Volume 147 — Arkansas Reports

II. Dudley, Judge; 1. The verdict is so excessive as to show it was the result of passion, prejudice, recklessness or mistake. 9 Ark. 405; 25 Id. 49; 26 Id. 309; 39 Id. 5ll; 21 S. W. 36; 92 Ark. 345; 102 Id. 603. 2. It was error to give instruction No. 1, stating that the evidence was undisputed, etc. 93 Ark. 277. 3. The court erred in overruling the motion for new trial. The evidence on behalf of Dillon on the motion was not disputed by Seeley.

Feeder, Chancellor; The law of tenancy- by the entirety applies to personal property and is not affected by the passage of the married women’s enabling statutes. 13 R. C. L. 1106-8 and oases cited; 188 Pa, St. 33; Freeman on Co-Tenancy and Partition, 62 to 68; 173 Mo. 91; 61 L. R. A. 166; 173 Mo. 91; 61 L. R. A. 166; 73 S. W. 202; Schouler on Per. Prop. (3 ed.) 191. .

Martineau, Chancellor; 1. The execution and delivery by Hicks and wife of the option deed was not a part of the consideration for the execution and delivery of the warranty deed from the Fletcher heirs 'to Hicks, and Mrs. Hicks ’ dower right attached under the warranty deed. If Hicks ever owned this land, even for a moment, in his own right, then dower certainly attached to his wife. Title to these lands never passed to Hicks, and his wife was not endowed.

W. Hendricks, Judge; 1. The court erred in instructing a verdict for the plaintiff because (1) no contract of purchase was shown; (2) there was no evidence showing the market price of lumber in Chicago, the place of delivery; (3) appellant did not show by the testimony either the time of breach of the contract -or the market price of lumber at the time of the breach. 2.

Francis Circuit Court; R. J. Williams, Special Judge; statement op pacts. Frank Bean and Amanda Bean sued the Mosaic Templars of America to recover the sum of $300 alleged to be due them on a benefit certificate. The material facts are as follows: The Mosaic Templars of America is a fraternal beneficiary life association, and has been legally authorized to do business in the State of Arkansas since the beginning of the year ' .1916.

II. Dudley, Judge; The court erred in directing a verdict for defendant. Evans was on duty, where he had a right to be, and he was killed by defendant’s train; that makes a case of negligence in defendant which was not overcome by any evidence showing the exercise of dne care to prevent ■ the injury. The company was negligent and is liable. Evans was not guilty of contributory negligence, and it was error to direct a verdict. A proper lookout was not kept. 102 S. W. 701-2.

M. Jackson, Judge; 1. The action is barred by the three years’ statute of limitation. 47 Ark. 301-14. The chancery court had full power to declare a lien upon the interest of appellant, and it was the duty of the devisees under the will to assert their lien before the action was barred. A judgment of a court of record is conclusive as to the parties on any issue which might have been adjudicated. 118 Ark. 533; 119 Id. 413; 96 Id. 540; 97 Id. 450. The action is barred. 2.

At the time of the commencement of the original suit appellee had no right to foreclose the mortgage except for the $5,000 note due at the time. 2. Appellees purposely and deliberately refused to comply with the release provisions of the mortgage, and the only remedy appellants had was a resort to a court of equity, and they did so at the first opportunity. 3.

S. Steel, Judge; The errors committed by the court are patent. Appellant’s plea of former jeopardy should have been granted. 135 Ark. 166; 42 Id. 35; 43 Id. 271; 71 Id. 349. 2. The instructions failed to instruct the jury at all with reference to the character of verdict they should bring in, nor as to the nature of the crime. The overdraft statute makes the offense a misdemeanor, and he was found guilty of a felony. 113 Ark. 454; 66 Id. 264. 2.

The venue was laid in Sebastian County instead of, Crawford. Kirby’s Digest, § 6061. The cause of action arose in Crawford Cóunty and no part of it in Sebastian County. 1 Bush (Ky.) 384. The cases in 51 S. W. Rep. 148 and 65 Id. 152 are not in point. 1. The venue was properly laid. Kirby’s Digest, §§ 3286, 6061; 60 Ark. 182; 40 Cyc. 82 to 84. The cases cited from Kentucky do not apply, as the Kentucky law is different from .ours. 2.

P. Henderson, Chancellor; The finding of the chancellor is contrary to the clear preponderance of the evidence. The only question is whether or not Jones and Joplin endorsed the notes for the accommodation of Moss & Co. or P.'C. DeMoss. The evidence shows they did not. The burden of. proof was on appellees, andt they have failed. The weight of the testimony is clearly with appellant.

W. Hendricks, Judge-, 1. The court erred in directing a verdict for appellee, as there is a direct conflict in the evidence.on two material points and a case was made for a jury. 83 Ark. 631; 97 Id. 643; 107 Id. 158; 120 Id. 446; 128 Id. 347.

