Volume 151 — Arkansas Reports

Eaynie, Judge; 1. The authority of a drummer is to take orders and submit them to their employers for approval. If he claims authority in excess of soliciting orders, he must prove it. 101 Ark. 68. Dreher, it is shown, had no authority to make the agreement with reference to the return of the goods; but, if he made such agreement, it was an unauthorized act which was never ratified by appellant. 64 Ark. 217; 105 Ark. 512; 76 Id. 472; 2 C. J. L. § 116.

Haynie, Judge; The defendant is liable under every element of the rule announced by the court in the case of Alfrey Heading Company v. Nichols, 139 Ark. 467. On the question of invitation or inducement, see 20 R. C. L., 57, § 52; Id. 65, § 57. There was no notice of the extra danger created by the temporary beam. 89 Ark. 128.

Y. Stevens, Chancellor; The court erred in awarding the custody of the child to plaintiff, without first taking proof showing justification for the change. 124 Ark. 579; 146 Ark. 362. The decree of the chancery court was not final. The chancery court has the right and power' to control the custody of a minor child in a contest brought before it. 37 Ark. 30; 106 Ark. 203.

Smith District; J. V. Bourland, Chancellor; An insolvent debtor may prefer one creditor, over another, if the transaction is in good faith and the consideration is not palpably inadequate. 56 Ark. 414; 28 Id. 32; 31 Id. 666; 26 Id. 20; 12 R. C. L., par. 91 and 95. The rule applies to corporations as well as to persons. 59 Ark. 562. The burden is on the protesting creditor to establish fraud. 18 Ark. 123.

Y. Stevens, Chancellor; There was no condemnation of the right of way over which the levee was built. 146 Ark. 14; 138 Ark. 471. The plaintiff had no right to go upon the land of defendant and construct its levee over a right of way which had not been condemned for that purpose. Nunes v. Coyle, 148 Ark. 365; 143 Ark. 302 229 S. W. 38 142 Ark. 509. The question of condemnation of right-of-way has been settled by a former decision in this case. 146 Ark. 14.

H. Evcms, Judge; Actual malice need not be shown or proved to establish a cause of action for malicious prosecution. 100 Ark. 316; 101 Ark. 37; 193 S. W. 520; 199 S. W. 91. Malice may be inferred from want of probable cause. 122 Ark. 382; 193 S. W. 520; 204 S. W. 748. What facts -amount to probable cause is a question of law, whether they exist is a question for the jury. 169 S. W. 1023.

Wade, Judge; The case of White Auto Company v. Collins, 136 Ark. 81, is decisive of the question that may arise as to the claim of Hamp Williams Hardware Company or R. A. Johnson to the automobile sought to be confiscated.

B. Priddy, Judge; The court should have directed a verdict for defendant. The facts did not justify a submission of the question to the jury. 107 Ark. 431; 97 Ark. 560; 129 Ark. 77. The testimony is not sufficient to show negligence in the speed maintained by the train. 63 Ark. 177; 84 Ark. 270. The plaintiff, knowing Ms physical defect, was guilty of negligence in going upon the track in front of the approaching train. 150 S. W. 29; 33 S. W. 396.

E. Dudley, Judge; The court should have given the peremptory instruction (No. 1) requested by appellant. 132 Ark. 455. Also erred in modifying and giving as modified her requested instruction No. 2. The peremptory instruction was properly d.enied, as there is no evidence to show that the possession of appellant was hostile to the appellee’s title. 1 E. C. L. p. 686; 47 Ark. 66; 48 Ark. 312; 30 Ark. 640; 65 Ark. 422; 87 Ark. 496; 97 Ark. 33; 132 Ark. 455.

Reeder, Chancellor; 1. The chancery court had jurisdiction. § 11, art. 7, Const.; C. & M. Dig. § 2184; 95 Ark. 620. The remedy at law was inadequate. 32 Ark. 489. The suit was proper in equity to avoid circuity of action. 21 C. J. § 52, p. 82. See also act 82, Acts 1919, § 17. The chancery court has original jurisdiction where lands are charged for the payment of debts. 2.

E. L. Johnson, Judge; Defendants’ motion for new trial should have been granted for the reason that there is no corroboration of the testimony of the accomplice, Termis Butts. 208 S. W. 197. Testimony of an accomplice must be corroborated by other evidence. C. & M. Dig., § 3181; 120 Ark. 148.

