of the Arkadelphia Milling Company for goods furnished to defendant, W. W. Brown, by Green. 105 Ark. Ill; 132 Ark. 155; 31 Id. 212. 2. The evidence establishes conclusively that plaintiff Green did not look solely to Arkadelphia Milling Company in the first instance for payment but rather as surety. 102 Ark. 435. 3.

Clark, Judge; 1. The verdict is against the law and the evidence, as the heef was not identified as the one lost or stolen. 25 Cyc. 123; 8 Enc. of Ev., p. 136; 171 S. W. 89. 2. The court erred in its instruction to the jury. It was inherently erroneous and highly prejudicial. 110 Ark. 117; 101 Id. 586. 3. The court erred in its instruction as to larceny. It assumes that there was evidence before the jury tending to prove material facts.

Steel, Judge; 1. The appellee forfeited Ms right to recover by failing to pay his last assessment and by including the .Redding property in his application and policy, as it was not owned by him on January 1, 1917, when the policy became effective. The court erred in admitting evidence. 94 Ark. 594; 67 Id. 553; 94 Id. 594; 71 Id. 292; 71 Id. 294; 63 Id. 201-2. 2. The instructions are erroneous.

II. Evans, Judge; The photograph taken two months after the injury was not admissible in evidence. 48 Ark. 460; 118 Id. 50. The court erred in excluding the evidence of Keyton and Davis in rebuttal and the verdict is against the law and the testimony. 1. The photograph was properly admitted in evidence. 73 Ark. 183; 80 Id. 528. 2. The testimony in rebuttal was properly excluded, as it was not competent. 116 Ark. 125; 121 Id. 233. The evidence was cumulative merely. 3.

A. Dickson, Judge; 1. The court erred in„ overruling the motion for continuance on account of the absence of a material witness. Defendant had used due diligence to procure the attend-, anee of the witness. 100 Ark. 301; 110 Id. 251; 129 Id. 299; 140 S. W. 8. 2. The court erred in manifesting an interest in the trial by taking charge of and examining defendant while on the stand. 3.

The verdict on the first count is wholly without legal testimony to sustain it and the burden was on appellee. The verdict was the result of passion or prejudice. .Conscious suffering for any length of time was not proven. 68 Ark. 1. 2. If the proof shows conscious pain and suffering the verdict is excessive. 3. The court erred in giving instruction No. 4 and in refusing appellant’s instruction No. 5. 69 Ark. 134; 82 Id. 499; 96 Id. 206. 4.

Haynie, Judge; 1. Appellant owed no duty to make and keep his premises safe from plaintiff’s trespassing cattle and the court erred in giving the first instruction on its own motion. It is misleading and prejudicial. 2. The court erred in giving plaintiff’s seventh instruction. 3.

Under the allegations of the complaint the court had no jurisdiction. It should have been brought at law in the circuit court. Injunction will not lie to prevent even a trespasser from cutting timber where the complaint does not state facts sufficient to show an irreparable injury to the freehold itself and defendant’s insolvency. 67 Ark. 413; .75 Id. 286; 77 Id. 527; 81 Id. 115; 92 Id. 118. Chancery had no jurisdiction and appellant was entitled to a jury trial.

Prairie Circuit Court, Southern District; George W. Clark, Judge; 1. Appellee was an independent contractor and not a servant. 26 Cyc. 970. 2. The court erred in its oral chargé to the jury. The excuses urged by appellee do not legally justify his admitted partial failure to comply with his contract. 13 C. J. 639-640; 112 S. W. 134; 158 HI. App. 468; 21 L. R. A. 645. Under appellee’s own testimony appellant was entitled to judgment on the counterclaim.

W. Hendricks, Judge; 1. The note was an installment note payable for ten months from date and the withholding of 10 per cent, per annum for the full time was usurious. 2. The note was not commercial paper and not within the exception allowing 10 per cent, interest to be taken in advance; and, 3.