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Ed. F. McFaddin, Associate Justice. The judgment in this action on account must be reversed because of an erroneous ruling in regard to the admission of evidence. Appellee, Hubbell Metals, Inc., filed action against Appellant Bill Ebbert for $458.82 and interest alleged to be due on an open account for merchandise. The defense, inter alia, was that appellant neither ordered nor received the merchandise for his own use. Trial to a jury resulted in a judgment for appellee for the full amount; and appellant brings this appeal, urging two points, the first of which is: “The Court erred in the admission in evidence of plaintiff’s Exhibit No. 1 because said exhibit was a photostatic copy and it was not admissible under the best evidence rule and the governing statute. ’ ’ We find it unnecessary to consider the second point urged by the appellant because the first point requires a reversal of the judgment rendered. Hubbell Metals shipped the merchandise to Arkansas Aluminum Awning Company via Superior Forwarding Company, a motor carrier. Ebbert’s defense was, that even though he was the owner of Arkansas Aluminum Awning Company, nevertheless he had previously informed the salesman of Hubbell Metals that W. A. Kernodle was operating the Arkansas Aluminum Awning Company and that Ebbert would not be liable for any merchandise sold to the Company while Kernodle was operating the business. In the course of the trial, and to show delivery of the merchandise to appellant, appellee offered what pur ported to be a photostatic copy of a bill of lading issued by Superior Forwarding Company and claimed to contain the signature of appellant as having received the shipment. The Court permitted the photostat to be introduced in evidence, and that ruling is the point at issue. Ebbert insisted that the photostat was a mere copy and not the best evidence, and that no foundation was laid for the admission of the copy. The best evidence rule, as applied to the situation here, is stated in 20 Am. Jur. 379, “Evidence”, § 426: “The original of a writing, document, or record, is the primary evidence of the matter contained in such writing, document, or record. Copies are mere secondary evidence, and, under the general rule requiring the production of the best evidence which the nature of the case admits, are not admissible in evidence over the objection of the adverse party unless a basis is laid for their reception by showing that the original cannot be produced.” In Union Central Life Ins. Co. v. Mendenhall, 183 Ark. 25, 34 S. W. 2d 1078, there was an effort made to introduce a photo static copy of a premium card and, in holding the copy to be inadmissible, this Court said: “The original premium card was the best evidence, and there was no proper foundation laid for the introduction of a copy. . . . The court correctly held the photostatic copy inadmissible. That it was a photograph and less liable to imperfectly depict the original than a copy transcribed ordinarily would, does not alter the general rule.” In the case at bar there was no testimony to show that the original bill of lading was not available to the plaintiff instead of a mere photographic copy; and so the copy offends against the best evidence rule. But the appellee insisted in the Lower Court, and claims here, that the copy was admissible because of Act No. 64 of 1953, which makes admissible in some instances the photographic copies of business records, and it was on this theory that the Lower Court admitted the photostat in evidence. The germane portion of this Act No. 64 (§ 28-932, Ark. Stats.) reads: “If any business ... in the regular course of business or activity has kept or recorded any memorandum ... of any act . . . and in the regular course of business has caused any or all of the same to be recorded ... by any . . . photostatic . . . or other process which accurately reproduces or forms a durable medium for so reproducing the original, . . . Such reproduction, when satisfactorily identified, is as admissible in evidence as the original itself in any judicial . . . proceeding.” Even though this Act No. 64 of 1953 is Section 1 of the Uniform Act entitled: “Photographic Copies of Business and Public Records as Evidence Act” (see Uniform Laws Anno. Yol. 9-A, p. 338, printing of 1957), still there is a paucity of authorities regarding the Act. But it is clear that the photostat copy is admissible only “when satisfactorily identified.” There is no evidence in this case that the photostat offered in evidence was from a record kept in the regular course of business, or that the photostat was made in the regular course of business. Tbe only witness' wbo testified about tbe matter was the District Manager of appellee; and be said that tbe proffered exhibit was a copy oí a bill of lading issued by Superior Forwarding Company: “Q. Do you know bow many copies of a bill of lading were made by Superior Forwarding when tbis was shipped out? A. No, I do not know what number. Q. Do you know where tbe original of tbis is? A. Tbe original, I imagine, would be at Superior Forwarding Company. Q. Does your company have a copy? A. Yes, sir. Q. Where is it? A. It would be in St. Louis, sir. Q. Where did you obtain tbis? A. Sir, I do not have a copy of that in my file. Tbis was obtained from St. Louis.” Tbe foregoing is tbe only testimony that was offered as to why tbe photostat should be introduced, rather than tbe original produced; and so we bold that there was no proper foundation made for tbe admission of a copy; and that under tbe best evidence rule or under tbe statute, the copy cannot be introduced until a proper foundation is made. For tbe error indicated, tbe judgment is reversed and tbe cause is remanded. In some current dictionaries the word “photostat” is listed only as “A trademark applied to a device. . .”; but Funk & Wagnall’s New Standard Dictionary of the English Language, published in 1956, says that “photostat”, as a noun, is “A positive obtained by a camera designed to reproduce documents, as deeds for record, checks, policies, drawings, etc., on bromide paper; also, the instrument itself; a protected trade name.” The same dictionary says that “photostat” is also a transitive verb as well as an intransitive verb; and “photostatic” is an adjective. Although not involved here, we call attention to the statute on business records, which is Act No. 293 of 1949 (§ 28-928 Ark. Stats.), and which permits the introduction of any writing, “. . . made as a memorandum or record of any . . . transaction ... if made in the regular course of business, and if it was the regular course of such business to make such memorandum ... at the time of such Act . . .” For a study of this Act see article in Vol. 3 Ark. Law Review p. 359, and see also U. S. v. Bartholomew, 137 Fed. Supp. 700. The appellant has cited us to the case of Toho Bussan Kaisha v. American President Lines, 265 F. 2d 418; and we have found no better case than the one cited. There is a note on the Act in Ark. Law Review, Vol. 7, page 332. Those interested may also consult the following: People v. Wells, 380 Ill. 347, 44 N. E. 2d 32; 142 A.L.R. 1262; 48 Michigan Law Review p. 489 et seq.; and 57 Commercial Law Journal p. 83 et seq. (April 1952).	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Ed. F. McFaddin, Associate Justice. In this suit, brought by the City of Fort Smith seeking to quiet title to certain lands, there have been developed some very interesting matters, involving both the early history of the Fort Smith area, and also the location of a portion of the western boundary of the State of Arkansas. It is a great temptation to lose sight of the legal issues in stating the matters of historical interest; but the applicable and governing rule of law is that stated by Mr. Justice Battle in Chapman & Dewey v. Bigelow, 77 Ark. 338, 92 S. W. 534, to the effect that a plaintiff seeking to quiet title must prove his own title and recover on the strength of his own title and not on the weakness of the title of his adversary. As aforesaid, the City of Fort Smith brought this suit to quiet its title to certain described lots and also to all of the area lying between such described lots and the Arkansas and the Poteau Rivers on the west. The lots were Lots 1 to 19, in Block 3; Lots 1 to 16, in Block 4; and Lots 1 to 7, in Block 6, of West Fort Smith, an addition to the City of Fort Smith, Arkansas. Appellee Mikel asserted no title to the 42 lots, but asserted title to the area between the described lots and the two rivers. The Chancery Court rendered a decree quieting the title of the City of Fort Smith to the 42 lots, but refusing to quiet the title to the area between the said described lots and the two rivers; and from that decree the City of Fort Smith brings this appeal. The facts developed, plus those known judicially, present the following picture: By the Act of June 15, 1836, the Congress of the United States admitted Arkansas as a Sovereign State, “on an equal footing with the original States in all respects whatever”; and this Act of Admission defines the western boundary of Arkansas, as beginning at the southwest corner of the State of Missouri, ‘ ‘ and from thence to he hounded on the west to the north bank of the Bed Biver by the lines described in the first article of the Treaty between the United States and the Cherokee Nation of the Indians, west of the Mississippi, made and concluded at the City of Washington on the 26th day of May, in the year of our Lord one thousand eight hundred and twenty-eight; ?? The Arkansas Constitution of 1836, and each subsequent Constitution, contains similar language for the western boundary of the State. But this western line boundary, ignoring natural boundaries such as water courses, proved unsatisfactory; so the Congress of the United States, by Act of February 10, 1905, gave Arkansas authority to extend its western boundary. The Act of Congress reads: “The consent of the United States is hereby given for the State of Arkansas to extend her western boundary line so as to include all that strip of land in the Indian Territory lying and being situate between the Arkansas State line adjacent to the city of Fort Smith, Arkansas, and the Arkansas and Poteau Rivers, described as follows, namely: Beginning at a point on the south bank of the Arkansas River one hundred paces east of old Fort Smith, where the western boundary line of the State of Arkansas crosses the said river, and running southwesterly along the south bank of the Arkansas River to the mouth of the Poteau; thence at right angles with the Poteau River to the center of the current of said river; thence southerly up the middle of the current of the Poteau River (except where the Arkansas State line intersects the Poteau River) to a point in the middle of the current of the Poteau River opposite the mouth of Mill Creek, and where it is intersected by the middle of the current of Mill Creek; thence up the-middle of Mill Creek to the Arkansas State line; thence northerly along the Arkansas State line to the point of beginning: Provided, That nothing in this Act shall be construed to impair any right now pertaining to any Indian tribe or tribes in said part of said Indian Territory under the laws, agreements, or treaties of the United States, or to affect the authority of the Government of the United States to make any regulations or to make any law respecting said Indians or their lands which it would have been competent to make or enact if this Act had not been passed.” The Arkansas Legislature accepted the additional territory by Act No. 41 of 1905, which, without the preamble, may now be found in § 5-101, Ark. Stats.; and the validity of such extension of boundary has been upheld by this Court. State v. Bowman, 89 Ark. 428, 116 S. W. 896; and Bowman v. State, 93 Ark. 168, 129 S. W. 80. The Act of Congress and the Act of Arkansas transferred the said territory to Arkansas, but did not affect the title of the Indians or others owning any of the ceded territory. In 1904 John J. Fisher had platted the “Town of West Fort Smith, Choctaw Nation Indian Territory”; and this town was immediately west of the then western boundary of Arkansas and east of the Arkansas and Poteau Bivers. It was a strip approximately 5,400 feet north and south, and varying, east and west, from nothing to a width of approximately 635 feet. This town consisted of a number of lots, contained in thirteen blocks, which were numbered 1 to 13 from north to south. In 1909 the City of Fort Smith annexed the theretofore platted “Town of West Fort Smith, Choctaw Nation Indian Territory” to the City of Fort Smith, Arkansas. In 1908 town lot patents were issued from the Choctaw and Chickasha Nations to various individuals; and the City of Fort Smith claims title to the 42 lots by mesne conveyances from the said individuals. The Chancery Court, in the present case, quieted the title of the City of Fort Smith to the 42 lots and abutting streets and alleys, but refused to quiet the title of Fort Smith to the area lying between the said lots and the Arkansas and Poteau Bivers. Such refusal resulted in this appeal. As stated in the early portion of this opinion, the law is well established that a plaintiff seeking to quiet title must prove his own title and recover on the strength of his own title and not on the weakness of the title of his adversary. The learned Chancellor delivered an excellent opinion, applying this rule. The opinion is in the transcript and has proved of benefit to us. We consider now Fort Smith’s claim to title to the area between the platted lots and the rivers. I. The City of Fort Smith claims that the 1904 Fisher plat of “West Fort Smith, Choctaw Nation Indian Territory”, showing the lots and blocks, was intended to cover all of the area between the Arkansas boundary and the two rivers; and therefore the lots owned by Fort Smith extend to the two rivers. The basis of this contention is the statement of the surveyor on the plat, which says that he has surveyed and staked the town, ‘ ‘ comprising the strip of land lying between the City of Fort Smith and the Arkansas and Poteau Bivers”. The appellant contends that the word, “comprising”, necessarily means all of the land. However, the surveyor did not say it was comprising “all”-, and it could, and did in fact, comprise less than all. We cannot shut our eyes to obvious facts. The size and width of each lot, block, and alley in the Town of West Fort Smith is given in definite footage on the plat, and such measurements on the plat must prevail. See Beardsley v. Nashville, 64 Ark. 240, 41 S. W. 853. Furthermore, there was introduced in evidence, without objection, a survey made in 1958, which showed that there is an area lying between the platted lots and the Arkansas and Poteau Rivers, and that this strip varies in width from a few feet to as much as 200 feet. It was clearly established by plaintiff’s witnesses that the strip could not be the result of any accretions because the strip had a rock outcropping on the banks of the Arkansas and Poteau Rivers. There are still present iron rings fastened into this rock ledge, and history students tell us that these rings were used for boats to anchor many, many years ago. In Chapman & Dewey v. Bigelow, 77 Ark. 338, 92 S. W. 534, Mr. Justice Battle, speaking for the Court, quoted extensively from Horne v. Smith, 159 U. S. 40, 15 S. Ct. 988, 40 L. Ed. 68, to the effect that when a map shows a given distance in footage, the area cannot be extended to a distant water course far beyond the stated distance. That rule is applicable here. So we must — under the facts — hold that the 1904 plat by Fisher did not cover the entire area between the Arkansas boundary and the two rivers to the west. II. The City of Fort Smith claims: “The undisputed evidence shows that any land that might exist between the Arkansas and Poteau B,ivers to the westerly lot lines in West Fort Smith has been used by the public for many years, and a title has been acquired by the City by prescription”. The use by the public could have created a prescriptive right in the public, but not in the City of Fort Smith as distinct from the public; and the City has offered no evidence of its own adverse possession so as to establish any sort of title as distinct from the public. In Packet Co. v. Sorrells, 50 Ark. 466, 8 S. W. 683, there was involved the use by a municipality for warehouse purposes, of a portion of a dedicated street. Mr. Justice Battle stated: “. . . land dedicated by the owner as a street to the use of the public cannot lawfully be used for any other purpose; . . . the authorities of the town or city in which the same is situate cannot lawfully appropriate or divert it to uses and purposes foreign to those for which it was dedicated;. . . ” Those statements are applicable here. If the area between the described lots and the rivers became a public way by prescription, then the City cannot use the public way for any purpose foreign to the public way. Certainly the City would acquire no proprietary rights distinct from the public. In short, no claim of “prescription” can give the City title to the area west of the lots. III. Finally, the City of Fort Smith claims that since it owns the lots which abut on the public area to the west, and since the area has not been developed, there is, therefore, an abandonment of the area, the same as the abandonment of a street or alley; and that the City’s title, therefore, extends to the rivers. But this contention overlooks entirely the fact that the plat made in 1958, and introduced in this case without objection, shows a street or roadway existing in 1958 and being between the platted lots and the area to the west. Furthermore, the City showed by its own witnesses that the river front area has been from time immemorial used as a landing place; so no abandonment has been shown. Use by the public, originally established by showing the rings imbedded in the stone ledge for boat landings, is never shown to have been abandoned. So the City can claim no title through abandonment. CONCLUSION We are tremendously impressed by the public spirit that has activated the citizens of Fort Smith to acquire title to the entire area, originally known as “Belle Point”, but later identified by the name of “Coke Hill”. Outstanding citizens of Fort Smith have made a detailed study of the project; and it is hoped that when title to the full area has been acquired, Belle Point will be made into an historic monument and the old 1817 Fort will be restored. It is a splendid historic undertaking; and we are impressed by the zeal of the Sebastian County Bar, which undertook to clear the title. But the Chancery Court correctly applied the applicable law, which is, that a plaintiff seeking to quiet title must prove his own title and recover on the strength of his own title and not on the weakness of the title of his adversary. The City of Fort Smith was unable to show any title to the area between the platted lots and the rivers; and, therefore, the Chancery decree was correct to that extent. But when we hold — as we do — that the City cannot quiet title to such area, it does not follow by any means that the appellee Mikel is entitled to the area. Mikel’s attorneys admitted in the oral argument before this Court that it was not the intent of the decree of the Chancery Court to quiet Mikel’s title. There is a sentence in the decree — which probably came in by inadvertence — that, as between Mikel and Fort Smith, Mikel succeeded to the title. It was never intended by this to quiet Mikel’s title; and we modify the decree by striking out the said Finding No. 15 and the portion of the decree incorporating it; but in all other respects the decree of the Chancery Court is affirmed. It is not for us in this case to decide whether Mikel owns the land, which the City may undertake to acquire by eminent domain, or whether the title to the disputed area is still in the Indian Tribes, which title the City may undertake to acquire by negotiation. These matters are beyond the purview of the present litigation: all we now hold is, that the Chancery decree was not in error in refusing to quiet title in the City of Fort Smith to the area lying between the platted lots and the two rivers. Harris, C. J., and Ward, J., dissent. This is the Act of June 15, 1836, found in 5 U.S. Statutes at Large 50, Chapter 100; and also may be found on Page 297 of Vol. 1 of the Arkansas Statutes Annotated of 1947. The said Cherokee Treaty of May 26, 1828, may be found on Page 1011 et seq. of Volume 8 of the Laws of the United States of America, as published in 1835; and Article 1 of that treaty reads: “The Western boundary of Arkansas shall be, and the same is hereby defined, viz: A line shall be run, commencing on Red River, at the point where the Eastern Choctaw line strikes said river, and run due north with said line to the River Arkansas, thence in a direct line to the southwest corner of Missouri.” Reference is made to Vol. 1 of Ark. Stats. Anno, of 1947: the Constitution of 1836 is on Page 239; the Constitution of 1861 is on Page 253; the Constitution of 1864 is on Page 264; the Constitution of 1868 is on Page 279; and the present Constitution of 1874 is on Page 23. This Act may be found in 33 U.S. Stat. at Large 714, Chapter 571; and may also be found on Page 302 et seq. of Volume 1 of Ark. Stats. Anno. 1947. The interesting fact is, that the site of the old original 1817 fort was located in this strip. Heretofore we have cited Chapman & Dewey v. Bigelow, 77 Ark. 338, 92 S.W. 534, as stating the rule. We have many other cases to the same effect: See Mason v. Gates, 82 Ark. 294; 102 S.W. 90; Sanders v. Boone, 154 Ark. 237, 242 S.W. 66, 32 ALR 461; and the scores of other cases collected in West’s Arkansas Digest, “Quieting: Title”, Key No. 10. This is Item 15 in the decree, and reads as follows: “The Court finds that as between Mikel and the City of Fort Smith by virtue of the aforesaid deed to William J. Ray in 1918 and 1919, William Mikel succeeded to title to any land lying west of the lot lines of West Fort Smith as platted by John F. Fisher, and east of the Arkansas River and Poteau River to the mean highwater mark on the Arkansas River, and to the center of the Poteau River insofar as it bounds the lands in controversy.” See Packet Co. v. Sorrells, 50 Ark. 466, 8 S. W. 683.	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Jim Johnson, Associate Justice. This appeal concerns a separation and property settlement agreement between L. M. Strasner, Sr., appellant, and his wife, Mildred E. Strasner, appellee. The parties were married on July 14, 1941. They are the parents of one child, a son who was 18 years of age and a freshman at the University of Arkansas at the time of the trial. On February 10, 1959, the parties separated and have not resumed their marital relationship. On that date, appellee, with her cousin as a witness, followed appellant and at about 7:30 in the evening they observed appellant in the company of another woman. Appellant was inside an apartment house in the lighted living room, and appellee saw them through the door. She stated that they were preparing to leave on a date. Appellee confronted them as they came out of the building and told them they would hear from her lawyer. This was the only instance of alleged infidelity of the appellant. On February 13, 1959, appellant went back to the home to get his clothes and personal effects. At that time appellee told him she was going to sue the other woman for alienation of affections. A couple of weeks later, appellee’s attorney contacted appellant in regard to the separation and domestic situation of the parties and a settlement of their property rights. Negotiations continued for a couple of weeks between appellant and appellee’s attorney which culminated in the execution of a property settlement agreement, which is the subject matter of this action. No action for divorce has ever been instituted by either party. This agreement, dated March 13, 1959, awarded appellee the unencumbered home of the parties worth approximately $12,000 to $15,000; the household furniture ; title to an automobile worth approximately $2,000; a bank account of approximately $360; and in addition, appellant agreed to pay appellee $200 a month for her lifetime and $50 a month for the support and maintenance of their son until he completed his education. The only property which appellant retained was a savings account of $124. However, the agreement provided that: in the event either party instituted a divorce action, the property settlement agreement would constitute a full and complete settlement of all property rights in such action, and that neither party would have the right to obtain, any part of the property of the other; neither party would claim or demand suit money, alimony or attorney’s fees should either party institute an action against the other (except any proceeding made necessary to enforce the terms o f the agreement); appellee would not prosecute any legal cause she may have acquired prior to the date of the agreement except any action she may have acquired against appellant; each party would have the right to enjoy all property they now owned, or which they might acquire, independent of any claim or right of the other party with the right to dispose of the same; each party would have the right to dispose of by last will and testament property now owned or which either might acquire, independent of any claim of the other; each party would execute whatever documents were necessary to promptly carry out the terms of the agreement. At the time of the settlement, the parties possessed a washing machine which was not paid for. Appellee declined to make monthly payments upon the indebtedness existing against the washing machine and appellant contends he was told by appellee’s attorney that he was required to do so, and he has continued to make these payments. Appellant executed proper deed of conveyance to real property to appellee and transferred title to the automobile to appellee and performed all other conditions and covenants incumbent upon him to perform until August 15, 1959, at which time he ceased making the monthly payments specified in the agreement to appellee. On August 19, 1959, appellee instituted this action in Chancery Court seeking specific performance of the written property settlement agreement. A trial on the merits was held on October 19, 1959, the only witnesses being the appellee, appellee’s attorney and the appellant. The execution of the instrument was not disputed and the sole issue presented to the court for consideration was the validity of the instrument sued upon. The Chancellor ruled in favor of appellee, decreed specific performance of the property settlement agreement, awarded judgment for delinquent payments and ordered appellant to make fntnre payments in accordance with the terms and provisions of the property settlement agreement. The decree was rendered by the Chancellor on November 20, 1959, and this appeal was duly prosecuted and perfected. For reversal, appellant relies upon the following points: 1. Court lacked jurisdiction of subject matter; 2. Trial Court was biased and prejudiced; 3. Instrument sued upon is invalid for lack of consideration; 4. Appellee has breached the agreement. We will discuss the points in the order in which they are raised. Jurisdiction. Appellant eloquently argues that the breach of the contract, if any, of the appellant’s refusal to make monthly payments as provided in the agreement was compensable by damages and that appellee had a plain, complete and adequate remedy at law. Appellant further argues that the criterion for suits for specific performance is whether or not there is an adequate remedy at law and cites in support of his argument the leading case of McDaniel v. Orner, 91 Ark. 171, 120 S. W. 829. Except for the nature of the agreement here involved, ordinarily the theories pursued by appellant are sound law. However, in the instant case our research reveals that the Legislature settled the matter of jurisdiction by the passage of Act 290 of 1941, the pertinent part of which is as follows: “Courts of equity may enforce the performance of written agreements between husband and wife made and entered into in contemplation of either separation or divorce and decrees or orders for alimony and maintenance by sequestration of the defendant’s property, . . . or by such other lawful ways and means, including equitable garnishments or contempt proceedings as are in conformity with rules and practices of courts of equity.” (Emphasis supplied.) This act follows the general rule as set out in 17A Am. Jur., Divorce and Separation § 919; and 81 C. J. S. Specific Performance § 86, and 42 C. J. S. Husband and Wife § 606. In addition, this Court in McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938, relative to alimony which is applicable here, reasoned as follows: ‘ ‘ It was recognized in Shirey v. Hill, 81 Ark. 137, 98 S. W. 731, that a husband’s contract for separate maintenance of his wife is binding. Mr. Justice Wood, in disposing of the argument that Lawrence Chancery Court was without jurisdiction, cited Wood v. Wood, 54 Ark. 172, 15 S. W. 459. Effect of the decisions is that enforcement of a contract for alimony is an action for alimony, as distinguished from an action on debt, although the debt, as such, is recognized as subsisting by reason of agreement between the parties. ’ ’ Prejudice-. Appellant forcefully urges that the trial court was biased and prejudiced, and that the appellant did not receive a fair and impartial trial. Appellant further contends that “It is apparent from the examination of the remarks in the record by the trial court that the court was sympathetic to the appellee, and that the appellant did not receive fair consideration of his presentation of the facts.” Even though we noted a number of remarks in the record which would have been best left unsaid, upon careful examination we cannot say that such remarks indicated such a personal bias toward the appellant as a matter of fact which would justify our agreement with the contention of appellant under the law. This Court has repeatedly said, even in criminal cases, that “There is no provision of our Constitution or statutes that disqualifies a judge for prejudice.” See: Jones v. State, 61 Ark. 88, 32 S. W. 81. In considering an application for a change of venue, this Court in Hudspeth v. State, 188 Ark. 323, 67 S. W. 2d 191, very aptly said:z ‘‘ That personal bias . . . toward the defendant . . . must be shown as a matter of fact, and not as a matter of opinion of the defendant or any other person. The words ‘bias’ and ‘prejudice’, as used in the law of the subject under consideration, refer to the mental attitude ... of the judge towards a party to the litigation, and not to any views that he may entertain regarding the subject matter involved.” Consideration: Appellant, in support of his contention that “The instrument sued upon is invalid for lack of consideration, ’ ’ cited the case of McCue v. McCue, supra, as follows: “Courts generally enforce covenants and promises respecting wife’s maintenance and spouses’ property in separation deeds, if based on sufficient consideration, fair and equal, reasonable and not the result of fraud or coercion, and if separation actually occurred before agreement was made or immediately follows it.” (Emphasis supplied.) The briefed contents of the property settlement agreement as heretofore set out renders unnecessary our quoting verbatim the lengthy instrument. A casual reading of the agreement in its entirety reveals that at least seven paragraphs contained therein are beneficial to appellant. Even the appellant on cross-examination admitted that there were “a few” provisions which are advantageous to him. We therefore cannot say that the findings of the Chancellor that the agreement was based upon sufficient consideration was against the weight of the evidence. Breach: The last point relied upon for reversal is that the appellee has breached the terms of the contract. Included among the personal property and household furniture and furnishings awarded to the appellee under the property settlement agreement was a washing machine, upon which an indebtedness existed, payable in deferred monthly payments of $26 each. Both parties testified that the washing machine had been purchased in the name of the appellant. This item was not specifically mentioned in the written contract, but there is no dispute as to the appellee being entitled to same. After the execution of subject contract, the question arose as to whose liability it was to make future payments upon this indebtedness. Appellant asked appellee’s attorney for information and was told at first that it was not his obligation. Appellant testified as to a later conversation with appellee’s attorney as follows: “Q. Did I say you would have to pay for it? “A. You said that she insisted on it or words to that effect, so I paid it then.” (Emphasis supplied.) As we view this conversation it amounted to appellee’s interpretation and not a requirement which would constitute a breach of the entire agreement. Prom what we have said above on the whole case it necessarily follows that the Chancellor’s opinion being supported by the weight of the evidence, the decree is affirmed. Affirmed. Emphasis ours.	[ -47, 104, -99, 108, 24, 32, 10, -66, 114, -81, 55, -45, -23, 78, 80, 105, 34, 109, 65, 105, -45, -93, 87, -30, -14, -77, -39, -35, -75, 78, -4, 87, 76, 32, -54, -41, 66, -46, -115, 84, -118, -127, -21, 108, -40, -62, 48, 125, 80, 15, 53, -114, -13, -83, 53, -48, 108, 42, -39, 52, -48, -88, -81, -124, 127, 18, -79, 101, -106, 37, 120, 14, -108, 53, 0, -56, 115, 38, -42, 116, 83, 57, 8, 102, 98, 2, 65, 111, -40, -104, 110, -76, -115, -90, 16, 80, 67, 72, -68, -100, 124, 81, -95, 126, 124, 13, 29, 108, 74, -114, -42, -77, -113, 122, -124, 3, -21, -61, 48, 113, -53, -94, 77, 87, 59, -101, -114, -8 ]
Jim Johnson, Associate Justice. Tbe appellant was charged with tbe crime of murder in tbe first degree, and, when arraigned, entered bis plea of guilty. A jury was impaneled and after tbe conclusion of tbe evidence tbe court told tbe jury that: “Tbe law provides that in cases of this kind where tbe accused confesses bis guilt, tbe Court shall impanel a jury and examine testimony, and the punishment for tbe crime shall be found by such jury. ’ ’ Having defined tbe term “murder in tbe first degree” tbe Court instructed tbe jury as follows relative to tbe issue here considered: “In this case the defendant, Edward Walton, Jr., has entered a plea of guilty. In other words, be has confessed bis guilt. Tbe only question for tbe Jury to decide is tbe punishment to be imposed. Under tbe Information filed against tbe defendant, if you believe tbe evidence justifies it, it is competent for you to fix Ms punishment at death in the electric chair, or at life imprisonment in the Arkansas State Penitentiary. “Yon are instructed that ordinarily a defendant starts out in the beginning of the trial with the presumption of innocence in Ms favor, which presumption follows Mm throughout the trial, or until the evidence convinces the Jury of his guilt beyond a reasonable doubt. However, in this case no presumption of innocence attaches to this defendant, Edward Walton, Jr., since he has entered a plea of guilty, and has admitted his guilt in open court. The only question for you to decide is what his punishment should be. * * * “You will consider, then, only the extent of punishment — death or life imprisonment . . .” After the jury had been so instructed, and upon conclusion of the closing arguments, the Court thereupon addressed the Jury as follows: “Members of the Jury, when you retire to deliberate, you will take with you for your consideration two forms of verdicts, one of which it will be your duty to approve under the law and the evidence. One of those forms reads as follows: ‘We, the Jury, find the defendant, Edward Walton, Jr., guilty of Murder in the First Degree, and fix Ms punishment at death in the electric chair. ’ In the event you return that verdict, the punishment is death in the electric chair, as it explains itself. “Another form of verdict will be: ‘We, the Jury, find the defendant, Edward Walton, Jr., guilty of Murder in the First Degree and fix his punishment at life imprisonment. ’ That form also is self explanatory . . . ” The jury received the verdict forms and retired for their deliberation. Later, on the same day, the jury returned into court a verdict finding the defendant guilty of Murder in the First Degree, fixed his punishment at death in the electric chair, and the court entered judgment in accordance therewith. From such verdict and judgment comes this appeal. The brief and argument filed on behalf of appellant is as follows: “Appellant, Edward Walton, Jr., a Negro, was convicted of the murder of Roy T. Hallman, 61 year old white man, and sentenced to death. “Appellant entered a plea of guilty. “Point of Reliance for Reversal: “Appellant contends that the judgment of the Court wherein the sentence of death in the electric chair was imposed is too harsh and severe. “Appellant voluntarily entered a plea of guilty to the charge of murder in the first degree. The death sentence was imposed. Appellant’s counsel made a futile effort to win for him a sentence of life imprisonment. “Appellant, enjoying the benefit of Arkansas law, now rests his fate in the hands of this Honorable Court, whose duty it is under law to examine all matters pertaining to the trial. “Appellant, while believing that a fair trial was accorded him for an unnecessary killing, prays the Court to invoke the Divine law, and commute the sentence of death to life imprisonment. “Respectfully submitted, (s) W. Harold Flowers, Attorney for Appellant.” After a careful review of the record we cannot escape the conclusion that a brutal murder has been committed by appellant, therefore we find no merit in the lone point relied on for reversal. Appellant raised only two objections in the entire trial. The first was sustained and the second contained no merit. There was no motion for a new trial. The verdict and judgment not only should, but would be affirmed except for our obligation to examine the record for error on its face. On December 17, 1838, shortly after the admission of this state into the Union, an act was passed, which has since been unchanged, and now appears as § 43-2152, Ark. Stats. It reads as follows: “The jury shall, in all cases of murder, on conviction of the accused, find by their verdict whether he be guilty of murder in the first or second degree; but if the accused confess his guilt, the court shall impanel a jury and examine testimony, and the degree or crime shall be found by such jury. ’ ’ It was under the authority of this statute that the court attempted to proceed in this case. At the conclusion of the evidence offered by the State, there being no evidence for the defendant, the court charged and instructed the jury as heretofore quoted. From such charge and instruction the jury was precluded from determining, finding or ascertaining the degree of the murder. The charge and instructions left the jury no choice but to find the appellant guilty of first degree murder. The jury was told: “You will consider then, only the extent of punishment — death or life imprisonment.” In Porter v. State, 57 Ark. 267, 21 S. W. 467, Chief Justice Cockrill, speaking for the Court, said: “The object of the statute was to make sure that the accused should not be subjected to capital punishment unless the jury specially find that he is guilty of the first degree of murder.” The Court restated this rule in Lancaster v. State, 71 Ark. 100, 71 S. W. 251 as follows: “The statute, it will be seen, requires that there should be a special finding of the degree of murder by a jury, even though the defendant confesses his guilt. ’ ’ And Justice Hart, speaking for the Court in Banks v. State, 143 Ark. 154, 219 S. W. 1015, said: “The statute expressly requires the jury to ascertain the degree in all eases of murder.” Also see: Thompson v. State, 26 Ark. 323; Allen v. State, 26 Ark. 333; Trammell v. State, 26 Ark. 534; Neville v. State, 26 Ark. 614; Simpson v. State, 56 Ark. 8, 19 S. W. 99; Porter v. State, 57 Ark. 267, 21 S. W. 467; Carpenter v. State, 58 Ark. 233, 24 S. W. 247; Carpenter v. State, 62 Ark. 286, 36 S. W. 900; Hembree v. State, 68 Ark. 621, 58 S. W. 350; Clark v. State, 169 Ark. 717, 276 S. W. 849; Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451; Jones v. State, 204 Ark. 61, 161 S. W. 2d 173; and for a case almost on all fours with, the case at bar see: Ray v. State, 194 Ark. 1155, 109 S. W. 2d 954. In the Ray case, supra, which opinion was not officially reported in the Arkansas reports, which within itself is an indication of how thoroughly the question is considered settled by this Court, the Court said: “The appellant relies on section 3205, Crawford & Moses’ Digest, section 4041, Pope’s Digest (§ 43-2152 Ark. Stats.) as construed and applied by this court and especially in the recent case of Wells v. State, [193 Ark. 1092,] 104 S. W. (2d) 451. Appellee calls attention to the difference between the verdict returned in the Wells Case and that in the instant case. In the Wells case, the verdict was, ‘We, the jury, find the defendant guilty and fix his punishment at death, ’ whereas, in the case at bar, the verdict is, ‘We, the Jury, find the defendant, Hollis Bay, guilty of murder in the first degree as charged in the information and fix his punishment at death by electrocution. ’ “In the Wells case, this court held the verdict was so defective as to call for a reversal. In the case at bar, however, it is pointed out that the verdict does not contain the defect of that considered in the Wells case. We went further than that. In that case, as in this, the trial court charged the jury, in effect — although not in positive terms — to find the defendant guilty of murder in the first degree and left for its consideration only the extent of the punishment to be inflicted. We held that the direction of the trial court in that case was error, and, while the case was reversed because of error in the instruction and defectiveness of the verdict, it is clearly indicated that either was sufficient to demand a reversal. In all of the cases citing the section of the law above quoted, its provisions have been uniformly held to be mandatory. We may not ignore the statute by saying that it is technical or highly technical. Its terms are imperative and have become a fixed part of our criminal jurisprudence. It is the duty of courts to enforce legis lative provisions when the legislature acts within constitutional limits; and a departure by the courts from imperative rules established by the legislature for the protection of all in order to meet the exigencies of particular cases is an evil not to be thought of, let alone to be acted upon. It matters not that the errors in the instructions and charge have not been raised by appellant on appeal; Hembree v. State, supra, Wells v. State, supra; or that appellant in his brief concedes that he was accorded a fair trial; the judgment, for the errors indicated, must be reversed and the cause remanded for a new trial.	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Sam Robinson, Associate Justice. The issue in this case is the ownership of a tract of wild and unimproved land west of Little Bock in Pulaski County, consisting of 37.13 acres. Appellants own the land or a substantial part thereof if appellee has not acquired it by adverse possession. So there may be a clear understanding of the issues, it is necessary to mention several transactions in connection with the land which have occurred over a period of about fifty years. Prior to 1914 the land was owned by Alexander Bobertson and had been platted into lots and blocks as Arkansas Heights Addition. The plat was duly recorded. Bobertson let the property forfeit for general taxes for the years 1914, 1916 and 1917. Later B. M. Bimbach obtained a deed from the State to the lands and in 1921 deeded the property to B. A. Binke and F. A. Binke. In 1923 the land was again allowed to forfeit for taxes. F. A. Binke was adjudged insane in 1935. B. A. Binke died in 1939 and his widow died in 1941. In 1939 the State Land Commissioner deeded the land to appellee, Mark Weedman, and Weed-man had paid taxes on it for more than seven consecutive years at the time appellants commenced this action. Alexander Bobertson died testate in 1921. His entire net estate was placed in trust, with the income therefrom to his widow, Abigail Bobertson, for life, upon her death the income to be used for educational purposes known as Abigail Bobertson Scholarship Trust. No children were born to Alexander and Abigail Bobertson. The lands were a new acquisition and Abigail Bobertson renounced the will of Alexander Robertson, thereby acquiring a one-half interest in the Alexander Robertson estate. The Abigail Robertson Scholarship Trust is still active, and it conveyed its interest in the property to appellant, Fred Rinke, on November 21, 1958. The parties have agreed that all the tax sales are void. Therefore, title to one-half interest in the land would be in Fred Rinke under the 1958 deed from the Abigail Robertson Scholarship Trust and title to one-half interest would be owned by the beneficiaries under the will of Abigail Robertson if Weedman has not acquired the property by adverse possession. There are two points that need to be discussed: First, does the deed from the State give appellee Weedman the color of title which he must have in order to successfully claim ownership by adverse possession under the provisions of Ark. Stats. § 37-102? Ordinarily a tax deed from the State, void because a tax sale is void, nevertheless constitutes color of title. Cayce v. Nordin, Trustee, 221 Ark. 383, 253 S. W. 2d 338, and cases cited therein. A redemption of tax forfeited land, however, does not in itself constitute color of title. Galloway v. Battaglia, 133 Ark. 441, 202 S. W. 836; Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869. Appellants contend that Weedman is estopped to deny that he was the owner of the property at the time of obtaining the deed from the State and therefore his acquisition of the property must be considered a redemption and not a purchase. Before Weedman obtained a deed from the State he knew the land had been platted in lots and blocks and forfeited as such because of the nonpayment of general taxes. In connection with acquiring the land from the State he engaged the services of an attorney. The attorney advised getting a deed from Mrs. Fred A. Rinke, whose husband had been declared insane in 1935. It will be recalled that in 1921 Rinke obtained title based on a tax sale and in turn had allowed the property to again forfeit for taxes in 1923. (It will- also be recalled that the parties agree that all the tax sales are void.) Weedman did get a deed to the property from Mrs. Binke, and acting on the theory that this deed gave him title to the property, he petitioned the county court to convert the platted property to acreage under the provisions of Act 91 of 1929 [Ark. Stats. § 19-407 et seq.J, which would thereby enable him to redeem the property from the State for $1.00 per acre under, the provisions of Act 284 of 1937 [Ark. Stats. § 10-903]. Acting on Weedman’s petition, the county court did convert the platted property back to acreage and Weedman obtained a deed from the State to the property for the consideration of $1.00 per acre and other fees that are mentioned in the deed. We need not go into the question of whether the deed from Mrs. Binke gave Weedman color' of title, because we have reached the conclusion that the deed from the State did give him color of title; hence it is immaterial whether Mrs. Binke’s deed gave him color of title. Appellants base their contention that the State’s deed did not give Weedman color of title because, they say, Weedman is estopped to deny he was the owner of - the property by reason of his assertion of ownership made in getting the property reduced to acreage and purchasing from the State on the theory of ownership. The doctrine of equitable estoppel has no application because nothing that Weedman did caused appellants to act in any manner to their detriment. It is agreed that all the tax sales, including the one under which Binke originally claimed ownership through his purchase from Birnbach, are void. And Binke does not claim by adverse possession. It follows, therefore, that Binke acquired no interest whatever in the property until he obtained a deed from the Abigail Bobertson Scholarship Trust in 1958, and of course he obtained no interest at that time if the Trust had none to convey. And Weedman’s representation that he was the owner of the property under the deed from Mrs. Binke in no way caused the Scholarship Trust to act to its detriment. Although the Trust has been in existence for more than 35 years, it paid no taxes on the property and did not carry it as an asset and showed no interest in the property until it gave the deed to Rinke in 1958. At one time Weedman inquired of the trust officer of the bank acting as trustee, regarding the property, and was told that the Trust owned no interest in the property. But appellants argue that the doctrine of judicial estoppel is applicable; that once Weedman claimed in a judicial proceeding that he was the owner, he is estopped to later assert in another proceeding, where the parties are not the same, that he was not the owner at the time of his purchase from the State in 1939. True, in petitioning the county court to reduce the lots and blocks to acreage and purchasing from the State, Weedman represented himself as owner, but we do not think these representations estop him from now showing just what the facts were in his acquisition of the property. To support their contention of judicial estoppel, appellants cite the cases of Womack v. Womack, 73 Ark. 281, 83 S. W. 937, mod. 83 S. W. 1136; Robinson v. Cross, 98 Ark. 110, 134 S. W. 954; Hudson v. Union & Mercantile Trust Co., 155 Ark. 605, 245 S. W. 9. Womack v. Womack was a divorce case. Property was purchased in the wife’s name, paid for by both the husband and wife. The husband asked that the deed be set aside. The Court said: “Conceding that Womack purchased the land and paid for it, and had the title taken in name of his wife, it was absolutely her property. ‘If a husband purchases property, and has it conveyed to his wife, or expends money in improving her property, the advances will be presumed to be gifts. The law will not imply a promise on her part to repay him.’ Ward v. Ward, 36 Ark. 586. But the facts do not justify this conclusion, for the evidence shows her work contributed at least equally to the acquisition of this property, and he has in bankruptcy proceeding treated it as hers, not his, and he cannot now be heard to say it was his. Rodgers, Domestic Rel. § 259. There can be no ques tion that she owned this property free of any legal, equitable, or moral obligation to convey to him.” Thus it will be seen that the Court held in favor of the wife because she was the absolute owner of the property and not because Womack was estopped to claim ownership after asserting in a bankruptcy proceeding that the property belonged to his wife. In the Robinson case the doctrine of judicial estoppel is not involved at all. In the Hudson case a widow alleged that certain money belonged to her husband’s estate and prayed that she be allowed an interest therein. The court allowed her one-third, which she accepted. The administrator in good faith paid the balance on decedent’s debts. In the circumstances it was held that the widow was estopped to claim all the money as her own property. This is clearly a case of equitable estoppel. The Court said: “Appellant’s contention is that, under the agreed statement of facts, appellee’s testatrix was estopped from claiming the fund on deposit as her individual estate, and that the court erred in not dismissing the bill. We think they are correct in this contention. The doctrine of equitable estoppel has been defined by this Court as follows: . . .” Thus it will be seen that this case went off on the proposition of equitable estoppel and not judicial estoppel. None of the above cases is authority for appellants’ contention that judicial estoppel is applicable. Appellants also cite 31 C.J.S., § 121, p. 390, to the effect that a party is estopped merely by the fact of having alleged or admitted in his pleadings in a former proceeding under oath the contrary of the assertion sought to be made. All of the cases cited in C. J. S. sustaining this note are from the State of Tennessee, except one case from Wyoming, Hatten Realty Co. v. Baylies, 42 Wyo. 69, 350 P. 561, 72 A. L. R. 587. There the court criticizes the holding in the Tennessee cases and cites the general rule that a position taken by a party in one suit cannot be claimed as working an estoppel in another suit in favor of a party who was a stranger to the first, but that whatever statements or admissions were made in the first can be used as evidence only. Citing 18 Ann. Cas. 78; Ann. Cas. 1915C, 735; 28 L. R. A., N. S., 327; L. R. A. 1915A, 200; 5 A. L. R. 1505; and Wigmore on Evidence, 2d Ed., § 1064. It is also said in 31 C. J. S., § 117, p. 373: ‘ ‘ The doctrine of estoppel to assume inconsistent positions in judicial proceedings has been said to be one of vague application, and in many cases has been held inoperative, or has not been applied, under the particular facts and circumstances involved.” Dozens of cases from numerous states are cited to support the text, and it is further stated, at page 381: “For this doctrine [doctrine of judicial estoppel] to be applied, it is commonly required that the parties be the same, and that the same questions be involved.” In the case at bar appellants were not parties to Weedman’s petition to reduce the lots and blocks to acreage, nor parties in his purchase from the State. No theory of equitable estoppel is involved, and the doctrine of judicial estoppel is not applicable. The next point for consideration is appellants’ contention that Weedman did not pay the taxes on a description that would constitute notice to the owners. The land was described in the deed from the State to Weed-man as follows: “All that part of the Southeast Quarter of the Northwest Quarter containing Twenty-three and 31/100 (23.31) acres, and All that part of the North Half of the Northeast Quarter of the Southwest Quarter, containing thirteen and 82/100 (13.82) acres, and containing, in the aggregate, Thirty-seven and 13/100 (37.13) acres, all in Section Three (3), in Township One (1) North, of the Base Line, in Bange Thirteen (13) West of the Fifth Principal Meridian in Arkansas, which were forfeited and sold to the State of Arkansas, at a County Tax Collector’s Sale for non-payment of the taxes due thereon for the year or years set forth below, as lots and blocks in Arkansas Heights Addition to the City of Little Bock, Arkansas, . . .” Then follow the lot and block numbers in Arkansas Heights Addition, and the dates of forfeiture. Weedman filed his deed for record, and the property was extended on the records of the County and Weedman paid taxes under the following descriptions: From 1939 through 1954 the property was described as: “That pt. SENW cont. 23.31 A and pt. n 1/2 NESW cont. 13.82 A formerly platted as pt. Ark. Heights, Sec. 3-1N-13W” and from 1955 to the present time it was described as: “Pt. SENW Cont. 23.31 ac. & Pt. N 1/2 NESW cont. 13.82 ac. formerly platted as Pt. Ark. Hgts. 3-1N-13W”. It is conceded that the deed from the State to Weedman, which he recorded, contains a valid description of the lands involved in this litigation. The question is whether the taxes were paid on a description which would constitute notice to those who owned the property at the time of the forfeiture that someone was paying taxes on the property. Of course, such former owners knew that they had paid no taxes on the property for more than 35 years. If appellants had been interested in the land in the least bit and had made any investigation to determine what was the tax situation, they would have seen at once that Mark Weedman was paying taxes on 37.13 acres located in the SE 1/4 of the NW 1/4 and Pt. of the N1/2 of the NE 1/4 of the SW 1/4, in Section 3, Township 1 N., Range 13 W., formerly platted as part of Arkansas Heights Addition; and the recorded deed from the State to Weedman would have given them the lot and block numbers of the lots described on the plat which the State conveyed to Weedman. In Junction City Special School District No. 75 v. Whiddon, 220 Ark. 530, 249 S. W. 2d 990, the State had deeded tax forfeited land to McWilliams and Whiddon, such land being described in the deed as Frl. NW 1/4 of the NW 1/4, Sec. 28, T. 19 S., R. 16 W., containing 35 acres more or less. Previously five acres in the quarter section had been conveyed to the school district under a definite and proper description. The Court said: “While the description under which appellees claimed was faulty, it was evident that they were claiming all that remained of the NW 1/4 of the NW 1/4 of section 28, township 19, range 16 west, 35 acres, after appellant’s 5-acre tract had been carved out of that 40 acres under a definite correct metes and bounds description, which located the 5 acres in the NW corner of the NW 1/4 of section 28, township 19, range 16 west, etc. We think this was sufficient to identify this 35 acres claimed by appellees and entitled them to the benefits of § 37-103.” In the Whiddon case, one would have to examine the recorded deed to the five acres to determine the exact 35 acres on which McWilliams and Whiddon were paying taxes. Such determination could not be made from the deed from the State to McWilliams and Whiddon, but in the case at bar one would have to look no further than Weedman’s recorded deed from the State to determine the exact location of the land on which he was paying taxes. In the Whiddon case this Court quotes from 132 A. L. R. 227, as follows: “ ‘If the taxes as to the particular land claimed adversely are in fact paid, the fact that such land has not been accurately described in the assessment or the tax receipts will not affect the efficacy of the payment as a compliance with the statute,’ ” and further quoted from 2 C. J. 209, as follows: “ ‘ One who, under color of title acquired in good faith, has paid the taxes actually assessed against land is entitled to the benefit of the statute, notwithstanding the land may have been misdescribed in the tax receipts, and provided he is able to remove the uncertainty by extrinsic evidence. ’ ’ ’ And the Court quoted from 2 C. J. S. 749: “ ‘. . . if claimant pays the taxes on the land actually claimed, the fact that the land was misdescribed in the assessment or in the tax receipts is immaterial.’ ” In support of the contention that the description on which Weedman paid taxes for so many years is insufficient to base a claim of seven years adverse possession under color of title, appellants cite Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 88 S. W. 1011, 91 S. W. 20; Phillips v. Michel, 217 Ark. 865, 233 S. W. 2d 551; and Darr v. Lambert, 228 Ark. 16, 305 S. W. 2d 333; but in all of these cases the description under wbicb the taxes were paid furnishes no clue leading to a correct description that might be determined from the records. Finding no error, the decree is affirmed.	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Ed. F. McFaddin, Associate Justice. This is a Workmen’s Compensation case. Mrs. Alta Hulsizer filed claim because of the death of her husband, Ivan Hulsizer, who suffered an attack and died while employed by Johnson-Brennan Construction Company at Rogers, Arkansas. The Referee allowed the claim; the Full Commission, reversing the Referee, disallowed the claim; the Circuit Court affirmed the Full Commission; and Mrs. Hulsizer appeals to this Court. Appellant recognizes the long established rule that if there be substantial competent evidence to support the finding of the Full Commission, then we will affirm such finding. The appellant points out, however, that the Full Commission reversed the Referee and decided the case against Mrs. Hulsizer because of the testimony of Dr. Riggall; and the appellant urges that Dr. Riggall’s testimony was not competent evidence because, in answering a hypothetical question, he assumed facts not contained in the question or otherwise shown in the record. We reach the conclusion that the appellant is correct and the Circuit Court judgment must be reversed. In allowing the claim the Referee delivered a written opinion from which we copy pertinent excerpts: “The deceased, Ivan Hulsizer, was 51 years of age on the morning of September 27, 1957, and reported to work at his usual hour of 7:30 A.M. at Rogers, Arkansas. He was employed as a common laborer for said construction company and had been employed by it for a period of two years prior to the date of his death . . . On the morning of September 27,1957, the deceased commenced his work at 7:30 A.M. and continued his work until approximately 8:15 A.M., when he collapsed at work and was taken by ambulance to the Rogers Memorial Hospital in Rogers, Arkansas where he expired a few minutes after arrival in the emergency room of said hospital. An autopsy was performed on the body of the deceased and a finding was made by Dr. Grier Warren that the deceased had died from a cerebral hemorrhage . . . On the morning of September 27, 1957, the deceased, along with co-workers, was carrying and stack ing wet or damp lumber tbat had been used in the laying of concrete floors and foundations. These pieces of lumber carried individually by the workers weighed from sixty to seventy pounds and were picked up from the floor and carried approximately twelve to sixteen feet where they were stacked. The deceased was in the process of carrying one of these pieces of lumber when he collapsed on the job. The death certificate, along with the autopsy report and various medical reports, was introduced and made a part of the record in this claim. This evidence, together with the testimony of Dr. John Eollow, Dr. Grier Warren, Dr. Neal Compton, Dr. Stewart Wilson, and Dr. D. H. Butler, together with the claimant’s widow and two lay witnesses, was presented for the benefit of the Eeferee in this claim . . . “A great deal of time and effort have been devoted to reading and studying all of the testimony and evidence introduced and made a part of the record in this claim. The Eeferee is of the opinion that two decisions of the Arkansas Workmen’s Compensation Commission and of the Supreme Court of the State of Arkansas are determining factors in the decision of this claim. In the well known case of Bryant Stave Company v. White, 227 Ark. 147, 296 S. W. 2d 436, the Supreme Court defined the term ‘accidental injury’ to cover the condition of the deceased in this claim. In the later case of E. P. Bettendorf & Co. v. Kelly, 229 Ark. 672, 317 S. W. 2d 708, the Court went further in making a determination of what is an accidental injury arising out of and in the course of employment. “A study of the evidence in this claim, taken together with the medical testimony, shows, in the opinion of the Eeferee, that the worker had a pre-existing condition which taken together with the work load that the deceased was undertaking on September 27, 1957, and the resulting death were all related to his work and that his work was the causal connection in his death. The medical evidence shows that if the claimant did have a preexisting condition it was a weakening of one of the ves seis near the brain which weakness was ruptured by the heavy work and stress and strain that were placed upon the workman on the date of his death causing his instant death. ’ ’ The cases cited by the Referee clearly sustained his conclusions. The facts here are strikingly similar to those in Bettendorf v. Kelly, 229 Ark. 672, 317 S. W. 2d 708, wherein we reaffirmed our unanimous holding in Bryant Stave Co. v. White, 227 Ark. 147, 296 S. W. 2d 438, and also said: “Every time a mortal is born everyone knows that some time the mortal will die, so the death of a mortal is never unforeseen or unexpected in the light of human existence. But just when the death will occur and under what circumstances, is certainly unforeseeable and unpredictable. So it was with the heart attack of Mr. Kelly in the case at bar: no one could tell when it would occur. He was engaged in a line of work, he was exerting himself by the driving of nails into the pallets, he collapsed: his death was, therefore, accidental and within the scope of his employment.” One of the witnesses who testified before the Referee was Dr. Grier "Warren, who made the autopsy of Ivan Hulsizer; and the portion of that report germane to the issue here is as follows: “BRAIN: The skull was opened and there was evidence of intra-cranial bleeding throughout. There was no evidence of fracture as noted on the entire surface of the skull which was smooth. Blood covered the whole area of the brain and extended down into the spinal column. The blood vessels could not be traced out due to the amount of blood and hematomas on the upper surfaces. No areas of hemorrhage or softening are noted on the cut surfaces of the brain. ' “GROSS PATHOLOGY: Specimen of brain revealed evidence of intra-cranial bleeding with large hematomas over entire surface of specimen. Entire brain was examined. No evidence of hemorrhage or softening within the brain tissue was noted. " HIAGrNOSIS: Cerebral Hemorrhage. ’ ’ (Emphasis supplied.) When the ease was heard before the Full Commission the transcribed testimony, heard before the Beferee, was presented and the only other additional witness was Dr. Biggall, who testified as an expert as to the cause of Ivan Hulsizer’s death. There is no claim that Dr. Biggall ever saw Ivan Hulsizer, alive or dead. The doctor stated that he had read a transcript of the testimony before the Beferee and was then asked a hypothetical question as to the cause of Ivan Hulsizer’s death. The hypothetical question incorporated in it the autopsy report about the brain of Hulsizer: “And upon opening the cranium free blood covered the whole area of the brain and it was found throughout the cavity extending down into the spinal column. No ruptured vessels could be demonstrated and no areas indicative of previous trauma to the head were found and that death resulted from shock due to cerebral hemorrhage.” (Emphasis supplied.) The hypothetical question ended: ‘ ‘ From the foregoing assumed facts, do you have an opinion to a reasonable medical certainty whether the work caused or contributed to the cause of the death of the hypothetical Ivan Hulsizer?” Dr. Biggall giving an answer covering three typewritten pages concluded that Hulsizer died because of a congenital pathological defect known as a congenital aneurysm. In so concluding the doctor said: “I find it easy to reconstruct the picture and I am certain from those facts that death occurred from the rupture of a congenital aneurysm of one of the internal carotid vessels and this was not found by the matter of the post mortem, because it is on the floor of the brain and could not be seen unless the brain had been removed and that is the usual method of showing this lesion. (Emphasis supplied.) Promptly the attorney for Mrs. Hulsizer objected, saying: “I object and ask that the entire answer be stricken from the record for the specific reason that the autopsy report and report of the autopsy surgeon does not show such defect. He is assuming such defect to be there and that the autopsy surgeon did not do a proper job of autopsy and is presupposing facts without the record and the whole response should be stricken from the record.” The Commission allowed the doctor’s answer to remain; and therein we consider reversible error to have occurred. It is readily apparent when the autopsy report is compared with Hr. Riggall’s answer — as we have emphasized the portions —- that he assumed a fact contrary to the autopsy report: i.e., that a blood vessel had ruptured in a portion of the brain not discovered by the doctor making the autopsy. On this assumption — contrary to the autopsy report — Dr. Riggall predicated his conclusion. Dr. Riggall’s testimony must be discarded as stating something to be a fact that was not shown on the autopsy report. Dr. Riggall’s entire testimony is bottomed on his position that because of his medical experience he knew more about the brain than did the physician who made the autopsy report and that certain facts had to be true as regards the autopsy even though such facts were not shown. Superior knowledge is a wonderful attribute; but an expert in answering a hypothetical question must base the answer on admitted facts and cannot assume facts contrary to or in addition to the admitted facts. That is the vice of Dr. Riggall’s testimony. There are two sources from which an expert can gain facts in a case like this. One is from a personal examination, and the other is the factual statement in the hypothetical question. As previously stated, Dr. Riggall never saw Ivan Hulsizer, alive or dead: so Dr. Riggall’s only source from which he could gain facts on which to testify must be the facts stated in the hypothetical question. As the Supreme Court of Washington stated in Clayton v. Dept. of Labor, 48 Wash. 2d 754, 296 P. 2d 676: “If his opinion is based upon a hypothetical question and he assumes the existence of material conditions not established by the evidence or not included in the question or inferable therefrom, he destroys the validity of his answer . . .” The same Court in Berndt v. Dept. of Labor, 44 Wash. 2d 138, 265 P. 2d 1037, said: “It is equally clear that, when an expert who knowns nothing about an individual except what is included in a hypothetical question assumes the existence of certain conditions not included in that question and not necessarily inferable therefrom, he destroys the validity of his answer. See Rich v. Philadelphia Abattoir Co., 1947, 160 Pa. Super. 200, 50 A. 2d 534. In that case the expert assumed the existence of arteriosclerosis, which was not established by the evidence. In this case, the expert assumes worries about economic security and a diseased coronary artery, neither of which was established by the evidence or included in the hypothetical question.” In Atlantic Coast Line R. Co. v. Shouse, 83 Fla. 156, 91 So. 90, the Supreme Court of Florida said: ‘ ‘ The answer of an expert witness to a hypothetical question must be given upon the basis of the facts stated in the question, and without recourse to other facts within his own knowledge. See Fuller v. City of Jackson, 92 Mich. 197, 52 N. W. 1075; City of Wichita v. Coggshall, 3 Kan. App. 540, 43 Pac. 842; Link v. Sheldon, 136 N. Y. 1, 32 N. E. 696; Burns’ Ex’r. v. Barenfield, 84 Ind. 43. But the witness in this case not only declined to answer the question upon the basis of the facts stated, but had recourse, not to facts within his own knowledge, but to an imaginary case of his own construction, built in part from some of the facts embraced in the question, his deductions from conflicting evidence referred to in the question, and in part from his imagination, and a case which had no basis whatever in the record. ’ ’ Other courts have recognized the same rule. See Fidelity & Gas. Co. v. Van Arsdale, Tex. Civ. App., 108 S. W. 2d 550; Mounsey v. Bower, 78 Ind. App. 647, 136 N. E. 41 and Ballance v. Dunnington, 241 Mich. 383, 217 N. W. 329, 57 A. L. R. 262. See also Rogers on “Expert Testimony”, 3rd Ed. § 54; and 32 C. J. S. 366 et seq., “Evidence”, § 557 et seq. The Commission committed error in allowing Dr. Riggall’s answer as competent. Therefore, the judgment of the Circuit Court affirming the Commission is reversed and the cause is remanded to the Circuit Court with directions to reverse the Commission’s award and remand the cause to the Commission for further proceedings in accordance with this opinion. George Rose Smith and Robinson, JJ., dissent.	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Ed. F. McFaddin, Associate Justice. The question presented on this appeal is whether the Highway Commission is required to pay the TJse Tax on merchandise it purchased outside of the State and used inside the State. The facts have been stipulated. The Revenue Commissioner assessed a tax of $999.70 against the Highway Commission under the Use Tax Act. The amount was paid under protest; and the Highway Commission brought this suit to recover the amount paid — a procedure provided in the said Use Tax Act (% 84-3120, Ark. Stats.). The Chancery Court rendered a decree in favor of the Highway Commission; and the Commissioner of Revenues brings this appeal, presenting for decision the question first stated. The Commissioner of Revenues urges: that by the Use Tax Act a tax was levied on the use of all merchandise purchased by any person outside the State and used in the State; that in defining the word “person” in § 4(h) of the Use Tax Act (§ 84-3104(h), Ark. Stats.) it is stated that the word “person” means “any . . . agency”; that the Highway Commission is an agency; that in the emergency clause of the Use Tax Act (§ 84-3128, Ark. Stats.) it is stated that the purpose of the Act is to remove discrimination; and that unless the Highway Commission is subject to the tax, its purchases outside of the State will mean discrimination against local merchants. The Commissioner of Revenues also urges most forcibly that, under § 6(c) of the Act (% 84-3106 (c), Ark. Stats.), a “governmental agency” may apply in certain instances for a refund of the tax paid; that a “governmental agency” could not apply for a refund if the governmental agency had not previously paid the tax; that the governmental agency would not have paid the tax in the first instance if not liable therefor; and that if a “governmental agency” is liable to pay the tax then the Highway Commission is liable in this case because the Highway Commission is a “governmental agency”. These are very logical and forceful arguments by the Commissioner of Revenues; but we conclude that our holding in Scurlock v. City of Springdale, 224 Ark. 408, 273 S. W. 2d 551, points unalterably to our holding in the case at bar. In the Springdale case, the Commissioner of Revenues claimed that the City of Springdale was liable for the Use Tax on articles purchased outside of the State and used in the State. In holding that the Use Tax Act did not apply to a municipal corporation, such as the City of Springdale, we called attention to the definition of “person” as contained in § 4(h) of the Use Tax Act (§ 84-3104(h), Ark. Stats.) as compared with the definition of “person” as found in § 2(a) of the Sales Tax Act (% 84-1902(a), Ark. Stats.). In the said Sales Tax Act the Legislature had specifically said that “. . . ‘person’ includes . . . this State, any County, City, Municipality, School District, or any other political sub-division of the State . . .”; whereas, in the Use Tax Act the definition of “person” did not contain any such language. "We therefore concluded that the Legislature, by defining “person” in the Sales Tax Act to include the State and its subdivisions, and in failing to likewise define “person” in the Use Tax Act, thereby necessarily intended to exclude the State and its sub-divisions from the Use Tax Act. In Scurlock v. Springdale, supra, we furthermore quoted from U-Drive-’Em Service Co. v. Hardin, 205 Ark. 501, 169 S. W. 2d 584: “ ‘It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.’ ” Then in Scurlock v. Springdale we concluded our opinion with this statement: “The argument that cities should not be allowed to make out of state purchases tax free, when they are compelled (under Act 386 of 1941) to pay a tax on purchases made within the state, is a matter which addresses itself, not to the judiciary, but to the legislative branch of our government.” The opinion in Scurlock v. Springdale was rendered on December 20, 1954. Since that time there have been three regular sessions of the Legislature and several extraordinary sessions, yet there has been no amendment of the definition of the word “person” in the Use Tax Act. We must, therefore, conclude that our holding in Scurlock v. Springdale was in accord with the legislative intentions and desires. That holding, as aforesaid, points unalterably to our conclusion here: that in the light of all the facts the definition of “person” in the Use Tax Act is not broad enough to apply to the Highway Commission. The decree of the chancery court is affirmed. The full style of the appellant, as contained in the record of this case, is “Office of Commissioner of Revenues and Arkansas State Revenue Department, J. Orville Cheney, Commissioner, E. E. McLees, Assistant Commissioner”. The full style of the appellee, as contained in the record, is “Arkansas State Highway Commission”. For convenience we will refer to the appellant as, “Revenue Commissioner”, and to the appellee as, “Highway Commission”. The Use Tax is officially called “The Arkansas Compensating Tax Act of 1949”. It is Act No. 487 of 1949, and, as amended, may be found in § 84-3101 et seq., Ark. Stats. The Sales Tax Act is officially called “The Arkansas Gross Receipts Act of 1941”. It is Act No. 386 of 1941, and, as amended, may be found in § 84-1901 et seq., Ark. Stats.	[ -48, -6, -12, -52, 42, 66, 18, -118, 91, -93, -26, 27, -83, -94, -112, 51, -17, -1, 113, 106, -43, -78, 71, 99, -106, -5, -39, -57, -80, 77, -28, -52, 78, 49, -54, -43, 102, 71, -49, -102, -18, -118, -118, -27, -23, 66, 52, 41, 18, 11, 113, -113, -9, 62, 24, -61, -19, 44, 89, 49, -61, -16, -70, 29, 95, -124, 17, 52, 25, 5, -40, 43, -104, 49, 72, -24, 115, -90, -58, 116, 109, -71, -120, 104, 98, 4, 1, -19, -100, -104, 14, -37, -83, -90, -112, 25, 66, 15, -105, -105, 126, 18, -115, -2, -12, 85, -33, -4, 11, -114, -80, -93, -19, -28, 4, 66, -49, -125, 18, 96, -18, -14, 93, 71, 54, -101, 6, -48 ]