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

H. Evans, Judge; The description “ten board trees” in the deed was not sufficient to designate the trees reserved. 30 Ark. 640; 30 Ark. 657; 35 Ark. 470; 48 Ark. 419; 95 Ark. 253; 106 Ark. 83; 119 Ark. 301; 139 Ark. 83; 144 Ark. 442. There was no error in admitting oral testimony to prove the terms of the deed. 140 Ark. 231. The contract, having been prepared by defendant, must be construed as unfavorably against them as its terms will admit. 90 Ark. 92.

P. Sanderson, Chancellor; STATEMENT oe eaots. Isaac L. Awtrey brought this suit in equity against Laura 0. Maxwell, as administratrix of the estate of Henry Maxwell, deceased, to enjoin her from selling the lands of said estate under orders of the probate court of Polk County, Arkansas, to pay the debts probated against said estate.

M. Shvrm, Judge; STATEMENT OE EAOTS. On the 23rd day of December, 1919, the plaintiffs, Patterson & Company, sued John Keys before a justice of the peace to recover $120.68 alleged to be due upon a promissory note executed by the defendant to the plaintiffs. On the same day a writ of garnishment was issued and served upon L. S. Samuelson to answer what goods, moneys, and credits he had in his possession belonging to the defendant, Keys.

E. Evans, Judge; STATEMENT OP PACTS. Ernest Smith sued the Wisconsin & Arkansas Lumber Company to recover damages for being negligently injured by said company while in its employment. In October, 1920, Ernest Smith was working for the Wisconsin & Arkansas Lumber Company as a section hand for $3.50 per day. At the time he was injured he was engaged in the work of surfacing the log road of the company, and there were about ten members of the section crew.

M. Shinn, Judge; The court erred in excluding testimony as to the reasonable value of the services of appellants and in refusing to give the instruction on the subject of reasonable compensation requested by them. 98 S. W. 943; 102 5. W. 721; 224 Fed. 892. It was prejudicial error to permit the wife of appellee Fancher to testify. Neither husband nor wife may testify for or against the other. C. & M. Dig., § 4146; 29 Ark. 603.

<p>- Appeal from Lee Circuit Court; J. M. Jackson, Judge;</p> <p>This case should be affirmed for failure to file a bill of exceptions, as required by law. C. & M. Digest, § 1321; 40 Ark. 172; 131 Ark.'243; 98 Ark. 449; 46 Ark. 482; 64 Ark. 597; 37 Ark. 528; 35 Ark. 438.</p>

• • Appeal from Arkansas Circuit Court, Northern District; George W. Glarh, Judge; The statute, C. & M. Digest, § 2511, does not warrant a charge to the jury that the killing of the animal with a dangerous and deadly weapon will 'be presumed to have been done maliciously, and that proof of malice would not be required. The effect of this instruction and the •one following it is to shift the burden to the. defendant, leaving to the State only to prove the fact of the killing.

V. Bourland, Chancellor; 1. It was. error to grant a decree of divorce in favor of the wife npon her uncorroborated testimony. 38 Ark. 119; 54 Id. 20; 38 Id. 324; 122 Id. 346. And without proof of her residence in the State. C. & M. Dig., § 3505. Appellant is entitled to urge this error (1) because plaintiff is not entitled to dower until the death of her husband. 5 Ark. 608; 31 Id. 576.

M. Jackson, Judge; Tbe policy lapsed and a reinstatement was bad, wbicb reinstatement was rescinded when tbe company discovered tbe false statements contained in tbe application tberefor.

H. Dudley, Judge; The court erred in refusing to instruct that Sunday contracts are void unless subsequently ratified. 29 Ark. 387; 106 Ark. 568.' The court also erred in refusing to charge that the retention of the policy by appellants agent on Monday would not be a ratification of a Sunday contract, and in giving an instruction to the contrary. The premium was paid. 94 Ark. 578. The mailing of the policy of insurance to its agent.

II. Dudley, Judge; Appellant had the authority, and it was his duty, to file the informations {% 8308, C. & M. Digest). It was the duty of the justice of the peace to issue the warrants, Id. It was appellant’s duty to attend and prosecute. § 8309, Id. He did attend for the purpose of prosecuting, and was present and prosecuting at the time the pleas of guilty were entered as much so as . if there had been a jury trial. He was entitled to the fees.

H. Dudley, Judge; Tbe fact that a sample of the cotton was exhibited to appellee from which he determined the grade and staple thereof, does not make this a sale by sample. In order to get possession of the cotton, he must first obtain the warehouse receipts, which in effect are the cotton. Under C. & M. Digest, § 6893, appellee could not be an innocent purchaser against the lien of the landlord. See also 69 Ark. 551; 103 Ark. 91.

