Volume 144 — Arkansas Reports

E. L. Johnson, Judge; 1. The court erred in holding the lalce in question to be included in the terra “waters of this State.” This was a private lake or pond, and the State had no right or title to the fish in a private lake or pond and' no right to regulate the taking of fish in such. Especially is this so where the lake is in no way connected with any other body of water.

These, taken with the evidence of Coffer and R. A. Schmidt, show that appellants never intended to pay or assume appellee’s debt, but the only agreement entered into, or intended, was to protect the property against liens or claims which mlight become liens by suit or otherwise.

Coleman, Judge; 1. Appellee ordered the car October 9, 1918. It was placed for him at Bradford on that date. This was a compliance with the order and he can not recover. In the absence of an agreement to provide cars at a particular time a carrier is obligated to exercise only due diligence to furnish freight cars within a reasonable time.

V. Bourlamd, Chancellor; It was clearly understood by all parties where the dividing line between Sparks and Beneaux was to run and defendants should not be allowed to profit by their own wrong, and the cause should be reversed, so that maps testified from but not introduced, and the evidence of defendant, Woodruff, be introduced to the end that justice be done to all parties.

Chancery Court; Lyman F. Reeder, Chancellor; STATEMENT 0E EACTS. Ethel Alton Myers brought this suit in. equity against J. A. Wheatley and United States Fidelity & Guaranty Company to surcharge and falsify the final account-current of J. A. Wheatley as her guardian. It appears from the record that J. A. Wheatley, as guardian of Ethel and Jesse Alton, minors, filed two annual accounts current with the probate court showing the state of his accounts as guardian of said minors.

V. Bourland, Chancellor; The act is not unconstitutional and void. 33 S. AY. 93; Kirby’s Digest, §§ 7638, 6743, 7684; 113 Ark. 19; 95 Icl. 26. Voorhees on Law of Public Schools, p. 74. The Legislature has the power to authorize school boards to maintain in connection with the free school grades other grades or schools and charge tuition to pupils in non-free grades.

During the year 1918, two separate petitions were circulated in the city of Morrilton for the establishment of Wo improvement districts designated respectively as Street Improvement District No. 1 and Street Improvement District No. 2. District No. 1 was organized for the purpose of paving certain streets within the city of Morrilton, and District No. 2 for the purpose of constructing ■gutters and curbs upon the streets that were to be paved in District No. 1.

Martineau, Chancellor; STATEMENT OF FACTS. This litigation arose out of prior litigation in which one Robert Tucker was declared to be a trustee for the benefit of himself and the other heirs of his mother and certain land held by him in trust was ordered sold for the purpose of partition.

Reeder, Chancellor; 1. According to the finding of the court below the lumber replevied belonged to appellant. They had bought it, inspected it, taken possession of, tagged and insured it. It was their property and if it had been fully paid for appellant would be entitled to judgment against appellee for its full value.

<p>Appeal from Yell Chancery Court, Dardanelle District; Jordan Sellers, Chancellor;</p>

It was error to- overrule the petition for removal filed by defendant Malone to the Federal court. The petition was properly verified and a bond in proper form offered. 50 Ark. 388; 75 Id. 116; 87 Id. 136; 29 U. S. (Law. Ed.) 962; 33 Id. 144; 51 Id. 430; 30 Okla. 235; 122 IT. S. 514; 108 Id. 561; 111TJ. 358; 130 Id. 230. 2. The testimony is insufficient to sustain the finding that the defendants mined, or caused to be mined, the pillars of coal in the plaintiff’s mine.

B. Sorrells, Judge; 1. The court erred in refusing to permit the defendant to introduce in evidence on cross-examination of the prosecutrix the photograph of the prosecutrix and when it was taken. The photograph was admissible in evidence to prove the age of the prosecutrix. 135 Ark. 350. 2. The record of the charge preferred in the magistrate’s court was admissible in evidence.

Shaver, Chancellor; 1. The deed relied on by appellee did not retain a lien on the land, nor contain facts sufficient to put a subsequent purchaser on notice that a part of the purchase price remained unpaid. Where the granting and habendum clauses in a deed are irreconcilable, the habendum clause must yield to the granting clause. 92 Ark. 324. 2.

The verdict and judgment are not sustained by sufficient evidence. Fraud and deceit were not proved, but, admitting fraud and deceit as alleged, plaintiff would not be entitled to recover unless he showed a loss, and not then if, with full knowledge of the facts, he entered into a written contract, on his own motion, to settle the whole matter, which was accepted and carried out by him and proposed and written by his own counsel. 12 R. C. L., p. 413.

Elliott, Chancellor; 1. The injunction was wrongfully issued, (1) because no affidavit was made to the complaint; (2) the allegations and proof show that no injunction should have been issued, and (3) the whole transaction shows fraudulent effort to cancel the DuFresne contract. Kirby’s Digest, § 3969; 15 Ark. 264.

Elliott, Chancellor; The decree of confirmation in favor of J. W. Benson in 1912 was valid and legal and defendants (appellants) are the owners of this land. Appellee has not shown such a state of facts as entitles him to attack the • decree of confirmation. Chap. 25 of Kirby’s Digest. All presumptions are in favor of the validity of a decree of a court of competent jurisdiction. 101 Ark. 395.

