Volume 149 — Arkansas Reports

E. L. Johnson, Judge; 1. The great weight of the evidence is contrary to the verdict. 2. The court erred in-permitting but two members of the grand jury to testify as to the testimony the prose-cutrix gave before that body. 120 Ark. 160-5; 64 Id. 121. It was error to limit the number of witnesses, and the error was prejudicial. Ib. 3.

Barker, Chancellor; 1. Foreign and domestic corporations are treated alike in all constitutional and statutory provisions. Const. Ark., art. 12; act No. 19, Acts 1899', p. 18; act 168, Acts 1899, p. 305; act 216, Acts 1901, p. 386; act No. 313, Acts 1907, p. 744; Kirby’s Digest, §§ 824-833; C. & M. Dig., $§ 1825-8.

F. Me-Mahan, Chancellor; 1. It was error to refuse to transfer the cause to the law court. 2. It was error in overruling appellant’s demurrer. Appellee had no lien as an attorney under our statute. C. & M. Digest, § 6304; 47 Ark. 86; 140 Ark. 558; 109 Id. 171; 8 U. S. (Law. Ed.), Forde v. Lawson. Appellee was entitled to a common-law lien and the allegations of insolvency were sufficient to give the chancery court jurisdiction. 6 C. J., p. 784, § 395; 2 A. L. R. 474. 2.

Coleman, Judge; 1. The court erred in sustaining the demurrer to thé answer. The Constitution contains no limitations upon the consideration of benefits as just compensation for land taken under the power of eminent domain except when exercised through the instrumentality of a corporation. 64 Ark.' 559. The Newport Levee District is not a private corporation, but a body politic and corporate, a public corporation, and the act creating it is constitutional. 59 Ark. 533.

II. Dudley, Judge; The motion to dismiss filed in the county court and circuit court was nothing but a demurrer, and admits that the reported cost of improvement as shown by the preliminary survey is less than $60,000; that the cost as returned by the commissioners approximated $85,000 ; that the petition alleges and the demurrer admits that the commissioners now undertake to sell bonds in the district in the sum of $130,000, which is excessive and prohibitory.

E. Mar-tineau, Chancellor; The purpose of the act is only to levy a franchise tax upon those corporations which are doing business within the State, and as the appellant corporations are not doing any business, but are merely holding mineral rights for sale or lease, they are not within the purview of act No. 112, Acts of 1911, p. 67, or the amendatory act No. 122, Acts 1917.

M. Jackson, Judge; The court erred in permitting the witness, Mrs. Woodall, to answer the question propounded to her, and in its instructions to the jury both in giving and refusing. No. 3 given for the State was abstract, misleading, prejudicial and erroneous. It was also error to refuse instructions Nos. 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14,15, 16, 17 and 19, which are the law of this case. 1.

84 Ark. 220; 98 Id. 235; 100 Id. 629; 102 Id. 380. The lands were wild when defendants took possession under a contract with Robert Dunning to clear the land, and they did clear it under the agreement and put it in cultivation. Under the testimony plaintiff can not take possession until the expiration of the time they were let to defendants. Plaintiff has invoked the law in unlawful detainer and is bound by it. It was error to instruct a verdict.

E. L. Johnson, Judge; 1. The court erred in refusing instruction No. 1 offered by defendant. 2. It was reversible error to permit the testimony of Judge H. T. Mitchell and W. A. Weaver as to the reputation'of deceased as a peaceable, law-abiding citizen to go to the jury, as the character of deceased had not been put in issue. 75 Ark. 297; 171 S. W. 149; 190 S. W. 290; 21 Cyc. 907-8. 3.

Eagnie, Judge; STATEMENT OE PACTS. Mattie B. Draper brought suit against O. M. Battle to recover damages for the alleged breach of a contract. The defendant denied liability under the contract. Mattie B. Draper purchased from J. J. Battle two tracts of land in Hempstead County, Arkansas, known respectively as the Custer place and the Smith place.

P. Henderson, Chancellor; STATEMENT OP PACTS. H. E. Poe brought this suit against his wife, Laura Poe, to obtain a divorce on the statutory grounds of cruel and barbarous treatment endangering his life and of such indignities offered to his person as render his condition in life intolerable. The wife denied the allegations of the complaint and asked for alimony.