Shaver, Chancellor; The court erred in overruling the motion to make the complaint more specific. There was no merit or equity in the suit. Nelson on Divorce and Separation, § 333. The testimony was not sufficient'because there was no corroboration. 114 Ark. 518; 105 Ark. 194. The resumption of the marriage relation amounted to a condonation of past causes of divorce. 86 Ark. 56. Husband and wife are competent witnesses in divorce cases. 38 Ark. 119; 38 Ark. 324; 54 Ark. 20.

B. Baker, Judge; The statement of facts shows a prima facie case of negligence on the part of the defendant, and the burden is upon it to explain away that negligence. 37 Ark. 562; 33 Ark. 816; 42 Ark. 122; 39 Ark. 413; 54 Ark. 214; 57 Ark. 137; 104 Ark. 500; 104 Ark. 38; C. & M. Digest, sees. 8570 and 8574. The judgment should be affirmed under section 2175 of C. & M. Digest.

V. Bourlcmd, Chancellor; STATEMENT OE EAOTS. Emma Parrish brought this suit in equity against Willie Parrish and others to reform a deed to real estate in Port Smith, Ark.

Haynie, Judge; The evidence was not sufficient to sustain the verdict of the jury. The court’s instruction making the hotel an insurer of the articles checked was erroneous. 103 Ark. 593; act 217 of Acts of 1913, p. 934; 136 Ark. 503.

Y. Stevens, Chancellor; reversed and There is no provision in the lease for forfeiture, and the lessor is remitted to a suit for damages to the property.

E. Atkinson, Chancellor; Appellant did not buy the cotton grown by Carden, and the fact that Carden turned over to appellant the money he received for his cotton sold to other. parties would not make it liable to the landlord. To become liable appellant must have received the property itself, with knowledge of the landlord’s lien. 72 Ark. 132; 56 Ark. 499; 70 Ark. 79.

J. Williams, special Judge; The use of the words “to renew” in the lease puts it within the line of decisions which requires a new lease.

Elliott, Chancellor; reversed and The chancery conrt was without jurisdiction. 3 Pomeroy’s Equity, (3 ed.) par. 1156; 88 Ark. 1; 70 Ark. 432; 128 Ark. 420. The objection that equity has no jurisdiction of the subject-matter cannot be waived. 88 Ark. 1. The suit was not properly begun. C. & M. Digest, sec. 1049. The court erred in its construction of the will.

<p>Appeal from Pulaski Chancery Court; J. E. Martinecm, Chancellor;</p>

Clark, Judge; Replevin is not an action for the collection of a debt. 11 Ark. 29. The jury erred in failing to render a verdict according to law in an action of replevin. C. So. M. Digest, §§ 8653 and 8654.

C. & M. Digest, § 2449. The rule governing the description in larceny cases is applicable to this nature of case. 2 Bishop, Crim. Proc. § 173; 33 Ind. 159; 20 Grat. 716; 37 Ark. 443; Id. 445; 58 Id. 43; C. & M. Dig. § 2483; Id. § 2484. Under the last-named statute, a deed to realty is a subject of larceny. It is a chattel or personal property. 8 R. C. L. 923, § 3. See Shelton v. State, 96 Ark. 237.

IT. Evans, Judge; 1. The cause should have been removed. The facts requisite to Federal court jurisdiction existed. Comp. Statutes, § 991. Section 1010, Id., was fully complied with, and section 1033, Id. under the circumstances of the case would not justify the lower court in denying the petition. 265 Fed. 715; 261 Id. 697; 39 Id. 581; Í52 H. S. 634; 268 Fed. 610.

Ciarle, Judge; Plaintiff was not required to file a claim. 63 Ark. 332; 105 Ark. 406. The title never passed to the consignee. The question of the intention of the parties should have been submitted to the jury. Ill Ark. 524; 112 Ark. 117; 118 Ark. 21; 121 Ark. 290; 123 Ark. 67; 128 Ark. 128; 137 Ark. 401. The failure to file a claim as provided in the bill of lading is a complete bar to plaintiff’s right to recover. 36 Sup. Court Bep. p. 542; 148 Ark. 118.

Clark, Judge; The evidence was not sufficient to support the verdict. Evidence which is reasonable and consistent cannot be arbitrarily disregarded by the jury. 151 S. W. 288; 96 Ark. 37. The evidence was amply sufficient to support the verdict. 77 Ark. 436.

There was no proof that the alleged crime was committed in Drew County 3 or even the State of Arkansas. The only proof on this point was that the crime was committed 8 or 9 miles from Monticello. Instruction No. 11 eliminated the plea of self-defense and was erroneous. No instruction was given which cured this error.