B. Priddy, Judge; STATEMENT OR PACTS. Tennie B. Pool sued J. M. Gordon, administrator of the estate of Henry Haynes, deceased, to recover $200, the amount of -a note alleged to belong to her and which she claims the defendant converted to his own use. The defendant, filed an answer, denying the allegations of the complaint. The facts are as follows: Henry Haynes married the mother of Tennie B. Pool.

H. Dudley■, Judge; STATEMENT OP PACTS. The plaintiff, G. H. Hammond Company, alleges in its complaint that it is a Michigan corporation duly authorized to do business in the State of Arkansas; that on the 6th day of May, 191$, the defendant, Joseph Mercantile Company, a domestic corporation, took into its possession and converted to its own use 1,165 pounds of bacon extras belonging to the plaintiff and of the value of $308.10.

Clark, Judge; STATEMENT OP PACTS. Harriet A. Arthur sued the Sovereign Camp Woodmen of the World to recover the sum of $1,000, the amount of a benefit certificate issued upon the life of her son. The certificate was issued to Joe 'B. Arthur on the 1st day of April, 1913, and his mother, Harriet A. Arthur, was named as the beneficiary in the policy. Joe B. Arthur died from a gunshot wound inflicted by C. T. Herrick about the 1st of December, 1918.

McMahan, Chancellor; The agreement was without consideration and, being in parol only, is within our statute of frauds and void. Kirby’s Digest, § 3892, subd. 4 and 5; 54 Ark. 519. Appellant (1) has failed to establish title in herself; (2) she did not aptly plead the statute of frauds and (3) she is bound by the equitable estoppel and the decree should be affirmed. She did not come into equity with clean hands.

The policy was void ah initio because of false warranties and material misrepresentations. 58 Ark, 528; 72 Id. 620; 84 Id., Fid. Ins. Go. y. Beck; 90 Ark. 264; 96 Id. 499; 104 Id. 538; 120 Id. 605; 135 Id. 65. 2. The case should be reversed for a new trial. It was positively proved and undisputed that Doctor Mat-lock was a continuous user of intoxicating liquors.

The proof clearly shows that plaintiff “jumped through the open door of the vestibule” and that the door was open when plaintiff jerked loose from Knight and leaped from the train. The proof clearly warrants the conclusion that members of the crew left the door open, and the question of negligence should have been sent to a jury.

Coleman, Judge; 1. The motion for continuance should have been granted. 67 Ark. 144. 2. It was error to permit the witness, Gossett, to be asked and answer questions as to the condition of the ripsaw after the accident and as to whether the divider was in the machine at the time. 82 Ark. 561. It was also error to allow plaintiff to prove that appellant repaired the edger .after the accident. Such proof is incompetent. 70 Ark. 183; 78 Id. 147; 79 Id. 388; 108 Id. 489. 3.

H. Dudley, Judge; Under the evidence adduced appellee became a bailee for hire and held to the highest degree of care to care for the 'cotton. This case is controlled largely by 134 Ark. 76. As to the degree of care required, see 3 R. C. L., p. 23. The finding and judgment should be reversed and judgment entered here for appellant. 103 Ark. 15.

Francis Circuit Court; J. M. Jackson, Judge; 1. This is the second appeal in this case. 138 Ark. 370. There was no burden on appellant to show that it had sustained substantial damages as the result of wrongfully turning down a merchant’s check. When it is shown that a check is wrongfully dishonored, a prima facie case is made. The testimony shows that no substantial damages was suffered by plaintiffs by reason of the failure of defendant to pay the checks.

<p>1. Appeal and error—final judgments.—Appeals lie to the Supreme Court only from final judgments of the circuit and chancery courts.</p> <p>2. Appeal and error—sufficiency of judgment appealed prom.— The sufficiency of a judgment to support an appeal depends upon its substance, and not upon its mere form, and the judgment may be shown inferentially by the language of the entry.</p> <p>S. Appeal and error—finality of judgment appealed from.—In an action on a note, an entry on record reciting the return of the verdict for plaintiff, its acceptance by the court, and the . order overruling the motion for a new trial, shows a final determination, from which an appeal will lie.</p>

Court; John E. Martineau, Chancellor; reversed in part; The chancellor should have entered an order wwnc pro time on the motion making a finality of the case where it was first heard that in order for any suit to be before the court it should be necessary to file a new complaint, as the first one was dismissed and denied by the chancellor.

Steel, Judge; 1. A close inspection of the record discloses no error in the instructions. The question of the mediate or immediate cause of the death of the deceased was properly covered by instructions Nos. 11 and 14 and the refusal of that asked was not prejudicial. 2. There was no error in the admission of evidence of R. H. Johnson or Georgiana Owens or Ebbie Crofton and the evidence fully sustains the verdict.

M. Jackson, Judge; The court erred in giving instruction No. 1 for the State, as the testimony is conclusive that the order was destroyed by the appellees. Act No. 81, Acts 1913, § 137; 126 Ark. 257.