Ed. F. McFaddin, Associate Justice. The Chancery Court granted Dr. Wood an absolute divorce; and Mrs. Wood in prosecuting this appeal lists two points: I. Trial Court Erred by Denying Appellant the Eight to Participate in the Trial. II. There Was No Corroborative Testimony or Evidence Submitted to Sustain the Decree. The correctness of appellant’s position on the second point is so clearly determinative of the appeal that we discuss the second point at the outset. A. Lack of Corroboration. Dr. Wood sought au absolute divorce on the claim that he and his wife had lived separate and apart for three consecutive years (the seventh ground stated in § 34-1202, Ark. Stats.). In a divorce action no complaint can be taken as confessed (§ 34-1207, Ark. Stats.). We have many cases which hold that in suits for absolute divorce there must be corroboration of the plaintiff’s testimony. See Sisk v. Sisk, 99 Ark. 94, 136 S. W. 987; Shelton v. Shelton, 102 Ark. 54, 143 S. W. 110; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486; Johnson v. Johnson, 122 Ark. 276, 182 S. W. 897; Fania v. Fania, 199 Ark. 368, 133 S. W. 2d 654; Gabler v. Gabler, 209 Ark. 459, 190 S. W. 2d 975; and Saugey v. Saugey, 228 Ark. 110, 305 S. W. 2d 856. In the light of the foregoing, we examine the evidence offered in the case at bar. Only two witnesses testified : one was the Clerk of the Chancery Court, who testified entirely as to pleadings, continuances, and such procedural matters. The testimony of this witness could not be claimed to have corroborated Dr. Wood in any way as to his ground for divorce. The only other witness was Dr. Wood. He testified most strongly in support of his case. But, the only corroboration offered was the ex parte affidavit of William Harris; and this affidavit was offered as an exhibit to Dr. Wood’s testimony. We have frequently held that affidavits cannot be used as in dependent evidence. Western Union v. Gillis, 89 Ark. 483, 117 S. W. 749; Evans v. Farris, 188 Ark. 83, 64 S. W. 2d 325. In Johnson v. Johnson, 122 Ark. 276, 182 S. W. 897, and again in Gardner v. Gardner, 142 Ark. 292, 218 S. W. 663, we specifically held that affidavits could not be received as independent testimony and as corroboration in a divorce case. In the last cited case we said: ‘ ‘ The ground urged here for reversal is that the decree was rendered on ex parte affidavits. The record sustains appellant in this contention, for it recites that the cause was heard on the affidavits of appellee and two other witnesses . . . Accepting the recitals of the record as true, which we should do on appeal, it is apparent that the decree was based solely on ex parte affidavits introduced in evidence, and it has been decided by this court that it is error to accept such character of evidence, and that it cannot be made the basis of a decree for divorce. Johnson v. Johnson, 122 Ark. 276.” There was no evidence to corroborate the testimony of the plaintiff; and the Chancery Court was in error in awarding Dr. Wood a decree for divorce. The Chancery decree is reversed, and the divorce is annulled. B. Disposition of The Case. In order to do full justice to both parties and to give appellant an opportunity to defend any divorce case against her — a right she claims was denied her in this case — we have concluded that the Chancery Court should, and it is hereby directed to, dismiss the present case without prejudice. Then either party is free to institute a new case if so desired. All costs in the present case are taxed against the appellee, Dr. Wood. George Rose Smith, J., not participating. This affidavit was on the stationery of the Veterans Administration Hospital, Perry Point, Maryland, dated March 2, 1960, and reads in full as follows: “TO WHOM IT MAY CONCERN: “This is to certify that Benjamin S. Wood, M.D. was appointed as a resident in Psychiatry in the Perry Point Veterans Administration training program on March 11, 1957 and that he served continuously in the Perry Point Program until September 4, 1959 at which time he was placed on detail to Little Rock, Arkansas. To the best of my knowledge during Dr. Wood’s stay at Perry Point he was never accompanied nor did he live with his wife, Barbara R. Wood. Very truly yours, /s/W. M. Harris, M.D. Assistant Director, Professional Services for Education. (Seal of Margaret M. Bell, Notary Public, Cecil County, M.D.) /s/Margaret M. Bell My commission expires 5/1/61.”	[ 49, 106, -19, 63, -104, -32, 42, -6, 82, 3, 55, 82, -3, 90, 24, 127, 50, 47, 84, 122, 69, -77, 23, 65, -13, -5, 123, -35, -79, -18, -27, 93, 69, 32, -126, -43, 102, -56, -57, 88, -50, -126, -85, -52, -38, -44, 52, 119, 74, 11, -15, -98, -13, 40, 30, -57, 8, 44, 91, 124, -16, 48, -114, 13, 77, 14, -79, 36, -100, 45, 72, 46, -104, -79, 1, -8, 51, -76, 6, 84, 78, -119, 8, 118, 98, 1, 33, -19, -96, -120, 46, 126, 31, -89, 80, 65, 75, 105, -74, -71, 109, 80, 10, 122, -32, 29, 24, 108, 11, -113, -108, -79, 21, 126, -100, 17, -21, -93, 16, 85, -49, -30, 92, 5, 58, -101, -122, -77 ]
Paul Ward, Associate Justice. This is a class action brought in the Chancery Court by citizens and taxpayers of Ashley County to enjoin the County Judge of said county from paying dues (and making other contributions) to the Arkansas Association of County Judges, and asking for a refund of such payments theretofore made. The trial court granted the injunctive relief and rendered judgment for the previous payments, but refused authorization of execution against the association. The association now prosecutes this appeal. The pertinent facts are not in dispute. The defendants in the class action, filed January 29, 1957, were: W. T. Higginbotham, County Judge of Ashley County (hereafter referred to as Judge); The Arkansas Association of County Judges (a non-profit corporation hereafter referred to as Association), and; Arthur Carter, Secretary of the Association (hereafter referred to as Secretary). The complaint contains, in substance, the following essential allegations: (a) The Association is a nonprofit corporation organized February 10, 1948; (b) On January 29,1957, the Secretary (both individually and acting for the Association) conspired with the Judge to fraudulently,, willfully and maliciously deprive the taxpayers of Ashley County of county funds in that he presented a claim in the amount of $50, on behalf of the Association, for “Magazine Legislative Work”; (c) All said mentioned parties knew the claim was false, fraudulent and illegal, and that it constituted a fraud on the taxpayers of Ashley County; (d) The Judge (individually and as County Judge), knowing the claim to be false, approved the same and directed the issuance of a warrant in payment thereof; (e) As a direct and approximate result of the aforementioned transaction the Secretary, while acting on behalf of himself and the Association, unlawfully accepted and collected Warrant No. 101 in the amount of $50 from the Ashley County Clerk and thereafter presented said warrant to the County Treasurer, who paid the same contrary to law on January 31, 1957; (f) All the defendants knew at the time that the said $50 were to he used for them in the interest of said Association and were not to be used for any authorized or legitimate county purpose nor in payment of any goods furnished or service rendered to Ashley County; (g) The defendants will continue to conspire and to present illegal, false, and fraudulent claims in behalf of themselves and said Association, to Ashley County and the Judge will continue to allow said illegal claims unless enjoined by order of the court, and, therefore, plaintiff’s remedy at law is inadequate, and; (h) Plaintiffs believe and allege that the defendants, acting together, have allowed and paid other false, fraudulent and illegal claims of the Secretary and the Association, and all of said defendants should be ordered to account to these plaintiffs for the use and benefit of themselves and all other citizens, residents and taxpayers of Ashley County for all money previously received by the Secretary and the Association. The prayer of the plaintiffs was that this court enjoin the defendants from presenting, allowing, paying and accepting payment for any and all such false, fraudulent and illegal claims; that they be ordered and directed to account to these plaintiffs for all similar funds heretofore received; that judgment be entered against the defendants in the amount of $50 plus any other such false and illegal claims, and; for such equitable and proper relief to which the plaintiffs may he entitled. (Emphasis supplied.) Appellants filed a demurrer to the above complaint on the ground that the Chancery Court had no jurisdiction. Upon the demurrer having been overruled appellants filed an answer in which they admitted presenting the said claim for $50 and also admitted the payment of said sum and receipt thereof. All other allegations in the complaint were specifically denied. The answer fur ther stated that the Judge, in allowing said claim, acted in his judicial capacity and his action thereon is not subject to review by the Chancery Court. Thereafter, and before the decree was rendered, the defendants filed an Objection to Judgment under the provision of Ark. Stats. § 27-615. On a hearing before the Chancellor it was shown that, in addition to the $50 item mentioned above other payments of a like nature, some of which were barred by the statutes of limitation, were also made to the Association. It appears that these payments were made for dues to the Association, for advertisement in the association’s magazine, and for “legislative work”. For convenience and clarity the points relied on by appellants for reversal will be discussed under the following classification and in the order named: (a) The Chancery Court had no jurisdiction; (b) The Objection to Judgment should have been sustained, and; (c) The claims were legal and should have been allowed. (a) Jurisdiction. It is here argued that the County Court, in passing on a claim presented to it, acts in a judicial capacity, citing Hutson v. States, 171 Ark. 1132, 287 S. W. 398, Farmer v. Franklin County, 179 Ark. 373, 16 S. W. 2d 10, and Logan County v. Anderson, 202 Ark. 244, 150 S. W. 2d 197. It was pointed out that, under Article 7, Section 51 of the Arkansas Constitution and Arkansas Statutes, § 27-2001, the proper remedy is to appeal to the Circuit Court, citing the Anderson case supra; Ladd v. Stubblefield, 195 Ark. 261, 111 S. W. 2d 555, and; Monroe County v. Brown, 118 Ark. 524, 117 S. W. 40. Appellants however concede some exceptions to the above rule particularly when an illegal exaction is involved and where the judgment of the County Court is procured through fraud, asserting that in this case there is no illegal exaction, or illegal tax involved and also that no fraud has been shown. We must agree with appellants that there is nothing in the record to justify a finding that appellants acted with any fraudulent intent. On the other hand, the rec ord reveals that they acted in accordance with legal advice and in accordance with the custom or usage followed in other counties. In other words, we find nothing to show that appellants were not acting in good faith for what they considered to be to the best interest of Ashley County. In our opinion, however, the complaint is based upon the theory of an illegal exaction, and that it is not necessary that an illegal tax be involved. In the case of Lee County v. Robertson, 66 Ark. 82, 48 S. W. 901, the court was dealing not with an illegal tax but with a question of an illegal use or appropriation of county funds. At page 87 of the Arkansas Reports, this statement was made: “The order of reappropriation was tantamount to an allowance and enforcement of an illegal exaction against every taxpayer of the county. Each taxpayer was therefore individually interested in such order.” Article 16, Section 13, of the Arkansas Constitution provides that: “Any citizen of any county, city or town may institute suit in behalf of himself and all others interested, to protect the inhabitants thereof against the enforcement of any illegal exactions whatever.” (Emphasis supplied.) This court has many times construed the above constitutional provision but has never limited its application to an illegal tax but has uniformly construed it to apply to an illegal exaction as heretofore defined. In the case of Ward v. Farrell, 221 Ark. 363, 253 S. W. 2d 353, under facts somewhat analogous in principle to the facts of this case, in referring to the above mentioned constitutional provision, the court quoted with approval the following: “This court has construed that provision to mean that a misapplication by a public official of funds arising from taxation constitutes an exaction from the taxpayers and empowers any citizen to maintain a suit to prevent such a misapplication of funds.” “There is eminent authority for holding, even in the absence of an express provision of the Constitution, such as referred to above, that a remedy is afforded in equity to taxpayers to prevent misapplication of public funds on the theory that the taxpayers are the equitable owners of public funds and that their liability to replenish the funds exhausted by the misapplication entitle them to relief against such misapplication.” Appellants’ contention that since appellees had a right to appeal to the Circuit Court which provided them an adequate remedy at law, the Chancery Court has no jurisdiction can not be sustained. Such an argument was presented and rejected in the Farrell case, supra. Equity jurisdiction may also be invoked to avoid a multiplicity of suits which would otherwise result. In the case under consideration it is not denied that several payments of the nature here complained of have been made over a period of years not only in Ashley County but in other counties, and the complaint alleges that many more such efforts will be attempted in the future. Thus it is seen that jurisdiction in this case, as it relates to injunctive relief, may be open to doubt, but we do not believe it is necessary to resolve that exact issue here. The question of whether the several counties can expend public funds to support the Association is the prime issue. It is a matter that affects the general public and one that should be resolved for future guidance of all concerned. Therefore we feel justified in treating appellees’ petition (insofar as it relates to injunctive relief) as one for a declaratory judgment. We did this, and for much the same reason, in the case of Culp v. Scurlock, Commr. of Revenues, 225 Ark. 749, 284 S. W. 2d 851. It was there said: ‘ ‘ It is suggested by the appellee’s pleadings and brief that the issuance of a writ of mandamus would not terminate the dispute, since the form of retail permit used by the revenue department merely authorizes the holder to sell cigarettes, without reference to the matter of taxation. Even so, the complaint may equally well be treated as one for a declaratory judgment — a remedy peculiarly appropriate to controversies between private citizens and public officials about the meaning of statutes. ’’ (Citing authorities) It was there also said: “Since the effect of a declaratory judgment in this case will be to terminate an actual controversy in a matter of public interest, it is manifestly desirable that the case be decided on its merits. ’ ’ We will proceed, therefore, to examine the other points relied on by appellants. (b) Objection to Judgment. It is pointed out by appellants that this action was brought in Ashley County against the County Judge, who of course was a resident of that county, but that the other defendants were nonresidents of the county. It is also stated that no judgment was rendered against Judge Higginbotham. Appellants’ Objection to Judgment was filed under Ark. Stats. § 27-615, which provides, generally, that there can be no judgment rendered against non-resident defendants if none is rendered against the resident defendant. We cannot sustain this contention. The statute referred to above states that “the person should not be entitled to judgment against any of them (defendants) on the service of summons in another county court . . .” (Emphasis supplied.) In the case under consideration the “other” defendants were not served with a summons but voluntarily came into court and filed a demurrer, an answer and a motion. Under these circumstances the appellants are not entitled to the protection of the statute. In the case of Federal Land Bank of St. Louis v. Gladish, 176 Ark. 267, 2 S. W. 2d 696, the court said: “A court acquires jurisdiction over the person of a plaintiff whenever the plaintiff appears and invokes the power or action of the court in any manner, and when the defendant voluntarily appears in any case and, without objection, proceeds, the court thereby acquires jurisdiction over his person, whether any summons was issued or served or not.” It is well established by the decisions of this court that although the parties to a suit cannot by agreement confer jurisdiction of the subject matter upon the court, they can by agreement waive improper venne. In the case of Arkansas State Racing Commission v. Southland Racing Corporation, 226 Ark. 995, 295 S. W. 2d 617, this court recognized “the settled rule that an objection to venue is waived by a defendant who enters his appearance by the filing of a demurrer . . .” Again the court in that case said: “The statute providing that suits against State officers and boards must be brought in Pulaski county relates only to venue, not jurisdiction, and falls within the general rule that the issue of improper venue may be waived.” (c) Was the Claim Legal. The important question involved in this litigation concerns the legality of the claims filed by the Association for payment by Ashley County. Appellant makes the assertion that said claims were valid but cites no authorities and makes no extended argument to support that assertion. In this connection appellant relies principally on the proposition that Ashley County has received substantial benefits from the activities of the Association and that, therefore, said claims should be sustained upon a quantum meruit basis. This argument could apply only to payments already made but has no application to future claims of like nature. It is noted here (and will be referred to later) that appellees’ complaint covers two separate and distinct matters. One, it seeks to recover payments already made; and, two, that other claims will be filed and paid which should be enjoined. Our own research, assisted by the briefs, reveals no constitutional or other legal ground for sustaining claims of the nature here involved. In the case of Allen v. Barnett, 186 Ark. 494, 54 S. W. 2d 399, this court said: Here it is not contended that the Constitution or any statute gives the county court specific authority to pay dues to the Association. The only question then is: Is such authority implied? We think the answer must be in the negative. Former decisions of this court support this view. In Pressley v. Deal, County Judge, 192 Ark. 217, 90 S. W. 2d 757, the quorum court of Cleburne County appropriated $300 to pay the county judge’s expenses. The claim was filed and allowed by the county judge. A citizen and taxpayer intervened and appealed to the Circuit Court where it was also allowed. On appeal this court reversed the County Court on the ground that there was no statute authorizing such claim. Likewise in Johnson v. Donharn, 191 Ark. 192, 84 S. W. 2d 374, we held that there was no authority in the law for the county court to purchase a law library for the use of the prosecuting attorney. ‘ ‘ The county court is a creature of the Constitution, and it is not to be doubted that it has only such power as is expressly granted by the Constitution and statutes in aid thereof, or which are necessarily implied from the authority conferred.” In the Pressley case, supra, this court, in construing subdivision No. 7 of Section 1982 of Crawford & Moses’ Digest (the same as Ark. Stats. § 17-409), said: “It will be noticed that the other expenses mentioned for which an appropriation may be made must be such ‘as are allowed by the laws of this State.’ ” The legislature has passed numerous statutes giving counties the authority to expend money for a variety of purposes, such as: To purchase a flag pole (Ark.- Stats. § 17-501); to publish reports of county officers (Ark. Stats. § 23-408); for a county planning board (Ark. Stats. § 17-1101); to pay county defense attorneys (Ark. Stats. § 43-2415) and to pay Municipal Court expenses (Ark. Stats. § 22-720). In none of these and many other instances was it considered that the expenditures were “necessarily implied.” In like manner we are unwilling to say now that the expense of financing a County Judges Association is a necessarily implied obligation of the counties — in this instance, of Ashley County. It is easy to see how it could lead to extreme abuse of the use of county funds to hold otherwise. We agree with appellant that the Chancery Court had no jurisdiction to order repayment of claims already allowed. In the absence of fraud (and we think no fraud was shown here) the remedy was by appeal to the Circuit Court. See: Art. 7 § 33 Constitution, Ark. Stats. § 27-2001, and Jones v. Capers, 231 Ark. 870, 333 S. W. 2d 242. Since, as before stated, we treat the petition as one for a declaratory judgment, and in view of what we have already said, it was not appropriate for the Chancellor to enjoin the Association from filing claims and the Judge from allowing the same. These are matters involving judicial procedure and should be decided on the peculiar facts of each case. The trial court did have authority to enter a declaratory decree, and it should have done so, in accordance with this opinion, thereby setting at rest the present controversy. Therefore the case is remanded for the entry of such a declaratory decree. Modified and remanded with directions. Johnson, J., not participating. Harris, C. J., and MoFaddin, J., dissent.	[ 84, -20, -8, 124, 8, -63, 58, -118, 82, -125, -31, 83, 107, 69, 4, 115, -29, 61, 113, 105, -58, -78, 23, 99, -30, -13, -23, -59, -79, 77, -28, -43, 88, 33, -54, -59, 70, 38, -83, 88, 78, 2, 27, 69, 121, 77, 48, -91, 20, 75, 117, -98, -6, 46, 52, 67, 109, 44, 89, -81, 80, -77, -114, 13, -3, 3, -95, 53, -101, 7, -24, 46, -104, 49, -128, -8, 114, -90, 6, 116, 75, -103, 9, 50, 98, 1, -92, -57, -72, -120, 6, -65, -67, -90, -46, 105, 107, 9, -66, 21, 126, 16, -114, 126, -12, -43, 88, 108, -93, -50, -44, -79, -114, -92, -100, 3, -21, -125, 16, 119, -51, -14, 93, 70, 59, 59, 75, -78 ]
Ed. F. McFaddin, Associate Justice. Cooper (appellee) was injured in a traffic mishap while riding in Cousins’ (appellant’s) car. Cooper sued Cousins for damages, and recovered judgment; and this appeal ensued. Appellant urges only one point: that he was entitled to an instructed verdict in his favor. All other questions are waived. Cousins claims that he was entitled to an instructed verdict because of: (a) the Arkansas Guest Statutes, which are Act No. 61 of 1935 and Act No. 179 of 1935 (§§ 75-913 and 75-915 Ark. Stats.); or (b) assumption of risk by Cooper as under our holding in Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379. In testing a case on the claim for an instructed verdict, the evidence must be given its strongest probative force in favor of the side against whom the instructed verdict is asked. Barrentime v. Henry Wrape Co., 120 Ark. 206, 179 S. W. 328; St. L. S. W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. With this rule in mind, we state the uncontradicted facts. Cooper, aged 22, and Cousins, aged 16, drove from Cleburne County into White County, obtained whiskey, drank some, and started back to the point of origin, which was the settlement of Concord in Cleburne County. Enroute home they chanced to overtake, on Ramsey Mountain outside of Batesville, Samuel Lambert, aged 21, who was driving his car. The three stopped, each had a drink of liquor; and Lambert, going toward Concord, departed in his ear. Cousins, driving his car, with Cooper seated therein, followed Lambert for several miles. Finally, Cousins undertook to pass Lambert, but just at that time Lambert was overtaking and passing a car driven by Baker. In attempting to pass Lambert, Cousins lost control of his car and it was overturned, and Cooper was injured. Originally Cooper sued Lambert for damages and later added Cousins as an addi tional defendant. Lambert was exonerated by the jury, Cousins held liable. Cousins is faced with difficult problems of evidence. In the traffic mishap Cooper suffered several injuries. He was unconscious for a number of days, and suffered from retrograde amnesia, so that he remembered nothing of being with Cousins, or anything else connected with the entire mishap. Cooper could not testify as to the relationship or status of the parties and the pleadings contained a denial. Since Cousins is one of the parties in the litigation, his testimony cannot be regarded as undisputed in testing its legal sufficiency. In Metcalf v. Jelks, 177 Ark. 1023, 8 S. W. 2d 462, we said: “Another rule established by this court is that the testimony of a party to an action, who is interested in the result, will not be regarded as undisputed in determining the legal sufficiency of the evidence. K.C.S.R. Co. v. Cockrell, 169 Ark. 698, 277 S. W. 7; Gish v. Scantland, 151 Ark. 594, 237 S. W. 98.” As to whether Cooper was a guest or a passenger: we have no undisputed evidence on that issue. As to whether Cousins was guilty of willful and wanton negligence even if Cooper was a guest: there was evidence to show that Cousins was traveling between 80 and 90 miles an hour when he tried to pass Lambert, and also that there was fog which, to some extent, might have obstructed the vision. So without detailing the other evidence, we conclude that there was sufficient evidence to take the question of willful and wanton negligence to the jury, even if Cooper had been a guest, which is itself not undisputed in this case. The next point is whether Cooper, if a guest, was guilty of assumption of risk as a matter of law, within the rule of Bugh v. Webb, 231 Ark. 27, 328 S. W. 2d 379. Cousins argues that there was a joint enterprise on a drinking expedition and that Cooper assumed the risk. (See annotation, in 15 A. L. R. 2d 1165). "Whether there was a joint enterprise is not undisputed. Assumption of risk is generally a question of fact for the jury unless the facts are undisputed and present a situation so plain that the minds of intelligent men could not draw different conclusions to the effect thereof. St. L. I. M. & S. Ry. Co. v. Hawkins, 88 Ark. 548, 115 S. W. 175. It is only in the rarest of cases, like Bugh v. Webb, supra, where the essential facts were undisputed, that the assumption of risk appears as a matter of law. With Cooper suffering from retrograde amnesia and unable to affirm or deny any of the facts, and with Cousins’ testimony disputed as a matter of law, it brings into effect the well established rule that assumption of risk is a question of fact. Without reviewing our numerous cases on the Gruest Statutes, we conclude that under the peculiar situation here existing Cousins was not entitled to an instructed verdict; and that is the only question presented. Affirmed. Maloy’s Medical Dictionary for Lawyers defines retrograde amnesia as, “a form which prevents the patient from recalling memories which have been acquired previously, resulting in loss of memory for events that occurred before the onset of amnesia.”	[ 114, -24, -40, 62, 25, 64, 42, -110, 0, -57, 112, -45, -85, 73, 21, 45, -29, -3, 85, 97, -43, -81, 23, 81, -46, -13, 123, 69, -73, 73, 108, -10, 77, 96, -118, -47, -26, 72, -123, 94, -58, -114, -70, 108, 24, -102, 48, 110, 6, 15, 101, -97, -62, 46, 27, -49, 109, 12, 75, -68, -47, -80, -40, 5, 127, 4, -79, 36, -101, 5, 122, 8, -100, 49, 32, -8, 115, -90, -126, -44, 105, -103, 12, 102, 119, 32, 13, -57, -3, -120, 46, 118, 29, -121, -34, 41, 73, 79, -73, -33, 122, 20, 14, -8, -7, 21, 93, 124, 35, -50, 20, -95, -19, 62, -36, 24, -21, -115, 48, 117, -50, -14, 93, 68, 19, -101, -109, -74 ]
J. Seaborn Holt, Associate Justice. Tbe appellants, Jesse Baymond Perry and Jobn Taylor Coggins, were charged with the crime of unlawfully and feloniously injuring property with dynamite in violation of Arkansas Statutes (1947) § 41-4237. Separate trials were held for each of the named defendants and a jury returned a verdict of guilty against each. Punishment for Perry was assessed at three years in the State Penitentiary. Punishment for Coggins was assessed at three years in the State Penitentiary and a $500.00 fine levied. A synopsis of the material facts shows that the appellants were part of the “confidential squad” of an organization known as the Ku Klux Klan who planned and carried out acts of violence directed against the Little Bock Public School Board and certain city officials of the City of Little Bock. The violence was designed to harass the School Board and city officials for their role in the integration of Negro pupils into the Little Bock school system. On the afternoon of September 6, 1959, Perry and Coggins, in the company of another person, drove to the places that had been selected as targets for bombing in order to acquaint themselves with the nature and location of the targets. On the night of September 7, 1959, the appellants proceeded to carryout the plan of dynamiting the school board offices at Eighth and Louisiana Streets, Mayor Werner Knoop’s office on Gaines Street, and the bombing of Little Rock Fire Chief Gann Nalley’s station wagon. Perry and Coggins were arrested on September 10, 1959, and charged the following day with willfully and feloniously destroying property with dynamite. Although the appellants assigned numerous alleged errors in the trial court proceedings, they argue but three on this appeal. (I) That the trial court erred in refusing to grant a change of venue, (II) that the trial court erred in refusing to quash the jury panel, and (III) that the trial court erred in permitting statements of other offenses with which the defendant, Jesse Raymond Perry, was charged to be admitted in evidence. I It is first contended that the trial court erred in refusing to grant a change of venue to the defendants because widespread coverage of the crime by local newspapers and other news media created a situation where public sentiment was so aroused and inflamed that it would be impossible for the defendants to obtain a fair and impartial trial in Pulaski County. A petition for change of venue was filed under Arkansas Statutes (1947) § 43-1501 and supporting affidavits were signed by thirteen persons, nine of whom testified at the hearing. The State filed counter-affidavits from twenty-seven persons and twenty-one of these testified. Unless the trial court abused its discretion in denying appellant’s motion for a change of venue, then we must affirm the court’s order. See Bailey v. State, 204 Ark. 376, 163 S. W. 2d 141, Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. In the present case, our review of the facts does not show an abuse of discretion. Numerous witnesses testified for both the defendants and the State. Their testimony was contradictory. However, in Leggett v. State, 227 Ark. 393, 299 S. W. 2d 59, this court held no abuse of discretion existed where there was presented a situation where hundreds of veniremen were searchingly examined under oath over a three-day period. Here, as in the Leggett case, supra, there is evidence that many veniremen may have reached positive conclusions as to the guilt or innocence of the defendants, but the lower court reached the conclusion after hearing all the testimony firsthand that the defendants could receive a fair trial and we cannot say under the facts of this case there was an abuse of discretion. We said in the Leggett case: “It cannot be said that the court abused its discretion in refusing to order a change of venue. What the statute requires is a showing that the minds of the inhabitants of the county are so prejudiced against the accused that a fair trial cannot be had. Arkansas Statutes (1947) § 43-1501. Formerly the court was restricted to determining the credibility of the affiants supporting the motion, but the 1936 revision of the statute permits the court to ascertain whether the allegations of prejudice are well founded. Robertson v. State, 212 Ark. 301, 206 S. W. 2d 748. Here the trial judge had listened for more than three days while hundreds of veniremen were searchingly examined under oath. In deciding whether the appellant’s two witnesses had correctly estimated the local sentiment the court was entitled to consider the views of scores of citizens already heard. Although many veniremen had reached positive conclusions from what they had read or heard, there is no indication that the news reports were biased or represented a studied effort to inflame the public. Meyer v. State, 218 Ark. 440, 236 S. W. 2d 996. Despite the defendant’s theory that it was impossible to obtain a fairminded jury within the county, the court was convinced by testimony heard at firsthand that this goal had almost been reached. In these circumstances the conclusion that the asserted prejudice did not exist lay well within the limits of the court’s discretionary authority.” II It is next contended that the trial court erred in refusing to quash the jury panel. The court appointed three jury commissioners for the September 1959 term of court. The jury commissioners selected the jury panel for the September term of court and the respective jurors were summoned to appear on the first day of the new term, September 28, 1959. On this same date the court felt that one of the Commissioners, Marion Ward, was disqualified to serve as a jury commissioner and removed him. The jury was dismissed and each was paid for one day’s jury service. A new jury commissioner, Jack Pickens, was selected by the court to replace Mr. Ward. The new commissioners selected a panel of jurors by which Perry and Coggins were ultimately tried and convicted. The appellants rely upon Arkansas Statutes (1917) § 39-222 which provides if the panel of jurors selected is set aside that the court shall order the sheriff to summon a petit jury who shall attend and perform the duties of jurymen as if they had been regularly selected. It is argued that in the present case, since the regular panel of jurors was set aside, that the sheriff should have summoned a panel of jurymen to try the defendants. We do not agree. Act 205 of Acts of 1951, compiled as Ark. Stats. 39-220.1 and 39-221.1, provides: “Deficiencies in the regular panel of the petit jury shall be filled by selecting jurors from the special panel provided for in section 3 [§ 39-220] of this act and when in the trial of any case the regular panel is exhausted the court shall direct the summoning of a sufficient number of jurors from the special panel to complete a jury for the trial of said cause. In no event, except by consent of the parties, shall bystanders be summoned. “In the event it becomes evident to the court that the special panel should be supplemented with additional names of petit jurors the court may recall the jury commissioners which selected such panel for the purpose of supplementing said special panel with such number of petit jurors as the court deems necessary. In the event of disqualification or unavailability of one or more of such jury commissioners the court may appoint one or more jury commissioners in lieu thereof.” In the present case both the regular and the special panels of petit jurors were quashed, therefore it was necessary for the court to recall the jury commissioners to supplement the panels selected. It will be noted that this section of the statute, § 39-221.1, provides that the court may appoint other jury commissioners if one or more of the jury commissioners is disqualified. This was done in the present case. We think that the court followed the proper procedure in the present case and no error was committed as urged by the appellants. The appellants also argue that the jury panel should have been quashed because two of the jury commissioners, Jack Pickens and Milton Anderson, were members of business firms which had subscribed to a reward fund sponsored by the Little Eock Chamber of Commerce to be paid for information leading to the arrest and conviction of individuals responsible for the aforementioned crimes. We think this is without merit. In Arnold v. State, 148 Tex. Cr. R. 310, 186 S. W. 2d 995, 158 A.L.R. 1356, the defendants were indicted by a grand jury for cattle thefts and convicted by a petit jury. Both the grand jury and the petit jury contained persons who were members of an association whose purpose was to help investigate and prosecute cattle thefts. The Court of Criminal Appeals of Texas held that such members were not disqualified. And in Corley v. State, 162 Ark. 178, 257 S. W. 750, the citizens of Newport had contributed money to promote a law and order league, and several of the veniremen had contributed money to this association. These veniremen testified that their contributions had been made for the purpose of suppressing lawlessness generally, and no juror held competent was shown to have made a contribution for the purpose of prosecuting the appellant personally. The court in commenting upon this noted: ‘ ‘ The veniremen were not disqualified by this bias. The rule is that a juror is not disqualified from trying a person accused of a particular crime because he has a prejudice against the crime charged, if such prejudice against a particular crime would not prevent the juror from impartially considering the question of the guilt of the accused.” "While the above cases deal with either grand or petit jurymen we can see no reason to apply a different rule of disqualification for jury commissioners who are even further removed from the case than a petit juror. The bias, if any, of jury commissioners, Pickens and Anderson, was not toward the particular defendants in this case, but toward the crime committed. It was their desire to see the offenders punished, whoever they might be. It is certainly no disqualification that a jury commissioner or juror be prejudiced against lawlessness. “. . . (G-)ood citizenship implies a respect for and obedience to all laws, so long as they are laws, and a willingness and desire to see them effectively administered.” Remer v. State, 3 Okla. Crim. 706, 109 P. 247. in Finally the appellant, Perry, contends that the court erred in allowing the prosecution to offer proof of an offense in addition to the one for which he was being tried. The record shows that Perry and the other members of the confidential squad met on several occasions to plan the dynamiting of three different places. All three bombings were part of a single scheme and were carried out in rapid succession on the same night. In the case at bar Perry was being tried on the charge of dynamiting the School Board office. The court allowed the prosecution to introduce proof of the entire plan and its execution, and this evidence showed that Perry was also implicated in the bombing of Nalley’s car. The jury was instructed that the proof concerning the other offense was not to be considered with reference to the defendant’s guilt of the charge on trial. The court’s ruling was correct. “If several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense which is itself a detail of the whole criminal scheme.” Underhill’s Criminal Evidence (5th Ed.), § 207. The principle has often been recognized by this court. In the early case of Baker v. State, 4 Ark. 56, we stated the rule as follows: “Generally speaking, it is not competent for a prosecutor to prove a man guilty of one felony, by proving him guilty of another; but where several felonies are connected together, and form part of one entire transaction, then the one is evidence to prove the character of the other. . . . All the authorities concur, that the intention and design of the party are best explained by a complete view of every part of his conduct at the time, and not merely from the proof of a single and isolated act or declaration ; and it may so happen, that, from the nature of the offense charged, it is impossible to confine the evidence to proof of a single transaction.” Again, in Banks v. State, 187 Ark. 962, 63 S. W. 2d 518, we said: “Moreover, the testimony of Mrs. May was competent for another reason, that is to say, if several crimes are intermixed, or blended with one another, or connected so that they form an indivisible criminal transaction, and full proof by testimony, whether direct or circumstantial, of any one of them cannot be given without showing the others, evidence of any or all of them is admissible against a defendant on trial for any offense, which is itself a detail of the whole criminal scheme. Thus, where two or more persons are assaulted at or about the same time and place, it will be permitted to prove all the assaults on the trial of one indictment for any one of them. For the reason that all the assaults are merely parts of one transaction and to prove one necessitates proof of all of them.” Other cases to the same effect include Johnson v. State, 152 Ark. 218, 238 S. W. 23, and Mayfield v. State, 160 Ark. 474, 254 S. W. 841. We have examined the other numerous assignments of error hut find no error as alleged. The judgment is affirmed in both cases. Robinson, J., not participating. Johnson, J., concurring.	[ 112, -22, -31, 62, 25, 65, 24, -70, 19, -93, -12, 82, -87, -51, 13, 101, 59, 121, 84, 121, -123, -105, 87, 96, -78, -109, 95, -59, 48, -51, -4, -41, 88, 112, -54, 93, 6, 74, -25, -108, -114, 0, 105, -48, 83, 16, 40, 122, 58, 7, 33, -114, -29, 46, 20, -54, 73, 44, 72, -82, 81, 51, -104, 87, -19, 6, -95, -90, -104, 7, 112, 44, -104, 53, 1, -8, 115, 32, -126, 93, 77, -119, -116, -32, 98, 72, -123, -29, -88, 9, 62, 63, -119, -89, 48, 65, 3, 76, -98, -107, 38, 21, 59, -2, 101, 5, 89, 108, -83, -57, -12, -77, 47, 41, -106, 19, -29, 37, 52, 84, -51, -30, 92, 5, 115, -37, 14, -12 ]
Sam Robinson, Associate Justice. Appellant, Merrill B. Taylor, was the owner of a house in Little Rock on which he purchased from appellee, The Aetna Casualty and Surety Company, a fire insurance policy in the face amount of $8,000. While the policy was in force, on March 28, 1959, a fire occurred which appellant contends resulted in a total loss, Appellee, however, tendered as settlement an amount less than the face amount of the policy. Appellant filed suit, alleging that under the provisions of the policy he had suffered a total loss and further alleging that the City of Little Rock had made a determination under the provisions of Ordinance 10907 that the house should be razed and had given appellant, by proper notice, sixty days within which to do so. Trial resulted in a jury verdict for appellant in the amount of $5,000. During the course of the trial appellant offered in evidence the notice from the City directing him to raze the building and a certified copy of a resolution passed by the City Board of Directors finding that the building was so heavily damaged by fire that it was uninhabitable and should be razed for the health and safety of the citizens of Little Rock. Appellant also offered to testify that he had complied with the resolution, but the court refused to allow him to do so, and further refused to admit in evidence the notice and the copy of the resolution. The sole question involved in this appeal is whether the court’s refusal to admit this evidence and to give its instruction based thereon was proper. Although we find no case where this Court has been called on to so state, the general rule governing cases involving the question of total or partial loss wherein condemnation is concerned is set out in 45 C. J. 8., % 913,1008, as follows: ‘ ‘ The rule ... is that if, by reason of public regulations rebuilding is prohibited, the loss is total, although some portion of the building remains which might otherwise have been available in rebuilding; also, if the insured building is so injured by the fire as to be unsafe and is condemned by the municipal authorities the loss is total. It has been held that such an order of condemnation is not conclusive on either insurer or insured, and that, if the condemnation was caused by conditions having no connection with the fire, insurer is liable only for the part destroyed by the fire, although it has also been held that a fire, which, combined with antecedent defects, renders a building incapable of repair under building ordinances creates a total loss.” Both appellant and appellee presented other evidence to support their respective contentions of total and partial loss. "We see no reason why the evidence drawn in question should not also be considered by the jury in deciding if the loss was total. We have examined a number of cases where the facts are almost identical with those here and in each case similar evidence was admitted and allowed to be considered by the jury. Feinbloom v. Camden Fire Insurance Assn., 54 N. J. Super. 541, 149 A. 2d 616; Firemen’s Ins. Co. v. Houle, 96 N. H. 30, 69 A. 2d 696, 13 A.L.R. 2d 612; Fidelity & Guaranty Ins. Corp v. Mondzelewski, 49 Del. 306, 115 A. 2d 697; A. H. Jacobson Co. v. Commercial Union Assur. Co., 83 F. Supp. 674; Scanlan v. Home Ins. Co., Tex. Civ. App., 79 S. W. 2d 186; Security Ins. Co. v. Rosenberg, 227 Ky. 314, 12 S. W. 2d 688. Reversed and remanded.	[ -12, 108, -12, 60, 88, 32, 58, -85, 83, -119, -89, -47, -23, -59, 16, 47, -74, 57, 117, 96, -105, -89, 7, 50, -46, -97, 113, -59, -71, 93, -28, -97, 76, 32, -54, -43, -90, -56, -59, 88, 78, 13, 10, -51, -39, 82, 48, -49, 114, 7, 85, -100, -13, -83, 25, -53, 77, 44, 105, -79, 80, -71, -120, 15, 127, -127, -95, 117, -102, 7, 112, 40, -112, 49, 0, -88, 115, 38, -122, 36, 101, -102, 8, 100, 103, 0, 13, -25, -24, -128, 38, 110, 15, -89, -106, 104, 43, 73, -65, -107, 101, 0, 7, 126, -3, -107, 93, 44, 5, -114, -108, -91, -85, 104, -99, 3, -17, 19, 38, 116, -49, -96, 92, 70, 55, -101, 30, -52 ]
George Rose Smith, J. This is an action by the appellees, who purchased a ten-acre tract of land from the appellant, to recover the value of a set of platform scales that were on the land at the time of the conveyance. The appellees insist that the scales were fixtures passing with the land, while the appellant contends that they were personal property that might later be removed by the grantor. The trial court, sitting without a jury, found the scales to have been part of the realty and therefore awarded the appellees a judgment for $500 as damages for the appellant’s wrongful removal of the property. The court was right in holding the device to be part of the land. The scales were used for the weighing of trucks and consisted principally of a platform thirty-four feet long and ten feet wide. This platform was suspended over an excavation of commensurate size, thirty-eight inches deep and lined with concrete. There was also a scale house containing the indicating mechan ism. The removal of the platform left the land burdened with the large, useless, concrete-lined excavation. In Waldo Fertilizer Works v. Dickens, 206 Ark. 747, 177 S. W. 2d 398, upon substantially identical facts we held that the scales were fixtures that passed with a conveyance of the land. That case is controlling here. The appellant is correct, however, in his contention that the circuit court erred in permitting the introduction of incompetent evidence of the value of the scales. Over objection the court allowed Bryant to testify that two other men, Kendrick and Tyson, had tried to buy the scales from him, each offering $500. The court must have relied upon this testimony, as there is very little other proof of value, and indeed no other reference to the exact figure adopted by the court. Isolated offers for the purchase of property are not ordinarily competent evidence of its value. Jonesboro, L. C. & E. R.R. Co. v. Ashabranner, 117 Ark. 317, 174 S. W. 548; Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593. Orgel, in discussing the rule, points out that such offers are mere hearsay declarations of third parties, not under oath and not subject to cross-examination. Orgel, Valuation Under Eminent Domain (2d Ed.), § 148. The appellees suggest that their proof did not involve “isolated” offers, since there was evidence of two offers rather than only one. This fact does not meet the objection. As Wigmore indicates, a merchant or a stockbroker who repeatedly receives and either accepts or rejects offers in the regular course of business may thereby arrive at an admissible opinion of value. Wigmore, Evidence (3d Ed.), § 719. The testimony of such a witness represents an informed independent judgment and not the mere repetition of hearsay. In the case at bar, however, Bryant’s testimony falls in the latter category and should have been excluded. The appellant also complains that the appellees failed to show that he is legally responsible for the removal of the scales, which were taken away by third persons not parties to this suit. We do not' find it necessary to reach this question. Owing to the error indicated the case must be retried, and upon a new trial the plaintiffs may offer additional evidence tending to fix responsibility upon the appellant. When reversible error appears in a law case it is our practice to remand the cause for a new trial unless it appears that the ease has been fully developed and should be dismissed. Fidelity Mut. Life Ins. Co. v. Beck, 84 Ark. 57, 104 S. W. 533, 1102; Ark. Nat. Gas Co. v. Gallagher, 111 Ark. 247, 163 S. W. 791. This cause will therefore be remanded for a new trial. Reversed. Ward, J., dissents.	[ -9, 98, -96, 92, 26, -16, 10, -70, 73, 97, 39, 83, -19, -62, 25, 43, -26, 61, 117, -21, -60, -77, 67, -29, -48, -13, -7, -43, -67, 76, 102, -43, 76, 52, -62, 29, 99, -30, -17, -40, -50, 0, 41, 77, -3, 32, 52, -85, 4, 71, 81, -113, -13, 44, 25, -53, 73, 44, 107, -71, 65, -7, -86, 5, 95, 5, 48, 102, -112, 3, -22, 10, -104, 61, 0, -24, 115, -74, 2, 100, 13, -101, 8, -24, 103, 17, 29, -25, 120, -120, 47, -74, -97, -90, -106, 88, 83, -27, -66, -100, 108, 18, 12, -2, -9, 28, 29, 109, 7, -49, -42, -109, -113, 2, -118, 3, -17, -125, 16, 96, -49, -94, 94, 103, 124, -101, -114, -19 ]
George Rose Smith, J. This is an action by the appellant, a school teacher, to recover her salary of $1,811.70 for the 1955-1956 school year. Mrs. Newton had been employed by the appellee district during the preceding year, and her contract contained the statutory provision that it would be renewed for the succeeding year “unless within ten days after the date of the termination of said school term, the teacher shall be notified by the school board in writing delivered in person or mailed to him or her at last and usual known address by registered mail that such contract will not be renewed.” Ark. Stats. 1947, § 80-1304 (b). It is conceded that Mrs. Newton was not given the required written notice, but the circuit court, sitting without a jury, found that she was given oral notice and that the school board was justified in assuming that she had waived the requirement of written notice. The issue on appeal is the sufficiency of the evidence to support the court’s finding. The principal witnesses were the plaintiff and Walter Eowland, the principal at the school in question. Mrs. Newton testified that during her last term as a teacher she was not given even an oral notice that her contract would not be renewed. She says that she did not learn of her discharge until she reported for work on the opening day of the fall term. She was then told that another teacher had been employed in her place and that she would not be needed. Mrs. Newton was unable to find other employment and lost a year’s work. Eowland, the principal, was not aware of the requirement that written notice be given. He testified that soon after the school election in March he was instructed by W. J. Jones, the secretary of the school board, to tell Mrs. Newton that she had not been retained. “I went to Mrs. Newton’s room and talked to her and told her I wanted to tell her that she had had trouble in the election of the board and that since I had nothing to do with the hiring or discharging of teachers if she wanted to discuss it with anybody it would be necessary for her to talk to the board.” Later on the following appears: “The Court: And will you state again for the Court’s benefit the notice that you gave her? “The Witness: I didn’t say in so many words — I wanted to make it as easy as possible — I told Mrs. Newton that she had had trouble in the school election and advised her to talk to Mr. Jones about it if she wanted to clear it up and that any discussion would be better to be had with him.” Rowland also testified that on the last day of the term in May he was making np a schedule of teachers for the fall. This schedule contained two blanks, one for Mrs. Newton’s name and the other for Mrs. Stanton, who was resigning. Mrs. Stanton remarked, according to Rowland, “that it made her feel bad to see the schedule without her name on it, and Mrs. Newton said, ‘Well, what do you think about me?’ ” The schedule was not put up for the teachers to see. During the summer Rowland talked to Mrs. Newton by telephone. In that conversation ‘ ‘ she stated that she wasn’t going to be treated that way . . . and I told her that I could not tell her anything that had any bearing on the matter and that she would have to talk to the' Board about it.” Rowland denied that Mrs. Newton appeared for work on the first day of the fall term, but we think this to be immaterial, as he stated that she would not have been employed even if she had been present. We are unable to find in the record substantial evidence to support the finding that Mrs. Newton waived the required written notice. In the absence of a waiver she is entitled to recover. Wabbaseka Sch. Dist. No. 7 v. Johnson, 225 Ark. 982, 286 S. W. 2d 841. A waiver was found to have occurred in Sirmon v. Roberts, 209 Ark. 586, 191 S. W. 2d 824, but in that case the teacher admitted that she had told a school board member that if “the board didn’t want me, I didn’t want the place.” The statutory requirement of written notice is an important safeguard to the teacher’s standing and security. As we said in the Sirmon ease: ‘ ‘ One obvious purpose of the statute requiring written notice was elimination of uncertainty and possible controversy regarding the future status of a teacher and a school.” In the case at bar if the school board was misled into thinking that Mrs. Newton had been discharged it was doubtless because the board assumed that Rowland had carried out Jones’ instruction to inform Mrs. Newton that she had not been retained. But Rowland in substance admits that he did not so inform this teacher; he merely told her that she had had trouble in the school election and should see Jones if she wanted to clear the matter up. There is no indication that Mrs. Newton discussed the issue with Jones, who appears to have died before the trial. The proof indicates at most that Mrs. Newton was conscious of some uncertainty about her status in the coming year, but she was under no affirmative duty of bringing the matter to an issue. To the contrary, the statutory and contractual obligation of giving notice rested upon the school board. There is no evidence to show either that Mrs. Newton voluntarily relinquished her position or that she did or said anything to beguile the board into thinking that she regarded her contract as having been terminated. If the district desired to mitigate the plaintiff’s damages it had the burden of proving that she could have obtained other employment. School Dist. No. 65 of Randolph County v. Wright, 184 Ark. 405, 42 S. W. 2d 555. As no such proof was offered the plaintiff was entitled to judgment for the full amount of her salary, and the cause will be remanded for the entry of such a judgment. Reversed. Harris, C. J., dissents.	[ 18, -22, -28, 13, -102, -31, 58, -110, 113, -89, 39, 83, -19, -44, 20, 93, -61, 43, 81, 104, -42, -77, 98, 70, -46, -9, -37, -51, -69, 94, -76, -43, 76, 48, -54, -43, -26, -62, -55, 88, -50, 7, -85, -59, 88, -32, 48, 33, 112, 15, 0, -66, -13, -82, 24, 67, -23, 44, 121, -95, 104, -15, -102, -121, 111, 22, -109, 21, -98, -121, 88, 46, -104, 49, 8, -8, 50, -90, -54, 80, 45, -119, 40, 96, 98, 19, -67, -43, -104, -104, 78, -10, 13, -26, -46, 104, 98, 9, -98, -99, 53, 20, 5, 116, 98, -59, 26, 44, 10, -117, -12, -79, 15, -20, -114, 15, -25, 50, 16, 81, -55, -66, 93, 70, 115, 27, 70, -84 ]