Clark, Judge; 1. The court erred in its refusal to instruct the jury on aggravated assault as requested by defendant. 72 Ark. 571; 96 Id. 52; 131 S. W. 46; 103 Ark. 28; 21 Cyc. 785. 2. The verdict is not supported by the evidence.

D. Shaver, Chancellor; The court below held that the district was void because it provided for the building of several bridges on different roads and therefore lacked unity. This court has not held a district void for lack of unity. No provision of the Constitution is violated here by the act, and the court erred in sustaining the demurrer. Act 263, Acts 1920; 95 Ark. 496; 102 Id. 306; 100 Id. 366; 107 Id. •290, 413; 224 S. W. 622; 125 Ark. 325; 139 Id. 595; 109 Id. 568.

Haynie, Judge; 1. It was error to refuse to direct a verdict for defendant as requested. There was a total failure of evidence to show that the jack with which plaintiff was injured was defective or that defendant knew of the defect. The verdict is based upon speculation, inference and surmise and can not be sustained. 26 So. Rep. 86-, 51 La. Ann. 1247; 88 Fed. 462. See, also, 59 Ark. 106; „58 Id. 454; 106 S. W. 817; 212 Id. 463. 2.

H. Evans, Judge; 1. The appellant is not guilty under the statute. Kirby’s Digest, 9843-4. The statute is in derogation of the common law and must be strictly construed. 79 Ark. 517. Before a conviction can be sustained under the statute the following facts must appear: (1) The person charged must have dug the well; (2) the person charged must have left or abandoned the well; (3) the well must have been dug or abandoned upon unenclosed property.

R. Eayme, Judge; 1. .It was mandatory upon tbe county court under § 22, act 130, Acts 1919, to terminate Road Improvement District No. 1 when the commissioners of district No. 2 ■filed a statement with the county court' in accordance with § 22, act No. 130, Acts 1919. 2. The court erred in dismissing the appeals from the judgment of the county court. 88 Ark. 118; 73 Id. 523 and 246; 215 S. W. 600.

Shaver, Chancellor; Under the statutes of this State we have two methods or systems of drainage procedure. Each system authorizes the assessment of public and corporate roads and railroads. Appellant is operating under neither of these systems, but is a body corporate under special act 92, 1917, which does not authorize the assessment of public roads or highways.

II. Dudley, Judge; The court should have directed a verdict for defendant, as plaintiff’s injury was the result of an assumed risk of his own negligence, as shown by the undisputed evidence. There was no negligence of the master in failing to warn a man of ordinary intelligence 'and experience in the operation of machinery as to its condition and danger, which were obvious and not concealed.

B. Priddy, Judge; 1. The court erred in sustaining the demurrer to the paragraph of the answer setting up the plea of res adjudicatu. The loss of the money on the person of Alice Taylor, she holding same as bailee for the plaintiff, was a damage necessarily inhering in the judgment in the Federal court.

B. Priddy, Judge; 1. The testimony failed to show negligence on part of defendant and fails to sustain the verdict under the alleg*ations of the complaint plaintiffs assumed the burden of proof, and the evidence failed to show negligence. 2. The verdict is excessive. The only testimony before the jury, that of Edward Coyne, shows that the damage to the radishes was not more than $3 per barrel.

(1) Appeal from Jackson Chancery Court; L. F. Reeder, Chancellor; (2) Appeal from Jackson Circuit Court; D. II. Coleman, Judge; 1. Acts 82 and 55, Acts 1919, are arbitrary and void, and act 266 is invalid for reasons set forth in act 82. Act 82 was passed without notice in violation of § 26, article 5, Constitution 1874. It is invalid because it atempts to create more than one district and is in violation of the Fourteenth Amendment to United States Constitution.

Francis Chancery Court; A. L. Hutchins, Chancellor; The evidence wholly fails to sustain the allegations of any violation of the contract by appellant. The case as made by plaintiff in the record is wholly without merit, and the findings and decree should be reversed. Appellee never tendered any money until September 3, 1918. To comply with the contract the money should have been provided and tendered on or prior to August' 31 or at least on September 2.

F. Reeder, Chancellor; 1. Defendants’ predecessors had been in possession of the lands for more than two years under a tax deed, and their possession was adverse and conferred a valid title. 79 Ark. 364; 126 Id. 86; i84 Id. 614; 60 Id. 499; 59 Id. 460. It is undisputed that Engles had been in possession for more than two years and that Andy Allen disclaimed his owning the land but stated that Engles did own it. 2.

B. Priddy, Judge; 1. Under the undisputed testimony the State failed to make a case against defendants for failure to work the road after having been legally warned. 2. The road was not a public road, and if it was defendants were not subject to road duty. 3. The court erred in refusing to give instruction No. 2 for defendants. Three full days’ warning was not given. 52 Ark. 265; lb. 270-272; 42 Id. 93; Kirby’s Digest, § 5263.

