Volume 148 — Arkansas Reports

S. Steel, Judge; io error to direct a verdict for the plaintiff, as tbovn was evidence for a jury to pass upon and the evi- •■¡,- was conflicting. 73 Ark. 761; 76 Id. 520. Where •is any evidence to establish an issue, it is error to from the jury. 63 Ark. 94; 77 Id. 556; 36; 35 id. 146; 62 Id. 63; 84 Id. 57. Where there is • conflict of evidence, the question is for a jury. 38 Ac * • ’0.

M. Barker, Chancellor;' 1. It was not contended below, and we presume it will not be contended here, that the trustee in bankruptcy has not the right to pursue the claim of any creditor or is not “clothed with plenary power to sue to avoid any transfer made by the bankrupt of her property which, any creditor may have avoided, whether made within four months prior to the adjudication of bankruptcy or not.” Brandenburg on Bankruptcy (3 ed.), p. 738, sub-div.

II. Coleman, Judge; STATEMENT OF FACTS. Appellee sued appellant before a justice of the peace to recover $295, being the amount of a forged check purporting to have been drawn by appellee, which was cashed by appellant and charged to appellee. Judgment was there rendered in favor of appellant, and the case was carried to the circuit court by appellee, where there was a trial de novo.

B. Hay me, Judge; 1. Appellee alleges fraud in procuring tlie judgment, which was not denied by appellant, and no- proof was offered or introduced to sustain it. One who seeks to vacate a judgment by default for fraud assumes the burden of proving it. 93 Ark. 462. If the order setting aside the judgment was void, then the judgment was not affected thereby and remains in full force and effect, and all proceedings subsequent thereto are void. 24 Cyc. 597 and note 59. 2.

B. Pricldy, Judge; 1. The testimony is not sufficient to support the verdict, as the evidence of the injured female is not corroborated with respect to the alleged promise of marriage. The promise to marry and the fact of intercourse must be proved, either directly or inferentially, by other testimony than the prosecutrix’s. 42 Ark. 482; 77 Id. 16; 101 Id. 45.

Beard from his father. If it was ancestral, appellee is entitled to dower in the lands for life; if the lands were a new acquisition, she is entitled to dower in said lands in fee. Kelley’s Heirs v. McGuire settles the principles of this case. 19 Ark. 401. This case falls within the rule in 107 Ark, 504. See, also, 97 Ark. 568; 98 Id. 568; 69 Id. 237.

H. Dudley, Judge; The finding and judgment of the circuit court is contrary to the law and 'the evidence. Under the Constitution 1874, art. 16, pars. 5, 6, 7, all property in this State is subject to taxation except certain specified exceptions and stock or shares in a trust estate like this one are not exempt from taxation. See Kirby’s Digest, § 6873; lb., § 6872; 87 Ark. 484; act 147, Acts 1919, § 4; 43 Ark. 527.

E. Coleman, Judge; STATEMENT OE EAOTS. B. F. Mitchell presented Ms claim to J. W. Bindley, administrator of the estate of J. C. Mitchell, deceased, for money alleged to have been loaned decedent with which to purchase a farm. The probate court disallowed the claim, and B. F. Mitchell appealed to the circuit court.

P. Henderson, Chancellor; STATEMENT OE EACTS. E. 0. West brought suit in equity against S. G. Wilmot for $1,884.35, alleged to be due him for materials furnished and labor performed in making certain improvements upon a two-story frame dwelling house in the city of Hot Springs, Arkansas, belonging to S. G. Wilmot, and also to have the amount recovered declared to be a lien on the house and the lot upon which it is situated.

Francis Chancery Court; A. L. Hutchins, Chancellor; 1. The findings of the court are against the clear preponderance of the evidence. The plaintiff’s claim was not established as the law requires. 2. The claim is barred by the statute of limitations. 14 Ark. 62. The three-year statute of limitation is applicable to an action for an accounting between partners. 92 N. Y. S. 904; 102 App. Div. 589; 56 S. W. 418; 10 Ky. Law.

M. Jades on, Judge; 1. The court erred in dismissing the action.

B. Sorrels, Judge; The trial court erred in its construction of the law. The county treasurer was entitled to a commission of 1 per cent, on the drainage taxes paid over to him by the collector under 'act 279 of 1919 and act 177 of Acts of 1913, act 279, Acts 1909, p. 829, §§ 10, 11, act 177, Acts 1913, § 17. This is an amendatory act, and the two acts should be construed together as one act.

Steel, Judge; The testimony here warranted the submission of the controversy to a jury, and it was error to direct a verdict for the defendant. When a servant enters the employment of the master, he only assumes the usual and ordinary risks of the employment, and does not assume the negligence of the master, or the master’s servants unless he knew and appreciated it. There is no testimony that deceased knew that defendant’s servants had put this setscrew in the lineshaft.