George Rose Smith, J. The appellee, as trustee under the will of W. T. Kitchen, filed an annual accounting in the chancery court and asked that it be approved. This request was resisted by the appellant, a life beneficiary of the trust, who contended that the trustee had erred in charging certain mortgage payments and life insurance premiums against income rather than against principal. This appeal is from a decree holding that the payments were properly chargeable to income. That is the only question before us. The testator Kitchen, at his death in 1957, was the owner of all the capital stock (except two qualifying shares) in a corporation called Kitchen Farms Company. The principal assets of the corporation consisted of about 2,500 acres of farm land which the corporation had mortgaged to a life insurance company to secure a debt of $200,000. By the terms of the mortgage the corporation was required to pay the interest upon the debt and to pay $5,000 upon the principal each year. Kitchen’s will bequeathed all his stock in the corporation to the appellee, with directions that the stock be divided into three shares and be held upon three separate trusts. We are here concerned with the largest of the three trusts, as to which the will provided: “Share No. Three, consisting of fifty (50%) per cent of my stock or other interests in the Kitchen Farms Company shall be assigned to my Trustee to hold, in trust, on the following terms: The Trustee shall control and manage same and shall receive the income therefrom, and after paying the reasonable expenses of the trust, shall pay the income at least annually as long as she lives to Mrs. Tanna Freeman [the appellant].” Various remainders are to take effect at the death of the life tenant. Forty per cent of the corporate stock was left to the appellee upon a second trust, and the other ten per cent upon a third trust. The will also contained this provision about a policy of life insurance: “I have been paying the premiums for several years on a $20,000.00 double indemnity life insurance policy on the life of Mr. Edward Reese, the farm manager of the Kitchen Farms Company, and of which I am the beneficiary. All of my rights, title and interest in this policy, I give, devise and bequeath to the Kitchen Farms Company and express the wish that the company continue to make payments of the premiums thereon.” Kitchen’s widow elected to take against the will, and in settlement of her dower rights she received half the corporation’s farm land in fee and assumed half the mortgage debt. It was then decided that the trustee would effect certain tax savings by dissolving the Kitchen Farms Company and thereafter operating the farms without using a separate corporate entity. With the consent of all concerned the corporation was dissolved, after first conveying its remaining half of the farm lands to the trustee. In the accounting now in dispute the trustee proposes to treat as current expenses both the life insurance premium payment of $757.40 and the trustee’s $2,500 share of the annual principal payment upon the mortgage. Under this method of accounting the life beneficiaries of the three trusts will receive only the net income after the two disputed items and all other current expenses have been paid. The appellant insists that the premium and mortgage installment should be paid out of the principal of the trust. If this were a run-of-the-mill case involving nothing more than a simple allocation of current and fixed expenses the appellant’s position would be sound. As a general rule only the interest upon a mortgage debt is to be charged against the life beneficiary’s income. The corpus of the trust normally bears the burden of fixed capital charges such as principal payments upon a mortgage debt or premiums for the purchase of a life insurance policy that will eventually be paid into the corpus of the trust. Best., Trusts (2d), § 233, Comments e and f; Scott on Trusts (2d Ed.), §§ 233.2 and 233.3. This method of allocation may, however, be modified by the terms of the trust instrument. Scott, § 233.5. Upon the particular facts of this case we are convinced that Kitchen did not intend for the trustee to employ the system of allocation now urged by the appellant. Kitchen saw fit to utilize a closely held corporation as a means of operating his farms. There is no direction in the will that the corporation be dissolved, nor any especial indication that Kitchen expected a dissolution. Bather the opposite, Kitchen left the corpo rate stock itself to his trustee and expressly authorized the trustee to retain the stock. Furthermore, the stock could conveniently be divided into shares of exactly 50%, 40%, and 10%, while a similar attempt to divide the land itself might have run into difficulties. Thus it is fair to conclude that the testator contemplated the continued existence of the corporation. Hence he must have expected the life beneficiaries’ income to arise from corporate dividends. Such dividends would not have been declared until the corporation’s fixed obligations had first been paid. Fletcher on Corporations (Perm. Ed.), § 5340. If the corporation had not been dissolved the life beneficiaries would have had no claim to any corporate earnings not distributed as dividends. Best., Trusts (2d), § 236, Comment y. We have not overlooked two New York cases holding that in a somewhat similar situation the life beneficiary should not be charged with principal payments upon a mortgage. In re Adler’s Estate, 164 Misc. 544, 299 N. Y. S. 542; In re McLaughlin’s Estate, 164 Misc. 539, 299 N. Y. S. 559. But the court’s decision in those companion cases was based upon a statute which was construed to contain an absolute prohibition against paying the mortgage debt from current income. McKinney’s Consol. Laws of N. Y., Personal Property Law, § 16. Hence the settlor’s intention was immaterial, as he was powerless to direct that the mortgage be paid out of income. We have no similar statute. In the circumstances of this case we are convinced that Kitchen expected the corporation to continue in being and intended for the two charges now in controversy to be paid out of the farm profits before the declaration of dividends. There is no sound basis for holding that the testator’s intention should be defeated by a corporate dissolution that resulted only from a desire to save taxes for all concerned. Affirmed.	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Jim Johnson, Associate Justice. This is an appeal from a conviction for the violation of Liquor laws. On October 7, 1958, appellant, John Powell, was arrested for the offenses of Possession of Intoxicating Liquors over the legal limit in a dry territory, and, Possession of Intoxicating Liquors for Sale without a license, alleged to have been committed on October 4, 1958. This appellant was tried before the Municipal Court of Monticello on October 9, 1958. The appellant pleaded not guilty and upon a hearing before the Monticello Municipal Court appellant was found guilty of the offense of Possession of Intoxicating Liquors over the legal limit in a dry territory and fined $250, and was found guilty of the offense of Possession of Intoxicating Liquors for sale without a license and fined $250, or, was fined a total of $500 and costs, and was sentenced to one (1) year on the County Farm, with the sentence of imprisonment being upheld on good behavior. The appellant appealed this decision to the Circuit Court of Drew County and a trial was had before a jury on September 30, 1959. The officers who made the arrest related in their testimony that at about 1:30 p.m. on October 4,1958, the officers went to appellant’s house located on State Highway 4, east of Monticello and outside the city limits, and that on arriving at the house two of the officers met appellant coming up the path to the house from an outside privy with 4 half pints of whiskey in his pockets and hands. These 4 half pints of whiskey were taken into possession by the officers and either one or both of the officers entered appellant’s house to search for more whiskey while one of the officers out of the three officers present began to search the premises outside the house. In a dresser drawer inside the house the officers found 12 additional half pints of whiskey which with the 4 half pints taken from appellant equalled exactly one (1) gallon, the legal limit for possession in a dry territory. The officers thoroughly searched appellant’s house and premises and found one gallon of whiskey upon property belonging to the appellant. The officers then searched the Municipal Airport property belonging to the City of Monticello which is adjacent to the home of appellant and in two caches found approximately 35 or 40 half pints of whiskey of various brands on the Municipal Airport property. The record reveals that this case was first tried before a jury in the Circuit Court of Drew County on April 21, 1959. The jury after deliberating 2 hours and 35 .minutes was deadlocked 7 to 5 and a mistrial was declared. The case was tried before another jury in the Circuit Court of Drew County on September 30,1959, and tbe jury deliberated approximately 35 minutes when they were released for tbe night. The next morning the jury deliberated approximately 1 hour and returned a verdict of guilty and assessed the minimum fines of $50 for the offense of Possessing Intoxicating Liquors over the legal limit in a dry territory and of $100 for the offense of Possessing Intoxicating Liquors for Sale without a license, or a total fine of $150. This appeal followed. This being a misdemeanor case, the appellant is required to argue all the points on which he relies. All assignments not argued in his brief are waived. Fields v. State, 219 Ark. 373, 242 S. W. 2d 639. For reversal appellant relies upon and argues eight points, one of which contends that it was error for the trial court to allow the Judge of the Monticello Municipal Court to testify upon the trial in the Circuit Court since the appellant was tried by this witness in the Municipal Court and found guilty. This point gave us a great deal of concern; but the issue need not be decided as the appellant failed to properly save his exceptions. As was said by this Court in Yarbrough v. State, 206 Ark. 549, 176 S. W. 2d 702: “Appellant, in the instant case, has not been convicted of a capital offense. We are not permitted, therefore, to review alleged errors to which no exceptions have been saved.” Thus, this point not being property before the Court, we can find no error. Six of the other points were found to be without merit and will not here be discussed. Appellant earnestly contends in his remaining point that: “It was error for the trial court to allow the prosecuting attorney to attempt to impeach the credibility of the defendant by independent testimony as to matters brought out by the prosecuting attorney on his own cross examination. ’ ’ The prosecuting attorney in an effort to impeach the testimony of the defendant and to question the credibility of his testimony cross examined the defendant exten sively concerning a second conviction of the defendant for a violation of the liquor laws in 1951 and questioned the defendant on cross examination as follows: “By Mr. Linder: I want to ask you this question, Mr. Powell, I want to know if this second conviction is the time the man drove up in his car and you were sitting under a tree and he hollered, ‘Bring me some Early Times’, and you said, ‘I don’t have that I have Sunny Brook’. “A. That is not what was said. He drove in and said Doctor Pepper and I knew what he was saying. I had seen him hide it the day before and I brought it on to him about that time I saw Youngblood.” The prosecuting attorney introduced two witnesses in rebuttal, Sheriff Jack Towler and Mr. Dallas Youngblood, to contradict this testimony of the defendant brought out by the prosecuting attorney on cross examination. This Court has repeatedly held that when a witness-is cross examined on a matter collateral to the issue,, he cannot, as to his answer, be subsequently contradicted by the party asking the question. Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473 (1956); Brock v. State, 101 Ark. 147, 141 S. W. 756 (1911); Abbott v. Herron, 90 Ark. 206, 118 S. W. 708 (1909); Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405 (1908). See also: Spence v. State, 184 Ark. 139, 40 S. W. 2d 986 (1931); Terrell v. State, 176 Ark. 1206, 2 S. W. 2d 87 (1938). It was held in McAlister v. State, 99 Ark. 604, 139 S. W. 684 (1911), that while it is proper to permit a witness to be asked as to specific acts affecting his credibility, yet if such matters are collateral to the issues, he cannot, as to his answer, be subsequently contradicted by the party putting the question, and where the State, to impeach a witness asked him concerning a collateral matter, and was then permitted to contradict his answer, this constituted prejudicial error. Following this well settled rule of law, we have no choice but to find that the trial court in allowing the -testimony of Sheriff Jack Tower and Mr. Dallas Youngblood in rebuttal to be intro duced in evidence to contradict testimony brought out by the prosecuting attorney on cross examination committed reversible error. For the error indicated the judgment is reversed and the cause is remanded for a new trial.	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Ed. F. McFaddin, Associate Justice. This appeal challenges tbe judgment of the Garland Circuit Court, which ordered appellant, Joe Campbell, dismissed from the police force of the City of Hot Springs. The governing statute on civil service trials is § 19-1605.1, Ark. Stats., as amended by Act No. 326 of 1949; and one of the recent cases involving this statute is City of Little Rock v. Newcomb, 219 Ark. 74, 239 S. W. 2d 750. Because of several complaints from citizens the Civil Service Commission of the City of Hot Springs notified Joe Campbell (appellant) that he was reduced from the rank of lieutenant to the grade of patrolman. In accordance with the previously cited statute, Mr. Campbell requested and obtained a trial before the Civil Service Commission, where the City was represented by the City Attorney and Mr. Campbell was represented by his own attorney. Evidence was introduced as to a number of incidents involving Mr. Campbell, one of which will be hereinafter detailed in Topic II. At the conclusion of the hearing, the Civil Service Commission reinstated Mr. Campbell to the rank of lieutenant. The City Attorney of Hot Springs appealed to the Circuit Court to reverse the order of reinstatement made by the Commission. After Mr. Campbell’s motion to dismiss the appeal (subsequently to be discussed in Topic I, infra) had been overruled, the Circuit Court tried the case de novo on the transcript of evidence heard before the Civil Service Commission, together with additional evidence ore tenus (§ 19-1605.1, Ark. Stats.); and entered a judgment discharging Mr. Campbell from the police force of the City of Hot Springs. To reverse that judgment, Mr. Campbell prosecutes this appeal to this Court and urges the points herein treated. I. The Appeal From The Civil Service Commission To The Circuit Court. In the Circuit Court Mr. Campbell filed an unverified motion to dismiss the appeal from the Civil Service Commission order, and claimed that the City Attorney did not have the right and power to prosecute such an appeal. Mr. Campbell admitted that Mr. Whittington was the City Attorney and had given due and timely notice of appeal, and that the said Act No. 326 of 1949 specifically provided for a right of appeal by the City; but Mr. Campbell insisted that it was necessary for the City Council of Hot Springs to specifically authorize the City Attorney to appeal the case to the Circuit Court, and that no such specific action of the Council had been presented by Mr. Whittington. The Circuit Court ruled that the case was properly appealed from the Commission to the Circuit Court; and in the state of the record before us, the Circuit Court was correct. It is true that § 19-1015 Ark. Stats, provides for the election of a City Attorney but does not prescribe his duties in detail: rather, leaving it to the City Council to fix such duties. No ordinance of the City of Hot Springs was introduced in evidence in this case fixing such duties of the City Attorney; and we do not take judicial notice of municipal ordinances. Lowe v. Ivy, 204 Ark. 623, 164 S. W. 2d 429; and City of Little Rock v. Griffin, 213 Ark. 465, 210 S. W. 2d 915, and cases there cited. So we have no evidence that the City Attorney of Hot Springs did, or did not, have the right and power under the municipal ordinances to appeal this case from the Commission to the Circuit Court. Mr. Whittington, however, as the admitted City Attorney of Hot Springs, represented to the Circuit Court that he had the power to appeal the case; and his representation was not denied by affidavit. The leading case on the authority of an attorney to represent a client is that of Tally v. Reynolds, 1 Ark. 99, 31 Am. Dec. 737, wherein this Court said: “. . . it is incumbent on the party undertaking to question the authority of the attorney representing his adversary, to show to the court by affidavit, facts sufficient to raise a reasonable presumption that the attorney is acting in the case without authority from the party he assumes to represent, then, and not until then, the attorney may be required to show his authority.” The above quoted language from Tally v. Reynolds is found practically verbatim in 5 Am. Jur. 308, “Attor neys at Law”, § 81. When Mr. Whittington appeared in the Circuit Court to prosecute the appeal of the City, his standing as an attorney at law, and an officer of the court, carried with it his presumed right to represent his client; and Mr. Campbell did not challenge that representation by affidavit. Therefore, Mr. Whittington’s authority was not sufficiently challenged; and the Circuit Court was correct in its ruling on this point. II. The Correctness Of The Circuit Court Judgment. Mr. Campbell vigorously insists that the Circuit Court judgment was erroneous in ordering complete dismissal from the police force; but we find such insistence to be without merit. In the case at bar, the Circuit Court proceeded in strict adherence to our case of City of Little Rock v. Newcomb, 219 Ark. 71, 239 S. W. 2d 750, wherein we said: “We conclude that the Legislature in enacting Act 326, supra, intended to provide for a de novo hearing by the circuit court on the record before the Commission and any additional competent testimony that either party might desire to introduce; and that this court should hear the matter de novo on the entire record before the circuit court, as in chancery cases.” In the hearing before the Commission there was the matter of ownership of an automobile by Mr. Campbell, which automobile — it was claimed — had been used by persons committing a robbery. Mr. Campbell’s title certificate showed some replacement of names; but Mr. Campbell claimed that he purchased the car in the regular course of business and paid for it with money he had earned while working in off-hours at the Citizens’ Club. Here is a portion of his testimony before the Commission: “Q. How much did you pay fo,r that automobile? A. $250.00. Q. How did you pay the $250.00? A. In cash. Q. Did you cash a check to get that money? A. I certainly didn’t. I don’t have a checking account. Q. Then where did you get $250.00 all of a sudden? A. I made about $500.00 at the Citizens’ Club two or three months before, and that’s the last I had from that, and I made several more dollars in tips from taking some of them home, and someone up there one night handed me a fifty dollar bill just for being nice to him, and I certainly didn’t ask him for it. I made, I guess, between 6 and $700.00 up there, and it’s turned in on my Federal income too.” The question of what kind of work Mr. Campbell was doing at the Citizens’ Club was not pursued before the Commission; but when the case reached the Circuit Court, the matter was pursued; and the following occurred in the examination of one witness: “Q. Do you know of a place called the Citizens? A. Yes, sir. Q. Can you state whether or not Lieutenant Campbell worked there at any time? A. Yes, sir. Q. When did he work there? A. Last year. Q. Can you recall the time of year? A. It was during the races. Q. What type of establishment is the Citizens? A. It is a gambling house.” Mr. Campbell’s attorney then said: “That is right, your Honor. We will stipulate it is a gambling house in Garland County. If you will recall, the testimony was about where he got some $500 with which he bought an automobile.” We thus have a police lieutenant who was regularly working on the City police force of Hot Springs, hut who, in his off time, was working in a gambling house in that City. The City police force of Hot Springs cannot condone its policemen in such violations of the law. In Rowland v. State, 213 Ark. 780, 213 S. W. 2d 370, we held that when the City Attorney failed to enforce the municipal ordinances against gambling, he was guilty of law violation. The same rule applies to a policeman who violates the gaming statutes of Arkansas found in § 41-2001 et seq. Ark. Stats. A policeman in a municipality cannot represent the City as a policeman part of the twenty-four hours, and then assist in the operation of a gambling place of business the rest of the time. We cannot sanction such a “Dr. Jekyll-Mr. Hyde” arrangement. It is beyond the power of the Chief of Police or the Police Department of Hot Springs to condone such action. In this case, Mr. Campbell openly admitted law violation ; and under the holding of Rowland v. State, supra, he should have been dismissed from the police force. That the Circuit Judge in the case at bar based his holding on this point is shown by the language of the judgment and the other order in the record: “. . . that the additional oral evidence adduced before this Court on this date is so convincing and of such a nature as to justify not only a demotion, but a complete discharge of Appellee from the Hot Springs Police Department. . . . “IT IS THE ORDER OF THIS COURT that Leonard R. Ellis, Sheriff of Garland County, and the Honorable Walter J. Hebert, Prosecuting Attorney for the 18th Judicial Circuit of Arkansas be ordered and directed to make an investigation and ascertain if gambling of any nature is being carried on at the said Citizens Club; that they and each of them take the necessary actions to abate said gambling house if same is existing, and report their findings to this Court.” The judgment of the Circuit Court ordering Mr. Campbell dismissed from the police force of the City of Hot Springs is affirmed. Campbell’s motion in the Circuit Court reads in part: “The appeal which has been filed in this case is not a proper appeal, because the power of appeals in eases of this nature is not given to City Attorneys but to the City itself. In this particular case the City Attorney was not directed to appeal this case by the City Council nor by the Civil Service Commission.” We have not overlooked § 19-912 Ark. Stats, relating to the duties of a City Attorney; but that section is from Act No. 153 of 1923, which relates only to city attorneys of cities of the second class; and we know judicially that Hot Springs is a city of the first class. City of Malvern v. Young, 205 Ark. 886, 171 S. W. 2d 470. Mr. Campbell’s answer to the Circuit Court contained this language: “. . . admits that David Whittington is the City Attorney. for the City of Hot Springs, Arkansas . . . admits that the City Attorney filed with the Chairman of the Hot Springs Civil Service Commission a notice of this appeal.”	[ 48, -24, -20, -52, 26, 65, 26, 44, 91, -77, -25, 115, -83, -118, 12, 57, -21, 93, 84, 105, -60, -74, 2, 6, 66, -45, 121, -59, -66, -50, -26, -36, 78, 56, -54, -35, 70, 72, -49, 92, -122, -127, 65, -19, 91, -64, 52, 43, 48, 31, 97, -66, -29, 46, 24, -63, 108, 36, -39, 44, 80, 123, -118, -99, -33, 4, 35, 32, -101, 3, 112, 62, 88, 49, 0, -4, 115, -90, -118, 84, 79, -103, 5, 96, 98, 3, 57, -95, -72, -119, 29, -70, -99, -90, -80, 57, 107, 64, -106, -100, 110, 20, 7, 124, 99, -59, 89, 108, 15, -50, -108, -111, 102, 33, -106, 19, -21, 67, 84, 85, -50, -94, 84, 71, 55, -37, -26, -15 ]
Ed. F. McFaddin, Associate Justice. This litigation results from dealings between the appellant McPherson and the appellee Hicks involving a rice mill and also a farm. McPherson owned a rice mill in McGreh.ee, which he had operated under the name of “McPherson Bice Milling Company.” He also owned a farm in Desha County known as the “Hally Farm.” Under date of May 1, 1956 McPherson, as lessor, and Hicks, as lessee, entered into a contract involving the rice mill. Hicks took possession of the rice mill and all contents, and operated the plant under the name of ‘ ‘ Hicks Grain Elevator and Bice Milling Company”; and in the course of the operation he incurred debts to various creditors, hereinafter called “Interveners”. In addition to leasing the rice mill Hicks subsequently leased the Hally Farm from McPherson for 1956 under an oral contract, which is also involved in this litigation. After December 31, 1956 Hicks remained in possession of the rice mill, but on July 23, 1957 McPherson filed in the Desha Circuit Court an action of unlawful detainer against Hicks to recover possession of the rice mill, the claim being that Hicks had failed and refused to pay the 1956 rent, had otherwise breached the lease, and had failed to vacate after due notice. The complaint prayed for possession and judgment for rent and damages. By specific attachment all the grain in the mill was attached. McPherson took possession of the plant and all contents; and then, on August 12, 1957, McPherson filed a second amendment to the unlawful detainer action, alleging: ‘ ‘ That during the periods of time mentioned in said Complaint, the plaintiff advanced from time to time large sums of money to defendant to be used by said defendant in the operation of said business mentioned in said complaint. That the defendant on many occasions made payments on said loans, but at this time is indebted to this plaintiff on said account for an undetermined amount of money. “That said account, along with the account mentioned in said Complaint for rents due, is involved and includes numerous charges and credits and will require an accounting between said parties to determine the ae tual amount due this plaintiff by the defendant. That said accounting should include the entire operation of said business operated as ‘Hicks Grain Elevator and Rice Milling Compan3^’ for the times mentioned in said Complaint. “This plaintiff has been unable to obtain an accurate and just accounting of said operations, or of the open account between said parties set out above, and this Court should order an accounting of said accounts.” This Amendment was accompanied by a Motion to transfer to equity on the ground that the cause, “. . . will involve a multiplicity of actions, and will also involve an accounting between the plaintiff and defendant for the operation of a large and complex business, and that said accounting will necessarily be made up of innumerable charges and credits and a Receiver will be needed to take charge of the assets of the business involved.” The entire cause was transferred to equity over Hicks’ objection; and he preserved his objections by Motion to re-transfer to law; and this point will be discussed in Topic I, infra, captioned: “Hicks’ Objection To Trial In Chancery. ’ ’ In the Chancery Court, various creditors of Hicks Grain Elevator and Rice Milling Company intervened and prayed for judgment against McPherson and Hicks individually and against the assets of the Hicks Grain Elevator and Rice Milling Company. On trial in the Chancery Court all of these interventions were allowed as against Hicks and the assets of the rice mill, and in addition the Chancery Court awarded the Arkansas Power & Light Company a judgment against McPherson individually for a part of the power account. McPherson claims that it was error to allow the parties to intervene, that it was error to subject the assets of the Hicks Grain Elevator and Rice Milling Company to the payment of judgments, and that it was error to render personal judgment against him in favor of the Arkansas Power & Light Company. These matters will be discussed in Topic II, infra, captioned: “The Interventions ’ ’. In the Chancery trial there were also claims and counterclaims between McPherson and Hicks in regard to the operation of the Hally Farm, as well as the rice mill. In the final decree from which comes this appeal, there were certain allowances in favor of McPherson and certain allowances in favor of Hicks, and there is either an appeal or a cross appeal on these matters, which will be discussed in Topic III, infra, captioned: “The Accounting”. I. Hicks’ Objection To Trial In Chancery. After Hicks surrendered possession of the rice mill McPherson filed a pleading asking for an accounting between himself and Hicks, and that the cause be transferred to equity. The Circuit Court transferred the entire case to Chancery; but the Chancery Court retransferred the unlawful detainer action to the Law Court, and retained the accounting angle of the case. The Chancery Court thereby gave Hicks his right to a jury trial in the unlawful detainer action. In Cortiania v. Franco, 212 Ark. 930, 208 S. W. 2d 436, we said that an unlawful detainer action should proceed in the Law Court independent of any other suits between the parties: “They could not, by interposing equitable claims, convert the unlawful detainer action into another form of proceeding, because other forums were open to them.” That an accounting was needed between McPherson and Hicks is shown by the enormous record in this case; and the accounting could, and did, proceed in Chancery, separate from the unlawful detainer action. We cannot see how Hicks’ right to jury trial in the unlawful detainer action has been prejudiced by the Chancery Court hearing the accounting suit; and we conclude that, in accordance with Cortiania v. Franco, supra, the unlawful detainer action was properly remanded to the Circuit Court, and that the allegations for the accounting gave the Chancery Court jurisdiction to proceed as it did. II. The Interventions. In his operation of the Hicks Grain Elevator and Rice Milling Company, Hicks incurred indebtedness with various creditors who were allowed to intervene, prove their claims, and recover judgments against the proceeds of the rice, oats, and other products in the plant. McPherson denied that he was a partner with Hicks in the business and denied that the interveners had any claim on any of the assets of the Hicks Grain Elevator and Rice Milling Company so as to be superior to McPherson’s claim. He contends that his judgment against Hicks is prior and superior to the interventions because he had a special attachment. We see no merit in McPherson’s contention. The evidence in this case probably would have supported a Chancery finding that McPherson was liable to all the creditors as a partner of Hicks; certainly as a partner by estoppel if not inter se. But the Chancellor took the view that when McPherson surrendered the grain elevator and its contents to Hicks on May 1, 1956, McPherson thereby allowed Hicks to receive credit on such assets, i.e., rice, oats, and other contents, and therefore McPherson could not defeat the claims of the creditors who had extended credit to Hicks on the faith of these assets in his possession. The Chancellor reached the correct conclusion. In Pearce v. Chas. J. Upton Co., 210 Ark. 524, 196 S. W. 2d 761, a mother had entrusted her business affairs to her son who had operated as though he were the real owner. He incurred personal indebtedness, and pledged assets of his mother’s business. She sought to recover these assets from a third party but such recovery was refused by this Court. We quoted from Judge Eakin’s opinion in Jowers v. Phelps, 33 Ark. 465, and the full text is more emphatic than the mere quotation: “A party who by his acts, declarations, or admissions, or by failure to act or speak under circumstances where he should do so, either designedly, or with willful disregard of the interests of others, induces or misleads another to conduct or dealings which he would not have entered upon but for this misleading influence, will not be allowed, afterwards, to come in and assert his right, to the detriment of the person so mislead. That would be a fraud. But it is difficult to define special acts or conduct which in all cases would amount to an estoppel. Generally it is said that if the owner of the property, with a full knowledge of the facts, stands by, and per mits it to be sold to an innocent purchaser, without asserting his claim, he will be estopped.” We have a number of cases applying the rule of estoppel against the owner of property who stands by and knowingly allows a third person to sell the property under claim of title and who neither asserts title nor gives the purchaser any notice. Danley v. Rector, 10 Ark. 211, 50 Am. Dec. 242; Haffke v. Hempstead County Bank, 165 Ark. 158, 263 S. W. 395. See also 19 Am. Jur. 667 et seq., “Estoppel” § 56; and 31 C.J.S. p. 310, “Estoppel” § 91. Such rule is applicable in the case at bar. The evidence shows that while Hicks was operating the rice mill McPherson was at the mill from one to ten times a day, gave orders around the plant, and on one occasion ordered supplies which were charged to him and which Hicks claims to have repaid. Certainly McPherson knew that Hicks’ creditors were looking to the assets of the rice mill. Under these facts, McPherson is estopped to assert his claims as superior to the claims of the creditors of the Hicks Grain Elevator and Rice Milling Company. That portion of the account of the Arkansas Power & Light Company which was incurred while Hicks was in charge of the rice mill (before July 23, 1957), was allowed against the assets of the rice mill; and such holding was correct, in view of what we have just stated. That portion of the account of the Arkansas Power & Light Company which was incurred after McPherson took possession of the rice mill (on July 23, 1957) was allowed as a personal judgment against McPherson. The Chancery Court was correct in so doing: because after McPherson took possession of the plant and continued to allow electric service to be furnished to it, he certainly became individually liable for such account. We affirm the decree of the Chancery Court in all the intervention matters. III. The Accounting. The accounting between McPherson and Hicks involved both the rice mill and the Hally Farm; and the correctness of the Chancery decree in this accounting matter consumes the major portion of the testimony and argument. The transcript contains 1690 typewritten pages and the printed abstracts and briefs consume more than 500 pages. The Chancellor made written findings covering 20 typewritten pages, and the decree incorporates these findings. On the direct appeal McPherson claims many errors prejudicial to him; and on the cross appeal Hicks claims many errors prejudicial to him. To list each point and the arguments pro and con, and to review the evidence would extend this opinion to enormous lengths. It is sufficient to say that we have carefully examined all the claims and counterclaims and find only one in which error has been shown. That one relates to a judgment of $1,509.75 against McPherson. In rendering such judgment the Chancellor said: “The 125,430 pounds of rice had a market value of $4.50 per hundredweight when the defendant could have sold it and applied the proceeds to the intervenors’ claims or become an asset of the business entity. The plaintiff is liable for the difference between the price the rice would have sold for and the price it did sell for, or a total of $1,509.75.” Hicks did sell some rice of $4.50 per hundred-weight but it was only a small lot and he admitted that at the time of such sale he was not prepared to sell the remaining rice on hand. Furthermore, we find no evidence that the 125,430 pounds of rice had a market value at any time of $4.50 per hundred-weight. There is testimony that some of this rice was of low grade and the value of the 125,430 pounds was not shown by evidence sufficient to make McPherson liable for damages for failure to sell, or allow the rice to be sold, at any particular time. The result is, that the $1,509.75 judgment against McPherson on this rice item is reversed and set aside. In all other respects the Chancery decree is affirmed, both on direct appeal and cross appeal; and the cause is remanded to the Chancery Court for further proceedings in accordance with this opinion. The costs of this appeal are assessed one-half against the appellant and one-half against the appellee Hicks. Some of the provisions of the contract were: “1. Lessor,... does hereby let, lease and demise unto the lessee, for the term beginning the 1st day of May, 1956 and ending the 31st day of December 1956, the following land and property in Desha County, Arkansas, to-wit: “That property known as the McPherson Rice Milling Company of McGehee, Arkansas, consisting of all land, buildings, machinery and equipment, used for storage, drying, cleaning, milling and any other services necessary and suitable to the operation of said milling company. “2. Lessee agrees to pay and lessor agrees to accept as rent, . . . the net income from drying, cleaning, storage, processing and milling. Net income for the purpose of this agreement is defined as the total income from said services less the expenses necessary and incidental to the production of said income and said expenses to include $500.00 per month fee to be paid lessee for management services. Major repairs, new construction and depreciation on buildings, machinery and equipment shall not be considered an operating expense for the purpose of this agreement. . . “9. If lessee shall fail or refuse to pay the rentals aforesaid at the times and in the manner set out or to do or perform any other of the covenants on his part herein contained or shall violate in any particular any of the conditions hereof or make an assignment for creditors, or a receiver be appointed for lessee, lessor may at his option declare the lease terminated, have the right to enter upon and take possession of said property and premises, either with or without notice, and evict and expel the lessee in any or all of his property, belongings and effects therefrom without process of law and without being guilty of any man ner of trespass either at law or in equity, and without prejudice to any remedies or rights which he may for the collection of any delinquent rents, possession, damages, or otherwise. And no delay in the exercise of the option aforesaid by the lessor shall be deemed a waiver of his right to exercise the same at a later time.” Originally the parties contracted for the lease to end December 31, 1957; but by subsequent written contract between the parties the period was shortened so as to expire at all events on December 31, 1958. We have used the earlier date for purposes of clarity.	[ -16, -8, -72, 77, 10, -31, 76, -102, 106, -93, 102, 87, -7, 86, 5, 105, -15, 89, 81, -23, 102, -93, 1, 64, -46, -5, -63, -43, -71, -49, -25, -42, 72, 20, 2, 85, -62, -128, -17, -100, -18, 2, 24, -25, -3, 64, 52, 123, 20, 15, 113, 14, -77, 44, 29, 78, 73, 44, 107, 44, 113, -7, 56, -116, 79, 23, 48, -90, -110, 5, -6, 46, -104, -79, -128, -88, 115, -122, -122, 116, 15, -67, 13, 102, 98, 0, 33, -1, -56, -104, 15, 126, -99, -122, -126, 88, 65, 110, -98, -99, 126, 20, 6, 124, -11, 5, 91, 108, 3, -50, -36, -111, 13, 60, -102, 27, -21, 3, 48, 113, -49, -74, 77, 71, 115, -37, -57, -78 ]
Jim Johnson, Associate Justice. TMs is a child custody case. On March 19, 1956, the Chancery Court of Tippah County, Mississippi, entered a decree of divorce in favor of Jeanne Duncan Crowder against her husband, Frank Lindoerfer, and awarded sole custody of said parties’ minor child, Nettie Katherine Lindoerfer, then aged two years, to Jeanne Duncan Lindoerfer, appellee herein, but with the provision that the maternal grandfather, T. E. Duncan, one of the appellants herein, be awarded temporary custody of said minor child until such time as the child’s mother was able to provide a suitable home for her child. On August 23, 1958, the child’s mother married James Alvin Crowder and on October 31, 1958, filed a petition for writ of habeas corpus in the Washington Circuit Court to obtain custody of her minor child from her maternal grandparents, the appellants herein. The cause was subsequently transferred to the Washington Chancery Court and on July 17, 1959, the Washington Chancery Court entered a decree directing appellants to deliver custody of the child, then five years of age, to appellee on or before 12:00 o’clock noon, July 20, 1959. On July 18, 1959, appellants filed notice of appeal to this Court and a supersedeas bond, which bond was approved by the Washington Chancery Court. On July 24, 1959, appellee petitioned the Washington Chancery Court for an order citing appellants to appear before the Washington Chancery Court and show cause why they should not be adjudged in contempt of the decree of the Washington Chancery Court rendered July 17, 1959, for failure to deliver custody of said minor child to appellee prior to 12:00 o’clock noon, July 20, 1959. On July 29, 1959, the Washington Chancery Court entered an order dismissing appellee’s petition for citation for contempt for want of jurisdiction and on August 12, 1959, three Justices of this Court during recess entered a temporary per curiam order subject to action of the Full Court referring the matter of fixing custody of said minor child, pending appeal to this Court, back to the Washington Chancery Court. On August 13,1959, the Washington Chancery Court directed appellants to appear and show cause why the custody of said minor child should not forthwith be delivered to appellee, and on August 18, 1959, the Washington Chancery Court awarded temporary custody of said minor child to appellee pending determination of appellants’ appeal to this Court and at the hearing approved a $1,000 bond filed by appellee conditioned to redeliver custody of said child to the jurisdiction of the Washington Chancery Court upon order therefor by either the Washington Chancery Court or this Court, following a final decision of the case upon its merits by this Court. Upon reconvening, this Court entered on September 7, 1959, the following order: “The temporary order made during recess confirmed. The trial court had discretion and power to fix custody pending our decision. There is no absolute right of supersedeas in child custody cases.” This appeal is now before this Court for a final determination upon its merit. Appellee, Jeanne Duncan Crowder, is the only daughter of Talmadge Edward Duncan and Mary Evelyn Duncan, appellants herein. Mrs. Duncan is now over 58 years of age. Mr. Duncan is now over 60 years of age. The Duncans reside at 416 North Washington Avenue, Fayetteville, Arkansas. Nettie Katherine Lindoerfer, the appellee’s first born child, was born March 23, 1954. Mrs. Crowder lived with her daughter, Nettie, in the home of the maternal grandparents during the first year and a half of the child’s life. During that period of time the mother rendered normal care for Nettie and evidenced love and affection for her. To better prepare herself to provide for her child Mrs. Crowder earned a master’s degree at the University of Arkansas. This graduate study was pursued and accomplished with the complete knowledge, consent and approval of the Dun-cans. Later Mrs. Crowder maintained an active interest, love, and affection for her minor child through cards, letters, gifts, and visits to her while participating in the doctoral programs in universities in Atlanta, Georgia, and New Orleans, Louisiana. During this time a divorce decree was rendered in favor of Mrs. Crowder by the Chancery Court of Tippah County, Mississippi, on March 19, 1956, in which decree the sole custody of Nettie was awarded to Mrs. Crowder with temporary custody of Nettie awarded to Mr. Duncan until such time as Mrs. Crowder could provide a suitable home for her daughter. At no time did the Duncans challenge Mrs. Crowder’s fitness as a mother of her lawful right to sole custody of Nettie until after it became evident to them that following their daughter’s marriage to James A. Crowder that she was then able to provide a suitable home for the child. The record is clear that at no time since Nettie’s birth did Mrs. Crowder abandon her. Mrs. Crowder rendered the normal care any young mother would for her first born child, and although she was away from home for her graduate studies, she visited her daughter at the normal vacation periods such as Thanksgiving, Christmas, Easter and all other opportunities. The transcript lists the many letters and cards from Mrs. Crowder to Nettie which were recognized in Mrs. Duncan’s letters to Mrs. Crowder; a list of gifts from Mrs. Crowder which were recognized in Mrs. Duncan’s letters to Mrs. Crowder; and a list of Mrs. Crowder’s gifts to Nettie which were not mentioned in Mrs. Duncan’s letters to Mrs. Crowder. Six weeks prior to their wedding, on August 23, 1958, in the home of Mr. and Mrs. Duncan, Mr. and Mrs. Crowder discussed Nettie’s future with Mr. and Mrs. Duncan. A discussion was held in a drug store in Blue Mountain, Mississippi, which resulted in a verbal understanding between them and the Duncans that Nettie would make several visits to the Crowders during the ensuing fall, winter, and spring, leading to her living with the Crowders permanently after the spring or summer of 1959, this period of several months being considered as an adjustment period for all parties concerned. Mr. Crowder, the son of a retired Baptist minister, is employed as a psychiatric social worker at the Southeast Louisiana Hospital and the Bogalusa Guidance Center, and earns in excess of $400 per month. He carries over $10,000 insurance upon his life with his wife as beneficiary. He also carries hospitalization insurance and an income protection insurance policy which would pay him $300 per month in the event of his disability. He holds a master’s degree in social work from Louisiana State University; served as county director of Alabama Department of Public Welfare for a number of years, having administrative and supervisory responsibility for the county adoption and aid to dependent children programs. For two years he served as probation and parole officer of the local juvenile court. His moral character and general reputation are unquestioned. Mr. and Mrs. Crowder rent a five room duplex apartment at 2118 Charlton Lane, Metaire, Louisiana, a suburb of New Orleans. The street is a private dead-end drive. In addition to a fenced back yard, there is a large wooded lot next door. The house has a living room, dining room, two bedrooms, kitchen and bath. It is completely furnished with furniture most of which was refinished by the Crowders’ own hands. It is located in a residential neighborhood near a school and is sheltered from heavy traffic. Mr. and Mrs. Crowder are members of the St. Charles Avenue Baptist Church and are regular in their attendance there. At the time of the trial, Mrs. Crowder was pregnant with a second child — to become a brother or sister of Nettie’s. The record shows that Nettie went into the Crowder home prior to the expected birth of her sibling. The record reflects that the Crowders felt it important for Nettie to anticipate and participate in the approach ing birth of the second child in the Crowder family. Reputable people in the Crowders ’ home community attested to the fact that Mr. and Mrs. Crowder have established and are maintaining a suitable home for the complete and absolute care and control of Nettie. The record of this ease is voluminous. A detailed statement of the facts would serve no useful purpose. We have deliberately drawn the mantle of judicial discretion around the somewhat sordid details brought into the evidence by the grandparents in their determined efforts to keep the little girl. We find no merit in such evidence. As in all child custody cases, the tender consideration we have for the future of the child involved causes us more concern than we experience in any other type of case. Of course it is a universal rule of law that the paramount consideration in awarding custody of minor children is the best interest and welfare of the child. However, in accomplishing this end, in order to as nearly as possible maintain a uniformity in the law, we must follow our rules heretofore laid down in prior decisions. In Kimberling v. Rogers, 227 Ark. 221, 297 S. W. 2d 722, this Court said: “Because human nature is as it is, no two child custody cases can ever be exactly the same; so the policy is to examine our other similar child custody cases and then see which one more nearly resembles the case at bar. ’ ’ Our research reveals that the case of Loewe v. Shook, 171 Ark. 475, 284 S. W. 726, resembles the case at bar a great deal. In this case the mother sought to obtain custody of her 3 year old daughter from the paternal grandparents. After marriage the mother and father resided with the paternal grandparents where the child was born. The mother nursed and cared for the child while living with the paternal grandparents. When the husband died the mother and her child lived with her sister, her parents, her sister again, with the paternal grandparents and then back with her parents. The mother went to work leaving her child with the paternal grandparents and visited the child during the six months she was working prior to her second marriage. After her marriage she got her child and kept it for about two weeks. She became ill and requested the paternal grandparents to keep the child until she got well, at which time they refused to give it to her. The grandparents contended that the mother was not a fit person to have the custody of her child, and endeavored to show that the mother was an immoral woman. This Court in awarding custody to the mother held: “There can be no question in the law that, as between a mother and grandparents, the mother is entitled to the custody of her child, ‘unless incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of her child.’ Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Baker v. Durham, 95 Ark. 355, 129 S. W. 789. “. . . Her reputation for immorality was based largely upon the fact that she went riding at nights during that period with a married man or two. There is nothing in the record of consequence tending to show that she had continued this alleged conduct or that she has been guilty of any indiscretion since she married (her second husband) . . . The child is barely four years of age at this time, and, if her mother is conducting herself discreetly, we can see no good reason why she should be deprived of the joy of parental relationship. If she is leading and will continue to lead a righteous life, the pleasures incident to motherhood should be accorded her by the courts. According to the record, she is not lacking in affection for her child. She is keeping house in Halley, and her husband is amply able and willing to maintain, support, and educate the child. We are unable to discern anything in the record to indicate that the present and future welfare of the child will be imperiled by placing it under the care and control of the respondents. ’ ’ See also: Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134 (1952). The case of Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561 (1952) involved the custody of a 5-1/2 year old girl child, the Court in reversing the trial court and awarding custody to the mother as against the paternal grandparents said: “. . . the child’s father is not a party to this action. According to this record, he has never shown the slightest interest in Pamela and has never provided a home or any support for her . . . On February 28, 1949, Frances (the mother) married Parks (second husband) and they now have a son two years of age. The record discloses that on September 4, 1946, Jack Crowley (the father) secured a Florida divorce from Frances and seven days later she gave birth to Pamela. Shortly thereafter, Frances took her baby to the home of her parents in Paragould and later secured employment to support herself and child. During this period, Frances had allowed the child to stay in the home of its paternal grandparents (appellees) a greater part of the time. Appellees are good people and their affection for the child and desire to care for it are not questioned . . . ” In reversing the trial court, this Court in the Parks case said: “In considering this case, we do not lose sight of the fact that we are dealing with the welfare of a little girl of the tender age of five years when obviously she is most in need of the loving care of its real mother unless the mother is so depraved morally or otherwise as would render her unfit to have her child. While appellees have had her custody for most of her life, when the real mother shows that she is entitled to its custody, we must know, human nature being what it is, that the love and attachment of this little girl for her grandparents (appellees) cannot have become so deep rooted and attached that it could not, within a very short time, be transferred to her real mother by proper treatment, love and care, if given opportunity. ’ ’ In the recent case of Rayburn v. Rayburn, 231 Ark. 745, 332 S. W. 2d 230, this Court reiterated the principles announced in the decisions cited hereinabove in awarding a natural parent custody of a minor child, saying: “. . . A natural parent’s right to custody of a child is paramount to all others unless the parent is proved to be incompetent or unfit. See: Cook v. Haynie, 230 Ark. 174, 321 S. W. 2d 201; Holmes v. Coleman, 195 Ark. 196, 111 S. W. 2d 474; Loewe v. Shook, 171 Ark. 475, 284 S. W. 726; Baker v. Durham, 95 Ark. 355, 129 S. W. 789.” From what has been said above, the record before us, and finding no merit in the points urged by appellants for reversal, on trial de novo we are unwilling to say that the Chancellor’s opinion (which was rendered after having observed the witnesses testifying and after having interviewed the little girl in chambers) awarding custody of the child to appellee is against the weight of the evidence. Affirmed. Harris, C. J., and Holt, J., dissent.	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George Rose Smith, J. The question here is whether the will of Sallie Bryan McComb created a tenancy in common in the property left to her two children or created instead a joint tenancy in that property, with a right of survivorship. (As to the latter estate see Ferrell v. Holland, 205 Ark. 523, 169 S. W. 2d 643.) The trial court took the first view, which opens the door to a claim of dower by the appellee, who is the surviving widow of the testatrix’s son. The appellants contend that the second view of the testatrix’s will is the right one. Mrs. McComb, the testatrix, died in 1922, survived by two children, Joel Y. McComb and Pearl Moore Roy. The estate, apparently by common consent, was kept together and managed by the appellant Pearl Moore Roy, as administratrix, until after her brother’s death in 1957. Mrs. Roy then filed her present petition in the probate court, asserting that the entire estate had vested in her as the surviving child of the testatrix and asking for authority to convey all the property to herself. This petition was resisted by the appellee, Joel Y. McComb’s widow, who seeks to assert her right to dower in her husband’s share of his mother’s estate. These are the pertinent provisions in the will of Sallie Bryan McComb: “That all the property I own and money in banks and stocks be equally divided in half to my two children “If my son Joel Y. McComb should die bearing no children of his own the said inherited property must come back to his sister, ‘Pearle [sic] Moore Roy.’ “If Pearle Moore Roy should die the said property goes to her children equally divided and in case she leaves no children property goes back to her brother, Joel Y. McComb.” In our opinion the present issue was conclusively determined in a prior case involving this same will, Ollar v. Roy, 212 Ark. 682, 207 S. W. 2d 313. In that case the testatrix’s two children had contracted to sell lands constituting part of their mother’s estate. Pearl Moore Roy then had one child, the appellant James Roy, while her brother Joel was childless, as he continued to be until his death. In the earlier case Ollar, the purchaser, questioned the sellers ’ title, contending that they had received under their mother’s will some estate less than the fee simple and were therefore not able to convey a merchantable title. In the vendors’ suit for specific performance we rejected the purchaser’s construction of the will and announced two conclusions concerning the will of Sallie Bryan McComb: First, we held that the first quoted paragraph in the will vested an estate in fee in the two children. “While the language used by the testatrix in the instant case is that of a layman, we hold that it was her intent to create an estate in fee to the appellees . . .” Secondly, we held that the other two quoted paragraphs were to have been effective only if either child had predeceased the testatrix. “Applying this rule of construction to the will in the instant case, we hold the testatrix meant by the second paragraph above quoted that had Joel V. McComb died without children prior to his mother’s death, his share of the estate would have gone to his sister, Pearl Moore Roy. The same construction is applicable to the third paragraph. Since the appellees survived their mother they became vested with title to the lands in fee simple under the will and can convey such title to the appellant. ’ ’ From the foregoing language in the Ollar case it is plain that the second and third paragraphs of Mrs. McComb’s will never became effective, because both the testatrix’s children survived her. "We therefore concluded in that case that the son and daughter of the testatrix took the fee simple under the first paragraph of the will. In the prior case Pearl Moore Roy and her brother successfully contended that they, having survived their mother, were vested with the fee simple, to the exclusion of any possible estate in their own children. Mrs. Roy does not ask us to overrule that decision; it is clear that she could not in good conscience make such a request. Instead she argues, with much ingenuity, that the effect of the previous opinion was merely to hold that she and her brother together could convey the fee simple. This holding, it is urged, does not necessarily defeat her present insistence that there was a right of survivorship upon her brother’s death in 1957. This contention, when carefully analyzed, will be seen to attribute two alternative meanings to the second (and third) paragraph in the will. To uphold the appellants’ argument we should have to construe the second paragraph as if it read in substance as follows: “If my son Joel "V". McComb should pre-decease me bearing no children of his own, the said inherited property must come back to his sister Pearle Moore Roy; but if both my children survive me they will hold the property as joint tenants, with a right of survivorship, regardless of whether they die with or without issue.” The italicized clause, although not even remotely resembling any language actually appearing in the will, is nevertheless essential to the appellants ’ present argument; for if there was any possibility of a vested or contingent remainder in Joel’s surviving children, if any, we could not properly have held in the earlier case that the brother and sister were in a position to convey a merchantable title to Ollar in 1948. Without further discussing this contention of the appellants we think it sufficient to say that we do not see how the suggested interpretation can possibly be drawn from the language of this will. Finally, the appellants offered parol evidence to show that when Mrs. McComb executed her will in 1922 she was suffering from an incurable disease which caused her death within three weeks and that therefore she must have known that both of her children would survive her. This proof is neither competent nor relevant. Extrinsic evidence is not admissible to show what the testatrix meant, as distinguished from what the words of the will express; such evidence is admitted only for the purpose of showing the meaning of the words selected by the testatrix. Piles v. Cline, 197 Ark. 857, 125 S. W. 2d 129. The appellants’ evidence has no tendency to assist the court in determining the particular sense in which Mrs. McComb employed the simple words in her will. Affirmed.	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J. Seaborn Holt, Associate Justice. This is a suit to foreclose a mortgage. For reversal of the decree appellant says: “(1) This is a simple foreclosure action, (2) A deed must be construed most strongly against the grantor, and (3) The agreement between the plaintiff and defendant was for sale by the acre.” Appellee, Ava Morgan, on May 4, 1953, borrowed $7,500 from appellant, Merle Adkins, giving as security for the loan a mortgage on some business property known as the “Rock-A-Way Court”. This property is described in the mortgage by metes and bounds description. On August 11,1955, Mrs. Morgan borrowed $1,200 additional from appellant which was also secured by the above mortgage (of May 4, 1953). Sometime in September, 1958, appellee began, negotiations with appellant to sell to her this business property, and on October 17* 1958, appellant’s written offer to purchase the business property for $45,000 was accepted in writing by Mrs. Morgan, the appellee, and a deed drawn up describing the property by metes and bounds and stating that it contained 2.5 acres and a down payment of $5,000 would be required. The record reflects that a part of the down payment and consideration to be paid by the purchaser, Mrs. Adkins, to the seller, Mrs. Morgan, was the cancellation of the debt that Mrs. Morgan owed to the purchaser, Mrs. Adkins, upon the property, and on October 20,1958, Mrs. Adkins satisfied the mortgage record and when it subsequently developed that the property did not contain 2.5 acres, but only 2.13 acres, Mrs. Adkins brought the present suit to foreclose the mortgage, alleging that cancellation was procured without any consideration and was void. On the facts presented, about which there appears little if any dispute, we think the evidence shows that there was ample consideration for the satisfaction of the mortgage by Mrs. Adkins which she now seeks to foreclose. She admitted execution of the contract to purchase the mortgaged property from Mrs. Morgan, and also that her act of satisfaction of the mortgage on the margin of the record was “part of the down payment for the property”. This was ample consideration. Mrs. Morgan testified that she was ready and willing to complete the sales contract but that Mrs. Adkins has failed and refused to perform. We said in the recent case of Baker v. Taylor & Co., 218 Ark. 538, 237 S. W. 2d 471: “. . . where the vendor is in no default, and is ready and willing to perform the contract on his part, the vendee cannot recover back money paid by him on the contract. . . ” “. . . It may be asserted with confidence, that a party who has advanced money, or done an act in part performance of an agreement, and then stops short, and refuses to proceed to the ultimate conclusion of the agreement, the other party being ready and willing to proceed and fulfill all his stipulations according to the contract, has never been suffered to recover for what has been thus advanced or done ... It would be an alarming doctrine to hold, that the plaintiffs might violate the contract; and, because they chose to do so, make their own infraction of the agreement the basis of an action for money had and received. Every man who makes a bad bargain, and has advanced money upon it, would have the same right to recover it back that the plaintiffs have.” On the contention of appellant that appellee misrepresented the amount of property she owned in acreage, i.e., that she represented she owned 2.5 acres when in fact she only owned 2.13, was sufficient alone to set aside the sales contract, we do not agree. In the first place the sale involved here was not made by the acre but by a metes and bounds description. It appears well settled by our own decisions that when property is described by metes and bounds or definite lines as in the present case, the inclusion of any words indicating acreage is a matter of the description and not of the essence of the contract. We said in Glover v. Bullard, 170 Ark. 58, 278 S. W. 645: " The general rule on this question is clearly stated in Weart v. Rose, 16 N. J. Eq. 290. It is there said that the general rule as laid down by Chancellor Kent is that where it appears by definite boundaries, or by words of qualification, as ‘more or less’, or as ‘containing by estimation,’ or the like, that the statement of the quantity of acres in the deed is a mere matter of description, and not of the essence of the contract, the buyer takes the risk of the quantity, if there be no intermixture of fraud in the case. ‘ ‘ On the other hand, where the sale is by the acre, and the statement of the quantity of acres is of the essence of the contract, the purchaser, in case of a deficiency, is entitled in equity to a corresponding deduction from the price.” And in Hays v. Hays, 190 Ark. 751, 81 S. W. 2d 926, we find this language: “The mention of quantity of acres, after a certain description of the subject by metes and bounds, or by other known specifications, is but matter of description, and does not amount to any covenant, or afford ground for the breach of any of the usual covenants, though the quantity of acres should fall short of the given amount. . . .” On the whole case, finding no error, the decree is affirmed.	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J. Seaborn Holt, Associate Justice. This appeal comes from a decree of the Pulaski Chancery Court which granted appellee, E. C. Ottinger’s, d/b/a Ottinger Construction Company, prayer for cancellation of its bid for the construction of approximately eight (8) miles of highway in Arkansas, and also for cancellation of its bid bond in amount of $35,0000 which it had procured from appellee, Standard Accident Insurance Company. The facts are to the following effect: Along with five (5) other contractors, appellee, Ottinger, submitted its sealed bid to appellant, Arkansas State Highway Commission, for construction of eight (8) miles of highway, at 10 o’clock A.M. on May 13,1959. The six (6) bids were opened formally by the Commission and Ottinger’s bid of $1,329,370.58 was announced to be the lowest. The second lowest bid, which was submitted by Reynolds and Williams, totaled $1,611,254.41, or approximately $281,-000.00 more than Ottinger’s bid. It also appears that the bid of Reynolds and Williams was only $147,000.00 lower than the highest bid of all, which amounted to $1,758,216.88. Ottinger’s bid had been submitted for it by its engineer, Ned B. Turner. When Turner heard over the radio the announcement of the various bids, he was convinced that such a disparity in the Ottinger bid and the others could only be due to some mistake. At 1:30 P.M. on May 13th, within three and one-half hours after the bids were opened, he, Turner, went to Ward Goodman, chief engineer of the Highway Department, and informed Goodman of the mistake claimed by Ottinger. Goodman referred Turner to the Highway Commission which was then in session. About three hours later, at approximately 4:30 P.M., Turner appeared before the Commission, informed it of a mistake in Ottinger’s bid and asked for permission to withdraw his employer’s bid. At this time no award of contract by the Commission had been made on the bid. Two days later, on May 15, 1959, Ottinger telegraphed the Commission requesting that his bid be disregarded on the ground that it had made a mistake in computing the bid and this telegram was confirmed by letter by Ottinger to the Commission on May 16th. On May 18th, five days after the bids were opened and after appellant had been informed of Ottinger’s request to withdraw its bid, appellant communicated to Ottinger by letter that the contract had been “tentatively” awarded to it, and within ten days of this notice, appellant, Commission, forwarded a contract to Ottinger which it refused to sign. Upon Ottinger’s refusal to accept the contract, it was immediately given to the second lowest bidder, Reynolds and Williams. The chancellor found that: “The contractor’s mistake occurred when he overlooked this revision of the Special Provisions furnished by the State Highway Commission, which consisted of a single sheet revision of Sp-105 of Embankment Material. Through failure to observe this revision, which was an unnumbered single sheet among approximately 310 sheets embodying the Provisions applicable to this job, Ottinger bid 43^ per cubic yard for 753,050 yards of embankment material when he should have bid 83 ¡i per cubic yard therefor. In the haste and pressure of working up the detailed bid, this mistake amounted to an error in computation of $294,020.00. The result of the mistake made Ottinger’s bid approximately $300,000.00 lower than that of the next bidder.” For reversal, appellant relies on two points. (1) If a mistake was made, the cause thereof was appellee’s own negligence, and equity will not relieve it of the consequences of a unilateral mistake caused by negligence. (2) The Arkansas State Highway Commission, by accepting’ Ottinger’s low bid, had the legal right to forfeit the proposal bond if Ottinger refused to enter into a contract to construct the road, and it was error for the court to restrain the Commission from forfeiting the said bond. We are confronted here with the situation where a contractor makes a material mistake in the preparation of his bid and with the question whether, because of his unilateral mistake, he was entitled to rescind his bid. We think the trial court was correct in holding that he was entitled to rescind his bid. It is undisputed here that immediately after discovery of the mistake, before any award of the contract and within a matter of hours after the bids were opened, Turner met with the Commission, explained the mistake, and asked that the bid be not considered. At this time, as indicated, Ottinger’s bid had not been accepted nor. had any of the other bids been rejected. Appellant had in no manner changed its position because of the mistake. The rule granting relief to a contractor for a unilateral mistake, in circumstances similar to what we have here, is announced by the annotator in 52 A. L. B. 2d at page 796. After reviewing a number of cases, he summarizes his findings in this language: “In the typical situation here presented, so firmly has the rule favoring equitable relief against unilateral mistake become established that no case has been discovered in which it has not been granted, by way of rescission or similar or appropriate relief, where there is proof of a combination of circumstances establishing remedial mistake and timely communication of knowledge to and assertion of the right to relief against the other party. ’ ’ In the case of Conduit & Foundation Corporation v. Atlantic City, 2 N. J. Super. 