M. Barker, Chancellor; statement of facts. Appellees brought this suit in equity against appellants to cancel and set aside a deed from Gr. T. Whatley, trustee for D. L. King, to P. B. Swift for 160 acres of land in Lafayette County, Arkansas, and to quiet the title of appellees in said land.

E. Martineau, Chancellor; STATEMENT OE EAOTS. Appellee brought this suit in equity against appellant to quiet his title to lots 1 and 2 and the north five feet of lot 3, block 9, Fleming & Bradford’s Addition to the city of Little Bock in Pulaski County, Arkansas. Mrs. Eva W. Whitmore filed an answer for herself, and her minor children, who were also made defendants in the court below, filed an answer through their guardian ad litem.

B. Sorrells, Judge; STATEMENT OP PACTS. Kathleen L. Whitelaw brought this action against the Pine Bluff Company to recover damages alleged to have been sustained by her from a collision between the automobile iu which she was riding with its owner and a street car at a street crossing in the city of Pine Bluff, Arkansas.

.E. Martinecm, Chancellor; 1. Acts 23, 25 and 356, of the Special Session of 1920, as also act 82 of 1919, are void. The proposed improvement does not constitute a single local inprovement, and the unity of the district is destroyed by these acts, and they are void. 50 Ark. 116, 129; 89 Id. 513-16. The legislative determination that the improvement is a single one and local in its nature is not conclusive in this case. 130 Ark. 307. 2.

B. Baker, Judge; Tbe court below erred in overruling tbe demurrer of plaintiff and in bolding that tbe defense of an arbitration and award was a complete defense. Tbe parties tried to have a statutory arbitration and award under our statute. So intending, appellee must now defend this proceeding as a statutory arbitration and award. It is a statutory arbitration and award or nothing and binds no one. 2.A. & Eng. Enc. (2 ed.) 541.

O. Hammock, Chancellor; 1. Appellee, innocently perhaps, but none the less effectively, permitted her husband to use and deal with her property as his own, and in such manner as to lead creditors to extend him credit and lend him money, and she is estopped to deny her husband’s right to so manage her property. 57 Am. St. Rep. 175 and notes; Ann. Cases 1914 C 1059; and note; 74 Cal. 54; 80 Wis. 605; 199 S. W. 380. 2.

E. Martinecm, Chancellor; 1. The court erred in sustaining the' demurrer of plaintiffs to the cross-complaint of defendants. The demurrer admits the truth of all its allegations as to conspiracy and fraud. If plaintiffs were guilty of the acts of fraud as admitted by the demurrer, they do • not come into equity with clean hands. 1 Pomeroy, Eq. Jur. (4 ed.). 2. The school board had no legal right to discharge Gardner and no cause for his discharge.

A. Dickson, Judge; Act 237, Acts 1920, assessing and levying an asessment of benefits on personal property in the district, is unconstitutional and void. The right to levy a special tax for local improvements can not be justified on the theory that the property, real estate, receives special benefits. 86 Ark. 1.

E. Martinecm, Chancellor; 1. The court had no jurisdiction, as the issues were purely a matter of law, and it was error to refuse to transfer to the law court. Kirby’s Digest, { 5770; 71 Ark. 548; 70 Id. 432. Equity has no jurisdiction in suit for partition of land adversely held. 2. Under the evidence appellant has shown that the conveyance purported to be signed by appellant was a forgery. 1.

H. Dudley, Judge; 1. There was no evidence to sustain the verdict. It is clearly shown that the policies were rejected or voluntarily surrendered and that the contract was abandoned and rescinded. 2. Whether or not the right of cancellation is reserved in a policy, there, may be an immediate cancellation, abandonment or rescission of the contract by agreement of the insurer and insured, either by parol or in writing. 112 Ark. 582; 55 S. E. 11; 42 S. W. 180; 94 Pa.

II. Dudley, Judge; 1. In view of the undisputed facts as disclosed by the evidence, the verdict is contrary to the law and the evidence. 2. The court erred in admitting Wiliam Stephens’ testimony to go to the jury, and the verdict is contrary to law. 28 Ark. 550. 3. The instructions are clearly error in submitting undisputed facts to a jury. 69 Ark. 489; 67 Id. 147. 4.

8. Steel, Judge; 1. The court erred in sustaining the demurrer to the complaint. The probate court has exclusive jurisdiction in matters of estate of decedents. Const. 1874, art. 7, § 34; Kirby’s Digest, § 56, chap 1. 2. No other court has power to administer the estate or pass on the rights of creditors and distributees, and the court erred in rendering judgment, as the complaint did not state a cause of action. 47 Ark. 222; 51 Id. 361-6; 48 Id. 544; 40 Id. 433. 3.

