Volume 152 — Arkansas Reports

A. Dickson, Judge; This ease is controlled by the opinion of this court in the case of Wilcox v. Citizens Laundry, delivered April 21,1913, and not reported. See also 2 Thompson on Corporations, 1693; 163 N. Y. 580; 96 Ark. 493.

Appealed from Jefferson Circuit Court; W. B. Sorrels, Judge; 1. It was clearly erroneous to permit defendant to ask the witness Lee the question, “Was there any question at that time about any accidental discharge of the pistol?” and to permit him to answer, “No”.

On the 19th day of March, 1920, appellants brought this suit in equity against appellees to cancel and set aside a deed to forty acres of land on the ground that the proceedings in the mortgage foreclosure sale under which appellees purchased were void. Appellees interposed the plea of res judicata and the statute of limitations. The forty-acre tract of land in controversy was the homestead of John Denton, who died intestate in Clay County, Ark., on January 11, 1912.

Appeal for Howard Circuit Court; James S. Steel, Judge; STATEMENT OP PACTS. V. B. Yan Dyke sued the Dierks Special School District to recover $2,000 alleged to be due him for services as architect in preparing the plans and superintending the erection of a school building for said district. The school district denied liability.

Appealed from Jefferson Circuit Court; W. B. Sorrels, Judge; The court erred in refusing to grant appellant’s ■motion for continuance. The motion for 'Continuance was properly denied, as appellant made no showing of the whereabouts of the absent witnesses or that their atetndanee could be procured by him in time for the trial, within the continuance requested by him. 113 Ark. 142; 100 Ark. 132; 100 Ark. 180; 54 Ark. 243; 96 Ark. 254; 95 Ark. 555; 120 Ark. 562;- 71 Ark. 62.

<p>Appeal from Lawrence Circuit Court, Eastern District; Dene H. Coleman, Judge;</p> <p>The demurrer to the amended complaint should have been sustained. 13 Ark. 379.</p>

A. Dickson, Judge; Before a conviction for assault with intent to kill can be sustained, the evidence must show beyond a reasonable doubt that the defendant would have been guilty of either murder in the first or second degree, had death ensued from the assault. 47 Ark. 275; 120 Ark. 494; 125 Ark. 542; 72 Ark. 569.

145 Ark. 540; 145 Ark. 262; Cosby v. Hurst, 149 Ark. 11. The court erred in overruling defendant’s motion for a jury trial. The chancery .court had jurisdiction. 31 Cyc. 797 (11); jurisdiction cannot be defeated by conceding that the party invoking it is entitled to the relief asked for. 15 C. J. 822, sec. 135; 69 S. W. 447. Granting of jury trials in chancery court is a matter within the discretion of the court. C. & M. Digest, §§ 1266 and 1267.

Clark, Judge; The court erred in refusing to direct a verdict for appellant. The request for satisfaction cannot be made by one of two joint mortgagors alone. 27 Cyc. 1427. The statute is penal and calls for strict construction. Jones on Mortgages, vol. II, 7th Ed. sec. 990. Not only were the mortgagors joint, but also the appellees. The suit should have been brought by both mortgagors. J ones on Mortgages, supra.

B. Priddy, Judge; The court erred in refusing to direct a verdict for defendant. To uphold a verdict on appeal there must be evidence to support it. 118 Ark. 249. A new trial will be ordered where a verdict is directly against the evidence. 21 Ark. 468; 24 Ark. 224; 70 Ark. 385; 79 Ark. 608; 28 Ark. 550; 34 Ark. 632; 39 Ark. 491.

4 Ark. 251; 26 Ark. 249; 89 Ark. 239; 127 Ark. 535; 18 Ark. 65; 45 Ark. 17; 49 Ark. 320; 94 Ark. 90. The representations and promises therein were warranties. 80 Ark. 49; 89 Ark. 481; 105 Ark. 115; 236 111. 444; 19 L. R. A. (N. S.) 88. A warranty is a matter of contract, must appear from the contract itself, and show that it was the intent of the parties to warrant. 58 Ark. 532; 66 N. C. 70; Mete. (Mass.) 114; 35 Conn. 225; 69 Mass. 580.

Clark, Judge; The failure to furnish proof of loss was fatal to a recovery. 77 Ark. 484; 87 Ark. 171; 108 Ark. 261; 88 Ark. .120; 84 Ark. 224; 91 Ark. 43. Agency is a fact, proof of which must be made by the party affirming it. 93 Ark. 603; 105 Ark. 446; 53 Ark. 208; 92 Ark. 320; 2 Clements on Fire Insurance, 443. The court erred in refusing to give instruction No. 1 requested by appellant, as to “Contributions.” 51 S. W. 879.