433, 64 A. 2d 382 (1949), under a fact situation similar, in effect, to the present case, the Superior Court of New Jersey, Chancery Divi sion, used tliis language: “The essential conditions to such relief by way of rescission for mistake are (1) the mistake must be of so great a consequence that to enforce the contract as actually made would be unconscionable; (2) the matter as to which the mistake was made must relate to the material feature of the contract; (3) the mistake must have occurred notwithstanding the exercise of reasonable care by the party making the mistake, and (4) it must be able to get relief by way of rescission without serious prejudice to the other party, except for loss of his bargain. * * * “It becomes important to determine whether the plaintiff promptly rescinded its option given to the defendant or, otherwise stated, whether it rescinded a unilateral contract, and whether the defendant’s conduct was conscionable. From the facts as above set forth, which are uncontroverted, it appears that before the defendant had accepted the offer of the plaintiff, the plaintiff apprised it of the error and withdrew its offer or option. This, in effect, was a rescission of the option. Both notice of the error and advice of the rescission were promptly given to the defendant prior to the awarding of the contract to the plaintiff. * * * “Therefore, it is held that a unilateral mistake existed in the preparation of the plaintiff’s bid and that under the facts here present, such bid was promptly rescinded within time. “ It is further held that under the facts here present the plaintiff is entitled to the return of the money deposited with its bid.” In Williston, Contracts, Vol. 5, § 1573 (Rev. Ed.), the author says: “In two classes of cases mistake of one party only to a contract undoubtedly justifies affirmative relief as distinguished from a mere denial to enforce the contract specifically against him: (1) Where the mistake was known to the other party to the transaction * * . The first of these rules is based on obvious justice;” and in § 1578, “As to other cases than those referred to in a preceding section, the expressions are numerous that mistake, in order to justify relief, must be mutual or the error of one party must be known to the other. That this is true of reformation is nowhere doubted; but some cases afford countenance for the doctrine that unilateral mistake, while the contract is still executory and the parties can be put in statu quo, may afford ground for rescission, and doubtless the discretionary remedy of specific performance may be denied. Rescission has been most frequently sought where a price was bid which because of erroneous arithmetical processes or by the omission of items was based on a mistake. Relief has been allowed in several cases of this and other kinds, though denied in others. In some of them at least, it would seem that the party not in error should have suspected the existence of a mistake in which case clearly rescission and restitution should be allowed. Where relief is allowed it is generally said to be essential that the party seeking it shall not have been guilty of negligence. ’ ’ We also hold that the trial court was correct in holding that Ottinger was excused from the forfeiture of its bid bond. In M. F. Kemper Construction Co. v. Los Angeles, 37 Cal. 2d 696, 235 P. 2d 7 (1951), wherein the facts are strikingly similar to the facts in the present case, that court, in holding that the contractor should be excused from forfeiture of his bid bond, used this language : “There is no merit in the city’s contention that, even assuming the company is entitled to cancellation of the bid and is not liable for breach of contract, the bid bond should nevertheless be enforced because the company failed to enter into a written contract. It is argued that forfeiture of the bond is provided for by charter and that equity cannot relieve from a statutory forfeiture. We do not agree however that the city charter should be construed as requiring forfeiture of bid bonds in situations where the bidder has a legal excuse for refusing to enter into a formal written contract. Under such circumstances the contingency which would give rise to a forfeiture has not occurred. * * In line with the general policy of construing against forfeiture where ever possible, decisions from other jurisdictions permitting rescission of bids uniformly excuse the contractors from similar provisions relating to forfeiture of bid bonds or deposits.” (Citing many cases) Finding no error, the decree is affirmed.	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George Rose Smith, J. This suit, although in form an adversary proceeding, is in substance an ex parte petition by which the appellant seeks a declaratory judgment finding that her first husband is dead and that her marriage to her second husband, the appellee, is valid. The chancellor refused to grant the requested relief, on the ground that the petitioner had not adduced sufficient proof to give rise to the statutory presumption of death. The petition is based upon Ark. Stats. 1947, § 62-1601: “Any person absenting himself beyond the limits of this State for five years successively shall be presumed to be dead, in any case in which his death may come in question, unless proof be made that he was alive within that time.” A related section, also part of the Revised Statutes, provides that where any husband abandons his wife and resides beyond the limits of the State for five years, without being known to his wife to be living during that time, his death shall be presumed, and any subsequent marriage entered into by the wife after the end of the five years shall be valid. Ark. Stats., § 55-109. The petitioner, then 18 or 19, and Frank Bussell, then 36, were married in 1919 in Fort Smith, where they both resided. Except for a brief visit to Oklahoma soon after their marriage the couple continued to live in Fort Smith until Bussell left his wife in about 1923. Mrs. Bussell, without having sought a divorce, appears to have married Baxter in 1936. The present petition, which names Baxter as the sole defendant, was filed in 1959. It alleges that the federal Social Security Administration has refused to allow the petitioner’s claim to benefits as the wife of the defendant. Baxter entered his appearance and in effect supported his wife’s petition. Owing to illness the petitioner was unable to appear in court to give her evidence. The chancellor, in an effort to develop the facts, appointed a master to visit the petitioner’s home and take her testimony. Under questioning by the master Mrs. Baxter revealed no information that might be of value in an attempt to locate her first husband. Although she and Bussell lived together for about four years she says that she did not know where he was brought up, that he never mentioned any of his relatives and that she knew nothing about them, and that Bussell had no friends as far as she knew. She could not remember the name of the minister who performed the marriage ceremony. She said that Bus-sell did not work at all, that she took in washing and made the living while Bussell stayed around the house. Bussell at times expressed a desire to go to Oklahoma, but apparently that was before their actual trip to that state soon after their wedding. "When Bussell deserted her he did not tell her that he was leaving nor indicate where he was going. She heard nothing from her husband after his departure. "We find it unnecessary to decide whether, in the circumstances of this case, a declaratory judgment proceeding may be employed in lieu of a suit for divorce, for we are unwilling in any event to say that the chancellor was wrong in holding that the petitioner did not offer suffi cient proof to justify the granting of her petition. Under this statute it is settled that neither the fact of death nor that of absence from the state can be inferred from the bare fact of a disappearance. Metropolitan Life Ins. Co. v. Fry, 184 Ark. 23, 41 S. W. 2d 766; Metropolitan Life Ins. Co. v. Williams, 197 Ark. 883, 125 S. W. 2d 441. Hence the petitioner had a burden of producing evidence from which the court might fairly conclude that Bussell had lived continuously outside Arkansas for at least five years before the petitioner’s remarriage in 1936. In our prior cases the finding that the missing person had left Arkansas was based either upon evidence indicating that he intended to leave or upon proof of a diligent but unsuccessful search for him. Those were contested cases, with the safeguards inherent in any adversary proceeding. Here the ex parte request for a declaratory judgment is unsupported by comparable testimony that might take Frank Bussell’s whereabouts out of the realm of pure speculation. In Wilks v. Mutual Aid Union, 135 Ark. 112, 204 S. W. 599, we stressed the fact that the missing person had not been heard from by relatives, friends, or neighbors, “those who would naturally make inquiry concerning his whereabouts and who would most likely receive communication from him and be in a position to know whether or not he was living. ’ ’ Here the petitioner’s testimony effectively shuts the door to any such inquiry, as she professes complete ignorance of her first husband’s family and friends. There is no adversary to whom the burden of going forward with the evidence might be shifted. We do not feel compelled to lay down a rule that would leave to the chancellor, when confronted with a record like this one, no choice except to grant relief on the basis of testimony that he considered, conscientiously and with reason, as being improbable and unsatisfactory. The decree must be affirmed. Ward, J., dissents.	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Paul Ward, Justice. This appeal comes .to us under Criminal Procedure Rule No. 1. On March 2, 1964 William Jackson (appellant) was tried and convicted for the crime of burglary and sentenced to five years in the penitentiary. The information charged that he and Timothy Hawkins, on November 18, 1963, unlawfully broke into a grocery store owned by Howard Baker in Jefferson County with the intent to commit burglary. No appeal was taken, but on July 26, 1965 appellant filed a petition for a writ of habeas corpus in tbe Jefferson County Circuit Court alleging his constitutional rights had been denied at the 1964 trial. The petition was denied and, on certiorari to this Court, we granted this appeal. The case is now here for a review of the record made at the 1964 trial. For reversal appellant relies on three separate assignments of error. One. Two days after the burglary was allegedly committed appellant (and Hawkins, an accomplice) became involved in an alleged robbery in Jackson, Mississippi, and both were apprehended there by enforcement officers, and appellant was later returned to this,State. He allegedly made certain incriminating statements to officers tending to involve him in the burglary in this State. These incriminating statements were admitted in evidence at the 1964 trial over proper objections. It is here contended by appellant that the admission of said statements violated his constitutional rights because he was not advised of his rights to remain silent and to be represented by counsel. In support of his contention appellant relies on the holdings in Escobedo v. State of Illinois, 378 U. S. 478 and Miranda v. Arizona, 384 U. S. 436. Conceding, for the purpose of this opinion, appellant is correct in his interpretation of the holdings in the above mentioned eases, his contention for a reversal must fail. As previously pointed out appellant was convicted on March 2, 1964. The Escobedo case was decided on June 22, 1964 and the Miranda case was decided on June 13, 1966. In the case of Johnson v. New Jersey, 384 U. S. 719 it was held that the above mentioned cases were not .retroactive. There is nothing in the record to show appellant was induced to make the statements by any threat or promise of leniency. Two. This point deals with the question of illegal search and seizure. We agree with appellant that evidence obtained by such methods is not admissible. At the 1964 trial the State introduced in evidence a pistol found in the possession of appellant while he was in Jackson, Mississippi. It was further shown at the trial that this pistol belonged to Howard Baker and that it was taken from his store at the time of the burglary. It is here insisted by appellant that the officers obtained possession of the pistol by an illegal search of his motel room in Jackson. Again we cannot agree with appellant, under the facts revealed by the record. Appellant and Hawkins were suspected of having burglarized a store in Jackson two days after the burglary in this State. Witnesses notified the officers they had seen appellant and Hawkins near the store at the time of the burglary. While investigating the scene of the crime the officers found a key attached to a tab which revealed the room number of a certain motel. The officers went to the room and found appellant and Hawkins. A search of the room revealed incriminating evidence and also the pistol in question. One officer testified he did not obtain a search warrant because he felt it was a case of emergency and that the men might leave town since they were traveling in a car. The officers took possession of the pistol which they found in a desk drawer and placed the men under arrest. Under these circumstances we think' the officers were justified in what they did under the holdings in Ker v. California, 374 U. S. 23 which discusses and evaluates numerous other decisions dealing with this same question. Also, the material facts in the Ker case were somewhat similar to the facts here involved. In the cited case officers entered an apartment occupied by Ker and his wife, arrested them and, after a search, took possession of articles which were later put in evidence. On appeal Ker and his wife contended “that their arrest in their apartment without a warrant lacked probable cause and that the evidence seized incident thereto was therefore inadmissible”. In denying appellant’s contention the U. S. Supreme Court made statements which are pertinent, we think, to the issue here raised. We now refer to some of the statements or holdings. “We reiterate that the reasonableness of a search is in the first instance a substantive determination to be made by the trial court from the facts and circumstances of the case and in the light of the ‘fundamental criteria’ laid down by the Fourth Amendment and in opinions of this Court applying that Amendment.” “The lawfulness of the arrest without warrant, in turn, must be based upon probable cause, which exists ‘where “the facts and circumstances within their [the officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” an offense has been or is being committed.’ ” In commenting on information to indicate probable cause, the Court also said: “That this information was hearsay does not destroy its role in establishing probable cause.” Applying the above rules to the facts heretofore set out, we are unwilling to say the search made by the Mississippi officers was illegal. The Ker case also points out that “the lawfulness of the arrest without warrant is to be determined by reference to state law”. The case before us also meets that requirement with reference to the arrest in Mississippi. Miss. Code § 2470 Arrests— When Made Without Warrant. Three. Finally, appellant contends it was reversible error to introduce the pistol in evidence because (a) it was not identified and (b) its value was not proven. We do not agree. (a) The pistol was traced from the Mississippi officers to the officers of Jefferson County. It was identified as a .38 Smith & Wesson revolver, serial number 291692, and it was described and identified by Mr. Baker as being the one taken from his store. (b) Appellant’s objection here appears to be that there was no showing as to the value of the pistol, contending it was necessary to show he stole property worth more than $35 to be guilty of grand larceny. There are two answers to this contention. Appellant was not convicted of grand larceny and Mr. Baker did testify as to the value of the pistol. Affirmed.	[ 112, -8, -3, -66, 26, 32, 11, 62, 19, -93, -26, -13, -83, -46, 0, 105, -1, 123, 117, -7, -56, -125, 87, -95, -74, -5, 72, 85, 117, 94, -20, -34, 76, -32, -46, 19, 98, 24, -23, 94, -114, 3, -72, -26, 81, 18, 40, 40, 28, 15, -79, -98, -29, 46, 19, -54, -23, 40, 75, -67, 88, 121, -83, 79, -115, 20, -94, 39, -98, -123, 114, 22, -100, 24, 1, -8, 115, -106, -126, 116, 78, -81, -124, 102, 98, 9, 105, 70, -24, -87, 30, -82, -99, -89, -104, 8, 65, 68, -74, -97, 120, 20, 45, 124, 100, -44, 21, 44, -116, -49, -108, -123, -55, 104, -106, -38, -21, 35, 48, 113, -50, -30, 124, 71, 51, -69, -116, -47 ]
Osro Cobb, Justice. On April 24, 1962, appellant was granted a decree of absolute divorce from appellee. Appellant was awarded custody of the children and was given an allowance of $20.00 per week for their support. Appellant waived any claim to alimony. The decree of divorce incorporated therein the terms of an oral property settlement agreement of the parties. On November 5, 1965, appellee filed a petition for an order directing appellant to convey to appellee all of her interest in certain real estate held by the parties by the entirety at the time of the decree of divorce. On November 12, 1965, appellant filed a detailed response to appellee’s petition, claiming an undivided one-half interest in the real estate and agreeing to the sale of same provided she he allowed to receive one-half of the proceeds from such sale. Both parties testified at the hearing, which was held on January 12, 1966. On March 23, 1966, approximately four years after the original decree of divorce, the Chancellor entered a supplemental decree ordering and directing appellant to execute and deliver to appellee a quitclaim deed as to her interest in the real estate held hy the entirety, and appellant was directed to comply with the order within thirty days of the entry of the decree. From this decree comes this appeal. We quote the pertinent provisions of the original decree containing a property settlement agreement between the parties: “That the defendant owns the following property: one 1960 Ford Falcon automobile; various household furniture and appliance; thirty-nine (39) shares of American Telephone and Telegraph stock and realty described as a forty acre farm and dwelling home, said legal description being: NE% NWA4 Sec. 23 Twp. 3 N., Range 16 W, Pulaski County, Arkansas. “That the parties hereto have agreed to the following property settlement: That the plaintiff is to receive the 1962 Ford Falcon automobile on which there remains an unpaid mortgage. The plaintiff (appellant) is to make payments on the car note for the months of April, May and June, 1962, and thereafter the defendant is to make the monthly payments until said car note shall have been paid in full. The defendant (appellee) is to receive the 1960 Ford Falcon automobile. The plaintiff is to receive the thirty-nine shares of American Telephone and Telegraph stock on which there is a remaining balance owed and the defendant has agreed to pay this balance by July, 1962. The plaintiff is to receive all furniture and appliances and that the plaintiff shall remain in possession of the realty described in enumerated paragraph VI above until the balance due on the American Telephone and Telegraph shares of stock has been paid in full, or until the realty is sold, whichever occurs first. * * *” (Emphasis ours) We now quote the pertinent provisions of the supplemental decree: “1. A decree was entered on April 24, 1962, under which a divorce was granted to the plaintiff, and in which the court found that parties hereto had entered into a property settlement agreement. ‘Said decree recites that defendant owned certain personal property together with a 40-acre farm and dwelling house described as: The NE14 NW!4 Sec 23, T3N R16W, Pulaski County, Arkansas. By the terms of said decree the court retained jurisdiction for the purpose of enforcing the equitable rights of the parties hereto. “2. ‘The court finds said decree erroneously recited the sole ownership of said real estate as being in the defendant, when in fact the title thereto had been vested in said husband and wife jointly as an estate by the entirety. (Emphasis ours) “3. ‘ The court further finds that under said property settlement agreement the defendant, in consideration of the transfer of certain personal property to the plaintiff, was to become the sole owner of said real estate free and clear of any and all claims thereto on the part of the plaintiff, and that plaintiff undertook to and obligated herself by the terms of said agreement to convey to the defendant by appropriate means all of her right, title and interest in and to said real estate. “4. ‘The court finds that the defendant fully discharged his obligations to the plaintiff under said property settlement agreement by delivering to her all the property described therein which was to be received by her in accordance with the agreement. “5. ‘The court finds that the plaintiff has failed to convey her interest in said real estate to the defendant in accordance with the property settlement agreement, but is in .fact now asserting in this action that she is still an owner with respect -to said property by virtue of the deed which originally created the estate by entirety. “ ‘It is therefore by the court considered, ordered, adjudged and decreed that Helen Loretta McIntyre execute and deliver to Leon Bennett McIntyre a quitclaim deed conveying to the said Leon Bennett McIntyre the NE% NW% Sec. 23, T3N, R16W, Pulaski County, Arkansas, and that she perform said act within 30 days from the date of this decree’ ”. The language of the original decree provided no dispositive action as to the real estate here at issue. It did place appellant in possession of the real estate pending sale. The supplemental decree substantially added to and reformed the original decree in that it ordered appellant to quitclaim all of her interest to appellee in the realty which was held by the entirety. We have examined the evidence in this case to determine whether the Chancellor was in fact authorized, under such evidence and our general rules applicable to reformation of contractual agreements, to enter the supplemental decree stripping appellant of her interest in the real estate. We have consistently held that reformation of a contractual agreement will not - be granted except upon clear, unequivocal and decisive evidence. Realty Invest ment Company v. Higgins, 192 Ark. 423, 91 S. W. 2d 1030 (1936). In Corey v. The Mercantile Insurance Company of America, 205 Ark. 546, 169 S. W. 2d 655 (1943), we quoted the applicable rule with approval, as follows: ‘ ‘ To entitle a party to reform a written instrument upon the grounds of mistake, it is essential that the mistake be mutual and common to both parties; in other words, it must be found from the testimony that the instrument as written does not express the contract of either of the parties. It is also necessary to prove such mutual mistake by testimony which is clear and decisive before a court of equity will add to or change by reformation the solemn terms of a written instrument.” Appellant brought the original suit and the court decreed that she had just cause for a dissolution of the bonds of matrimony, and that appellee was guilty of such indignities as to render her condition in life intolerable. Appellant was given custody of the children and an allowance of $20.00 per week for child support. It is significant, in reviewing the property settlement, that appellant waived any claim to alimony. We are thus presented with a situation where this appellant, the injured party below, and who had waived any claim to alimony, was given possession of the home place, the real estate, in the original decree and, some four years later, she is ordered by a supplemental decree to execute and deliver to appellee her quitclaim deed to her interest in th real estate held by the parties by the entirety. In Carr v. Carr, 226 Ark. 355, 289 S. W. 2d 899 (1956), we said: “The couple’s home was owned as a tenancy by the entirety and was correctly ordered sold, the proceeds to be divided equally.” The Carr case, supra, is bottomed upon a specific statute. Ark. Stat. Ann. § 34-1215 (Repl. 1962). The real estate held by the entirety represented approximately three-fourths of the total value of the community estate of the parties at the time of divorce. Appellant, who had waived her claims to alimony, adamantly insisted in her testimony that she had never agreed to also renounce her established interest in the real estate. We view her testimony as both clear and reasonable. After examining all of the testimony upon de novo review, we have concluded that the evidence is neither clear nor convincing as to any intent of the parties litigant to agree to such an obviously inequitable result as that requiring appellant to surrender to appellee all of her rights in the real property held by the entirety. We have further concluded that equity requires that appellant’s claim to her interest by the entirety in the real estate be confirmed and that upon sale of the property, appellant shall receive one-half of the net proceeds of such sale. Furthermore, as provided in the original decree, appellant’s possession of the property may not be disturbed prior to sale. The supplemental decree of March 23, 1966 is reversed and vacated as to all matters, except the finding that the realty was held by the parties by the entirety, and it is ordered that a corrective decree be entered not inconsistent with this opinion. It is so ordered. Reversed and remanded with directions. [Per Curiam order denying- petition for rehearing delivered January 23, 1967, p. 835.]	[ 80, 111, -16, 108, -120, 96, 10, -104, 122, 7, 37, 83, -25, 106, 20, 105, 98, 107, 96, 105, -111, -78, 87, 96, 83, -77, -39, -35, -67, -35, -28, 86, 76, 32, -54, -35, -30, -40, -123, 92, 78, 3, -117, 108, 89, -62, 52, 59, 72, 9, 33, -114, -29, -83, 53, 74, 108, 104, -51, 40, -48, -88, -114, 12, 127, 3, -111, -92, -42, -91, 104, 10, -108, 49, 40, -31, 115, 54, -122, 116, 104, -117, 8, 36, 118, 3, 5, -3, -8, -120, 14, -2, -115, -90, -16, 89, 2, 64, -66, 28, 125, 80, -115, -2, -24, -115, 93, 104, 11, -50, -106, -77, -123, 121, -110, 9, -21, -95, 32, 113, -49, -26, 93, 71, 123, -101, -121, -13 ]
Hugh M. Bland, Justice. The appellant was convicted for the crime of unlawfully and feloniously selling intoxicating liquor in a prohibited area in Sharp County Arkansas and the jury fixed his punishment at a fine of $1,000.00. From this judgment and conviction appellant has perfected his appeal. Appellant does not contend that the evidence was insufficient to support the conviction, hut relies entirely on two points: “I. The defendant was deprived of the protection of Arkansas Statutes 39-206 and 39-208 and of his state and federal constitutional guarantees under Art. 2 Secs. 7, 8, 13, 18, 21 of the Constitution of Arkansas and under the 14th Amendment (relating to due process), the 5th Amendment (relating to due process of law) and under the 6th Amendment (relating to public trial by impartial jury) of the United States Constitution. II. The court was held at a wrong and improper place, consequently the court was without jurisdiction to try the defendant and the conviction a nullity.” On April 1, 1966 appellant filed his motion to quash the jury panel alleging that Sharp County had been consolidated into one judicial district; that Ark. Stat. Ann. § 39-206 and § 39-208 require that the petit jurors be selected from all parts of the county; that all or 35 of the 36 persons summoned as jurors in this case resided in the old northern district of Sharp County which deprived appellant of his civil and constitutional rights. On the same day, April 1, 1966, the court heard this motion, including the testimony of the jury commissioners, considered the stipulation entered into between the parties and found: “That by Act No. 39 of the General Assembly of Arkansas of 1893 Sharp County was divided into two judicial districts, one being designated the Southern District with the county seat located at Evening Shade, and the other being designated the Northern District with the county seat at Hardy, and thereafter such county seats were established. That by Act. No. 110 of 1933, the terms of the Cir cuit Court for the Northern District commence the first Monday in January and continue for one year and the term for the Southern District commences the second Monday in July of each year and continues for a year thereafter and also by said Act No. 110 of 1933, the jurisdiction of said two districts were made co-extensive, the court in each said district having jurisdiction co-extensive with the entire county. That on February 1, 1965 the Arkansas Supreme Court affirmed an order of the Sharp County Circuit Court to the effect that by an election held in said county on June 11, 1963, a proper majority had voted to remove the county seats of Sharp County from Evening Shade and Hardy and to build a courthouse and establish a single county seat at Ash Flat, Arkansas. That as yet no actual construction of a courthouse at Ash Flat has commenced. That the various county offices and records still remain at Evening Shade and Hardy in the respective buildings heretofore utilized as courthouses and that the county governmental affairs, including the holding of Circuit Court, have been and are being conducted in the same or similar manner as prior to the aforesaid Supreme Court decision of February 1, 1965, and that there are no governmental affairs being conducted as yet at Ash Flat, Arkansas. That in due time during the Northern district term, which commenced on the first Monday in January, 1965 the court appointed jury commissioners for the purpose of selecting lists of grand, petit and special petit jurors for service during the January 1966 term of the Circuit Court for the Northern District and that at the time designated the same persons selected as jury commissioners, to-wit: Fred Sweitzer, Willie Jean Oyler and Herbert Schales, re ported for service and were properly examined as to their qualifications and upon being found to be qualified were sworn as such and were instructed as to their duties as provided by law. That in view of the fact there is as yet no courthouse at Ash Flat and none of the Sharp County Governmental affairs or offices have been conducted at or moved to Ash Flat, the court instructed said jury commissioners as it customarily had so instructed jury commissioners for the Northern District of Sharp County prior to the aforesaid Supreme Court decision of February 1, 1965 concerning their duties as such officials; that the court informed the jury commissioners as to the location of the line separating the Northern and Southern Judicial Districts of Sharp 'County and said Jury Commissioners were further informed of the aforesaid Act 110 of 1933 and that while thereunder the Northern and Southern Districts of Sharp County had coextensive jurisdiction in Circuit Courts, the commissioners could confine their jury selection to the area known as the Northern District but that if anyone residing South of the line separating said districts should be selected for jury service and if otherwise qualified, they would be eligible to serve as jurors in the Northern District. That as shown by the list of jurors selected for the present term of the court, the greater part of the petit jurors so selected reside in the Northern District of the county and that only four were selected who resided in the Southern District. That there was no systematic exclusion of person or group by the jury commissioners in their selection of persons for petit jury service for the present term of the court. That the actions of the jury commissioners in their selection of petit jurors for this term of the court were proper and that none of the defendant’s rights have been violated by their actions and the defendant’s motion to qnash the panel should be overruled. ’ ’ , We think the motion to quash was properly overruled by the court in view of the provision of Ark. Stat. Ann. § 39-208 (Repl. 1962) which is as follows: “Preparation of lists of petit jurors and alternates —Indorsement of lists. — The commissioners shall also select from the electors of said county, or from the area constituting a division thereof where a county has [2] or more districts for the conduct of circuit courts, not less than twenty-four (24) nor more than thirty-six (36) qualified electors, as the court may direct, having the qualifications prescribed in Section 39-206 Arkansas Statutes 1947 Annotated to serve as petit jurors at the next term of court; * * * ”. See, also, Collins v. State, 200 Ark. 1027, 143 S. W. 2d 1; Terry v. State, 149 Ark. 462, 233 S. W. 673. The motion was properly overruled for the further reason that the record here fails to show that the appellant exhausted his peremptory challenges. In such a situation we have held that the appellant cannot complain of the composition of the jury. In the case of Trotter & Harris v. State, 237 Ark. 820, 377 S. W. 2d 14, cert. denied 379 U. S. 890, we said: “* * * Throughout the years, no rule of procedure has been more consistently adhered to than the rule that a defendant cannot complain of the composition of the jury if he does not exhaust his challenges. In Benton v. State, 30 Ark. 32, decided in 1875, Chief Justice English pointed out that this rule had stood as a precept of criminal practice in this state, for a period of over 22 years. In a long line of cases, we have consistently upheld the rule to the present time. A cursory examination of our cases reveals over thirty-five criminal cases in which this rule has been cited and adhered to.” [Citing cases] Appellant also contends in Point No. 2 that the court was held at a wrong and improper place and, therefore, without jurisdiction to try the defendant and the conviction resulting was a nullity. As pointed out before, an election was held to abolish the two districts and establish the county seat at Ash Plat. The results of this election came before this court in Vance v. Johnson, 238 Ark. 1009, 386 S. W. 2d 240, where this court held that only a majority of those voting was sufficient and the election effectively abolished the two districts and established the new county seat at Ash Plat. The election was held in 1963. Vance v. Johnson, supra, was decided on February 1, 1965 and according to the record nothing has been done to establish a new county seat at Ash Plat. All of the records of the courts are maintained and the business of the county is being conducted as before at the courthouses at Hardy and Evening Shade. Ark. Stat. Ann. § 17-201 et seq (Eepl. 1956) provide the procedure necessary for a change of county seats. Ark. Stat. Ann. § 17-208 provides as follows: “Commissioners for preparation of new county seat — -Appointment and oath — Duties—Holding of court at new county seat. — When the deed to the new location shall have been executed and the title vested in the county, as provided in the preceding section, for the purposes and intention of this act [§§ 17-201 — 17-209], the county court is hereby authorized and empowered to appoint three [3] discreet citizens as the county commissioners, who shall take an oath to faithfully demean themselves as such, and who, under the orders and directions of the county court in pursuance of the provisions of this act, shall superintend and contract for, in the name and behalf of the county, the clearing, grubbing and laying off such new location into suitable and convenient town lots and the erection or pur chase of all needful buildings on such new location, preparatory to the actual removal and change of the county seat; and as soon as such buildings shall have been made ready for the several courts holden at the county seat [,] the respective officers thereof and the archives thereof, the commissioners shall report the same to the County Court at the next term, then in that case the next and every succeeding term thereof shall be held at the new county seat, and the •Circuit Court and all other Courts for said county of superior or general jurisdiction shall be held at the new county seat, and all processes issuing therefrom shall be made returnable thereto.” In Williams v. Reutzel, 60 Ark. 155, 29 S. W. 374, at page 158, we find: “In every county of this state there is, and must be, a county seat. At it the county court is required to erect a good and sufficient courthouse and jail. The county, circuit and other courts held for the county must sit there. There is no other place designated by law for that purpose. The name ‘county seat’ indicates the object of its creation. It is, as defined by the Century Dictionary, ‘the seat of government of a county; the town in which the county and other courts are held, and where the county officers perform their functions.’ When the county seat of a county is removed, and the needful public buildings are made ready for the several courts holden at the county seat and the respective officers, the next and succeeding terms of the county court and the circuit court and all the other courts for said county of superior or general jurisdiction are required to be held at the new county seat.” The court has recognized that in cases of emergency, such as the destruction of the courthouse by fire, the court itself may secure other quarters in the county seat for temporary use in the administration of justice. Mell v. State, 133 Ark. 197, 202 S. W. 33, citing Hudspeth v. State, 55 Ark. 323, 18 S. W. 183; Lee v. State, 56 Ark. 4, 19 S. W. 16, and Williams v. Reutzel, supra. In the proper administration of justice, Sharp County would be without any place to hold court if the contention of appellant were correct. The record does not indicate or show why the county court of Sharp County has not acted under the clear mandate of the electors of the county to establish a new courthouse at Ash Flat but until that action is taken and the new courthouse certified by the commissioners as ready for use, then the courts will have complete jurisdiction to hold court at Hardy and Evening Shade as before. Finding no error, the judgment of the Sharp Circuit Court is affirmed.	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Carleton Harris, Chief Justice. Joe B. Lewis, a resident of Columbia County, died testate on December 26, 1964. An instrument, purporting to be his last will and testament, dated June 22, 1964, was offered for probate. The will designated Jean Welch Crisp, a friend and neighbor, as sole beneficiary. Appellants objected to the probate of the will, asserting that Joe B. Lewis was not mentally competent to execute the will on June 22, 1964, and further, that he was acting under undue influence at the time of its execution. On trial, the court found that Lewis was mentally capable of executing the will; that he did execute it without undue influence, and the instrument was admitted to probate. Prom the .judgment so entered, appellants bring this appeal. Ten witnesses, including three of the heirs, and a daughter of one of the heirs, testified on behalf of appellants, and eight witnesses testified on behalf of appellee. As is usual in this type of case, the testimony was “poles apart,” appellants’ witnesses maintaining that Lewis was mentally incompetent to execute the instrument, and appellee’s witnesses just as emphatically testifying to the contrary. Donald Shocldee, a neighbor, 18 years of age, testified that Lewis could not dial telephone numbers, because he could not remember while dialing... he would take a bath, and sometimes walk out of the bathroom unclothed before company. . . while his wife was ill, milk, which had been purchased for her by the witness, was poured down the sink by Lewis ... he left his wife alone during storms ... he carried large sums of money in his billfold, but would misplace the billfold, and couldn’t find it... he would take three or four pills of the same prescription, and forget he had taken them... he would subscribe for the paper, have it stopped, and subscribe again. Mrs. Nina Martin, daughter of Mrs. Peterson, testified that she stayed with Lewis for a period of time after his wife’s death; she would leave the house, telling him where she was going, but upon returning, he would ask where she had been; after his wife died, he asked several times if there were any flowers or cards, and when she called off the names and called her own name, he inquired, “Who is that1?” Mrs. Edwards, a sister, testified that her brother would frequently get lost, and would run red lights in the automobile; he had knocked the bumper off her car, but could not remember it. Missouri Johnson, who was employed as a housekeeper by Lewis and his wife, testified that Lewis liked “to talk about women and, you know, doing things”... she also said that he would take his medicine, and soon thereafter “take it again.” The witness testified that, after she had quit working for him, Lewis would come to her house, and ask her to go to the home of Jean Crisp, and get Jean “to start back to talking to him;” that he made this request about twenty-five times, and finally stated that he would get his gun and shoot her unless she complied with the request. Lucy Peterson testified that he took one of his sisters’ dental plates to Waldo, and left it at a grocery store instead of with the dentist. . . that he had several car wrecks. Leslie Dendy, a nephew, stated that Lewis could not carry on a normal conversation, would ask a question, and while it was being answered, change to another subject. O. A. Phillips testified that Lewis’ mind “would kind of go and come.” Sam Capps testified that for the last several years of his life, Lewis could not answer questions clearly, and Julia Turk testified that, at his wife’s funeral, Lewis talked out loud during the service. The testimony of Dr. Joe Rushton, physician of Magnolia will be subsequently discussed. Wendell Utley, an attorney, who had known Lewis for approximately twenty years, and who prepared the will in question, stated that the testator came into his (Utley’s) office by himself, and said that he wanted to leave his property to Mrs. Hamilton Crisp. Utley testified that the will was typed up at that time, read to Lewis, and was signed in the presence of the witness and Dr. William A. Carter, an optometrist, whose office was near that of Utley. The attorney stated that he had previously prepared two wills for Lewis, the first naming a brother in El Dorado as beneficiary; after that brother’s death, a second will was prepared, naming a sister as beneficiary. The witness said that there was no question in his mind but that Lewis knew what he was doing, and that the will was executed voluntarily. Dr. Carter testified that he noticed nothing abnormal about the testator, and that he knew him, having previously fixed glasses for him. Harry Cobb stated that he sold Lewis an automobile in October of 1964, and the latter thoroughly understood the transaction, and acted no differently from some years before, when Cobb had also sold an automobile to Lewis. Mrs. Estes McIntyre testified that Lewis would take her to shop for groceries; had taken a few meals at her home, and he knew his brothers, sisters, and his property. Lewis had told her that he had made a will in favor of Jean Crisp: “A. Well, he just said she had been real good to him and that when he was down, when he didn’t have anybody else to turn to, she come to him and told him that he could live with them or just however he wanted to do it, as long as he wanted to.” Four other witnesses, Richard Walters, W. M. Beasley, William Robert Kelly, and Bob Sanders, all of whom had known Lewis from twelve to thirty years, testified that they noticed nothing unusual about his condition in 1964. Sanders stated that he was the “same old Joe,” except that he was nervous. Let us hear in mind that, as to mental competency, the question is whether Joe Lewis was competent to make a will on June 22, 1964. His condition, either before, or after, that time, is not the test, and such evidence is only relevant insofar as possibly indicating his condition on the date in question. The strongest testimony offered by appellants was the testimony of Dr. Rushton. The doctor stated that he sent Lewis to the Veterans’ Hospital in Shreveport in December, 1963, because “his mind got so bad,” and it was his opinion that Joe Lewis was never normal after that time; however, it is not clear whether Dr. Rushton saw Lewis in June of 1964, or if so, the time of, and circumstances connected with, such a visit. When asked specifically if Lewis would have been able to comprehend the property he had, and his heirs at the time he executed the instrument, the doctor replied “I might say this, I think he could be talked into anything, easily influenced. I don’t think his mind was clear enough that he could reason out as to what he would want to do with his property.” This, of course, is not an explicit answer to the question interrogated. The doctor also stated that at times “he would seem fairly well,” but it was obvious that Dr. Rushton just did not consider Lewis normal. Of course, it is of some significance that the hospital released Lewis, after treating him for a while. In Thiel, Special Admr. v. Mobley, 223 Ark. 167, 265 S. W. 2d 507, we said: “The burden was on appellee, the contestant, to prove the lack of mental capacity at the time the will was executed. This court has held many times that the burden of proving mental incapacity to make a will rests on the one alleging it. ’ ’ In that case, several witnesses stated that Mrs. Mob ley was not normal, did not recognize the witnesses at times, and appeared, on occasion, to be in a stupor. Other witnesses contradicted this testimony. We held, however, that the testatrix was competent to execute the instrument. Of course, people frequently commit acts that other persons do not consider normal, but this does not establish incompetency to make a testamentary disposition. It certainly appears from the evidence that Lewis was aware of the fact that he had relatives; that he knew those relatives; that he was aware of the property he owned, and that he was aware of the fact that he had left the property to Mrs. Crisp. Peculiarities and eccentricities, as distinguished from insanity, are thoroughly discussed in Harwell v. Garrett, 239 Ark. 551, 393 S. W. 2d 256. Quoting from Volume 1, Page on Wills, Section 12.37, the court said: ■ “The fact that the testator was filthy, forgetful and eccentric, or that he was miserly and filthy, or that he was blasphemous, filthy, believed in witchcraft, and had dogs eat at the same table with him or that he was filthy, frequently refused to eat, and would lie in bed with his clothes on for two weeks at a time, or that he would leave his home only at night, and would count or recount his money, or that he was high tempered and violent, or was irritable and profane, or that testator thought that others were plotting against him and was afraid to go out in the dark, or that he was inattentive when spoken to and mumbled when trying to talk, does not establish lack of capacity.” It might be added that “running red lights” and being involved in automobile wrecks, misplacing one’s billfold, mistreating members of the family and being unable to use a dial telephone are acts that are many times committed by perfectly normal people. It is not unusual for some member of a family to feel that he has been mistreated by other members of the family, and, whether right or wrong, it is apparent that Lewis had “fallen out” with his sister. Nor can it "be said to be abnormal or unnatural for a testator, without wife or children, to leave property to a good friend rather than to a collateral relative. The proof as to undue influence was extremely meager, and, in fact, only two instances are mentioned by appellant. It is asserted that the testimony of Missouri Johnson establishes that “Jean must have been putting some pressure on him or he would not have gone to Missouri’s so many times to get her to talk to Jean.” Of course, the quoted portion (from the brief) itself makes evident that speculation would have to be utilized to the utmost to consider this fact as any proof of undue Influence. The only other act mentioned is that Mrs. Crisp called the attorney some time after the will was made to inquire if Lewis had made a will. Even if it were established that Mrs. Crisp had begged Lewis to execute a will in her favor, this fact would not establish undue influence. In Langford v. Gates, 238 Ark. 167, 381 S. W. 2d 456, this court, quoting C.J.S., stated: “Every influence exerted on a testator is not undue influence, and it is well settled that' influence, consisting of appeals, requests, entreaties, árguments, flattery, cajolery, persuasion, solicitations, or even importunity is legitimate and becomes ‘undue,’ so as to invalidate the will, only when it is extended to such a degree as to override the discretion and destroy the free agency of the testator.” It is also noticeable that Lewis, unaccompanied, went to Ms lawyer’s office, and directed the disposition of the property. A similar circumstance is commented upon in Langford v. Gates, Supra. The will was not executed during a last illness, but rather several months before his death, and Mr. Lewis had every opportunity to reyolce it had he desired to do so. To the contrary, he mentioned to friends some time after signing the instrument that Mrs. ■ Crisp had been kind to him, and that he had left her his property. Of course, whether one is found mentally competent to execute a will depends upon the particular facts and circumstances in each case. In this type of litigation, where the testimony is generally so much at variance, the findings of the Probate Judge, who heard the evidence and saw the witnesses, carry considerable weight. As stated in Thiel, Special Admr. v. Mobley, supra: While we try the case de novo, we must affirm unless we can say that such findings are against the preponderance of the testimony, and in this particular kind of a case we have frequently said that the findings of the Chancellor have persuasive authority and are entitled to weight and consideration.” We are unable to say that the court’s findings are against the preponderance of the evidence. Affirmed. Appellants are Mildred Rogers, Lucy Peterson, Florence Edwards, all sisters of the deceased, and the following nieces and nephews: Glen Lewis, Willie Elliott, Gussie Barron, Vera Hendricks, Leslie Dendy, Louise George, Marie Vent, Gertrude Thornton, Emma Sprick, Fred Lewis, Ray Lewis and Fannie (Jo) Demarco; also Dewey Booth, only heir of Phronia McDonald, a sister of Joe R. Lewis. Mrs. Lewis died in November, 1963. From the testimony: “Q. Did he know he had already made another will out to his sister? A. Yes, he knew that, he decided to destroy it and make out another will to Mrs. Crisp, seemed like he had fallen out with his sister for some reason, I don’t remember just what.” Emphasis supplied.	[ 49, 108, -7, 14, 26, 48, -54, 25, 114, 32, -79, 115, 123, -42, 64, 109, 49, -83, 84, 121, 100, -93, 7, 35, -110, -109, -117, -43, -75, -49, -10, -41, 76, 32, 2, 29, -30, 72, -51, -48, -116, 0, 89, 98, 83, 82, 53, 59, 62, -98, 117, -98, -121, 42, 29, 110, 72, 100, 91, 44, -8, -72, -118, 21, 77, 54, -80, -89, -108, 37, 88, 46, -120, 49, -120, -8, 51, -90, -124, -44, 106, -103, 12, 98, 38, 56, 93, 111, -80, -71, 7, -26, -67, -89, 23, 113, -56, 32, -66, -35, 125, 84, 19, -12, -20, -105, 28, 100, 12, -65, -42, -127, -116, 126, -106, -112, -29, 9, 100, 113, -55, -30, 78, 103, 120, 27, -114, -79 ]
Paul Ward, Justice. This litigation is between the heirs of W. M. Crouch, deceased, over certain lands, involving also certain grantees of two of said heirs. There appears to be no dispute over the pertinent facts, the only question for determination being one of law. Facts. W. M. Crouch, a widower, procured a Donation Certificate in 1932 from the State for 160 acres of land. He made some improvements on the land but died in 1933 before a donation deed was made by the State. However, the donation undertaken was completed in 1935, and the State executed a deed conveying the land to “W. M. Crouch Estate”. W. M. Crouch left seven children, one having since died leaving six children. In 1958 the lands forfeited for taxes. At the tax sale one of the sons (John) bought the north eighty acres for $13.97, and another son (Adolph) bought the south eighty acres for $11.40. Each one received a tax deed. Later these two sons conveyed the 160 acres to Harold J. Conrad and his wife. Suit filed. On or about March 16, 1965 the heirs of the deceased (except, of course, John and Adolph) filed a complaint in chancery court against John and Adolph and their grantee, seeking a 5/7 interest in said lands and asking that the lands be sold (if they cannot be divided) and the proceeds divided among the several parties as their interests appeared. After a trial, the court made, in essence, the following findings: (a) The plaintiffs are not barred by laches or adverse possession; (b) the heirs of the deceased received no interest in the said lands by reason of the donation deed because said deed was void, having been made to “W. M. Crouch Estate”. Accordingly the complaint was dismissed, and title to the land was quieted in Harold J. Conrad and his wife. From the above decree appellants now prosecute this appeal for a reversal. The decisive issue involved is whether the deed from the State to the “W. M. Crouch Estate” conveyed the 160 acres of land to the heirs of said W. M. Crouch, there being no dispute as to who the heirs are. It is the contention of appellees that every valid deed must have a grantee, and that the words “W. M. Crouch Estate” do not constitute a “grantee” as contemplated by law, citing authorities which we deem it unnecessary to discuss in view of the conclusion we hereafter reach. We think the deed in question was.valid for the following reasons. Ark. Stat. Ann. § 10-929 (Repl. 1956), in pertinent part, reads: “In case the donee should die before the expiration of the time herein required to submit final proof of the right to perfect, the same shall extend, first to the widow of the donee, and if she be dead, then to the children of such donee . . . .” In the early case of McCracken v. Sisk, 91 Ark. 452 (p. 457), 121 S. W. 725, the facts were very much the same as here, and the Court said: “In the case at hand the donee died before the expiration of the time required by the statute to submit final proof of the right to a perfect donation. In that event the right to perfect the donation and submit final proof thereof was by the statute extended to the widow in her own right as an original donee, and to the exclusion of all children, if there had been any, and to the exclusion of all other persons. Upon making the final proof the widow was entitled to and did receive a deed to the land from the State in her own right and as her individual property, and which she could thereafter alienate as her separate estate.” In the case under consideration it is not disputed that the State deeded the land as heretofore stated, and we will presume, in the absence of proof to the contrary, that all necessary prerequisites had been complied with by the heirs. We are not convinced by appellees’ contention the deed was void because there was no legal grantee. In 23 Am. Jur. 2d., Deeds, § 50, we find this statement: “. . . In short, where the instrument refers to someone in such terms that there is no doubt that he is the grantee, the deed will be effective although his name is not specifically stated as being the grantee. “To pass title to the grantee intended, a deed need not describe him by name if it otherwise identifies him or makes him susceptible of identification by extrinsic evidence.” The case of Black v. Brown, 129 Ark. 270, 195 S. W. 673, is also very much in point here to reverse the holding that the deed was void for lack of a proper grantee. The case deals with the legality of a tax deed made by the county clerk to “P. M. Black Estate”. In holding the grantee was sufficient the court, among other things, said: “P. M. Black being dead at the time of the execution of the deed, his heirs were known with certainty and there could be no two parties claiming adversely as grantees under the deed. We are of the opinion that the validity of the deed should be upheld . . . .” In the case under consideration here there is no dispute about who constituted the heirs of W. M. Crouch. It is certain that one of the appellees thought the deed was valid because he moved on the land and made improvements thereon. We are not here holding that in all circumstances a deed to a person’s estate is valid, but do hold it is valid in this instance. There appears to be no contention (nor could there be any valid contention) that John and Adolph Crouch acquired title to the land by virtue of the 1958-1959 tax deeds. Being co-tenants with the other heirs, the purchases amounted only to a redemption for all the heirs. In Jones, Ark. Titles, % 200 there appears this statement: “Purchase by one co-tenant at a tax sale amounts merely to a redemption, and neither such tenant nor his grantee can acquire title through such purchase. ...” The above stated rule has been approved many times by this Court. See: Zachery v. Warmack, 213 Ark. 808, 212 S. W. 2d 706, and Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579. In view of what we have said above, the decree of the trial court is reversed, and the cause is remanded for any further necessary orders or proceedings consistent with this opinion. Reversed.	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George Rose Smith, Justice. In the court below a jury found the appellant guilty of assault with intent to kill and fixed his punishment at five years imprisonment. Here the appellant questions the sufficiency of the evidence and the trial court’s ruling upon a point of evidence. The proof is sufficient to support the verdict. On the day of the offense the appellant, who was traveling on foot in Little Rock, engaged in what should have been a trivial dispute with a motorist about which one should precede) the other in crossing an intersection, each insisting that the other should go first. John Haydon, the motorist, finally drove past Fair and heard him use the words, “Blow your head off.” Haydon stopped at a friend’s house only two doors from the intersection. A neighbor crossed the street to tell Haydon that Fair had a gun. Haydon informed the police of the incident. Officer Bridges responded to Haydon’s call and found the accused about two blocks down the street. When the officer approached Fair and attempted to question him, Fair unbuckled the holster of his pistol, started to draw the weapon, and said, “I’m going to blow your head off.” Officer Bridges, after a struggle, succeeded in wresting the gun away from Fair. Bridges placed Fair under arrest and took him to police headquarters, where Fair tried to seize another officer’s pistol, saying that he was going to get another gun and do a better job of it. With respect to the sufficiency of the evidence the case is controlled by our holding in Johnson v. State, 132 Ark. 128, 200 S. W. 982 (1918). There, upon facts similar to this appellant’s encounter with Officer Bridges, we held that the act of drawing a pistol, if accompanied by a threat to use it, constitutes an assault with intent to kill. The turning point, we said, is whether the overt act is merely in preparation for an assault or is actually part of an assault. In the case at bar the jury were justified by the testimony in finding that Fair’s attempt to draw his pisol, together with his threatening language, constituted an assault with intent to kill Officer Bridges. The challenged ruling upon a point of evidence occurred during the State’s cross examination of Fair’s sister. The deputy prosecuting attorney asked this witness where Fair had been in 1947. The witness answered, “He was in the state penitentiary in 1947, I believe.” Defense counsel objected. The court sustained the objection and admonished the jury to disregard the witness’s statement. It is now insisted that a mistrial should have been declared. We do not approve such tactics on the part of the prosecution. Fair’s earlier confinement was wholly in admissible and should not have been mentioned in the presence of the jury. Nevethheless the trial judge did not commit an error, for he sustained the objection to the statement and instructed the jury not to consider it. Counsel for the accused was apparently satisfied with the court’s ruling, for he did not press the matter by asking for a mistrial. In the circumstances the point now asserted was not preserved for review on appeal. Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382 (1965). Affirmed.	[ -16, -5, -32, 31, 43, 96, 26, -88, -48, -86, -26, 19, -83, -53, 69, 121, -17, 119, 85, 105, -43, -77, 87, -23, -14, -13, 59, -59, 19, -51, -4, 84, 14, 80, -54, -35, 102, 72, -25, 90, -114, 20, -24, 97, 2, -48, -88, 46, 112, 15, 53, -65, -29, 43, 20, -37, 109, 44, 75, -84, 80, 113, -40, 13, -19, 20, -77, 38, -81, 33, 80, 60, -39, 53, 0, 120, 51, -90, -128, -12, 109, -117, -116, -30, 98, 24, -67, -39, 40, -119, 111, 126, -107, -89, 28, 72, 75, -83, -106, -99, 111, 16, -82, 116, -9, 77, 81, 108, -117, -33, -80, -79, 77, 56, -110, 89, -53, -91, 20, 101, -49, -22, 92, 69, -10, -101, -113, -42 ]
