Volume 145 — Arkansas Reports

Appeal fro-m Boone Circuit Court; J. M. Shinn, Judge; The commissioners were appointed in good faith by the county court, and they qualified as a board and acted in good faith, and fraud or collusion is shown, and the parties are entitled to be paid. Act 338, § 38, Acts 1915, p. 1435. The courts should have made the order to pay the expenses incurred, and mandamus should issue under the third subd. of § 40 of act 338, Acts 1915, p. 1436.

Elliott, Chancellor; The court erred in sustaining the demurrer and dismissing the complaint. (1) The complaint as amended set up a cause of action cognizable in equity, and (2) the court erred in sustaining the demurrer. Art. 16, § 13, Const. 1874; 93 Ark. 336; 104 Icl. 16; 88 Id. 353. Fraud and collusion were alleged in obtaining the judgment of the county court. Certiorari nor prohibition would lie. 30 Ark. 101.

A case for a jury was made of malicious prosecution. No probable cause was shown and defendants acted maliciously, as plaiiitiff had been tried and duly acquitted. 1. Stifft acted with probable cause in causing appellant’s premises to be searched, and the question of malice is immaterial. 71 Ark. 360; 24 How. 544. The directed verdict for defendants was proper. Ill Ark. 309; 104 Id. 268. All the facts pointed to Keeby’s guilty knowledge.

Shaver, Chancellor; 1. The offer to sell such as the memorandum of-understanding here was based on no consideration and not binding- upon either party until the offer was accepted. Until acceptance the offerer has the right to change or withdraw the offer. 6 R. C. L. 603; 32 Atl. 1120: The money expended by Spry in the examination of the land was not a sufficient consideration as it was no benefit to Wilson.

This is a suit for partition brought in equity by Henry Quellmalz Lumber & Mfg. Co. against Thos. J. Roche, T. E. Day and Ed. Cleveland. The material facts are as follows: Henry Quellmalz Lumber & Mfg. Co. and Thos. J. Roche were tenants in common of certain timber lands in Clay County, Arkansas, each owning an undivided one-half interest therein. Thos.

B. Priddy, Judge; statement of facts. Oscar L. Martin brought this suit against the People’s Mutual Life Insurance Company of Jonesboro, Ark., to recover $1,000 on an accident insurance policy. The material facts are as follows: On March 16, 1917, the Arkansas Mutual Life Insurance Company issued to Oscar L. Martin an accident insurance policy in the sum of $1,000.

Kirsch, Special Judge; STATEMENT OP PACTS. ' This is a statutory action brought by H. C. Patterson against F. Johns, to recover damages for enticing Nathan Meyers to leave his employment. This is the second appeal in the case.

F. Reeder, Chancellor; That part of section 19 lying north of White River is so disconnected from the body of the improvement district as to render the district void. 130 Ark. 70; 214 S. W. 56. This case falls squarely within the rule of those eases, and the decree should be reversed. The act of the Legislature in including the strip of land is not arbitrary or discriminatory, and the land is contiguous. 130 Ark. 70; 64 Id. 7; 55 let 303; 132 Id. 359.

E. Dudley, Judge; 1. Apt 222, special act, is a legislative exercise of judicial power and is unconstitutional and void. 58 Ark. 117,121-2. 2. It attempts to validate assessments that are wholly void. Ih; 119 Id. 188; 86 Id. 1; 181 U. S. 324; lb. 371, 396; 239 Id. 478; 216 S. W. 690. 3. The assessments are unreasonable, arbitrary, oppressive and confiscatory. 216 S. W. 692 and supra.

Martillean, Chancellor; 1. The chancery court erred in ordering the receiver to pay the Gates Mercantile Company its claim in full before subrogating the Southern Trust Company to the lien of the Gates Mercantile Company as to the $2,000 which had gone to the satisfaction of the Gates Company claim. 25 R. C. L. 1318; 76 Ark. 249. 2.

W. Hendricks, Judge; All the prior correspondence and negotiations were merged in the contract of purchase as written. 104 Ark. 475;.83 Id. 283, 105; 80 Id. 805; 21 Id. 69; 30 Id. 186; 99 Id. 218; 78 Atl. 300; 89 N. E. 723; 13 C. J. 544; 110 N. Y. S. 4999.

Appellant has the superior equity as settled on former appeal. The decree here is not in conformity with the law as settled by this court. A decree must conform to the proceedings and facts set out. 90 Ark. 241; 30 Id. 612. The prayer of the cross-complaint of appellee is both specific and general, and under the general prayer relief was properly granted. 15 Ark. 555; 19 Id. 62; 39 Id. 531; 47 Id. 31.

B. Baker, Judge; 1. The court erred in arraigning and. requiring appellant to plead within less than twenty hours after a copy of the indictment was delivered to him. Kirby’s Digest, § 2274; 74 Ark. 356. 2. The court erred in refusing to grant appellant an order to take depositions of witnesses in the State of Missouri. 32 Ark. 462. 3. The court erred in refusing a continuance after he had not been given an opportunity to take depositions.

Martineau, Chancellor; 1. There is no proof whatever pointing to a trust. If Coates had bought under a verbal agreement to hold the property for Dortch and failed to do so, there could be. no trust unless there was added an element of fraud by Coates preventing other arrangements by Dortch to buy the land or by preventing bidding by others and thus securing the land at less than its value. 101 Ark. 455; 73 Id. 313; 45 Id. 511; 41 Id. 400; 19 Id. 39; 75 Id. 451; 3 Pom., Eq.