B. Sorrells, Judge; I. The motion for new trial should have been granted, as the verdict was not responsive to the law and the evidence. Defendant, under the facts, could neither he indicted as an accessory or principal for the crime of perjury ; if guilty at all, it was subornation of perjury. 27 Ark. 275; 96 Id. 62; 102 Id. 594; 104 Id. 245; 108 Id. 450.

M. Shinn, Judge; 1. The bank was the agent of appellant for no purpose except to collect premiums, and had no authority except that delegated in printed and written instructions. The premium for January, 1920, was due and was not paid, and under the terms of the policy it was void. 2.

The court erred in refusing to direct a verdict for defendant. Wolfe was -experienced, knew of the danger and assumed the risk. 90 Ark. 407; 96 Id. 387; 96 Id. 206; 108 Id. 483; 82 Id. 11; 68 Id. 316; 93 Id. 564; 101 U. 197; 92 Id. 102; 95 Id. 560; 116 Id. 56; 118 Id. 304. See, also, 67 Id. 209; 226 S. W. 1055; 88 Am. St. 841; 158 Ind. 609; 92 Am. St. 319; 129 N. C. 173; 85 Am. St. 740; 101 Id. 945; 109 Id. 917. See, especially, 115 Wis. 332; 95 Am. St. 947. 2.

Shaiv, Chancellor; 1. The court erred in dismissing the complaint for want of equity. There was no abandonment of the lot by Pannell and no proof of an intention to abandon tbe property. 101 Atl. 305. 2. Nor was he guilty of laches in allowing his family to receive the rents and profits and pay the taxes. 9 Wheaton 241, 288; 126 Ark. 93; 103 Id. 251; 140 Id. 100; 99 Id. 500. 3.

Shaver, Chancellor; All lands in sections 1 and 3 should bear all the necessary and legitimate preliminary expenses, and the court should have ordered the return of the taxes paid by the landowners. 50 Art. 116. A law directly in conflict wtili a later act is repealed by the latter act. Act 130, Acts 1919, is. in conflict with the later act and is repealed.

R. Haynie, Judge; Appellee can not recover any part of the money deposited, because it was put up by appellee for the express purpose of obstructing or perverting the due administration of justice. 46 Ala. 523; 81 Ark. 41. Contracts to suppress evidence, or in any way interfering with or obstructing the course of justice, are against public policy and void. 80 Ark. 332.

B. Sorrells, Judge; • 1. Argues the merits of the controversy which are not passed on by the court, citing Kirby’s Digest, §§ '2698-9, 2700 to 2715; 52 Ark. 193-201; 40 Cyc. 1966; 21 Id. 568; 53 Ark. 261. 2. The widow of Louis Spivey was absolutely barred from participating in the fund. She must renounce the will in order to claim dower. 40 Cyc. 1968; should be divided among the appellant heirs. 1. The statute has not been complied with, and there is no bill of exceptions.

A. Dickson, Judge; The court erred in the admission of testimony and its rulings thereon and in giving the third instruction for plaintiff. This instruction is erroneous because it permits plaintiff to breach their contract, which carries with it the legal duty to pay for all apples on delivery, “if they acted in good faith as reasonable men, etc.” 56 Ark. 320. This is a similar case and is controlling here.

R. Haynie, Judge; 1. The court should have directed a verdict for defendant. The injury occurred in Texas, and under its laws damages for personal injuries to the wife are community property for which alone the husband can sue, and the complaint does not state a cause of action. Under the laws of Arkansas defendant never waives the failure of the complaint to state a cause of action. C. & M. Digest, § 1192, and cases cited. The right of plaintiff to recover was raised.

B. Sorrells, Judge; The court erred in directing a verdict for defendants. 78 N. E. 106, 191 Mass. 483, was a different case and does not apply here. See 111 N. E. 37, a case similar to this. 87 Ark. 506 is in point and is decisive of this.

V. Bourlcmd, Chancellor; STATEMENT OP PACTS. Robert H. Randolph brought this suit in equity against S. B. Hawkins to annul and set aside a contract whereby the plaintiff released in favor of the defendant, a mortgage on a tract of land to secure an indebtedness of $10,000. On the 7th day of July, 1919, R. H. Randolph executed to S. B. Hawkins a deed to 183 acres of land in Franklin County, Arkansas, for the consideration of $12,-500.