Hugh M. Bland, Justice. The merits of this controversy involve the construction of the Last Will and Testament of Ida B. Crockett. The will was executed March 27, 1963, consisting of six typewritten pages, signed by Ida B. Crockett and validly witnessed. Also involved is an instrument dated January 16, 1964 entitled “Codicil to Last Will and Testament.” Both of these instruments were admitted to probate on September 8, 1965. By the terms of her will, provision was made for the payment of her just debts, taxes and expenses of administration. She bequeathed certain items of personal property to various persons and gave $1.00 to each niece or nephew not mentioned in the will. The pertinent paragraphs of the will are nine and ten. In paragraph nine she devised to J. F. Etchieson as Trustee: “* * * ‘all of the rest and residue of my real estate, wherever the same may be situated, of which I die seizéd and possessed,’ with directions that it be sold and with further directions to ‘divide the proceeds of such sale equally among the within named Ella Cunningham, Bertha Miller and Gladys Martin.’ The Trustee was to seek no further authority regarding the sale other than from the three beneficiaries of the trust who have been named herein. Merle Gaines, who was renting Testatrix’ farm land at the time of the execution of the will, was given preferential right to purchase said real estate.” Paragraph ten is copied in full from the will: “I give and bequeath to my nieces, Zilpha Nowak and Ella Lutz, as tenants in common owning equal interests with each other, all of the rest and residue of my property, if there be any such residue, that shall remain after the foregoing provisions of my will shall have been fully complied with.” The codicil to the last will and testament devised a certain savings account in the Blytheville Federal Savings and Loan Association to Ella Lutz Cunningham, dependent on survivorship with remainder over to Don Lutz. Prior to the death of the Testatrix, a niece, Ella Lutz, who is one and the same person as Ella Cunningham, died intestate being survived by two sons, Don Lutz and Marvin Lutz. It was stipulated that all parties to this action are of full age. Objection was filed to the admission of the codicil to probate on behalf of appellant and Mrs. Gladys Martin, both of whom are mentioned in the Last Will and Testament of Ida B. Crockett, and also seeking a construction of the will. On October 29, 1965, the Probate Court heard the objections to the admission of the codicil to probate and the petition to construe the will, and held that the codicil dated January 16, 1964 was not executed in accordance with the laws relating to the execution of wills and testaments and ordered it stricken from the probate records. The court also held that all property devised to Ella Lutz had lapsed and that this property, excluding that which was mentioned in the codicil, would pass and descend as though Ida B. Crockett had died intestate. The court further held that the property described in the codicil to the last will and testament, this being the savings account in the Blytheville Federal Savings and Loan Association, would fall into the provisions of paragraph ten of the last will and testament dated March 27, 1963; that Zilpha Nowak is entitled to- one-half of all property devised in paragraph ten and the remaining one-half shall be as though Ida B. Crockett died intestate. Appellant appeals and contends that she is the residuary devisee and that one-half of all property which would have otherwise passed to Ella Lutz would pass to her as residuary beneficiary under the terms of the will. Don Lutz, who was mentioned in the codicil, filed his notice of cross-appeal from the court’s holding that the codicil is invalid. For reversal appellant relies on two points: “1. The Probate Court erred in making determination that all property devised and bequeathed to Ella Lutz under the Last Will and Testament of Ida B. Crockett passes intestate. 2. That the court should have held that all property devised and bequeathed to Ella Lutz passed into the residuary clause, paragraph 10, of the Last Will and Testament of Ida B. Crockett.” It is crystal clear that the codicil was not executed according to the provision of Ark. Stat. Ann. § 60-403 (Supp. 1965) and the chancellor was correct in denying probate and striking it from the probate record. So, the cross-appeal must be affirmed. We also think the chancellor was correct in his construction of the will. The will must be construed so as to ascertain or arrive at the intent of the testator from the language used giving consideration, force and meaning to each item in the entire instrument. In Lockhart v. Lyons, 174 Ark. 703, 297 S. W. 1018, we said: “The true rule in the construction of wills, which can be said to be paramount, is to ascertain or arrive at the intention of the testator from the language used, giving consideration, force, and meaning to each clause in the entire instrument. * * * A testator is presumed to intend to dispose of his entire estate, and it must be borne in mind in the construction of wills that they are to be so interpreted as to avoid partial intestacy, unless the language compels a different construction. * * * ’ ’ When we stand far enough away and look at the entire will of testatrix, it is readily apparent how she intended to dispose of her property. After certain bequests, some of personal property and some of real estate, she chose to devise all of the remainder of her real estate to a trustee with unlimited power to sell and convert it to cash to be divided equally between Ella Cunningham, Bertha Miller and Gladys Martin. It was clearly her intention, in disposing of all the remainder of her real estate in this manner, to dispose of it equally to the three named devisees. These parcels of land probably had different values and in order that the devisees would share equally in the division of the proceeds of the sale, she would avoid any inequities that might otherwise arise. The bequest to Ella 'Cunningham, having lapsed because of her demise prior to the death of the testatrix, passes as though Ida B. Crockett died intestate. The majority rule is stated in 36 A. L. R. 2d 1118 as follows: “It would seem to be a not unreasonable view that, prima facie, by a gift of all his residuary property to designated persons a testator intends that-whatever assets happen to fall within the provision shall go to those persons as being the ones preférréd by him in any event as against the whole world, and this whether or not he has defined or regarded them as a class or as joint tenants or possesses any knowledge or awareness of the legal concepts of class gift and joint tenancy. Nevertheless, as the later cases show, the rule which prevails in most jurisdictions, in the absence of statute or distinctly disclosed intention or justified construction of the will to the contrary, is that if the instrument disposes of residuary property or funds to two or more persons and one or some of them renounce the gift, or predecease the testator, or for any reason are or become disentitled to take, the shares affected do not inure to the other residuary beneficiaries in. augmentation of their shares but on the contrary pass as in case of intestacy.” It is true that partial intestacy should be avoided if possible. Galloway v. Darby, 105 Ark. 558, 151 S. W. 1014. But intestacy in this case is inevitable in order to carry out the intention of the testator. Item 9 of the will related to realty only. At common law the rule as to lapsed devises of real estate was that it goes to the heirs at law. I Underhill on Wills, Art. 335. It is the province of this court to construe the will and not make it over. In doing this the will must be read from all four corners and determine the intention from the entire will. Item 9 is a particular residuary clause as distinguished from Item 10 which is a general residuary clause. Appellant argues that Ella Lutz was not a residuary legatee in Item 9 of the will but rather was named as one of three individual beneficiaries of a Testamentary Trust. The trial court held that these distributees, under the trust, were individuals and not a. class. There was no appeal from that ruling. In Restatement of the Law, Second Edition, Chapter 12, Article 411, sub-paragraph C reads as follows: “If real property is devised upon a trust which fails and there is no provision in the will effectively disposing of the residue of the testator’s real property, the devisee holds it upon a resulting trust for the heirs of the testator.” The codicil held invalid here attempted to dispose of a savings account in the Blytheville Federal Savings and Loan Association and the devise was to Ella Lutz with the remainder over to Don Lutz. The codicil having failed and this bequest having lapsed, this property would pass to the general residuary clause so that under Item 10 of the will appellant would receive one-half as a tenant in common and the other one-half would pass as though Ida B. Crockett died intestate. Finding no error, the decree of the chancery court is affirmed on direct appeal and on cross-appeal.	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Gut Amsler, Justice. Appellant, William Farrar (referred to in the record as Jack Farrar), on August 14, 1965, was charged by information in the Circuit Court of Lee 'County, Arkansas, with the crime of robbery. By separate informations Priest Bob Gates, Joe Cheers and Boland Cheers were charged with participating in the offense. Lafayette O’Donnell was the alleged victim. Within a few hours after the offense was committed on the evening of July 10, 1965, Joe Cheers and Boland Cheers left the State of Arkansas and were apprehended in Kansas City, Missouri, and returned to Lee County, Arkansas, sometime in the early part of 1966. On the 18th of February, 1966, all the defendants entered pleas of not guilty, and the court appointed counsel to represent the defendunts, Priest Bob Gates, Joe and Boland Cheers, and thereafter Joe and Boland Cheers changed their pleas to guilty and their sentences were deferred until after the trial of appellant and Priest Boh Gates. On the 7th day of March, 1966, the charges against appellant and Priest Bob Gates were consolidated and tried. Gates was found not guilty and appellant was convicted of grand larceny. The court entered its judgment sentencing Farrar to one year in prison. Appellant filed his motion for a new trial, which was overruled, and the case is here on appeal. Five errors are alleged, hut our conclusion necessitates a discussion of only one. The inquiry of importance is whether there was any corroborative evidence to support the testimony of an accomplice. There was considerable testimony regarding the early evening activities of the parties but we deem this of little significance since sometime around midnight of July 10,1965, the four defendants and the victim were first together at Farrar’s cafe. O’Donnell purchased a couple of drinks and a sandwich, which he used a $5 bill to pay for. O’Donnell decided to leave the cafe so appellant offered to haul him but he declined, .and then left, walking, with the Cheers boys. He was going by Emma Lee Jefferson’s (the Cheers’ boys Aunt) to leave his money for safe keeping before going some place else. There is a conflict regarding subsequent events. O’Donnell and the Cheers boys say that Farrar, with Gates in the car, picked them up and hauled them to Emma Lee’s house. Then O’Donnell, according to appellant’s brief, says: “I got out of the car, and the two Cheers boys got out with me, one on one side and one on the other, and Joe Cheers was the one that took my money. I said, ‘Bring my money back,’ and he started hollering, ‘Wait for me.’ I then went down and woke up Moore who was in the same house with Emma Lee and I got his car and he, Emma Lee and Moore got in his car and tried to find this other car, which we did in front of the Supermarket on Highway 79. I got out of the car and went up to the car. Joe Lewis was in and said, ‘Give me my money back.” Farrar did not say anything. Later on he said he did not know anything about any money.” On the other hand Farrar says that he and Gates, after leaving the cafe, decided to drive to “Millie’s Place” out on Highway 44. Then appellant’s brief recites : “We got out to Highway 1 and made a right turn off of Moton Street. We were going down Moton Street and got to Highway 1 and stopped, then made a right turn and went about a house and a half, I was at the Chinaman’s store. I was driving along real slow with the windows down, it was warm, and Joe Cheers came by and hollered and said, ‘Where are yon going?’ and I said, ‘I am going out to Millie’s, and he said, ‘ There is Eoland, ’ and he got in the car. Joe told me to stop for Eoland, and he told me they wanted me to take them to the Blue Goose on Highway 79 West of Marianna about two miles. Gates was in the car with me at the time and an old drunk fellow. After Eoland Cheers got in the car, he said he wanted to go to the Blue Goose, and I made a left turn on Florida Street, which runs North and South. We were going down Louisiana Street, one block from No. 1 Highway which goes one block to Arkansas Street which took us back to the Chinaman’s store and took us back within one house of Emma Lee’s house. We then went down Arkansas to No. 1 Highway, which runs back to Moton Street. Arkansas Street terminates and so does Moton. I was on my way out to the Blue Goose. I was going out Marine Street to Mann Fong, the Chinaman’s and that is where E. B. Moore pulled up behind me and Mowed his horn and Emma Lee Jefferson came up to the car. Emma Lee came over to my car and said, ‘Joe, give Son his money’ and he said, ‘I haven’t got his money,’ and Son said, ‘We are going to the police.’ I said, ‘I will go with you. ’ I g’ot in my car and trailed him, and he went back home. I thought he was going to the police. At that time, the Cheers boys, the old drunk and myself and Gates were in my car.” Joe Cheers testified that Bob Gates snatched O’Donnell’s purse as they approached Emma Lee’s porch, after riding up in appellant’s ear. He also said that Gates gave the money to appellant and that Farrar divided the money four ways. He claims that he got $27 and his brother a similar amount. Priest Gates testified that he did not see the money, did not get any of it and did not see it divided. Eoland Cheers did not testify. Lafayette 0 ’Donnell, the victim, testified positively that the Cheers boys took his money and that he didn’t think appellant had anything to do with it. Frank Turner testified that on Monday, following the robbery, he went to Memphis with appellant and. that he (Turner) loaned appellant money to replace a defective generator. If appellant had any money “he didn’t show it.” It will thus be seen that the only evidence against Farrar is that of the accomplice Joe Cheers — unless, of course, considerable weight is given to the fact that appellant gave the Cheers boys and the others a ride in his car and that he was near the scene of the crime. We have held that the corroboration of an accomplice must be substantial and that placing the defendant near the scene of the crime is not sufficient. Strum v. State, 168 Ark. 1012, 272 S. W. 359; Bright v. State, 212 Ark. 852, 208 S. W. 2d 168. The state in its brief says: “From O’Donnell’s testimony alone, the jury could have concluded that the appellant became aware of the fact that O’Donnell was carrying a large sum of money while 0 ’Donnell was in Farrar’s place of business; and, although 0 ’Donnell while at Farrar’s place refused a ride home in Farrar’s automobile, Farrar then followed O’Donnell and the ‘Cheers boys ’ and insisted on giving them a ride for the purpose of participating in taking the money from O’Donnell. From this testimony, it would appear that Farrar, Gates and the ‘Cheers boys’ had conspired, during the period that O’Donnell was at Farrar’s place, to steal the money, and that Farrar was an accessory to the accomplishment of that conspiracy.” This is clearly conjecture as there is not an iota of proof to support the argument that the defendants knew or discussed the amount of money the victim had or that any plans were made to relieve him of it. The corroboration is insufficient. Reversed and remanded.	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John A. Fogleman, Justice. Appellant filed its complaint and declaration of taking condemning 24.83 acres belonging to appellees, Clarence and Lorena Brown, in the Circuit Court of Crawford County on May 25, 1965. These lands, except for oil and gas interests that would not interfere with the surface use for highway purposes, were taken outright, along with temporary construction easements over 8.2 acres for construction of a controlled access, Interstate Highway No. 40. Trial to a jury resulted in an award of $40,000.00 to the landowners, from which this appeal is taken. Appellant finds itself in the unfortunate predicament of being unable to file a complete court reporter’s transcript of the testimony and proceedings in the case because of a breakdown in the reporter’s recording machine. This was discovered after the verdict and judgment and the giving of notice of appeal. Appellant then availed itself of the remedy this court has held to be applicable in these circumstances — the filing of a statement of the evidence or proceedings from the best available means, which in this case was the recollections of counsel for appellant, aided by notes taken by him during the trial. See Ark. Stat. Ann. § 27-2127.11 (Repl. 1962); Tomlin v. Reynolds Mining Corp., 231 Ark. 393, 329 S. W. 2d 552; Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481. While this statute requires that appellee, in such cases, serve objections or propose amendments within ten days, appellees did not file their response until twenty days had elapsed. Thereafter, the court heard the parties, caused witnesses who testified on behalf of appellees to be brought in, sworn and examined as to the testimony and ordered that the portion of the record offered by appellant showing the testimony of appellant’s witnesses and the statements of appellees’ witnesses be approved and incorporated into the record. Prior to the making of this order, appellant moved to strike the objections and proposed amendments filed by appellees, contending that by failure to respond within the period set out by statute, appellees had waived their right to object and that the appellant’s statement as to the testimony became the record thereof, insofar as this appeal is concerned. When this motion was denied and the court’s order settling the record made, appellant moved for a new trial on the premise that the inability of appellant to have a complete stenographic report of the evidence and proceeding constituted accident or surprise which ordinary prudence could not have guarded against, a statutory ground for new trial. This motion was also denied and appeal was also taken from the order overruling that motion. Appellant now contends that the trial court committed error in denying its motions. A review of our statutes and the decisions construing the Federal Rules of Civil Procedure, from which our statutes on the subject were adopted, along with the decisions above cited, clearly shows that the trial court has jurisdiction, as well as the responsibility, to settle the record on appeal. Ark. Stat. Ann. § 27-2127.11 requires that any such statement filed by appellant, with objections or proposed amendments, be submitted to the trial court for settlement and approval, and that the same as settled and approved by the trial judge be included in the record on appeal. While Ark. Stat. Ann. § 27-2129.1 (Repl. 1962) provides that it is not necessary for the record on appeal to be approved by the trial court, it requires that any difference that arises as to whether the record discloses what occurred in the trial court be submitted to and settled by the trial court which is authorized to direct that any omission or misstatement be corrected. The cited sections were adopted from former Rule 75 (h) and (n) of the Federal Rules of Civil Procedure [now 75 (c) and (d)]. Under these rules, it has been held that such a statement not accurately reflecting the truth and not submitted to the trial judge is for the attention, correction and disposition of the trial court. Miller v. Miller, 114 F. 2d 596 (D. C. Cir. 1940). If the judge cannot remember the evidence, he may call witnesses who gave or heard the testimony. Citizens National Trust and Savings Bank v. Welch, 119 F. 2d 717 (9th Cir. 1941). There is no error in the trial judge denying a motion to amend the record where he has no recollection of the matter sought to be inserted. Cox v. United States, 284 F. 2d 704 (8th Cir. 1960), cert. denied, 365 U. S. 863, 5 L. Ed. 2d 825; Cox v. General Elec. Co., 302 F. 2d 389 (6th Cir. 1962). The finding of the trial judge is conclusive unless clearly unreasonable, in the absence of any charge of deliberate and intentional falsification of the record. Gunther v. E. I. Du Pont de Nemours & Co., 255 F. 2d 710 (4th Cir. 1958); Belt v. Holton, 197 F. 2d 579 (D. C. Cir. 1952). It is only where the adverse party files no objections, or where no specific fault is pointed out by the trial judge that appellant’s statement of evidence is accepted by the appellate court. See Laughlin v. Berens, 118 F. 2d 193. (D. C. Cir. 1940); Citizens National Trust & Savings Bank v. Welch, 119 F. 2d 717 (9th Cir. 1941). But the appellant says that the tardy filing of appellees’ objections and proposed amendments requires that its motion to strike be granted and that its version of the record be accepted. Except as limited by statutes relating to the granting of default judgment when the first pleading of a defendant is not timely filed, a trial court has the discretion to permit a litigant to file pleas or other motions out of time as the circumstances of the case and justice may require and this discretion may not be controlled by this court unless it has been exercised to the palpable prejudice and injustice of the adverse party. Southern Improvement Co. v. Elliott, 160 Ark. 633, 255 S. W. 299; Norris v. Kellogg & Company, 7 Ark. 112; Crow v. State, 23 Ark. 684; Bookout v. Hanshaw, 235 Ark. 924, 363 S. W. 2d 125. It has been held that striking a cross complaint filed two months after the filing of the suit was erroneous where the filing occasioned no delay. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795. The trial judge seems to have followed the appropriate procedure in settling the record, and we find no prejudicial error. Appellant’s contention as to the refusal of its motion for new trial for unavoidable casualty has been answered adversely to appellant in Ark. State Highway Commn. v. Clap, 241 Ark. 501, 408 S. W. 2d 600. Error in refusal to give appellant’s requested instruction No. 7 is also asserted. That portion of the record transcribed and certified by the court reporter shows that this instruction was given. This statement will have to be accepted by this court, particularly in view of the fact that the trial court accepted appellant’s version of the record only as to the testimony of witnesses called by appellant. Appellant also contends that the trial court erred in overruling its motion to strike the testimony of certain witnesses concerning damages for loss of access to 57 acres of appellees’ farm. This is based on appellant’s assertion that this tract will be accessible to the remainder of appellees’ tract by reason of the fact that access will not be controlled under a bridge over the relief along the eastern boundary of the property and along the northern right-of-way line of the highway, which will traverse the Brown farm from northeast to southwest. The answer to this contention lies in the fact that there was testimony that water stands ten months of the year on this area; that heavy farm implements and trucks required for use on the tract or in harvesting and transporting crops could not be moved in and out by this means; that the area would wash out and be rough; and that this amounted to no access, or was not the kind of access that prevented a great decrease in the land value due to severance. This presented a factual question for determination by the jury and the motion to strike was properly denied. Appellant asserts that there is no substantial evidence to support the jury verdict, but with becoming candor, appellant’s counsel admits that there is no merit in this point unless the case should be reversed for one of the other errors asserted. It is sufficient to say that after a careful examination of the record, we agree with this admission. The judgment is affirmed.	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Carleton Harris, Chief Justice. Appellant, Paul William Theodore Moore, Jr., was charged by Information with Forgery and Uttering in 'Craighead County, Arkansas. After demanding an early trial, and refusing the offer of counsel, stating that he would prefer to represent himself, Moore was tried by the Craighead County Circuit Court sitting as a jury, found guilty as charged in the Information, and sentenced to five years for forgery, and five years for uttering, the sentences to run consecutively. From the judgment so entered, appellant brings this appeal. For reversal, it is asserted that Moore was not guilty of forgery and uttering, and the proper charge, if any, was False Pretense. It is also alleged that Moore was entitled to trial by a jury, and that he was further entitled to counsel “almost from the moment of his arrest,” his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution being violated under the holding in Escobedo v. Illinois, 378 U. S. 478. We proceed to a discussion of these points in the order listed. The evidence reflects that Moore went into the Mercantile Bank in Jonesboro, and told Tony Futrell, Assistant Cashier of the bank, that he needed “about $30.00 till tomorrow,” at which time he would have the opportunity to transfer money from a bank in Texas. Moore represented that he was working at the airport, installing an electrical transmission system. He further said that he was staying at the Holiday Inn, and would be in Jonesboro about three weeks. After some further conversation, Futrell agreed to cash the check, and Moore then took a blank check that he had in his possession on the Midway National Bank of Grand Prairie, Texas, and wrote the check in the amount of $30.00,' listing the account number as No. CA-973, and then signing on the signature line, “Carlton Electric Co., Ltd.” Immediately beneath the signature line, he wrote, “Vancouver, B. C., Canada,” and still below that, added “PaúIW. T. Moore.” After checking with the airport, Holiday Inn, and the Midway Bank, Futrell called the police officers, and Moore was arrested. Boland W. Walden, President of the Midway National Bank of Grand Prairie, Texas, testified that he had thoroughly searched the records of his bank- with respect to an account of Carlton Electric Co., Ltd., and that no such account existed, or had ever existed. He further stated that no account had ever existed at the' bank under the name of’ Paul W. T. Moore. Walden testified that the account numbers in his bank had no letters whatsoever, and all account numbers contained more digits than that on the check in question. Moore subsequently took the stand, and admitted that he was not connected with any Carlton Electric Co., Ltd., and also admitted that that name was entirely fictitious. In addition, he stated that he had no account at the bank. We disagree with the contention that Moore was improperly charged with forgery and uttering, rather than false pretense, though it appears from the evidence that he could have also been charged with that offense. The basis of appellant’s allegation of the erroneous charge is that he signed his own name to the cheek, but it must be remembered that Moore, in signing this check, represented that Carlton Electric Co., Ltd., had an account with this bank. In other words, he did not maintain in signing the check, that he had a personal account in the Midway Bank, but only that he had authority to sign checks on the company — an account which he knew did not exist — and which could not exist, since he had made up the name, and to his knowledge, no such company was in being. We have held on several occasions that forgery can be committed where the name forged is fictitious. See Maloney v. State, 91 Ark. 485, 121 S. W. 728, Walker v. State, 171 Ark. 375, 284 S. W. 36, Tarwater v. State, 209 Ark. 687, 192 S. W. 2d 133, and Thompson v. State, 293 Ark. 780, 394 S. W. 2d 491 . In fact, the contention here made was also relied upon in Walker v. State, supra. In discussing this argument, we said: “It was shown that the name of the drawer of the check, T. E. Smith, was that of a fictitious person, and instructions were asked which, if given, would have told the jury that, if this were true, appellant would not he guilty of forgery, but would be guilty of the offense of obtaining goods and property under false pretenses, an offense not charged in the indictment, and to acquit the defendant on this account. * * * “The court did not err in refusing to instruct the jury that, if T. E. Smith were found to be a fictitious person, the crime committed was not forgery, but that of obtaining money under false pretenses. In the case of Maloney v. State, 91 Ark. 485, it was held that to constitute forgery the name alleged to be forged need not be that of any person in existence.” We find no merit in this contention. With regard to the second contention, we agree that our constitution grants the right to trial by jury. See Article 2, Section 7, Arkansas Constitution. However, that same section also provides that a jury trial may be waived by the parties in all cases in the manner prescribed by law. Here, the record reflects that Moore, on July 19, 1965, at arraignment, told the court that he desired a speedy trial, whereupon appellant was informed that the next term of the Craighead Circuit Court would not convene until November. Moore replied that he could not make bail, and he requested that he be tried by the judge of the court, sitting as a jury. Other court matters intervened to prevent the court’s return until September 2, at which time the trial was held. Ark. Stat. Ann. § 43-2Í08 (Repl. 1964) reads as follows: “In all criminal cases, except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to such waiver. Such waiver and the assent thereto shall be made in open court and entered of record. In the event of such waiver, the trial judge shall pass both upon the law and the facts.” This statute was followed, and there was no error. The right to a speedy trial does not mean that all other business of the court must be “shoved to the back” in order to give an immediate trial. Such action, of course, would be impossible, since there are other criminal cases that must be disposed of, those defendants holding exactly the same right as the defendant who desires early disposal of his particular case. Obviously, all could not be heard within a short period of time. The case was heard by the court, sitting as a jury, only because of appellant’s insistence that this be done. Finally, it is urged that Moore was entitled to counsel after he was arrested, and that the failure to furnish counsel at that time was a violation of his constitutional rights as set out in Escobedo v. Illinois, supra. This allegation is based upon the fact that Moore gave a written statement to Officer Bratton of the Jonesboro City Police, in which he admitted that the name, “Carlton Electric Company,” was entirely fictitious, and that he knew there was no account in that name, or his name; also, that he had no account under any name in the Midway National Bank. We do not agree that this case comes under the holding in Escobedo. Officer Bratton testified that he advised Moore that the latter was entitled to counsel, and the witness further said that the statement was entirely voluntarily made. The statement itself, signed by Moore, sets out that he has been advised of his right to counsel, and also advised that he did not have to make any statement. This is far afield from Escobedo, where a handcuffed prisoner was admittedly not advised of his constitutional rights, but rather was urged to make a statement. In addition, the accused repeatedly asked to speak to his lawyer, and the lawyer, who was present in the building, was refused permission to talk with Escobedo. It is apparent that there is not even a shred of similarity between the cases. For that matter, Moore did not, even at his trial, contend that he had been denied legal counsel, or that he had been deprived of any other right. In fact, before the statement was admitted, the court gave Moore the opportunity to show the circumstances under which the statement was made, but Moore declined. Moore certainly could not have been prejudiced by the statement given, since he, of his own volition, took the witness stand to testify in his own behalf, and, in open court, admitted that he. signed and cashed the check, thát the Carlton Electric Company was entirely a fictitious name, and that he himself had no account at the bank. The record reflects that the court was apparently very careful, at the time of arraignment, to see that Moore understood that the charges against him constituted a felony, and that appellant understood the court could immediately appoint an attorney for him so that he might have the benefit of counsel during all subsequent proceedings. The offer, as previously mentioned, was declined, Moore preferring to represent himself. The record does not reflect the reason for this choice, but Moore cross-examined all state witnesses and presented one witness for the defense, in addition to his own testimony. Finding no reversible error, the judgment is affirmed. It is so ordered. The court appointed counsel to represent Moore in the appeal to this court. In Maloney v. State, supra, and Thompson v. State, supra, we reversed the convictions, holding that the state had not proved the purported drawer to be fictitious. The record is not clear at this point, but the court evidently informed Moore that a jury would not be impaneled before that time. “The Court: I suggest, at this time, let the defendant look at the statement. He would be entitled, at this time he would be entitled to cross-examine the witness regarding the circumstances under which the statement was made. Take your time, Mr. Moore, read that over before you do that. (Note: Defendant examined statement.) ■“The Court: At this time, Mr. Moore, you may ask any questions of this witness, regarding the circumstances under which the document you have before you was taken and prepared and those circumstances prior thereto, may ask him any question. It is necessary for the court to determine, whether or not, the statement was voluntarily made and in subservience to your constitutional rights in the matter. May ask this witness any question, surrounding the circumstances, you desire. “Mr. Moore: No questions, Your Honor.” Moore admitted, while testifying in his own behalf, that he had been convicted on approximately 22 counts of false pretense, and one parole violation.	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Hugh M. Bland, Justice. This is a suit to quiet title to 40 acres of land in Faulkner County, Arkansas. In 1953 appellees leased the 40-acre tract from Mrs. Minnie Meeks, constructed fencing around the land thereby enclosing it within their overall or perimeter fences. In 1956 Mrs. Meeks discovered that she did not own this particular tract but appellees continued in possession, pasturing the lands, built a road to and across it, cut posts off of it and otherwise used the land as their own. In 1964 appellants obtained a quitclaim deed to the land from the widow of C. E. Gentry who had obtained a deed from one John Griffith purporting to convey to him an undivided one-half interest in the land. The only claim Griffith had was a tax deed from the State issued in January 1930 for forfeiture of the taxes in 1923. On January 20, 1930 Mr. Griffith executed and delivered a quitclaim deed to H. L. Henry and C. E. Gentry. Mr. Gentry died testate in 1952, devising his property to his widow, Edna M. Gentry. Mrs. Gentry then executed and delivered a quitclaim deed to appellant, John H. Robinette, on May 21, 1964. Appellants ’ predecessors in title, including John Griffith, were never in possession of the lands and did not pay the taxes. The taxes upon these lands for 1945 to and including 1962 were paid by Robert O. Carmichael, originally a party to the suit until appellees obtained a quitclaim deed from Carmichael and his wife. Mr. Carmichael testified he paid these taxes by mistake. Appellee paid the taxes for 1963 and appellants paid them for 1964. Four witnesses testified for appellees and clearly established that appellee purchased 410 acres in 1952 and all of these lands were enclosed with a continuous fence and since leasing the lands in 1953, has maintained Ms fences so as to enclose the subject property within his overall fences. To rebut this testimony appellants produced one witness, John H. Robinette, who testified as to the fencing but added little, if any, to the testimony already adduced since he had not seen subject lands and had not been in the area from 1953 to 1963. After trial, the court found that the appellees have had actual pedal, adverse possession of the 40 acres in question for the statutory period prior to institution of this suit on September 16, 1964; that the pasturing- of cattle for at least seven years prior to suit, when taken together with the cutting of posts, working a small road to reach said lands, the maintenance of substantial fences around the lands and all of the other lands occupied by appellees by lease or otherwise; that said lands were enclosed and appellees’ cattle were kept witMn the overall fence and enclosure. The court entered a decree quieting title to the lands in appellees. For reversal, appellants contend (1) that appellees do not have a claim of adverse possession under color of title, (2) non-payment of taxes by appellees, (3) appellees did not occupy said lands for statutory period, (4) no notice to anyone that appellees claimed said lands and (5) that appellees never had any actual, open, notorious, continuous, hostile and exclusive possession of the land involved. We see no merit in any of the contentions of appellants. Both parties cite Varn’s Annotated Supplement to Jones, Arkansas Titles, § 1498, page 910, as a correct statement of the law of this state: “In order that adverse possession may ripen into ownership, possession for seven years must have been actual, open, notorious, peaceable, continuous, hostile, and exclusive. It must be accompanied with an intent to hold adversely — in derogation of and not in conformity with the right of the true owner. ’ ’ The testimony of the witnesses clearly establishes that notoriety of possession, as defined in Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489 and Newman v. Newman, 205 Ark. 590, 169 S. W. 2d 667, was proven by a preponderance of the evidence. On the question of notice, we have consistently held that notice of adverse possession may be actual or it may be implied by facts and circumstances such as pasturing stock, the existence of fences, the cultivation or improvement of land. Black v. Clary, 235 Ark. 1001, 363 S. W. 2d 528; Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900. The main contention urged by appellants is that appellees did not construct a fence around all four sides of this particular 40-acre tract. This 40 acres is, however, within the perimeter of the overall fence around all of appellee’s lands. This contention is refuted in the ease of Burns v. Mims, 224 Ark. 776, 276 S. W. 2d 76, where we said: “* * * Hostility of possession is to be judged by the views and intentions of the person occupying the property, not by those of the landowner whose title is being extinguished. Trapnall v. Burton, 24 Ark. 371, 395. It was enough for the appellee to erect a single fence encircling the entire tract; he was not required to subdivide his claim by the construction of cross fences conforming to the record ownership of the interior lots. The appellant was put on notice of the hostile claim by the fact that his access to his lots was obstructed from every direction.” See, also, Kieffer v. Williams, 240 Ark. 514, 400 S.W. 2d 485 (1966). The chancellor made the following findings of fact: ‘ ‘ The sole issue for decision in this case is whether plaintiffs have had actual pedal, adverse possession of the 40 acres in question for the statutory period prior to institution of this suit on September 16, 1964. It is held that the pasturing of cattle for at least 7 years prior to suit, when taken together with the cutting of posts, the road work, and the overall enclosure, is sufficient to constitute adverse possession of the lands in question. The evidence shows that substantial fences were maintained around plaintiffs ’ lands and all of the other lands, and even though gates were across the public road, this did not prevent the enclosure. The cattle were kept within the overall fence and this was not an open range type of situation... ” Finding no error, the decree of the chancery court is affirmed.	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Carleton Harris, Chief Justice. Sometime prior to December, 1961, Ruebel and Company, Little Rock fu neral directors, decided to construct a funeral home on West Markham Street. Wittenberg, Delony and Davidson, Inc., Little Rock architects, were employed to design the building, and in furtherance of the employment, these architects prepared plans and specifications. In doing so, they designed the outer walls to be built from pre-cast concrete slabs. The architects then sent their proposed design to Harter Marblecrete Stone Company, Inc., the proposed manufacturer, for suggestions. Harter made some suggestions for change in the design of the slabs, and thereafter manufactured them in accordance with these changes. The architects let the contract for construction to Cone and Stowers, and agreed with Ruebel, for an additional fee, to supervise and inspect the construction. The exterior walls of the building were to be these pre-cast slabs, 10 feet high, 8 feet wide, and 3 inches thick. Robert Walker, appellant herein, was a brick mason, who had been engaged in the task of laying’ light aggregate blocks behind the pre-cast concrete slabs. After these blocks had been laid on the east wall of the building, nearly to the top, the bracing, which had been holding the slabs upright, was, at the direction of the assistant superintendent for Cone and Stower, removed in order for the top two courses of blocks to be laid. Walker was standing on top of the wall, and when the last brace had been removed, the wall fell outward, and appellant suffered the injuries for which he subsequently brought suit. Complaint was instituted against the architects, it being alleged that said architects were negligent in failing, under their contract, to prepare proper plans, and in failing to supervise construction after award of the contract. Subsequently, the complaint was amended to make Ruebel and Company a defendant, it being alleged that this company was negligent in failing to .have a licensed architect to supervise the work as provided by Little Rock Ordinance No. 204, and still later, Harter Marblecrete Stone Company, Inc., was made a defendant, it being alleged that the pre-cast stone panels were of faulty design; that Harter negligently failed to warn of the inadequacy of the design and the danger created thereby, and also negligently failed to submit specifications for the use and erection of said panels to prevent them from falling during construction. After the filing of answers, amendments and interrogatories, the case proceeded to trial, and at the conclusion of appellant’s evidence, the court instructed the jury to return a verdict for both appellees. From the judgment so entered, appellant brings this appeal. We think the court erred in directing a verdict for the architects. In the first place, an architect’s liability for negligence which results in personal injuries or death may be based upon his supervisory activities. 5 Am. Jur. 2d 688, Paragraph 25. It is undisputed that Wittenberg, Delony and Davidson, in addition to preparing the plans and specifications, were also employed to supervise the construction, and for this they received a special fee. The employment of the architects was done under Little Rock City Ordinance No. 204, which requires that an owner engaged in the erection of a building where the estimated value exceeds $25,000.00, shall employ a registered architect, or a licensed engineer, to supervise the construction of the building. The A.I.A. General Conditions were explicitly made a part of the specifications in the contract (with the construction company), stating, “A.I.A. Document No. A-201, 1952 Edition of the American Institute of Architects, are hereby made a part of this specification to the same extent as if bound herein. ’ ’ Article 38 of the A.I.A. General Conditions of the contract provides, inter alia: “The Architect shall have general supervision and direction of the work. He is the agent of the Owner only to the extent provided in the Contract Documents and when, in special instances he is authorized by the Owner so to act, and in such instances he shall, upon request, show the Contractor written authority. He has authority to stop the work whenever such stoppage may be necessary to insure the proper execution of the Contract.” It is the contention of appellant that, since the architects agreed with the owner to supervise, and inspect, and were paid a fee for it, they had a definite duty to supervise the work, including the responsibility of taking steps to secure the safety of the workmen. Witnesses for this appellee admitted that the owner had no one else to inspect the work and see that it complied with ordinances, regulations, etc., and it was further admitted that no one from the architectural firm performed any supervisory activities. Mr. Tom Gray, an employee of Wittenberg, Delony and Davidson, testifying for these appellees, agreed that a free-standing wall, i. e., a wall that does not have any lateral support, is not stable, and when braces are removed, such a wall will not stand. The architects defended primarily on the contention, and they argue here, that their duty was to supervise and inspect only to the end that when completed the building would conform to plans and specifications, and they were also to determine that the construction was in compliance with the Little Rock Building Code. They assert that there was no duty upon them to direct or control the contractor in reference to the temporary support of the panels during construction. It is further contended that they were only required to make periodic visits to the job site (as a matter of determining that, when completed, the building would conform to the plans and specifications); that they were not responsible for the “on the spot” directions given by the assistant supervisor for the contractor, Henry Bowden, who directed that the braces be removed from the east wall; they were not present when the order to remove the bracing was given, had no knowledge thereof, and accordingly, cannot be held legally responsible. It is true, of course, that if there was no obligation upon the architects to be present during construction, this argument would be valid. The contention that the sole duty of the architects was to supervise to the end that the building would conform to plans and specifications when completed, was likewise the principal defense in Erhart v. Hummonds, 232 Ark. 133, 331 S. W. 2d 869, but we upheld a judgment against the appellant architects in that case. These appellees say there is a distinction between the present case and Erhart, for there, in setting out the duty of the contractor to shore and protect walls of excavations, there was additional language, “or as directed by the architects,” and here, there is no specific reference to the architect in Article 12 of the General Conditions. We do not agree that these particular words preclude any possible liability on the part of architect appellees, for under A.I.A., as heretofore stated, the jury could have found that there was a responsibility on Wittenberg, Delony and Davidson to supervise in a manner consistent with appellant’s contention. Appellant, and architect appellees, apparently are far apart in their interpretation of the meaning of the word, “supervise,” and it is interesting to note that Webster’s Third New International Dictionary shows the word, “supervise,” (among other definitions, as meaning) “To look over, inspect, oversee, * * * to coordinate, direct, and inspect continuously and at first hand the accomplishment of.” The architects insist that they were not derelict in any duty that they owed to the owner, but we stated in Erhart: “* * * The issue here, we think, is not whether the architect breached any duty to the owner, but whether there was a breach of duty owed to the workmen by the architect arising out of the safety provisions of the contract. ’ ’ Appellee cites cases (nearly all from other states) in support of the position taken, but, as stated, we think Erhart is applicable. We hold there is a fact question here as to the duties imposed upon the architects under the term, “supervision.” Does this term prescribe only such supervision as contended by appellee! Is there significance in the omission of the phrase appearing in the contract in Erhart, “or as directed by the architects,” or, on the other hand, was there a duty, as contended by appellants, upon the architects, under the term, “supervision,” to take positive steps to insure the safety of workmen during the construction! To some extent, the agreement is ambiguous, and where a contract is ambiguous, a question of fact is created to be passed upon by the jury. El Dorado Real Estate v. Garrett, 240 Ark. 483, 400 S. W. 2d 497. We think sufficient evidence was offered to submit the question to the jury. We agree with the trial court that appellant’s proof was insufficient to make a jury question as to the liability of appellee Harter Marblecrete Stone Company, Inc. There is no proof that the slabs were defectively designed or manufactured, and, in fact, this question (which was an allegation in the complaint) is not argued in the brief; as a matter of law, we agree with the trial court that these slabs were not inherently dangerous, nor was it reasonably foreseeable that a use would be made of the slabs which would cause injury to some individual. Similar contentions are discussed in our case of Lilly v. Riggs Company, 238 Ark. 1027, 386 S. W. 2d 488. There, Roy Lilly was killed while endeavoring to repair a broken cable on a Caterpillar machine. His widow instituted suit against the tractor company, alleging that proper warnings were not given as to the safe manner for unsnarling a broken cable, and that the failure to give proper instructions and warnings constituted negligence on the part of the company, its agents, and employees. On trial, the court directed a verdict for the company, and Mrs. Lilly appealed. After dis cussing the function and manner of operation of the Caterpillar, this court, in affirming the action of the trial court, said: “Appellant asserts that the Caterpillar was inherently dangerous, hut we do not agree. Black’s Law Dictionary, Fourth Edition, Page 921, defines ‘inherently dangerous’ as ‘danger inhering in instrumentality or condition itself at all times, so as to require special precautions to prevent injury, not danger arising from mere casual or collateral negligence of others with respect thereto under particular circumstances.’ Of course, no citation of authority is necessary to support the statement that the mere fact that one is injured by a machine, or instrument, does not mean that the machine or instrument is inherently dangerous. It has been said that a product is inherently dangerous where the danger of injury stems from the nature of the product itself. An automobile, driven at a high rate of speed — or without proper brakes — or, if at night, without headlights — or if operated by one who is intoxicated — can certainly become a highly dangerous instrument, capable of causing death and crippling injuries. Yet, there is a general agreement among the jurisdictions that motor vehicles are not inherently dangerous (Annot. 74 A.L.R. 2d 1111). Numerous articles or substances, which have been held not to be inherently dangerous within the meaning of the rule, include an electric body-vibrating machine, an electric stove, a chain, a haybaler, a flat iron, a gas stove, a porch swing, a sofa, a refrigerator, and others too numerous to mention. See Defore v. Bourjois, Inc., 105 So. 2d 846. Still, all of the articles or instruments mentioned can, by particular use, cause death or severe injury. In fact, as this court stated in Reynolds v. Manley, 223 Ark. 314, 265 S. W. 2d 714, ‘It is possible to use most anything in a way that will make it dangerous.Of course, certain substances or articles are inherently dangerous, such as dynamite, nitroglycerin or other explosives, poisons, and many others. In the case before us, we are definitely of the opinion that the Caterpillar itself was not inherently dangerous; it was the manner of repairing that created the danger, i. e., it was the fact that the cable was deliberately cnt, causing the spring to pull the ejector sharply back, that caused Lilly’s death, rather than the fact that the Caterpillar was equipped with a cable and spring.” We think the reasoning in that case is applicable to this phase of the present litigation. It was not a manufacturing defect that caused the east wall to fall — rather the collapse of the wall was occasioned by the fact that the bracing, which had been holding the manufactured slabs upright, was removed. The designed wall met all requirements of the building codes of the city of Little Rock. Nor do we think that Harter could have for-seen that the bracing would be removed from the slabs while the wall was still being worked on. After all, Harter sold these concrete panels to a licensed and experienced contractor, and there was no reason to assume that the panels would not be handled with ordinary care and in accordance with good construction procedures. As Harter states in its brief: “This panel is no more an inherently dangerous object than a ladder which will fall if not placed against a steady object.” As stated, there is no evidence that the panels contained any latent defects, nor any proof that they were in any manner dangerous when used in a manner consistent with the use for which they were made. We find no showing of negligence on the part of this appellee. In accordance with what has been said, we affirm the holding of the Pulaski County Circuit Court (Second Division) in dismissing appellant’s complaint against Harter Marblecrete Stone Company, Inc., but that portion of the judgment dismissing the complaint against Wittenberg, Delony and Davidson, Inc., is reversed and set aside, and the cause of action against this defendant is remanded back to the trial court, with directions to proceed in a manner not inconsistent with this opinion. Amsler, J., disqualified. Wittenberg, Delony and Davidson is incorporated, but we shall refer- to this appellee in the plural. On trial, the undisputed proof reflected that Ruebel employed Wittenberg, Delony and Davidson in a supervisory capacity, and tbe complaint as to Ruebel was dismissed without objection. A.I.A. is an abbreviation for American Institute of Architects. 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Guy Amsler, Justice. This case involves a dispute over some 600 to 700 acres of land that each district involved desires to have within its boundaries. The acreage had a taxable value of approximately $52,000.00 and 8 pupils were residing thereon in 1965. In January of 1965 the directors of Bergman School District (called Bergman herein) petitioned [Ark. Stat. Ann. § 80-412 (Repl. I960)] the Boone County Board of Education (hereinafter called County Board) for á boundary line change. Directors of the Harrison School District (called Harrison) refused to agree and the County Board acting pursuant to authority given it under Ark. Stat. Ann. § 80-412, supra, fixed the boundary line so that the disputed area was transferred to Bergman. Harrison appealed to the Circuit Court of Boone County and that court reversed the County Board— basing its conclusion on our decision in School District No. 10 v. County Board of Education, 185 Ark. 328, 47 S. W. 2d 606. Bergman and County Board have appealed. The only point relied on by appellants for reversal is: “ That the lower court erred in holding that the area of land involved in the Board of Education’s modification of boundary lines was substantial.” The learned trial judge determined that the change in boundary line was of a substantial nature and that therefore the action of County Board was void. In School District No. 10 v. County Board of Education, supra, we said: “No notice was given of the proposed change of the boundaries amounting to annexation of territory, in accordance with said § 44, [Ark. Stat. Ann. § 80-404 (Repl. I960)] nor any petitions presented or election held for that purpose, and the county board was without jurisdiction or authority to make the order changing the boundary lines, in effect taking a very substantial part of the territory of one district and annexing it to the other under the guise and procedure as for a change of boundary lines only.” Since the General Assembly has not, subsequent to the above decision, provided the courts a yard stick for determining what constitutes boundary changes of a “substantial nature” we are not disposed to override the trial court’s conclusion. Affirmed.	[ 116, -20, -4, 60, 122, -64, 59, -115, 123, -85, 119, -45, -17, -38, 29, 113, -93, 47, 97, 104, -42, -78, 83, -63, 50, -13, -39, 87, -71, -34, 108, 95, 76, 48, -54, 85, 68, 66, -115, -36, 38, 6, -117, 76, 88, -62, 56, 101, 18, 74, 37, -81, -13, -83, 25, -57, 77, 46, -39, 45, 0, 122, -78, 79, 123, 6, 1, 116, -102, -125, 80, -86, -112, 49, -120, -24, 115, 38, -110, 100, 9, -103, 8, 96, -26, 0, -4, -33, -4, -119, 14, -2, 45, -90, -122, 89, 107, 6, -66, -99, 117, 84, 15, 126, -28, -60, 95, 124, 38, -30, -10, -79, -115, -95, -128, 3, -61, 11, 48, 113, -53, -58, 95, 86, 50, -101, 78, -15 ]
Ed. F. McFaddin, Justice. A marriage of 24 years has culminated in this divorce suit. We deliberately forego a detailing of the evidence because on this appeal the appellant, Mrs. Burton, seeks a reversal on the grounds of condonation, claimed to have occurred after she filed her suit for divorce. She cites such eases as Harris v. Harris, 209 Ark. 528, 191 S. W. 2d 465; Buck v. Buck, 205 Ark. 918, 171 S. W. 2d 939; and McDougal v. McDougal, 205 Ark. 945, 171 S. W. 2d 942. The case was not tried or decided on the issue of condonation; and it does not appear to have been mentioned in the trial court except in a few lines of testimony, which the appellant has seized on for reversal here. Most jurisdictions hold that condonation is a defense which generally has to be pleaded. 24 Am. Jur. 2d 642, “Divorce and Separation,” § 318. Bnt regardless of that matter, the fact remains that condonation, even if pleaded, would not have been a good defense in this case for the reason that we now give. Mrs. Burton filed her suit for divorce on May 21, 1965. The claimed act of condonation is alleged to have occurred on July 4, 1965. It was not until August 10, 1965, that Mr. Burton filed his cross complaint for divorce. Mrs. Burton never filed any pleadings denying the cross complaint or answering any of the allegations. The case was tried before the Chancellor on September 16,1965, and resulted in a divorce decree in favor of Mr. Burton. Thus, even if there were any act of condonation (which is doubtful), nevertheless the divorce was granted on a cross complaint on a cause of action which occurred after the claimed condonation. Even though the husband is prevailing on this appeal, we nevertheless tax the actual costs of this appeal against appellee. Affirmed.	[ -112, -20, -43, 78, -117, 32, -94, -82, 66, 47, 39, -45, -17, -22, 16, 127, 106, 47, 81, 104, 81, -77, 119, 64, -14, -13, -8, 91, -79, 111, 100, -33, 72, 122, -89, -43, 98, 10, -59, 84, 78, -126, -117, -52, 88, 70, 48, 41, 80, 31, 17, -74, -13, -86, 49, 71, 40, 46, 79, 44, -44, 48, -114, 21, 127, 38, -111, 52, -34, -95, 88, 63, 24, 56, 32, -24, 115, -90, -122, 116, 79, -103, 32, 48, 98, 5, -127, -1, -104, -120, 15, 124, -99, 38, -8, 17, 75, 32, -66, -67, 117, 20, -83, -6, 112, -115, 126, 108, 15, -114, -108, -79, -51, 90, -100, -125, -21, -29, 16, 81, -49, -94, 92, 67, 57, -37, -50, -96 ]
G-eorge Bose Smith, Justice. At the general election held on November 8,1966, the appellant and the appellee were rival candidates for the office of State Bepresentative for the Fifth District, comprising Fulton and Baxter counties. Mrs. Sheid, the Democratic nominee, was certified as the winner by a vote of 4,542 to 4,488. Pendergrass, the Republican nominee, brought this action in the Pulton Circuit Court to contest the election. His complaint asserted that the votes of 84 specified electors should be declared illegal for various reasons, such as nonresidence, irregularities in absentee voting, and so on. This appeal is from an order dismissing the suit for want of jurisdiction. We agree with the trial court. The Constitution provides that each house in the General Assembly “shall be sole judge of the qualifications, returns and elections of its own members.” Article 5, § 11. By Act 34 of 1875 the legislature prescribed the procedure for contesting -an election for State Senator or Representative. Ark. Stat. Ann. §§ 3-1213 to 3-1217 (Repl. 1956). That statute requires the contestant to give his adversary written notice of the points on which the election is to be contested. The parties then take their evidence by deposition, before the date on which the legislature is to assemble, and file it with the President of the Senate or the Speaker of the House, as the case may be. Thus the statute contemplates that the contest will be decided by the Senate or the House of Representatives, without a court proceeding of any kind. We have repeatedly held, directly or by implication, that the judicial branch of the State government is without jurisdiction of election contests involving seats in the General Assembly. Irby v. Barrett, 204 Ark. 682, 163 S. W. 2d 512 (1942); State ex rel. Evans v. Wheatley, 197 Ark. 997, 125 S. W. 2d 101 (1939); Parrish v. Nelson, 186 Ark. 786, 55 S. W. 2d 922 (1933); Young v. Boles, 92 Ark. 242, 122 S. W. 496 (1909); see also State ex rel. Brooks v. Baxter, 28 Ark. 129 (1873). There is nothing contrary to those decisions in Matthews v. Bailey, 198 Ark. 830, 131 S. W. 2d 425 (1939), cited by the appellant. .That case merely held that the vote of a person appointed to the State Senate by the governor, contrary to the express language of Amendment 29, could not be counted. There the court was compelled to make a choice between two constitutional provisions, either of which might have been controlling. That is not the situation here. The appellant urges us to adopt the position taken in cases such as Odegard v. Olson, 264 Minn. 439, 119 N. W. 2d 717 (1963), Rogosheske, J., concurring; People ex rel. Brown v. Board of Sup’rs of Suffolk County, 216 N. Y. 732, 110 N. E. 776 (1915); and Wickersham v. State Election Board, Okl., 357 P. 2d 421 (1960). In those cases the courts reasoned that even though each house in Congress or in the legislature is the sole judge of the ‘elections of its own members, that power to speak the final word does not prevent the courts from entertaining an election contest. Such a judicial proceeding was regarded as a convenient method of taking evidence about the conduct of the election and of reaching a tentative conclusion as to the winning candidate. The appropriate legislative body would then be at liberty to accept the court’s decision or to arrive at a determination of its own. We have no quarrel with those cases, but they do not reach the problem now before us. Those decisions, if followed in Arkansas, would mean only that the General Assembly, if it chose to do so, might permit the courts to take jurisdiction of such an election contest as a means of gathering evidence to assist the Senate or the House in reaching its own conclusion. But, as we have seen, our legislature has not seen fit to adopt such a statute. Instead, its directive for almost a century has been that the contesting parties take their proof by deposition and submit it in the first instance to the appropriate branch of the General Assembly, bypassing the courts altogether. We are not impressed by the appellant’s suggestion that the necessary statutory authority for a judicial contest is to be found in § 1 of Act 15 of 1879. Ark. Stat. Ann. § 3-1210. That section merely provides that in all suits to contest the election “of any State, district, circuit, county or township office,” the contestant must give a bond to insure tbe payment of any money judgment that be may suffer. We cannot take seriously tbe argument that this bare requirement of a bond was intended to confer upon tbe courts jurisdiction of election contests for every one of tbe offices mentioned. Tbe statute is evidently applicable only to those contests of which tbe courts otherwise have jurisdiction. Tbe case at bar does not fall within that category. Affirmed.	[ -76, -18, -15, 60, 10, -64, 58, 14, 26, -101, -27, -46, -83, 16, 20, 115, -85, -85, 113, 123, -59, -94, 87, -61, 50, 115, -117, -41, -67, 73, -11, -4, 72, 48, -54, -43, 70, 78, -57, -36, -58, 10, 73, 109, 72, -61, 56, 110, 50, 15, 85, 62, -15, 46, 25, 67, 105, 40, -39, -92, -55, -69, -100, 7, 109, 6, 49, -121, -98, -125, 120, 62, -40, 17, 0, -8, 51, -90, 2, -44, 106, 25, 12, -32, 98, 10, -95, -49, -88, -119, 38, 62, 29, -26, -106, 41, 99, 14, -74, -99, 117, 80, -117, -6, -31, 69, 21, 60, -81, -50, -106, -73, 7, -94, -98, 2, -29, -14, 112, 117, -51, -2, 84, -57, 51, -101, -49, -44 ]
Ed. F. McFaddin, Justice. This is an appeal from the order of the Circuit Court granting a new trial (Ark. Stat. Ann. § 27-2102 [Repl. 1962], as amended by Act No. 547 of 1963). Appellees, Mr. and Mrs. Bradford, filed this action against appellant, Chird Bobbitt, for damages alleged to have resulted from his negligence in a traffic mishap. Trial to a jury resulted in a verdict for Mrs. Bradford for $3,000.00 and for Mr. Bradford for $100.00 The Bradfords filed a motion for new trial, which the Court granted. Appellant resisted the motion for new trial and has appealed from the order granting it, urging one point: “The Circuit Court erred in setting aside-the verdicts of the jury and in granting a new trial.” We find no reversible error committed by the Trial Court in granting the new trial in this case. Ark. Stat. Ann. § 27-1901 (Repl. 1962) authorizes the Trial Court to grant a new trial for any of eight grounds. The fifth and sixth of these grounds are: “Fifth. Error in the assessment of the amount of recovery, whether too large or too small, where the action is upon a contract or for the injury or detention of property. “Sixth. The verdict or decision is not sustained by sufficient evidence, or is contrary to law.” In the case at bar, in granting the new trial the Court said: “It is the opinion of the Court that the verdict of the jury is against the weight of the evidence and that a new trial should be granted.” Appellant cites us to such cases as Smith v. Arkansas Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411; and McAdams v. Stephens, 240 Ark. 258, 399 S. W. 2d 504. These cases hold that where substantial damages are awarded, a judgment will not be reversed because of inadequacy of the damages unless there be some other error committed by the jury in measuring the damages. These cases are not applicable to the situation in the case now before us because (a) no judgment was entered on the jury verdict; and (b) even if there had been a judgment entered on the jury verdict, the Trial Court had inherent power during the term to set aside its own judgment. Union Saw Mill v. Langley, 188 Ark. 316, 66 S. W. 2d 300; Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797; Big Rock Co v. Hoffman, 223 Ark. 342, 344 S. W. 2d 585. In the recent case of Beeler v. Walters, 241 Ark. (adv. sh) 358, 407 S. W. 2d 739, we had occasion to consider the action of the Trial Court in setting aside a jury verdict, and we there said: “In a case of this kind we sustain the trial court’s order unless the verdict is so clearly supported by the preponderance of the evidence as to indicate abuse of discretion on the part of the trial judge. Koonce v. Owens, 236 Ark. 379, 366 S. W. 2d 196 (1963). In this instance we find no abuse of discretion.” The language just quoted is ruling here. Affirmed.	[ -14, -22, -80, 44, 76, 96, 2, -104, 73, -127, -74, 83, 47, -61, 4, 111, -26, -7, 117, 107, -46, -77, 7, 33, -30, -45, 27, 71, -15, -56, -28, -10, 76, 120, -54, -43, 102, -53, -59, 92, -114, -126, 58, 101, 88, 0, 56, 46, 70, 15, 49, -98, -22, 47, 25, -61, 105, 44, 27, 60, 88, -15, -40, 15, 127, 0, -79, -92, -100, 3, 120, 60, -104, 49, 9, -40, 115, -78, -126, 84, 97, -101, 12, 110, 98, 0, 29, -49, -71, -84, 7, 62, 13, -90, -112, 72, 75, 14, -74, -99, 102, 20, 14, -2, 100, -108, 89, 108, 3, -49, -112, -77, -89, 32, -74, -126, -53, -125, 20, 113, -52, -30, 93, 7, 83, -101, -113, -105 ]
Hugh M. Bland, Justice. Appellant, James Eice, alias James Eobinson, and one Stanley Eobinson, were charged by information with forgery and uttering. The State alleged that they forged a check in the amount of Thirty-Eight Dollars and Twenty Cents ($38.20) on the J. 0. Eobinson Plumbing Company payable to Stanley Eobinson and signed J. 0. Eobinson Plbg. This check was drawn on the Benton State Bank and the check was cashed at the Saline Hardware Company. Stanley Eobinson pleaded guilty to the charges of forgery and uttering and was sentenced to the State Penitentiary. Appellant was tried before a jury on March 7, 1966, found guilty and sentenced to three (3) years for forgery and three (3) years for uttering. Appellant brings this appeal urging ten (10) points for reversal as follows: “POINT NO. 1. The verdict of the jury is contrary to the evidence, and the law. POINT NO. 2. The judgment is contrary to both the law and the evidence. POINT NO. 3. The verdict and judgment are excessive. POINT NO. 4. The Prosecuting Attorney refused to file the alleged forged check with the Clerk of the Circuit Court so appellant could inspect same and prepare for trial as requested twice by appellant; that said check shows on its face that the 4 letters ‘Plbg’ were written on the check by some one besides appellant or the person who wrote the check. The Court erred in permitting the check to be introduced in evidence. POINT NO. 5. The Court erred in permitting ap pellant to be brought into court handcuffed to Stanley Robinson who was brought from the State Penitentiary and who testified against appellant. POINT NO. 6. The Court erred in permitting the Prosecuting Attorney to introduce the alleged forged check over defendant’s objections. POINT NO. 7. The Court erred in permitting State’s witnesses to testify over defendant’s objections that the check was charged to J. 0. Robinson Plumbing account and then taken out. POINT NO. 8. The Court erred in refusing to instruct the jury not to consider the testimony of Bill Ford, witness for State, upon the grounds that Ford did not handle the forged check and did not handle the books and was disqualified to testify as to what the records showed. POINT NO. 9. The Court erred in giving the State’s Instruction No. 1 over appellant’s objections and exceptions, his specific objections. POINT NO. 10. The Court erred in giving State’s Instruction No. 5 over defendant’s objections and exceptions.” It is not necessary to discuss appellant’s third and fifth points as they were not raised in the motion for a new trial. Points one and two challenge the sufficiency of the evidence to corroborate the accomplice, Stanley Robinson. We see no merit in this contention. Stanley Robinson testified that it was appellant’s idea to get some money by writing checks.; that they went to his house and appellant produced ten blank payroll checks of J. 0. Robinson Plumbing 'Company. Appellant filled out one of these checks, in the amount of $38.20' signed by J. 0. Robinson Plbg. and payable to Stanley Robinson; that he (Stanley) took the check to Saline Hardware, endorsed and cashed it splitting the money with appellant. Gerald Perry, clerk at Saline Hardware, corroborates Stanley Robinson’s testimony about cashing this check and purchasing tools with part of it. Bill J. Ford, Vice President of the Benton State Bank, testified that the signature on the check did not match the signature card on file at the Bank. Sheriff Guy Grant testified that when he went to the Bank to investigate the check he immediately recognized appellant’s signature on the check. [For his familiarity with the signature see Rice v. State, 240 Ark. 674, 401 S. W. 2d 562.] The Sheriff picked up appellant and he gave him a specimen of his handwriting by writing the mane “ J. O. Robinson” ten times. This specimen was turned over to a Mr. Chandler at State Police Headquarters, (Chandler is a handwriting expert) and after comparison he testified that the specimen handwriting and the signature on the check matched. There is substantial corroborating evidence to connect appellant with the commission of the offense. Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422 (1961). We see no merit in appellant’s fourth point for the reason that the Prosecuting Attorney, in response to a motion for a Bill of Particulars, made the check available for inspection. Edens v. State, 235 Ark. 996, 363 S. W. 2d 923. Appellant’s sixth point is in substance the same as his fourth point. Points seven and eight are so related they can he discussed together. As we see it, the only contention here is that Bill J. Ford does not personally handle checks and bookkeeping. He is Vice President of the Bank and it is operated under his supervision. He was competent to testify as to the failure of the signature to match the signature card on file at the Bank. We see no merit in this point. Appellant, for his ninth point, challenges the giving of State’s Instruction No. 1 which is as follows: “You are instructed that the forgery of an instrument is one offense, the offering to pass it, knowing it to be forged, whether he, himself, forged it or not, is another offense, which is called uttering a forged instrument.” This instruction is based on Ark. Stat. Ann. § 41-1805 (Repl. 1964) and is quoted verbatim. The instruction correctly states the law. Forgery and uttering are separate and independent offenses. Ball v. State, 48 Ark. 94, 2 S. W. 462. Appellant does not argue or try to show what is wrong with Instruction No. 1. It is a correct definition of forgery and uttering. Tarwater v. State, 209 Ark. 687, 192 S. W. 2d 133 (1946). Appellant also challenges the giving of State’s Instruction No. 5 which is as follows: “There is another rule of evidence which applies to this case. Our statute provides that the jury cannot convict anyone charged with a felony on the uncorroborated evidence of an accomplice. By an accomplice is meant any person who had anything to do with the commission of the offense charged, and the evidence of any accomplice, uncorroborated, will not justify any jury in convicting a defendant, even though they believe it beyond a reasonable doubt. You will observe that the corroborating evidence of an accomplice must not only show the facts and circumstances of the case, but also show the defendant’s connection with it. The jury must not make the mistake of thinking that the corroborating evidence itself should be sufficient to convince you of his guilt beyond a reaonsable doubt. The instruction tells you, first, that the evidence of an accomplice must be corroborated; and, second, that all the evidence in the case, taken together, should convince you of his guilt beyond a reasonable doubt before you can convict. The jury is instructed that if you find from the evidence that the witness, Stanley Robinson, is an accomplice, because equally guilty with the defendant, if the defendant is guilty, then you. are instructed that although you may believe the testimony of the witness Stanley Robinson, you would not convict the defendant on his testimony, unless you find that his testimony is corroborated by other testimony, either by direct or circumstantial evidence tending to connect him with the crime. This other evidence is not sufficient if it only shows the facts and circumstances that the offense was committed, hut it must go further and show affirmatively that the defendant was connected with the crime and the commission of it. This instruction does not mean to tell you that the corroborating evidence must of itself he sufficient to convince you of his guilt beyond a reasonable doubt, hut it means that the evidence of Stanley Robinson, if an accomplice, must be corroborated and that all the evidence in the case taken together, must he sufficient to convince you of his guilt beyond a reasonable doubt, before you can convict him of anything.” This instruction is a correct statement of the law. Ark. Stat. Ann. § 43-2116 (Repl. 1964), Lauderdale v. State, supra; Beasley v. State, 219 Ark. 452, 242 S. W. 2d 961 (1951) and Thompson v. State, 207 Ark. 680, 182 S. W. 2d 386 (1944). Appellant’s main objection to this instruction is that he says the instruction should have told the jury that Stanley Robinson was an accomplice and not leave that issue to the jury. This is not the law and there was no reversible error if it were, in fact, submitted to the jury, Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594 (1946), Boyd v. State, 215 Ark. 156, 219 S. W. 2d 623 (1949). Finding no error, the judgment of the circuit court is affirmed.	[ 112, -4, -31, -35, 10, -128, 58, 26, -36, 33, -25, 114, -31, 85, 4, 111, 97, 41, 124, 107, -19, -109, 19, -61, -62, -77, -39, -43, -11, 73, -76, -43, 72, 48, -118, -51, 102, 0, -57, -44, -50, 36, 41, -32, 88, -112, 48, 108, -108, 15, 97, -114, -13, 59, 25, 79, 105, 44, 91, 47, 72, -77, -98, 5, -83, 86, -94, 39, -100, 7, -8, 47, -104, 49, 16, 121, 51, -122, -62, 116, 106, 57, 12, -26, 99, 16, -107, -49, -84, -56, 58, 127, -115, 39, -112, 97, 3, -81, -97, -99, 118, 22, -122, -60, -22, 5, 25, 104, -127, -113, -80, -45, 13, 60, -108, -101, -29, -93, 20, 113, -50, -16, 92, 15, 123, 31, -118, -78 ]