The rule applies where the omissions or defects were not intentionally or deliberately made through bad faith. This is an exception to the rule, as McDaniel, by his own statement, showed a wilful intent not to perform the contract in its entirety. One who holds himself out as a workman impliedly covenants that he will do the work contracted for in a skillful manner. 3 Ark. 324; 4 Id. 523.

No negligence or carelessness was proved, and the court erred in its instructions given for plaintiff. This is a plain case for reversal, and no authorities need be cited. 1. Negligence, carelessness and recklessness were shown by the testimony. The evidence sustains the judgment and there was no error in the instructions. 97 Ark. 109. 2. The objections to instructions were in gross and too general. 105 Ark. 157. If any error, it was harmless. 50 Ark. 68; 54 Id. 289.

Reeder, Judge; 1. The demurrer should have been overruled and the cause submitted on the question of an accounting by the Less heirs to plaintiffs for the rents collected by their ancestor and same applied to the satisfaction of the vendor notes, because (1) the adverse possession, if same is adverse, commenced when Less took possession; the plaintiffs were all minors, and laches could not bar their rights; (2) being a homestead and no abandonment by the widow, limitation…

B. Sorrells, Judge; 1. Carter Murphy, who signed the contract, was not appellant’s agent nor was he authorized to make the agreement for her. There is no testimony that appellant authorized Carter to make this sale nor that she held him out as her agent. The writing was signed by Murphy alone, not as “agent,” and there is no testimony that appellant held Murphy out as her agent with her knowledge.

M. Barker, Chancellor; 1. The court erred in dismissing the complaint. The complaint stated an equitable cause of action. The Arkansas Power Company, with whom appellant made the contract which was breached, had gone out of existence, and appellant was seeking to follow the assets into the hands of the stockholders and the hands of the new corporation, its successor, which assumed the debts and liabilities of the old corporation.

<p>1. Judgment — res judicata. — The dismissal of a suit in equity to compel specific performance of a contract will' not bar an action at law to recover damages for breach of such contract; the issues in the two actions being different.</p> <p>2. Judgment — RES judicata. — Dismissal of a suit in equity for the purpose of allowing plaintiff to bring an action at law was not an adjudication which would preclude the latter action.</p> <p>3. Sales — construction op contract. — Under an agreement by the plaintiff to let defendant have his car for $675 and to take $2,500 worth of life insurance at the rate price of $80.21, and in case defendant “calls for the car before I get the policy the said $675 paid to plaintiff shall be demand,” held that plaintiff was bound to sell and defendant to buy the car for $675; and, if no insurance was issued through no fault of the plaintiff', defendant would be liable for any damages sustained by reason of the failure or refusal of defendant to take the car.</p>

W. Smith, Judge on exchange; 1. The action of the county court and the circuit court was arbitrary. The allegation that the lands were too remote and inaccessible to be benefited is unsupported by the proof. Legislative determination that property will not be benefited will not be inquired into unless it can be shown that such determination is so arbitrary as to amount to confiscation. 139 Ark. 341; 216 S. W. 690; 218 Id. 375; 113 Ark. 193; 123 Id. 327. 2.

Shave'1% Chancellor; STATEMENT OE EAOTS. Appellees brought this suit in equity against appellants on the 24th day of November, 1919, to quiet their title to 120 acres of land in Clark County, Arkansas. The title of both parties is deraigned from the State, which obtained title from the United States under the Swamp Land Grant.

E. Martineau, Chancellor; STATEMENT OF FACTS. Appellants brought this suit in equity against appellees to restrain them from proceeding further in carrying out an alleged contract for the reprinting and binding of certain 'Supreme Court Reports. The facts are as follows: Appellants are citizens and taxpayers of the State of Arkansas. The Legislature of 1917 passed act 226 providing for the reprinting and sale of certain Arkansas Supreme Court Reports.

cnit Court; W. B. Sorrells, Judge; 1. The court erred in refusing to give instruction No. 1 for defendant. 2. It was also error to refuse No. 4 for defendant. 3. Also error to refuse to give No. 7 for defendnat. 4. It was error to admit the testimony of E. B. Bloom, and to permit Bloom to answer certain questions.

H. Coleman, Judge; 1. The contract created a tenancy from year to year; and, if it did not, a tenancy of that kind resulted from the holding over by the tenant and the payment of rent from year to year without a new contract. 1 Taylor on Land! & Ten., p. 39; 61 Ark. 377. 2. Unless a different length of time is fixed by the contract or by statute, a tenancy from year to year can not be determined except by notice given at least six months before the end of the current year.

It was a suit growing out of alleged injury and damages to plaintiff’s property by constructing a building sought to be declared a nuisance. The rule applicable to the issues here is clearly stated in 29 Cyc. 1210. This rule is approved in 73 Neb. 798; 19Í 111. 605; 12 Peters 91. The parties suing are estopped.