205; 80 Ark 108; 99 Ark 178; 3 A. L. ft. 685; 3 A. L. ft. 715; 225 Fed. 295. The motion to dismiss the appeal of defendant should have been granted. Act 571 Acts 1919, see. 27; act 105 Acts 1921, secs. 20, 21 and 22.

Clark, Judge; An ’ appeal will not lie from an order granting a new trial unless the appellant in his notice of appeal agrees that if the order be affirmed judgment absolute shall'be rendered against him. C. & M. Digest § 2129; 82 Ark. 490; 305 Td. 324; 303 Id. 90; 138 Id. 448.

H. Dudley, Judge; The instruction numbered 6, given by the court, was abstract and misleading. Its-effect was to allow the jury to consider evidence insufficient to support a verdict. Worthen v. Smith, 149 Ark. 278. Proof that the company received cotton at the gin platform at some isolated and remote town is not sufficient to establish a custom. 17 Ark. 428; 58 Id. 125; 137 Id. 137.

L. Hutch-ins, Chancellor; 1. Fraud will not be presumed. The only thing in relation to the foreclosure sale to Bush that would indicate fraud is the circumstance that he sold to 'Bernard on the same day that he bought the land. But a circumstance negativing the idea of fraud is the fact that appellees waited fourteen years before bringing suit, all persons with, actual knowledge of the transactions having died in the meantime. 135 Ark. 240.

P. Henderson, Chancellor; Equity will reform a written instrument where there is a mutual mistake and where there has been a mistake by one party, accompanied, by fraud or inequitable conduct of the other. Pomeroy’s Equity, sec. 1376. The court will not decree an alteration in the terms of a written contract unless the proof is full, clear, unequivocal and decisive. 71 Ark. 614; 85 Ark. 62; 75 Ark. 72; 81 Ark. 420; 81 Ark. 166.

Steel, Judge; Dooley was the employer of the appellees, and they created him their agent to collect the sums due them by turning over their tickets to him. 25 Ark. 219. There was no privity of contract between appellant and the appellees. The bond was for the protection of the road district and not of the appellees. See 49 Atl. 929; 198 Pa. 9. Appellees are barred by the statute of frauds, C. & M. Dig., sec. 4862.

H. Dudley, Judge; STATEMENT OE EAOTS. This was a motion for summary judgment in the circuit court against the defendant, Polk Mobley, as sheriff of Clay County, and his sureties and E. C. Matheney as deputy sheriff, for a failure to make due return of an execution placed in the hands of said deputy in favor of Jas. Wilkerson against E. O. Michaels and others for $173.85 and the accrued interest, issued from the office of the Clay Circuit Clerk.

P. Henderson, Chancellor; STATEMENT OE FACTS. On the 12th day of October, 1920, Minnie Louise Harmon brought an independent action in the chancery court against C. D. Harmon to recover alimony. The husband filed an answer and cross-complaint in which he denied liability for alimony and asked for a divorce on the ground that his wife had wilfully deserted him for the statutory period.

B. Sorrels, Judge; STATEMENT OF FACTS. The Bankers’ Utilities Co., Incorporated, of San Francisco, California, sued the Cotton Belt Savings & Trust Co., a corporation doing business in Pine Bluff, Ark., for the sum of $1,040 alleged to be due upon a contract for one thousand small savings hanks at $1 each and checks for use with them for $40. The defendant answered that the contract sued on was obtained by the fraudulent representations of the seller.

Smith District; J. V. Bourland, Chancellor; STATEMENT OE EAOTS. Appellees, describing themselves as owners of' real property and taxpayers of Fort Smith, Ark., brought separate suits in equity against appellants to prevent them from carrying out a contract whereby the City National Bank was designated, as a depository for the city and improvement district funds of the city of Fort Smith, for the period of two years.

Clark, Judge; 1. Instruction numbered 1 given by the court was erroneous. This suit is not based upon a failure to furnish a safe place to alight but on the failure to stop at a platform. As to station facilities, it is tlie duty of a carrier to exercise ordinary care on]3b 96 Ark. 311; 65 Id. 255; 90 Id. 378; 115 S. W. 640; 149 Pac. 1126. It is bound only to the same kind of care in assisting passengers to enter a car. 85 Ark. 117; 48 Id. 491; 141 Id. 378.

Steel, Judge; 1. Repeals by implication are never favored. 112 Ark. 437; 92 Id. 600; 41 Id. 149. There is no such irreconcilable conflict between § 1715, C. & M. Digest, and the banking act of 1913, chap. 15, C. & M. Digest, as to justify holding the latter as having repealed the former by implication. 2. The liability of the president of a corporation for his failure to file the certificate required by law, is a personal liability upon implied contract. 68 Ark. 433.