186, Acts 1919, is void, as it withdrew from the county court jurisdiction to create district No. 1 of Greene County to build road proposed by its plans. The court erred in overruling the demurrer. 130 Ark. 517. 214 S. W. 23 has no bearing on this case. The appellee district was established in strict conformity with law. Act 338, Acts 1915; act 186, Acts 1919; 130 Ark. 507; 214 S. W. 23.

.Appeal from Jefferson Circuit Court; W. B. Sorrells, Judge; 1.

Elliott, Chancellor; The court erred in sustaining the demurrer. The day named by the clerk in the notice must be more than ten days after the publication of said notice aoid (2) the Jefferson County Court must be in session on the day named in said notice to afford an opportunity to those who desire to do so an opportunity to be heard. Both these propositions are jurisdictional under act 658, Acts 1919, § 5; 103 Ark. 571; 132 Id. 144.

Steel, Judge; The judgment of the court acquitting Lyons is not res judicata and can not be plead in bar or as a defense.' Bouvier’s Diet., Rawles’ Revision, pp. 898-9, and cases cited. A judgment is only conclusive between parties and their privies. 96 Ark. 451; 82 Id. 191-414; 86 Id.' 105. Neither Mena Bonded Warehouse Company nor appellant were parties to the criminal action.

Haynie, Judge ou exchange; STATEMENT OE EACTS. On September 19, 1918, one of the defendant’s passenger engines ran into and killed a steer at Rich Mountain station in Polk County, Arkansas. C. H. Mahor was the owner of the steer and sued the railroad company to recover damages. A witness for the plaintiff testified that he heard the engine whistle for the station one morning at about four o’clock and saw it run into and kill the steer.

Steel, Judge; STATEMENT 0E EACTS. W. S. Price sued W. 0. Fenton to recover damages in the sum of $282.05 which he alleged he sustained by reason of the former refusing to allow him to sell his one-half interest in six bales of cotton raised by him as a share-cropper under Fenton. W. 0.

Floyd Iluff, Special Chancellor; STATEMENT OP PACTS. Bachel Shenoy and Mollie Jackson brought this suit in equity against Harold H. Phipps to foreclose a lien.for the unpaid purchase price of the east half of lot 11, block 70, in the city of Hot Springs, Garland County, Arkansas. Phipps• defended on the ground that he was bona fide purchaser of the property for value, and that the purchase price had been paid.

Appeal.from Phillips Chancery Court; A. L. Hutchinson, Chancellor; STATEMENT OF FACTS.

Shaver, Chancellor; The deeds here are such as are commonly known as “expeditious deeds,” and the court erred in its findings and decree as to the time of removal of the timber and its value. 99 Ark. 112; 1 Devlin on Real Estate, p. 259, § 176; 189 S. W. 654; 178 Id. 304; 189 Id. 654; Ih. 185. A' proper construction of these expeditious deeds entitles appellants to a reversal and a modification as to the price of the timber cut.

II. Dudley, Judge; 1. An examination of the pleadings and evidence shows that appellee elected to stand on the express terms of the written contract sued on. He had two remedies, (1) to sue on the contract as though it was in full force and effect and recover for the breach thereof, or (2) to rescind the contract and sue on a qucmtaon meruit for his services and the amount expended by him on the contract.

G. Hammock, Chancellor; 1. There is no uncertainty in the description of the boundaries of the district. 214 S. W. 23. 2. There is no delegation of legislative powers in the act. 120 Ark. 277; 72 Id. 195. See, also, 83 Id. 591; 210 Icl. 281; 6 E. C. L., § 167; 133 Ark. 380. 3. The act does not delegate judicial powers to an individual. The whole attack on the act is merely technical and the demurrer should have been sustained. 1.

B. Baker, Judge; 1. The court erred in sustaining the demurrer or motion to dismiss their cross-complaint, as it set forth a cause of action which was admitted by the demurrer. 2. The court erred in refusing appellants the right to submit to a jury the question of damages for the unlawful suing out of the writ of ejectment. Kirby’s Digest, § 3646.

The purpose of the construction of a will is to ascertain the intention of the testator from its language and when such intention is ascertained it must prevail, if not contrary to some rule of law. 104 Ark. 445; 113 Id. 497. Under the will of Helen 0.

Haynie, Judge; 1. It was error to give instruction No. 11 for the State, as there was no evidence upon which to base it. 8 Ark. 183; 23 Id. 101; 29 Id. 151. It is abstract. 36 Id. 641; 42 Id. 57. It is prejudicial' error to give an instruction based upon a hypothesis unsupported by the evidence. 90 Ark. 104; 117 S. W. 1080; 65 Ark. 222; 72 Id. 23; 74 Id. 468; 45 8. W. 546; 77 Id. 901; 86 Id. 289; 96 Id. 193; 92 S. W. 864; 112 Id. 1082.

Mattineau, Chancellor; 1. ' The oral agreement or promise, even if sufficient to constitute a trust, was void under the statute of frauds, and regardless of the existence of any trust both Worthen Company and Mrs. Worthen were innocent purchasers without notice and for substantial value, and (3) that Vogler can not come into equity and admitting the fact that Mr. Worthen had insisted-in the previous transaction that his bank would not loan money on the property if he,…

Wade, Judge; The court erred in refusing a, new trial upon the affidavit of Lewis Seawood. Appellant was taken by surprise in the testimony of Morris Thomas. It is evident he perjured himself. 173 S. W. 405; 69 Ark. 545; 86 Id. 481. 1. Appellant did not object to the testimony of Morris Thomas and he can not now complain. 52 Ark. 180; 101 Id. 443. 2. He does not show due diligence. 137 Ark. 107.

