Volume 146 — Arkansas Reports

II. Dudley, Judge; 1. The city was without power to make the contract alleged and sued upon. . The city was not acting in its proprietary capacity, but as trustee for the water districts 1 and 2. Kirby’s Digest, § 5675; 117 Ark. 93. It was beyond the power of the city to make the contract. The statute only authorizes the city to operate and maintain the works, and not to reconstruct the system or change the plan of operation, but only to repair. 48 L. R. A. 285.

M. Barker, Chancellor; 1. The demurrer to the complaint should have been sustained, as it shows no right in plaintiff to go upon and construct a levee across appellant’s lands. Act 106, Acts 1905, p. 267. Act 339, Acts 1917, p. 1863, does not authorize the district to exercise the right of eminent domain, and the demurrer should have been sustained. 2. It was error to admit oral proof of the filing of the plans and specifications. 80 Ark. 80.

B, Sorrells, Judge; 1. The question presented is, did appellant waive its right to the warranty of soundness of two cars of meal by trying to dispose of same, or was it compelled to elect whether it would rescind the sale, or keep the meal and sue for damages for the meal purchased for resale and human consumption, and upon inspection found to be unsound for the purpose intended % The court’s instructions were erroneous.

R. Pricldy, Judge; The maxim, “As one binds himself so shall he be bound,” should be upheld in this case. Appellee read the contract, and he is bound by it — hardship or inconvenience does not excuse performance of a contract. 61 Ark. 315; 93 Id. 452; 9 Cyc. 627; 162 S. W. 946; Cent. Diet. ‘ ‘ Contract, ’ ’ § 152. The court erred in instruction No. 4. It is in conflict with No. 2.

'Appeal from White Circuit Court; J. M. Jackson, Judge; 1. There are three reasons for reversal, because (1) the court erred in refusing to permit defendants to testify as to the rescission of the original contract between plaintiffs and defendants, (2) the court erred in its instruction on that question, and (3) the verdict was contrary to the law in that it found for no specified amount.

Martineau,, Chancellor; 1. Act 15, Acts 1919, is in conflict with and repugnant to act 321, Acts 1909, and repeals it. 112 Ark. 437 does not sustain appellees in their contention. Where the Legislature takes up an old subject anew and covers the entire ground of the subject-matter of a former statute, it is evidently intended as a substitute for and repeals the prior act. 80 Ark. 411; 82 Id. 302; 112 Id. 440; 92 Id. 600; 100 Id. 504; 41 Id. 149; 92 Id. 266.

Elliott, Chancellor; It is clear from the evidence that Jordan sold Troupe the land on which he (Troupe) now resides, and the law is well settled. The proof is clear, unequivocal and convincing that a mistake was made and a -reformation should have been decreed and the chancellor erred. Renfrow was not an innocent purchaser. 1. The law regarding actions for damages for deceit or misrepresentation is well settled.

B. Balter, Judge; STATEMENT OE EAOTS. J. F. Jacobs died testate in Izard County, Arkansas, leaving surviving him his widow and several chib dren. Dee E. Jacobs was one of his children, and he died intestate, leaving surviving him Lola Jacobs, his daughter, as his sole heir at law.

B. Sorrells, Judge. STATEMENT OP PACTS. Appellant brought this suit in ejectment against appellees in the circuit court to recover possession of certain tracts of land. The case was tried before the court sitting as a jury upon an agreed statement of facts, which is substantially as follows: Tony Gaikens was the owner of eighty acres of land which he occupied with his wife, Josephine Gaikens, as his homestead.

L. Hutchins, Chancellor; STATEMENT OE EAOTS. I. J. Stacy brought this suit in equity against W. R. Cain to obtain- judgment upon .a promissory note and to foreclose a mortgage given to secure the same. The answer sets up the defense of usury.

Appellee was one of the board of commissioners of district 1 and could not employ or hire himself at a stated price per month. Act 338, § 5, Acts 1915, prohibits him from so doing. The hiring was unlawful and the contract void, and 'he should have been restrained as prayed, and it was error ■ to refuse the relief prayed. Act. 338, § 5, Acts 1915, p. 1407. The law is clear and plain, and this case is ruled by 98 Ark. 38.

The note was barred by the statute of limitations. 2. It was error to render a personal decree against ■ heirs. The claim should have been presented for allowance to the administrator of Robert Conley and it was error to sue the widow and heirs. 35 Ark. 292; 40 Id. 544; 39 Id. 79-80; 45 Id. 303. 3. The decree is against the great preponderance of the testimony and the claim is barred by laches. 123 S. W. 1046-7; 145 Id. 886; 142 Id. 158.