Original application for prohibition to Craighead Circuit Court, Lake City District; R. H. Dudley, Judge; The writ of certiorari is restricted to reviewing a judicial or quasi judicial act, and injunction or some other remedy would be available to correct an error in the performance of a legislative, executive or administrative act; and, since the assessment of benefits is a legislative or administrative act, the circuit'court was without jurisdiction to correct any error as…

M. Jackson, Judge; 1. At the request of the owner the premiums on the life policy were made payable quarterly instead of annually, and the policy was made payable to the wife (appellee). No such change was made in the health policy. The onus of establishing the payment of premiums due under the terms of the policy was on the plaintiff, and the evidence shows that the policy had lapsed. It was error prejudicial to refuse the postponement of the case. 2 Ark. 33; 10 Id. 527. 2.

B. Priddy, Judge; 1. Plaintiff, as a reasonable person, must have known it was extremely hazardous to cross the street at the time and in the manner she did and as the evidence shows. The doctrine of contributory negligence is well established by our authorities. It was prejudicial error to refuse instruction No. 4, asked by defendant, also Nos. 3 and 21. The evidence fully and clearly proves contributory negligence. 2. The damages are excessive.

M. Shinn, Judge; The lumber and timber when severed from the soil was personalty and the lumber he purchased from Lavender in good faith and appellee had no lien. 91 Ark. 218; 76 Id. 273'; 136 Ark. 190. The court erred in its instructions. 194 S. W. 95. They are in conflict and irreconcilable. 74 Ark. 437; 76 Id. 224; 88 Id. 550; 95 Id. 377; 104 Id. 67; 110 Id. 197. 1.

B. Scott. Special Chancellor; 1. Chancery cases on appeal are tried de novo. 197 S. W. 1160; 188 Id. 1160; 125 Ark. 364; 93 Id. 394; 79 Id. 577; 99 Id. 218; 125 S. W. 422; 96 Id. 134; 138 Id. 978. The findings of the chancellor are persuasive only. 2 R. C. L., pp. 203-4. 2. The findings of the chancellor are clearly against the preponderance of the evidence and the decree should he reversed. 34 Ark. 212. 3.

Shaver, Chancellor; STATEMENT 0E EACTS. W. I. Pumphrey brought this suit in equity against Nathan Furlow to recover the sum of $1,044.32 which he alleges he was fraudulently induced to overpay the defendant for the purchase price of a tract of land and to have said amount declared a lien on the land. The defendant filed an answer denying all the material allegations of the complaint.

Haynie, Judge; STATEMENT OE EAOTS. C. C. Sparks brought this suit against the Kansas City Southern Railway Company and Walker D. Hines, Director General of Railroads, under the Federal Employers’ Liability Act to recover for personal injuries sustained by him while engaged in the work of track repairing. At the time Sparks was injured, with other servants of the railroad company, he was engaged in taking up old rails from the track and laying new rails.

L. Westbrook, Special Judge; STATEMENT OF FACTS. Appellees brought this suit in equity against appellants to enjoin them from proceeding further in the construction of a road under Act No. 104 of the General Assembly of the State of Arkansas, approved February 7, 1920, entitled an Act to Create the Ozark Trail Road Improvement District No. 2.

Haynie, Judge; 1. A verdict for defendant should have been instructed for defendant on its plea of contributory negligence. 136 Ark. 249; 137 Id. 13. It is the duty of every traveler approaching a railroad crossing to look and listen for trains, and, if necessary, he must stop. 83 Ark. 62 and cases supra. It was error to give plaintiff’s instruction No. 5. 78 Ark. 55. 2. There was no negligence on the part of def endant.

P. Henderson, Chancellor; 1. The district has no right to purchase the light plant. In view of the allegations in the complaint and the admissions and allegations in the answer, the purchase of the light plant was not abandoned; there is no evidence that the purpose was abandoned. 2. Thg improvement district can do nothing unless given authority by the Constitution or statute. Art. 9, § 27, Const.

Mc-Mahan, Chancellor; 1. The chancery court had no jurisdiction, .as appellee had a complete and adequate remedy at law. 93 Ark. 269; 81 Id. 51; 48 U. 514; lb. 332-3; 63 Id. 323. 2. No notice of the appointment of a curator is required. 82 Ark. 331; 93 Id. 104; 97 111. 338; 37 Am. Rep. Ill; 96 N. Y. 525; 51 Wis. 587; 21 Cyc. 29; 154 Mass. 378; 38 Mich. 210; 81 Minn. 370; 63 N. H. 614; 52 Minn. 140. Notice to the mother, who was curator, was sufficient. 3.

G. Hammock, 'Chancellor; ” All the attacks by appellee on the various provisions of act 237 are without merit and the act ought to be held valid and the decree should be reversed and the injunction dissolved. 15 R. C. L. 523-4; 16 L. R. A. 737; 17 Ore. 640; 5 L. R. A. 115; 120 Ark. 277; 36 Cyc,1102. The court properly granted the injunction.