Saline Circuit Court; W. H. Evans, Judge; If the payment of $8.50 was made on April 18, 1918, the action on the note was not barred, notwithstanding the statute of limitations. 5 Ark. 551; 19 Ark. 692; 20 Ark. 171; 97 Ark. 217; 92 Ark. 245; 75 Ark. 603; 99 Ark. 212. The jury having found in favor of the plaintiff for the amount of the note, he was also entitled to interest on same. 77 Ark. 234; 100 Ark. 395.

P. Steel, special Judge; A bill of exceptions and motion for new trial were unnecessary. 68 Ark. 180; 100 Ark. 515; 105 Ark. 1. The Legislature cannot take from one the right of his day in court. Const. 1874, art. 2, sec. 13. The right of property is higher than any constitutional sanction, and private property cannot be taken, appropriated or damaged for public use, without just compensation. Const. 1874 art. 2, sec. 22.

There was no fraud in the procurement of the probate court order, but the transaction was in the nature of a family settlement, which are favored by courts of equity. 2 Pomeroy’s Equity Juris, sec. 850 (4th Ed.);. 98 Ark. 93. Appellee has not discharged the burden of proof resting upon her. This case is distinguished from that in 75 Ark. 240, as there was no mutual mistake as to the rights of the widow, and the further fact that here there has been a complete performance.

E. Atkinson, Chancellor; The defendant was a mutual insurance company. 52 Ark. 201; 1 N. E. (Ind.) 571; 133 S. W. 146; 46 ,S. E. 949; 38 L. ft. A. 55; 159 S. W. 1036; 66 Iowa 26; 23 N. W. 241. The name of an association does not fix its real character. 73 Me. 299.

Marlin eau, Chancellor; Gertrude Dennis and Alicia Watkins were the only parties to the contract. One does not acquire rights under a contract to which he was not a party, simply by signing the contract. Anson on Contracts, p. 273; 127 Am. St. Rep. 77; 119 Fed.. 191; 19 Am. St. Rep. 517. Therefore, the husbands of these parties obtained no rights under the contract to be named as grantees in the deed.

F. McMahan, Chancellor; The title tendered by plaintiffs is a title by limitation, whereas, the one called for by the contract was a record marketable title. Appellant was not obligated to accept anything less than the title -contracted for. See 121 Ark. 482 and 120 Ark. 69. By a “clear record title,” it is not meant that there shall be an unbroken chain of conveyances from the Grovernment down to the vendor. 120 Ark. 76.

<p>Appeal from Garland Circuit Court; Scott Wood, Judge;</p>

V. Bourland, Chancellor; 1. It was an abuse of discretion, and highly prejudicial, to limit the number of witnesses to two on each side. 116 Am. State Rep. 516; 42 111. App. 553; 83 Id. 329; 98 Id. 444; 26 R. C. L. 1033-4, § 37; 97 S. W. (Mo.) 867. 2. The decree was erroneous in that it granted relief not prayed for in the complaint. Even under a prayer for general relief, the court cannot go outside the case made by the pleadings. 1 Black on Judgments, 2nd Ed. § 141. 3.

<p>Appeal from Pulaski Circuit Court, Second Division ; Guy Fulk, Judge;</p> <p>The majority of tlie board had the right to discharge the plaintiff. 13 C. J. Contracts, § 768; 36 Fed. 414; 1 L. R. A. 645; 182 Pac. 428; 6 A. L. R. 1493. The court should have instructed a verdict for defendant.</p>

B. Sorrels, Judge; The court erred in admitting the testimony of Tom Cogbill, tending to establish the commission of another crime. Instructions 1 and 2 were incorrect and conflicting, and therefore, error. 89 Ark. 213; 55 Ark. 397. The verdict is so clearly against the weight of the evidence as to shock the sense of justice, and should be reversed. 70 Ark. 385.

Y. Stevens, Chancellor; The written agreement of sale was so indefinite and uncertain as to require parol evidence to explain it. To entitle one to specific performance, the contract must be complete and free from ambiguity. 25 R. C. L., p. 218, sec. 17; 160 S. W. 854. Appellee did not pay or offer to pay the consideration for the lease and was not entitled to maintain suit for specific performance. 184 Pac. 1010; 181 Pac. 964.

Bishop’s New. Crim. Proc. sec. 360, 384; 56 Ark. 244; 77 Ark. 19; 92 Va. 824; 24 S. E. 272; 100 Va. 860 ; 42 S. E. 865; 8 Ark. 400; 35 Ark. 386; 58 Ark. 390. It is not necessary to prove the venue beyond a reasonable doubt, but it is sufficient if proof is made by a mere preponderance of the testimony. 62 Ark. 497; Enc. of Ev. vol. 13, pp. 931-932; 68 Ark. 336; 73 Ark. 484. The necessary proof was made by the witnesses of appellant and the State.