B. Priddy, Judge; STATEMENT OE EAOTS. On June 18, 1920, Mrs. E. Cora Lane brought an action of unlawful detainer against Miss Jennie Peel to recover possession of a dwelling house which the former had rented to the latter. According to the testimony of Mrs. E. Cora Lane, in 1917 she rented to Miss Jennie Peel a seven-room dwelling house in Plumerville, Arkansas, for the term of one year with the rent payable monthly at the rate of $15 per month.

B. Priddy, Judge; STATEMENT OP PACTS. This is a suit to contest a primary election brought in the circuit court under our statute, by J. M. Montgomery against G-. D. Ferguson to contest the nomination for the office of county judge of Johnson County.

E. Mar-tineau, Chancellor; 1. The chancellor had no jurisdiction to try the case and this court has none. Appellant can not waive jurisdiction of the Federal court nor surrender it over a controversy between citizens of different- States, nor over a controversy involving the use and infringement of a trademark. 2.It is clearly shown that the questions involved were Federal questions. A reference to the law is sufficient. The court erred in refusing to dismiss the action.

Hay-nie, Judg’e; 1. It was error to direct a verdict, as there was some evidence to sustain the issue in favor of appellant. The rule is to take that view of the evidence most favorable to the party against whom the verdict is directed. 135 Ark. 542. 2. Where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. 89 Ark. 368; 103 Id. 401. 3.

10 R. O. L. 694. He had full knowledge of all the facts and is estopped. 10 R. C. L. 762, 781; 2 Pom., Eq. Jur. (4 ed.), § 802. Ap-pellee’s lease, if he has one, is unenforceable. C. & M. Dig., §§ 5031-36. If he had a valid case, he is estopped from setting it up. 1. The pretended guardian’s sale was absolutely void. 123 Ark. 396-7; 135 Icl. 551; 130 Id. 21.

Cochran, Judge; The court erred in both instructions, Nos. 1 and 3... The theory of defendant was, and the court sustained him in that theory, that if afterward plaintiff, even after suit was brought, had an opportunity to recover his mule and did not do so but still pursued the defendant, he lost his action by his own negligence. But this is not the law.

Cochran, Judge; The verdict should have been directed for defendant, on either of two grounds, (1) because the claim was not filed within six months, and (2) because there was no proof that these extracts had ever been delivered to the railway compay for shipment. The following cases settle the question in favor of defendants. 101 Ark. 310; 111 Id. 102. There are other errors in the record, but appellants were entitled to a directed verdict.

Coleman, Judge; 1. It is clear, from the evidence, that the property possessed a sentimental value in the eyes of the appel-lee. He testified that he did not want to sell it at all; that he bought it for his home and his own use. The court erred in permitting such evidence to he considered by the jury, as it was highly prejudicial to the rights of appellants. 2.

Clark, Judge; 1. The court erred in the first paragraph of its oral instructions. It invaded the province of the jury, and was improper and prejudicial and unsupported by the evidence. As a question of law, the property did not descend to the wife and children jointly. Kirby’s Digest, § 2636. The same error occurs in the third paragraph of the oral instructions. 2. The verdict is clearly without evidence to sustain it.

Francis Circuit Court; J. M. Jackson. Judge; 1. Plaintiff was not entitled to any so-called government priority orders as having the effect of releasing defendant from its contracts or justifying the cancellation of its contracts by defendant.

F. McMahan, Chancellor; The demurrer of appelleees admitted the allegations of the complaint. 104 Ark. 466. The complaint states facts sufficient to constitute a cause of action. The effect of the contract alleged was to create a mortgage on the lands in favor of the vendor, Mason. 13 Ark. 533; 15 Id. 188; 16 Id. 126; 27 Id. 61; 29 Id. 357; 34 Id. 113; 66 Id. 167; 84 Id. 160; 100 Id. 543.

Reeder, Chancellor; The evidence is undisputed that appellant is unable to comply with the order of court and he should be discharged. 81 Ark. 504; 9 A. L. R.., Snook v. Snook. Appellant has neither the means nor ability to comply with the order of court, and the chancellor should have ordered his discharge. The evidence as a whole shows that the court was fully justified in disbelieving appellant’s story about los- ■ ing the money, and the action of the chancellor was right.

F. House, Judge; On the former appeal this court held that a cause of action was stated and that the facts do not affirmatively show that no facts exist which would take the action out ■of the statute bar. 219 S. W. The complaint here is good as held on the former appeal. The complaint does not affirmatively show that the action is barred, and an action at law did not lie. 31 Ark. 684; 34 Id. 164; 49 Id. 253; 116 Id. 233.

8. Steel, Judge; 1. This case falls within the familiar elementary rule that the seller of personal property who has reserved title until the purchase money is paid may upon default retake the property and thereby cancel the debt or may sue to recover the debt and thereby affirm the contract. 88 Ark. 99; 113 S. W. 1023. The contract in question was conditional, the purchase price must be paid, or the property might be retaken.