H.oynie, Judge; The claim was not in proper form and not itemized as required by law and the evidence did not support the finding and judgment against the county. Kirby’s Digest, § 1454; 51 Ark. 524; 50 Id. 431. No objection was raised that the claim was not itemized. The claim referred to the pages of the fee book and was properly before the county and circuit court. 70 Ark. 607.

Francis Circuit Court; J. M. Jackson, Judge; The execution of the order was clearly an issue of fact for the jury, and it was error to direct a verdict. 70 Ark. 230; 61 Id. 442; 66 Id. 363; 63 Id. 74; 62 Id. 63.

R. Haynie, Judge; According to the undisputed evidence, there can be no recovery under the first clause of the policy, because appellee’s disease was not sufficient to compel him to remain strictly and continuously within the house. He was not continuously confined to his house by the disease within the meaning of the policy. The court erred in withdrawing the case from the jury. 99 Me. 390; 59 Atl. 535; 135 Mich. 439; 97 N. W. 966; 104 N. W. 734; 47 Pa. Sup.

B. Priddy, Judge; The complaint stated a cause of action and the demurrer admits all its averments. The contract was partly performed, and defendants'were bound in law to fulfill and complete the same. The general agent at Dardanelle had the same right to make the contract that the home office had. The demurrer should have been overruled and defendants required to answer. 20 L. R. A. 289; 76 Ark. 183.

A. Dickson, Judge; 1. This is the second appeal in this case. 136 Ark. 332; 206 S. W. 678. The law was settled on the first appeal and the pleadings and issues are the same. . The evidence here does not support the verdict. 46 Ark. 141; 2 Id. 360; 5 Id. 407; 6 Id: 86; 26 Id. 309; 70 Id. 385; 34 Id. 632; 16 Cyc. 1073; 118 Ark. 349. The mortgage introduced was clearly inadmissible in evidence. 32 Ark. 337, 16 Cyc. 1087.

M. Jackson, Judge; The court erred in directing' a verdict for appellee. There was a case made for a jury under proper instructions, and the judgment should be reversed for a new trial before a jury under proper instructions. 1. The appeal should be dismissed for failure to comply with rule 9 by appellant, as he has not made a proper abstract. 2. Wilsons made a tender of the amount due appellant, which was refused. No proper exceptions were saved to the instructions.

H. Hollemm, Special Judge; 1. It was not the duty of the landlord to keep the fence in repair, as there was no agreement to do so. 16 R. C. L. 1030, § 552; 33 L. R. A. 449 and notes; 72 Ark. 405; 63 Id. 430; 18 A. & E. Ene. L., vol. 4215 and 246, § 2; 16 R. C. L. 1033, § 553. 2. There was error in admitting testimony as to “custom” relative to upkeep and repairs. 18 A. & E. Enc. 217; 210 S. W. 626; L. R. A. 1917 P. 997; 33 L. R. A. 451, notes; 65 N. W. 913.

Ilayme, Judge; 1. Even though plaintiff did agree to trade the car for the land, he rescinded the sale, and had a right to rescind for fraudulent misrepresentations as to the value of the land that were material and that he acted upon them and was injured. Defendant knew his representations were false and fraudulent. 123 Ark. 492; 52 Id. 30. 2. Defendant obtained the land under false pretenses.

Francis Circuit Court; J. M. Jackson, Judge; STATEMENT OE PACTS. The report of George P. Taylor, as county treasurer, was approved by the county court, and at the same term W. A. Spivey and others, as school directors of a common school district in St. Francis County, filed objections to his report on the ground that it failed to show an amount of money which he had received belonging to said school district.

Martinecm, Chancellor; STATEMENT OF FACTS. On the 19th day of May, 1919, J. E. Lightle brought suit in equity against Sidney W. Schmidt to enforce the specific performance of a written contract for the sale of a tract of land in White County, Arkansas, and a lis pendens notice was filed under the provisions of section 5149 of Kirby’s Digest. J. S. Booth filed an intervention and claimed to he an innocent purchaser for value of the land in controversy.

B. Baker, Judge; This is the second appeal in this case. 214 S. W. 17. The judgment on this appeal should also be reversed, because the testimony of the administrator shows that- he testified to a conclusion and not to facts within his own personal knowledge. The whole of Wall’s testimony was incompetent. 214 S. W. 23; 213 S. W. 4.

Mar-tine.au, Chancellor ; 1. The contract in this case created a mortgage in equity. 85 Ark. 211; 66 Id. 170. 2. The precipitating or accelerating clause is binding on the parties and valid. 73 Ark. 415; 29 Id. 346; 66 Id. 367; 68 Id. 314; Elliott on Contracts, § 3517. 3. Plaintiff had the right, on account of the admitted default, to declare the whole amount due and have judgment for the total sale price and a foreclosure.

Steel, Judge, on exchange; 1. There was error in the instructions given for plaintiff and in refusing those asked for defendant. No. 1 for plaintiff was abstract and prejudicial. 87 Ark. 471, 243; 135 Id. 330. Instruction No. 2 for plaintiff ignores the testimony of the plaintiff himself that he understood that when the promise was made by the foreman to repair the machine that the repairs would be made by Monday morning. 2.