The facts proved do not show that the death of Judge Little was caused by the means provided for or covered by the policy, and the court erred in directing a verdict, as a case for a jury was made by the testimony. 92 Ark. 378; 76 Id. 520; 105 Id. 213; 112 Id. 507; 102 Id. 460; 71 Id. 445; 119 Id. 589; 210 S. W. 350; 120 Ark. 43; 98 Id. 370. 2.

M. Jackson, Judge; The court erred in admitting Sheriff Plant’s testimony and in addressing the remarks to the prosecuting attorney in the presence of the jury during the cross-examination of it. M. Clayton; also in admitting the evidence of H. B. Rogers. This was extremely prejudicial to appellant. Without this evidence a verdict of “not guilty” would certainly have been the result.

B. Priddy, Judge; 1. The demurrers should have been sustained and it was error to overrule them.

Harris, Special Chancellor; 1. Chancery cases on appeal are tried de novo. 125 Ark. 364; 93 Id. 394; 79 Id. 577; 99 Id. 218. The finding of the chancellor is persuasive only. 197 S. W. 1160; 75 Ark. 72. 2. B. A. Kimple could not pass any better title than she had, and the deed to her was only a mortgage.

.Appeal from Lee Circuit Court; R. D. Smith, Special Judge; It was error to allow Hall Bros. Company to intervene and become party to the record. Plaintiff was entitled to try the case as made by the petition and the sheriff’s response. Hall Bros. Company were strangers to the record, and it was error prejudicial to appellant to allow them to intervene, as they have no interest and no proper place in this cause. Plaintiff’s action is strictly against the sheriff.

The whole of the cross-complaint is absolutely undenied, and hence all material allegations are taken as confessed. 30 Ark. 362; 93 Id. 269;'91 Id. 30. A good plea unanswered is always .sustained. 21 Ark. 18; 25 Id. 105; see, also, 16 Id. 97; 19 Id. 96; 56 Id. 73; 51 Id. 368. Appellant’s cross-complaint was unanswered, and he was relieved of all proof. It was error to allow judgment ag-ainst appellant Hill. 2.

Appeal Horn Sebastian Circuit Court, Greenwood District; John Brizsolara, Judge; 1. The evidence is insufficient to show that any negligence of defendants caused the accident. 89 Ark. 581; 100 Id. 53; 86 Id. 289. The scintilla doctrine as to evidence does not prevail now in Arkansas. 114 Ark. 112. 2. It was an accident for which appellants were not liable. 116 Ark. 82. Verdicts can not be predicated upon conjecture. 113 Ark. 353; 116 Id. 82; 174 S. W. 574.

F. Reeder, Chancellor; STATEMENT OE FACTS. W. Gr. Bonham was expelled from the Brotherhood of Railroad Trainmen, a fraternal association, on the charge of having committed adultery with the wife of his brother, A. G. Bonham. The prayer of his complaint was for a mandatory injunction to compel the association to restore him to membership and for damages for his alleged wrongful expulsion therefrom.

Mc-Mahan, Chancellor; STATEMENT OE EAOTS. Appellants sued appellees in the circuit court for damages for breach of a contract to purchase a car of flour and feed.

Elliott, Chancellor; STATEMENT OF FACTS. On the 5th day of June, 1915, appellees brought this suit in equity against appellants to foreclose a deed of trust on real estate and also to attach other real estate on the ground that appellants were nonresidents. Appellants admitted the execution of the deed of trust sued on, and the foreclosure of the same, but defended the suit on the ground that the land attached had been released from the debt sued on.

The contract herein was void from the beginning for the reason that the insured made certain statements therein in breach of his warranties in said contract. The statements were warranties and were proved false as the beneficiar}1- (appellee) was not the lawful wife of the insured. A wife of a man having another living wife not divorced is not a legal wife. 116 Ark. 501; Kirby’s Digest, § 5176; 97 Ark. 272.

Coleman, Judge; 1. This litigation grows out of the case in 131 Ark. 197 which was reversed. When the case was retried, plaintiff Vaughan recovered judgment, which carried the costs of the case, and Vaughan is entitled to pay for the care and feed of the cattle.

.Appeal from Carland Circuit Court; Scott Wood, Judge; 1. The court erred in overruling the demurrer. There was no allegation as to the contract of bailment between appellee and appellant and no allegation of acceptance of the bailment by appellant. 6 C. J. 1104,1156. 2. The court erred in permitting incompetent testimony to go to the jury. 3. The instructions are erroneous; appellant at the most was liable for bad faith or gross negligence. 6 C. J. 1164., 1.