Smith District; J. V. Bourlamd, Chancellor; 1. The return of the officer in an action to vacate a judgment, as also a recital in the record of due service, is only prima facie evidence of service, and may be overcome by proof, the burden resting on the plaintiff in the action to vacate. 32 Cyc. 514; 102 Ark. 252; 63 Id. 513; Id. 323; 72 Id. 265; 138 Id. 403. Appellant has met this burden.

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

Clark, Judge; The court erred in directing a verdict for the defendant. 105 Ark. 294; 124 Ark. 376. It was a question for the jury to say from the testimony whether or not the operatives of the train were negligent in not stopping the train before the injury occurred. 81 Ark. 35; 57 Ark. 18.

Elliott, Chancellor; STATEMENT OF FACTS. Appellant brought this suit in equity against appellees to recover from them their proportionate part of the income in excess profit taxes, which he alleges are due, because lie lias paid the same to the United States, for a corporation of which they were all stockholders.

Coleman, Judg’e on exehang’e; STATEMENT OF FACTS. The Central Power & Light Company brought this suit in the circuit court under the statute against the mayor and common council of the town of Pocahontas to review and set aside an order made by them prescribing the rates for electric current for light and other purposes, to consumers in the town of Pocahontas, and to enjoin them from putting into effect said rates.

Reeder, Chancellor; The provisioxx in the Constitution, art. 7, § 28, coxxferring upon the county court “exclusive original jurisdiction in all matters relating to county taxes, roads, bridges, ferries,” etc., coxxfers upon that court, and none other, the power to fix the toll or rates to be charged by ferries. 98 Ark. 67. Sec. 5, act 124, Acts 1921, is in conflict with the above constitutional provision. • 1.

E. L. Johnson, Judge; 1. The demurrer should have been sustained. The indictment is not such as could be pleaded in bar of prosecution for assault and battery, in the event of defendant’s .acquittal of an assault with intent to kill. 2.

V. Bourlcmd, Chancellor; 1. By its amended answer, which, in so far as it is inconsistent with the original answer, supersedes it, appellee admits its organization as a road dstrict, the appointment and qualification of its commissioners, and the execution of the contract sued on. An amended and substituted pleading supersedes the original. 103 Ark. 345; 31 'Cyc. 465; 21 R. C. L., Pleading, § 136. 2.

McMahan, Chancellor; 1. The clerk’s certificate is conclusive as to the recitals therein. C. & M. Dig., % 10085; 55 Ark. 218; 68 Id. 248; 140 U. S. 634. And the appellees will not lie permitted, in their effort to show that the tax sale was not advertised for full two weeks as required by law, to show that the date, “May 27th,” was interlined after the sale was had. 81 Ark. 319. 2.

<p>1. Prohibition — when remedy lies. — Where the circuit court is without jurisdiction to remove a court officer upon information filed by the prosecuting attorney, the appropriate remedy is prohibition against the court to restrain further proceedings.</p> <p>2. Officers — jurisdiction to remove. — Under Const. 1874, art. 7, § 27, providing that “the circuit court shall have jurisdiction upon information, presentment or indictment to remove any county or township officer from office for incompetency, corruption, gross immorality, criminal conduct, malfeasance, misfeasance or nonfeasance in office,” held that a proceeding to remove a county officer for an indictable offense must be by indictment, and the offense set forth in the indictment must be one which necessarily includes the grounds for removal, since otherwise the removal could be accomplished without giving the accused the benefit of a trial upon the issue as to the grbunds for removal.</p> <p>3. Officers — removal—gross immorality. — An indictment and conviction of a county officer for the statutory offense of being drunk on a public highway does not, regardless of circumstances, involve moral turpitude so as to constitute “gross immorality,” within the meaning of the Const. 1874, art. 7, § 27, and Crawford & Moses' Dig., § § 10335-6, authorizing the removal of county and township officers for “gross immorality.”</p> <p>4. Officers — removal—information.—An information will lie against a county officer to remove him for gross immorality, but the accused is entitled to a hearing upon that charge.</p>

Steel, Judge; There was no evidence to connect any negligence on the part of the defendant with any injury to the plaintiff’s well, but the evidence shows that it was contrary to the physical facts. 79 Ark. 608. Conjecture and speculation, however plausible, cannot be permitted to supply the place of proof. 133 Ark. 353. The injury was only temporary. 63 Ark. 536; 95 Ark. 297.

II. Dudley, Judge; Davis, the servant, was not acting for or on behalf of the appellant in making the assault upon appellee, but was acting either in what he conceived to be self-defense, or from motives of personal anger toward appellee. In neither case was the appellant liable. Americcm Ry. Exp. Go. v. Machley, 148 Ark. 227.

Coleman, Judge; STATEMENT OE EAOTS. J. H. Greenway and Cora B. Smith, instituted separate suits in the circuit court against the First National Bank of Batesville, Ark.? to recover the sum of $2,000 each, alleged to be due on certificates of deposit. The b.ank filed an answer in which it admitted the execution of the certificates of deposit, and that they were past due.