Clarke, Judge; The court erred in refusing to give instructions Nos. 1 and 2, as asked by defendant. 196 S. W. 922; 203 S. W. 703. Instructions that are obviously ambiguous should be specifically objected to. 131 Ark. 487; 92 Ark. 238. The verdict of the jury will not be set aside by a misleading instruction, when that instruction is made by other instructions given. 59 Ark. 422; 58 Ark. 353.

Cochran, Judge; Appellant did not comply with the terms of this contract, by notifying the sovereign clerk and by the payment of an additional premium while serving in the army. This had the effect to merely suspend the operation of the contract, and did not render it void. 138 Ark. 442. However, the failure to comply with the conditions of his contract is a bar to any claim thereunder during this period.

Clark, Judge; The competency of evidence admitted without objection in the trial court will not be considered on appeal. 76 Ark. 276; 130 Ark. Ill; Cegars v. State, 150 Ark. 648. Where no objection is made to a misleading instruction, a reversal will not be granted on this ground. 93 Ark. 209; 111 Ark. 196; 136 Ark. 272’.

Clark, Judge; Instruction No. 5, given by the court, is in substance the same instruction given on a former trial, which was the error for which the case was remanded for new trial. Parsley v; State, 148 Ark. 518. The giving of this instruction calls for the reversal of the case. We concede error in the giving of instruction No. 5.

M. Shinn, Judge; The notice was premature and of no effect. Ordinance No. 119 is void, as it has for its purpose the raising of revenue and not supervision of poles. 34 Ark. 603; 43 Ark. 82; 52 Ark. 301; McQuillin on Municipal Corporations, sec. 1683. The salaries paid town officials was $72 per year, whereas the revenue demanded of appellant amounted to $106 per annum, and supervision of poles was in hands of mayor and councilmen.

Smith. District; George W. Dodd, special Judge; 1. There was no breach of the implied covenant to put the plaintiff in possession, resulting from the holding-over by the former tenants of the leased premises. Their holding over was wrongful and unlawful, and of the fact that they would hold over plaintiff was fully advised.

79 Ark. 435; 24 Id. 223; 19 Id. 447; 24 Id. 222. If title fails, buyer may rescind the contract and demand return of money paid. 35 Ark. 483; 78 Id. 444; 22 Id. 522; 68 Id. 299. The machine was never of any benefit to appellant, but, on account of the fraud perpetrated upon him by appellee, he was out a large sum of money.

B. Sorrels, Judge; The court erred in refusing to exclude the testimony of Mr. Vick and Mr. Reed relative to matters that happened in Jefferson County. The instruction approved in the case of Simmons v. State, 149 Ark. 348, although the same as the instruction in this case, is not controlling here, because in that case there was no testimony of anything which happened outside of the county in which the defendant was indicted.

Martinecm, Chancellor; 1. The demurrer and motion to transfer should have been sustained. The cause .of action was solely an action by a vendor for damages for breach of a contract of sale of personalty, — purely a legal action. 44 N. Y. 72; 140 N. Y. 70; 155 N. Y. 481; 63 Am. St. Rep. 692; 79 Ark. 63; 92 Id. 111. It was a prerequisite to the existence of a seller’s lien, that the title of the property should have passed to the buyer. 93 Me. 549; 45 Ati. 829; 37 Mo.

M. Shinn, Judge; Appellant was not an insurer of the safety of the deceased. 18 R. C. L. par. 60, p. 544; 80 Ark. 260; 59 Ark. 465; 56 Ark. 206; 56 Ark. 232. The fact that deceased was injured while doing appellant’s work, is not sufficient in itself to create liability. 91 Ark. 389; 79 Ark. 437; The fact that the chain was twisted and the injury to deceased resulted thereform is not enough. Negligence must be shown. 77 Ark. 367; 41 Ark. 283; 58 Ark. 168; 76 Ark. 436.

E. L. Johnson, Judge; The jurisdiction is in the State of Tennessee, for the reason that no valid act has been passed by that State similar to § 2862 of C. & M. Digest. Act 290 Acts 1909. See also 118 Ark. 362. The evidence was not sufficient to support the verdict. 68 Ark. 529; 85 Ark. 360; 68 Ark. 529; 97 Ark. 156; 34 Ark. 639. The jurisdiction was properly laid.

Coleman, Judge; The evidence was insufficient. Persons of unsound mind are incompetent to testify. 29 Ark. 603; 31 Ark. 684. The testimony of the sheriff was hearsay testimony, and it was error to admit it. 76 Ark. 487; 109 Ark. 135; 115 Ark. 555. The court erred in allowing Cockrum to testify as to his own good character. 67 Ark. 112. Postponement of the trial should have been granted. 114 Ark. 452; 100 Ark. 301; 99 Ark. 394; 99 Ark. 547.