E. Martinecm, Chancellor; The claims of appellant were prior to and paramount to that of the intervener, W. D. Tate, because (1) the agreed statement of facts shows that a writ of attachment was issued on December 19, 1919, and levied January 1, 1920, upon Pierce’s equity in the property, while appellee’s transcript from the justice of the peace court was not filed in the clerk’s office until afterward and was never entered on the judgment docket of the circuit court.

E. Martineau, Chancellor ; The paper designated as a will was not admissible in evidence because not probated nor subject to probate. Kirby’s Digest, §§ 8028-30. Nor could it be probated in Tennessee. 4 Shannon’s Code of Tenn., p. 3759. It was typewritten and without subscribing witnesses.

W. Hendricks; Judge; 1. The court erred in refusing to give appellants peremptory instruction on the counterclaim of appellee. The appellant clearly had the right to decline to ship this order of May 5, and it was error to refuse appellant’s instruction No. 4. 2. The court erred in giving defendant’s instruction No. 1.

R. Barry, Special Chancellor; 1. When Baum, Sr., died, the lots in controversy were unimproved. When his widow conveyed her dower to Ingraham, they were unimproved. When dower is ad-measured in this proceeding, the lots are improved, and dower must be assigned as they were when the right was consummated when the husband died. If this position is well taken, then— 2. The lots (as unimproved) should have been sold, free of dower, and dower assigned out of the proceeds.

W. Clark, Judge; The court erred in its findings. There was no negligence on the part of plaintiff, Cureton. The court overlooked the gross negligence of those parties trading for these negotiable bills of exchange made payable to order of A. J. Carman. The bank and these others should have had the negro to identify himself. A bank must use due diligence to ascertain whether the payee’s indorsement is genuine.

B. Sorrels, Judge; STATEMENT OE PACTS. On February 9, 1920, the Pine Bluff Produce & Provision Company, a domestic corporation, brought this suit in the circuit court against the Michael-Swans on-Brady Produce Company, a foreign corporation, as defendant, and the Citizens’ Bank of Pine Bluff, as garnishee.

H. Dudley, Judge; STATEMENT OF FACTS. This is the second appeal in this case. Clara Berg sued W. A. Johnson in the circuit court to recover a tract of land in Clay County, Arkansas. On motion of the defendant the cause was transferred to the chancery court, and a final decree was entered in favor of the defendant, Johnson. Upon appeal, this court reversed the decree on the ground that the case was improperly transferred to the chancery court.

'M. Jackson, Judge; 1. The evidence does not show any unreasonable delay in the shipment of the seed and does not show damage from delay in shipment, but the evidence does show that the damage or greater portion of it occurred not from delay in shipment but that the seed were in a deteriorating condition at the time of delivery and that the damage occurred as a natural consequence of their condition at time of shipment.

F. McMahan, Chancellor; STATEMENT OE PACTS. This appeal involves the correctness of a decision of the chancery court holding that a mining lease should be forfeited because of the nonperformance of its terms by the lessee and his assignees. On January 1, 1916, the Erie Ozark Mining Company, a foreign corporation, executed a mining lease to W. A. Childs on its mine situated on the ■ property in controversy which was to continue for ten years.

M. Jackson, Judge; The court erred in its findings, and the judgment should be reversed and judgment entered here for $235, the penalty and costs. The act is not void, but constitutional and valid. 90 Ark. 538; 207 U. S. 73; 204 Id. 311; 203 Id. 284; 205 Id. 60; 211 Id. 539; 8 Cyc. 1058-60. See, also, 89 Ark. 496; 94 Id. 394. 1. The act is void because contrary to section 1 of the Fourteenth Amendment to United States.

E. Martineau, Chancellor; Appellees have enjoyed all of the benefits under their contract of purchase which they were entitled to. Appellant remained out of business for more than three years, and then only re-entered business as a day laborer when the public demanded his services, and he in no way interfered with the business of appellees. The public interest demands a reversal of this cause under the testimony which is undisputed.

Mandamus to Woodruff Chancery Court; A. L. Hutchins, Chancellor; 1. The chancellor erred in declining to exercise jurisdiction in the cause set out in the. petition, although the defendant entered a general appearance by filing a demurrer to the complaint. 2. It was error to refuse to grant a default judgment.

W. Clark, Judge; 1. There are only two questions involved here, (1) the right of J. C. Harris and Henry 'Bull, the only appellees, to appeal from the order of the county court organizing the district, and (2) the alleged variance between the plats attached to petitions 1 to 7 and 8 to 13 inclusive. Appellees having signed the petition for the district and the court having granted it, they had no right to appeal. 217 S. W. 781; 105 N. E. 569.

F. Mc-Mahan, Chancellor; The appellee adopted the contract made by. the promoters, Stanfield and Harrison, with plaintiff and are hound by it. The contract was made on behalf of the corporation by its promoters and the corporation after its organization, and with full knowledge of all the facts accepted its benefits and took them cum onere, and it maybe enforced against the corporation.