Francis Circuit Court; J. M. Jackson, Judge; A verdict should have been directed for Mrs. Taylor, as the property had become part of the realty and not subject to replevin, and the court erred in its instructions and in refusing those asked by defendant, Nos. 1 to 11. 11B. C. L. 1071. The instructions are inconsistent with the law and with each other. 9 L. B. A,, 700 and notes. The instructions state that the law, and the verdict is sustained by the evidence.

Steel, Judge; 1. The circuit court had no jurisdiction on appeal to set aside the judgment of the county court levying assessments of benefits under act No. 407, Acts 1920, § 9. 2. The judgment of the circuit court is not supported by the evidence. 139 Ark. 322. This case disposes of every contention made that the lands in zone 4 should not be taxed because not benefited. 139 Ark. 155; 133 Id. 118.

W. Clark, Judge; 1. The evidence is conclusive that the goods were shipped as ordered. 2. Appellants were guilty of no fraud. It was not the manufacturer of the goods, and the buyers had ample opportunity of inspection within ten days, as stated specifically in the hill rendered, and since the buyer exacted no express warranty, and, there being no implied wraranty as to quality, the maxim “caveat emptor’’ applies, and appellees are liable for the amount sued for.

Hay-nie, Judge; 1. Tke appellant has no right at this time to ask for and obtain a new trial upon newly discovered evidence. 214 S. W. 44. 2. A bill of review or motion for new trial for newly discovered evidence must be filed or made during the term, while a bill of review in chancery can be filed only after the term at which the decree was entered. 61 N. E. 337-9. See C. & M. Dig., § 3216. The only remedy is by appeal within sixty days.

M. Shinn, Judge; 1. A verdict should have been directed for defendant. In the absence of statute the general rule is that the owner or occupier of land is under no legal obligation to take special care or pains to the end of keeping it safe for the protection of the animals of others which are allowed to run at large. 57 Ark. 17; 94 Id. 458; 116 Id. 163; 117 Id. 1.

Francis Circuit Court; J. M. Jackson, .Judge; The district does not become operative until the fence is built, in accordance with our statute, and it means that there must be a lawful fence around the boundaries of the district except in case of a navigable river. The theory of appellant is recognized in 107 Ark. 135. It was not unlawful for stock to run at large in this district until this district had been enclosed by such a fence as the statute requires. 107 Ark. 135.

V. Bourlcmd, Chancellor; 1. The contractas a valid and binding contract under § 2 of act 119, Acts 1919, p. 328. See Acts 1913, pp. 1003-4. The validity of the act is settled in 115 Ark. 194-209. The traction company, as the evidence shows, complied with act 571, Acts 1919, p. 411. The contract is valid, as it provides for a money consideration and for the time and amounts of payment, and the act is valid. 140 Ark. 597. The traction company is the common carrier.

V. Bourlcmcl, Chancellor; STATEMENT OE FACTS. Appellant brought this suit in equity against appel-lees, and the prayer of her complaint- is that the title to a one-half interest in the property described in the complaint be divested out of appellees and vested in her.

E. Dudley, Judge, adjudged by the circuit court that the collector be commanded to receive from Gr. W. Lamberson and A. D. Lamberson the State and county taxes tendered by them upon their lands as described in the complaint, and that he as such collector issue them a tax receipt therefor without payment or tender by them of the local assessments alleged to be due in Drainage Districts Nos. 15 and 16 in the Tri-County Highway Improvement District.

L. Hutch-ins, Chancellor; STATEMENT OE FACTS. Edna W. Carter instituted an action of ejectment in the circuit court against Oscar Stewart and Mary Jeter Stewart to recover 40 acres of land situated in Phillips County, Arkansas. She alleged that the land was granted by the United States to the State of Arkansas on August 14, 1858, under an act of Congress commonly known as the Swamp Land Grant.

B. Sorrells, Judge; The court erred in giving a peremptory instruction for appellee. There is only one disputed fact in the case, and that in reference to the amount of damages which appellant alleged he sustained by reason of the failure of appellee to deliver the peanuts.

F. Reeder, Chancellor; 1. From the pleadings and evidence it appears fully that appellant took possession of the land under an oral gift; that the terms of the gift had Been fully complied with, and that the school district was in possession and claimed to be the owner since it first took possession in 1916, and had been in actual, open, notorious, exclusive and adverse possession, claiming to be the owner against all the world, and the district’s claim had ripened into a…

H. C. Kissire, the father, was insane and mentally incapable of making the contract and deed, and there was fraud and wrongful intention on part of appellee. There were confidential relations between appellee and his father, and- undue influence was used such as to avoid the contract and deed, and both should be canceled. 40 Ark. 28; 102 Id. 232; 9 Cyc. 456; 161 S. W. 532; 69 L. E. A. 393; 86 N. E. 568; 26 Ark. 604; 15 Id. 555; 123 Id. 134.