Elliott, Chancellor; The relation of trustee and cestui que trust existed between appellant and Dowdy. 117 N. E. 406. The deed having been made to a trustee and to his successors, any one who deals with the trust property, with that notice written upon the face of the deed, does so at his peril.

,A. Dickson, Judge; STATEMENT OP PACTS. The Arkansas Company, a corporation, brought this action in the circuit court against the Basin Park Hotel Association, operating under a declaration of trust, and the members thereof, to recover the sum of $483.95 alleged to be due for hotel supplies furnished by the plaintiff ■ to the defendants.

130 Ark. 245; 85 Id. 334; 99 Id. 394; 100 Id. 132; 67 Id. 290. Tbe evidence does not support tbe verdict. A conditional promise of marriage is not sufficient upon wbicb to predicate tbe charge of seduction. 130 Ark. 520. Tbe prosecutrix fixes no time, nor states the nature of any promise of marriage except tbe first. If she did not consent, the act according to her testimony was rape; if she did 'consent as tbe defendant claims, then it was before tbe promise of marriage.

Coleman, Judge; The court erred in refusing a continuance. 109 Ark. 407; 120 Ark. 173. The refusal to grant a continuance is subject to review on appeal. 99 Ark. 334. The demurrer should have been sustained. There was a misjoinder of offenses. C. & M. Digest, § 3015; 109 Ark. 389; 109 Ark. 498; 37 Ark. 274; 41 Ark. 173. The court erred in permitting the witness Ivey to testify as to the reputation of the defendant.

Smith, Judge; In arriving at the intention of parties to a contract, it must be construed as a whole and not from some particular word or words.… Held: the purchaser was entitled to a marketable title. 21 Ark. 298. The same conclusion was reached by the court in the following cases: 44 Ark. 145; (a deed of 'conveyance in fee of the legal title of, in and to said tract of land and appurtenances); 63 Ark. 549 (a good and sufficient title in fee simple) citing 120 N. Y. ?53.

B. Borréis, Judge; The motion for continuance should have been sustained. Appellant had discharged every burden on him in order to have witness Roberts in court. 94 Ark. 538; 99 Ark. 394; 100 Ark. 133. The demurrer and motion to quash should have been sustained because the indictment was not filed in open eourt in the presence of all the grand jury. 19 Ark. 178; 24 Ark. 637; 31 Ark. 427; 33 Ark. 815; 93 Ark. 290. The indictment does not allege that W. EE.

Steel, Judge; 1. The evidence is altogether too remote to connect the defendant with receiving the bonds( in Polk County. 2. It was improper to permit the prosecuting attorney in his opening statement to the jury to say that the State would show that the defendant robbed a bank at Alma, Ark.; that he had served terms in the United States prisons, and would show the defendant’s picture taken in a rogue’s gallery.

Clark, Jndge; The evidence discloses no malicious intent. McClain’s Crim. Law, § 826; 30 Ark. 433, 435; 48 Id. 56, 3 Am. St. Rep. 216; 35 Ark. 345. There can be no criminal liability for acts done in good faith under supposed right or claim of authority. McClain, Crim. Law §§ 827-828; 25 Cyc. 1677-1678. The property necessarily belonged to Rural Special School District No. 20, when the offense is alleged to have been committed.

H. Evans, Judge; The evidence falls short of that substantial proof necessary to convict. Suspicion cannot be taken as proof. 118 Ark. 352; 20. Id. 454; 29 Cyc. 832; 94 Ark. 569; 65 Id. 279. Autry’s testimony supports the verdict. Appellant’s conduct in disposing of the whiskey to him was a mere subterfuge for a direct sale. 43 Ark. 75.

F. House, Judge; The judgment for costs obtained by appellant against appellee in the Prairie Circuit -Court growing out of the same cause of action should have been allowed on appellant’s counterclaim. C. & M. Dig. §§ 1195 and 1197; 74 Ark. 224; 134 Ark. 311.

C. & M. Dig., sec. 6955. The -contract and guaranty are one and the same, both being written, and the obligation of the guarantors is to pay the account, upon the failure of the principal. 190 S. W. 118.

Reeder, Chancellor; The county court was without jurisdiction. Under the act 422, Acts 1911, the voting of the- three mills road tax and the levying of the same by the quorum court are necessary conditions precedent to the exercise of such jurisdiction. 203 U. W. (Ark.) 260. .