Steel, Judge; The mandamus should have been granted. The directors had no right to refuse admission to the public school, to pupils properly transferred, for an infraction of the rules of th§ district from which they were transferred. Kirby’s Digest, 7637 etc.; 35 Cyc. 1141-2; 31 Neb. 552; 63 Wis. 234; 24 Mo. App. .309'; 116 Ind. 11; 9 Am. St. 820; 69 Ark. 202; 89 Id. 254. 1. It was within the sound discretion of the court to grant or withhold the writ.

■ This is an action in replevin by J. F. Black against B. H. Hogsett and Mrs. B. H. Hogsett to recover a soda fountain, two gas tanks, some show cases, and other articles mentioned in his complaint. The defendants denied that the plaintiff was entitled to the possession of said property and by way of cross-complaint asked for damages for the wrongful taking of it by the plaintiff under his writ of replevin.

Clark, Judge; STATEMENT OF FACTS. Appellees sued appellant upon a duebill, which reads as follows: DeValls Bluff, Ark., Nov. 27, 1918. ‘ ‘ Due Samuel' Frauenthal and J. G. Thweatt $250 for legal services rendered in the foreclosure suit of myself as treasurer of Prairie County v. Joe Skarda et al. (Signed) Geo. Craig.” Appellant defends on the ground of a want of consideration, and that the due bill was procured by duress.

Shaver, Chancellor; STATEMENT OE EAOTS. Appellants brought this suit.in equity against appellees to have appellees declared as trustees, of both appellants and appellees to a certain tract of land and for partition of the same. The facts are as follows: ~W. B. Sanders originally owned 120 acres of land in Miller County, Arkansas. He exchanged 80 acres for the 120 acres of land in controversy.

McMahon, Chancellor; 1. A properly authenticated demand was not presented to the administrator until more than two years after the appointment of the administrator and the claim and suit are barred by limitation. The burden was on appellee to show that he had complied with this section. lb., % 113. 2. No notice of the claim was served on the administrator. The complaint was' not properly verified. 105 Ark. 95.

• Appeal from Sebastian Circuit Court, Fort Smith District; John Brissolari, Judge; The rules of law in this case are too well settled to cite the authorities, and the evidence shows that appellee is indebted to G-erard and Saladin in the sum of $100, and the court erred in rendering judgment against appellant and his associates, and the case should be reversed.

Martmecm; Chancellor; 1. Appellee was not entitled to a lien for the taxes paid by him. .Gantt’s Digest, § 5206; 92 Ark. 167. A sale of land for one year discharges the lien for taxes delinquent for prior years. The lien of each year’s taxes is paramount and payment discharges previous tax liens. 26 R. C. L. 401; 26 Ann. Cas. 675; 88 Ala. 548; 7 So. Rep. 363; 47 Cal. 0; 101 Ala. 649; 46 Cal. 134; 36 la. 505; 98 Id. 32; 66 N. W. 1053; 85 S. W. 727; 92 Ark. 167.

Barker, Chancellor; Act 571, Acts 1919, is unconstitutional as impairing the obligation of a contract. 115 Ark. 437. Contracts between a municipality and an individual are in the same category as those between individuals. Lonoke v. B'ransford, 141 Ark. 18. See, also, 26 IT. S. (Law. Ed.), p. 395; 54 Id. 144.

Martinecm, Chancellor; 1. Appellee, by the payment of taxes for a number of years, without other supervening equities, is not entitled to have his plea of laches sustained. 99 Ark. 500-507. One is not barred by laches until at least seven years’ payment of taxes has been made under color of title. Id. 507. The land was wild and unimproved, and there was no color of title prior to the Garlington deed, and it was unnecessary for appellant to act.

Coleman, Judge; 1. Appellee’s prayer for an instructed verdict should have been sustanied, and it was reversible error to refuse it. Where a person hoards a train it is his duty to inform himself whether or not the train, he is on is scheduled to stop at the station where he desires to disembark. 47 Ark. 74; 99 Id. 248.

L. Hutchins, Chancellor; 1. The record and evidence constitute a conglomerated mass of generalities. Evasion of definiteness and lack of specific testimony as to the issues characterizes the record throughout its context. The evidence fails to malee out a case of indignities such as to render life' intolerable. 91 Ark. 507; 104 Id. 303. The testimony of appellee shows that there was no malice or hate toward her by the husabnd. 105 Ark! 196.

Coleman, Judge; The court should have directed a verdict for defendants, because (1) so far as the allegation as to the prize fight is concerned, the uncontradicted evidence shows this charge to be true, and, if true, the opinion expressed that appellee was not a fit person to be at the head of the public schools was justified and did not constitute libel. (2) The charges were clearly privileged, and there was no evidence of malice. 123 Pac. 478; 21 Idaho 609.

Wade, Judge; 1. The court erred in giving the instruction of its own motion to the jury. The burden of proof never shifts from the State even on the plea or defense of alibi. 6 L. R. A. (N. S.) 125; 27 Am. Rep. 329, 683; 27 A. L. R. 689; 55 Ark. 248; Wharton, Cr. Ev. (10 ed.), 751; 57 N. W. 751; 31 111. 385; 83 Am. Dec. 231; 71 Ark. 459'. An instruction which deprives defendant of his presumption of innocence. 87 Conn. 573, 49 L..R. A. (N. S.) 913; 45 Fla. 83; 110 Am.