George Rose Smith, Justice. In April of 1964 the defendant, Worth James Construction Company, was engaged in the performance of a private contract by which it was to construct a storm-sewer system to serve the pleasant Valley Addition to the city of Little Rock. On the morning of April 23, after a night of heavy rainfall, the plaintiff Frank M. Fulk, who lived near that subdivision, discovered that the den and utility room in the basement of his home were flooded to a depth of fourteen inches or more. There was extensive water damage to the residence itself and to furniture and other personal property. Fulk and his wife brought this action against the Worth James company, asserting that its negligence had caused water from the uncompleted Pleasant Valley system to flood a manhole in front of the Fulks ’ house to such an extent that the water hacked up through a floor drain in their utility room and inundated the premises. The Worth James company denied any negligence on its part, insisting that its construction methods conformed to the plans and specifications set out in its contract with Pleasant Valley, Inc. The jury verdict was for the defendant, but the trial judge found the verdict to be against the preponderance of the evidence and ordered a new trial. This appeal is from that order. In such a situation the question here is whether the preponderance of the evidence supports the verdict so clearr ly that we must find an abuse of the trial judge’s discretion. Koonce v. Owens, 236 Ark. 379, 366 S. W. 2d 196 (1963). (Frank M. Fulk died soon after the trial; the cause has been revived.) Worth James, in the course of its construction, had connected the new Pleasant Valley 21-inch sewer line to the manhole in front of the Fulk home. That manhole was served by an existing 18-inch line that was part of the municipal storm-sewer system. When the Worth James employees quit work at the end of the day on April 22 they left an open unfinished manhole at a shoi't distance up the new line from the Fulks’ residence. Grassy 'Creek was only a few feet from that open manhole. According to the plaintiffs’ evidence the rainfall during the night was so heavy that the creek overflowed its banks and discharged so much water into the unfinished manhole that the new 21-ineh line was filled to capacity. Since that volume of water could not be carried away at once by the 18-inch municipal line, the water in the older manhole rose to a height above the Fulks’ floor drain and caused the damage complained of. At the trial the key point of controversy was whether the Worth James company should have plugged the new line during construction by putting in a bulkhead or stopper below the unfinished manhole. Porter Pryor, an expert witness for the plaintiffs, testified that “in lines of this size normally bulkheads are installed.” Worth James himself, as a witness for his company, testified that it was not customary to use such bulkheads and that his contract with Pleasant Valley, Inc., did not call for them. He conceded on cross examination, however, that in the construction of sanitary sewers (as opposed to storm sewers) “normally we will plug up our lines at night ... to keep the surface water out of the drains if it happens to rain.” In seeking a reversal counsel for the appellant rely upon our familiar rule that a verdict supported by any substantial evidence will be upheld in this court. That rule does not apply to a case such as this one, where the trial court has set aside the verdict as being against the weight of the testimony. Here the issue, as we have said, is whether the trial judge abused his discretion. In the case at bar we find no such abuse. We cannot attach controlling weight to the fact that the Worth James contract did not require the use of bulkheads. Presumably the contractual plans and specifications described the proposed storm-sewer system in detail, to the end that Pleasant Valley, Inc., would be sure of getting the exact system that it wanted and was willing to pay for. But that does not mean that the Worth James company had no responsibility in deciding how the contract was to be performed. The company unquestionably had the duty of using reasonable care in the construction of the system. Restatement, Torts (2d), § 384 (1965). If, for example, a building contractor should leave a live electric wire dangerously exposed overnight, it could not defend an ensuing action for personal injuries on the ground that the plans and specifications did not require that such wires be made safe before the workmen quit for the day. In the same way the jury could have found that this contractor was careless in not taking any precautions against the overflow that actually occurred. A salient fact, one that cannot be overlooked, is that the Fulks were plainly not at fault. They had no warning of the danger that threatened their house. Worth James, in his testimony, sought to disclaim responsibility by saying that his company had no way of anticipating such a heavy downpour. He admitted, however, that “we get rains like that occasionally, but they aren’t common.” We are not convinced that the clear préponderance of the evidence supports the view that the appellant was wholly free from negligence in failing to protect the Fulk home by installing a bulkhead or by temporarily reducing the output of the 21-inch main. It follows that there was no abuse of discretion in the court below. Affirmed.	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Guy Amsler, Justice. The capable attorneys in their statements have fairly outlined the issue and undisputed facts. Petitioner’s attorney recites these facts: “This is a proceedings for a Writ of Prohibition against Elmo Taylor, Circuit Judge of the First Judicial Circuit, to prohibit that court from taking-jurisdiction of an action filed by one Brenda Humphrey against the petitioner, Harvey A. Belford, being Cause No. 6553 in said Woodruff Circuit Court. “The sole question being decided by this court is whether Brenda Humphrey, at the time of the accident and injury complained of, resided in Wood-ruff County as the term is used in Ark. Stat. Ann. § 27-610 (Repl. 1962). “On June 3, 1965, Brenda Humphrey was driving her automobile on U. S. Highway 70 between Memphis and West Memphis in Crittenden County when it was collided with by an automobile driven by Har vey A. Belford of Pocahontas [Randolph County, Arkansas.] Brenda Humphrey secured employment with the General Electric Plant in Memphis in April, 1961 and worked continuously for that company until the time of the accident in June, 1965. During all of that time she lived either in apartments or rooming houses in West Memphis, Crittenden County, Arkansas. On most weekends she would return to her parents’ home in McCrory, Woodruff County, Arkansas. Her driver’s license was issued in Woodruff County and in most of the years she assessed and paid her personal property taxes in Woodruff County. She voted absentee ballot in Woodruff County. “Her address on her income tax return and on her W-2 forms and at her employer’s office was given as her address in West Memphis. She would save up her soiled clothing and carry it home to McCrory each week, picking up clean clothing and taking it back to West Memphis. She paid rental on a monthly or weekly basis at her various places of abode in the City of West Memphis. When she was first admitted to the hospital in West Memphis following the accident her address was given as 204 East Cooper, West Memphis, Arkansas, and upon readmission this was changed to show her address as McCrory, Arkansas.” Counsel for respondent added: “During the time she was working in Memphis, and during the time which petitioner claims she established a residence in West Memphis, lived only in furnished rooms and apartments. She at all times ate her meals at a restaurant, with rare exceptions when she was invited out to the home of a couple she knew there, she kept her winter clothes in Mc-Crory during the summer, and her summer clothes in McCrory during the winter. She was furnished in her various rooming houses and apartments in West Memphis with linens, towels, and did not so much as own any of the pictures on the walls or other decorations in her room. “Her automobile registration and her driver’s license during the two or three years immediately preceding this collision were issued in Woodruff County and showed Woodruff County as her address. “Her time spent in West Memphis consisted in Sunday, Monday, Tuesday, Wednesday and Thursday nights of each week, and her time spent in McCrory consisted in Friday nights, Saturdays, and Sundays. So far as the record shows, she never acquired any friends or close acquaintances in West Memphis while she had employment in Memphis. The West Memphis address given her employer was for purposes of receiving company bulletins and tax forms, and this address was required by her employer because they wanted the address where she stayed during working hours.” The sole question is whether the trial court correctly held that respondent was a resident of Woodruff County within the purview of our venue statute, supra. The attorneys have fully analyzed, and compared most of our decisions dealing with the venue act since the legislation was enacted in 1939. Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Wilhelm v. Taylor, 236 Ark. 85, 346 S. W. 2d 674; Fort Smith Gas Company v. Kincannon, 202 Ark. 216, 150 S. W. 2d 968; Twin City Coach Co. v. Stewart, 209 Ark. 310, 190 S. W. 2d 629; Missouri Pacific v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823; Burbridge v. Redman, 211 Ark. 236, 200 S. W. 2d 492; Murry v. Maner, 230 Ark. 132, 320 S. W. 2d 940 (1959). Twin City Coach Co. v. Stewart, supra, involved the death of an 18 year old girl (respondent here is 24) who worked in Fort Smith (Sebastian County) six days a week, sharing a rented apartment with some other girls, where she kept her clothes. Nearly every weekend, after working six days, the decedent returned to Boone-ville (Logan County) where her parents lived, bringing along her soiled clothes so that she and her mother could launder them. In the early spring of 1944, the building-in which she worked was closed for repairs and she spent the time during closure with her parents. There was no proof of payment of taxes, procuring driver’s license or ownership of property. Miss Stewart lost her life in a collision that occurred in Sebastian County. Her administrator sued in Logan County. The question of residence arose and we held that Logan County was the proper forum under our venue act. In comparing- the instant case with Twin City there are two differences to which we do not accredit major significance. The respondent had been in West Memphis (Crittenden County) somewhat longer than Miss Stewart had worked in Fort Smith and Miss Stewart had attained her majority only a short time before her demise while Miss Humphrey is several years older. On the other hand Miss Humphrey had assessed property, paid poll and property taxes and voted in Woodruff County. As early as 1884 we said that each case of this type (dealing with residence) must be decided on its own state of facts. Krone v. Cooper, 43 Ark. 547. G-enerally in a case where venue is questioned there must be a determination on the facts. In Murray v. Maner, supra, we stated the well settled rule of this court that prohibition is not the proper remedy when the trial court’s jurisdiction depends on a disputed question of fact. One of the virtues of this rule is that a litigant by protecting his record throughout the trial may give the court the benefit of all the facts before the issue is ruled on. The able trial judge concluded that venue lies in Woodruff County. We give persuasive weight to his conclusion and are unwilling to say that petitioner has discharged the burden of proving that respondent is not a resident of Woodruff County. Petition denied.	[ 81, -20, -27, 61, 46, -63, 26, -102, -13, -93, -91, 115, -25, -52, 29, 41, -29, -101, 117, 105, -11, -90, 17, 98, 50, -69, 40, -41, -77, 75, 116, -92, 77, 49, -54, -35, 36, 66, -59, 90, 78, 2, -117, -16, 72, -46, 48, 43, 0, 15, 117, -113, -28, 46, 17, 67, 77, 46, 91, -82, 80, 122, -118, 7, -1, 6, -127, -12, -102, -91, -8, 8, -112, 49, 0, -72, 51, -74, -122, 84, 107, -103, 12, 36, 98, 50, -83, -17, -24, -120, 6, -2, 29, -89, -118, 57, 27, 8, -97, -107, 122, 84, 76, -40, -4, 69, 29, 104, -115, -18, -98, -79, -115, -96, -124, 3, -29, 71, 48, 81, -49, -30, 93, 5, 123, 27, 66, -48 ]
Carretón Harris, Chief Justice. This appeal relates to the power of the Circuit Court to grant suspended sentences, and subsequently to revoke same. J. C. Reed, appellant herein, was charged with the crime of burglary, and on January 7, 1963, entered a plea of guilty. The Circuit Court sentenced him to three years in the State Penitentiary, but deferred the pronouncement of sentence, dependent upon the good behavior of appellant. On October 24, 1963, Reed was ordered to appear to show cause why sentence should not be pronounced upon him, and, on November 21 of the same year, the hearing having been continued to that date, the court sentenced appellant to serve one year of the three year term, and stated: “Pronouncement of sentence of the remaining two years be and is hereby deferred upon the proper behavior of the defendant during the remaining two-year period.” Thereafter, Reed was ordered to again appear on March 30, 1965, to show cause why the additional two years of the original sentence should not be pronounced, but appellant failed to appear, and the clerk of the court was directed to issue a warrant of arrest for him. Appellant was arrested on February 14, 1966, and on February 18, 1966, in open court, the court sentenced Reed to serve the remaining two years, finding that appellant had voluntarily withdrawn from the court’s jurisdiction about February, 1965. From this judgment, appellant bring this appeal. For reversal, it is first argued that the trial court lost jurisdiction to revoke the suspension after the passing of three years from the time of the original suspended sentence (January 7, 1963). We find no merit in this assertion. The last “show cause” order was issued in March, 1965, well within the three-year period. The court found that officers were unable to locate Reed in Washington County or within the State of Arkansas, and that the parole officer, after a diligent search, was unable to find appellant. It was then found: <<#”that the voluntary and willful withdrawal of the defendent from the Jurisdiction of the Court on or about February, 1965, and the failure to make reports to the parole officer, or to receive permission to leave the State, and his failure to appear after notice was given to show cause, constitute and serve to toll the remainder of the three-year statute of limitation within which the Court could exercise his right of pronouncement of sentence on the defendant.” In Parkerson v. State, 230 Ark. 118, 321 S. W. 2d 207, we held that the fact that the actual hearing on a petition (filed during the period of suspension) for the revocation of a suspended sentence, was not heard until a date beyond the period of suspension, did not divest the trial court of jurisdiction to revoke said suspended sentence. In that case, the hearing was not held until after the period of suspension had expired because of the fact that the defendant had undergone major surg'ery, and was not able to appear in court. Here, there are more cogent reasons for holding that the court had not lost jurisdiction, for Reed had voluntarily absented himself from the county and state, and could not be found by the officers. Undoubtedly, had this not happened, the hearing would have been held nearly a year earlier. For this court to hold as appellant urges, would simply mean that once a defendant received a suspended sentence, he would need only to go to some locality where he could not be found, and remain there until after the expiration of the period of suspension; he would then be free of any restraint of his personal conduct, occasioned by the court’s leniency in holding in abeyance the execution of the sentence. We hold this contention to be without merit. Appellant next urges that the court retained no power to impose the additional term of two years, after earlier sentencing Reed to a one-year term, that term having been served; that there was no power to render a “piece meal’’.sentence. It is insisted that the court was without authority to revoke only a part of the deferred sentence, and suspend the remainder; that, after Reed was committed to the State Penitentiary under the November 21, 1963, order, the authority of the Washington Circuit Court was exhausted. Appellant relies principally upon Emerson v. Boyles, 170 Ark. 621, 280 S. W. 1005, but that case is not in point. It involved the question of whether a sentence could be set aside, the prisoner returned from the penitentiary, and the case continued. This court held, properly, that the defendant could not be placed in double jeopardy, and quashed the judgment of the Pulaski County Circuit Court, which had ordered Boyles released. There is authority to support the argument by appellant ; in fact, it may be that his position is supported by the majority view. However, we are not favorably impressed with the rationale of the decisions that we have read, and consider the procedure urged by appellant to be in conflict with our own statute. Ark. Stat. Ann. § 43-2324 (Repl. 1964) gives the judge trying a case authority to postpone the pronouncement of final sentence and judgment upon such conditions as he shall deem proper and reasonable for probation, the section concluding with this phrase: “* * * provided, however, the Court having jurisdiction may at' any time during the period of suspension revoke the same cmd order execution of the full sentence.” -.(Out emphasis in each instance) We particularly call attention to the italicized words, and, in fact, many of our Circuit Courts have, for some period of time, followed the procedure here under attack. The South Carolina Supreme Court had a similar question before it in the case of Moore v. Patterson, 203 S. C. 90, 26 S. E. 2d 319. In affirming the General Sessions Circuit Court, the Supreme Court stated: “The question then is: Can a Circuit Judge impose a sentence of imprisonment in a case of this sort and provide in it that after the defendant shall have served a part of the time he be placed on probation for the remainder of the term?” The court then pointed out that, in imposing sentences, the Circuit Judges of the state had followed the practice in misdemeanor cases of imposing only a part of the sentence, and suspending, during good behavior, the execution of a part of the sentence. It was then said: ‘ ‘ In 1941 the Legislature adopted the probation and parole act, sections 1038-1 to 1038-16 of the Code. The first section of this Act reads as follows: ‘After conviction or plea for any offense, except a crime punishable by death or life imprisonment, the judge of any court of record with criminal jurisdiction at the time of sentence may suspend the imposition or the execution of a sentence and place the defendant on probation or may impose a fine and also place the defendant on probation.’ “It will be noted that this Act extends the power to suspend sentences to a great many felonies, as well as misdemeanor. “In view of the long prevailing and approved practice in cases of misdemeanors, before the adoption of the probation law, it is our opinion that Section 1038-1, giving the trial Judges the power to suspend the execution of the entire sentence and to place the defendant on probation, is also intended to give them the right at the time of the sentence to provide for a suspension of a part of such imprisonment and a placing of the defendant on probation, after serving a designated portion of the term of imprisonment.” It seems to us that our statute even more clearly gives the trial court the right to follow the procedure which is here in issue. After all, how can the defendant properly complain, or contend that he was prejudiced under the circumstances related? To begin with, his entire sentence was suspended, and, by the observance of proper and legal conduct, Reed would never have served any part of the three-year sentence. Yet, though violating the conditions of the suspension (which would have justified the court in imposing the full sentence), the judge still, though punishing to some degree the departure from good behavior, gave appellant another chance by suspending the remainder of the three years. Again, appellant had the opportunity to avoid serving the balance, but as before, he violated the trust that had been placed in him. Our Legislature, as well as the courts, has recognized the value and justness of permitting suspended sentences in deserving cases, but it does not follow that one can take advantage of a court’s generosity, in requiring a defendant to serve only a small portion of his sentence, and then contend that he should go absolutely free. Affirmed. . For instance, see Act 438 of 1965, which supplements the statute herein discussed.	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Lyle Brown, Justice. Appellee, The Wilson Company, Inc., contends there is no distinction between the case at bar and Sebastian B. & L. Assn. v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930). In Minten the lender disbursed the full amount of the mortgage money. In Minien there was no guarantee placed of record whereby the building and loan association was committed to a stipulated advancement for construction purposes. In both these respects the opposite is true in the case at bar. We are asked to clarify our opinion with respect to Wilson’s priority for interest. As to Lot 2, Wilson is entitled to priority for interest on $11,334.19; as to Lot 4, Wilson is entitled to priority for interest on $10,805.72. With regard to clarification requested by appellee on certain minor items, it is sufficient to say that the chancellor made awards in these respects and we do not disturb them on appeal.	[ 54, 110, -48, -20, -38, 32, 42, 24, 73, -128, -75, 83, -23, -38, 20, 109, -121, 77, 85, 107, -43, -73, 39, 104, -46, -77, -15, -43, -79, 109, -28, 87, 12, 48, -54, 85, -26, -126, -59, 84, 78, 5, 62, 69, -7, 64, 52, 95, 80, 75, 33, -115, -13, 37, 25, 73, 45, 46, 93, 57, 80, -80, -101, 5, 95, 21, 17, 84, -100, 71, 72, 24, -112, -75, 9, -24, 115, -90, -122, 116, 111, -71, -119, 98, 99, -94, -96, -33, -108, -104, 46, 78, 31, -92, -109, 56, 10, 35, -75, -97, 119, 0, 38, -2, -18, -107, 27, 109, 31, -113, -12, -78, -113, 112, -102, -63, -1, -111, 48, 97, -52, 50, 95, 117, 59, -7, -122, -71 ]
George Rose Smith, Justice. In 1963 the city of Hot Springs, by a resolution of the city council, approved a five-year franchise that granted to Virgil Bast an 'exclusive concession for the operation of a limousine cab service at the municipally owned airport. East later assigned the franchise to the appellant Bridges. Yellow Cab Company, Inc., brought this suit to enjoin the city from interfering with Yellow Cab’s asserted right to maintain a cab stand at the airport. Bridges intervened, relying upon his exclusive franchise as a bar to the suit. This appeal is from a decree holding Bridges ’ franchise to be invalid under our constitutional prohibition of monopolies. Ark. Const., Art. 2, § 19 (1874). Under the terms of the franchise Bridges pays the city a fixed monthly fee for the limousine concession. He is entitled to the exclusive use of four parking spaces at the airport. Bridges binds himself to provide a limousine cab service, to maintain his vehicles in good condition, and to carry public liability insurance in a specified amount. Elsewhere, in decisions with which we agree, the courts have sustained exclusive limousine concessions such as this one. Miami Beach Airline Service v. Crandon, 159 Fla. 504, 32 So. 2d 153, 172 A.L.R. 1425 (1947); Stone v. Police Jury of Parish of Calcasieu, 226 La. 943, 77 So. 2d 544 (1954); Ex parte Houston, 93 Okla. Crim. 26, 224 P. 2d 281 (1950). In the Stone case the court used this pertinent language: “A necessary incident to the competent operation of an airport is adequate provision for transportation of passengers throughout the twenty-four hours of the day, and it would be unwarranted to hold that the Police Jury of Calcasieu Parish did not have the power to make contracts to insure the performance of these services. . . Since the Police Jury was empowered to enter into such, a contract, the plaintiff’s contention that the purpose of the Ordinance was to protect a monopoly cannot be legally sustained; its object was to protect the right granted by the contract, so as to insure to the person who obligated himself to provide the service an adequate return for his furnishing’ of transportation facilities, proper equipment, competent drivers, and sufficient insurance to protect the public.” We do not agree with Yellow Cab’s contention that this case is controlled by North Little Rock Transp. Co. v. City of North Little Rock, 207 Ark. 976, 184 S. W. 2d 52, 159 A.L.R. 813 (1944). There the effect of the statute and ordinance was to grant to one company a monopoly upon the taxicab business in the entire city of North Little Bock. We pointed out that the company seeking the monopoly was under no obligation to continue its service for any length of time. Here, by contrast, Bridges is bound to provide service for the life of the franchise. His exclusive right is a narrow one, embracing only the maintenance of the limousine stand at the airport. Bridges concedes in his brief that competing cab companies may deliver departing passengers to the airport and that incoming passengers may telephone for the cab of their choice if they like. The city council’s resolution specifically found that there was not enough business for the service to be maintained upon a competitive basis. In view of all these facts we cannot say that the exclusive franchise offends the constitution. Beversed.	[ 116, -5, -16, 110, 24, 98, 26, -72, -37, -21, -26, -101, -83, -55, 4, 97, -89, 127, 85, 71, -11, -30, 71, 34, -45, -45, 81, -63, -74, 73, -28, -3, 76, 48, -54, -99, 102, 79, 77, -98, 94, 32, 10, 72, -39, 83, 52, 94, 66, -105, 65, -113, -117, 44, 16, -63, -84, 44, 121, 45, -45, 112, -24, -59, 127, 22, 48, 36, -119, 7, -40, 12, 24, -71, 24, -56, 115, -90, -118, -4, 37, -101, -128, 34, 98, 0, 9, -27, -84, -100, 14, -40, -113, -122, -108, 121, 3, 69, -73, 29, 91, 22, 3, -4, -13, 84, 25, 104, 11, -50, -10, -93, 101, -24, -108, 68, -29, 71, 48, 116, -54, -16, 92, 71, 55, -109, -57, -48 ]
Paul Ward, Justice. Appellant, Tyler Meister, filed a complaint in' chancery court to restrain appellee, Albert Eeddmann, from entering upon his land, and to recover the value of timber cut along a ditch located thereon. He also asked to have his title quieted. Appellee admits he cut the timber but claims the ditch in question is a “T” lateral ditch (hereafter referred to as a “ditch”), and that it is a part of Drainage District No. 3 of Poinsett County (hereafter referred to as “ditch No. 3”), and that he had permission from the Commissioners of ditch No. 3 to enter upon a right-of-way across appellant’s land to cut all timber necessary to protect and clean out the ditch. Testimony was taken on the above issues (properly pleaded), and the trial court entered a decree, in substance, as set out below: The ditch is a part of ditch No. 3; appellant’s complaint is dismissed, and; appellant is restrained from interfering with the work being done by appellee. For a reversal appellant sets out several points but some of them are interrelated, and we feel that all material issues can be adequately discussed under two separate groupings: One. Appellant contends “the trial court erred in finding the ditch in question to be a Drainage District No. 3 ditch”, and that this was a finding in its favor. It is then argued this constituted reversible error because ditch No. 3 was not made a party to this litigation. There is no merit in this argument. In the case of Smith v. Petus, Curator, 205 Ark. 442, 169 S. W. 2d 586, we said: “Furthermore, appellants did not, in the lower Court, ask that these adult heirs be made parties and they are, therefore, not in a position to raise this question for the first time on appeal.” See also Arkansas Road Const. Co. v. Evans, 153 Ark. 142, 239 S. W. 726. No such request was made by appellant in the trial court in the case under consideration. Two. It is argued that “the court erred in basing its decision upon incompetent testimony”. Again we find no merit in appellant’s contention that there is no competent testimony to refute his claim to an absolute fee title to his land (free of any right-of-way) by virtue of the deeds he admittedly received from his predecessors in title. It is undisputed that ditch No. 3 executed quitclaim deeds to appellant’s predecessors in title, showing they were based on tax sales. This being true the deeds amounted to redemptions from tax sales. See: Rouse v. Teeter, 214 Ark. 488, 216 S. W. 2d 869. It necessarily follows that appellant could receive no better title than his grantors held. Any other result would make it possible for a legally organized improvement district to divest itself of all lateral ditches. This disposes of appellant’s contention it was error to allow the Commissioners to testify relative to their intentions in executing said quitclaim deeds. Even if such testimony was hearsay it was irrelevant and unnecessary. In this case it is undisputed that ditch No. 3 was organized in 1908, and that it issued bonds in the amount of $245,000 to construct said ditch and numerous laterals. Also there are copies of numerous county court orders (properly introduced) showing, among other things, the execution of the quitclaim deeds and the location of the ditches. The record reveals the ditch was constructed over appellant’s land many years before he acquired the land which was some twenty years before this suit was filed. In view of what we have said above it is, of course, unnecessary to discuss appellant’s contentions -that the trial court erred in refusing to quiet his title and give him damages, and also erred in enjoining him from further interference. The decree of the trial court is therefore affirmed. Affirmed.	[ 112, -18, -103, -116, 73, -31, 32, 14, 65, -85, 101, 87, 111, -126, -128, 55, -29, -39, 97, 57, 70, -78, 119, 97, 115, -109, 122, 79, -68, 109, 102, -58, 72, 120, -62, 21, 67, -120, -51, -40, 6, 15, -119, 97, -55, -128, 60, 43, 86, 79, 53, 20, -13, 46, 53, -61, 9, 44, -17, -67, 80, 24, -98, 29, 63, 5, -79, 6, -104, 3, 88, 40, -112, 57, 8, -24, 119, -76, -105, 116, 11, -101, 40, 50, 102, 34, 41, -49, -83, -56, 14, -69, 13, -89, -39, 72, 67, 41, -78, -99, 112, 20, 70, -2, -28, -123, 92, 108, 7, -49, -44, -89, -115, -92, -115, -125, -21, -121, 48, 117, -57, -62, 93, 71, 49, -37, -114, -39 ]
Carleton Harris, Chief Justice. This appeal relates to a petition for re-zoning. Appellees own properties on the north side of West Markham Street in Little Rock, lying immediately east of the intersection of Jackson and West Markham Streets. The owners desire to sell their respective properties to the Texaco Oil Company which plans to construct a service station thereon. Under city ordinance, the lands are zoned “B” Residential District, and appellees filed a petition seeking to have the properties re-zoned as “F” Commercial. The Board of Directors of Little Rock denied the petition, thus supporting the view held by the Planning Commission. Appellees appealed to the Pulaski County Chancery Court (First Division), and that court held that the city had acted arbitrarily and capriciously in refusing to re-zone the properties to “F” Commercial; the court enjoined the city from interfering with appellees or their assigns in using the properties in question for purposes permitted under the ‘ ‘ F ” Commercial zoning classification, and directed the city to issue a building permit to appellees or their assigns authorizing the construction of improvements on these properties that met the requirements of an “F” Commercial classification. From the decree so entered, appellant brings this appeal. For reversal, it is asserted that the Chancery Court erred in finding that the refusal of the City of Little Rock to rezone the property to “F” Commercial was arbitrary. Faith Evangelical Lutheran Church is located at the intersection of West Markham and Jackson Streets, and this property fronts on West Markham for a distance of 100 feet from the intersection. The testimony-reflected that the membership of the church had expanded from 57 members in 1959 to 261 members at the present time, and the membership has simply outgrown the church building. The congregation is building a new church at Mississippi and Markham, and desires to sell the present property to Texaco. The property of Mr. and Mrs. Oliver Henry is immediately east of the chnrch property (a distance of 50 feet), and the remaining appellee, Ivan H. Smith, owns the 50 feet immediately east of the Henry property. The residences of Henry and Smith are located on their respective lots. Mr. Smith testified on behalf of the appellees, and stated that, when he first purchased his property, West Markham was a two-lane street, with no commercial property in the area except for a small barbecue stand on the northwest corner of Markham and Van Burén Streets. A short time after his purchase, the northeast corner of Van Burén and West Markham was re-zoned for commercial property and an Esso station was built thereon. Sometime later the block between Van Burén and Jackson (north of West Markham) was re-zoned as commercial property, and a D-X service station was placed on the corner of Jackson and West Markham, just across from the Lutheran Church. Smith canvassed the neighborhood, taking a- petition to everyone on Monroe Street, the block affected on West Markham, North Jackson and Briekton Place, and he stated that only two people, both in Briekton Place, refused to sign the petition. At the present time, all property bordering West Markham from Jackson Street west to University Avenue is zoned either as ££F” Commercial or i£E-l” Quiet Business. Mr. Smith testified that the several houses which are located between Jackson and Monroe Streets are all rental property, except the two belonging to the witness and Henry; that after Markham Street was widened, the traffic increased immeasurably, and the noise has increased to a point where he cannot hear tele vision in the front room of his house if the door is open. Mr. Smith further stated that mercury lights have been installed on Markham “so that the light makes it just like day time all the time,” and that he had put up heavy draperies throughout the house to keep out this light. Mr. James H. Larrison, a Little Rock realtor and appraiser, testified that the present zoning classification of the properties here involved is not an appropriate one, due primarily to the continuing build-up of traffic on Markham Street; he stated however that, to determine the highest compatible use which could be made of the church property, a study would have to be made, but he was emphatic that it could not be feasibly converted to a single family residence. Russell McLean, a professional real estate appraiser, testified that there are many nice homes in the general area. He specifically mentioned Brickton Place, a sub-division about ten years old, which is located just north of the properties here under discussion. In the opinion of Mr. McLean, the use of the properties belonging to appellees as a service station site would adversely affect the use of other properties in the area for residential use. He stated that the service station on the other side of Jackson Street did not have this same adverse effect because the street itself acted as a buffer. It was his opinion that the highest compatible use of the property presently occupied by the church would be office use; for instance, a doctor’s office or insurance office. Mr. McLean agreed with Mr. Larrison that it would not be economically feasible to redevelop the property for single family residential use. W. D. Kelly, who lives at No. 7 Brickton Place, voiced his objection to the re-zoning of the properties for use as a service station site. Henry DeNoble, Director of Planning, and Traffic Engineer, for the city, stated that he felt that, since the church group no longer intended to use its building, the property should be rezoned as “E-l” Quiet Business, which fits in with residential type use. Mr. DeNoble agreed with Larrison and McLean that “B” Besidential is not the appropriate zoning classification. It was the opinion of the witness that if the properties here involved were re-zoned to “F” Commercial, there would be nothing to prevent this same zoning all the way down West Markham Street; DeNoble felt that commercial zoning had been successfully stopped at Van Burén because of the use of the “E-l” Quiet Business zone classification. In rebuttal, appellees offered a report of the Federal Housing Administration (which referred to the property owned by Henry) wherein the F.H.A. denied mortgage insurance because “continuing marketability is too adversely affected by commercial encroachment, fast, heavy traffic, and dangerous vehicular entrance and exit from property to warrant mortgage insurance.” We think the court erred in holding that the city acted arbitrarily in refusing to re-zone this property as “F” Commercial. We agree that the West Markham Street location is not ideal, mainly because of the large volume of traffic, for residential property, but, as pointed out by the city’s witnesses, the effect of re-zoning upon surrounding property must also be considered. Such re-zoning, according to the evidence, would have an adverse effect upon surrounding residential property, including Brickton Place. Apparently the intersection of Jackson Street and West Markham was considered (by the Planning Commission) a proper boundary for a “break” for the reason that the church building separated the residential property from the commercial property west of Jackson. Of course, the current problem has arisen because of the fact that the present church building is not adequate for the growth of the congregation. Appellant’s witnesses recognize that it would be impractical to try and convert the church prop erty to residential use, and with this testimony we completely agree. However, that fact does not mean that the answer is to re-zone to “F” Commercial. For that matter, neither of the real estate appraisers testified that “F” Commercial would be the most appropriate use for the properties. Mr. Larrison, who testified on behalf of appellees, would only say that the properties would not be appropriate for single family residence, and he testified that a study would have to be made to determine the highest compatible use that could be made of the church property. Mr. McLean testified that the best and most appropriate use of the church property would be for clinics or offices, and this view was also concurred in by Mr. DeNoble. In other words, the last two witnesses are of the view that “E-l” Quiet Business is the proper classification, since this classification is ideal as a buffer between residential and commercial zones, and will fit in with residential use. It is not likely, in any re-zoning case, that a solution could be reached which would afford complete equity and satisfaction to all parties. As in other matters, the welfare of all concerned must be taken into consideration. We stated in Downs v. City of Little Rock, 240 Ark. 623, 401 S. W. 2d 210: “The composition of the entire area must be taken into consideration, and it is undisputed that both the area to the west of Beechwood for several blocks, and the area north of Markham and Beechwood for a similar distance are completely residential. The benefit to a few individuals cannot be allowed to override the best interests of the residents of the overall area. The Planning Commission has apparently spent long hours in rezoning property in the city of Little Rock with the view of establishing a long-range program, one that will best fit the needs of an expanding city in future years.” Unquestionably, if this property is re-zoned as “F” Commercial, there is no reason why the adjoining owner would not be entitled to the same classification, and likewise all the way down West Markham Street. From what has been said, it is evident that we do not consider the refusal of the City of Little Rock to rezone these properties to “F” Commercial to be an arbitrary decision, and it follows that the court erred in so holding. On the other hand, we are just as convinced that the church property cannot suitably be converted into residential property. In our view, the evidence clearly indicates that a re-zoning to “E-l” Quiet Business -would be the proper classification for the properties here involved. Apparently there has been no recommendation from the Planning Commission for this type of re-zoning, nor has there been an application from appellees requesting this particular change in zoning. Nonetheless, in reaching the conclusion that the Chancery Court erred in allowing the “F” Commercial re-zoning, we take into consideration the evidence of Larrison, McLean and DeNoble (heretofore discussed) relating to a proper classification for these properties. Reversed. The City of Little Rock, its Mayor, and Board of Directors, are all named defendants, but we shall refer to these parties in the singular. From Jackson Street to Van Burén and about 1/3 of the block from Van Burén to Harrison, the zoning is “F” commercial; for the balance of the block to Harrison, and from Harrison to Tyler, from Tyler to Polk, from Polk to Taylor, from Taylor to Fillmore, from Fillmore to Pierce, and about % of the area from Pierce to University, the zoning is “E-l” Quiet Business. Brickton Place is a sub-division of ten or twelve houses, which sell in a price range of $16,000.00 to $20,000.00.	[ 118, -18, -16, 76, 26, -64, 24, -68, 88, -87, -27, 83, -83, -38, 28, 121, -29, 93, 101, 105, -107, -77, 23, 96, -94, -13, 67, -49, -72, -35, -11, 7, 76, 33, -54, -107, 70, -56, -51, 28, 14, -123, 27, 76, 89, 1, 52, 42, 16, 15, 85, -97, -14, 44, 53, -63, 44, 44, 89, 36, 81, -70, 8, -99, 127, 23, 1, 100, -104, -123, 96, 8, -104, 49, 8, -88, 119, -90, -122, 116, 77, -101, 44, 32, 98, 2, 1, -17, -8, -119, 6, -102, 13, -90, -126, 25, 99, 64, -105, -105, -3, 20, 74, -4, 78, -123, 89, 108, -115, -17, 20, -95, -113, 121, -108, 3, -21, 7, 48, 117, -53, -18, -34, -41, 19, -37, -122, -16 ]
George Eose Smith, Justice. The appellees, Della Giles and her husband, brought this action for personal injuries and property damage suffered in a collision in Eussellville between the Giles car and an AVI truck. The jury awarded the plaintiffs $10,100. The appellants complain of error in three of the trial court’s rulings. Mrs. Giles was driving north on Denver Street. The AVI truck was traveling west in the outer righthand lane of Main Street, a fonr-lane thoroughfare. The disputed issue of fact was the point of impact. Mrs. Giles testified that she crossed Main Street and had left its intersection with Denver when the AVI driver turned to his right and struck her car. The truckdriver testified that his vision had been obstructed by a third car to his left. He said that when that car went on past him Mrs. Giles appeared in front of him so suddenly that he was unable to avoid hitting her car while it was still crossing the righthand lane of Main Street. Two of the appellants’ arguments relate to a police report about the accident. Officer McCarley investigated the collision and took notes that were not available at the trial. From those notes another officer completed a form of report that had spaces for certain information on one side and a blank diagram for a sketch of the accident on the other side. Officer McCarley was called as a witness by the defendants. In the course of his testimony the court at first held the report to be admissible, but the next morning, in chambers, the court changed its mind and decided to exclude the exhibit (which apparently had not been seen by the jury). Later on, in the courtroom, counsel for the plaintiffs asked the court to instruct the jury that the plat had been withdrawn from their consideration. There followed this ruling and objection: ‘ ‘ The Court: It has been — after I examined it this morning. It has certain information that he [Mc-Carley] couldn’t possibly testify to, and for that reason I held it in confidence [incompetent]. “Mr. Mobley: Let the record show that the defendants object and except to the ruling of the Court and to the comments of the Court.” We do not agree with the appellants’ insistence that the court’s ruling involved a prejudicial comment on the weight of the evidence. Apparently the court was referring to the report as a whole. Yet only a photostatic copy of the diagram is in the record; so we cannot tell whether the court’s remark was justified by the other side of the report. Moreover, a mere objection to the court’s comment was not sufficient. Counsel should have asked the court to instruct the jury to disregard the remark. See St. Louis, I. M. & S. Ry. v. Coke, 118 Ark. 49, 175 S. W. 1177 (1915); Southern Cotton Oil Co. v. Campbell, 106 Ark. 379, 153 S. W. 256 (1913); Jones v. Bank of Horatio, 102 Ark. 302, 143 S. W. 1060 (1912). We have no doubt that such a request, had it been made, would have been granted. Next, the appellants insist that the court was in error in holding the diagram, apart from the rest of the report, to be inadmissible. We find no abuse of the court’s discretion, because no witness testified that the exhibit accurately portrayed what it purported to show. The defense, in offering the plat, relied upon a statement made by Mrs. Giles, in her discovery deposition, that a diagram which was handed to her depicted the position of the vehicles after they collided. At the trial, however, Mrs. Giles was unable to say that the diagram then shown to her was the same one that she had seen on the other occasion. We find no positive statement in the record sufficiently establishing the accuracy of the exhibit. Hence we cannot say that the court erred in withdrawing the diagram from the jury’s consideration. Lastly, the appellants contend that John Booher was a surprise witness who should not have been permitted to testify. At the taking of the discovery depositions the opposing lawyers exchanged the names of their witnesses and orally agreed to disclose to each other the names of any additional witnesses that might be found. A day or two before the trial Mr. White, the plaintiffs’ attorney, learned through his clients that Booher had seen the position of the cars after the collision. White’s partner was being taken to the hospital, and in the confusion White forgot to report the name of the new witness to his adversary. He did mention the matter during the trial, however, and defense counsel interviewed the witness before he took the stand. The court allowed Booher to testify. We see no prejudicial error. The trial court unquestionably has a wide discretion in a situation of this kind. There is no reason to doubt White’s explanation of the oversight. Opposing counsel did interview the witness before he took the stand. Apparently counsel were not surprised, for they made no request for a continuance. Taking the circumstances as a whole, we are unwilling to say that the court should have ruled inflexibly that the plaintiffs had forfeited their right to use Booher’s testimony. Affirmed.	[ -48, -8, -96, -82, 28, 64, 34, -118, -27, -105, -68, 83, -81, -55, 21, 35, -2, 121, 81, 42, 85, -77, 7, 18, -14, 119, -21, -124, -93, -56, 116, -48, 77, 48, -54, -35, 102, 74, -123, 92, -50, 6, -87, -19, 88, -46, -72, 56, -124, 15, 33, -113, -29, 42, 24, -49, 105, 44, 75, -80, 81, -16, -83, 13, 95, 2, -77, 52, -98, 11, 88, 40, -48, -75, 1, 120, 51, -74, -112, -12, 105, -103, 12, -82, 98, 0, 21, -51, -68, -100, 38, 122, 15, -89, 18, 8, -55, 13, -74, -99, 120, 18, 12, 110, -4, 77, 93, 104, 3, -49, -74, -79, -115, 112, -100, 27, -5, -121, 16, 112, -51, -24, 94, 69, 123, -7, 79, -126 ]
George Eose Smith, Justice. This is an action brought by the appellee to recover the $5,000 death benefit payable under a policy insuring his son, Jerry Bowling, against injury or death “resulting directly and independently of all other causes from bodily injury . . . effected solely through accidental means.” At the trial the jury’s verdict was for the plaintiff in the full amount of the policy. The insurer contends, that it was entitled to a directed verdict for the reason that under Missouri law, which the trial court found to be controlling, the insured’s death was not effected by accidental means. In January, 1964, the elder Bowling, a resident of Arkansas, received by mail an advertisement of an accident policy issued by the appellant, a Missouri corporation. Bowling applied for a policy upon his. nineteen-year-old son Jerry, sending the application and premium to the insurer’s principal office in Missouri. The company issued the policy and delivered it by depositing it in the mails in Missouri. In the past we have held that in such circumstances the policy is to be governed by the law of Missouri. State Mutual Fire Ins. Assn. v. Brinkley Stave & Heading Co., 61 Ark. 1, 31 S. W. 157, 29 L. R. A. 712, 54 Am. St. Rep. 191 (1895). In November, 1964, Jerry was living in Arkansas but was working in Oklahoma. On November 23 he and a companion, Donnie Nixon, spent most of the day riding around in or near Keota, Oklahoma. They stopped several times, to drink beer at taverns. The evidence indicates that at about ten o’clock that night Jerry was driving their car at great speed on a highway near Keota. Donnie was asleep. Jerry lost control of the car, which skidded on and off the highway for about 450 feet before plunging into a gravel pit filled with water. Donnie managed to escape, but Jerry was drowned. Was Jerry’s death effected through accidental means ? In Missouri the leading case upon this issue was originally that of Caldwell v. Travelers’ Ins. Co., 305 Mo. 619, 267 S. W. 907, 39 A. L. R. 56 (1924). There the court made a choice between two lines of authority, which it summarized in these words: ‘ ‘ There are two clearly defined lines of cases on this question. One holds that, where an unusual or unexpected result occurs, by reason of the doing by insured of an intentional act, where no mischance, slip, or mishap occurs in doing the act itself, the ensuing injury or death is not caused through accidental means; that it must appear that the means used was accidental, and it is not enough that the result may be unusual, unexpected, or unforeseen. “The other line of cases holds that, where injury or death is the unusual, unexpected, or unforeseen result of an intentional act, such injury or death is by accidental means, even though there is no proof of mishap, slip, or anything out of the ordinary in the act or event which caused such injury or death.” After reviewing the authorities at great length the court elected in the Caldwell case to adopt the first of the two rules, by which there must be some accidental element in the doing of the intentional act that causes the injury or death. It is accordingly argued in the case at bar that the insurance company is not liable, because Jerry Bowling intentionally drank beer to the point of intoxication and in that condition intentionally drove at a speed estimated by a highway patrolman to have been between 90 and 100 miles an hour. Under those circumstances, counsel say, Bowling’s death cannot be regarded as unforeseeable or unexpectable. We must reject this argument, for either of two reasons. First, Donnie Nixon testified that Jerry was not drunk that night. If the jury accepted that testimony it would follow that Jerry’s death was the result of his losing control of the car while driving at an excessive speed. Unquestionably the jury could have concluded that the loss of control was itself attributable to accident rather than to intention. Secondly, the more re cent Missouri cases hold that when the plaintiff’s proof shows that the insured’s death was violent, as it was in the case at bar, there is a prima facie case for submission to the jury. King v. New Empire Ins. Co., Mo. App., 364 S. W. 2d 40 (1962); Ward v. Penn Mutual Life Ins. Co., Mo. App., 352 S. W. 2d 413 (1961). Since the judgment must be affirmed even under the law of Missouri, we do not reach the question whether the more liberal rule of substantive law that prevails in Arkansas ought to govern in a case such as this one. In recent years many principles in the field of conflict of laws have undergone re-examination — a process that is still in progress. Courts are taking a second look at the older inflexible approach by which in certain fact situations the law of a particular jurisdiction is to be woodenly applied, even though there may be a sound basis in public policy or simply in common sense for preferring the law of some other jurisdiction. We touched upon this point in McGinty v. Ballentine Produce, 241 Ark. 533, 408 S. W. 2d 891 (1966), but there, as here, we did not find it necessary to take a stand in the matter. With respect to the narrow issue involved in the case at hand we may appropriately say that there are good reasons for construing a contract of life insurance by the law of the state where the insured was living when the policy was issued. See Restatement of Conflict of Laws (2d), 6th Tentative Draft, § 346h; Zogg v. Penn Mutual Life Ins. Co., 2d Cir., 276 P. 2d 861 (1960); Peterson v. Warren., 31 Wis. 2d 547, 143 N. W. 2d 560 (1966). Should the issue be squarely presented we shall feel free to review the wisdom of our earlier decisions. There is a second question to be decided. The plaintiff asked in the court below that he be allowed the penalty and attorney’s fee authorized by our statute. Ark. Stat. Ann. § 66-3238 (Repl. 1966). The trial court rejected the request, holding that the Missouri statute upon that aspect of the case was controlling and that the plaintiff had not shown that the insurer’s delay was “vexatious,” as the law of Missouri requires it to be. This was error. The question is essentially a procedural one, to be governed by the law of the forum. Aetna Cas. & Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117 (1957). It is true that we said in that case that “the policy matured in Arkansas and the action is brought in Arkansas.” Even though the policy now before us might be said to have matured in Oklahoma, where Jerry Bowling met his death, the action is properly maintainable in Arkansas, where the plaintiff resides. We consider this to be an adequate basis for the application of our statute. The judgment will be modified on the cross-appeal to include a 12% penalty and an attorney’s fee of $1,500. Modified and affirmed.	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Cuy Amsler, Justice. This litigation involves the custody of a six year old boy, (Craig) who is now attending public school in Paragould, Arkansas, where the hoy’s father resides with his fourth wife and the child. The learned chancery judge decreed that custody of the child should remain in the father, appellee Leroy J. Tyler. Appellant (Mabel), the mother and former wife of appellee pursues this appeal. Attorneys for appellant correctly state that the cardinal question is where does a preponderance of the evidence lie or as they say “from another point of view, the decision of the Chancellor is not compatible with the best interests of the minor child.” A brief resume of the proof in the case will readily demonstrate the soundness of the Chancellor’s conclusions. Appellant testified that her married life with appellee, from 1957 until their divorce in 1963, was a stormy one; that when she became pregnant in 19'59 she was unhappy about it and when she suggested having an abortion (which she did not do), appellee did not object; that appellee changed jobs frequently and they moved constantly; that she also worked throughout the marriage, because appellee did not consistently contribute to household expenses; that when she decided to take further training to increase her earning capacity, appellee reluctantly agreed to keep Craig during her 1% years of schooling and agreed that there would be no decision made about Craig’s custody until that time. A doctor’s wife, who had gone through nurse’s training with appellant, testified that appellant was a good mother, affectionate with her son, and that during appellant’s advanced schooling in Michigan, appellant drove or flew down to see Craig every three months regardless of the weather. Two women, themselves mothers, who had baby-sat for appellant in the past, testified by deposition that appellant had maintained a nice home, was a good mother, affectionate, and a proper person to have Craig’s custody. Appellant’s former landlord testified that she had a suitable (rented) home (in Illinois) for a child, near schools. Appellee’s witnesses, besides himself and his present wife Dorothy, testified: their minister, “delightful family relationship, a lovely home with a proper spiritual atmosphere”; two neighbors, “nice home, fondness and affection not only between Craig and appellee but also between Craig and Dorothy Tyler”; Craig’s kindergarten teacher, ‘ ‘ neat, clean, healthy, happy and normal boy”; the wife of a co-worker of appellee, “wholesome atmosphere and relationship in appellee’s home; happy, normal well-adjusted child”; a former co-worker, “a home that just seems orderly, and there’s harmony there, there’s love, and it’s just a beautiful home in which to raise a young lad”; appellee’s former employer and his wife who came from Independence, Missouri, to testify (the only witnesses for appellee who know appellant), “appellant inclined to be rather aloof and retiring, except when she was working; appellant seemed detached and withdrawn”; and the minister of Dorothy’s mother, with whom Craig frequently stayed for a few hours after kindergarten, “good clean home, healthy woman and well able to look after Craig, nothing about her home that would have an adverse effect on Craig.” The only real demerit against appellee is his numerous unsuccessful marriages and yet the one with his present wife appears to have been most fortunate. According to Mr. Heath, the funeral director by whom Leroy has been employed as an embalmer and director for over two years, “Leroy is one of the best in his line of work. . . there is nothing about appellee or his home that would be harmful to Craig . . . his marriage to Dorothy Tyler had seemed to have a stabilizing influence on him” (appellee), and he felt that their marriage was very fortunate for both of them. The chancellor having heard the witnesses first hand with an opportunity to observe their demeanor, sincerity and their means of obtaining* information which they imparted to the court was in a much better position than are we to evaluate their testimony. We think the evidence clearly supports appellee’s position and that the trial court has correctly determined that the child’s welfare will best be served by remaining with his father. Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817; Blake v. Smith, 209 Ark. 304, 190 S. W. 2d 455; Stephenson v. Stephenson, 237 Ark. 724, 375 S. W. 2d 659. Under the final decree in this ease appellant is to have custody of the little boy sixty days each summer and one weekend during the remaining months. Appellee does not contest this arrangement. Accordingly the decree is in all respects affirmed.	[ 112, -18, -27, 44, 10, 33, 58, -72, 123, -125, 37, -45, -81, 71, 20, 109, -110, 43, 64, 106, -45, -77, 87, 65, 114, -14, -69, -48, -77, -39, -27, -33, 76, 120, -54, -43, 66, -53, -59, -48, 6, 4, -85, -55, 88, -42, 48, 115, 88, 15, 53, -97, -45, 44, 61, -60, -88, 46, 91, -74, -40, -80, 26, 4, 95, 6, -109, 68, -70, 32, 88, 12, -40, -72, -120, -23, 51, -74, -122, 116, 69, -119, 8, 112, 103, -127, -87, -26, -8, -104, 110, 111, 29, -89, -102, 72, 67, 12, -65, -71, 117, 80, 46, 122, -25, 69, 30, 100, 100, -113, -42, -79, -123, 32, -44, 2, -29, 33, 32, 85, -53, -32, 93, 69, 59, -109, -66, -78 ]