H. Evans, Judge; The court erred in allowing witness to show to the jury how stills are erected and operated. Briscoe v. State, 149 Ark. 648. The evidence was not sufficient. The case of Briscoe v. State, 149 Ark. 648, does not apply. Objections made to instructions for the first time on appeal will not be considered.- 70 Ark. 348; 74 Ark. 557. Where no objection to an erroneous instruction is made, the court will not reverse. 124 Ark. 599.

Shaver, Chancellor; 1. The estimated cost of the improvement is a limit of liability upon the property in the district. C. & M. Digest, § § 5656, 5657; 134 Ark. 315, 319; 97 Id. 334, 342; 86 Id. 1; 115 Id. 96. 2. The assessment of benefits is a limitation upon the liability of the property in the district. C. & M. Digest, § § 5657, 5658; 86 Ark. 1, 7, 8, 9, 14, 21, 22; 97 Id. 334, 342; 127 Id. 341. There is nothing to show that the interveners are aggrieved.

W. Smith, Judge; STATEMENT of eacts. Appellees brought this suit agaiust appellants to recover judgment for the sum of $218.16, with the accrued, interest alleged to be due them for the appropriation by appellants to their own use of three bales of cotton upon which appellees had a mortgage.

Elliott, Chancellor; STATEMENT OE EACTS. Appellant brought this suit in equity against the appellees to set aside a judgment of the probate court ordering the lands described in the complaint to be sold; to cancel the deed executed pursuant to said probate sale; and to divest the title to said lands out of appellees and to vest the same in appellant. According to the allegations of the complaint, Jas.

H. Evans, Judge; STATEMENT OE EACTS. Bert MeGarity was indicted for the crime of setting up a distillery in this State for the purpose of manufacturing distilled spirits for beverage purposes. Ed. F. McDonald, sheriff of Grant County, Arkansas, and two of his deputies, were witnesses for the State. According to their testimony, they went to the neighborhood where Bert McGarity lived to make an investigation, and about 150 yards from Stan Collins’ house they found a worm.

E. Martineau, Chancellor; STATEMENT OP PACTS. E. M. Fagan, a citizen and taxpayer of the State, brought suit in equity against Ira C. .Hopper, as Secretary of State, and the Union Acoustical Company, of St. Louis, Mo., to enjoin them from carrying out a contract for the improvement of the acoustics in the hall of the House of Eepresentatives. The defendants filed an answer to the complaint, and the plaintiffs then demurred to the answer. Subsequently, Allen Kennedy and Jas.

E. L. Johnson, Judge; 1. The authenticated copy of the record of Gibson’s indictment for and plea of guilty to the crime of robbery in the State of Missouri ought to have been admitted. It was a material issue under appellant’s plea of self-defense, as to whether he or the deceased was the aggressor, and tlie general reputation of each for peace and quietude was admissible. 147 Ark. 524.' 2.

II. Evans, Judge; The plea in abatement and motion to dismiss should have been sustained. Open account are barred in three years. C. & M. Digest, § 6950. The motion to strike the amendment and plea of statute of limitations should have been sustained. 97 Ark. 19; 64 Ark. 345; 157 111. 218; 51 111. App. 457; 59 Ark. 441; 67 Mo. 420; 56 Kan. 507; 65 N. W. 583; 95 Tenn. 612; 34 S. W. 381; 63 N. W. 506.

Smith, Judge; The court erred in instructing the jury that they should find for the defendant as to the ice-box if it was worthless, or if it was not fit for the purpose for which it was used. Appellee had used the box and knew of its condition. There was no fraud or misreprensation alleged or proved. The doctrine of caveat emptor applies. 19 L. Ed. (U. S.) 987; 45 Ark. 254; 70 Ark. 61.

B. Sorrels, Judge; The verdict is contrary to law. § 2 of the act makes it a crime to have in one’s possession a still “without registering same with the proper United States officer,” which fact should have been negatived in the indictment. 18 Ark. 109; 33 Ark. 557; 77 Ark. 139. The burden was on the State to prove that the still had not been properly registered. 83 Ark. 27; 84 Ark. 332.

Smith. Judge; Appellee was not prevented from appearing or defending on account of unavoidable casualty, within the meaning of C. & M. Digest, sec. 6290. He took no interest in the ease, and under the rule announced in 108 Ark. 47, and 128 Ark. 269, the judgment against Mm should not have been set aside.