Martineau, Chancellor; STATEMENT OE EACTS. Appellees brought this suit in equity against appellant to cancel and set aside a deed to her from Katie Henry on account of the mental incapacity of the grantor. Katie Henry was an old colored woman, sixty-eight years of age, who lived in the city of Little. Rock, and owned a house and lot in North Little Rock which she had rented for some years to ¡Beatrice Nelson.

Elliott, Chancellor; STATEMENT OF FACTS. On November 3, 1919, J. M. McClintock and F. A. Hipolite brought this suit in equity against Eugene Lank-ford to set aside a decree of the chancery court purporting to have been rendered on the 27th day of June, 1918, during the vacation of the court.

Steel, Judge; 1. There is no pretense that the purchaser would have taken the land at the price except all the land be sold. He would not have accepted a deed to all that part of the land in controversy less the homestead of the owner. There is no allegation or proof of a sale of any part of the premises less than the whole.

The court erred in its instructions given, erred in refusing one to the effect that the municipal court bad no jurisdiction of the offense charged in the warrant of arrest. Commencement of criminal proceedings merely for the purpose of aiding some private interest is an abuse of the process of the court and conclusive of malice. Blashfield, Inst, to Juries, § 5074, p. 3253. 2.

Upon filing of tbe new or .amended complaint for $1,000, notice by summons was necessary. No notice of the setting of tbe case or other steps was given appellants, and they have never had their clay in court. For definition and amendment, see 1 Words and Phrases (1st series), 368. An amendment is the correcting of any error in pleading. 5 Sup. Court 771-3; 113 U. S. 756; 28 Law. Ed. 1141; 1 Words and Phrases, 370; 28 N. Y. Sup. Ct. (5 Rob.), 619-22; 6 Col. 149-151.

Mc-Mahan, Chancellor; The contract was a written contract complete on its face, and it was not competent to vary or contradict it or establish an additional contract by oral testimony. The written contract was not uncertain but certain and complete. 9 Cyc. 251; 91 Fed. 232; 96 Ark. 184. Parol testimony was not admissible to vary, qualify or contradict the written contract, as there was no uncertainty or ambiguity. 113 Ark. 509. 1.

Martineem, Chancellor; .1. Act 49', Acts 1919, p. 74, is not unconstitutional or void because it provides that the bridge shall be turned over to the county when completed. 96 Ark. 4.10. The act is valid and operative. 100 Ark. 178; 66 Id. 477. 2. The bridge was part of the highway. The State has absolute control of it and may delegate the control to any subordinate governmental agency. 1 Elliott on Roads and Streets, pars. 511-514, 540; 102 U. S. 472, 501; 1 Dillon on Mun.

Shaver, Chancellor; The findings of the lower court are against the preponderance of the evidence. The service contemplated by the employment, while out of all comparison with the pay offered, was a legitimate service which he agreed to render, and if plaintiff fixed the price it was plaintiff’s privilege and he can not complain. It was his contract, and he should not be allowed to defeat payment on the uncorroborated testimony of himself that it was bad morals.

L. Hutchins, Chancellor; I. We base our appeal on three principal grounds, viz: (1) The remedy by bill of review or statutory proceedings for vacating the judgment after the term was not available to plaintiff’s, as they had a full and adequate remedy by appeal from the decree sought to be vacated; (2) until a meritorious defense is alleged and proved a decree may not be vacated after the term. The only defense alleged is the statute of limitations.

II. Dudley, Judge; 1. Tbe court should have sustained appellants’s demurrer. 106 Ark. 174. The circuit court was without jurisdiction, as the proceeding was against the State. 102 Ark. 470; Act 100, Acts 1909; 102 Ark. 482; 98 Id. 525; 48 Id. 426, 443; 1 Id. 570; 3 Id. 430; 34 U. S. (Law. Ed.), 815; 44 Id. 775. 2. The court erred because its judgment is contrary to law and the evidence. 1. The evidence is voluminous, and the finding of facts was for Boyd on the issues.

Steel, Judge; STATEMENT OE EAOTS. Appellant instituted this action in the circuit court against appellee to recover possession of a certain tract of land. The material facts are as follows: The present suit was commenced on October 17, 1917, and the trial was had on the 6th day of January, 1920. The forty acres of land involved in this appeal were originally owned by Jacob Dansby, the husband of Amanda Dansby, and the father of Marshall Dansby.

Appeals from Union Chancery Court; T. J. Gaughan, Special Chancellor; STATEMENT OF FACTS. In the cases of Paul Lawrence and Vivian Lawrence v. J. K. Mahony, Tnostee, and J. L. McDonald and Effie McDonald v. J. H. Lewis, Trustee, and W. E. McRae, Trustee, the issues are the same and one opinion will suffice for both cases.

L. Hutchins, Chancellor; 1. Agency mnst be shown by positive proof or circnstances justifying the inference that the principal has assented to the acts of the agent (126 Ark. 405), and what the agent said if anything can not be looked to as even tending to establish his authority as agent. 93 Ark. 600; Ih. 315; 90 Id. 104; 1 Mechem on Agency, § 288; 21 R. C. L., p. 280, $ 6; 31 Cyc., p. 1652, § C; 129 Fed. 583; 65 N. W. 403-5; 22 Id. 276-7; 4 Heisk. (Tenn.) 542. 2.