Martineau, Chancellor; 1. The allegations of the complaint are wholly unsustained by the testimony. 134 Ark. 81-91. 2. No undue influence was proved. 78 Ark. 420; 49 Id. 367-371; 107 Atl. 537-9; 17 A. & E. Anno. Cases 984, note, 986. Mere failure of consideration without fraud or mala fides is not sufficient in equity to obtain a rescission of an executed contract. 4 R. C. L. 500'.

Under the agreed statement of facts appellants (plaintiffs below) were creditors of P. C. Ford and entitled to full payment of their respective debts before interveners could participate, because the garnishment was served long prior to the time of the intervention. Kirby’s Digest, § 360; 56 Ark. 275; 39 Id. 97; 60 Id. 394; 68 Id. 275. 1.

Martineau, Chancellor; 1. The contract to convey is fully established by the evidence and defendant made a gift of the property to appellant and she was entitled to specific performance. Authorities will be cited in oral argument. 2.

M. Shinn, Judge; The evidence was not sufficient to sustain the verdict and the court erred in permitting appellees to make proof of the amount of lumber manufactured according to a different basis than that specified in the contract. The questions of law are elementary. The. court declared the law correctly in instruction Ño. 3 for defendants but misled the jury by allowing plaintiffs to introduce the pretended log scale.

E. Evans, Judge; 1. The court erred in sustaining the motion to quash. 216 S. W. 5. 2. The court erred in sustaining the demurrer of defendant. The complaint was sufficient and stated a cause of action. Act 447, Acts 1911, amending act No. 53 of 1913. The act is constitutional and valid. 2 Elliott on Railroads, par. 668; 3 Id. 1102, 1184-5; 11 L. R. A. 285.

B. Priddy, Judge; STATEMENT OR RAOTS. Amos B. Bates,' administrator of the estate of Alvin S. Bates, sued the Security Life Insurance Company of America to recover on a policy of life insurance for $2,000. The company defended on the ground that the policy had been forfeited because the insured had not complied with the War Clause contained in it.

Shaver, Chancellor; It is apparent from the testimony that the minds of the parties never met and that there was in reality no contract. 85 Ark. 4. The contract was not in writing and within the statute of frauds. Ib. In no event was appellee entitled to specific performance, as the terms of the contract are not established with exactness nor the clear intent of the parties. 36 Cyc. 589; Pomeroy on Spec. Perf., par. 159.

M. Jackson, Judge; 1. Plaintiff was permitted to recover upon a cause of action entirely different from the- one stated in the complaint. The rule as to amendments, so as to correspond to the testimony, does not apply, as plaintiff’s witnesses testify that no goods were sold, and if sold they were of no value. 75 Ark. 465; 102 Id. 20; 109 Id. 206, 217-18. The amendment was improper. 67 Ark. 142; 124 Id. 229. 2.

E. Dudley, Judge; The act and district are void because of the uncertainty of the description of the boundary line. 105 Ark. 392; 122 Id. 191; 130 Id. 70. The Legislature has no power to change the boundaries of school districts, and the act is void. Appellant's have failed to abstract the evidence, *and the judgment should be affirmed. 131 Ark. 362.

Martineau, Chancellor; The deeds were obtained by undue influence and on a promise to reconvey. Appellee is a self-constituted and self-confessed trustee, and stood in a fiduciary capacity, and the court erred in not canceling the deeds. 43 N. E. 336; 6 Cyc. 335, 681; 186 Pa. St. 314; 29 Cyc. 657; 102 Ark. 232; 12 Peters 241; 173 U. S. 17; 1 Black on Resc. & Can. 659; 18 A. & E. Anno. Cases 538; 51 So. Rep. 321; 1 Black on R. & C., pp. 667, 633.

The court erred in not directing a verdict for the Western Coal & Mining Company. The evidence failed to show the relation of master and servant between it and plaintiff. The company had no right to select the employee, or remove or discharge him, and no right to direct what work he should do nor the way and manner it should be done, the relation of master and servant did not exist between them and the Western Coal & Mining Company was not liable. 20 A. & E. Ene.

McMahan, Chancellor; The representations made by appellee were false and fraudulent and known by him to be so. 101 Ark. 95-100; 182 S. W. 128; 24 F. Y. Supp. 333; 115 N. W. 1111. Appellant has not abstracted the testimony, and the cause should be affirmed.

The notes were rent notes and not taxable. 92 Ark. 324; 122 S. W. 1002; Kirby & Castle’s Digest, § 6902. It is clear this was not a sale but a mere lease. 6 A. & E. Ene. L., p. 500, .par. 4-5; 22 Wyo. 336; Am. Ann. Cases 1917 C. 120; 76 Ark. 378. Under the contract a mere lease and rent notes were executed and the rent notes are not taxable and the court erred in sustaining the demurrer.

W. Smith, Judge; The law of this case is settled in 128 Ark. 129, and the court erred in its order of dissolution when it attempted to recreate the common school districts which had been absorbed in Rural District No. 11, because the petition does not contain a majority of the qualified voters of the entire district and because the judgment is contrary to the law as announced in 128 Ark. 129.