Steel, Judge; One not present when an offense is committed cannot properly be indicted as principal. 109 Ark. 498; 37 Ark. 274; 41 Ark. 173; 96 Ark. 58; 109 Ark. 389. Defendant’s objection to the opening statements of the prosecuting attorney should have been sustained. 62 Ark. 516; 71 Ark. 415. The testimony of J. A. Thornton and Jim Murray as to an unlawful organization should have been excluded.

G. Hammock, 'Chancellor; The whole case is based upon mutual mistake. If the plaintiff is to prevail, he must do so not only by a preponderance of the evidence, but the proof of the mistake must be clear, unequivocal and decisive, free from reasonable doubt. 101 Ark. 461, 466; 108 Id. 503, 506; 132 Id. 227. The authority of Ross to include the land in section 27 in the deed must be proved. 23 R. C. L. 328.

H. Dudley, Judge; Appellant did not waive its right to avail itself of tlie covenants of the policy with reference to notice of claim and notice of suit, by its appearance and defense of the second suit instituted by Scott. A waiver is the intentional relinquishment of a known right. 82 Fed. 406, 47 L. E. A. 450; 32 Conn. 21, 85 Am. Dec. 240; 66 Conn. 227, 50 A. S. E. 80; 127 111. 364; 11 A. S. E. 121.

T. Stevens, Chancellor; reversed and The court erred in holding the assessments void. Concurrence of a majority of the assessors was sufficient in absence of showing that an absent member had no notice. Page & Jones, Taxation by Assessment, § 901.

The statute was not complied with. Acts 1917, p. 478. It was error to employ or work more than twelve hands on the road at one time. C. & M. Digest, § 9001. The plaintiff had no authority to incur indebtedness for work on the roads in excess of the district’s revenues. 120 Ark. 509. He failed to make a full report of all work done by him on the roads. C. & M. Digest, §§ 5264 and 5343.

McMahan, Chancellor; ’ STATEMENT OF FACTS. This was a bill in'chancery brought by appellees against appellants to compel them to account as trustees for certain profits made by them in selling an oil lease belonging to all the parties jointly. Appellants defended on the ground that they were not trustees at the time they sold the oil lease, and that they only sold their own interest in the property.

M. Jackson, Judge; STATEMENT OP PACTS. Appellee brought this action in replevin to recover from appellant two boilers of which it claims to be the owner. Appellant answered, denying the ownership in appellee and averring title to the boilers in itself. On the 26th day of November, 1919, appellant wrote to appellee enclosing a circular of second-hand machinery for sale, together with a price list and stating that the machinery was all in good serviceable condition.

Haynie, Judge; Instruction No. 3 should have been given in full. It was error for the court to modify it. 34 Ark. 756; 93 Ark. 316; 120 Ark. 494. The argument of the prosecuting attorney was improper and prejudicial. 141 Ark. 442; 58 Ark. 481; 58 Ark 368; 138 Ark. 517. Even if the argument of the prosecuting attorney was improper, it was not prejudicial. 73 Ark. 453; 74 Ark. 256; 100 Ark. 437; 86 Ark. 600; 93 Ark. 564; 34 Ark. 649; 95 Ark. 321.

E. Martineau, Chancellor; Losses paid, rather than losses incurred, are used by the Commissioner in his calculations. Income and excess profits taxes are not allowed as an expense. No allowance is made for conflagration hazard. The law should be liberally construed. C. & M. Dig., sec. 9728. The purpose of construction is to ascertain the legislative intent. 84 Ark. 411; 106 Ark. 377.

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

Mc-Mahan, Chancellor; The chancery court erred in taking jurisdiction of this cause. It was a suit for conversion. , He who comes into equity must do equity. 67 Md. 542; 114 N. Y. 371; 64 Conn. 101; 129 Iowa 694.

Clark, Judge; The court erred in quashing the writ of garnishment and dismissing the garnishee (appellee), and at the same time holding the „ amended complaint good. The right to amend pleadings is thoroughly established. 55 Ark. 200; sec. 1239, C. & M. Digest. Defects in pleadings could only be taken advantage of by the defendant, not the garnishee. 63 111. App. 289; 21 Ind. 280.

Ha/ynie, Judge; The court erred in assessing damages and attorney’s fees. Sec. 6155, C. & M. Digest; 94 Ark. 578. ' Failure to make proof of loss was not waived by the company. 67 Ark. 584; 13 Ency. Ev. 1020; 29 Ency. ,Ev. 1105. There was no error in allowing attorney’s fees and assessing damages. 94 Ark. 578; 86 Ark. 115.