The general rule is that the vendee of personal property is entitled to recover from the vendor the difference between the fair market value of the goods and the contract price, provided the article is not as good as the quality represented in the contract. 121 Ark. 150. Here was but one sale. The contract was an entirety.

<p>Prohibition to Pulaski Chancery Court; J. E. Mar-tineau, Chancellor;</p>

B. Sor-rells, Judge; The court erred in sustaining the demurrer to the complaint. Where a vendee acquires personal property under actual notice as to the conditions relating to title and liens, he, the vendee, can only acquire such right, title or interest as the vendor may have.

Elliott, Chancellor; The contract was entire for a certain sum of money, and appellant, having been dismissed without cause prior to the expiration of his contract, was entitled to recover the full amount of his salary at the expiration of his time. 57 Ark. 374, 383. The decree of the chancellor is not - sustained by any evidence whatever, and the facts are undisputed.

. -. Appeal from. Clay Circuit Court, Eastern: District ; 11. H. Dudley, Judge: :iu! 1. The contract of insurance,,(according; to its .express terms, wa® complete and in force from the- date (if its approval by the company’s medical director and- binding, and the company was .without, power or right to modify, ..cliange or attach further .conditions- to. the contractor,to the delivp— of the policy, The contract ;was consummated., 66 Arki 612; 40 N- J. L. ,103 ,1 Bacon on Ben.

II. Evans, Judge; 1. There was misconduct of counsel for plaintiff in examining veniremen. The statements made were not true, and were prejudicial and resulted in an excessive verdict. 104 Ark. 3, 9; 38 Cyc. 1479. 2. There was also misconduct of counsel for appel-lee in his opening statement to the jury which constituted reversible error. 81 Ark. 231.

M. Jackson, Judge; STATEMENT OP PACTS. This action was brought in the circuit court by Helena Improvement District No. 1 against the City Oil Works to condemn a right-of-way over property belonging to the defendant in Helena, Ark., for the construction of a levee. Subsequent purchasers Pf the property from this defendant were also made defendants. They answered, setting up damages by reason of the actual taking of a part of the land and the injury to the remainder.

Elliott, Chancellor; STATEMENT OE FACTS. B. F. Noack brought this suit in equity against H. Bothe and Chas. Scheuer and Martha Scheuer, his wife, to cancel a deed executed by the Scheuers to Bothe to 170 acres of land in Arkansas County, Arkansas, and to have specific performance of a contract in writing by Chas. Scheuer to him to the same land.

Steel, Judge; The court erred in directing a verdict for defendant. A verdict should not be directed except in cases where, conceding the credibility of the witnesses and giving full credence and full effect to every legitimate inference that may be deduced therefrom, it is plain and certain that plaintiff has made out a case sufficient in law to entitle him to recover. 118 Ark. 432; 107 Id. 158.

E. L. Johnson, Judge; STATEMENT OE EAGTS. Appellant was indicted at the February, 1921, term of the Crittenden Circuit Court for the crime of rape, alleged to have been committed 'by forcibly and carnally knowing one Myrtle Johnson, a female under the age of sixteen. The presiding judge was subpoenaed as a witness for appellant, and on March 3, the day of trial, appellant filed a motion to disqualify the judge on that account.

M. Jackson, Judge; 1. Granting that there was a contract, it was within the statute of frauds and not enforceable. The timber claimed was of more than $30 in value, and there was no memorandum of writing, nor any delivery under the alleged parol contract. 79 Ark. 338; 20 Cyc. 247. 2. The instructions given for appellee are vague and indefinite and assume as a fact that Thoma had authority to make the alleged contract.

H. Evans, Judge; 1. The court erred in its instructions to the jury, and in its rulings as to the admission of testimony. The wife of defendant should have been allowed to testify. The married woman’s acts of 1915 and 1919 have entirely changed the law as to the admission of the testimony of married women for or against their husbands as found in C. & M. Digest, § 3406. ■ 2.