W. Clark, Judge; 1. There was no proper service on the appellant, a corporation organized and doing business under the laws of Arkansas. The case in 115 Ark. 272, is not in point. The motion to quash the service should have been sustained, as the court obtained no jurisdiction.

B. Sorrells, Judge; STATEMENT OE FACTS. This is a proceeding by Edith Jenkins and John Brunson Jenkins, Jr., minors, by their next friend, N. T. Jenkins, to be allowed to appeal from the probate of the will of P. 0. Jenkins, deceased. As grounds therefor, they allege that they are children of Brunson Jenkins, deceased; that Brunson Jenkins and P. G-. Jenkins were brothers; that Brunson Jenkins died before P. GK Jenkins; that the will of P. Gr.

•Appeal from Mississippi Chancery Court, Chickasawba District; Archer Wheatley, Chancellor; STATEMENT OE EAOTS. On the first day of August, 1916, Mrs. S. B. Driver sued C. B. Rodgers and others to recover judgment against them for the sum of $1,650 and to foreclose a vendor’s lien on certain property which had been sold to the defendants by O. R. Lilly.

On .June 15, 1918, P. J. Murphy, a resident of Hot Springs, Arkansas, died there, leaving surviving him his widow, Minnie Murphy, and some collateral heirs, but no lineal descendants. After his death a search was made for a will, but none could be found. In the latter part of January, 1919, Mrs. Minnie Murphy went to South Dakota on business.

G. Ecwnmock, Chancellor; STATEMENT oe pacts. Appellees brought this suit in equity against appellant to enforce the specific performance of a contract for the sale of certain land and personal property by C. M. Simpson to R. M. Fletcher. The complaint alleges that appellant is insolvent, and that the property is being neglected and deteriorating in value.

W. Leslie, Special Chancellor; According to the law and undisputed facts defendants either took possession of the six acres as tenants at will of the plaintiffs or they took same against their will, and in either event they were tenants at will of plaintiffs or they took forcible possession and unlawfully detained the same and they can not dispute plaintiff’s possession as long as they held the possession and could only do so after surrender.

H. Dudley, Judge; 1. There was no evidence in the record to base the interrogatory propounded by the court to the jury, and the peremptory instruction requested by defendant should have been given. The court erred in allowing W. H. McCullar to testify in reference to sending his wife $50 and instructing her to pay the premiums on her insurance policy in advance.

W. Smith, Judge; 1. There was no legal evidence to support the verdict. 25 Ark 49; 42 Id. 528; 103 Id. 58; 219 S. W. 323. 2. It was prejudicial error in refusing to permit defendant to show the actual cost of delivering the logs in controversy 'and that the cost of delivery was to be actually more than plaintiff was to be paid. The question was proper.

Steel, Judge; 1. Plaintiff at the time of his injury was not engaged in interstate commerce, and hence not entitled to recover under the Federal Employer’s Liability Act, and the judgment based on that act should be reversed. 232 IT. S. 248; 218 Fed. 748; 233 IT. S. 473; 241 Id. 177; 238 Fed. 95; 253 Id. 736; 261 Id. 760; 159 N. W. 14; 157 Id. 616; 154 Id. 516. 2.

B. Baker, Judge; 1. Appellants were entitled to a lien and the administratrix was personally liable. K. & C. Big., § 225, Acts 1913, p. 511, has not changed the rule in 61 Ark. 410, 33 S. W. 530. 2.

W. Hendricks, Judge; 1. The court erred in holding that appellees were not jointly indebted to appellant in the sum of $250 and interest. There was novation because the assent to hold Oilar-Overland Company solely and release E. B. and J. B. Ross is lacking an essential to a novation. 125 Ark. 9. The Rosses are liable and so is the Oilar-Overland Company. 9'3 Ark. 346; 46 Id. 132 ; 91 Id. 367; 31 Id. 155; 6 R. C. L. 890 (ff); 13 C. J. 705 (ff); 65 Ark. 29; 121 Id. 414-418.

Elliott, Chancellor; Act 612 evidently proceeds under the theory that tlie property of a telegraph company is real estate and assessable for improvement taxes, but it is personal property and not taxable for local improvements. 129 Ark. 542; 119 Id. 254; 121 Id. 105. The telegraph company has only a lease' for a term of years, revocable in the manner designated in the contract.

A. Dickson, Judge; 1. The judgment of the circuit court is not supported by the evidence. The funds paid into court were paid to the bank to the credit of appellant, pursuant to its contract with Cloe and Peeler, with express directions when said funds were paid over. The funds belonged to appellant, and there, is no testimony to show that appellant owed anything to either of the appellees.

The court erred in quashing the summons. 143 S. W. 483; 140 Fed. 921; 29 Ohio St. 611; 30 Ark. 536; 35 Id. 276. 2. It was error to dismiss the intervention of the intervener. 102 Ark. 380. If the complaint failed to state a -cause of action, demurrer was the proper remedy. Kirby’s Digest, § 6093. If the allegations were imperfect or defective, the remedy was by motion to make more definite and certain. 133 Ark. 188.