B. Priddy, Judge; Appellant was in possession of the land and did not obtain possession by virtue of his contract with appellees, and he did not have to surrender the possession in order to set up title as their rights were not prejudiced by reason thereof. 112 Ark. 105; 33 Cal. 237. It was reversible error in the circuit court to sustain plaintiff’s demurrer to the answer of the defendant.

Shower; Chancellor; The assessment is excessive, discriminatory and confiscatory. The assessment for State and county taxation is the actual value of the property in making assessments for benefits to local improvements in municipalities. 86 Ark. 1, 20-1; Const. 1874, art. 2, § 22. The valuation of appellant’s property is entirely too high as shown by the assessment of other property in the locality.

W. Hendricks, Judge; The contract does not in terms or by inference retain title to the auto, and the phrase, “stand good for the debt,” has been otherwise legally defined. The phrase is not ambiguous, and the court erred in not construing it as a lien enforceable between the parties only. It was error for the court to refuse to construe the phrase and the contract. 73 Ark. 338; 90 Id. 68. Appellant was an innocent purchaser.

E. L. Johnson, Judge; 1. The bond in question is a bail bond, the conditions of which were fully satisfied by the surrender of Tom Gibson in compliance with Kirby’s Digest, §§ 2176-7-8; 2 Comyn (A) (Bail); 2 Chitty’s Blackstone 290; 1 Ark. 152. See also §§ 2171-2-3 of Kirby’s Digest. The true doctrine as to the law of this case is laid down in 45 Ark. 385. See, also, 47 Id. 388; 50 Id. 132-140; 48 Id.-305; 76 Id: 443; 137 Id. 402.

Elliott, Chancellor; Under the will the real estate was vested absolutely in the legatees upon the death of the testator and the ninth paragraph is irreconcilable and in conflict with the paragraphs devising a fee simple title or estate and is void. 81 Ark. 480; 3 Id. 187; 40 Cyc. 1733 and notes. See, also, 95 Ark. 340; 82 Id. 213; 115 Id. 404; 112 Id. 530; 135 Id. 413.

W. Ilendrichs, Judge; 1. The court should have directed a verdict for defendant. The court’s instructions made the carrier an absolute insurer of passengers against injury by any act of a fellow passenger riding in a coach assigned to another race, if the carrier’s employees knew, or by ordinary care could have known, that such passenger was riding in the wrong coach. The separate coach law was not intended to fix any such absolute liability upon the carrier.

Mc-Mahan, Chancellor; 1. Where a deed is absolute in form, the legal presumption is that it is what it purports to be, a deed, •and the burden is on him who asserts it to be a mortgage and the intention must be clear and decisive. 75 Ark. 551; 88 Id. 299; 106 Id. 583; 109 Id. 535; 27 Ark. 1007; 75 Ark. 551. 2. The findings and decree, in view of the law, are clearly against the preponderance of the evidence. 3.

B. Baker, Judge; Tire juror, Montgomery, was disqualified by reason of bis relationship to appellee and the judgment should be reversed, as the judgment was void. Kirby’s Digest, § 4491.

Coleman, Judge; Election contests are special proceedings and not civil actions. 70 Ark. 243; it. C. L., p. 1157, § 147. The court had jurisdiction and the court erred in sustaining the motion to dismiss. Act 85, Acts of 1887, had reference to civil actions by ordinary suits and not election contests. Under the act of 1887 the circuit court at Powhatan is the circuit court of the county and the court had jurisdiction.

Francis Chancery Court; A. L. Hutchins, Chancellor; The property was acquired and used for governmental purposes, and no power of sale exists in the city council, and the chancellor erred in his decree. 47 Ark. 269; 68 Id. 39. Tested by the case in 47 Ark. 269-283, the property, here can be sold.

H. Dudley, Judge; The sole question here is whether the law court was within its province in proceeding with ah attachment against property in the hands of an assignee in chancery under a deed of assignment. The attachment should have been quashed, as the property was not subject to attachment and it was in the hands of a receiver appointed and qualified by a court of superior jurisdiction. 83 Ark. 182; 104 Id. 222; 39 Id. 68; 122 Id. 39. 'See, also, 56 Ark. 1.

•Appeal from Faulkner .Chancery Court; Jordan Sellers, Chancellor; The Legislature adopted an incorrect method of assessing benefits against the railroad company, and the method was arbitrary and erroneous. None of the assessments are uniform based upon benefits, but are purely arbitrary. 117 Ark. 30; 131 Id. 59; 64 Id. 555; 68 Id. 376-389; 69 Id. 68-73; 71 Id. 17-27; 86 Id. 1-8. The assessments were not unequal nor arbitrary, nor were they excessive under the law. K. G. So.

B. Haynie, Judge; STATEMENT OE EAOTS. This is a suit in replevin brought by J. B. Stone against L. Suckle and- W. C. Colvin to recover several ceiling fans. The facts are as follows: J. B. Stone was a stockholder in a corporation which owned a hotel in Prescott, Arkansas. It leased the hotel to a tenant who furnished her own furniture and fixtures.

W. Hendricks, Judge; statement oe eaots. The Southern Cotton Oil Company brought this suit against Henry Frauenthal to recover $300 damages for his refusal to deliver to it 100 tons of cotton seed which it had purchased from him. F. M. Hunt was the agent of the Southern Cotton Oil Company. According to his testimony, he had had a conversation with Henry Frauenthal and had purchased from him 100 tons of cotton seed at $37 per ton. The parties discussed the question of weights.