Shaver, Chancellor; STATEMENT OE PACTS. Mattie Belle Smithey and her two daughters brought this suit against A. H. Andres and wife and Ed B. Collier for the purpose of reforming a deed made by A. H. Andres and wife to J. H. Smithey, deceased, who was the husband of Mattie Belle Smithey and the father of her two daughters.

B. Priddy, Judge; STATEMENT OE PACTS. Pay Shannon, sued the Western Union Telegraph Company to recover for mental anguish caused by its negligence in transmitting a telegraphic message. The message, which was delivered to the plaintiff at Dardanelle, Ark., was as follows: “Lincoln, Nebraska, 11 A. M. “February 6th, 1921, 9-1 exa. Bush “Miss Fay Shannon, Dardanelle, Ark. “Tour father bad sick. Come at once. Answer.

District; A. L. Hutchins, Chancellor; The depositions of appellee and his wife were both •inadmissible because not transmitted by the notary to the clerk in the manner provided by statute. 115 Ark. 448; 99 Ark. 265; C. & M. Digest, § 4236. The statute is mandatory. The deposition of -appellee’s wife was inadmissible in any event, as she was incompetent, to testify for her husband in a suit between her husband and a third party. Witham v. State, 149 Ark. 324.

Steel, Judge; 1. The tax sale of 1915 is void. Under the statute, C. & M. Digest, § 10082, the collector must verify the delinquent real estate list and file it with the clerk by the second Monday in May in each year. In this instance that was not done. 84 Ark. 569 Id. 423. 2. The court was not justified by the evidence in charging the jury to the effect that appellant was barred by the two-years statute of limitation.

Y. Stevens, Chancellor; It is said: “Where a person enters into a contract to give a lease and he has neither title to the land -to be leased nor power to execute a lease, the person contracting -with him has a right to, and may, recover substantial damages from him for the breach of the contract.” Thornton, The Law of Oil and Gras, § 333 and authorities cited.

Smith District; Jolm Brissolara, Judge; The testimony as to the bad character of deceased, his own admissions as to the crimes he had committed, and his record in this 'State, taken together, constituted his general reputation for being a dangerous man, and should have been permitted to go to the jury. Jett v. State, 151 Ark. 439.

& M. Digest, §§ 5406, 5407 and 5408. We insist that the rule announced in Rill v. Cruce, 146 Ark. 61, is not applicable here. This is not a case of employing a commissioner to perform work that was never contemplated by law, but a case of reimbursement to a secretary for work and expenses incurred required of him by law.

Wade, Judge; The court’s oral instruction was misleading and erroneous. There is no dispute about the credit having been extended to Westlake. It is admitted that the charge was made to him on the books and on the bills presented to him.

Y. Stevens, Chancellor; The evidence is not sufficient to establish a resulting trust in D. C. Howard for the benefit of his wife, Prances C. Howard. 11 Ark. 82; 44 Ark. 3-65; 89 Ark. 186; 111 Ark. 49; 75 Ark. 452. The deed from D. C. Howard to his wife should be regarded as a voluntary conveyance, notwithstanding the recited consideration of one dollar. .98 N C. 426; 2 Am. S. E. 342; 30 Miss. 91; 64 Am. Dec. 148; 8 Am. Dec. 152.

O. Hammock, Chancellor; The mortgage was mature and enforceable at the maturity of the note and did not contemplate advances made after that time. Ill Ark. 362; 50 Ark. 256; 66 Ark. 393; 122 Ark. 457. A mortgage to secure future.advances is valid if that fast clearly appears from the instrument. 46 Ark. 70. Exhibits in a chancery suit, which are the foundation of the action, will control the averments of the complaint. 104 Ark. 459.

L. Hutchins, Chancellor; 1. As to the New Orleans decree, full faith and credit is that degree of force and effect to which it is entitled in Louisiana. 198 IT. S. 317: 201 IT. S. 562. Perhaps, if plaintiff’s theorv that defendant deserted him here, and went to ‘md established a domicile in Louisiana for the purpose of securing a divorce, is correct, the docree of that State would not be entitled to full faith and credit; but appellant insists to the contrary.

Coleman, Judge; The county court was legally in session. The order was advertised as required by law. C. & M. Digest, § 1994. The sheriff’s return was full and complete. 134 Ark. 100. The presentation of the scrip was a waiver of the insufficiency of the notice. 33 Ark. 740. The warrants were issued in violation of law. Const. 1874; 36 Ark. 89; 130 Ark. 116. The contracts entered into between the county judge and the banks were void.