82, Acts 1920, is void, as it is contradictory to the terms of section 4 of the same act, and because it provides for an arbitrary and unjust assessment on the property of appellant. 125 Ark. 422; 130 Id. 410. The commissioners are attempting to exceed their authority. 1. There is no contradiction between § 4, act 82, Acts 1920, and § 6 of said.act.

Wacle, Judge; 1. The alleged confession of appellant should not have been admitted in evidence. 1 G-reeleaf on Ev., §§ 219, 219a; 50 Ark. 305. Here the confession was obtained by beating and whipping in a most cruel and unmerciful manner. Improper influences used to extort a confession are presumed to continue unless shown to have been removed. 18 L. R. A. (N. S.) 832; 69 Ark. 599. There is no evidence that they were removed here. 2.

B. Priddy, Judge; The trial court should have granted appellant’s motion for a directed verdict, as there was no evidence for a jury. 14 R. C. L. 747; 132 Ark. 54.

The appellee has no insurable interest in the life of her cousin. She was not dependent on Sally Cox, but simply was her cousin and paid the premiums. The policy was void—nothing but a wagering contract, and against public policy. 33 L. R. A. (N. S.) 949; 98 Ark. 52; 105 Id; 281. The statements in the policy were warranties of their truth, and the evidence shows her statements as to her age were false, as also other material statements. 103 Ark. 202; 111 Id. 554.

Clark, Judge; 1. This suit is the result of the car shortage in the fall of 1916, caused by the unprecedented movement of freight to the seaboards by reason of the war.

The contract was not void for uncertainty as to the period of its duration. The contract does not fall within that class of contracts which are held void for uncertainty of duration. The date of its beginning is fixed definitely and an event which must inevitably occur is specifically mentioned for its termination. 9 Cyc. 250; Coke, Litt. 45; 6 Coke 35; 21 111. App. 189; 6 R. C. L. 647; 78 Am. St. 914; 69 S. W. 552. 1.

Elliott, Chancellor; STATEMENT OE EACTS. Gr. W. Pearman brought this suit in equity under that part of chapter 25 of Kirby’s Digest relating to the confirmation of tax titles. Anna Pearman was allowed to file exceptions to the petition on the ground that she resided on the property and was in actual adverse possession of it. Gr. W. Pear-man filed a response in which he denied that Anna Pear-man was in legal possession of the property, or had been for several years last past.

This appeal involves the validity of a judgment of the circuit court adjudging that ten gallons of alcohol in the possession of the sheriff of Sebastian County, Arkansas, and claimed by W. H. Cole, be publicly destroyed by the sheriff. It appears from the transcript that the cause was specially set for hearing in the circuit court at 8:30 a. m. on November 17, 1919, and that the defendant was notified of the setting of the case for that time.

Reeder, Chancellor; Act 266, Acts 1919, special session, is void and unenforceable because the county court intended by it to make the order creating the road district and the court was without jurisdiction to make the order, for no county court can make an order having any effect upon lands within the territory of another county court. The act is void for ambiguity of sections 8 and 10 also.

M. Johnson, Judge; 1. The court erred in peremptorily instructing a verdict for defendant, as a case for a jury was made by the evidence of negligence of defendant company, its servants, agents and employees, for which appellee company was liable. 2.

Haynie, Judge ou exchange; 1. The verdict is contrary to the evidence. The value of the property taken was placed at $483. This value is not sustained by the evidence. The verdict is excessive. 2. The court erred in refusing the instructions asked by appellant. They were proper under the facts of this case. Kirby’s Dig., § 6196; 34 Ark. 257. 1. The motion for a new trial does not assign that the verdict was excessive, and hence we do not discuss the value, of the property.

V. Bourland, Chancellor; 1. This is the second appeal in this case.' See 142 Ark. 21. The opinion in that case is the law of this, and it was error to charge all the costs of the litigation against the fund to be distributed. 2. The court’s order of distribution was prematurely made,_ as certain delinquent assessments remain uncollected.

A. Dickson, Judge; 1. A widow can contest the validity of the will of her deceased husband and may appeal from the allowance of said will. 148 Mass. 421; 170 Mass. 93; 29 Pa. St. 498; 11 Am. & Eng. Ann. Cases 1013; Page on Wills, § 325; Kirby’s Digest, § 2712. 2.

Coleman, Judge; The policy was never delivered to the insured while he was living’, and the court erred in refusing to direct a verdict. The delivery of the policy by Carter to the wife of the insured was a delivery of the policy, and the judgment is right. 52 S. W. 959; 85 Ark. 169. The manual possession of a policy of life insurance by the insured or some one for him makes a prima facie case. 66 Ark. 612; 87 Id. 70. The cases cited by appellant are not in point.

E. L. Johnson, Judge; 1. The court erred in overruling the demurrer to the indictment because it failed to charge a second offense. Kirby’s Digest, § 1810. 2. The court erred in refusing instructions 1 and 2, asked by defendants; also in refusing 3 and 4. Defendants had also once been convicted of the same offense, and his plea of former conviction should have been sustained. 1. The demurrer was properly overruled.