Bunn, C. J. This is an indictment and conviction for removing mortgaged property, and the defendant appealed to this court. The first objection of defendant insisted on here is that the indictment was not found upon any evidence. The facts upon which this objection is based are, as alleged by defendant, that, the indictment first found for the same offense having been quashed for some irregularity by the court, the matter was referred back to the grand jury for reconsideration. In the meantime, one of the grand jury had been discharged for good cause shown, and another competent person substituted in his place. On the second consideration of the subject by the grand jury as then constituted, the testimony was not retaken, but the testimony as already taken down before the grand jury before the change in its composition, and upon which the first indictment was found, was used, and upon this testimony the indictment upon which defendant was tried was found. This irregular way of finding an indictment is not to be commended, and is not approved, but, unless other showing of prejudice to the defendant is made, we do not consider the error such as would justify a reversal of the judgment herein. The motion to quash the indictment having been overruled, the defendant then demurred (1) because the indictment does not show that said alleged offense was committed within the jurisdiction of the court; (2) because the facts stated in the indictment do not constitute a public offense. This demurrer, as to both grounds, was overruled, and the defendant took his exceptions to the ruling of the court therein. The indictment alleges the offense of removing from the county wherein the mortgage is alleged to have been recorded certain personal propex’ty described in the mortgage. The indictment charges that the defendant removed the property from the county wherein the mortgage was recorded. Under the statute, the particular crime consists in x-emoving the mortgaged property from the county wherein the mortgage lien was created and exists. The allegation as to the place of record was improper, but it was only surplusage at last; for, where the venue is not laid in an indictment, the offense will be consided as having been alleged to have been committed within the local jurisdiction of the court in which the indictment is foxxnd, as will be referred to further on. This disposes of the objection raised by the first ground of demurrer. And this also substantially disposes of the objection raised by the second ground of demurrer, in part; bxxt the defendants counsel contend that the mortgage, being unrecorded, created no lien upon the property, and that, therefore, it was no crime to remove the property as charged. This contention makes it necessary to go somewhat into detail, both as to the facts and the law applicable thereto. The facts are substantially as follows, to-wit: On the 31st March, 1899, the defendant, being indebted to one W. H. Burnett in the sum of $175 or other large sum, agreed to give him a mortgage on his cotton crop for the year and certain personal property to secure the payment of said indebtedness; and on that day he, Burnett and a notary public all met at the storehouse of Burnett, which we infer was in Dumas, where the case was tried, and the defendant had the live-stock to be included in the mortgage, and he then and there executed and delivered the mortgage to Burnett, after acknowledging the same before said notary public. Sometime afterwards another creditor of the defendant was pressing him for his debt, and, at the instance and solicitation of the defendant, Burnett paid off that debt, the defendant agreeing to secure him for the sum so paid out by Burnett for him; and then, taking the property upon which this additional security was to be given, he goes to the store-house of Burnett with it, and there he, Burnett, and the same notary public, after consultation over the matter, concluded to have the additional debt and additional security inserted in the mortgage, and the acknowledgment, to that extent, of the defendant was taken orally by said notary public, and this economical manner of making a mortgage, and taking an acknowledgment of the execution of the same, it is contended, renders the recording of the mortgage irregular and void, and, for the sake of the argument, we admit that it does, although we do not pass upon the question in fact. In this way it is contended that the mortgage was never re - ‘ corded, and upon that the further and real contention is that there was no lien on the property, since only a recorded mortgage creates a lien on the mortgaged property. The argument in support of that contention is this: That at common law a mortgage, of itself, created no lien; that, upon default of payment of the debt when due, the mortgagee became the absolute owner of the mortgaged property; that our statutes have made no change in this rule of the common law, and have made the record of the mortgage, and that alone, the basis of the lien; and that, without this recording, there is no mortgage lien. The only statute strictly applicable to this subject reads as follows, viz.: “Every mortgage, whether for real or personal property, shall be a lien on the mortgaged property from the time it is filed in the recorder’s office for record, and not before.” The conten tion is that a mortgage unrecorded, not being a lien at common law, and not having been made so by statute, is no lien at all. But is it true that a mortgage created no lien at common law? It is true that at first, in courts of law, a mortgage was not considered a lien on the property mortgaged; but from almost the very beginning courts of equity began to oppose this dictum of the common law courts, and to assert that a mortgage was only a lien on the mortgaged property, and nothing more, in favor of the'mortgagee, and, what was tantamount to it, that the mortgagor had the right of redemption after default, and that this right constituted an interest and estate in the property, of which he could not be deprived by forfeiture, but only by judicial determination and foreclosure. The controversy between the two jurisdictions soon grew to be strongly acrimonious, and so continued until the reign of James II, when the controversy was finally settled, and the theory of the equity court—that which has since prevailed in England and the American states—was held to be the true rule; that is, that the mortgagee has the legal title to the property, but only to a limited extent, and after default his legal right is a mere remedy, and that only, extending no further than as an aid in the collection of the mortgage debt, and that in so far courts of equity are to respect this legal right in control of the property and enforcement of the mortgage contract by foreclosure or otherwise. But the right of redemption, and the title growing out of it, were fixed rights, and had been from the beginning, however much the principle had been controverted. The only case to be cited in the English reports in which the old theory of the law courts were revived in after times was the case of Casborne v. Searfe, 1 Atkins, 603, in 1737. But the defeat of the party reviving the old controversy was so signal, it is said, that no case of the kind has occurred since. But that a mortgage of itself creates a lien is so generally understood, and has so entered into our legislation and jurisprudence, that we are forced to the conclusion that all enactments of the legislative departments and all decisions by the courts are made with this theory in view, aud that the apt of the legislature quoted above had reference solely to the lien as affecting third parties, and the declaration of the courts that a mortgage, though unrecorded, is good between the parties, is the same as saying that it is as good between the parties in all respects and in all its incidents, when unrecorded, as it would be as to third parties when recorded. There was therefore no error in overruling the demurrer as to its second ground. In this connection, it is contended by defendant’s counsel that the decision of this court in the case of, State v. Barnett, 65 Ark. 80, should be overruled, as announcing a doctrine unsupported by authority; citing the cases of Main v. Alexander, 9 Ark. 112, and State v. Harberson, 43 Ark. 378. In the first of these two eases, the syllabus on the subject reads: “A mortgage is good between the parties, though not acknowledged and recorded, but, under our registry act, it constitutes no lien upon the mortgaged property, as against strangers, unless it is acknowledged and recorded 'as required by the act, even though they may have actual notice of its existence.” That was a case between parties to the mortgage and third parties or strangers to it. Therefore it is not applicable to the facts of the case at bar; nor are any comments of the courts on the rule, as applied to that ease, where third parties are involved, to be regarded as any authority to a case like this one, where no third parties are involved. The ease of the State v. Harberson, 43 Ark. 378, was an indictment under the act of 1875, viz.: “Any person or persons who shall hereafter remove beyond the limits of this state, or of any county wherein the lien may be recorded, property of any kind, upon which a lien shall exist by virtue of any mortgage, deed of trust, or by contract of parties, or by operation of law, or who shall sell, barter or exchange or otherwise dispose of any such property without the consent of the person or persons in whose favor such lien shall have been created or exists by law, or who shall secrete the same, or any portion thereof, shall be deemed guilty of felony, and subject to an indictment, and, upon conviction thereof, shall be sentenced to hard labor in the/jail and penitentiary house of this state for the period of not less than one nor more than two years, at the discretion of the jury trying the same.” The crime, under that act, consisted in removing from the county wherein the lien may be recorded the property upon which the lien existed. The language of the act evidently led the court in that case to the opinion that there must be a record of the lien, or else the offense did not exist. The case of State v. Barnett, 65 Ark. 80, arose under the act on the subject approved March 7, 1893, (Sand. & H. Dig., § 1868), which is amendatory of the said act of 1875, and reads thus: “It shall be unlawful for persons to sell, barter, exchange or otherwise dispose of, or to remove beyond the limits of this state, or of the county in which a landlord’s or laborer’s lien exists, or in which a lien has been created by virtue of a mortgage or deed of trust, any property of any kind, character or description, upon which a lien of the kind enumerated above exists.” We have italicized the distinguishing words. In the amendatory act, the crime consists in removing the property from the county wherein the lien was created and still exists^ The change in the language is, of itself, very significant. At all events, the two cases were based upon two distinct statutes, and therefore there is not necessarily any conflict in the two decisions. It is contended that one of the jurors in this case, contrary to the orders of the court, separated from his fellow jurors, and therefore the verdict should be set aside. It is charged that the panel was being made up, but not completed, when the court took a recess, probably for the night, and charged the selected jurymen not to separate, but that one or more of them did separate from the others. It does not appear that the order of the court was made at the instance of the defendant for any special reason, but only on its own motion. The court can use its discretion to permit the jurymen selected to separate before the panel is made up and sworn, and it would seem that it could as reasonably excuse a disobedience of its order against separation as it could make the order on its own motion in the first instance; but, without ruling on this point, the testimony offered by the defendant to show the separation and misconduct of the jurymen involved was the testimony of the jurymen themselves. The court refused to admit the testi mony, and this refusal is made one of the grounds of the motion for a new trial. There was no error in this. Section 2269, Sand. & H. Dig., reads thus: “A juror cannot be examined to established a ground for a new trial, except it be to establish as a ground for a new trial that the verdict was made by lot.” No other testimony was offered on the subject. See Wilder v. State, 29 Ark. 293. Another ground of the motion for the new trial was that the court refused to give instructions numbered 1 and 2 asked by the defendant, which are as follows: “No. 1. The jury are instructed that, before they can convict the defendant of the charge in the indictment, they must find from the evidence, beyond a reasonable doubt, that he removed said property from the county with the fraudulent intent to cheat the said W. H. Burnett of the debt secured by the mortgage. No. 2. The jury are instructed that, if they find the defendant removed said property from the county for any other purpose than a fraudulent purpose, but for business or honest purposes, then they will find for the defendant, or, should they entertain a reasonable doubt as to whether his purpose was honest or fraudulent, they will give the defendant the benefit of the doubt and acquit.” These two instructions were intended to cover the proviso clause.of section 1868, defining the crime, which reads as follows: “Provided, such sale, barter, exchange, removal or disposal of such property be made with .the intent to defeat the holder of such lien in the collection of the debt secured by mortgage, laborer’s lien or landlord’s lien.” The court refused these instructions, but in lieu thereof gave the following on its own motion, to-wit: “If you find from the evidence that defendant removed the property mentioned in the mortgage from Desha county to Ashley county, without fraudulent intent, and in good faith to procure hands to work in his crop, or for any other honest business purpose, and return to Desha county without unnecessary delay, then you should find the defendant not guilty.” The court made the following addition to instruction No, 6, asked by defendant, and, so amended, gave it, to-wit. “No. 6. The jury are instructed that the allegation in the indict ment ‘with the fraudulent intent’ is a fact to be established by the testimony beyond a reasonable doubt, the same as any other material allegation in the indictment. Such intent, however, need not be proved by direct testimony, but may be established by circumstantial evidence, as in case of any other disputed fact.” It is contended that the two instructions refused were expressed in better language than the substituted instructions, and so much so that the refusal to give them was a reversible error, notwithstanding the giving of the substituted instructions. Under the general rule that one is presumed to have intended the consequences of his own acts, it is sufficient to charge that the act was committed feloniously, if a felony is charged, and the good motives of the act are left to be shown in evidence as a defense or in mitigation. The indictment in this case was all-sufficient in this respect. It is evident, however, that the instructions which are the subjects of this particular controversy were intended to apply to the evidence, under the peculiar proviso of the statute. It is contended that the refusal of the two instructions, and the giving of the others in lieu thereof, threw the burden too much on the defendant to show his honest purpose in removing the property as he did. Our view of it is, however, that the court instructed on the particular facts set up in the defense, and in so doing we think the jury were fairly presented with the law of that part of the case, and therefore there was no error. The only remaining question is one of fact, whether or not the venue was proved. Proceeding upon the presumption that the mortgage was not in fact recorded, it appears that no venue was laid in the indictment; for the place of record is stated therein, and not the place where the lien was created and exists. This defect in the indictment is cured by statute (section 2082, Sand. & H. Digest), in which it is provided that where the place of committing the crime is not named in the indictment, it shall be considered as charging the same as committed within the local jurisdiction of the court. The testimony as to the place where the mortgage was executed,—where the lien was created,—is more or less indefi nite. The mortgagee and notary public who took the acknowledgment say that the mortgage was executed at Burnett’s store, and the notary says that not only did he take the acknowledgment, but that he wrote the mortgagor’s name to the mortgage, he being unable to write, and only made his mark, which was witnessed by the notary public. The real indefiniteness of the testimony consists in failing to state expressly where Burnett’s storehouse was. That point, however, does not seem to have been controverted anywhere in the argument, nor to have been called particularly to the attention of the witnesses or to the court. The almost necessary inference from all that was said is that this storehouse was in Dumas, the lawful place of holding the circuit court of Watson district of Desha county, or, at least, in the district. This point being established, there is no real difficulty as to the proof of the venue. Hughes and Riddick, JJ., dissent . Riddick, J. I am of the opinion that the presiding judge, in refusing to give instruction number one asked by defendant, committed prejudicial error. An allegation in the indictment was that the defendant removed the mortgaged property “with the felonious intent to defeat the said W. H. Burnett, the holder of said mortgage lien, in the collection of the sum of $175.95, the amount due the said W. H. Burnett on said mortgage debt on said 12th day of March, 1899, and secured by mortgage as aforesaid.” This allegation was material, and the testimony bearing on it was conflicting. It was therefore important for the jury to clearly understand that this allegation that the defendant removed the property with the intent to defeat Burnett in the collection of his mortgage debt must be established by the evidence beyond a reasonable doubt before they could convict the defendant. It was a matter of vital importance to the defendant that the jury should fully comprehend this; otherwise, they might convict upon proof of the removal only, without being satisfied of the felonious intent. Appreciating this danger, and endeavoring to avoid it, his counsel asked the circuit judge to give the following instruction: “The jury are instructed that, before they can convict the defendant of the charge in the indictment, they must find from the evidence, beyond a reasonable doubt, that he removed said property from the county with the fraudulent intent to cheat the said W. H. Burnett of the debt .secured by the mortgage.” This instruction was correct, but the judge refused to give it, and the instruction he gave on this point does not, in my .opinion, present the question so clearly to the jury. The instruction he gave tells the jury that “the allegations in the indictment ‘with the fraudulent intent’ is a fact to be established by the testimony beyond a reasonable doubt, the same as other material allegations in the indictment.” Now, although the language used is rather awkward, a lawyer would understand that the judge, by the phrase “the allegation in the indictment ‘with the fraudulent intent,’ ” meant the allegation that the removal of the property was made to defeat Burnett in the collection of his mortgage debt. But jurors are not lawyers, and, as the language of the law is not always that current in every day life, they do not always readily comprehend it. The object of the instructions is not to present to the jury questions of law or questions concerning the meaning of legal terms, but to present questions of fact for their decision. For this reason, instead of telling the jury in a general way that “the allegation in the indictment ‘with the fraudulent intent’ is a fact to be established beyond a reasonable doubt,” he should have told them, as asked by defendant, that, before defendant could be convicted, it must be shown beyond a reasonable doubt that he removed the property with the intention to defeat Burnett in the collection of his debt, and that if, after consideration of all the evidence, they still had a reasonable doubt on that point, they should acquit. He did not do this, but forced the defendant to trial with only a general statement of the law with reference to “the allegations :n the indictment with the fraudulent intent,” leaving it for the jury to determine what those allegations were to which he referred. Now the awkward language used in this instruction is doubtless due to an error in copying, and is probably no 'fault of the learned trial judge, but, leaving out that defect, the charge is too general. Cases are often tried on general instructions of the kind given in this case, and when the defendant asks for none more specific no error is committed. We say in such a ease that if the defendant desired clearer and more definite instructions he should have asked them, and if he was prejudiced by the failure of the judge to give them the fault rests upon his own shoulders. But there is no room to apply that well-established rule in in this case, for the defendant did ask other more definite and clearer instructions than those given. He, in effect, asked the judge to point out specifically to the jury the allegation referred to by the words “the allegations in the indictment ‘with the fraudulent intent’,” but this request was refused. It therefore becomes a question here whether a defendant, upon a charge of felony, can be compelled to rest his case on instructions referring only in a general way to the allegations in the indictment, or whether he has the right to have the questions in dispute specifically pointed out and presented to the jury. I think that he has such a right, and that it is of the highest importance that questions of fact should be specifically stated to the jury, and not by the use of general terms left for them to speculate upon and pick out by the use of their own knowledge of the law and the facts. I have not forgotten that the circuit judge gave another instruction on his own motion in which the facts were referred to. In this instruction the judge tells the jury that if it is shown that defendant removed the property for honest purposes, intending soon to return it, they should acquit. But this instruction leaves out the idea that the burden is on the state,, and that the facts referred to must be established by the evidence beyond a reasonable doubt. Without further explanation, this instruction might leave the impression that it was for the defendant to establish that his intentions in removing the property were honest. Though the instructions given may, abstractly considered,’ be correct, still, for the reasons given, I think that neither of them clearly cover the points presented by the defendant in the instruction asked by him. I am therefore of the opinion that the refusal to give that instruction was error, for which the judgment should be reversed, and a new trial ordered. Hughes, J., also dissented, for reasons stated by him in an oral opinion.	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Hughes, J., (after stating the facts.) The question arises on the construction of several statutes relating to county convicts. • The act of March 10, 1877, provides as follows: “Sec. 4. When any person shall be convicted of any misdemeanor under the laws of this state by any court of competent jurisdiction, the court shall render judgment against the person so convicted, which judgment shall direct that the person convicted be put to labor in any manual labor workhouse, or on any bridge or other public improvement, or that the person be hired out to some person as hereinafter provided, until the fine and costs are paid, and which shall not exceed one day for each seventy-five cents of the fine and costs.” Acts 1877, p. 74; Sand. & H. Dig., § 899. The following is taken from the act of March 22, 1881: “Sec. 5. That whenever any prisoner shall be convicted of a misdemeanor by any court or justice of the peace, if the fine and costs are not immediately paid or secured to be paid within thirty days to the satisfaction of the constable, sheriff or other officer, in case of conviction before the circuit court, said convict shall be committed to the county jail, and by the jailer delivered to the contractor, who shall keep and work him at the rate of twenty-five cents per day, not including Sundays and days on which said convicts shall be unable to labor, or for any cause, by his consent, shall not labor, and said contractor shall pay said fine and costs, and be liable on his bond for the same; and he shall not be released or excused therefrom unless said convict shall die without working sufficient to pay the same; or unless said convict shall be or become, from continued ill health, unable to work. In such case the county judge may order his discharge without payment of costs; but, unless so discharged, said convict shall work two days for each day lost by sickness, one of which days shall be for compensation of keeping him during a day on which he was sick; and whenever said convict shall be sentenced to jail as a part of his punishment, he shall first work with the contractor to pay his fine and costs, and shall then commence to serve out his term by labor under the contractor as herein provided.” Acts 1881, p. 150. The act of March 13, 1883, provides as follows: “See. 3. That section 5 of said act be so amended as to read as follows: See. 5. Whenever any prisoner shall be convicted of a misdemeanor by any court or justice of the peace, if the fine and costs are not immediately paid or secured to be paid within thirty days to the satisfaction of the constable, sheriff or other officer, in case of conviction before the circuit court, said convict shall be committed to the county jail, and by the jailor delivered to the contractor at such place as the contractor may designate, who shall keep and work such prisoners for the time he shall have been adjudged to be imprisoned, and for the further time as will discharge all fines and costs for which he may be committed, at the rate of fifty (50) cents per day. And said contractor shall not be released or excused from payinn for the time of any convict unless such convict shall die without having labored, or unless such convict shall be or become from continued ill-health unable to work. In such case the county judge may order such convict to be discharged without payment of fine or costs, and whenever any convict shall be sentenced to jail, as part of his punishment, he shall first work with the contractor to pay his fine and costs, and shall then commence to serve out his term by labor under the contractor as herein provided.” Acts 1883, p. 126. The title of this act is “An act to amend sections 2, 3, 5, 15 and repeal section 6 of ‘an act to reduce the expenses of enforcing the criminal laws of the state,’ approved March 22, 1881.” The act of April 12, 1899, p. 180, provides that when no contractor can be found to take convicts they shall be worked on the roads. It contains the following section: “Sec. 3. For the purpose of further enforcing this act, the county court, or judge thereof, shall designate in its order the road districts which shall be first worked under this act, and the prisoners shall first work in the district or districts so designated until the road or roads therein shall be put in perfect condition, and the disposition of these prisoners, while they are liable to work the roads under this act, and the order of the work shall be in the discretion' of the county court or the judge thereof; provided, that the convict defendant shall receive seventy five (75) cents per day, including Sunday, for each day he is so hired out to such contractor, in excess of any liability for care or sickness.” The conviction took place on the 6th day of April, 1899, after the passage of the act of March, 1883; and it seems plain that the case is governed by the act in force at the time of the conviction, at- least in the absence of any showing that the offense was committed when the previous act was in force. The court is of the opinion that the act of April 12, 1899, was not intended to have, and does not have, any retroactive operation, and that it does not apply to this case. Duke v. State, 56 Ark. 495. The act of the 13th of March, 1883, governs this case, and we hold that under that act the prisoner is entitled to a credit of fifty cents per day for each day she is confined, or has been confined, including Sundays and. all tbe days of her confinement. But it appears she had been confined at tbe time of ber application 153 days, and was then entitled to a credit for $76.50. Tbe amount of the fine and costs being $109, she was then liable to be held for the payment of $32.50, to pay which at 50 cents per day would require 65 days from that date. The judgment of the court below is reversed, and the cause is remanded, with directions to enter a judgment in accordance with this opinion, and to remand the prisoner to the custody of the constable to finish the term of her imprisonment.	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Hughes, J., (after stating the facts.) Sec. 493, Sandels & Hill’s Digest, provides that “any vendor of any patented machine, implement, substance or instrument of any kind or character whatever, when the vendor of the same effects the sale of the same to any citizen of this state on a credit, and takes any character of negotiable instrument in payment of the same, the said negotiable instrument shall be executed on a printed form,-and show upon its face that it was exeuted in consideration of a patented machine, implement, substance or instrument, as the”case may be, and no person shall be considered an innocent holder of the same, though he may have given value for the same before maturity, and the maker thereof may make such defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes, not showing on their face for what they were given, shall be absolutely void.” Sec. 494, Sandels & Hill’s Digest. “The foregoing section shall also apply to vendors of patent rights, and family rights to use any patented thing of any character whatever.” Sec. 495. “Any vendor of any patented thing of any character, or any vendor of any patent right or family right to use any patented thing of any character whatsoever, who shall violate the provisions of section 493, shall, upon conviction, be •punished by a fine of not more than three hundred dollars.” Sec. 496. “This act shall not apply to merchants and dealers who sell patented things in the usual course of business.” This act is plain and emphatic. The note sued on in this case was void for non-compliance with section 493 of the statute quoted above. The note could not be the basis of recovery in this suit. As an evidence of indebtedness, it was void under section 493. The judgment is affirmed.	[ -14, 120, 120, 93, 27, -96, 43, -102, -63, -91, -74, 51, -23, -14, -107, 49, 101, -13, 113, 75, -41, -89, 7, 75, -26, -69, -64, -43, -79, 75, -20, 86, 77, 52, -62, 125, 71, -48, -127, -44, -58, 44, 9, -31, -15, 65, 52, 43, -44, 65, 97, -113, 33, 46, 31, -49, 45, 44, 107, 59, -7, -8, -101, -99, 61, 20, -78, 5, -104, 7, -38, 14, -126, 25, 17, -24, 50, -90, 70, 84, 105, 41, 0, 98, 34, 34, -47, -19, -8, -84, 47, -37, 29, -90, 81, 72, 3, 43, -97, -99, 50, 16, 14, 118, -6, 28, 27, -4, 19, -113, -106, -125, 47, 98, -100, -85, -17, -125, 17, 81, -58, 52, 84, 103, 62, -101, 14, -36 ]
Bunn, C. J. The plaintiff, James W. Russell, and his brother, Alva Russell, were partners doing a mercantile business in the town of Russellville, Pope county, this state, under the firm name of Russell Bros, and on the 7th day of November, 1871, the defendant, G. M. Williamson, was indebted to this firm in tíre sum of $280, which had become due and payable on the first day of January, 1871, and for this sum Williamson executed and delivered his promissory note, due one day after date, bearing interest at the rate of ten per centum per annum from 1st of January, 1871, until paid. Payments were made upon this note from time to time until 18th of December, 1882, so that the same was not then barred by the statute of limitations, and on the last-named date said firm instituted their suit before a justice of the peace of said county for the recovery of the balance due thereon, and on the 30th day of December, 1882, judgment was rendered against Williamson, by default, for the sum of $129.11 principal and $336.13 interest, and on the 30th January, 1883, execution was issued by said justice of the peace, and the same was returned on the 20th February, 1883, “nulla dona” and on the 26th March, 1883, a transcript of said judgment was filed in the office of the clez-k of the circuit court of said county, and the same was duly entered on the docket as inquired by statute, and'became a lien on all the real estate of said Gf. M. Williamson in said county. On the 29th May, 1883, an execution was issued out of the office of said circuit court clerk on said transezibed judgment, and plaeedinthe hands of the sheriff of said county, and the same was levied upon the interest of said Williamson in the W. ij of S. W. j, the N. E. \| of S. W. \|, in section 28, township 8 north, range 20 west, and the undivided one-third interest in the N. E. ¿ of the S. E. and part of the S. E. $ of the S. E. \| (the last named tract containing 30 acres), in section 29 in township 8 north, range 20 west; and on the 14th day of July, 1883, in pursuance of said levy the same was sold by said sheriff to, satisfy said execution, and the said Alva Russell became the purchaser at said sale, he bidding the amount of said judgment and costs, and, twelve months having expired, deed was made to him accordingly,—presumably the said judgment being duly credited as the consideration of said sale and purchase. The return of the sheriff is alleged to have been on file when the deed of the sheriff to Alva Russell was acknowledged in open court, but it does not appear in the record, and the only evidence of the notice of sale, presented for onr consideration, is the deed itself and its recitals, and this of course is prima facie evidence. Among the recitals in said deed is the following: “And whereas, afterwai’ds, to-wit, on the 23d day of Juné, 1883, I advertised the said tracts and parcels of land for sale according to law, by an advertisement inserted and published in the Russellville Democrat, a newspaper published and printed in the county of Pope, to be sold at the door of the court house of said county of Pope on the 14th day of July, 1883, at which time and place I attended, and between the hours prescribed by law for judicial sales, etc.” From this recital no other notice appears to have been given than the newspaper advertisement, whereas the statute requires in addition the posting of printed advertisements, one at the court house door and one each at five other public places ■ in the county, Sand. & H. Dig. § 3095. The notice was not sufficient, under the statute, and the sale was void, and so is the deed made in pursuance thereof, and this makes it unnecessary to discuss the several other questions raised by the pleadings and discussed in the briefs of counsel. Henderson v. Hays, 12 N. J. L., 387. The authorities sustain the theory that a sale defective in this and similar ways may be set aside on motion in court to quash the return or report of sale, and thus prevent the execution of the deed by the sheriff. 22 Am. & Eng. Enc. of Law, p. 670. But this remedy pending the proceedings is evidently not exclusive, for while, in most cases, the owners have opportunity to pursue this remedy by motion as a part of the case, yet, in other cases, from the nature of things, they would not have such opportunity; and it reasonably follows, since one must not be entirely without available remedy, that he may make his defense, as Williamson has done in this case, where the complaint is based on a defective deed, and the same is to be considered a direct attack, rather than a collateral one, for it is a direct defense. While, strictly speaking, it may be that there can be no innocent purchaser at execution sale, since no purchaser can acquire in any event anything more than the interest the judg ment debtor has at the time the levy of the execution, yet there is a well recognized difference between the status of the purchaser who is a third party, and that of the judgment creditor, growing out of their different relations to the record in the case; for, where there is a valid judgment, and a formal and valid execution, and perhaps other facts which the public are expected to look after, a third party is protected against many mere ministerial irregularities if he is without notice otherwise (but this is not really in the case, since the purchaser is not a third party), while the judgment creditor, as purchaser, is “presumed to have notice of all defects in the record and proceedings, and will not be protected as a bona fide purchaser if the notice of the sale was insufficient.” Collins v. Smith, 57 Wis. 284. And the same rule pertains in this state regarding the relative rights of the two classes of purchasers at execution sales, and the difference at last depends upon a want of knowledge on the one hand and reputed knowledge on the other. As the deed involved in this case upon its face shows that the notice of the sale was not given in compliance with the statute on the subject, and that therefore the sale was void, so also is the deed void, and confers no title. The decree of dismissal, as between plaintiffs and Williamson, is affirmed, but without prejudice to the rights of thejmortgagees of Williamson.	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Hughes, J., (after stating the facts.) There was evidence in the case tending to show, and from which the jury might have found, that the appellee, W. P. Hale, made application to Gaylord, the local surveyor and agent of the appellant, the Phoenix Insurance Company, for renewal of his policy of insurance No. 6906; that he paid $19.50 to Gaylord, as a premium therefor; that he received the binding receipt of the company therefor, which was countersigned by Gaylord, the surveyor of the company; that Gaylord forwarded the said application to his company, and that the appellee, Hale, was not notified by said company that it declined to renew said policy, and that said premium of $19.50 paid by Hale to Gaylord was never returned to the appellee, Hale; that Hale believed his policy was renewed by the company, and that he never knew that the company claimed that it had not renewed his policy until after his barn, on which the original policy had been issued, was burned, and the company refused to pay the insurance on the ground that he had not renewed the policy of insurance. There is a square conflict of testimony as to the payment made, by Hale, the appellee, of the $19.50, and as to whether Hale was notified that his application was refused by the company. These were questions of fact, upon which the jury found in favor of the appellee, and their verdict as to the facts must be taken as correct by this court. Hid the facts, as found by the jury, constitute a contract of insurance upon which the appellee was entitled to recover? It seems to a majority of the court that they did. If the ap pellant received the $19.50 premium paid by the appellee when he made application for the renewal of his policy and received the application, and neither returned the money nor notified the appellee that they declined to renew his policy, we think they are as much bound as though the policy had been issued. It has been decided by this court that a contract of insurance may be effected by parol,—that it need not be in writing. King v. Cox, 63 Ark. 204, and cases cited. The cases of Armstrong v. Insurance Co., 61 Iowa, 216, and Barr v. Ins. Co. of North America, 61 Ind. 488, cited by appellant to support the contention that there was no contract of insurance in this case, are not like the case at bar in some material matters of fact. Affirmed.	[ 116, 124, -12, -113, -56, 96, 42, -102, 127, -96, 39, 91, -7, 82, 4, 119, -10, 45, -31, 42, -41, -77, 23, 2, -42, -73, -15, -59, -79, -56, -20, -36, 12, 32, -118, -43, -26, 74, -59, 80, -50, -116, -72, -31, -39, -48, 48, 95, 116, 75, 85, -97, -69, 36, 29, -61, 77, 46, 123, 41, -48, -15, -86, 5, 127, 20, -109, 6, -104, 79, -6, 46, -112, 49, 24, -23, 83, -90, -106, 36, 45, -119, 8, 98, 102, 16, 1, -19, -24, -100, 46, -42, 15, -89, -112, 88, 11, 13, -65, -99, 124, 16, -106, 126, -12, 20, 92, 44, 1, -113, -10, -13, 95, 100, -100, 15, -25, -109, -73, 116, -50, -96, 93, 69, 118, -101, 15, -118 ]
J. Fred Jones, Justice. This case involves a peti'tion for a writ of prohibition directed to tbe Ashley County Circuit Court where a complaint was filed by an Asbley County resident against two insurance companies domiciled in another state. The suit was filed by Mrs. C. A. Hughes against New York Fire & Marine Underwriters, Inc., hereinafter called Underwriters, and Fireman’s Fund Insurance Company, hereinafter called Fireman’s Fund, and process was timely served on the Insur anee Commissioner as provided in Ark. Stat. Aim. § 66-2218 (Eepl. 1966). Fireman’s Fund filed its answer but Underwriters appeared specially, and on a motion to quash, objected to the jurisdiction of the court on two grounds as follows : “1. That this defendant has done no act to subject itself to the jurisdiction of this court under' the allegations of the complaint. “2. That this court lacks jurisdiction both of this defendant and of the cause of action, if any, alleged in the complaint of the plaintiff.” The motion to quash was overruled by the trial court and Underwriters has filed its petition here-for a writ of prohibition to prevent the Ashley County Circuit Court from assuming jurisdiction over the petitioner and the subject matter of the law suit. It is admitted by stipulation that the insurance commissioner is the duly appointed agent of petitioner for service of process in Arkansas, and that the insurance commissioner was duly served with summons in this case. Briefly stated, the facts are as follows: The plaintiff, Mrs. C. A. Hughes, is a resident of Ashley County, Arkansas, and her daughter and son-in-law are residents of Louisiana. While riding as a passenger with the daughter and son-in-law in their automobile on a trip into Texas, Mrs. Hughes was injured in a collision between the automobile in which she was riding and one driven by a resident of Texas. Fireman’s Fund had issued an insurance policy to the son-in-law in Louisiana, insuring members of his family or anyone riding in his automobile, against damages such occupant would be entitled to recover against an uninsured motorist. Mrs. Hughes filed suit against the petitioner in the Ashley County Circuit Court alleging damages in the amount of $8,000.00 for personal injuries sustained in the collision in Texas through the negligent acts of an uninsured Texas motorist and while she was riding in the automobile owned by her daughter and son-in-law, and being driven at the time by her son-in-law, Milbern Don Pennington. Mrs. Hughes then alleged in her complaint, that the petitioner, New York Fire & Marine Underwriters, Inc. had issued its family automobile liability policy to Milbern Don Pennington, Mrs. Hughes’ son-in-law, insuring “the named insured, any relative, or any other person while occupying the insured automobile with respects to damages she is entitled to recover because of bodily injury from the owner or operator of' ian uninsured automobile. ’ ’ Plaintiff then alleged that she had complied with all ,the conditions of the policy precedent to establishing liability of the defendant thereunder, that demand for payment had been made upon the defendant and that defendant had refused to even discuss payment. The petitioner sets out one point on which it relies as follows: “Lower court wholly lacks jurisdiction of subject matter and petitioner.” The petitioner properly sets out in its brief, the office of the writ of prohibition. Petitioner then argues that it is-■doing no business in the State of Arkansas, maintains no office in this State, and that the policy sued on was written in the State of Louisiana with a Louisiana resident as the named insured. Petitioner contends that the plaintiff brought suit in Arkansas on an insurance contract written in Louisiana, when the cause of action actually arose in the State of Texas, and that the trial court is: without jurisdiction under § 11, article' 12 of the Arkansas constitution quoted by petitioner as follows: “Foreign corporations may be authorized to do business in this State under such limitations and restrictions as may be prescribed by law; provided that no such corporation shall do any business in this state except while it maintains therein one or more known places of business and authorized agent or agents in the same, upon whom process may be served; and, as to contracts made or business done in this State, they shall be subjected to the same regulations, limitations, and liabilities as like corporations of this State.” Petitioner cites several cases in support of its petition. but none of them involve an uninsured, motorist clause in an automobile liability policy where service is had on the insurance companies’ designated agent for ’service in Arkansas. Whatever rights and benefits Mrs. Hughes may have under the terms of the policy are matters for determination by the trial court. In a transitory action such as this, Mrs. Hughes being a resident of Arkansas could sue the petitioner in this State, so we hold that the court had jurisdiction of the subject matter in this case. Equitable Life Assurance Society v. Mann, 189 Ark. 751, 75 S. W. 2d, 232. Petitioner argues that even though it is authorised to do business in Arkansas, it is not actually doing business in Arkansas and therefore, the trial court has no jurisdiction of the petitioner. In the early case of American Casualty Company v. Lea, 56 Ark. 539, 20 S. W. 416, this court said: “The only question now here is, whether the circuit court obtained jurisdiction of the corporation by the service of the summons upon the auditor as its agent" If so, it can render a personal judgment against the corporation, if the pleadings and proof in the case warrant it. The service was in accordance with the statutes.” Petitioner admits that the insurance commissioner was its duly designated agent for service in Arkansas, and we hold that when the petitioner became authorized to do business in Arkansas and designated the insurance commissioner its agent for service, it made itself subject to the jurisdiction of the Arkansas courts, and the Ashley County Circuit Court had jurisdiction of petitioner in this case. The petition for a writ of prohibition is hereby denied.	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Osro Cobb, Justice. The parties were divorced in September, 1963. Prior to the divorce they entered into a written property settlement, which included a substantial allowance for alimony and child support. Both parties asked the court to incorporate the terms of their property settlement into the decree of divorce, which was done. On July 19, 1965, appellant filed his petition seeking to amend and reduce his decreed obligations as to alimony and child support, based upon changes in his financial condition. On hearing it developed that appellant had remarried ; that his new wife earned $3,600.00 per yeai’ and that appellant’s personal gross income had been $16,-511.70 in 1963; $22,537.13 in 1964 and $23,000.00 in 1965. The trial court found that it was without jurisdiction to amend a decree as to alimony based upon a written agreement of the parties fixing the alimony as part of their property settlement contract. We quote from the findings of the court: “The Defendant’s testimony further reveals that his most valuable assets at the time of the property settlement were the retirement fund held by the Equitable Life Assurance Society, and the value of future commissions to be received from renewals of insurance policies written in Equitable Life Assurance Society and Occidental Insurance Company. The Plaintiff, in the property settlement agreement gave up any claim that she might have had to these assets in return for the provisions for her benefit contained in the property settlement agreement, including the child support and alimony payments therein provided. “* * * In this case, the Defendant does not attempt to show any change in the needs and necessities of his family and the evidence in regard to his personal income shows that it has increased in amount, rather than decreased since the date of the property settlement agreement as entered into and incorporated into the Decree of this Court.” (Emphasis supplied) Appellant conceded that the needs of the children had not changed and the only issue on review here is whether the court erred in refusing to reduce the previously decreed alimony payments to appellee of $325.00 per month. This is the dispositive question on this appeal. We have many times recognized the rule of law that, while the court is not bound by the contract of the parties in effecting a property settlement, once it enters a decree awarding support money upon the agreed property settlement, it thereafter has no power to modify the decree as to alimony. Reiter v. Reiter, 225 Ark. 157, 278 S. W. 2d 644 (1955); Bachus v. Bachus, 216 Ark. 802, 227 S. W. 2d 439 (1950); McCue v. McCue, 210 Ark. 826, 197 S. W. 2d 938 (1946). The rule has always reserved to the court the right to review and modify in accordance with changing circumstances awards for support of children, increasing or reducing same as warranted. Lively v. Lively, 222 Ark. 501, 261 S. W. 2d 409 (1953). Of course, where payment of part or all of the alimony becomes an impossibility through no fault of the party obligated to pay, the court will not invoke contempt proceedings against the party for such default; this rule, however, being without prejudice to the rights of the party due arrearage in alimony to a remedy at law to collect the balance due under the contract, (Property Settlement Agreement). Pryor v. Pryor, 88 Ark. 302, 114 S. W. 700 (1908). We do not recede from the rule announced in the cases cited. Eefusal of the trial court to entertain modification of the contract of the parties as to alimony was proper. The decree of the Chancellor is therefore affirmed. Affirmed.	[ -48, 106, -47, 108, -54, 32, -86, -83, 122, 43, 39, 87, -17, -5, 80, 121, 66, 107, 64, 106, -43, -78, 86, 96, -37, -13, -47, -36, -75, 93, -4, 87, 76, 32, -126, -43, 98, -54, -63, 84, 78, -114, -117, 108, -40, 70, 52, 99, 81, 25, 49, -114, -93, -84, 53, -34, 108, 44, 93, -71, -48, -24, -102, 12, 123, 11, -111, 53, -74, 100, 88, 30, -100, 25, 8, -31, 51, 38, -122, 116, 120, -69, 9, 96, 98, 17, 101, 125, -8, -120, -113, -2, -115, -91, 86, 88, 2, 2, -66, 28, 117, 68, -89, -10, 124, 13, 77, 100, 2, -82, -42, -5, -115, 122, -120, -117, -17, -61, 48, 113, -53, -30, 93, 70, 91, -109, -121, -126 ]
Paul Ward, Justice. This is an appeal from a decree changing the custody of a young child from the father to the mother. A summary of the material facts and circumstances leading to this appeal is set forth below. Background Facts. The parties were married in July 1959. Some three years later a daughter, Lesa Loeta, was born to the union. It appears from the record that the parties were under twenty years of age when they married. When Lesa Loeta was about two years old the parties separated, and were divorced on April 24, 1964. In accord with a written agreement, entered into on April 10,1964 by the parties (approved by the court), the custody of Lesa Loeta was awarded to appellant— the father. Petition for change of custody. On March 29, 1965 appellee (the mother) filed a petition asking the chancery court to award to her the custody of the child. In support of the petition it was alleged that at the time of the divorce decree she had “no employment or income,” but that since that time she has completed a course in cosmetology and is licensed as a beautician from the State of Arkansas and from the State of Missouri; that she is steadily and gainfully employed, operating a beauty shop. In reply to the above petition appellant alleged; (a) there had been no change in circumstances since the divorce decree, and; (b) it would be to the “best interest of the minor child for the custody order to remain as it is......'' For a reversal, appellant urges only two specific grounds: One, ‘ ‘ there has been no change in circumstances,” and; Two, “the change of custody was not for the best interest of the child.” After a careful study of the record and our applicable decisions we are unable to agree with appellant on either ground, and therefore conclude the trial court must be affirmed. One. The undisputed testimony shows that there has been a material change in circumstances since the original decree. At that time appellee was not able to support the child and had no place to keep her. At this time appellee has completed a course in cosmetology and is now a licensed beautician in Arkansas and Missouri. Now she is steadily and gainfully employed, conducting her own shop in Williamsville, Ark. She has a place for her daughter to live with her. The case of Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673 presents a situation similar to the one here presented. There, the court awarded part time custody of two girls (ages 6 & 8) to the father, but refused later to award custody to the mother who had employment and a home in which to keep the children. On appeal this Court reversed the trial court and gave custody to the mother. In doing so it was stated: “We think, however, that the testimony does show such conditions as warrant a change of custody.” In the case before us the trial court found there was such a change in conditions as to support a change in custody, and we are unwilling to say any such finding was contrary to the weight of evidence. Two. Likewise, we think the trial court must be sustained in finding the change of custody was in the best interest of Lesa Loeta. We have many times followed the well established rule, in cases of this nature, that the chancellor must keep in view primarily the welfare of the child. Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817. We have also many times recognized that this rule operates favorably to the mother as the custodian where the child is of tender years. See: Beene v. Beene, 64 Ark. 518, 43 S. W. 968; Wann v. Wann, 85 Ark. 471, 108 S. W. 1052; Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1, and; Taylor v. Taylor, 163 Ark. 229, 259 S. W. 395. In the Beene case we said: .. bnt the younger of the boys, not yet five years old, it seems to us, is in special need of a mother’s control — that care and control which a father is ill suited by nature to exercise.” In the Wann case it was stated: “They have only one child, a little girl, named Virgie May. She is about six years old, of that age when she needs the care of a mother.” In the Meffert case there appears this statement: “Considering her tender age [8] and the fact that she needs a mother’s care, we do not think the chancellor erred in awarding her custody to the mother.” In the Taylor case there is the following statement: “The child’s age [girl 5] is such that a mother’s care is very necessary, and we think the custody should be awarded to the mother.” The rule set forth above has been many times reaffirmed in more recent cases. Finding no reversible error the decree appealed from is accordingly affirmed. Affirmed.	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Conley Byrd, Justice. This collateral attack on an order removing the disabilities of a minor was initiated in the trial court by appellant Doris May as next friend of her son, Wayne May, aga'nst the appellee, Spivey Chevrolet Company. Appellant elected to stand on her complaint and prosecutes this appeal from an order sustaining appellee’s demurrer. No brief has been filed by appellee. Early in 1966, appellant had obtained an order from Saline Chancery Court removing her son’s disabilities. Later, appellant filed this action against appellee seeking to have the order removing disabilities modified, for cancellation of a note and contract and for other relief. Appellee demurred to the complaint and amendment to the complaint, which were properly sustained. Since enactment in 1869 of the procedure for removal of disabilities of minors, this court has consistently held that a decree valid on its face removing disabilities of a minor may not be attacked collaterally. Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052; Young v. Hiner, 72 Ark. 299, 79 S. W. 1062; Gilmore v. Union Sawmill Co., 178 Ark. 297, 10 S. W. 2d 517. Discussing these cases in Wilson v. Magnolia Petroleum Co., 181 Ark. 391, 26 S. W. 2d 92, Justice Hart observed, “No doubt numerous rights have grown up under these decisions, and the holding of the court has become a rule of property.” Our present statute, Ark. Stat. Ann. § 34-2001 (Repl. 1962), with the added provision that judges may act in vacation, is a re-enactment of the 1869 law. Obviously, since the minor is not a party to this action, and the decree removing the disabilities of the minor may not be collaterally attacked, the demurrer was properly sustained for defect of parties. Affirmed.	[ -16, -20, -44, 12, 11, 97, 112, 22, 66, -93, 37, 83, -21, -62, -59, 121, -25, 11, 113, 120, -59, -77, 119, 66, 114, -45, -47, 85, -80, 111, -26, 55, 72, 48, 74, 85, 70, -64, -59, 20, -58, 11, 8, 109, 113, -50, 48, 42, 30, 71, 81, 63, -30, 46, 24, 75, 40, 44, -51, 33, -47, 50, -118, 5, 95, 0, 49, 4, -72, 7, 112, 26, -128, 56, 25, -20, 50, -89, -126, 116, 107, -101, 8, 114, 98, -78, -95, -9, -100, -88, 62, -1, 29, -92, -37, 113, 11, 1, -65, -103, 120, 17, -121, -2, 106, 13, 22, 108, 11, -113, 22, -95, 47, -112, -98, 3, -21, -79, 36, 117, -44, -14, 93, 83, 19, -111, -58, -104 ]
Guy Amsler, Justice. Mrs. Hazel Cook Townsend owned some 3,500 acres of land in Chicot County, Arkansas, located on what is known as Stewart’s Island. On April 6, 1962, she conveyed some 2,000 acres of her holdings to M. Pickett Myers and J. E. Stevenson Jr., appellant in this cause, for a consideration of $185,000.00 plus the assumption of a $91,000.00 mortgage debt. Among other reservations and exceptions contained in Mrs. Townsend’s conveyance to Myers and Stevenson was the following: “It is further understood that Grantor will retain all present government cotton allotment, which has heretofore and now been allotted to any lands owned by her, and Grantees agree that they, their heirs and assigns, shall never make claim to any cotton allotment that may or could be alloted to the above conveyed lands, unless Grantor shall sell the remaining portion of her property; however, in no event will Grantees, their heirs or assigns, disturb any present cotton allotment now owned or held by Grantor; provided, however, if by reason of a change in the present program, Grantees can obtain a separate and additional cotton allotment, they may do so.” In 1962, Mi's. Townsend farmed all the cotton allotment for the land retained by her and the acreage conveyed. The existence of Mrs. Townsend on this earth was terminated on December 8, 1962. J. W. Loyd was appointed executor and trustee of her estate. Doris M. Marques, appellee, later succeeded Mr. Loyd as trustee of the estate. Prior to the instant litigation Myers conveyed his interest in the land to appellant Stevenson. In June of 1962, Stevenson, in an effort to obtain assistance for providing the land purchased from Mrs. Townsend with effective drainage and obtain a wheat allotment, filed a copy of his deed with the Chicot County Agricultural, Stabilization and Conservation Service. Then in January of 1963, appellant made application to the County A.S.C.S. for a marketing quota on the 2,000 acres owned by him. The committee then reconstituted the Townsend farm and found that Mrs. Townsend was entitled to 280.2 acres of cotton allotment and Stevenson 73.9 acres. On appeal to the State Review committee this was reversed on July 15, 1963, and Stevenson’s allotment was increased considerably while Mrs. Townsend’s was reduced. From the middle of 1963 until December of 1965, appellee and her predecessor (Loyd) trustee, prosecuted numerous complaints before the State Committee and the Federal Courts but were unable to get the desired construction of the cotton allotment “retainer” clause contained in the Townsend conveyance. On August 19, 1963, J. "W. Loyd, executor, filed this cause against the grantees, their Avives and the Prudential Insurance Company of America. Prudential was joined because it had made a substantial loan to the grantees of Mrs. ToAvnsend. The complaint alleged, inter alia, that grantees had breached the “retainer” clause in the conveyance because they: “kneAV at the time of the filing of this instrument with said office that this constituted a breach of this provision of their deed as under the applicable law and regulations of the Department of Agriculture, the giving of notice of this conveyance to the local representatives of the Department of Agriculture required them to immediately reconstitute and apportion the acreage allotments on said farm. “Said Defendants further continued their breach of said provision by filing with the above local office of the United States Department of Agriculture on January 17, 1963, a petition for reconstitution of said farm, the purpose of which was to acquire the apportioned cotton allotment for the lands they had purchased under the deed.” It Avas also alleged that: “both parties to this transaction were informed as to the consequences of any notice to the Department ofAgriculture regarding a sale of a portion of the •farm and said Defendants’ actions-in immediately notifying the Department of Agriculture and subsequently requesting a reconstitution is in effect fraudulent as to this Plaintiff, or such inequitable conduct in the light of all other circumstances as to'justify and require a rescission of this contract of sale; that the loss of the cotton allotment to the remainder of the lands retained by Mrs. Hazel Cook Townsend is a direct result of the actions of the Defendants in notifying the Department of Agriculture of the sale and requesting reconstitution; that the value of this remaining portion of the land is greatly reduced by the loss of the cotton allotment and the value of the lands obtained by the Defendants in the sale is greatly enhanced by obtaining the cotton allotment and this is an enhancement for which they paid no consideration and which the said Mrs. Hazel Cook Townsend did not agree to sell and for which she received no consideration.” Prayer of the complaint was that deed from Mrs. Townsend to her grantees and any subsequent conveyances by them be cancelled and that title be reinvested in petitioner as Trustee of the Townsend estate. Alternate prayer was that: “in the event this Court should find that although Petitioner is entitled to a cancellation of said instrument but, such cancellation should not be decreed due to impossibility of placing the parties in status quo, that this Court determine the damages resulting to Petitioner and award Petitioner a judgment for same. . .” There were a number of interjacent pleadings, one being a motion for summary judgment (which was denied) based mainly on the contention that the reservation “grantor will retain all present government cotton allotment which has heretofore and now been allotted to' any lands owned by her” applied only to the 1962 allotment (contract of sale was entered into on the 26th day of October, 1961, and conveyance executed April 6, 1962) and not to any allotment that might be made by the A.S.O.S. in future years. Following a number of hearings and the taking of extensive proof the Chancellor declined to set the deed aside and concluded that: “1. The contract is not invalid as in violation of any statute of the State of Arkansas, or of the United States of America; 2. The contract is not invalid as being violative of the public policy of the State of Arkansas, or of the United States of America; 3. Stevenson is not guilty of fraud; 4. Stevenson has breached the terms of the contract and is answerable in damages for such breach; 5. Loyd should have judgment against Stevenson for the sum of $3,695.00, with interest thereon at the rate of 6% per annum;” Stevenson in prosecuting this appeal relies on six points for reversal. In our view a seriatim treatment of these points is unnecessary. The trial court’s conclusions were predicated on what we consider to be a “strained” construction of the meaning, intent and results of the reservation contained in the Townsend conveyance. We quote briefly from the chancellor’s voluminous findings: “Under the terms of the contract Stevenson contracted to permit Mrs. Townsend to retain and work the cotton allotment allocated to the Townsend plantation by the Department until such time as the re maining acreage of the plantation was sold. This agreement provided that she was to retain and work the cotton allotment to be allocated to the land in issue when the Townsend plantation was reconstituted and the cotton allotment “split-out” by the Department. The agreement to carry out the intent of the parties provided that Stevenson was to make available to Mrs. Townsend a sufficient amount of land on the land in issue to support the allotment. Stevenson has failed and refused to allow Loyd to work said cotton allotment and/or make available sufficient land to support the allotment, thus Stevenson has breached the contract. Stevenson worked 73.9 acres of the cotton allotment in the year of 1963. The rental value of cotton allotments in Chicot County, Arkansas, for the year of 1963 was $50.00 per acre. Loyd should have judgment against Stevenson for $3,695.00.” There are a number of valid reasons why the meticulous chancellor’s construction of the reservation cannot be sustained. There was no obligation whatever placed on grantees (appellant) by the retainer except not to make claim to any cotton allotment that they might be entitled to until Mrs. Townsend sold her remaining lands and not to disturb any “present” cotton allotment held by their grantor. Certainly it cannot be logically declared that this language bound grantees, their heirs and successors in title to guarantee grantor, her heirs and legal representatives a fixed cotton allotment (contrary to law) in perpetuity, on the lands retained by Mrs. Townsend. This contract was prepared by Mrs. Townsend’s legal representative (not the attorney for appellee), and under our rule, if doubt exists regarding phraseology, it is to be construed most srrongly against her. Foster v. Universal C.I.T. Corp., 231 Ark. 230, 330 S. W. 2d 288; Keith v. City of Cave Springs, 233 Ark. 363, 344 S. W. 2d 591. Cotton allotments are made on an annual basis. At tbe time of tbe conveyance by Mrs. Townsend her cotton allotment for the crop year 1962 had already been fixed. In other words there was ‘1 a present government cotton allotment” m esse. Mrs. Townsend farmed her full quota in 1962. Black’s Law Dictionary defines “present” as meaning “now existing; at hand; relating to the present time; considered with reference to the present time.” Webster’s International Dictionary (3rd ed., 1961) sets out that “present” means “in being at this time; not past or future.” The appellate court of Missouri dealt with this question in 1959 and said: “The very nature of a cotton acreage allotment is such that it has no existence except for the one specific year. It expires with the crop year. It is not continuous. The fact there may (or may not) be another allotment fixed for the next year carries no certainty that a successive allotment will be in the same amount or acreage.” Duncan v. Black, 324 S. W. 2d 483 (Mo. 1959). It is our conclusion that “present government cotton allotment” as used in the “retainer” clause of the conveyance meant the 1962 cotton acreage and that since Mrs. Townsend farmed her full quota for that year appellee cannot be held liable for any subsequent reduction in the cotton allotment to lands held by her legal representative. It is significant that in drawing the sales contract and conveyance Mrs. Townsend’s representative added “heirs and assigns” after grantees’ names but omitted including any successor parties after “Grantor.” The exact provision being “Grantor will retain all present government cotton allotment.” It could reasonably be concluded from this that the “retainer” was intended as a personal covenant, at most, which expired with the demise of Mrs. Townsend. Field v. Morris, 88 Ark. 148, 114 S. W. 206; Ft. Smith Gas Co. v. Gean, 186 Ark. 573, 55 S. W. 2d 65. Here we have a situation where all the parties or their representatives knew that “traffic” in crop allotments was forbidden by federal laws and regulations. They knew that a seller was required to report any sale to the County A.S.C.S., but when the buyer did what the seller was required to do under the law he is sued for damages alleging breach of contract and fraud. Appellee trustee is not entitled to equitable relief. The cause is therefore reversed and remanded to the trial court with directions to dismiss appellee’s complaint.	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John A. Fogleman, Justice. Appellants were convicted of the crime of grand larceny of three hogs belonging to Billy Gene Owens in the Circuit Court of Marion County on the 16th day of April, 1966, and sentenced to one year in the penitentiary, with a recommendation that the sentence be suspended upon restitution in the amount of $500.00 and payment of court costs. Appellants .assert twelve points for reversal, some of which are interrelated. We find one of these points to justify a reversal. This is because of instructions given by the circuit judge relating to recommendations of clemency and suspension of sentence in response to inquiries by the jury. The case was closed and the jury instructed. After deliberation for a time, the jury returned to the courtroom and asked: “If we give these hoys a prison sentence, can we suspend the sentence — a suspended sentence?”