The City Fuel Company commenced this suit in the municipal court against B. W. Torreyson to recover the sum of $40 for the hire of two trucks to haul furniture from Little Rock to Conway, Arkansas. The defendant filed an answer and counterclaim, in which he alleged that the plaintiff was a common carrier and had lost or destroyed in transit a part of the furniture of the value of $65.

W. Smith, Judge; 1. The record of the calling of the term of court was not sufficient. The record was incomplete and failed to comply with Kirby’s Digest, 1532, and the rule in 2 Ark. 230. 2. The court should have given instruction “B” for defendant and it was not proper to permit the letter written to Mr. Fultz to be introduced in evidence. Defendant did not write it nor did he know what was in it and it was irrelevant.

H. Evans, Judge’; The ordinance of the city as to the impounding of stock is invalid. Kirby’s Digest, § 5451; Acts No. 265 of 1911 and No. 204 of 1915. The-court erred in taking the case from the jury and in directing a verdict. Appellant demanded the hogs within twenty-four hours after he got notice, and he was entitled to get them without any charge. City Ordinance, § 264.

The execution and approval of appellant’s bond is clearly shown. Act No. 130, Acts 1917, describes and prescribes the duties and defines the powers of the State Mine Inspector. When the Governor made the appointment, his power ended, and he was without power to direct appellant in the discharge of his duties or cancel his appointment. 86 Ark. 555. The charges are frivolous, and the findings of Young, Den-man and Lewis ridiculously outrageous. They disregarded the law.

The judgment should be quashed because the question asked was irrelevant, and an answer incriminated him. There was no contempt. 78 Ark. 262; 67 Id. 163. 2. The court exceeded its power in assessing the punishment, as the offense was not committed in the presence of the court. The penalty is excessive. Kirby’s Digest, §§ 720-2; Const., art. 7, § 26. 78 Ark. 262 is not in point. 1.

H. Dudley, Judge; These propositions are involved in this case: 1. The preliminary notice and proof of loss were not given or made within the time stipulated in the policy, and no action can be maintained. 2. The circumstances shown in the record do not excuse the failure to give notice and furnish proof of loss within the time specified; and, 3.

Kirby’s Digest, § 8012; 80 Ark. 204; 118 N. C. 202; 113 Pac. 130; 40 Ene. of Law & Prac., p. 1315. A written revocation of a will requires the same land and measure of evidence as the probate of a will. Schouler on Wills, par. 423; 117 Ind. 44. The findings and judgment are erroneous and should be reversed. The letter offered for probate was not a will; (1) it was not so intended; (2) it was not executed and witnessed as required by law.

There was no personal transaction shown with Alexander, the cashier. Whatever warranty was made was a part of the trade, and the trade ^was a purchase and sale of the claim of the Bank of Mulberry by its cashier under its mortgage against this stock of goods to Jacobs. There was no personal transaction with the cashier. The guaranty was an incident and a part of this transaction.

Prohibition to Johnson Circuit Court; A. B, Priddy, Judge; There are only two questions involved here: (1) Does Kirby’s Digest, §§ 2865-6, apply in primary election contests? (2) If so, is the giving of the bond required by those sections a jurisdictional requirement? The answer to the first proposition depends upon the construction of the language in § 19 of the Initiative Act No. 1 in vol. 2, Acts 1917, p. 2302. A bond must be given. Kirby’s Digest, § 2865; 55 So. Rep. 627.

H. Dudley, Judg-e; 1. The court had no jurisdiction. The suit was was brought in Crittenden County and the mules were in St. Francis County. Kirby’s Digest, § 7512; 63 Ark. 30; 101 Id. 142. 2. It was error to admit in evidence the first mortgage of appellees as a foundation of the suit. 73 Ark. 589. 3. A directed verdict should have been given for appellants as the evidence was uncontradicted in favor of appellants.

The court erred in refusing to order a reassessment of benefits in the district. Act No. 55, Acts 1919, § 11, especially authorizes to reassessments of benefits not oftener than once a year, and more than a year has elapsed since benefits were assessed and defendants were justified in making the reassessment. The court was misled by a misconstruction of the language used in 130 Ark. 418. See 98 Ark. 544; 133 Id. 119; 134 Id. 293; lb. 14; 213'S.'W. 775.

Const. 1874, art. 7, § 50. General elections are more in keeping with our system of government than special elections and in the event a general election occurs before the calling of a special election the necessity of the latter is obviated. 15 Ark. 664. 1. The vacancy can only be filled at a special election called by the Governor to elect a judge to fill the unexpired term.

S. Maples, Judge; 1. Elza Thorn was not a qualified elector. Kirby’s Digest, §■§ 7589, 2768; 97 Ark. 440; 15 Id. 555; 29 Am. Deo. 33; 4 Words and Phrases, 3381; 36 W. Va. 563. He was at least non compos mentis. 2. The court erred in its order assigning or attaching the territory. 119 Ark. 593. The county court had the power and authority to assign the territory as its judgment and discretion dictated. The judgment is contrary to the law and evidence. 1.

Steel, Judge; 1. It was error to refuse a continuance. The court abused its discretion. 85 Ark. 334; 99 Id. 394; 100 Id. 301. 2. There was prejudicial error in the argument of the prosecuting attorney. 103 Ark. 356; 58 Id. 481; Do-ran, v. State, 141 Ark. 442. 3. The testimony was insufficient to warrant the court in submitting the case to a jury. 80 Ark. 225; 83 Id. 227. 1. Confess error in the remarks of the State’s attorney. 71 Ark. 415; 88 Id. 579. 2.