L. Hutchins, Chancellor; The relation between appellee and appellant was one of trust, and appellee should be held to strict accountabiltiy. There is much lacking in the testimony of appellee, and his statements are not corroborated by the record evidence. Each allegation and contention of appellant is corroborated by facts and circumstances, and the finding of the chancellor is against the preponderance of the evidence.

Mar* tineau, Chancellor; The contract was usurious. The deed was an equitable mortgage but tainted and void for usury. 47 Ark. 287; 36 Id. 252;. 51 S. W. 460; 32 Ark. 346; 41 Id. 331. The court properly held that there was no usury as the evidence shows there was none. The burden was on him who pleads usury to prove it.

M. Shinn, Judge; STATEMENT OE EAOTS. The Citizens’ Bank of Harrison, Arkansas, and W. S. Pettit, sued the Western Union Telegraph Company for damages caused by its receipt and delivery of an unauthorized message. On September 4, 1917, an attorney went to W. S. Pettit, the cashier of the Citizens’ Bank of Harrison, Arkansas, with regard -to having the bank sign a bond to replevin a car load of junk at Crickett, Arkansas.

Sebastian Circuit Court, Fort Smith District; John Brizzolara, Judge; STATEMENT OF FACTS. U. S. Rogers and Edna Rogers brought suit against C. S. Williard to recover damages because of the miscarriage of Edna Rogers as the result of the alleged negligence and wrongful acts of the defendant.

M. Jackson, Judge; The verdict is contrary to the law and the evidence, and the court erred in its instructions to the jury both in giving and refusing instructions. 50 Ark. 340; 82 Id. 33; 106 Id. 21; 131 Id. 335. The proof shows clearly that appellee did not have seven years adverse possession.

B. Sorrells, Judge; The exclusion of all persons of the African race from the grand jury because of race denied appellant of the equal protection of the laws and is in violation of our Constitution. Carter v. Texas, Adv. Sheets U. S. Rep., p. 690, April 16,1900; 100 U. S. 303; 103 Id. 370-397; 162 Id. 565; 16 Sup. Ct. Rep. 904; 109 U. S. 65-7. See, also, 162 U. S. 592; 170 Id. 213. The testimony fails to establish the guilt of appellant. 1.

B. Baker, Judge; It having been determined by the court trying the case that the only grounds of objection to appellant to be appointed guardian was tuberculosis and the evidence having utterly failed to sustain that issue, and appellant being competent and of blood kin to tbe orphans and appellee being of no kin but a stranger by blood, the court erred in refusing to appoint appellant guardian of the orphans. .18 Ark. 600; 22 Id. 368; 92 Iowa 202; Woerner on Guardianship, §…

II. Dudley, Judge; This cause should be reversed (1) because the court erred in refusing to allow appellant to file his amended-complaint, and (2) because the complaint states a cause of action. Kirby’s Digest, § 6095.

Coleman, Judge; 1. The law ..of this case is well settled and properly by the former appeal. 206 S. W. 45. A traveler crossing a railroad track must “look and listen.” 101 Ark. 321; 117 Id. 464; 99 Id. 170; 16 S. W. 169. The evidence on the second trial is materially different from that on the first trial. 2. The court erred in its instructions given and refused. 84 Ark. 270. The evidence supported the instructions refused for defendant and it was error to refuse them. 1.

Francis Circuit Court; J. M. Jackson, Judge; 1. It was error to force defendant to trial in the absence of his counsel, to his prejudice. 2. The court refused to permit defendant to introduce in evidence the judgment of the justice of the peace of Wodruff County.

Martineau, Chancellor ; 1. As to the liability of the Vinsant Company, the matter is settled by the case of 93 S. W. 427. The contract was one of partnership, lb. It was a joint enterprise with a division of profits and clearly a partnership. 211 S. W. 148; 93 Id. 427; 80 Ark. 23; 87 Id. 412; 63 Id. 518; 44 Id. 427; 145 U. S. 611; 64 S. W. 1007; 9 Leigh 424; 45 S. E. 371; 22 N. W. 809; 89 Fed. 140; 48 S. W. 548.

Martineau, Chancellor ; 1. The complaint does not disclose a contract which falls within the statute of frauds, and the court erred in sustaining the demurrer and dismissing the complaint. 128 Ark. 433 is not applicable. 30 Ark. 249; 79 Id. 100; 45 Id. 17. 2. The description of the property is sufficient. 136 Ark. 447-451. Parol evidence was properly admissible to identiy and describe the property, lb.; 40 Id. 237. This case does not fall within Kirby’s Digest, § 3654. 1.

126, Acts 1919, is void, and all acts done and performed under said act and threatened and about to be done are illegal, null and void, because— 1. It takes away the jurisdiction of the county court. Art. 7, § 28, Const. 1874. 2. It is a legislative invasion and usurpation of the judicial power forbidden by § 1, art. 14, Const. 1874. 3. The act was never read at length on three separate days, as required by § 22, art. 5, Const. 1874. 4.