H, Dudley, Judge; The material facts here are undisputed, and it was error to send it to a jury. A verdict should have been directed and left to the jury to fix the damages. 38 Cyc. 1565-7; 97 Ark. 438, 442. The cabinet was not a fixture but only a piece of furniture. 72 Am. St. Rep. 138. If a fixture at all, it was a domestic fixture and not a part of the realty. 40 S. E. 747; 67 L. R. A. 669. It was not a fixture. Tiedeman, Real Prop.

É. Dudley, Judge; 1. Joseph Cain died intestate as to his personal property. Appellants are entitled to share in the personal estate. The provision is not intended as a gift to T. F. Cain, but was inserted for the purpose of naming him as executor. The provision embraces- only “notes and accounts” which can not by any sort of construction be held to include tangible property or money on hand.

W. Clark, Judge; The county court judgments were valid, and the circuit court erred in canceling them. The county court and no other had the right to change the boundary lines of townships. The county court has exclusive original jurisdiction in matters pertaining to roads. This can not be invaded by the Legislature nor any court; act 422, Acts 1911, p. 365; 134 Ark. 121; 135 Id. 83; 92 Id. 93.

Eayme, Judge; Action by Fred Mauldin, a minor, by his father, R. O. Mauldin, against the Director General of Railroads and the Missouri Pacific Railroad Company, for personal injuries received by reason of defendant’s negligence while a passengur on defendant’s train. It was error to render judgment against the Missouri Pacific Railway Company.

The court erred in sustaining the demurrer. According to the allegations of the complaint, the clients of appellant were under a duty to permit him to collect their judgment in order that he might receive one-half of the-proceeds thereof, and appellee with knowledge of the fact did maliciously, unlawfully and fraudulently cause, induce and procure appellant’s clients to break their contract in order that he might control the litigation and render appellant’s efforts to…

M. Jackson, Judge; 1. The court erred in instructing the jury as to the effect of the possession of recently stolen property. 140 Ark. 413; 116 Ark. 357; 83 Id. 192; 125 Id. 260. 2. It was error to permit the witness Jones to testify that the Missouri Pacific- Railway Company was a corporation. 58 Ark. 98; 108 Id. 339; 84 Id. 140. 3.

A. Dickson, Judge; 1. The note was against public policy and void. Acts 1913, pp. 162 to 197, especially § 37; 176 Pac. 215; 109 Fed. 121,133-5; 21 Id. 299; 61 Id. 993; 115 U. S. 121; 176 Pac. 215; 171 U. S. 669. 2. The cause of action is barred by limitation. Kirby’s Dig., §§ 5083, 5069; 25 Cyc. 1315. See, also, 51 N. E. 200; 17 S. E. 336, 912; 30 L. R. A. 112; 66 N. Y. 385; 75 Id. 150; 11 Olda. 699;.23 Cyc. 1292. 3. Defendant signed the note as an accommodation maker.

<p>1. Wills — life estate with power of disposal.- — Under a will devising a life estate in land with remainder to the legitimate heirs of the body of the devisee, and with power to dispose of the land by will in case the devisee dies without such heirs of the body, the devisee was empowered to dispose of the property by will.</p> <p>2. Wills — construction.—In construing a will, the paramount rule is to arrive at the testator’s intention, which must be done from the language used where it is plain and free from ambiguity; parol evidence being admissible in aid of construction only when the language used is doubtful or susceptible of two meanings.</p> <p>3. Wills — construction.—Where one having a life estate in certain land with absolute power of disposing of it by will contracted with another who furnished the money to improve such land that he would devise the land to him, and in pursuance thereof devised to the latter all of his property, real, personal and mixed, he will be held to have devised the property of which he had the power of disposition.</p>

M. Jackson, Judge; STATEMENT OE EACTS. Clyde Pearrow was indicted for the crime of burglary and grand larceny charged to have been committed by breaking into some box cars owned by the Missouri Pacific Railroad Company, and' taking therefrom some dress goods, window shades and cigarettes. Lotis Loekaby was a witness for. the State.

H. Dxodley, Judge; STATEMENT OP PACTS. Ben Shanks sued the Kelly Handle Company to recover damages for injuries received by him while operating a rip-saw in the handle mill of the company. The eyidence adduced by the plaintiff is, substantially, as follows: The Kelly .Handle Company owned and operated a handle mill in the city of Blytheville, Arkansas, and Ben Shanks had been working* for it about fifteen months when he was injured.