E. L. Johnson, Judge; The court erred in refusing to give instruction 9 and 10, to the effect that where a party does not rely upon statements, or relies upon a separate investigation, he cannot he heard to complain of false pretense. 42 Ark. 131; 49 Mo. 542; 141 Ark.-633; 25 C. J. 599.

Ciarle, Judge; STATEMENT OE FACTS. G. C. Williams brought suit in the circuit court against the Oliver Construction Company to recover the sum of $1,811.25 alleged to be due him for labor done and materials furnished to improve the Conway and Damascus road in Faulkner County, Ark. The suit is based upon the provisions of the contract between the Oliver Construction Company and the road district.

Martmeau, Chancellor; Appellee is not a bona fide holder of the note. The note was not negotiable nor was it rendered so by the letters of Buster and Mosley. C. & M. Dig., § 7767. The time of payment was indefinite in that it depends on the sale of the bonds to S. R. Morgan & Co., which contingency never happened. C. & M. Dig., § 7770.

Clark, Judge; STATEMENT OF FACTS. Appellant sued appellee to recover the sum of $325, the value of one-third of the hay cut on a certain tract of land in Arkansas County, Ark. Appellant purchased the land on which the hay was grown at a mortgage foreclosure sale on July 31,1919. There was a confirmation of the sale by the chancery court on October 7, 1919. The hay was cut and removed from the land by a tenant of the mortgagor between those dates.

135 Ark. 621; 98 Ark. 261; 70 Ark. 226; 58 Ark. 407. A verdict should have been instructed for appellant, as there is no evidence that the injuries were inflicted wilfully and wantonly and maliciously. The action is not grounded on negligence but wantonness, wilfulness and malice. Shearman & Red. Neg. 5th Ed. vol. 1, par. 7; 20 N. E. 147; 94 Ind. 46; 49 N. E. 445; 88 111. 431; 106 Am. St. Rep. 199; 19 So. 395.

Shaver, Chancellor; The findings of the chancellor are against the weight of the evidence. 346 Ark. 87; 106 Ark. 583; 102 Ark. 383. Appellant, as the undisclosed principal or beneficiary of the deal, had the right to maintain the suit. 117 Ark. 372; 78 Ark. 241; 120 Ark. 472, and cases cited. The delivery of a part of the timber contracted for was sufficient to take the case out of the statute of frauds. 135 Ark. 31; 79 Ark. 338; 128 Ark. 434; 19 Ark. 473.

A. Star-bird, Special 'Chancellor; 1. The deed from the other heirs of William Russell to Martha J. Roberts, also one of his heirs, vested in her the fee title, and her deed together with the -three of her children conveying to Allen H. Berry and Russella Berry, his wife, a one-fourth undivided interest in the land, created in them an estate by the entirety.

Kirsch, Special Chancellor; If the allegations of a complaint are sufficiently but imperfectly stated, a demurrer will not lie, the remedy being by motion to make more definite and certain. 133 Ark. 188; 146 Ark. 227. The acting commissioners were not qualified commissioners and were without authority to make the allowances. Plaintiffs had a right to question the commissioners allowing the engineer excessive and unreasonable compensation. 227 S. W. 988.

Pulaski Circuit Court, Third Division; Archie F. House, Judge; The court erred in refusing to hold that Fulton and appellee were partners, and that their agreement as well as their dealings with third parties constitued such a relation. 44 Ark. 423; 80 Ark. 29. An agreement may constitute a partnership as to third parties, when it creates no such relation between the parties themselves. 2 Ark. 354.

M. Jackson, Judge; One cannot insist upon performance of a contract Avhen he is in default himself. 88 Ark. 497; 88 Ark. 422. The court erred in modifying instruction No. 3, on the question of waiver of payment. 77 Ark. 508.

Steel, Judge; 1. Title to real estate is involved, and damage ■thereto. The administratrix has no right to maintain the action. Only the heirs at law have that right. 46 Ark. 373; 70 Id. 402; 74 Id. 149; 33 Id. 665; 7 Id. 107. See also, 34 Ark. 391; 35 Id. 24; 115 Id. 572; 27 Id. 235. •' 2. The verdict is insufficient. It is not shown that Turner or his bondsmen were in any way responsible for the failure to prosecute the unlawful detainer suit to final judgment.

Reeder, Chancellor; The recording of the certificate required to be made by the clerk, upon-the day of sale, where it was proved that this was done before the hour of sale, is a sufficient compliance with the statute.

4 of act 423,1921, does not violate sec. 22, art, 5 of the Constitution, as it is in effect a repealing statute. Repeals of statutes may be made by reference to title (47 Ark, 481; 99 Ark, 100), but an amendment cannot be so made. Sec. 4 does not impair the obligation of contracts. The act does not attempt to affect the contracts in any. manner, either as to terminating them or forbidding their further enforcement.