Appeal- from Marion Circuit Court; J. M. Shinn, Judge; 1. The court erred in refusing to enter judgment against Ernest Layton or J. B. Melton & Company for the sum claimed. Layton held himself out as a partner to Powell, and is liable as a partner so far as creditors are concerned. 2 Ark. 346; 99 Id. 602; 139 S. W. 544; 32 Ark. 733; 87 Id. 123; 5 Id. 61; 2 Id. 34; 93 Id. 301; 80 Id. 33. This case does not fall within the rule in 29 Ark. 512; 24 Id, 12; 23 Id. 411.

B. Sor-rells, Judge; The custody of the child is controlled by .the best interest, present and future well-being, of the little girl. In habeas corpus cases the courts are not bound to deliver a child to the claimant or any other person, but will act in their sound discretion as the best interest of the child requires. 78 Ark. 193; 80 Id. 461; 89 Id. 501; 102 Id. 93; 82 Id. 461; 4 Hun 582; 16 Pickle 227; 22 Id. 549; 50 Miss. 413.

D. Shaver, Chancellor; STATEMENT OE EACTS. On the 4th day of May, 1920, Laura Walker obtained a decree of divorce and a judgment for the sum of $25 for attorney’s fee, and $6.75 costs of suit against Rube Walker. Subsequently in the same chancery court she caused a writ of garnishment to be issued against the Missouri Pacific Railroad Company, to collect said sums.

P. Henderson, Chancellor; STATEMENT OE EAOTS. C. M. Fuller and others brought this suit in equity against W. 0. Robbins and B. Robbins to set aside the sale by W. 0. Robbins to B. Robbins, of lots 2 and 3, in block 22, in the town of Womble, as in violation of the bulk sales law. Subsequently the complaint was amended só as to allege that the sale of said lots was made with the intent to hinder and defraud the creditors of W. 0.

L. Hutchins, Chancellor; 1. ■ The court erred in holding (1) that retained percentages of a contractor in the hands of a road district are subject to gamisbment. Road districts' are not subject to garnishment. 90 Ark. 236; 31 Id. 387; 56 Id. 451. 2. Appellant should have had priority in the funds of the district for the reason that the facts in this case are the facts in the Plummer case. 90 Ark. 236. 3. Appellant did not breach the contract.

Ilay-nie, Judge; 1. The verdict of the jury is contrary to the law and the evidence. The law of this case is settled by the former appeal. 222 S. W. 51. The evidence is not substantially the same and is not sufficient to sustain the verdict. Appellee Sanderson was not compelled to remain continuously and strictly within the house within the meaning of the policy from July 5, 1918, to January 1, 1919, and admits liability for $175.

B. Sorrells, Judge; The court erred in directing a verdict for appellee. The terms of an insurance contract are construed strictly against the insurer, since the policies are issued on printed forms prepared by the insurer, and the insured has no voice in the preparation. 217 S. W. 462.

W. Ciarle, Judge; STATEMENT OE EA.CTS. ■The Hadley Milling Company sued the. Fair Store No. 32 to recover damages in the .sum. of $148.50 for the breach of a contract for the sale of-flour by,the former .to the. latter. . The parties • entered into a written contract for. the sale of the flour, which,reads as follows: . “Contract between the Hadley Milling Company, Olathe, Kansas, and ship to Fair- Store at England, Arkansas : , When, 30 days, f. o. b. ...

L. Hutchins, Chancellor; STATEMENT OE FACTS. A. F. Maberry brought an action in the circuit court against Ira Smith and Christine Nelson to recover forty acres of land situated in Woodruff County, Arkansas. The defendants .answered, setting up title in themselves, pleaded the statute of limitations, and invoked the doctrine of laches. They asked that the cause be transferred to the chancery court, which was done.

F. McMa-han, Chancellor; ■There was no written contract regarding the salé'óf the property, good will and established business,, and the-court erred in its findings. Nor was there any oral.agreement on these points. Appellants certáinly understood that Rogers was selling .them, not only the property, but all that was inseparably connected with it — the good will and the long-established business, in the community. 9 Cyc. 246.

Hayme, Judge; 1. The master (appellant) was not liable for the unauthorized tort of the servant. He was not acting within the scope of his employment. 255 S. W. 597; 133 Ark. 327; 131 Id. 411; 136 Id. 123; 119 Id. 28. His act was not done in the prosecution of the master’s business, and the master was not liable! 2. The argument of plaintiff’s attorney, Mr. Parks, to the jury, was improper and prejudicial. 3.

G. Hammock, Chancellor; 1. The Omaha property was valued too high by the lower court. 2. Appellants have not broken their contracts. A merchantable title was furnished as per contract. A reasonable time after defects are found, or pointed out, to cure them. 128 Ark. 361; 126 Id. 498; 120 Id. 69; 119 Id. 418. 3. Appellee having entered into possession is not entitled to the relief sought.