H. Dudley, Judge; 1. The court erred in expressing an opinion as to the credibility of the plaintiff when he placed his construction upon the contract in regard to work on farm and at machinery. It was a matter for the jury and not the court to determine the credibility of the witness and the weight of his evidence. 63 Ark. 457; 69 Id. 489; 32 L. R. A. 766. 2.

B. Baker, Judge; The sole question is whether appellants, in appealing from the awards of damages in the county court, should have proceeded under § 3006, Kirby’s Digest, instead of § 1487 Id. The right of appeai from county courts is reserved in our Constitution, and the Legislature is without authority except to designate reasonably the manner in which such right may be exercised. Const., art. 7, §§ 14, 33; 90 Id. 219; 118 S. W. 1010; 204 Id. 746.

H. Dudley, Judge; 1. The representation of the acreage in the written contract was in material excess of the actual acreage and was binding on the lessor and assignor; and, 2. The court erred in directing a verdict for defendants. 19 Ark. 102; 61 Id. 120; 100 Id. 280; 101 Id. 95; 24 Cyc. 918; 43 Ark. 462; 95 Id. 150; 100 Id. 280; 147 Mass. 403.

Barker, Chancellor; The chancery court erred in sustaining the demurrer and redering judgment against appellants. The appellants stated a cause of action and it was error to sustain the demurrer. Courts of - equity can tell molasses from whiskey and can see fraud. The individual members of the firm of Ford & Wheeler did not obtain a discharge in bankruptcy from their individual debts and were liable for their individual debts. .

Steel, Judge; T. It was error to render judgment. 216 S. W. 3 is not overlooked. The train was operated by the Director General of Railways under the Federal Control Act and the order of the President of the United States. The operation of the train was by the supreme governing power of the Nation, and all State regulations and rules in conflict therewith fall. N. Pac.

The court erred in granting a new trial because' it-changed its views of the construction to be placed upon the-contract, and its last construction was error. The only instruction given was erroneous.

All statutory enactments to the contrary are void and of no force whatever. This section has often been interpreted as upholding appellant’s position. Under Kirby’s Digest, 3405-6, 4905-6 and 4912, it was incumbent upon the State Auditor to issue his warrant. 125 Ark. 101. It was clearly the duty of the Auditor to refuse to issue the warrant as the Treasurer was not authorized to pay same.

McMahan, Chancellor; 1. The note was not secured by a lien against the property. A cursory examination of the records would have shown that there was no such note in existence against the property and hence no lien in favor of the original holder or any bona fide transferee.

Elliott, Chancellor; We agree with the lower court that the assessment for 1918 is governed by act 234, Acts 1917, but plaintiff was not negligent in not supplying its resident agent with all the data to make a proper assessment at the time reauired by the statute. There is no statute making it tbe duty of a nonresident to supuly its resident agent with a list of its property. Plaintiff was not negligent, and is not estopped from seeking relief in chancery. 7 Am.

H. Dudley, Judge; The county judge acts in .leasing the school lands not as a judicial officer but purely in a ministerial capacity! Mandamus was the proper remedy. 14 Ark. 699; 20- Id. 337; 26 Id. 237; 129 Id. 286; 60 Pac. 367; 112 U. 5. 50. 1. This agreement or contract is in two sections of the statute of frauds and is void. Act 156, Acts 1905, p. 398; 111 Ark. 336. It was void for lack of description in notice, and the lease was for more than ve years. 2.

Colenncm, Judge; 1. Appellants Ottinger and Goforth were entitled to a lien for hauling the ore. Kirby’s Dig., § 5011; 71 Ark 334; 75 Id. 104; 58 Am. St. Rep. 545. 2. The court erred in refusing to allow appellee Reeves to testify that he knew there was a deed of trust on the ore in controversy. 33 Ark. 328, 336.

Rogers, Chancellor; 1. There is absolutely no proof that the judgment disallowing the claim was procured by fraud, misrepresentation or other unfair advantage by the administrators, the attorneys or any one else connected therewith. The undisputed proof is that no one interested in the case tate of Carl Meier, deceased, knew of the disallowance by the probate court until the January following.

V. Bow-land, Chancellor; 1. The antenuptial contract was a jointure and reasonable, and bars dower. Kirby’s Digest, §•§ 2695-6; 62 Ark. 79; 140 N. W. 872; 21 Cyc. 1255; 79 Ky. 517; 98 N. E. 588; 108 Id. 691; 110 Id. 34; 130 N. W. 155; 87 Ark. 175. 2. Marriage was a sufficient consideration to support the antenuptial contract.