Appeals from Little River Chancery Court; Jas. D. Shaver, Chancellor; McCord v. Welch reversed; District No. 6 v. District No. 8 1. The chancery court erred in granting the injunction to McCord, county judge, because (1) the complaint shows that court is without jurisdiction of the subject-matter. 91 Ark. 534; 7 R. C. L. 1030. .(2) The county court has exclusive original jurisdiction over matters relating to county roads with which a chancery court has no power to interfere.

B. Priddy, Judge; The court erred in sustaining the demurrer, as act 94 of 1917 is constitutional. The act does not contravene article 16, § 10, of the Constitution. 133 Ark. 90 ; 77 Id. 250. The act, No. 94 of 1917, contravenes article 16, § 10, Constitution 1874, and the court below so held properly. The decision is sustained and supported by. 133 Ark. 90; 77 Id. 250.

O. Hammock, Chancellor; 1. The court erred in rendering a personal judgment against defendant, as he was a nonresident of the State and was only constructively summoned. He did not appear in the trial nor consent to the mode of service, and the judgment for attorney’s fees and alimony is void. 95 U. S. 714; 21 R. C. L. 1299; 42 Ark. 268; 16 L. R. A. 231. 2.

M. Jackson, Judge; 1. There is absolutely no testimony to show that appellee was the owner of the log's or that it was entitled to the immediate possession of same. Under the testimony giving it the most favorable consideration for appellee, there could not have been rendered a verdict for more than four of the logs at most.

M. Jackson, Judge; It was error to permit the witness, Rudinger, to testify that the Stern Publishing & Novelty Company was a corporation. The corporate existence of a corporation is a matter of record, and the best evidence must be introduced, and a certified copy of the articles of incorporation should have been introduced. 7 R. C. L. 102; 28 Ark. 263; 107 Id, 56.

H. Coleman, Judge; 1. The court erred in sustaining the demurrer and dismissing the complaint, as defendants were guilty of actionable negligence. It was the duty of defendants to protect plaintiffs from injury. 29 Cyc. 419. 2. The demurrer admits every allegation in the complaint to be true. 90 Ark. 158; 102 Id. 380; 104 Id. 466; 94 Id. 505; 94 Id. 453. 3. Defendants failed to take the precautions required by the board of health and are liable.

Mc-Mahan, Chancellor; and Marion Circuit Court; J. M. Shinn, Judge; statement oe eacts. On the 3d day of October, 1919, J. M. Bloyed filed a suit in attachment against the Bankers Mining Company, and as ground therefor alleged that said company was indebted to him on a promissory note in the sum of $2,002.50, and was a foreign corporation. ■ An attachment was duly issued and levied by the sheriff upon the property of the Bankers Mining Company on the 7th day of October, 1919.

M. Shinn, Judge; STATEMENT OF FACTS. The Interstate Grocer- Company sued J. M. Randle in tbe circuit court to recover an amount alleged to be due it upon three promissory notes. Tbe plaintiff was a foreign corporation and bad not complied with our statutes in regard to tbe sale of corporate stock by investment companies. Tbe notes in question were given for shares of stock in tbe plaintiff company.

F. House, Judge; STATEMENT OE EAOTS. Appellant instituted this action in the circuit court against appellee to recover taxes alleged to he due by it to the State of Arkansas on premiums paid for insurance from corporations not authorized to do business in this State. Appellee is a foreign corporation authorized to do business in this State and operates compress plants in several cities in the State of Arkansas.

McMahan, Chancellor; The chancellor erred in declaring a lien in favor of appellees on either of the automobiles in controversy.

S. Steel, Judge; The court erred in sustaining the demurrer. The only question which the demurrer presents is the sufficiency of the answer as a legal defense to the complaint, and it is sufficient and sustained by many decisions.

Steel, Judge; The will does not show an intent on the part of the testatrix to give her husband, J. F. Marshall, or any one else the land acquired after executing the will. The intention as shown by the words used should be carried out. 90 Ark. 152. But construction is unnecessary here, as there is no ambiguity, nor inconsistent or repugnant clauses. 124 Ark. 548.

M. Barker, Chancellor; Plaintiffs to be entitled to recover would have to show‘either that Haines with whom it was claimed a contract was made and to,, whom $25 was paid, had authority to bind them in the transaction, or that Haines ratified the transaction after full knowledge of the facts; and the evidence is insufficient to sustain the findings of the chancellor on either of these points. 105 Ark. 446; 53 Id. 208; 124 Id. 360; 64 Id. 217; 92 Id. 315.