Complainant must have the equitable title before he can call for specific performance. 2. Possession imputes knowledge to all persons of the possessor’s title. 3. The option here was no more than a standing offer to sell, and, unaccepted, created no right, title or claim to the lands in the laundry company. 4.

<p>Appeal from Monroe Chancery Court; John M. Elliott, Chancellor;</p>

118 Ark. 119; 115 Id. 594; 59 Id. 344; 116 Id. 167; 130 Id. 44. There is no uncertainty of description in the contemplated improvements. They are correctly and fully enumerated, and the descriptions sufficient, and the court properly sustained appellee’s demurrer. 105 Ark. 68; 59 Id. 344; 103 Id. 269; 97 Id. 334.

Humphries, Chancellor; The decree was rendered upon the cross-complaint of E. G-. Thompson 'and no answer to this cross-complaint was ever filed by a guardian or guardian ad litem of Ada Sims, a person of unsound mind. This was reversible error. 104 Ark. 193; 105 Id. 11. Mrs Sims was insane and was not bound for the purchase price of the lands.

Circuit Court; W. B. Sor-rells, Judge; 1. It was error to refuse to permit Mrs. McFall to testify concerning an alleged previous difficulty or quarrel 'between appellant and her husband. A trial court should not mate assertions which show to the jury what the court thinks of the testimony. The jury should be the sole judge of the evidence. .51 Ark. 147. 2.

Appellant was a public service corporation from the beginning', and all these parties dealt with it as such, subject to the rights of the State to regulate the rates made by it. 176 Cal. 499; 169 Pac. 59; 251. U. S. 228. Condemnation proceedings can not be had in favor of a private use; the right must be public. 57 Ark. 359; 64 Id. 357; 97 Id. 86; 97 Id. 495; 99 Id. 61.

Circuit Court; W. B. Sorrells, Judge; The court erred in giving instruction No. 2 requested by appellant. It was abstract, unsupported by the evidence, misleading and prejudicial. 70 Ark. 441; 74 Id. 19; 78 Id. 177; 80 Id. 260; 88 Id. 454 ; 96 Id. 614; 117 Id. 593. 1. If the objected to instruction was abstract, it was not prejudicial 'but barmless. 59 Ark. 431, 440; 103 IcL 307; 88 Id. 204.

E. Mar-tinecm, Chancellor; At the time garnishment was served on appellee it had money in its hands for the purpose of paying Smith and it had never been paid out on his check or order and Smith had a right of action against the hank. 69' Ark. 43; 216 S. W. 717; 5 Cyc. 548; 92 Tenn. 154; 183 S. W. 684. See, also, 70 Penn. Sup. Ct. 34. The exact question here has been settled by this court. 98 Ark. 1; 100 Id. 537; 133 Id. 498.

Elliott, Chancellor; STATEMENT OE PACTS. Appellants brought this suit in equity against ap-pellee to enjoin him from mortgaging the land described in the complaint. The complaint alleges that the appellants are the owners of the land described therein which appellee holds in trust for them by virtue of a will executed by their grandfather and duly probated after his death.

Elliott, Chancellor; STATEMENT OE EAOTS. Jesse Guydon brought this suit in equity against S. W. Ferguson and J. L. Simpson to set aside a decree in their favor against I. W. Carter in the same chancery court to foreclose a. vendor’s lien on certain property in the city of Clarendon, Monroe County, Arkansas, and to quiet his title in said property.

V. Bow-land, Chancellor; STATEMENT OF FACTS. Appellants brought this suit in equity against ap-pellees to cancel a gas lease on the ground that appellees were drawing off the gas from appellants’ land by means of wells drilled on adjacent lands near appellants’ boundary lines, and for damages resulting tbereform. Appellee defended the suit on the ground that there was no liability under the terms of the lease upon which the suit is based.

<p>1. Appeal and error — necessity of entry of judgment. — Where no judgment has been” entered dismissing an appeal from the county to the circuit court, it devolves on aggrieved party to see that the judgment is entered in order to appeal therefrom.</p> <p>2. Appeal and error — dismissal of appeal — presumption.—Where a judgment of the circuit court dismissing an appeal from the county court does not recite the matter set up in the motion nor whether the hearing was on the motion or testimony adduced at the hearing, but simply states that after hearing the court, being sufficiently advised, doth adjudge a dismissal of the appeal, and the motion to dismiss is not brought into the record by bill of exceptions, it will be presumed that the dismissal was upon facts which justified it.</p>

R. Dibdley, Judge; Sections 4 and 11 of act No. 380, Acts 1919, p. 1666, are to be read and construed together. It was the duty of the board to assess damages, and the landowner to commence an action for damages within twelve months for damages. The act should be construed as a whole and the purpose of the Legislature carried into effect. 158 S. W.. 962-3; 202 Id. 833; 25 R. C. L., § 285; 56 Ark. 137.