W. Smith, Judge; STATEMENT OP PACTS. J. J. Farrell sued T. J. Ellis & Company to recover damages for an alleged breach of contract for the sale by Ellis & Company to bim of certain steel rails.

E. Randolph,, Special Chancellor; STATEMENT OE EACTS. Hamp Davis and Florida Davis brought this suit in equity against Gus Straus and others as sureties on the bond of the administrator of the estate of Ella Davis, deceased, to surcharge and falsify said administrator’s account, and as grounds therefor allege that said administrator took into his possession certain property of said decedent and failed to account for the same.

Apjoeal from Ouachita Circuit Court; Chas. W. Smith, Judge; 1. The complaint should not be treated as amended to conform to the proof, as the cause of action was barred. The court erred in refusing to direct a verdict for defendant, as there was no evidence that the horse had any value at the time he was injured. The court correctly refused to allow plaintiff to amend the complaint. Kirby’s Digest, § 6145; 75 Ark. 465; 132 Icl. 368; 124 Id. 207. The action was barred.

Shaver, Chancellor; Act 203, Acts 1919, is void. It is unjust, unequal, confiscatory and discriminatory. It is unjust and the discrimination is so arbitrary and manifest as to amount to fraud, which is admitted by the demurrer. This case falls within the rule in case of Ruddell v. Rutherford, 145 Ark. 49. See, also, 130 Ark. 70; 214 S. W. 56. The legislative findings as to benefits are not conclusive.

H. Evans, Judge; 1. This is the second appeal in this case. 194 S. W. 708. The only additional testimony in behalf of defendant was that of George Luckadoo, whose testimony did strengthen defendant’s plea of payment of the last note sued on, or as to agency of Embree. 2. The court erred in giving the fifteenth and sixteenth instructions, as there was no evidence upon which to base them.

M. Jackson, Judge; The indictment alleges ownership of the cotton in Fred Raspberry. Allegations of ownership in an indictment for larceny must be proved as alleged. 73 Ark. 33. There was a fatal variance in the proof from the allegations in the indictment, and part of the oral instruction given by the court is clearly erroneous. 108 Ark. (Brown v. State). A verdict for defendants should have been given.

M. Shinn, Judge; 1. The evidence wholly fails to establish that the road obstructed was a public road by prescription. It was not established by any order of the county court. If a public road, it was such solely by prescription. The ferry was a private enterprise, and could be abandoned at any time by the owner. The owner had no right to make a landing there against the wish or consent of the appellant or his predecessor in title. 84 Ark. 21-27.

M. Jackson. Judge; 1. This case was reviewed here in 140 Ark. 371. On second trial the evidence was substantially the same.

Mar.tineau, Chancellor; Ala. 478; 145 Iowa 514; 26 L. R. A. (N. S.) 696; 124 N. 1. A Masonic lodge is a -charitable institution. 37 W. 316; Ann. Cases, 1912 A, 1183. 2. Its property is used exclusively for charitable purposes and under our Constitution is exempt from taxation. Const. (1874), art. 16, § 5; 57 Ark. 445; 84 Id. 497; 79 Neb. 462. 3. The demurrer admits the verity of all the allegations contained in the petition. 4.

II. Dudley, Judge; 1. The court erred in refusing to permit plaintiff to show by witnesses Beale and Davis their conversation and transactions with Sudberry relative to the sale and purchase of the stock. K. & C. Dig., § 3403, only applies to parties to the record. 46 Ark. 306. Mere interest in the transaction or result does not disqualify. 63 Id. 556; 183 S. W. 187. , 2. It was error to admit in evidence the letter addressed to B. A. Lynch and the testimony of Lynch.

M. Jackson, Judge; 1. It was error to deny the petition for removal to the Federal court. 154 U. S. (38 Law. Ed.), 901; 170 U. S. 213; 100 Id. 303. . 2. It was error to overrule the petition for change of venue without giving any reason. 3. The denial of the petitions to temporarily withdraw the pleas of not guilty for the purpose of presenting motions to quash tlie indictments was an abuse of discretion. 100 U. S. 303.

Elliott, Chancellor; STATEMENT OE EACTS. The directors of Common School District No. 14 of Arkansas County, and certain tax payers residing in the common school district,brought this suit in .equity against the county superintendent, the county clerk, the county treasurer and Gillett Special School District No. 66 of Arkansas County, to enjoin them from paying any warrants or asserting any right to the funds belonging to Common School District No. 14, and from taking control…

Independence Circuit Court; Dene H. Coleman, Judge; The possession and holding of the defendant was not adverse. The mere retention of the property by the grantor who was in possession at the time of the grant or conveyance for seven years does not constitute a holding adverse to the grantee. 58 Ark. 142; 69 Id. 562-6; 84 Id. 52; 101 Id. 163; IE. C. L. 751. 1.