Upon the death of his wife, appellant, the person first entitled to letters of administration, was duly appointed as administrator of her estate by the probate court of Scott County. C. & M. Digest, § 8. The succession to, and distribution of, her estate, is governed by the laws of this State. A payment to appellant of the amount due on the poliey would have been valid. 98 Am. St. Eep. (W. T.) 689.

Washington Chancery Court; Ben F. McMahan, r Chancellor; STATEMENT OF FACTS.

L. Hutch-ins, Chancellor; STATEMENT OE EACTS. On the 5th day of November, 1917, S. A. Wooten and Cora F. Wooten brought suit in equity against Lula B. Jacks to establish title to an undivided three-eighths interest in a lot in the city of Helena, Ark., claimed by a deed alleged to have been lost and never recorded.

Murtinecm, Judge; The court erred in restating the accounts of William James Phillips and in disallowing the amounts paid by him to James Phillips under the will. The allowance of a claim1 by the probate court has the force and effect of a judgment. 5 Ark.. 468; 48 Ark. 277; 38 Ark. 471; 35 Ark. 205. It is binding upon all parties and can only be set aside for fraud. 90 Ark. 261; 73 Ark. 440; 86 Ark. 368; 50 Ark. 217; 40 Ark. 393; 102 Ark. 114.

H. Dudley, Judge; Lands beyond the meander line along- navigable streams are included with the adjoining lands when conveyed. Tiffanv, Real Prop. vol. 2 p. 3649; 4 R. C. L., p. 97; 5 Cyc. p. 899; 19 L. Ed. 78; 42 L. R. A. 502, note; 65 N. W. 344. There are three reasons for a meander.

H. Dudley, Judge; The fact that Jordan had possession of the mules at the time he mortgaged them to appellee was not conclus'ive evidence of ownership, and of the right to dispose of them. 47 Ark. 364; Forresl v. Benson, 150 Ark. 89. The act of the Lansing Company obtaining the legal title to the mules canceled the lien of the Jackson mortgage. 11 Corpus Juris, 685.

Appeal frpm White Circuit Court, J. M. Jackson, Judge; The court erred in directing a verdict for the defendant. On appeal from a directed verdict, this court will view the evidence in the light most favorable to the opposite party. 94 Ark. 530; 73 Ark. 561; 76 Ark. 520; 105 Ark. 136; 120 Ark. 206. The suit is based on an original undertaking.

M. Jackson, Judge; STATEMENT OE EAOTS. This was an action in replevin by W. J. Loveless and A. C. McGregor, doing business under the .firm name of W. J. Loveless Veneer Company, against J. B. Bridge-man, to recover 30,000 feet of gum and cypress logs. The defendant denied ownership of the logs in the plaintiffs, and averred ownership in himself.

<p>Appeal from Monroe Circuit Court, George W. Clark, Judge;</p>

A. Dickson, Judge; STATEMENT OP PACTS. Albert Thorpe sued E. G. Culbertson in the circuit court to recover the sum of $321.95 alleged to be due him on a certificate of indebtedness signed by said Culbertson which is set forth in the complaint. Thorpe also alleged that the Moreno-Burkham Construction Company was indebted to E. G. Culbertson in the sum of $400, and procured a writ of garnishment to be issued against said Moreno-Burkham Construction Company.

A/ppeal from Miller Circuit Court, George It. Haynie, Judge; The regular panel of petit jurors having been exhausted, the completion of the jury should have been selected from the bystanders; bystanders, meaning those present in .the court room. C. & M. Digest, § 6378. The hypothetical question embraced all the facts in evidence, and the court erred in sustaining an objection to it. 120 Ark. 530; 126 Ark. 455; 146 Ark. 509.

D. Crenshaw, special Chancellor; 1. The court had no right or power to order a sale of a part of the minor’s lands for partition, thereby refusing to partition the whole estate. 43 Ky. 210. 2. The order of confirmation was procured by the fraud of the defendant Cruce, for his own personal benefit, to the detriment of the minors.

Appeal • from Columbia Chancery Court, J. Y. Stevens, Chancellor; 1. The rule relied on by appellees, to the effect that parol evidence cannot be admitted to enlarge the consideration for the purpose of cancelling the lease, does not apply where fraud enters into the consideration. 71 Ark. 496; 125 Id. 441; 141 Id. 99.

Elliott, Chancellor; The levy made by virtue of section 3 of the act, act No. 431 Acts 1920, is not a license, but is clearly a tax upon a certain class of personal property. Berry on Automobiles, 3d Ed. par. 96; Id. par. 95; 61 Ark. 482; 20 Cal. 318. It amounts to the levy of a tax upon personal property for the building of roads, i. e., for the benefit of an improvement upon real property.