M. Jackson, Judge; The motion to dismiss on ground of former adjudication should not have been sustained, because (1) the defendant here is not the same party as in the former case. Walker D. Hines, Director G-eneral of Railroads, and the Missouri Pacific Railroad Company are not the same parties defendant, and (2) it does not affirmatively appear that the matter in dispute was the same issue tried. 13 N. W. 708; 59 Iowa 545; 94 U. S. 608 (Law.

II. Dudley, Judge; This is a Missouri contract, and the laws of that State govern. Plaintiff signed the note, and appellants were plaintiffs below and appellants here, and appellee is bound, as appellants are the legal holders of the note and entitled to sue. 106 Ind. 523; 47 Id. 1; 20 Yt. 509 ; 8 C. J. 1003, § 1309;; 96 Ark 416; Rev. Stat. of Mo. of 1899, § 894.

<p>1. Judgment — vacation after lapse of term. — A court with terms fixed by law has no power to vacate a judgment after lapse of the term at which it was rendered, except on the grounds specified in Crawford & Moses’ Digest, §§ 1316, 6290.</p> <p>2. Judgment — omission to rule on motion for new trial. — The fact that the court has omitted to rule on a motion for new trial, or has made an order extending the time for presenting or considering a motion for new trial, does not continue the power of the court over its own judgment to the next term, so as to authorize the court to vacate the judgment.</p> <p>3. Appeal and error — time for appealing. — An appeal not taken within six months from the rendition of the judgment appealed from, as required by Crawford & Moses’ Digest, § 2140, will be dismissed.</p>

B. Baker, Judge; 1. The indictment is not defective, and it was error to sustain the demurrer to it. An indictment for perjury is sufficient when it alleges that the alleged perjured testimony was material, but does not specify how it was material. 110 Ark. 549; 97 Id. 203.

Court; W. H. Evans, Judge; 1. Under the law as'announced in 88 Ark. 284, it was the duty of the insured to examine the policy and reject. it, if he did not want it, and return it without unreasonable delay. Failing to do this, he is deemed to have accepted it. Under the evidence here, it was error for the court to modify appellants’ instruction No. 4 so as to leave it to the jury to say whether or not he had accepted the policy. 102 Ark. 150. 2.

P. Henderson, Chancellor; 1. The court erred in holding that there was no settlement or compromise of the matters in controversy between appellants and appellee. 2. The chancellor erred in not sustaining the claim for damages by appellants for loss of the property at-, tached, and appellee should be held liable for the loss by reason of its compromise and settlement. The chancellor was wrong in holding that there was no settlement but merely a proposition.

Clark, Judge; STATEMENT OE PACTS. Martin Haskins was indicted, tried and convicted before a jury of the crime of robbery. Garland Dickens, the victim of the robbery, was a witness for the State. According to his testimony, he was in the city of Conway, in Faulkner County, Arkansas, on the night of the 14th day of October, 1919. Mitchell Kirkpatrick met him and invited him to go down the railroad track a little ways to get some whiskey.

Steel, Judge; STATEMENT OE PACTS. I. T. Keller sued the Home Mutual Benefit Association to recover on two benefit certificates issued by the association at bis application upon tbe life of E. W. Moore. Tbe Home Mutual Benefit Association was incorporated under tbe laws of tbe State of Arkansas for tbe purpose of conducting a life and accident insurance business in tbis State.

Shaver, Chancellor; 1. The commissioners of district organized under act 338, Acts 1915, had no authority to change the location of the public road. The change can only he made by the county court. Art. 28, § 7, Constitution 1874; act No. 338, Acts 1915; 138 Ark. 549; 139 Id. 277; 89 Id. 513; 118 Id. 294; 92 Id. 93; 91 Id. 274. 2. The proposed change in the route of the road is the adoption of a new route, and only the county road can do this. 133 Ark. 491; 135 Id. 102.

M. Shinn, Judge; The indictment is insufficient because it does not show the name of the purchaser of the whiskey. 13 Ark. 703; 68 Id. 188; 47 S. W. 1015. Only two witnesses testified to the sale, and one of these was discredited, and that discredited the other, and the verdict is not supported by any evidence. 1. The indictment was not insufficient because it did not name the purchaser of the liquor (125 Ark. 47), and that objection should be overruled.

1. A -written contract for the lease of realty is susceptible of specific performance. 25 ft. C. L. 283. The fact that it is an option does not displace the right of specific performance. A vendee is entitled to an option contract. 80 Ark. 209. 2. So far as appellant is concerned, there is no ground for distinction between Mrs. Noble and her co-defendants. Her title is the common source of appellant’s claims and those of Breckinridge and Hays alike.

The decree of April 7, 1919, is void for want of jurisdiction. 81 Ark. 440-462. Where a -complaint shows no canse of action and tenders no issue, a judgment thereon is a nullity, no matter how attacked. 62 Id. 439; 9 Lea (Tenn.) 68; 21 L. R. A. (N. S.) 481. It is void even on collateral attack. 11 L. R. A. (N. S.) 803; 5 A. L. R. 262. No partition or sale of lands, etc., devised by last will can be made contrary to the intention of the testator expressed in his last will.