E. Jolmson, Special Judge; STATEMENT OE EAOTS. T. W. Park on behalf of himself and other persons associated together for the purpose of growing and shipping cantaloupes and peaches, sued the De Queen & Eastern Railroad Company to recover damages for failing to furnish cars whereby their cantaloupes were damaged and lost.

McMahan, Chancellor; 1. The question here has been determined against the decision of the chancellor by this court in Ex parte King, 217 S. W. 465. The juvenile act is constitutional. By Kirby’s Dig., §§ 3776-7, all jurisdiction was taken from the circuit courts and vested in the probate courts exclusively. 40 Ark. 433; 98 Id. 63; 135 S. W. 461. 2.

V. Bowlcmd, Chancellor; 1. The court erred in changing the former decree and awarding the children to appellee. The children are minors, and, by statute as well as common law, the father (unless incompetent or unfit) is the natural guardian and entitled to the custody and care, etc., of the minor children. 22 Ark. 96; 95 Id. 355; 21 Enc. Law 1036-7; 124 Ark. 579.

R. Haynie, Judge; . 1. The court erred in excluding the evidence of the conductor, J. J. Myers. 80 Ark. 528. It was a statement made in the presence of the plaintiff, her uncle and physician, and was not denied by either of them. It was a statement directly in conflict with the rights and contentions of the plaintiff, and no response was made by her, and such statements are competent and admissible. 1 Elliott on Evidence,' § 221; 47 So. Rep. 279; 181 111.

Elliott, Chancellor; 1. The first contract was modified by the new agreement to the extent of releasing appellant from any obligation to pay the purchase price unless the machinery would meet the requirements of the guaranty. The new agreement took the place of the old one. 112 Ark. 227; Ih. 165; 6 R. C. L. 308; 112 Ark. 223.

Dene H. Coleman, Judge; 1. It was error to instruct the jury that the burden of proof was upon plaintiff. The interpleader asked to be made a party to the suit and claimed that he had fulfilled his part of the contract. He then was entitled to open and close the argument, and the burden of proof was upon him. 128 Ark. 25-7.

Haynie, Special Judge; 1. The statement of appellee to Majors concerning the correspondence with Johnson, the president of the company, was incompetent and it was error to admit it, as it was prejudicial. It was not within the issues presented by the complaint but directly refuted them; it did not sustain the theory of payment set up in the complaint hut established the nonpayment and sought to show a reason for same.

Shaver, Chancellor; affirmed. 1. The consideration for the deed from Brock was adequate. Mere inadequacy of consideration is not sufficient to set aside the deed, unless so gross as to shock the conscience and amount to fraud. 13 C. J. 366. See 239-b. In the light of the evidence the consideration was not grossly inadequate. ■ 2. The transaction was neither unreasonable or improvident.

II. Dudley, Judge; 1. The undisputed evidence shows that appellee was guilty of a violation of his contract. He admits that he had the exclusive management and control of the “Irby, Undertaker,” business. He was the buyer and paymaster and funeral director; he was in all things the same Irby, Undertaker, who sold his business to appellants, and there was a breach of the contract. 20 L. R. A. (N. S. ), 769, and note; 6 R. C. L. 1018, 1019; 54 Ark. 216.

Coleman, Judge; 1. The plan for employees’ pensions, benefits, insurance, etc., was a voluntary step upon appellant’s part. It was something’ given to employees over and above the regular schedule of wages to provide a source of income in case of accident, sickness or death. 171 Pac. 392.

Martineau, Chancellor; statement op pacts. George G. Worthen, Louis Beinman and Louis Wolfort brought ail action of unlawful detainer in the circuit court against Tillman Green to recover possession of about ninety acres of land.

Shaver, Chancellor; STATEMENT OF FACTS. Appellants brought this suit in equity against appellee to obtain the right to the custody of a Catholic church house and cemetery in Little River County, Arkansas, and to restrain appellee from the further use thereof.

W. Smith, Judge; STATEMENT OE EACTS. Mrs. Mary King, administratrix of the estate of Mrs. Virginia Smith, deceased, commenced this proceeding in the probate court by filing exceptions to the final account current of Henry Stevens, as the executor of. the will of E. D. Smith, deceased. The judgment of the probate court was in favor of the execution, and the administratrix appealed to the circuit court.