W. Smith, Judge; 1. Tbe court erred in its instructions given for the State. They are abstract, misleading .and prejudicial; also arbitrary, and assume the facts not proved and tell the jury what inference may be drawn from the facts. Hughes on Instructions, §§ 505-6, 309; Ih., § 8; 59 Ark. 422. 2. It was error to refuse the instructions asked by defendant and in amending them and in their modification.

If the illegal votes had been thrown out, appellant clearly received a majority of the votes cast legally. 20 C. J., par. 158, p. 137; 109 Ark. 250; 43 Ark. 62. The requirement that ballots shall be endorsed is mandatory. 69 Ark. 501; 79 Id: 236; 98 Id. 505; 108 Id. 515.

Steel, Judge; 1. There was a total lack of evidence tending to prove that appellant was drunk or intoxicated on a public highway. C. & M. Digest, §■§ 2626, 3028. One can not be charged with the commission of a crime in a particular way or place and convicted by showing that the crime was committed in a different way or place. 64 Ark. 188; lb. 23; 23 Id. 550.

Elliott, Chancellor; Appellee does not come into court with clean hands, but comes trying to enforce a contract that was obtained by unfair methods,. Fairness, and honesty in business. dealings is demanded, especially in chancery courts. Specific performance is within the sound discretion of the court, and if the contract is inequitable it will not be enforced. One seeking equity must come into court with clean hands.

Appellees brought this suit in equity against appellants to obtain judgment for an account due them and for the foreclosure of a chattel mortgage given to secure the same.

Francis Circuit Court; J. M. Jackson, Judge; Crawford & Moses’ Digest, § 5542, does not apply to an executory contract for a future sale of a homestead, but only to formal instruments which pass some title to the homestead at the time .of execution.

V. Bour-land, Chancellor; The law as announced by this court in 142 Ark. 21-28 settles this case, and the chancellor was without power to oust the commissioners and turn the district and its affairs over to receivers. The general rule is that' the appointment of receivers must be ancillary to the main cause. 23 R. C. L. 16; 178 Pac. 438.

Steel, Judge; 1. The indictment charges more than one. offense, and it was error to refuse the motion to require the State to elect. 84 Ark. 136; 201 S. W. 845; 135 Ark. 245; 37 Id. 408. An indictment must charge hut one offense. C. & M. Digest, § 3016; 118 Ark. 35. The State should have been required to elect which charge she will proceed under to prosecute. 33 Ark. 180; 32 Id. 203; 36 Id. 55; 58 Id.(By. Go. v. State).

Dis-. trict; George W. Clark, Judge; 1. The will is void for uncertainty, (1) because it does not designate specific existing deeds with sufficient definiteness as to admit of the incorporation of said deeds in the will; (2) because the will is indefinite and uncertain as to whom the testator desired to leave his property to, or as to whether the deeds probated with the will were all the deeds that were in the lockbox.

F. McMa-han, Chancellor; The mandate in this case was filed in the Benton Chancery Court, and appellees filed motion for judgment. upon the mandate alone in the sum of $283.50 with interest, to which motion appellants filed a response asking for further hearing and such proceedings as might be necessary in determining the rights of the parties which were not inconsistent with the mandate of this court, and the court sustained a demurrer of appellees to said response and…

Francis Cliancery Court; A. L. Hutchins, Chancellor; 1. The contention of plaintiffs that defendants concealed form them the fact that Webb was interested in the oil lease as owner and that he sold same to the Rainbow Division Oil Company at a profit is not sustained by the proof. The transfer and assignment of the lease was placed in escrow in a hank at Little Rock, and any prospective shareholder might have examined it.

V. Bourland, Chancellor; 1. It was error to transfer the cause to chancery. Plaintiff (appellant) set up a title in ejectment. No equitable defense was set up. 2. It was error to refuse to make McFarlane a party to the action. Defendant made the issue turn upon transactions with McFarlane, who was an indispensable party. See 49 Ark. 87; Kirby’s Dig., § 600; 74 Ark. 414; 86 Ark. 304. 3.

Baker, Judge; (1) Intervener, as attorney for Mrs. Rung, bad a right to control the course of action, and, in absence of direction to the contrary, may take a nonsuit. 11 Ark. 232. (2) It was error to refuse to instruct that intervener’s negligence in the prosecution of the claim in controversy must be established by the “fair” preponderance of the evidence or beyond a reasonable doubt. 11 Ark. 228.