Francis Chancery Court; A. L. Hutchins, Chancellor; The chancery court is bound by the directions in the mandate of this court. It can not add to nor subtract therefrom. 21 Ark. 197; 60 Id. 50 ; 13 Id. 654; 5 Id. 200; 106 Id. 292; 126 Id. 197. That part of the decree allowing judgment for items furnished after April 30, 1913, was error. The former decree and mandate of this court settle this case.

F. McMa-han, Chancellor; 1. The cause was transeferred to equity, and appel-lee, saving no exceptions to the order and having subsequently filed equitable defenses, can not now object. 74 Ark. 81; 92 Id. 46 ; 101 Id. 461; 105 Id. 669; 123 Id. 255. 2. Appellant did except to the transfer, and it was error to dismiss the cause if plaintiff was entitled to any relief at law or equity. 93 Ark. 376; 139' Id. 90 ; 107 Id. 70; 87 Id. 206. 3.

On July 7, 1918, appellees delivered at the railroad station at Booneville, Arkansas, forty-one head of cattle consigned to the National Live Stock Commission Company at Kansas City, Mo. Appellees received a through bill of lading, and-the shipment was routed over the lines of the Chicago, Rock Island & Pacific Ry. Co. to Howe, Oída., and from there over the line of the Kansas City Southern Ry. Co. to Kansas City, Mo.

Steel, Judge; STATEMENT OE PACTS. Frank Upton sued John Wimbrow in the circuit court in an action of trespass to recover damages for cutting and removing a quantity of trees from his land. The action was based upon sections 10320-10322 of Crawford & Moses’ Digest. Wimbrow cut from Upton’s land a number of hickory trees, amounting in the aggregate to 76,652 feet, of the value of $613.21, and converted the same to his own use.

Steel, Judge; 1. The certificates do not contain any forfeiture clause, and the language of the applications and certificates do not amount to a warranty that will render the certificates void because of an honest mistake as to the age of the insured. An insurance policy is construed most strongly against the insurer. 134 Ark. 245; 80 Id. 49; 134 Id. 245; 113 Id. 174; 86 Id. 115. 2.

If appellants are guilty, they are either guilty of the statutory misdemeanor of betting on a horse race, forbidden under C. & M. Digest, §§ 2669-70, or they are guilty of the statutory felony of operating a gambling house, under C. & M. Digest, § 2632.

A. Dickson, Judge; The court erred in overruling appellant’s demurrer and refusing to give the peremptory instruction asked by defendant. No negligence was alleged or proved. The instructions state tlie law correctly, and there is no evidence to support a verdict for any sum. 1 Hutch, on Carriers, § 510; 83 S. W.'20; Kirby’s Digest, § 6804; 77 Ark. 357; 79 Id. 59. See, also, 64 Ark. 271; 83 S. W. 20.

Ciarle, Judge; 1. The court erred in giving to the jury instruction No. 1 requested by plaintiff. It completely ignored the question as to the liability of a landlord to the agent who effects the sale of the land. There was no testimony upon which to base it. 112 Ark. 227. 2. The court erred in refusing instruction No. 1 asked by defendant. 122 Ark. 259. 3. It was error to refuse instruction No. 3 requested by defendant.

<p>Appeal from Garland Chancery Court; J. P. Henderson, Chancellor;</p>

Steel, Judge; 1. Under the terms of the contract, appellant had the right to remove, within a reasonable time, the timber severed from the soil. '89 Ark. 361; 91 Id. 291. Tire word removal in a timber contract means a severance from the soil. Cases supra.

Shaver, Chancellor; The act of 1819, act No. 496, is unconstitutional and void, and appellants have the right to enjoin its enforcement. 1 High on Injunctions (4 ed.), p. 87; 118 Fed. Rep. 399; 195 U. S. 223-4; 12 Cyc. 903. The act conflicts with art. 14, § 1, Const. U. S. and art. 2, § 8, Const. Ark. It unlawfully deprives residents of the district of their property without due process of law.

It is apparent that appellant was guilty of no negligence, and a verdict should have been directed for defendant. It was the duty of the carrier to allow a reasonable time and opportunity to get on and off its trains and trains must stop at stations long' enough for that, purpose. A reasonable time is such time as a person of ordinary care and prudence should be allowed to take.

The evidence is not sufficient to sustain the verdict. It will not support a verdict of any higher degree of homicide than involuntary manslaughter. 34 Ark. 639. 2. There was error in refusing to admit testimony as to reputation of deceased. 2 Wharton, Cr. Law, § 1099; 2 Duval 328; 1 Mete. 370; 31 Miss. 504; 50 Mo. 357; 25 Mich. 405. 3: The court erred in its instructions to voluntary manslaughter. C. & M. Digest, § 2356; 99 Ark. 188; 117 Id. 302. 1.