Steel, Judge; It was error to direct a verdict. The court did so' ' on the theory that A. E. Alford was a special agent of Horn Brothers and that a principal is not liable for the acts of a special agent. The distinction between a special agent and a general agent is well settled. 55 Ark. 629; 25 Id. 261.

B. Priddy, Judge; STATEMENT OF FACTS. Ed. Archie brought this suit against the Bankers & Planters Mutual Insurance Association to-recover on a benefit certificate in the sum of $450. In September, 1916, the Bankers’ & Planters’ Mutual Insurance Association issued a benefit life certificate to Mary Archie, and her husband, Ed. Archie, was named as the beneficiary. She kept the dues paid thereon until the time of her death in August, 1919.

L. Hutchins, Chancellor; STATEMENT OP PACTS. P. J. Phillips brought suit in equity against the Tyronza and St. Francis Road Improvement District of Cross • County, Arkansas, which was created by act No. 140 of the acts of the special session of 1920.

On January 6, 1919, Chas. M. Brown commenced this suit in the circuit court against J. A. Lewis and C. H. Lewis to recover certain personal property which they had mortgaged to him to secure an indebtedness of $370.07, due January 1, 1919, with the accrued interest.

'E. Dudley, Judge; Where an action of unlawful detainer is dismissed by the court, or withdrawn by plaintiff, defendant is entitled to judgment for restitution. 9 Ark. 441; 10 Id. 476; 14 Id. 224; 8 Id. 353. There was no error in not issuing an order of restitution upon quashing the writ of possession when the case itself was neither abated, dismissed nor withdrawn.

<p>Appeal from Logan Circuit Court, Northern District; James Cochran, Judge;</p> <p>The judgment by default should have been set aside (1) because it is shown by the petition and affidavit that defendant had a good defense to the suit on its merits; (2) because defendant filed a motion to require plaintiff to make his complaint more definite and certain, and said motion was pending when the judgment was rendered, and it was error to enter the default judgment until the motion was duly passed upon by the court and defendant given •an opportunity to present his answer and defense. 23 Cyc. 750; 25 Ark. 623; 23 Id. 18; lid. 256; 6 Id. 552; 4 Id. 526, and many others. See, also, 89 Ark. 351; 23 Cyc. 751; 89 Ark. 359 ; 4 Okla. 713; 84 Fed. 228; 13 Col. 444 ; 8 Mont. (La.) (N. S.) 118; 18 La. Ann. 629; 26 Id. 730; 8 Col. 188; 9 Id. 597; 33 111. 209; 35 Md. 169; 161 Mass. 173; 16 Minn. 81; 9 Mo. 643; 22 Wend. (N. Y.), 633; 14 Ore. 454; 42 Iowa, 542; K & C. Dig., § 5160, and (3) tlie motion to require plaintiff to make tlie complaint more definite and certain was a virtual denial of plaintiff’s cause of action. 4 Ark. 534, 574,440; 9 Id. 358; 90 Id. 158; 68 Minn. 1; 57 N. Y. S. 760. Mere failure of defendant to appear when his plea is on file will not entitle plaintiff to judgment by default. 23 Cyc. 743. (4) The judgment should be vacated under Kirby’s Dig., § 4431, for unavoidable casualty or misfortune. 7 Ark. 445; 2 Woodward, Pa. Dec. 7th, 4 C. P. 117; 7 Wis. 542; 31 Barb. (N. Y.) 578; 1 Black on Judg., § 341; 17 A. & E. Enc. Law 836; 58 Kan. 817; 83 Cal. 457.</p> <p>The court properly refused to vacate the judgment. 49 Ark. 75; Kirby’s Digest, § 4431; 77 Ark. 314; 104 Icl. 45; 182 S. W. 533; 114 Ark. 493; 93 Id. 462. No good defense was shown.</p>

Martineem, Chancellor; The chancellor erred in sustaining the demurrer and dismissing the complaint because the county court had no authority to omit the lands mentioned in the petition, notice and engineer’s report. Act 279, Acts 1909, p. 829; act 221, Acts 1911, p. 193; 125 Ark. 388; 132 Id. 328. The chancellor was correct in sustaining the demurrer, as the complaint did not state facts to constitute a cause of action.

Martineau, Chancellor; 1. The finding of the chancellor that no misrepresentations were made as to the condition of the oil engine is contrary to the clear preponderance of the testimony, and Kirby had the right to offset against the note for $3,000 the sums he had been damaged by reason of appellee Young’s misrepresentations as to the condition of the oil engine, and (2) that under his agreement with Young and Birdsong he had assumed to pay only so much of the two…

H. Dudley, Judge; The pleadings filed by appellants stated a cause of action for removal of .appellees as commissioners within the meaning of the act 279, Acts 1909, and the court erred in sustaining the demurrer and dismissing the petition. The language of the act is plain, unambiguous and mandatory. It was not necessary for petitioners to plead that they were a majority of landowners in number and acreage residing in the district.

G. Hammock, Chancellor; I. It is trne the contract does not describe the land in the terminology of the government survey, but it otherwise identifies it by description of ownership, -location and acreage. Parol evidence is admissible to show the application of a description which itself furnishes a means of identification. 85 Ark. 1. The maxim, “Id certim est quod cerium reddi potest,” applies. 28 Ark. 78.