<p>Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;</p>

V. Bourlcmd, Chancellor; STATEMENT OE FACTS. On application of a creditor, the chancery court at Fort Smith, Arkansas, appointed a receiver to take charge of the property of the Adams-Cooper Sales Company as an insolvent corporation. The company was engaged in selling automobiles at retail in the city of Fort Smith at the time the receiver was appointed.

Mar-tinecm, Chancellor; STATEMENT OP PACTS. John E. Miller brought this suit in equity against T. J. Ford to cancel an oil and gas lease executed by his grantor, E. J. Nalley, to Ford. The lea.se was sought to be canceled on the ground that the parties to it had by parol agreement surrendered it, and that their agreement in this regard had been executed. T. J. Ford defended on the ground that there had been no surrender of the lease, and that it was still in force..

V. Bou-rland, Chancellor; STATEMENT OF PACTS. This is a suit in equity by appellee against appellants‘to enforce the specific performance of a renewal covenant in a lease, and also to compel the defendants to submit to an arbitration to fix the rent as provided in the covenant of renewal.

Ciarle, Judge; (1) The demurrer to the indictment should have been sustained. The statute defines an accessory after the fact to be a person who, after full knowledge that a crime has been committed, conceals it from the magistrate or harbors and protects the person charged with or found guilty of the crime. The indictment charges defendants with concealing the crime. Nothing can be taken by in-tendment. 94 Ark. 242; 93 Ark. 81; 67 Ark. 308; 43 Ark. 93; 95 Ark. 48; 91 Ark. 5.

The rent and lease contract between Dale and appellee was nothing more than an agreement on appellee’s part to cultivate the land and care for the cattle, and a promise on the part of Dale to pay for any expense incurred in the care of the cattle other than for feed on the farm. The unrecorded mortgage is binding between the parties. 112 Ark. 187; 123 Ark. 28; 49 Ark. 279. The case of 79 Pac. 749 is almost identical with this.

D. Shaver, Chancellor; The commissioners were justified in charging- their expenses for railroad fare, auto hire and hotel bills to the district. Acts 1919, No. 243, §§ 5-7. The expenses were incurred in good faith. The allowance to James Gould, under § 2 of the act, was final and binding. No right of appeal was given. 1 L. E. A. (N. S.) 438; 50 do. 233; 127 N. W. 226.

<p>Appeal from Madison Circuit Court; W. A. Dickson, Judge;</p>

Steel, Judge; By thé judgment of tbe county court it was adjudged that none of tbe lands described in certain sections would be benefited. This order was entered by consent. This judgment is conclusive of tbe matters there settled. 107 Ark. 41; 76 Ark. 423. The Legislature could not validate the acts of a board of assessors fixing assessments ■where there are no benefits. 119 Ark. 198.

McMa-hem, Chancellor; Tbe court should have sustained demurrer to paragraph 3 of appellee’s reply, alleging that tbe Corporation Commission bad no authority to change rates in abrogation or impairment of an existing contract. Such contracts are subject to tbe power of the State to regulate public utilities. 145 Ark. 205. Tbe notice of tbe application for an increase in rates was published twice in 2 weekly newspapers as required by tbe Commission.

Steel, Judge; 1. • The court erred in refusing appellants’ prayers for instructions. The court’s instruction was equivalent to a direction of a verdict. It is error for a court in its charge to ignore the bearing which certain facts have on the issues involved. 14 E. C. L. 794. Accused is entitled to have his instructions given in his own language if they correctly propound the law applicable. 14 E. C. L. 806. 2.

B. Priddy, Judge; The court erred in overruling plaintiff’s motion to require the complaint to be made more definite in regard to delivery of the policy. Under the pleadings the issue hinged upon a manual delivery of the policy to insured. The evidence showed a delivery of the policy by a stranger to insured’s wife. This occasioned a surprise to appellant. 71 Ark. 197; 55 Ark. 567. There was never a contract between the parties. See 115 Fed. 81.

P. Henderson, Chancellor; STATEMENT OP PACTS. This was an action in ejectment brought by appellees against appellants in the circuit court to recover possession of a tract of land. Appellants answered denying title in appellees and claiming title in themselves. They also pleaded the statute of limitations. On motion of appellants the case was transferred to the chancery court and heard there. Both parties claim title from the same source.

Steel, Judge; (1) A directed verdict should have been given in favor of the defendant. A shot-firer is the absolute judge of the safety of every place that he goes into. He relies upon his own judgment. Plaintiff knew there was gas there. Where a servant is required to make his place of work safe and fails to do so, he assumes the risk of his failure. 93 Ark. 140; 44 Ark. 524; 88 Ark. 292; 122 Ark. 552; 108 Ark. 377.