The Missouri State Life Insurance Company brought this suit in equity against Clinton L. Caldwell to foreclose a mortgage on 320 acres of land in the Osceola District of Mississippi County, Arkansas, given to secure an indebtedness of $11,000 borrowed by the defendant from the plaintiff.

V. Bourlcmcl, Chancellor; STATEMENT OE FACTS. Mrs. H. C. Finch brought this suit in equity against her sister, Einmer Lee Hunter, for the partition of certain real estate to which she claims an undivided one-half interest under the will of their deceased father. A. J. Hunter owned the lands in controversy in his lifetime and himself wrote the will which is the basis of this lawsuit.

This is a suit in replevin brought by the appellees against appellants before a justice of the peace to recover three hogs. Appellees recovered judgment in the justice court, and appellants duly prosecuted an appeal to the circuit court. There the case was tried cZe novo on evidence substantially as follows: On the 10th day of February, 1919, D. R. Loyd executed a chattel mortgage on certain personal property to secure an indebtedness of something over $800.

(1) Appeal from G-arland Circuit Court; Scott Wood, Judge; (2 & 3) Appeals from Randolph Circuit Court; John B. Baker, Judge; The demurrer to the indicment should have been sustained, as the Volstead act supersedes the State law, as the laws are irreconcilable, and the State law must give way as the United States law is supreme. 5 R. C. L., p. 912, § 6; 5 L. R. A. 78.

II. Evans, Judge; No case was made for a jury, and it was error to refuse a peremptory instruction. A servant, even as to dangers created by the acts of the master, assumes the risk of such danger when he is aware of such act of negligence and appreciates the danger. 141 Ark. 438, and many other needless to recite. The court gave conflicting instructions, which is always error. 138 Ark. 563; 76- Id. 224; 83 Id. 61; 99 Id. 377.

. H. Dudley, Judge; 1. The act of April 9, 1891, as amended by act March 17,1903, had the effect of increasing the burdens of the stockholders in the Blytheville Bank, which did them an injustice contrary to art. 12, § 6, of our Constitution, and impairs existing obligations in violation of art. 1, § 10, Constitution of the United States. Sections 1990 and 1993 of Kirby’s Digest, being C. & M. Digest, §§ 2832 and 2835, were repealed as to banks by act 113, Acts 1913.

F. McMa-han, Chancellor; According to the character of the ore shipped, the schedule of prices provided in sections 9 and 10 of the contract governed, and the payments made on each shipment were calculated on the correct basis, and there was an accord and satisfaction. The checks sent in payment were received and cashed.

Clark. Judge; 1. The court erred in its instructions. They as a whole fail to give the defendant’s theory of the case, and do not correctly define the law of self-defense. 179 S. W. 1013; 100 Ark. 209; 161 S. W. 186; 91 Ark. 582; 100 Id. 132; 85 Id. 179; 121 S. W. 1070'-; 107 Id. 677. 2. It was error to give the oral instruction. Constitution, art. 7, § 23, and cases cited; 139 S. W. 289. The exception to same was properly taken. 95 Ark. 71; 128 S. W. 562; 16 Id. 1081.

Elliott, Chancellor; 1. The contract sned on was void for want of mutuality. 96 Ark. 184-5; 21 So. 233; 44 N. W. 669; 102 Ark. 621-624; 100 Id. 510-14; 124 Id. 354-9; 30 Id. 186-194. 2. Appellee did not procure a lender on the terms required by the contract. 4 R. C. L. 303.

Circuit Court; J. B. Baker, Judge; 1. The court erred in refusing a continuance. The grounds set up the absence of witnesses whose testimony was material. There was an abuse of discretion by the trial court. 109 Ark. 407; 120 Id. 172. Threats has been made, and the testimony of the absent witnesses was material and vital. Ib. 2. Instruction No. 1, asked by appellant, stated the law and should have been given. 3. Instructions 2, 3 and 4 were the law and should have been given.

Ciarle, Judge; STATEMENT OE EAOTS. A. D. Malone and J. N. Harris brought a suit of unlawful detainer against W. T. Wade to recover possession of a tract of land wbicb the plaintiffs had leased to the' defendant. The defendant denied that the plaintiffs were entitled to the possession of the premises and' filed a cross-complaint in which he seeks to recover damages on account of being evicted from the land in question.

F. Reeder, Chancellor; STATEMENT OF PACTS. The principal issue raised by the appeal is the right of F. F. Reeher to the specific performance of an agreement between himself and Gorge F. Fenner for the exchange of a farm in Izard County, Arkansas, owned by the former, for a house and lot in the town of Coffey-ville, Kansas, owned by the latter.

Eay-nie, Judge; 1. Under the constitution and by-laws of the order employment in an electric current generating plant is classed as hazardous, and appellee failed to give notice and pay the increased assessment rate and his certificate of benefit was null and void. 2. Under the facts of the case plaintiff was not entitled to recover. He made no offer to pay the additional rate. 3.