Charles Nalley, a minor, by his father and next friend, W. A. Nalley, brought this action against the Terry Dairy Company to recover damages for personal injuries alleged to have been caused by the defendant’s negligence. The Terry Dairy Company is a corporation engaged in the retail and wholesale ice cream business and in the general dairy business in the city of Little Bock, Ark.

M. Jackson, Judge; 1. The alleged confirmation paper by J. R. Woods was not a confirmation of the contract of September 28, and plaintiffs must fail in their action because the proof wholly fails to bear out the confirmation. 137 S. W. 827; 96 S. W. 386. 2. It was error to instruct a verdict. The case upon the evidence was one for a jury. Ib.; 89 Id. 368; 106 Id. 482.

The complaint states a cause of action entitling plaintiff to mandamus. Acts 1917, p. 1468. 2. The duty of the commissioner is ministerial, purely. If he had any discretion, he could not arbitrarily refuse to issue the deed. 62 S. E. 695; 22 L. E. A. (N. S.) 735; 57 S. E. 1099; 80 S. W. 1158; L. E. A. 1916, p. 1148. The land was an island and belonged to the State. 73 Ark. 199; 53 Id. 314; 61 Mo. 345; 117 let. 33; 137 Id. 271; 100 Ark. 28; 17 A. & E. Enc.

The land belonged to the plaintiffs, and it is immaterial wffiat rent they received or what they might have received. Interest was charged at the highest contract rate.

Under initiative act No. 1, Acts 1915, p. 1505, there was no liability, as the boy was not under sixteen years of age. 1 A. & E. Enc. Law, p. 927. The evidence does not warrant a finding that plaintiff was employed to work at adjusting any belt to any machine. As to meaning of the word “employ,” see 90 Pac. 259; 210 Mass. 387. All the authorities on the subject indicate that defendant did not employ the plaintiff to adjust a belt and did not violate the law.

Elliott, Chancellor; 1. The burden was on, plaintiffs to show (1) that the lands from which the timber was cut belonged to plaintiffs; (2) that the timber was cut from plaintiff’s lands without right, and (3) the value and quantity of the timber cut.

The court had the right to set aside the default judgment, regularly and properly entered, without any showing whatever. 102 Ark. 255; 90 Ark. 86-7; 123 Id. 446. 2. The court has the inherent power and discretion to set aside a judgment on its own motion.' Kirby’s Digest, § 1188. 3. An order setting aside a default judgment is a final judgment from which an appeal lies. 104 Ark. 45; 105 Id. 324; 27 Ark. 296; 107 Id. 422; 122 Id. 262; 131 Id. 90. 4.

E. Martineau, Chancellor; 1. It was error to overrule the motion to transfer the cause to the law court, as the chancery court was without jurisdiction. The cause of action did not involve a long or complicated account, but a simple question of fact easily settled in a court of law by a few simple instructions. No fraud was alleged in obtaining a final settlement nor mistake.

M. Barker, Chancellor; 1. Lhider the law, Lawrence Lee’s estate, including mineral rights, descended to his heirs at law as tenants in common, subject only to the widow’s unassigned dower and homestead rights. His estate'included all oil, gas and mineral rights, and the heirs had full right to partition the lands including such mineral rights.

Cochran, Judge; 1. The court erred in refusing a new trial because of improper and prejudicial influences to which the jury was subjected. The jury were permitted to separate during the periods of adjournment of court before and after the case was submitted to them and were never put in charge of a bailiff as required by statute.

Elliott, Chancellor; 1. As to the $200 item claimed by way of cross-complaint for rice straw claimed to have been sold to appellee, the evidence seems to be evenly balanced, and we will not discuss it. 2. The court erred in not allowing the $171.75 credit claimed by appellant for hay furnished appellee through its agent, Patterson, and in not allowing the $7.70 for repairs to put the hay press in first-class condition.

Appellant had the right, under the laws of Arkansas and Oklahoma, to qualify as administrator of his son’s estate. Rev. Laws of Okla. Ann., § 6245; Kirby’s Digest, §§ 6289-90. 2. An action for death by wrongful act can be maintained in the name of the administrator. Rev. Laws Okla. Ann., § 5281. Appellant as administrator of Gilbert, the son, appointed by the probate court of Sebastian County, could have maintained this action in the courts of Oklahoma. 16 Kan. 568.

Coleman, Judge; The court erred in refusing to give instructions 1 and 2 asked by plaintiffs. Appellants did all the work toward the sale of the land, while Case and partners did nothing, and it would be rank injustice under all the evidence if they could not collect the commission fairly earned, or at least have the question of the unfairness. of defendant Calaway submitted to the jury. 112 Ark-' 227. 235. 1.