Steel, Judge; (1) Tbe court erred in overruling defendant’s motion for continuance. Tbe trial court assigned as reason tberefor that the absent witness was indicted by tbe same grand jury for manufacturing liquor. It was shown by affidavit that the defendants did not know that tbe evidence of this witness would be material until too late to secure liis attendance. It was set out in the motion that the court permitted the witness to go to a sick wife.

M. Jackson, Judge; Defendant was entitled to a peremptory instruction in its favor, (1) because the drivers were employees of an independent contractor, and (2) because the plaintiff was equally negligent as the drivers. There was no evidence as to defendant retaining any control or direction over the work of the drivers making deliveries. 105 Ark. 477; 118 Ark. 561; 128 Minn. 508; 152 Mich. 613; 203 N. Y. 191. Plaintiff was equally as negligent as the drivers. 96 Ark. 500.

Steel, Judge. Since appellants are accused of making and manufacturing liquor, nothing short of proof that the crime was actually committed in the actual making and manufacturing liquor would be sufficient to justify a conviction. The words “make and manufacture” become descriptive of the offense, and must be proved as charged. 62 Ark. 459; £4 do. 286; 71 do. 415; 64 do. 188; 37 do. 408; 36 do. 178; 16 do. 499; 129 do. 362.

<p>Appeal from Hot Spring Circuit Court; W. H. Evans, Judge;</p>

H. Dudley, Judge; In the absence of express authority, a general agent has no authority to warrant the machine sold. 24 B. C. L. 701, 702, 704. It was error to refuse to give instruction No. 2. A waiver is implied by a great period of delay. 102 Ark. 442 ; 29 Am. & Eng. Enc. of Law 1105; 27 B. C. L. 911.

Francis Circuit Court, J. M. Jackson, Judge; 1. Has the county court the power under the facts in this case to require the treasurer to give School District No. 27 credit for this fund? Crawford & Moses’ Digest, §9110, provides that the proceeds of sale of 16th section lands shall he paid into the State Treasury, and placed to the credit of the county 16th section school fund. An unlawful agreement was made that $3000 should he retained by the district for a building fund.

92 Ark. 327. The banking law has not changed this law. Crawford & Moses’ Digest, § 702; 141 U. S. 147. Sec. 129 Ark. 416. It is the function of the board of directors to declare dividends. They are presumed to know whether the bant is solvent. 186 S. W. 1026. They are liable to the extent that dividends were improperly declared. 29 Atl. 207 ; 85 Atl. 448. They are liable for mismanagement of the bank or theft of its fnnds by the cashier.

There was no error in the action of the trial court in permitting the State to make proof of the amount of money in the possession of deceased just prior to the commission of the offense. The defendant was indicted under the provisions of the first part of § 2343 of Crawford & Moses’ Digest. The indictment did not alleg’e that the murder was committed in the perpetration of or in the attempt to perpetrate a robbery.

Coleman, Judge; 1. Evidence that the deceased and Ms brother bad taken up bogs belonging to other people prior to taking tbe bogs in controversy was competent for tbe purpose of showing tbe motive. 8 R. C. L. 201; 99 Ark. 604; 58 Ark. 387; 143 Ark. 419. 2. It was error to refuse permission to prove by tbe witness Blackie Britt that be and deceased bad taken up bogs belonging to Wright, Fisher and O’Neal, claiming them to be wild, on previous occasions.

Appeal'from Garland Circuit Court; Scott Wood, Judge; The motion for continuance should have been sustained. § 10 Art. 2, Const. 1874; 71 Ark. 182; 99 Ark 398; 21 Ark. 461. 1.

Eaynie, Judge; 1. Instruction No. 5 given by the court erred in that it ignored the rule that on the whole case the burden was on the State to prove the defendant’s guilt beyond a reasonable doubt. 2. Instruction,’ No. 7 requested by the defendant was correct, and such an instruction as he was entitled to on the theory of self defense, even though the killing was not committed in defendant’s home or place where he was visiting.

Clark, Judge; The indictment charges the manufacture of' whiskey. Proof of making choc beer is not sufficient. The words “commonly called whiskey” used in the indictment are descriptive of the offense charged. 129 Ark. 362, 364; 62 Ark. 459; 84 Ark. 285; 71 Ark. 415; 64 Ark. 188; 37 Ark. 408; 141 Ark. 276.