Reeder, Chancellor; 1. The record shows that there was left by Isaac Less landed interest in the sum of $136,078.40, and it was error to hold that the rents accruing from the time Isaac Less died down to December 6, belonged to the estate and not to Ida Less. The records show that there had only been accounted for to the widow the rents on the dower lands collected from date of death down to and including the time the action was in the Supreme Court. 131 Ark. 237.

Martineau, Chancellor; 1. The chancery court did not have jurisdiction of the suit instituted May 5, 1919, against J. W. and Ellen Matthews, Challdey and J. Gr. Howard, which was in the nature of a creditor’s bill, for the reason that Neel had not exhausted his remedy at law, and J. W. Matthews was insolvent, and the judgment might .have been collected out of his personal property or other property than the land in question.

Chancery Court; B. F. McMahan, Chancellor; 1. Act 529, Acts 1919, named three persons as commissioners for each of the three districts. The curative act did not amend this act by declaring that three commissioners should constitute the board in the future of district No. 3. The court erred in holding the curative act constitutional and the organization of district No. 3 valid. 2.

M. Barker,- Chancellor; The sole question presented grows out of the fact that the active business of the defendant corporation is carried ¡on outside of the State of Arkansas. The court erred in holding that the complaint was without equity and in dismissing it. The complaint was sufficient and stated a cause of action and sufficiently alleged that defendant corporation was “doing business” in Arkansas.

B. Baker, Judge; 1. The court erred in refusing to give appellants’ instructions. 89 Ark. 24; 97 Id. 438; 110 Id. 571; 171 S. W. 869. The evidence clearly established adverse possession in appellants. 2. The statements of the trial judge show that the verdict was contrary to the evidence and that a new trial should have been granted. 126 Ark. 427; 129 Id. 448; 130 Id. 374; 132 Id. 45.

McMahan, Chancellor; 1. Act No. 149 creating Boad District No. 2, Acts 1919, p. 400, is unconstitutional .and void.

S. Steel, Judge; Appellant had the right to subject the earnings of the railroad company in the hands of the bank to the garnishment. The money earned by the railroad company, after its property was returned by the government, belonged to the company, and the Director General had no authority over it. The following case supports the contention of the appellant: 140 Ark. 572.

Ciarle, Judge; 1. It is well settled that a physician, or surgeon may recommend or employ another physician or surgeon to treat a patient for him or assist him in treating a patient, and in the absence of negligence in such selection he will not be liable for the negligence or lack of skill of the physician or surgeon so recommended or employed by him. 30 L. R. A. 345; 65 Ark. 578; 132 Id. 18; L. R. A. 1918 C 132; 199 Fed. 760; 211 S. W. 214; 218 Id. 924. 2.

, F. Reeder, Chancellor; STATEMENT OE FACTS. E. B. Crump brought this suit in equity against T. N. Barnett, Harry Chur chill, and the Bank of Pangburn to recover damages for a breach of warranty and for the cancellation of two notes given by him for the purchase price of the lands described in his complaint.

Elliott, Chancellor; STATEMENT OF FACTS. On the 9th day of January, 1920, R. H. Suter brought this suit in equity against the Bank of Stuttgart and James S. Mason to recover the sum of $3,000 damages for the failure of the defendant, Mason, to carry out a contract made by him with the plaintiff for the sale of 720 acres of land in Arkansas County, Arkansas.

D. Frierson, Chancellor; STATEMENT OF FACTS. J. B. Holland, a minor, by his next friend, J. T. Wood, brought this suit in equity against the New England Securities Company and A. C. Little to restrain them from selling, under a mortgage, a tract of lánd described in the complaint.

The secretary of the board did not certify to the clerk of the county court the taxes' to be collected for the year 1919. The appellants were not entitled to the relief prayed for under the proof. Act No. 71, Acts 1917, § 12. The statute must be strictly construed and strictly complied with.

F. McMahan, Chancellor; The court erred in holding that appellee acquired an easement by adverse possession for drainage purposes over his land. Appellee had no easement over the land by grant or reservation or by adverse possession. 14 Cyc. 1144; 19 Ark. 23. A mere permissive use of the land of another for any length of time confers no right of continued enjoyment. 14 Cyc. 1201; 19 Ark. 23. Appellee had no easement, and the • chancellor erred in so holding. 1.

E. L. Johnson, Judge; 1. The court erred in holding that defendant had no right tó ask the character witnesses for the State on cross-examination as to specific acts of violence on the p,art of deceased. 2. The argument of Hon. H. H. Rogers, counsel for the State, was prejudicial and improper. • 3.

F. Reeder, Chancellor; 1. There are two reasons why the decree should be reversed. (1) There was a complete satisfaction and discharge of the debt for which the mortgage' sought to be foreclosed was given. (2) No such loss or damage is shown as would entitle plaintiff to a foreclosure. There was a complete novation which discharged the Weeks debt. A release or satisfaction prior in time inures to the benefit of the junior incumbrancer. 2 Cyc. 1222-4.