<p>Appeal and error—prayer for appeal—parties.—Where there were several plaintiffs in the suit below, and only one is named in the prayer for appeal, thus, “Come the appellants, Camden National Bank et al., and pray an appeal,” etc., the prayer was insufficient to include any of the plaintiffs except the one named.</p>

Haynie, Judge; 1. -The appellee was barred by limitation of seven years and two years. Although a femme covert, her disabilities were removed by Acts 1915, p. 684. She had the right to sue as a femme sole. 124 Ark. 175. Although by Acts 1915, p. 684, a married woman may not plead limitation in ejectment.

• Prohibition to Prairie Chancery Court, Southern District; John M. Elliott, Chancellor; 1. The chancery court was without jurisdiction over the estate of Otis Gr. Baw, deceased, and the writ of prohibition should issue. The probate court had jurisdiction alone, and is a court of superior jurisdiction. Kir-' by’s Digest, § 1340; 43 Ark. 324; 83 Id. 416. .2.

Elliott, Chancellor; 1. The ordinance was void. It was not duly passed by a majority of the council, nor were the rules suspended requiring a reading on three separate days. K. & G. Dig., § 6502; 40 Ark. 17; Dillon on Mun. Corp. (5 ed.), § 530; 19 E. C. L. 891; 55 L. E. A. 614; 28 Cyc. 335; K. & C. Dig., § 6510. 2. Injunction the proper remedy. 35 Ark. 352; Dillon on Mun. Corp. (5 ed.), § 582; 142 La. 932; 4 Pomeroy, Eq. Jur., p. 4133, § 1777; 3 A. L. E. 955.

■ Appeal from Yell Chancery Court, Dardanelle District; Jordan Sellers, Chancellor; 1. The firm of Kaufman & Wilson, the payee of the notes, was not in existence at the time the notes and mortgage were executed, as Wilson, one of the partners, had died and the partnership ceased. 6 Cadman’s Cyc. of Law, p. 21, note. 2. The notes and mortgage were void because defendant, payor, was a married woman, the enabling act not having been passed until afterward.

M. Jackson, Judge; The evidence is wholly insufficient to support a verdict of guilty and the judgment should be reversed because— 1. The requested peremptory instruction for defendant should have been given, there was no evidence to establish ownership of the logs in the Augusta Cooperage Company. The allegation of ownership was material and must be proved as alleged. 97 Ark. 1; 102 Id. 627. 2.

This suit was brought in equity by Wilma Earl, as widow, against the heirs at law of O. I). Earl, deceased, to have her dower allotted to her. O. D. Earl died intestate on September 1, 1919, in Conway County, Ark., owning the property involved in this controversy, which is situated in said county. He left no lineal descendants, but was survived by his widow, who is the plaintiff, and by his brothers, the defendants, who are his sole heirs at law.

Shaver, Chancellor; STATEMENT OP PACTS. This was a suit brought in equity by the owner of land to cancel an oil and gas lease covering 120 acres of land in Nevada County, Arkansas, upon the ground that the lessee and his assigns had forfeited the lease.

B. Balter, Judge; 1. The court erred in holding the order sufficient to protect appellees and that the burden was on appellant to show that in opening up the road they failed to do it according to the order. The order shows the court had no jurisdiction to make it. The burden was on appellees to show that the acts complained of were in compliance with a valid order and within its terms. Kirby’s Digest, & 2292 to 3005. 2.

Greenwood District; George W. Docld, Special Judge; It was error to refuse to exclude all testimony relative to the action of the dogs. 108 Am. St. Rep. 1027. No effort was made to show that these dog’s were properly trained or handled or that they were even bloodhounds. 116 Ark. 232; 125 Id. 478, Appellant did not object to the introduction of the testimony with reference to the tfail of the bloodhounds and did not ask that such evidence be excluded.

Coleman, Judge; The court erred in holding Mr. Rushton not a citizen, within the meaning of the law, and dismissing appellant’s cause. The first point to be determined is the meaning of the word “citizen,” as used in section 12, initiative act No. 1. Webster, Diet., Bouvier, Diet., and Burrill, Diet., verbum ‘ ‘ citizen; ’ ’ Blackstone, Com. Prior to the Fourteenth Amendment, U. S. Const., the Constitution never declared who were citizens thereof.

M. Jackson, Judge; Kirby’s Digest, § 5215, overthrows the law as announced by the court below, and the court erred in disallowing the claims and holding that the husband was responsible or liable for the wife’s debts. 48 Ark. 386; 14 Icl. 615; 52 Id. 1-11; 80 Ark. 37; 135 Id. 291. The husband was not liable for the wife’s debts.

A. Dickson, Judge; 1. The court should have directed a verdict for appellant. 129 Ark. 77; 215 S. W. 589; 124 Ark. 523. The Kansas City Southern Railway Company was not operating the road at the time of the injury. Under the Federal Control Act of Congress, March 21, 1918, and the Transportation Act of 1920, the railroad company was not liable at all. The deceased was a trespasser although a child of seven years. 66 Ark. 495.

<p>Appeal from Baxter Chancery Court; Joseph W. Stayton, Special Chancellor;</p>

Elliott, Chancellor; The finding of the chancellor that appellants did execute the contract sued on is not supported by a preponderance of the evidence. A comparison of the signatures -is convincing that Kirby and his wife did not sign the contract, and the description of the lands is not sufficient and definite enough. 21 Ark. 533; 85 Id. 1; 123 Ga. 415. 1.