F. Mc-Mahan, Chancellor; 1. There is a complete failure of proof by any competent evidence that any mistake was made in the deed of February 23, 1895. 2. If there were such competent proof, it fails to show clearly a mistake. 3. Plaintiff failed to show any equity that entitled him to prosecute his action against his sister, Cynthia Gibson. 4. The court was without jurisdiction to grant the relief prayed for or any other. 5.

The cases in 75 Ark. 540, and 63 Icl. 310 are conclusive of this case. 1. Appellant did not object to the action of the court in giving instructions and can not do so on appeal for the first time. 78 Ark. 490. Exceptions to instructions must be saved during the trial and brought into the record by bill of exceptions, and can not be saved merely by assignment in a motion for new trial. 88 Ark. 505. 2. The crime of burglary and grand larceny may be charged in one indictment.

II. Dudley, Judge; Under the written contract, title to the lumber levied on did not pass-to appellee until all the conditions in the contract had been performed, and for that reason the execution lien of A. B. Jones Company took precedence over the claim of appellee.

Clark, Judge; 1. Tke court erred in allowing prejudicial testimony to be introduced. 2. It was error to refuse to permit defendant to file a demurrer to the indictment which would have shown that defendant’s name is Will Bobinson and not Bill Bob-ertson, as charged in the indictment. 85 Ark. 12; 101 Id. 151. 2. Instruction No. 1 is erroneous and prejudicial because not responsive- to the proof and is not law.

H. Dudley, Judge; The court should have given defendant’s requested instruction No. 1, and also have given requested instruction No. 5 without modification. The proof establishes a conclusive case of estoppel. The undisputed evidence shows that the money was received by the bank’s employees, if at all, after banking hours, when there was no officer to receive such deposit.

M. Shinn, Judge; It was error in overruling the motion for continuance. It stated good grounds for continuance. A material witness duly summoned was sick and unable to get to court. Act 52, Acts 1905, p. 143; 50 Ark. 161; 10 Id. 528; 21 Id. 560; 89 Id. 130; 64 S. W. 412. Absence of defendant’s counsel without fault was good ground for continuance. 26 S. W. 60; 21 Ark. 460. The court abused its discretion in refusing a continuance. 1.

II. Dudley, Judge; The only question we desire to present is, Can a bank which pays a check drawn upon itself, the indorsement upon which is forged, recover the amount paid from the bank which originally cashed the check? The trial court rested its judgment upon the theory that defendant bank was negligent in not requiring the indorser to be identified. Under the agreed facts an attempt at identification would have been futile.

H. Dudley, Judge; 1. Tbe court should have instructed a verdict for appellant, and erred in submitting the case to a jury, as the facts are undisputed. It is clear beyond doubt that it was the intention of the parties to charge Berger the additional $100 only in the event that the manufacturer charged the Jonesboro Motor Company that amount by reason of an advance in price. 2. There was error in the admission of evidence which was highly prejudicial to appellant. • - 3.

E. Dudley, Judge; 1. The giving of instruction 6 was prejudicial error. It was abstract and not based upon any evidence. There is no evidence that Perkins sold the meat to defendant company in accordance with any custom of the trade and usual course of business conducted by Perkins or others engaged in that line of business at Paragould and shown to plaintiff company.

V. Bour-land, Chancellor; 1. The petitioners were not estopped to attack the assessment. 2 Page & Jones on Taxation, p. 1696; 35 S. W. 726; 115 Ark. 88; 70 Id. 451; 117 Id. 98. ' The court erred in ruling’ that estoppel precluded signers of either petition in the-creation of the district from attacking the validity of either petition. A petitioner must lie held to intend that the improvement will be constructed and assessments levied in a manner provided by law. .

E. Mar-tineau, Chancellor; The two districts constitute only a single district, and the double assessment is in direct violation of the law and void. The boundaries of the two districts are coterminous and identical. 105 Ark. 65. The improvement district undertaken exceeds the 20 per cent, cost and is invalid. C. & M. Digest, § 5666; 135 Ark. 315; 115 Id. 95.

M. Jackson, Judge; The court erred in refusing to give the instructions asked by defendant. They correctly state the law of this case, the law is well settled and no citations are necessary. 1. No proper objections were made nor exceptions saved to the instructions. 2. The error of excluding a statement of a witness will not be considered on appeal if appellant did not offer to show what the statement was. 88 Ark. 562; 87 Id. 123; 133 Id. 599; 93 Id. 410; 215 S. W. 723. 3.

M. Jachson, Judge; The court erred in directing a verdict for appellee. Under the undisputed testimony, appellant was entitled to an instructed verdict. Appellee was not entitled to the possession of the premises because he had not in any way complied with, his contract. 36 Ark. 518; 104 Id. 322; 41 Id. 535. Appellee in his contract agreed to move out of the house on ten days’ notice, which was given, and appellant was entitled to possession. 100 Ark. 629; 102 Id. 388.