Crawford & Moses’ Digest, § 2308; 16 C. J. 670 to 672; 36 Ark. 126: 90 Ark. 460; 130 Ark: 353; 141 Ark. 421; 129 Pac. 78; 43 L. B. A. (N. S.) 546 and cases cited. . . A conviction in a felony case cannot be had upon the uncorroborated testimony of an accomplice. Crawford & Moses’ Digest, § 3181. Whether or not a witness is an accomplice of the accused is a mixed question of law and fact. 51 Ark. 115; 63 Ark. 462; 111 Ark. 299.

was wholly insufficient to support the verdict of the jury. Proof of other crimes, distinct and separate, is inadmissible to establish the guilt of defendant. 37 Ark. 261; 39 Ark. 278; 54 Ark. 621; 80’ Ark. 495; 818 Ark. 579; 91 Ark. 555; 110 Ark. 226; 120 Ark. 462. 1.

Haynie, Judge; Production of the original order was material. No sufficient foundation was laid for the production of secondary evidence. The testimony of A. D. Pope, the prosecuting attorney, was pure hearsay. 60 Ark. 141.

E. L. Johnson, Judge; 1. Tbe declaration as to appellant’s whereabouts on tbe night of the burglary, made by his mother immediately after her husband on the next day reported the occurrence of the burglary, was competent. This exclamation was res gestae of the evidentiary fact of her remembrance as to where he was at the time the crime was committed, his whereabouts at that time being the ultimate, or principal, fact to be proved.

Haynie, Judge; It was manifest error for the plaintiff to introduce the overalls, which had not been identified, during the closing argument. 3 Wigmore on Evidence, Sec. 1878; 1 Nott & M. C. 153; 2 N. C. Law Rep. 238; 4 S. & R. 480-482; 16 Corpus Juris, 619. The error was prejudicial and the case should he reversed.

Steel, Judge; The testimony introduced was not sufficient to justify a conviction. Even if there was an indictment for conspiracy, and Briscoe was shown to have been connected with the offense, it could not he used against the defendant until there was evidence first showing the conspiracy between them. 77 Ark. 444; 78 Ark. 284; 95 Ark. 460; 87 Ark. 34.

Coleman, Judge; Appellant’s petition for change of venue; supported by witnesses who testified as to tbe state of feeling in regard to Mm, coming from parties wbo showed a knowledge of such feeling existing in at least three-fourths of the county, should have been granted. 98 Ark. 189 ; 121 Ark. 390; 95 Ark.; 83 Ark. 36; 80 Ark. 360.

Steel, Judge; It being admitted that the officers, Tisdale and Hazel, had no warrant authorizing them to search the premises of the appellant and Benson, it was error to permit them to testify as to what they found as the result of such illegal search, and to admit evidence of anything found at Benson’s or of anything he said. Amendment No. 4, Constitution, TJ. S.; 116 U. S. 616; Id. 746; 232 Id. 652; Id. 383; 270 Fed. 578; 233 Id. 481; 263 Id, 113. 1.

H. Evans, Judge; 1. The indictment does not sufficiently describe the, funds. It is not a description “in general terms” as is contemplated by the statute. C. & M. Digest, § 2836; Id. § 2832; Id. § 2835; 60 Ark. 13; 80 Id; 310; 99 Id. 32. 2. It is defective also in that it fails to allege that the funds were in the care, etc., and 'under the control of the appellant, at the time it is alleged he failed to pay them over. 80 Ark. 310-313; 60 Id. 13. 3.

B. Sorrells, Judge; The court erred in refusing to permit defendant to offer in evidence copy of letter to plaintiff, dated July 25th. The court erred in instructing the jury that defendant was not entitled to recover on Ms counter claim, and in directing a verdict thereon. 9 Cyc. 732; 22 Ill. 522; 108 Ala. 50l8; 88 Ark. 422.

Ozark District; Jas. Cochran, Judge; I. The court erred in submitting to the jury the question of the breach of warranty. A warranty is so clearly a part of a sale where the sale is evidenced by a written contract that it is incompetent to engraft upon it a warranty by parol. 80 Ark. 505. The written contract signed 'by the parties was a complete contract. 80 Ark. 505 is decisive of this case. It was not competent to engraft upon it a warranty resting on parol.