A. Dickson, Judge; STATEMENT OP PACTS. Appellee instituted this action in the circuit court against appellants to recover damages in the sum of $106 for an alleged breach of warranty in the sale to him by appellants of eleven bushels of peas for the purpose of planting. J. E. Applegate, the appellee, was a witness for himself. According to his testimony he was engaged in farming near Rogers, Arkansas, during the year 1920.

II. J. Ra'lclrff, special Chancellor; statement oe pacts. Appellees brought this suit in equity against appellant to cancel and set aside deeds made to him to two tracts of land, and for an accounting of the rents ant profits of the same. Appellant defended on the ground that he had title to the lands in question.

E. Mariineau, Chancellor; statement of facts. The Attorney General of the State of Arkansas, proceeding under §§ 9823-30 Crawford & Moses’ Digest providing for the assessment and collection of an excise or privilege tax on private car companies doing business in this State, brought this suit in the chancery court against the American Refrigerator Transit Company, a foreign corporation, to recover a privilege tax levied against it by the said Tax Commission under the…

<p>Appeal from Pulaski Circuit Court, Second Division, Guy Fulh, Judge;</p>

<p>1. Trial — direction of verdict. — While the testimony of a litigant, although not contradicted by any other witness, does not make a case of undisputed testimony, upon which the 'court may direct a verdict, it was not error to direct a verdict upon the affirmative testimony of the plaintiff as to the correctness of his account where defendant’s answer failed to deny the correctness of any of its items.</p> <p>2. Set-off and counterclaim — want of reply — waiver.—Where defendant did not move for a judgment for want' of a reply to his counterclaim, but went to trial without objection as if the allegations of the counterclaim were in issue, the absence of a reply will be disregarded.</p>

B. Priddyi Judge; The court erred in taking the case from the jury and rendering a judgment for the defendant. 95 Ark. 561; 71 Ark. 447; 76 Ark. 522; 73 Ark. 561; 89 Ark. 222; 89 Ark. 372; 63 Ark. 94; 77 Ark. 556; 36 Ark. 451; 35 Ark. 146; 62 Ark. 63; 8 Ark. 57.

Wade, Judge; The court erred in holding jurors Holt and Biff to be qualified. Holt stated his opinion was formed from reading newspaper reports of the,case, hut stated he could try the case on the evidence. He was therefore qualified. 72 Ark. 613; 79 Ark. 127; 80 Ark. 113; 85 Ark. 64; 101 Ark. 443; 103 Ark. 21; 109 Ark. 450; 114' Ark. 472. Appellant cannot complain of Holt, as he entered only a general challenge to this juror. Standard Enc. of Proc., vol. 17, pages 146-149.

E. L. Johnson, Judge; The court erred in refusing a continuance of the case to procure the witnesses for appellant, and also in refusing to permit appellant to relate the state of feeling existing between himself and Martin. Appellant’s motion for continuance was not verified until after the trial and judgment and was properly overruled. Logan v. State, ms. op.; 15 Ark. 252. Appellant did not exercise due diligence in procuring the attendance of his witnesses.

M. Jackson, Judge; The clerk committed error or misprision in entering personal judgment against appellant. It is not responsive to the verdict, and subject to correction by 'appeal. Sec. 6285 et seq., C. & M. Digest. A judgment must-conform to the verdict, and where it does not, neither the clerk nor the court has authority to make it otherwise. B. O. L. vol. 15, p. 43 and cases cited. 5 Ark. 375; 29 Ark. 597; 47 Ark. 126; 50 Ark.' 96.

Steel, Judge; Appellant made a case for the -jury, testing tbe evidence in accordance with, the established rule of this court, and it was therefore error to direct the verdict for the defendant. 107 Ark. 158; 282 S. W. (Ark.) 23. The trial court in directing the verdict instructed them upon the weight of the evidence in telling them that the appellee had good cause for repudiating the contract. § 23 art. 7, Const.

Judge; Confessions must be considered in their entireties. 69 Ark. 599. Confession should not be received unless voluntarily made. 50 Ark. 501. Where improper influence has been used to obtain a confession, it will be presumed that the confession flows from that influence. 109 Ark. 322.

436, O. & M. Digest, provides for service of summons at any time or place, and there is no exception in favor of members of the Legislature. Such service does not violate any rule of public policy, as sec. 430, C. & M. Digest, provides for the continuance of such civil suit until 15 days after the adjournment of the Legislature.

Francis Chancery Court; A. L. Hutchins, Chancellor; The intention of the testator must be ascertained from the language of the whole instrument taken together, rather than from any particular form of words, and the will should be so construed as to give effect to that intention, so long as it violates no rule of law. Ill Ark. 54; 112 Id. 527; 126 Id. 53; 104 Id. 439.