H. Dudley, Judge; 1. Tire court erred in its instructions to the jury. Nos. 1, 2 and 3 are erroneous, but No. 4 is especially objectionable and prejudicial. - So is No. 10. An. erroneous instruction is presumed to be prejudicial. 70 Ark. 79; 110 Id. 557; 64 Id. 505; 72 Id. 31. The instructions were contradictory. 83 Ark. 202.

The verdict of the jury was contrary to the evidence, and appellant’s requested peremptory instruction should have been giveli. The testimony shows that there was no oral understanding on any different terms than that disclosed by the correspondence; the lien was not waived on account of any oral understanding and the court properly instructed the jury in No. 4 that the agreement must be in writing. This was an exclusion of testimony of an oral understanding'.

S. Steel, Judge; 1. The court erred in refusing to let Hassie Self express her opinion of the condition of her mother’s mind after having testified as to what she had.said and done upon which she based her opinion. 11 R. C. L. 601; 97 Ark. 457. 2. The court erred in excluding from the jury the evidence of Buster Thrash and the evidence of Bud Ray. Defendant was convicted of assault with intent to kill, and the intent is a material element in this crime.

B. Sorrells, Judge; STATEMENT OE EACTS. The White Biver Lumber Company, a nonresident corporation, brought this suit against B. H. Elliott, sheriff and collector of Arkansas County, Arkansas, to recover the .sum of $2,121.51.

H. Dudley, Judge; STATEMENT OE EAOTS. Mrs. Tommy Betts for berself, and as next friend of her minor children, sued Walker D. Hines, as Director General of Railroads, to recover damages for the alleged negligent killing of her husband, who was run over and killed by a passenger train of the railroad company.

• Appeal from White Circuit Court, J. M. Jackson, Judge; This is not >a claim against the estate, hut, under Kirby’s Digest, § 54, the sons were liable persnally by continuing to operate the mercantile business of their father. 19 Ark. 676; 61 Id. 414; 62 Id. 223. Administrator has no power to enlarge the liability of his intestate or bind the assets in his hands by any agreement of his. 10 Ark. 204; 18 Cyc. 247. This rule is approved in 65 Ark. 443; 61 Id. 410.

E. Dudley, Judge; 1. The answer to the complaint raises two issues: (1) that there was an exchange of lands by Isaiah Jackson, for the lands in question; (2); that plaintiffs are barred, by adverse possession. The first question was properly submitted to a jury; but the second issue was not properly submitted, nor in fact submitted at all. 2. Instruction No. 4 was in substance a peremptory instruction, and it was error.

Appellant was entitled to a directed verdict. Nelson was an experienced miner and knew the danger and assumed tlie risk. 76 Ark. 72; 97 Icl. 486; 98 Id. 145; 87 N. W, 736; 114 S. W. 785; 50 N. E. 36; 71 S. W. 80. 2. The court erred in refusing the instructions asked by defendant.

The court erred in refusing the change of venue and in its rulings as to the qualifications of jurors for cause. A juror who has formed any -opinion on the case is prima facie incompetent. The jurors should have been rejected on defendant’s challenge for cause. 56 Ark. 381; 113 Id. 301; 102 Id. 181.. 2. It was error to permit witness Joe Wyatt to testify, as the testimony showed he was mentally unbalanced and did not know the nature of an oath.

W. Hendricks, Judge; The material questions in this ease are, (1) was appellant negligent; and (2), if so, did this negligence cause the damages claimed to have followed; (3) are the damages excessive? All three of the instructions asked by appellees were given; the first was unfair, insidious and prejudicial; also abstract.

L. Hawkins, Chancellor; 1. The only remedy of the idiot is appeal. Kirby’s Digest, § 4431, subdiv. 5; 79 Ark. 194-200. 2. The appeal could be taken at any time during the disability. 80 Ark. 519; 71 Id. 172; 22 Cyc. Law and Prac., p. 1247; 2 Cent. Ed. Am. Digest, p. 2251, §§ 1910-11. 3. The order to sell the lands was void. 80 Ark. 519; 43 Id. 427; 56 Id. 419-23. Where the decree is not responsive to the issue it is void. 81 Ark. 440-62; 87 Id. 206-10.

Martinecm, Chancellor; 1. Act 400, Acts 1919, is unconstitutional and void, and the court erred in sustaining the demurer. Art. 5, § 30, Constitution. The attempted appropriation is a part of and included in the general appropriation hill supposed to cover any ordinary expenses of the executive, legislative and judicial departments of the State, and the attempted appropriation is unconstitutional.