Elliott, Chancellor; Although the land was conveyed to Mrs. Moore by her father as a gift, we think the evidence conclusively shows that she accepted same in full as her distributive share of his estate. 104 'Cal. 570; 30 Ga. 291; 58 111. 105; 59 Ind. 39; 46 Iowa 456; 40 Me. 24; 4 Mass. 680; 15i8 Mich. 256; 17 N. H. 515; 23 N. J. 321; 24 N. T. 627; 5iS N. C. 211; 63 Pa. 443; 4 Tenn.

<p>Appeal from Jefferson Chancery Court; John M. Elliott) Chancellor;</p>

Ciarle, Judge; The allegations of the complaint and appellee’s own testimony make out a case within the statute of frauds. C. & M. Digest, § 4862. For “original” and “collateral” undertakings — explanation of the terms, — see 20 Oyc. 163. In this case, the test is, did Shoup receive credit as a result of Saul’s agreement? 20 Cyc. 165; Id. 180; Id. 182; 88 Ark. 593; 102 Id. 435.

M. Jackson, Judge; Under the undisputed facts the court ought to have directed a verdict for the appellant. Appellee ought to have no standing in court. It is purely a case of an agent, acting as buyer for his company with authority to pay for the goods he bought, and using his employer’s money for that purpose, seeking to exact a secret profit from sales to his employer. 13 C. J. 492 et seq.; 46 Ark. 420; 13 C. J. 415; Id. 417; 90 Ark. 304; Luke XVI, 13; 21 R. C. L. 827.

Francis Chancery Court; A. L. Hutchins, Chancellor; STATEMENT OE EACTS. John A. Moore filed a suit in the chancery court to enforce a mechanics’ lien as principal contractor in the sum of $1,330.75 on a house and certain lots in the city of Forrest City, Ark., belonging to J. M. Gilliam. The Van Houten Lumber Company also filed a suit in the chancery court to assert a lien on said house and lots in the sum of $204.87 for material furnished and used in remodeling said house.

Haynie, Judge; STATEMENT oe pacts. Four separate suits were brought by the beneficiaries against different life insurance companies to recover on policies of life insurance upon the life of Dr. B. E. Dixon and the cases were consolidated for the purpose of trial. Dr. Dixon had a policy for $5,000 in the Guardian Life Insurance Company of America which was for the benefit of his estate.

34 Ark. 144; Robertson Co. v. Rich Const. Co.; 139 Ark. 299; 94 Ark. 277. The error complained of is not here for review. 148 Ark. 316; 122 Ark. 148, The appellee and its subordinate lodges do not come within the fraternal benefit society act of 1917, therefore the attempt to sue Far West Lodge and the Arkansas City Lodge can not be sustained on any theory. 148 Ark. 323; 234 S. W. (Ark.) 464.

Elliott, Chancellor; 1. Chancery has no jurisdiction. The landlord’s lien is of statutory creation, exclusively. The statute prescribes an adequate and complete remedy. Sedgwick on Statutory and Constitutional Law, §§ 342, 343; 73 Ala. 390; 1 Cyc. 707; 1 R. C. L. 323, § 9; Rev.. Statutes (Ark.) ch. 88, §§ 11, 12, 13; C. & M. Digest, §§ 6559, 6560 and 6561; 7 Ark. 305; 10 Id. 602; 24 Id. 545; 25 Cyc. 681; 17 R. C. L. 613, § 26; 4 L. R. A. 531. 2.

Elliott, Chancellor; The statute is arbitrary and discriminatory on its face, and therefore unconstitutional and void. 130 Ark. 70; 139 Ark. 574; 142 Ark. 73; 145 Ark. 49. The boundaries of special improvement districts are determined by the Legislature, and this court is concluded 'by that determination except as to obvious and demonstrable mistakes. 104 Ark. 430; 102 Ark. 553; 141 Ark. 301.

Mc-Mahan, Chancellor; The demurrer to the answer admitted its allegations to be true. 90 Ark. 158; 102 Id. 380; Id. 470; 104 Id. 466; 106 Id. 357; 94 Id. 505. The rule of law against the introduction of parol evidence to vary or contradict the terms of a written instrument has no application to the state of facts alleged by this answer.

L. Hutchins, Chancellor; 1. The decree should be reversed as1 to the interests of the minors, Howard and Marvin Yaughan,because they have had no defense as required by statute. A guardian ad litem appointed before the service of summons’ on the minors acquires no authority to defend for such minors. C. & M. Digest, § 1114; 40 Ark. 56. 2. The facts in evidence do not made out a parol gift from Emil Henkel to his mother.

B. Priddy, Judge; Appellees surrendered tlieir .tickets and received back tbeir money. There was no objection, and no right of recovery under tbe circumstances. If any cause of action in favor of appellees existed, it was based upon the negligence of the ticket agent, and not upon that the conductor. 65 S. W. 437; 65 Ark. 177.