Martineau, Chancellor; Appellants by their conduct did not lead appellee to believe that they were going to change the route of the ditch. There is no proof of misrepresentation or deception. Appellee had an opportunity for her day in court, which she chose to ignore, and the court erred in sustaining the demurrer and granting the injunction. 224 S. W. 334.

B. Priddy, Judge; 1. The court erred in overruling the plea in bar of former jeopardy. Appellant had once been in jeopardy for the same offense. 1 Bishop, Cr. Law (7 ed.), pp. 1052-4; 101 Ark. 159; 43 Id. 68-70; 65 Id. 38; 222 S. W. 1066. 2. The court erred in its instructions. 3. The court erred in overruling objections to the questions and answers of Mrs. McAfee. 1. There was no error in overruling the plea of former jeopardy.

Reeder, Chancellor; STATEMENT OF FACTS. On the 28th day of September, 1918, Alma Brownfield et al., brought this suit in equity against W. H. Bookout et al., to have the defendants declared trustees, for themselves and the plaintiffs to 160 acres of land described in the complaint. The complaint alleges that plaintiffs and defendants are the children and heirs at law of Jake Bookout, deceased, and that the land described in the complaint be- ' longs tó his estate.

W. Clark, Judge; 1. Tbe evidence shows that at the time of the receipt and acceptance of the application of Homer W. Ridout at the home office, at the time it was approved by the medical director, and at the time it was delivered, he was not in good health. The applicant was dangerously ill from a disease from which he never recovered, and the policy was null and void because not approved by the medical director during the good health of the applicant.

Elliott, Chancellor; Lucy B. DeLoney at the time of her conveyance to J. H. Breathwaite had only a life estate under the will with a remainder over to Lucy B. DeLoney’s children. Kirby’s Digest, § 735; 95 Ark. 18; 140 Id. 109. Appellants are the owner of the estate in remainder subject to the life estate of Lucy ¡B. DeLoney, and the chancellor erred in his construction of the will. 1.

Clark, Judge; The court erred in refusing to declare as requested by appellants. There is a conflict between sections 1 and 2 of act 338, Acts 1915, which can be reconciled only upon the theory that the assessment in force at the time is prima facie evidence of ownership. The court’s interpretation of the act is error. The Legislature did not intend more than to malm the assessment book in force at the time a prima facie showing of ownership.

E. Marti-neau, Chancellor; The only issues are, (1) Can a parol express trust be engrafted upon the absolute administratrix’s deed? (b) Are the appellees estopped by the fact that they agreed to or permitted the conveyance of the lots to Q-abe Pratt, Jr., by a deed absolute on its face? 1. A parol trust can not be engrafted upon the absolute administratrix’s deed. Kirby’s Digest, §§ 3666-7.

H. Dudley, Judge; The judgment is void, as the circuit court, notwithstanding the waiver of the filing of the mandate, did not acquire jurisdiction to retry the cause. Where a judgment is reversed, the circuit court proceeds to try the case again until the mandate is filed. 10 Ark. 454. Consent can not confer jurisdiction. The certiorari should be quashed. The rule in 10 Ark. 454 has been often followed. 79 Ark. 185; 93 Id. 168; 38 S. E. 575.

V. Bourlcmd, Chancellor; There is no law .or statute in this State that authorizes Waterworks Improvement District No. 1 to place any incumbrance on the waterworks plant without legislative authority, and the mortgage was in violation of article 19, § 27, Constitution, and void, and the maintenance and upkeep of the plant must be performed by the city of Fort Smith, which is operating the plant, under Kirby’s Digest, § 5675; Act 158, Acts 1911.

R. Haynie, Judge; STATEMENT OE EAOTS. On May 7, 1920, appellee sued appellants to recover damages for injuries alleged to have been sustained by one of his horses in becoming entangled in the approach to a bridge across a railroad track operated by appellants in Miller County, Arkansas. The facts are as follows: Appellants operated a railroad in Miller County, Arkansas, which intersected a public road running north and south known as the Lynn Perry Road.

M. Barker, Chancellor; The master’s report is clearly against the clear preponderance ¡of the evidence, as the deed, though absolute in form, was in fact a mortgage, as the rents did not in fact pay the mortgage debt. No part of the mortgage debt has ever been paid and there is a large balance due Burns. 1. The testimony fails to show that appellant ever made or paid for any improvements or repairs on the land. The deed was a mortgage; this is conceded. 2.

Clark, Judge; 1. The court did not have jurisdiction, as there was no proper affidavit for appeal; the style of the court is not given; the venue is not shown and there is no jurat; nor is the title of the officer taking the oath shown. From the record it can not be known whether E. A. Henry is a notary public, a justice of the peace or a clerk, nor in what State he is exercising authority, and the circuit court had mo jurisdiction on appeal. 33 Ark. 747.