. After advising the jury that it had the right to recommend a suspended sentence if they wished to do so, the trial judge said: “I would have to tell you that under the law the Court is not bound exclusively or conclusively by the recommendations but I will tell you that I would certainly give grave consideration to any recommendation of the jury.” The foreman of the jury then inquired whether compensation to the boy for his hogs entered into this. After advising the jury that there was no way the jury or the court could require this, the judge added: “I might explain to you, however, that that could be made a condition of the recommendation for leniency. In other words, the recommendation could provide for restitution as a condition of your recommendation, if you wish to make it so.” The foreman then asked: “What about the Court costs ? ”, to which the court replied that the law provided that defendants should be responsible for the court costs if they are financially able to pay, in case of conviction. He further advised that in order to avoid any misunderstanding, in case of a conviction and suspension of sentence, if there was a sentence, one of the conditions the court would have to make would be payment of court costs. • The jury then retired, after which defendants’ at torney objected to the remarks of the trial judge that the court would give grave consideration to the recom mendations of the jury, contending that, in effect, the statements indicated that the court might suspend the sentence and that this might cause the jury to convict when they might otherwise not do so, but no objection was made to any other remarks. Later the jury again returned to the courtroom and inquired about the acceptability of a form of verdict finding appellants guilty of grand larceny but fixing “0 years” punishment, with an appendage after the foreman’s signature adding “$500.00 for payment of hogs to Billy Gene Owens plus Court costs.” The trial judge properly advised that this would not be compliance with the law for the reason that the minimum penalty was one- year, but added: “Of course, you can consider this answer in connection with the answer the Court gave you a while ago to the other inquiry, you can consider these two answers together.” After the court properly refused to permit appellants’ attorney to make an offer to the court in the presence of the jury, objection was made to the remarks of the trial judge as an invitation to the jury to convict the appellants and make a recommendation of a suspended sentence. After a motion for a mistrial on other grounds; the trial judge again advised the jury: “The jury is the sole judge of the facts in this case and it is in your hands to determine the guilt or innocence of these defendants, and to make any recommendations which you see fit to make.” Thereafter the trial judge told the jury that he was not bound by the recommendations, but when advised by the foreman that this was holding up the jury, replied: “Yes, the only thing I know is the jury is not willing to trust the Court.” The appellants, after first moving for a mistrial, then objected to the trial judge’s remarks and moved for a mistrial. Later the jury returned its verdict resulting in the judgment from which this appeal is taken. This court has always zealously guarded against the possibility that any remark of the trial judge might influence a jury’s verdict. The statement of a trial judge relating to the transfer of a minor convicted of feloni ous homicide to the reform school was held improper, even though the trial judge advised the jury that this should not influence the jury one way or the other in determining guilt or innocence. Pittman v. State, 84 Ark. 292, 105 S. W. 874. A similar instruction about the committing of women to a state farm for women has been held prejudicial for the reason that it might have influenced the jury in returning a verdict of guilty. Mitchell v. State, 155 Ark. 413, 244 S. W. 443; Snyder v. State, 155 Ark. 479, 244 S. W. 746. While convictions have been sustained by this court where trial judges have given similar instructions to the jury because no objection was made at the time the statements were made, [See Pendleton v. State, 211 Ark. 1054, 204 S. W. 2d 559; Filtingberger v. State, 216 Ark. 754, 227 S. W. 2d 443; Andrews v. State, 225 Ark. 353 282 S. W. 2d 592] this court has* held that no statement should be made by the court that might tend to lead the jury to believe a suspended sentence would be granted if requested. In the Andrews case this court held that statements to the jury that the trial judge believed he had thus far followed jury recommendations of clemency and that he would be glad, if they so desired, to receive such a recommendation were objectionable. Statements made by the trial judge in the present case would seem to tend even more to indicate that he would suspend a sentence based on restitution and payment of court costs if recommended. A very similar statement by a trial judge, after instructing the jury at some length upon the right of the court to suspend the sentence in case of a verdict of guilty, that “you may safely trust to the court the right performance of whatever duty and responsibility is imposed by the legislature upon that officer, and you will make no mistake in such assumption,” was held in Bryant v. State, 205 Ind. 372, 186 N. E. 322, to seem to be designed to lure or wheedle the jury past the obstacle'of and to disarm the jurors of any doubts or hesitancy occasioned by the severity of the penalty in volved. We are aware of and accept the statement of the trial judge that his remark about the lack of trust in the court by the jury was a facetious one and made as the jurors started to file out of the room. On the other hand, we must recognize that facetious remarks by the judge presiding over the trial are not always so taken by hearers and where the liberty of accused persons is at stake the making of such remarks is to be discouraged. Facetious or not, the words of the trial judge in the background of previous statements on the subject were prejudicial to the defendants, even if heard by only part of the jurors. Objection was also made by appellants to the trial judge’s permitting the sheriff to select two jurors of his choice from the special panel of 25 provided by the jury commissioners, the regular panel having been exhausted. While this probably was not reversible error because the only objection made was that the sheriff Was prejudiced because he was a prosecuting witness, and because the record does not show that defendants had exhausted their peremptory challenges when the two additional jurors were summoned or whether these jurors actually served, we deem this objection to be of sufficient importance to be considered. The mere fact that the sheriff is a witness in the case is not necessarily an indication that he is prejudiced against a defendant and does not disqualify him from serving in the absence of a showing of actual prejudice. Hudspeth v. State, 188 Ark. 323, 67 S. W. 2d 191; Huen v. State, 196 Ark. 22, 115 S. W. 2d 860; Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374. No such showing was made. Where it is not shown that appellants had exhausted their peremptory challenges and were thereby compelled to accept any juror who was not qualified and impartial, they are not in a position to complain of the method that was used. Rogers v. State, 133 Ark. 85, 201 S. W. 845; Brock v. State, 237 Ark. 73, 371 S. W. 2d 539. Nevertheless, in the Brock case this court expressed its disapproval of a procedure whereby persons to be served from such a special panel were selected by the trial judge without regard to numerical order and for reasons known only to the judge himself. We hold that the language of Ark. Stat. Ann. § 39-220 (Repl. 1962) providing that “said list to be drawn in lieu of summoning bystanders” can only be construed to require that the names of those to be served be drawn by lot, as in the case of a drawn jury. In view of the above, many of the points relied on by appellants become moot; others we deem worthy of some mention, though not well taken. Appellants sought to avoid the effect of decisions in Bailey v. State, 215 Ark. 53, 219 S. W. 2d 424 and Black v. State, 215 Ark. 618, 222 S. W. 2d 816 (Cert. denied 338 U. S. 956, 94 L. Ed. 590, 70 Sup. Ct. 490) that failure of jury commissioners to include women on the lists of those to be summoned for jury duty is consistent with the public policy of our state and not violative of the “due process” or “equal protection” clauses of the Fourteenth Amendment to the Constitution of the United States. It is the holding in these cases that one who contends that his rights under this amendment are violated must show something more. This appellants did not attempt to do and it is difficult for us to perceive how they could. They contend that the rule announced was inapplicable because in the trial of grand larceny cases women jurors would not likely be subjected to foul language, consideration of indecent conduct, the use of filthy or loathsome words, references to intimate sex relationships and the like. They overlook the fact that jury lists are selected well in advance of court sessions without regard to the types of cases which might be heard at the time of service. Other reasons for the policy of our state in this regard would include the fact that in some trials the jurors are kept together, and that facilities for jurors of both sexes under such circumstances would in most of our counties be unavailable. Likewise we find no merit in the contention that error was committed by the court in admitting certain testimony regarding admissions made by three of the appellants to State Police Investigator Rife and Sheriff Hickey on the basis that appellants were not advised that if they lacked money to hire a lawyer, the court would appoint one for them. Apparently they seek to come within the rule announced in Miranda v. State of Arizona, 384 U. S. 436, 16 L. Ed. 2d 694, 86 Sup. Ct. 1902, overlooking the fact that the Supreme Court of the United States has held that this decision was not applicable to cases in which trial, began before the date of the decision, June 13, 1966. Johnson v. New Jersey, 384 U. S. 719, 16 L. Ed. 882, 86 Sup. Ct. 1772. Nor were these appellants deprived of any constitutional rights under the standards set out in Escobedo v. Illinois, 378 U. S. 478, 12 L. Ed. 977, 84 Sup. Ct. 1758. Unlike Escobedo, these appellants were not in custody when the statements were made and none of them requested, or was denied, the opportunity to consult with a lawyer. On the contrary, the officers testified that each was advised of this and other constitutional rights. Testimony was heard in the absence of the jury and the court found that the statements were admissible. The objection of appellants, based on the failure of the judge to examine Sheriff Hickey, one of the officers present, on this point before Sergeant Rife, the other officer testifying, was not well taken because they did not seek to interrogate Sheriff Hickey until after the trial judge had heard the testimony presented by both sides and announced his ruling. We do not deem it necessary that the trial judge hear the testimony of every person present at the time a statement is made in order to determine admissibility of that statement. Nor do we deem it necessary that every witness who may testify about the making of statements by accused persons be examined by the court in the absence of the jury before testifying, once the voluntariness of the statement has been determined. Nor were they in the position of the appellant in Smith v. State, 240 Ark. 726, 401 S. W. 2d 749, who, after being advised of' his rights, was held in jail over five months following preliminary hearing when he was told that he was in bad trouble, that he would have to come up with the pistol (apparently a murder weapon) and that he was a prime suspect. Yet no steps having been taken to provide him with counsel, he made admissions of guilt this court held inadmissible. The testimony of Sergeant Rife about the circumstances surrounding the making of the statements was substantial evidence to support the trial court’s finding that the statements were voluntary (See Mullins v. State, 20 Ark. 608, 401 S. W. 2d 9.) and that there was an intelligent waiver of the right to counsel as was the case in Cox v. State, 240 Ark. 911, 405 S. W. 2d 937. Appellants also objected to examination of Sergeant Rife and Sheriff Hickey by the trial judge in the presence of the jury as to possible threats or promises made to these three defendants. They fail to show how they were prejudiced by this action and, no objection having been made to the examination of Sheriff Hickey, review by this court is precluded. Adams v. State, 235 Ark. 1057, 160 S. W. 2d 42; Fields v. State, 203 Ark. 986, 363 S. W. 2d 905; Graves & Parham v. State, 236 Ark. 936, 370 S. W. 2d 806; Crabtree v. State, 238 Ark. 358, 381 S. W. 2d 729. Nor do we see how the examination of Sergeant Rife by the court resulted in any prejudice. The questions as to lack of promises or threats objected to were no more leading than those approved by this court in New v. State, 99 Ark. 142, 137 S. W. 564, where the judge asked whether certain parties seemed to be angry or offended or insulted. In that case, as in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, the propriety of a trial judge’s asking questions during examination of a witness calculated to elicit the truth concerning the subject matter was recognized. Appellants also contended that the court should have directed a verdict of not guilty because: (1) The incriminating statements of appellants were obtained upon the understanding that the officers were only interested in securing the return of the meat of the hogs and in bringing about a settlement of a dispute between appellants and the owner of the hogs, (2) as to Burris because of there being no incriminating statement by him in evidence and no evidence other than the taking of the hogs and the return of some meat by him, and (3) because of improper questions asked by the prosecuting attorney. We do not find evidence in the record to sustain the first of these grounds. All the testimony admitted about a “settlement” related to approaches or effort by appellants, their families, or their attorneys. Only one of appellants testified that the officers said they did not want to embarrass him or his family, they just wanted to get the meat back. This falls far short of showing that the incriminating statements of the three appellants should be excluded or a verdict directed. As to Burris, the determination of the sufficiency of the evidence at the conclusion of the state’s testimony is rendered unnecessary for he introducede vidence and testified himself, thus waiving that motion for a directed verdict. Reeves v. State, 222 Ark. 77, 257 S. W. 2d 278. His own testimony shows that he was present and participating in the shooting of the three hogs; that after leaving, the appellants decided to come back to get the hogs if they had not been claimed by anyone; that he helped cut up, load and divide the meat at a time late enough in the evening that lights were required; that he first denied to the officers having any knowledge of the meat; that he and some of the other boys tried to make a settlement with the owner of the hogs, and that he returned some of the meat to Sheriff Hickey. Only one of the allegedly improper questions of the prosecuting attorney was objected to and that objection was sustained. We find his contention without merit. It would unduly extend this already lengthy opinion to discuss other points raised by appellants. It is sufficient to say that all have been examined and found to be without merit or rendered immaterial by this decision. Reversed and remanded for a new trial.	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Guy Amsler, Justice. This unfortunate controversy involves a property line dispute between a brother and sister. It is the type litigation that members of our Christian society should zealously discourage. As best we can determine from the record the area in dispute is some 30 to 35 feet in width and 210 feet in length. Appellant Lawrence Sharum is a son of U. G. Sharum and appellee Madalene Terbieten (nee Madalene Sharum) is appellant’s sister. In 1940 the father of these litigants owned considerable real property adjacent to the intersection of Massard Road and Highway 22 in the Greenwood District of Sebastian County. On May 13,1940, Father Sharum and his wife conveyed, as a gift, to his son Lawrence a plot of land described as follows: “Beginning at the center line of State Highway 22 where the East Boundary line of said Massard Road crosses Highway 22 and running thence south along the East Boundary line of said Massard Road 210 feet, thence east 210 feet, thence north to center line of Highway 22, thence west along center line of Highway 22 to place of beginning, containing approximately one acre, and being a part of the NW quarter of the SE quarter of Sec. 30, T8N, R31W.” On the same date the parents conveyed that part of the NW% SE14 of Sec. 30, South of Highway 22 as a gift to their daughter Madalene “except approximately one acre in the NW corner of said tract deeded to Lawrence Sharum, containing 28 acres more or less.” The grantors retained a life estate in this tract. U. G. Sharum died in March of 1949 and his widow passed away in August of 1955. Appellee then took possession of her property. Thereafter according to some of the testimony there were efforts on the part of appellee’s husband, Leo Terbieten, and appellant Laivrence Sharum to determine the exact location of the line between the property of appellant and appellee. If Mrs. Terbieten had any part in these endeavors the record fails to reveal it. The contention of appellant is that it was intended that he should have a full acre exclusive of Highway 22 right of way. Appellee on the other hand contends that appellant is entitled to take according to the plain wording of his deed. Appellant filed suit praying a reformation of the deeds executed to him and his sister by their parents and title to 1 acre exclusive of Highway 22 right of way be quieted in him. The trial judge very properly held that “one dollar and love and affection” conveyances are not subject to reformation under our decisions: Wells v. Smith, 198 Ark. 476, 129 S. W. 2d 251; Kaylor v. Lewis, 212 Ark. 785, 208 S. W. 2d 185; Ketchum v. Cook, 220 Ark. 320, 247 S. W. 2d 1002; and Lathrop v. Sandlin, 223 Ark. 774, 268 S. W. 2d 606. The cause was dismissed for want of equity and this appeal was perfected in due course. ■Counsel for appellant concedes that he was not entitled to reformation of the deeds but contends that the chancellor erred in not passing on the question of adverse possession and granting appellant title to a full acre outside the right of way of Highway 22 under the 7 years statute. It is true that the trial judge did not mention “adverse possession” in his findings or decree, however under our well established rule we try chancery eases on the record and dispose, of them. Whether the chancellor makes a finding or bases his decision on an erroneous conclusion does not preclude our reviewing the case “de novo.” Culberhouse v. Hawthorne, 107 Ark. 462, 156 S. W. 421; Langley v. Reames, 210 Ark. 624, 197 S. W. 2d 291. Adverse possession is a fact question and our holding requires a brief review of the evidence. Appellant says he took possession of one acre, exclusive of the Highway 22 right of way following the gift from his father; that he leased an acre for a billboard; executed a pipe line lease to the gas company; paid taxes on an acre (this was described as pt. 30-18-31); set up some corner posts and cut the sprouts and weeds from what he claimed as his one acre. The descriptions nsed in the 2 leases executed by appellant were identical with the one contained in the deed from his father; the billboard was erected on land entirely within the-description contained in his deed; he made no effort during his father’s lifetime to get a correction deed and he never fenced the acre he now contends belongs to him. A strong indication of the uncertainty in appellant’s mind regarding’ the correct boundary is the fact that in May of 1965 he employed a surveyor to establish the line. If he had through the years been claiming* up to a certain line he didn’t need an engineer to locate that boundary. Of more than passing significance is the fact that the engineer employed by appellant first made a survey that conformed with the description contained in appellant’s deed from his father. Appellant was dissatisfied with that survey and had the surveyor tear it up and prepare one based on points and boundaries supplied by appellant. The surveyor testified that his survey did not conform with the description contained in the Lawrence Sharum deed. The wife and son of appellant corroborated his testimony regarding what he claimed to be hostile acts of adverse possession in practically every detail. Leo Terbieten, husband of appellee, who seems to have kept track of happenings connected with the boundary dispute testified that before Mr. U. Gr. Sharum (the father of litigants) died he (the father) laid off the acre that was deeded to Lawrence Sharum and “told me to stay off of it, and I did. ’ ’ Appellants claim that appellee’s husband constructed a line fence in 1952 and thereby fixed a boundary between the parties. The husband explains this by saying that he undertook to place the fence on the line pointed out to him by Mr. U. Gr. Sharum, (which line was confirmed by a survey made by H. A. Peck, a civil engineer) and that tbe men be bad doing tbe work were stopped by Lawrence Sbarum. He says be then bad a temporary fence constructed further to tbe south and left about 3 acres open on Lawrence Sharum’s side of tbe fence. Terbieten testified “I just built a temporary fence so we could use it and cut the hay — it is going to be there until I find out where to put a permanent fence.” He said they continued to cut bay on tbe north side (Lawrence Sharum’s side) of tbe fence several years after tbe fence was built. Worthy of note is tbe fact that appellant does not claim title to all tbe land up to this fence nor does be contend that the fence marks tbe boundary line between tbe parties. Tbe implication appears to be that tbe construction of this temporary fence was some sort of an admission adverse to appellee’s contention. We accept tbe happening as a temporary measure designed for use until a troublesome problem could be resolved. Appellant claims that sometime after bis father’s death in 1949 be erected posts at tbe corners of tbe one acre be claims. However, if these posts were erected (which is disputed) there is no evidence that bis sister or anyone else bad knowledge that appellant claimed them as marking tbe line between tbe adjoining ownerships. Regarding this boundary dispute appellant testified “I have never bad any words with him” (referring to bis brother-in-law) and as to his sister be said “I have bad no words with my sister at no time.” In Lollar v. Appleby, 213 Ark. 424, 210 S. W. 2d 900, we said: “While, in such cases, to constitute an adverse possession, there need not be a fence or building, yet there must be such visible and notorious acts of ownership exercised over tbe premises continuously, for tbe time limited by tbe statute, that tbe owner of tbe paper title would have knowledge of tbe fact, or that his knowledge may be presumed as a fact. * * *” Considering the testimony as a whole we are unwilling to say that the chancellor’s ruling on the case is not supported by a preponderance of the evidence. The decree is therefore in all respects affirmed. Bland, J., disqualified.	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John A. Fogleman, Justice. Appellees, Lee R. and Virgie Reeves, husband and wife, recovered judgments of $6,500.00 and $12,000.00 respectively against Walter A. Freeman and Cobb Funeral Home, Inc., on February 1, 1966 for injuries and damages sustained as a result of a collision between a Blytheville city fire truck and an ambulance driven by Freeman for the owner, Cobb Funeral Home, Inc. The collision took place on January 18, 1963 at the intersection of Kentucky and Second Streets in Blytheville. Appellees were occupants of a station wag-on which had stopped on Second Street just north of the intersection at a stop sign shortly before the two vehicles collided in the intersection, after which the fire truck struck the front of the station wagon and overturned on top of it. Appellees brought their suit against appellants, Freeman and Cobb Funeral Home, Inc., alleging negligence on the part of Freeman in the operation of the ambulance as the proximate cause of their personal injuries and damages. Appellants filed their answer denying any fault or liability and, with permission of the court, a third party complaint against Billy Bratton, the driver of the fire truck, alleging- that the injuries and damages of appellees resulted from negligence on the part of Bratton, bnt seeking judgment over against Bratton if judgment should be recovered by appellees against appellants. After hearing all the evidence and the instructions of the court, the jury, in answer to interrogatories propounded by the trial judge, found that Freeman was guilty of negligence which was a proximate cause of the occurrence but that Bratton was not. Appeal was taken by appellants from the judgment based on that verdict. Both appellants and the fire truck driver sought to excuse their actions by claiming a status as emergency vehicle drivers and resulting exemption from certain traffic laws and ordinances. The principal ground for reversal urged by appellants is based upon the failure of the trial judge to instruct the jury that the ambulance was an emergency vehicle at the time and place of this occurrence, rather than submitting the question to the jury as a question of fact. This contention was based largely on the testimony of George Ford, a police officer for nine years and assistant chief of police at the time of the incident. He testified that, at that time, the police department had a policy of alternating calls for ambulances between two local funeral homes, calling one the first fifteen days of a month, and the other the last fifteen days. These calls were made whenever the police department received a call for an ambulance or when an officer working a wreck said he needed an ambulance. When asked how he classified ambulances, this witness said: “As emergency vehicles”. In September, 1965, he (then chief of police) designated all the ambulances as emergency vehicles in writing. The witness had done all administrative work for the department from 1955 up to the time of this collision. His search of the ordinances failed to reveal any designation of ambulances as emergency vehicles. C. W. Short, who served for perhaps ten years, was his predecessor as chief of police. Prior to the written designation, the police treated ambulances owned by these funeral homes as emergency vehicles if they had a patient and were making an emergency run, but they had no policy and didn’t know anything was required. James Stovall, an employee of Cobb Funeral Home and a witness called by appellants, stated that the City of Blytheville furnished no ambulance service and that the funeral homes answered ambulance calls from the police department without question and without asking who is going to pay the bill. He testified that the ambulance was operated as a public service for which they collected if they could. Both Freeman and G-erald Thomas Moody, the attendant accompanying him, testified that the call being answered came from a nursing home where they picked up a patient who was having a hard time breathing and required the administration of oxygen by the attendant. On the other hand, it was shown that the patient, after being involved in this wreck, was discharged from the hospital on February 26th. The driver and attendant testified that the siren and red light on the ambulance were turned on. The Arkansas Statute defining authorized emergency vehicles is § 75-402 (d) (Repl. 1957) which reads: “Authorized Emergency Vehicle. Vehicles of the fire department (Fire Patrol), police vehicles and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorized by the (commissioner) or the (chief of police of an incorporated city).” Our statutes permit an authorized emergency vehicle* to be equipped with a siren, whistle or bell of an approved type and require its use when the vehicle is being operated on an emergency call, otherwise the use of a siren is prohibited. Ark. Stat. Ann. § 75-725 (b) (Repl. 1957). They also require drivers of authorized emergency vehicles, when responding to emergency calls, to slow down as necessary for safety upon approaching red lights or stop signals, but permit their proceeding cautiously past them. § 75-423 (b). Prima facie speed lim Rations- are not applicable to authorized emergency vehicles when responding to emergency calls and sounding an audible signal, but drivers are not relieved of the duty to drive with due regard for the safety of all persons using the streets or of the consequences of a reckless disregard of the safety of others. § 75-606. Upon the immediate approach of such a vehicle giving the proper signal, the driver of every other vehicle shall yield the right-of-way, drive to a position near the right-hand edge of the highway and stop and remain until the emergency vehicle has passed. § 75-625. Since appellants claimed the status as a defense, the burden was upon them to prove that theirs was entitled to be considered an emergency vehicle. While we think there is substantial evidence on which a jury verdict in favor of appellants might have been sustained, we do not find the evidence to be such that the trial judge committed error in submitting the question to the jury. While we do not hold that the designation or authorization of ambulances by the chief of police must necessarily be in writing, there is certainly a factual question as to whether this designation or authorization had been made by the chief of police. The mere fact that there was a police custom of calling the Cobb ambulance at certain periods and “we” treated such ambulances transporting a patient as emergency vehicles, would not constitute any presumption that these ambulances had been so “designated or authorized”, particularly when Ford, administrative officer of the police department at the time the action would have been taken, could find no evidence of such action. It is of some significance that neither Ford nor Stovall testified about any action by the chief of police. The question of constitutionality of the statute for failure to provide standards upon which the designation or authorization might be made was not raised. We are also aware of decisions such as Perrine v. Charles T. Bisch & Son, 346 Ill. App. 321, 105 N. E. 2d 543; Champagne v. Employers Liability Insurance Corporation, 112 So. 2d 118 and Chastant v. Employers Liability Insurance Corporation, 112 So. 2d 120, which appear to sustain the appellants. The statute applied in the Perrine case and the statute then in effect made all ambulances emergency vehicles. Illinois Revised Statutes, § 99 (d), Chapter 95% (1947). While we do not have the benefit of all the testimony in the Champagne and Chastant cases, it is clear that the chief of police was the witness by whom recognition of ambulances as emergency vehicles was shown. It is also clear that the court found there was no doubt, from the evidence, that the ambulance involved was a “sanctioned and recognized emergency vehicle”. We have found no statute in Louisiana providing for designation or authorization of ambulances as emergency vehicles by a chief of police until 1962, some three years after the decision in those cases, even though there were statutes giving certain exemption to ambulances and emergency vehicles. Of course, even if an ambulance is exempt from observing certain traffic regulations and has the right-of-way under appropriate circumstances, it does not follow that this is an exemption from the duty to exercise care commensurate with the circumstances for the safety of other travelers or persons. Proper instructions as to these duties of the drivers of these emergency vehicles were given. We think the evidence was sufficient to justify the submission of the question whether there was negligence on the part of appellants to the jury and to sustain the jury’s finding that there was such negligence, when viewed in the light most favorable to appellees as we must do. There was testimony to show the following: The ambulance struck the fire truck with such force that the whole truck left the ground, turned over on top of the Reeves ’ car in a sort of angling somersault, with the back end of the fire truck coming to rest on the automobile upside down. The major impact indicates that the ambulance struck the right rear of the fire truck from the center of its right rear dual wheels toward the rear. The impact was such that the right rear dual wheels were knocked completely loose, three steel tie bolts holding the springs to the axle as big as the fire truck driver’s fingers were parted, in two, and another was twisted. The frame of the fire truck was warped. The rear end of the fire truck had passed the center of the intersection and the front end was almost through the intersection when the truck somersaulted. The course taken by the ambulance from the nursing home was north on Ruddle Road, west on Tennessee, south on the street that runs along the west side of Fairview School (probably LaClede) to Kentucky and west on Kentucky to the scene of the collision. The ambulance was coming at a pretty good rate of speed, a lot faster than the speed limit. As the ambulance approached the intersection, it seemed to Reeves to pick up speed (he first saw it a half block away). There was nothing to block the vision of the intersection for traffic coming east and headed west, except a small bush with no leaves on it. The siren at the fire station can be heard for a mile around. The red light on the fire truck was blinking and the siren blowing when it turned on Second Street going north. The driver of the fire truck let up on the gas and looked both ways before he entered the intersection and did not see any vehicle approaching. He could see a good ways up the street. He did not see the ambulance until he had entered the intersection when it was at least thirty to forty yards away. He didn’t see the ambulance decrease its speed or take any evasive action. The ambulance was g’oing’ so fast the fire truck driver could not estimate its speed. It was going awful fast. This was certainly sufficient to justify the denial of a directed verdict in favor of appellees. Appellants also contend that the failure of the driver of the fire truck to stop at a stop sign at the intersection under existing conditions (contending that the intersection was blind), made him guilty of negligence as a matter of law. We think that, at besit, this was evidence of negligence, proper for determination by the jury and resolved by it against the appellants. Another contention of appellants is that the jury verdicts are excessive, without support in the evidence and indicative of passion, prejudice or partiality. Here, again, we must view the evidence in-the light most favorable to appellees. When we do so, we find no merit in these contentions. If the jury viewed the testimony most favorable to Lee Reeves, it may have based its verdict on the following evidence: That he blacked out; suffered two broken ribs and three cracked ones; severe left chest pain, difficulty in breathing, exhibiting short, rapid, painful respiration; a cut over the left eye; a bruised left knee with limitation of motion, swelling and sprain; a scratch on his lung with scarring which' could become an area of chronic bronchitis. His glasses were broken. He was in the hospital four days. He was treated with narcotics for pain, had Furacin applied to his knee and was given Gelusil for indigestion, a cough syrup and antibiotics. He was given an elastic band to hold his ribs immobile. He was unable to go back to work for a couple of weeks at the Blytheville Air Force Base where he was employed as an accounting clerk, losing $450.72. When he was able to return, he could not work a full day. He was given antibiotics again for about eight days. He saw his doctor several times after he was in the hospital and went to a chiropractor because his neck was hurting so badly and got some temporary relief. He took a good many pain pills on account of these injuries. He paid medical and hospital bills totalling $326.27. His automobile loss was $898.28. He lost five days (or $125.20) by reason of having to take his wife to Memphis to a doctor and spent his vacation half a day at a time helping her on her newspaper route. His wife was unable to get around well, to sleep well, or to do her housework. He had to do some of the housework. She was in the hospital for at least two weeks after the first stay of four days. As to Yirgie Reeves, the jury might have found: She blacked out and was hysterical when her husband regained consciousness; she was taken to the hospital in Blytheville where she remained under the care of Dr. Files for four days; when she got there she was complaining of very severe headache and pain in her right knee and was moderately upset emotionally. She had some tenderness of the back of her head and base of the skull and pain on motion of the neck. Her exposed skin revealed tiny abrasions and lacerations. There was contusion, swelling, tenderness and general disability of her right knee. She was treated with bed rest, tetanus toxoid booster, a drug to reduce contusion and swelling, narcotics for pain, antinauseants and estrogenic substances. She was discharged for further treatment at her doctor’s clinic, still having headaches. She was then unable to sleep (she continued to have trouble sleeping until the time of the trial) and couldn’t get around well. She used (and has continued to use) a heating pad and took pain pills. The headaches continued and she was found to have sinusitis for which she was treated with anticongestive products and antibiotics. She then complained of pain in her hip and diathermy treatments were started. When she again complained of headaches and pain in her right hip radiating down the back part of her leg to the knee, Dr. Files made a tentative diagnosis of a ruptured disc. She was returned to the hospital for two weeks. where she was treated with drugs to relax her muscles, bed rest, physiotherapy, pain drugs and other measures (put in pelvic traction to decompress the disc). Dr. Files sent her to Dr. DeSaussure, a neurosurgeon in Memphis, who gave her a myelogram at the Baptist Hospital where she remained for several days, after which she had bad headaches for which she was given medicine. She returned home and continued to see Dr. Files but her condition did not improve. About two months after the injury, she continued to have back and right leg pain when sitting on a hard surface and was given a tranquilizing drug and protein by injection. When the symptoms continued two weeks later, she was started on ultrasonic and diathermy treatments and later had 15 ultrasonic treatments to the low back and right sciatic nerve, along which line she was treated for several months. Dr. Files later diagnosed her condition as spondylolisthesis, or a slipping of one vertebra on another, a condition which is intermittent and may be produced by certain motions, lifting or certain positions, after which the spine may return to normal following bed rest or proper treatment. A person with that condition becomes disabled to a certain extent. She aggravated her condition by a fall on August 12, 1963, when her right leg gave way and her right knee went to the ground. She was examined by Dr. Crenshaw at Campbell’s Clinic in Memphis and made five trips to see him. He prescribed certain exercises and gave her a back brace with steel stays to wear. She was wearing this brace daily at the time of the trial and the doctor had given her two of them so she would have a change. Dr. Crenshaw said that she had a permanent partial disability of 15% to her body as a whole, attributable to this injury. She continues to suffer pain and takes from four to ten Excedrin tablets daily. During this period she went to a chiropractor because of her pain. She lost eight weeks from her work of distributing newspapers in bundles to various points for pickup by newsboys and to various stores and display racks. She was paid $33.35 per week for this. While she is doing the same work at higher pay, the newspapers have to be put in smaller bundles for her to handle and her husband has to help her a good bit. Her housework went to pot and she is still unable to do heavy housework, with which her husband and two younger children help. She can’t ride in or drive a car except for short distances. Her medical and hospital hills amounted to $533.64, some .of which may have been for other purposes. We cannot say that these findings do not give substantial support to the jury verdicts. Finally, appellants contend that there was error in the trial judge’s instruction permitting the jury to consider the use by Reeves of accumulated sick leave because of these injuries, saying he suffered no loss because his employer paid him. This court has said that an injured party should be entitled to show all the loss he may have sustained as against such a contention, even though the party may have also been compensated to some extent through Workmen’s Compensation. Swindle v. Thornton, 229 Ark. 437, 316 S. W. 2d 202. Regardless of whether the facts in this case are identical, we see no reason why an injured party should not recover as damages for lost leave (whether accumulated sick time or vacation time) for which he is paid by his employer and which he has earned through his employment, as he certainly cannot later claim this time with pay. To say that the possibility that he may never be sick again renders this speculative is not sufficient to bar recovery for such time. We think that the holding of the United States District Court in Beaty v. Buckeye Fabric Finishing Co., 179 F. Supp. 688, on this point is correct and the Arkansas authorities cited there appropriate. Affirmed. Byrd, J., dissents.	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George Bose Smith, Justice. James A. Blythe was married three times. After his death in 1965 his first wife, the appellant Lucille Blythe, asserted that she and James were never divorced. On that basis she claimed dower and allowances as his lawful widow. Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L.R.A. 1916C, 759 (1914). The probate judge rejected that claim, finding that James’s third wife, the appellee Libby Jo Fields Blythe, was his lawful widow. Under our law the presumption in favor of the validity of a marriage is so strong that one who attacks a subsequent marriage on the ground now asserted has the difficult burden of proving the negative; that is, that no divorce was in fact obtained by either party to the earlier marriage. Estes v. Merrill, 121 Ark. 361, 181 S. W. 136 (1915). The controlling issue here is the admissibility of certain documentary evidence offered by Lucille in her effort to prove that she and James were never divorced. Lucille proved by James’s brother that after James abandoned her in 1930 he lived in three states: Oregon, California, and Arkansas. At the trial Lucille offered statements executed by the circuit clerks (or similar officers) for all the counties in those states, attesting the absence of any divorce proceedings between James and Lucille Blythe. In substance each officer states that he is the custodian of the divorce records for the county and that there is no record of such a divorce proceeding between February 16,1927 (the date of James’s marriage to Lucille), and September 25,1965 (the date of James’s death). In the probate court those statements were held to be inadmissible. In the absence of statute a party cannot prove by a public officer’s certificate that a certain public record does not exist, because such a statement is testimony that should be subject to cross examination. Pekin Cooperage Co. v. State, 197 Ark. 341, 122 S. W. 2d 468 (1938). The appellant contends, however, that the rule has been changed by the Uniform Interstate and International Procedure Act. Ark. Stat. Ann., Title 27, Ch. 25 (Supp. 1965). We agree that the statute changed the common law rule, but we are of the opinion that the statements offered in the court below did not meet the requirements of the Uniform Act. Specifically, we think that each statement should have been accompanied by a certificate executed by a second designated officer, certifying that the first officer was the custodian of the county divorce records. This, as we construe the Act, is the effect of Paragraphs A and D of § 27-2505, which we quote in part: “A. Domestic record. An official record kept within .. . any state, ... or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof, or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certifcate that the officer has the custody. The certificate may be made by a judge of a court of record having jurisdiction in the governmental unit in which the record is kept, authenticated by the seal of the court, or by any public officer having a seal of office and having official duties in the governmental unit in which the record is kept, authenticated by the seal of his office. “B. Foreign record. [Not pertinent]. “C. Alternative method for certain domestic and foreign records. [Not pertinent]. “D. Lack of record. A written statement that after diligent search no record or entry of a specified tenor is found to exist in the records designated by the statement, authenticated as provided in this section in the case of a domestic record, ... is admissible as evidence that the records contain no such record or entry.” Here the clerks ’ statements were offered under Paragraph D, to prove the lack of a record. That paragraph requires that the statement be authenticated as provided by Paragraph A, governing proof of domestic records. Paragraph A directs that the custodian’s statement be accompanied by the certificate of a second officer, verifying the fact that the first officer is the custodian. There can be no sound reason for supposing that the legislature intended to require the accompanying certificate when the custodian is attesting the existence of an entry but not to require it when he is attesting its non-existence. If there were any doubt about the point it would be set at rest by Rule 44 of the Federal Rules of ‘Civil Procedure, after which the Uniform Act was patterned. Subsection (a) of that Rule is similar to Paragraph A of our statute. It applies to domestic records and requires the accompanying certificate of a second officer. Subsection (b), governing the proof of the lack of a record, follows immediately after Subsection (a) and expressly requires that the custodian’s written statement that no record is found to exist be “accompanied by a certificate as above provided.” In place of the clause just quoted the Uniform Act substitutes a different clause, “authenticated as provided in this section in the case of a domestic record,” but the draftsmen’s intent is clearly the same in both instances. The change in the wording of the Uniform Act, as compared with Rule 44, evidently came about by reason of the insertion of Paragraphs B and C in the statute, compelling the draftsmen to rephrase the cross reference to avoid ambiguity. We conclude that the trial court was right in its ruling that the clerks ’ statements were not admissible in evidence. Without those statements the appellant’s proof falls short of showing that James Blythe did not obtain a divorce before his marriage to the appellee. Affirmed.	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Ed. F. McFaddin, Justice. This appeal challenges the ruling of the Circuit Court in sustaining defendant’s motion for summary judgment and dismissing the plaintiff’s complaint. Appellant, United Press International, Inc., was the plaintiff below. It is, and was at all times herein involved, a corporation not domesticated in Arkansas (see Ark. Stat. Ann. § 64-1201 [Repl. 1966]), and engaged in selling information to various news media. Appellee, at all times herein involved, was owning and operating a radio broadcasting station in Hot Springs, Arkansas, originally under the call letters KBLO, and later under the call letters KZNG. In December 1961 appellant and appellee entered into a contract whereby appellant agreed to furnish news services for broadcasting, and appellee agreed to pay stipulated amounts therefor. In October 1963 appellant filed this action against the appellee, claiming unpaid amounts due on the contract, which contract was made an exhibit to the complaint. Appellee admitted that the contract had been signed, but claimed that plaintiff, as a non-domesticated foreign corporation, was barred from maintaining the action. The appellee then filed the deposition of Mr. James R. Campbell, State Manager of United Press International, Inc.; and, based entirely on that deposition, the appellee moved for summary judgment of dismissal of the complaint, saying: “In his answer, defendant affirmatively alleged that at the time of the execution of the contract the plaintiff was a corporation organized and existing under the laws of the State of New York, which had not qualified to do business as a foreign corporation within the State of Arkansas, and that at the time of the execution of the contract plaintiff was engaged in doing business within the State of Arkansas, and that therefore under the'provisions of Section 64-1202, Arkansas Statutes, 1947, Annotated, the contract sued upon by plaintiff is unenforceable by plaintiff against defendant. Said affirmative allegation in defendant’s answer has not been denied by plaintiff and therefore must be taken as admitted to be true by the plaintiff. “Defendant states that the foregoing constitutes a complete defense to plaintiff’s complaint and that on this issue alone defendant is entitled to a summary judgment of dismissal of plaintiff’s complaint, and that therefore there is no genuine issue of fact to be determined herein. “Defendant attaches to this motion the deposition of plaintiff’s state regional manager, James R. Campbell, which affirmatively shows that plaintiff was engaged in doing business in the State of Arkansas in intrastate commerce at the time the contract in question was executed, even though it appears from the pleadings that this allegation has been admitted.” The Circuit Court granted the motion for summary judgment, stating: “ ... plaintiff’s complaint should be' dismissed for the reasons stated in said motion.” From such judgment of dismissal, there is this appeal. 1. The Summary Judgment Issue. At the threshold of the appeal, the appellee insists that the appellant filed no pleading to counter the motion for summary-judgment, and filed no affidavits controverting the motion; and appellee claims that such failure on the part of the appellant ivas, in itself, sufficient grounds for the action of the Court in granting the summary judgment. We do not agree with the appellee in such position. In moving for summary judgment the appellee had the burden of establishing that there was no genuine material fact question, and that on the record as made the summary judgment should be granted. By Act No. 123 of 1961, Arkansas adopted Rule 56 of the Federal Rules of Civil Procedure regarding summary judgment. The Act may be found in Ark. Stat. Ann. § 29-211 (Repl. 1962). Sub-section (c) of § 29-211 reads in part: “The judgment sought shall be rendered forthwith, if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to a/uy material fact, and that the moving party is entitled to judgment as a matter of law.” (Italics our own.) So the Court examines the pleadings; and, under the pleadings in this case, we hold that summary judg ment should not have been granted because there was a genuine issue as to the material fact of the place in which the contract sued on had been made. In the complaint it was stated that the “. . . plaintiff and defendant entered into a written contract, a copy of which is attached hereto, made a part hereof, and marked ‘Exhibit A’; . . .’’In the answer, the defendant “. . . 'admits the execution of the contract described in paragraph III of said complaint.” The opening sentence of the contract was this: “Made this 15th day of December, 1961, at New York, New York, between United Press International, Inc., a New York corporation, hereinafter called UPI, and George T. Hernreich, d/b/a Radio Station KBLO, Hot Springs, Arkansas, hereinafter called broadcaster.” It will be observed that the contract alleged that it was made “at New York, New York.” Was it made at New York, New York? There is nothing in the deposition of Mr. Campbell (and that is all the defendant offered) to show that the contract was made in any other place except New York, New York. Before the defendant could bring himself within the purview of Ark. Stat. Ann. § 64-1202, he would have to show that intrastate commerce was involved, and that the contract was made in the State of Arkansas. This point will be developed in Topic II of this Opinion. Until the defendant made such proof he was not entitled to claim any benefits under Ark. Stat. Ann. § 64-1202, and the admission of the defendant in his answer, as previously copied, prevented the defendant from being entitled to any summary judgment. The defendant, as the moving party, had the burden to establish that he was entitled to summary judgment. Wirges v. Hawkins, 238 Ark. 100, 378 S. W. 2d 646; Russell v. Rogers, 236 Ark. 713, 368 S. W. 2d 89; Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94. Such burden required the defendant to establish that there was no genuine issue as to the material fact that the contract was made in Arkansas, since only contracts made in Arkansas are in the prohibitory provision of the Foreign Corporation Statute, as we will now discuss. The defendant failed to discharge such burden so tbe summary judgment should not have been granted. II. The Foreign Corporation Issue. The appellee claims that the appellant, as an admitted non-domesticated foreign corporation, is prohibited by Ark. Stat. Ann. § 64-1202 (Repl. 1966) from maintaining this action. To this claim appellant makes two answers: the first is that only interstate commerce is involved; and the second is that, even if intrastate commerce is involved, nevertheless the contract was not made in Arkansas and thus is not within the prohibitory provisions of the statute. If all the transactions under the contract were in interstate commerce, then, of course, Ark. Stat. Ann. § 64-1202 has no application. Assuming, however, but not deciding, (a) that the deposition of Mr. Campbell established that some of the dealings under the contract were in intrastate commerce, and (b) that if any of the performance was in intrastate commerce, then any action on any part of the contract is within the prohibitory language of § 64-1202, we necessarily come to the question of whether a non-domesticated foreign corporation may use the courts of this State to obtain any relief under a contract made outside Arkansas. This brings us to a study of Ark. Stat. Ann. § 64-1202, which has many times been before this Court; but we find no Arkansas case directly in point on the issue here presented. The statute (§ 64-1202) has two distinct penalty provisions. The first provision is a fine to be collected against any non-domesticated foreign corporation that does business in this State. This fine provision applies regardless of where any contract may have been made, but the statute does not state that the assessment of the fine also makes the contract void. The second penalty provision in the statute is the one here in issue, and is contained in this statutory language: “. . . and as an additional penalty, any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make awy contract in the state which can he enforced hy it either in law or equity. . .” (Italics our own.) It will be observed that by the quoted language the courts of this State are closed to any non-domesticated foreign corporation only when seeking to enforce any contract made in this State. So the place of the making of the contract becomes most material in the case at bar, assuming any intrastate commerce is involved and that any such would taint the entire transaction. The statute that is now Ark. Stat. Ann. § 64-1202 has been many times before this Court and the original statute has been several times amended. Judge Leñar, in his volume, “Conflict of Laws,” published in 1938, in §§ 50, 54 and 57 thereof, discussed the history of the statute and the many cases involving it. In § 54 there is this statement: “It has been said that the Arkansas statute cannot apply to prevent actions on contracts not made in 'Arkansas, even though interstate commerce be not involved. Brace v. Gauger-Korsmo Const. Co. (CCA 8th 1926), 36 F. 2d 661.” Cert. denied, 74 L. Ed. (U. S.) 1153. The cited ease is directly in point. There, the non-domesticated. foreign corporation made a contract in Tennessee, to'-be.performedin Arkansas, and the' statute was Invoked against the action of such non-domesticated foreign corporation.• The- Circuit Court of Appeals Stated): “The lower'court held that this statute could ífot )bé Ihvoked'in'the instant case because'the contract wa's hot made in the State óf Arkansas. The correctness of this holding of the trial court is challenged by ap pellants, and it is urged that as the contract was one to be performed in the State of Arkansas it was within the inhibition of the statute.” In affirming the trial court, the Circuit Court of Appeals said: ‘ ‘ The ruling of the court finds support in State, etc. Ins. Assn. v. Brinkley, 61 Ark. 5, 31 S. W. 157, 29 L.R.A. 712, 54 A.S.R. 191, where the court says: ‘ Though the appellant company failed to comply with the statute by not doing those things required of foreign corporations before doing-business in this state, the contracts in this case were not void on that account, as they were Illinois contracts.’ ” A case not going quite as far as the Brace case, supra, but shedding light on the foreign corporation issue, is Pratt Laboratories v. Teague, 160 F. Supp. 176, in which Judge John E. Miller, for the Western District of Arkansas, in his usual thorough manner, reviewed the various cases on the Arkansas statute concerning non-domesticated foreign corporations, and concluded: “The statute does not concern itself with the place of performance, but merely refers to the place of the making of the contract ...” We have repeatedly held that § 64-1202 is a penal statute and must be strictly construed'in favor of those against whom the penalty is sought. Alexander Film Co. v. State, 201 Ark. 1052, 147 S. W. 2d 1011; Murray Tool Co. v. State, 203 Ark. 874, 159 S. W. 2d 71. In thus strictly construing the statute in favor of the appellant, we must conclude that the statute closes the doors of the State courts to a non-domesticated foreign corporation only on those actions involving contracts made in this State. The general rule in other jurisdictions involving-similar statutes supports our conclusion. In 23 Am. Jur. 331, “Foreign Corporations,” § 357, cases and texts are cited to sustain this statement: “A foreign corporation is ordinarily entitled to maintain an action in a' state-court on a contract made by it in another state, irrespective of whether it has complied with the state statute.” We therefore conclude that the place of the making of the contract in this litigation is a material question and that the determination of that question presents a genuine issue as to a material fact; and therefore the trial court was in error in sustaining the defendant’s motion for summary judgment. Reversed and remanded. Bland, J., dissents from that portion of this Opinion which relates to summary judgment. The defendant’s answer said: “Further answering defendent states that at the time of the execution of said contract, to-wit: December 15, 1961, and at the time of the filing of plaintiff’s complaint and at the present time, plaintiff, a corporation organized and existing under the laws of the State of New York, had not qualified to do business as a foreign corporation within the State of Arkansas as provided by the laws of said state, although at all of said times plaintiff was engaged in doing business within the State of Arkansas, and defendant states that, therefore, under the provisions of Section 64-1202, Arkansas Statutes 1947, Annotated, said contract is unenforceable by plaintiff against defendant, and plaintiff has no right to maintain this action against defendant.” “Appellant urges these points: "I. The Court erred in sustaining the motion for summary judg-ment for the reason that the appellee failed to sustain his burden of demonstrating that there are no genuine issues of material fact. “II. There are genuine issues of material fact in this ease on which appellant is entitled to a trial. “A. This contract does not come within the prohibition of Section 64-1202 Arkansas Statutes (1947) Annotated because it is a New York contract; or, at the very least, an issue of fact exists on that point; “B. This contract arose out of interstate commerce and provides for transactions constituting interstate commerce and thus does not fall within Section 64-1202; or, at the very least, an issue of fact exists upon that point.” Some of the federal cases construing the Federal Rule 56, on the point here at issue, are: Poller v. Columbia Broadcasting System; 363 U. S. 464, 7 L. Ed. 2d 458, 82 S. Ct. 486; Durastell v. Great Lakes Corp., 205 F. 2d 438; Booth v. Barber Co., 256 F. 2d 927; Hiern v. St. Paul Co., 262 F. 2d 526; McHenry v. Ford Motor Co., 269 F. 2d 18. In the annotations following Ark. Stat. Ann. § 64-1202 (Repl. 1966), the case of Graysonia, N. & A. R. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S. W. 2d 975, is cited as authority for this statement: “A foreign corporation may sue in the state to enforce contracts made in other states without complying with the statutory requirements for doing business.” But the reported case does not show that the non-domesticated foreign corporation was seeking to enforce an intrastate transaction resulting from a contract made outside Arkansas. There is an annotation in 81 A. L. E. 1134 entitled: “Applicability of provisions explicitly invalidating contracts made by foreign corporations not licensed to do business in state, to contracts made outside of the state,” and cases from various jurisdictions are cited in the annotation.	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Paul "Ward, Justice. This litigation concerns the meaning of certain provisions in an automobile liability insurance policy. On July 20, 1963 Dan Love (appellant) was injured when his car collided with a 1955 Buick, owned and driven by Kenneth Sweet. Appellant sued Sweet and, on May 20, 1964 recovered a judgment for $8,500 — no appeal taken. On June 16, 1964 appellant, being unable to collect from Sweet, filed this suit against the State Farm Mutual Automobile Insurance Company (appellee herein) contending he was subrogated to the right of Sweet under an insurance policy which had been issued to him by appellee covering the 1955 Bnick. The matter was submitted to the jury, resulting in a verdict in favor of appellee. Appellant now prosecutes this appeal for a reversal. First, we are confronted with a motion by appellee to affirm on the ground appellant has not complied with this court’s Rule 9 (d). We have concluded the motion must be affirmed. The above Rule requires appellant to abstract such “material parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to this Court for decision.” Many times we have called attention to the fact that it is impracticable (if not impossible) for all the justices to read the entire record. We find, in this case, the abstract in appellant’s brief does not provide such an understanding. There is no abstract of the complaint which consists of eight pages; of the answer which consists of seven pages; of the exhibits presented to the trial court consisting of eight pages, and there is no abstract of several orders of the court. The conclusion which we have reached to affirm the judgment of the trial court is in conformity with the following decisions of this Court: Ellington v. Remmel, 226 Ark. 569, 293 S. W. 2d 452; Griffin v. Mo. Pac. Rd. Co., 227 Ark. 312, 298 S. W. 2d 55; Anderson v. Stallings, 234 Ark. 680, 354 S. W. 2d 21; Vire v. Vire, 236 Ark. 740, 368 S. W. 2d 265; Weir v. Hill, 237 Ark. 922, 377 S. W. 2d 178, and; Hurley v. Owens, 238 Ark. 874, 385 S. W. 2d 636. Affirmed. McFaddin, J., concurs.	[ -16, 124, -40, 63, -102, 65, 58, 27, -47, -24, 102, 83, -17, -49, 68, 61, -2, 57, 85, 106, -11, -93, 23, -94, -10, -5, -53, -60, -75, 91, 108, 118, 12, 96, -126, -43, -26, 72, -123, 30, -50, -114, -69, 124, 25, -45, 112, 122, 80, 79, 65, -113, -94, 44, 27, 75, 105, 40, 121, -96, -63, -80, -50, 5, -1, 2, -79, 52, -98, 37, 124, 10, -100, 49, 56, -8, 114, -90, -110, 100, 105, -103, -128, -30, 103, 0, 1, -51, -100, -104, 6, -1, 13, -122, -42, 57, 1, 8, -73, 31, 123, 16, -123, -2, -40, 85, 95, 32, 3, -117, -108, -79, -17, 114, 31, 2, -17, -109, 34, 117, -53, -10, 92, 87, 118, -109, 71, -110 ]
Carleton Harris, Chief Justice. This appeal relates to an application for rezoning. Appellee, the “100” Club, is the owner of vacant property located at the southeast intersection of John Barrow Road and West Markham Street in the City of Little Rock. Immediately adjacent to this property, and also abutting West Markham Street, the other appellees, Mr. and Mrs. J. A. Parker, own property, which is improved with a brick dwelling that is the home of Mr. and Mrs. Parker. This area was annexed by the City of Little Rock in 1961, and appellees ’ properties, by reason of such annexation, were by operation of city ordinances, placed into an “A-One Family” zoning district. Appellees joined together in an application to the City of Little Rock, seeking to have the zoning classification changed to “F-Commercial.” The City Planning Commission and Board of Directors of the City of Little Rock denied the application, and suit was instituted in the Pulaski County Chancery Court, wherein the court was asked to declare the action of the city in refusing to rezone in accordance with their application to be arbitrary. On trial, the court found that the properties belonging to appellees bordered and were adjacent to an already existing “F-Commercial” district, and that such properties were no longer desirable for residential purposes, because of the proximity to the “F-Commercial” zone; further, that the refusal to rezone, as requested, had the effect of arbitrarily depriving appellees of the use of their properties. The city was enjoined from interfering with the use of the realty for “F-Commercial” purposes. From the decree so entered, appellant brings this appeal. The property owned by the Parkers is bounded on the east by commercial usage in the form of a shopping center, and the “100” Club property is bounded on the west by John Barrow Road, across which there is a single family residence and substantially open lands. Across West Markham Street, and north of Parkers’ residence and the lands belonging to the “100” Club, there is a well-developed residential subdivision known as Brookfield. The southern boundaries of the “100” Club property abuts Cunningham Lake Road, where this road intersects John Barrow Road, and the Parker property is separated from Cunningham Lake Road by one plot of unoccupied ground. Cunningham Lake Road, in general, runs parallel to the north bank of Rock Creek, and across this creek is located Henderson Junior High School. There are plans to develop a park on the land surrounding the school, and Federal funds have been requested. William Putnam, a real estate broker of Little Rock, testified that, in his opinion, the involved properties were not suitable for residential purposes, and the highest and best use would be for commercial purposes. He was also of the opinion that a rezoning to commercial would not adversely affect property in Brookfield Addition. Putnam stated that these properties could be used as “E-l Quiet Business,” but such a classification would not result in their highest and best use. James M. East, a real estate broker, likewise agreed that the highest and best use of the real estate at issue was “F-Commercial.” He said that the rezoning of the properties “would not affect the residential property in Brookfield any more than they were already affected at the time they were constructed.” More specifically, Mr. East stated that the best use for the premises was for retail stores, though he did not think that a service station or “drive-in” would adversely affect the value of the homes in Brookfield Subdivision. James L. Larrison, a real estate dealer, agreed substantially with East. When asked if the existence of a service station within a proximity of a homesite would adversely affect the marketability of that homesite, he replied, “That varies with people and circumstances. I don’t think you can answer that question categorically.” A number of residents of the neighborhood testified in opposition to the rezoning. Mr. and Mrs. Gr. W. Blankenship, who reside in Brookfield, both strenuously objected, particularly mentioning their objections to a service station, a “Kwik-Chek,” and a “drive-in.” Mrs. Claudia Berthe, likewise a resident of Brookfield, who testified that she had invested about $27,000.00 in her house and lot, also vigorously objected, stating, “We have no idea what is being put in front of us. It could be a liquor store, honky-tonk, gasoline station or that quick check to which I object.” Mrs. Berthe is a real estate dealer, and she said that the traffic situation would be much more difficult, and that at present “it takes 40 minutes time to unsnarl coming both ways.” Mrs. Berthe testified that if the property were rezoned, “I intend to sell and get out.” Curtis Glover and William Payne, residents of the area, also vigorously objected,-Mr. Glover citing inconveniences of living in the near vicinity of a service station. Mr. Payne, a realtor, testified that he had also had the personal experience of living in the vicinity of a service station, and that such use of land adversely affects the market value of residential property. C. V. Barnes, a real estate counselor, testified that, in his opinion, this particular area of the city has sufficient lands zoned commercial to meet the growth and needs of the area for the next ten years. It was his view that the highest compatible use for the properties is “E-l Quiet Business,” which would permit uses such as doctors’ offices, clinics, dentists’ offices, insurance offices, and others of a similar nature. He was also of the opinion that the rezoning of the premises involved would have a detrimental effect on the Brookfield Subdivision. Barnes agreed that the highest and best use of the properties would be commercial, but that this would not be the highest compatible use, i.e., a use which takes into consideration the surrounding areas. Russell McLean, a real estate appraiser, testified that Brookfield is a subdivision where the homeowners exhibit pride in ownership by taking care of their properties, and that, in his opinion, Brookfield would be adversely affected if appellees’ petition for “F-Commercial” were granted. He was also of the view that the highest and most compatible nse would be an “E” or lower zoning classification. Henry de Noble, Director of Community Development in Little Rock, testified that the city is experiencing an extensive problem in the handling of traffic on West Markham Street in the general area involved, ‘ ‘ especially because of traffic created by John Barrow Road and traffic going to Henderson Junior High and also the normal flow of traffic during the peak periods on West Markham, which is traveling east and west to feed into different parts of the city. But we experience our heaviest times in the afternoon when school lets out and in the morning roughly around 8:30.” Mr. De Noble also stated that locating- a service station on this corner would be detrimental from the standpoint of safety; that a station would add to the traffic. He further testified that, as a result of the application of appellees before the Planning Commission, his staff recommended that the lands be rezoned to “E-l Quiet” use, and he also stated that a study reflected “that there is enough commercial zoning- at this time on a two-mile circle of a point just up road from this map, which includes this area there is enough commercial zoned property available today to serve over 100,000 people,” but that only about 36,-000 people could live within this radius. Paul R. Pair, Deputy Superintendent of Schools, opposed the petition, stating, “We like residential property around the school. * * * Commercial property around the school is less desirable.” Mr. Pair said that commercial property increases the traffic around a school, thus constituting a more serious safety hazard, and that commercial districts create more noise and “disruption.” Mr. Pair testified that the district had applied for a Federal program to develop some of the property surrounding Henderson Junior High School as a park. Appellees, for affirmance, rely almost entirely on Little Rock v. Pfeifer, 169 Ark. 1027, 277 S. W. 883, and they quote from that case as follows: “There are numerous witnesses in the case, and they express various opinions as to the effect of the construction of a business house on contiguous residence property, and they also differ as to whether or not the locality should be regarded as business or residence property. Giving due effect to the statement and opinions of all the witnesses, we are of the opinion that the evidence establishes very clearly and beyond controversy that the locality in question is a business district which has been well established, and which is now expanding, the expansion having reached the point where appellees are constructing their building. There is substantial evidence tending to show that the value of some of the adjacent residence property will be depreciated on account of the lessening of usable value of the property for residence purposes, but we do not think that this affords justification for interfering with the gradual expansion of the business district, which has already been established. As the size of the business district grows, it ceases to be a residence district to that extent within the purview of the zoning ordinance, and any attempt on the part of the city council to restrict the growth of an established business district is arbitrary. ’ ’ In the case before us, the court found that appellees7 properties are adjacent to an existing “F-Commercial” district, and that the property is no longer desirable for residential purposes, because of its proximity to the “F-'Commercial” classification. We do not think however, that the Pfeifer case can be relied upon to uphold the “F-Commercial” classification. City of Little Rock v. McKenzie, 239 Ark. 9, 386 S. W. 2d 697, also mentioned by appellees, will be later discussed. The statute in force at the time of Pfeifer was Act 6 of the Second Extraordinary Session of the General Assembly of 1924, and cities of the first class were authorized to establish zones limiting the character of buildings erected thereon. There were only three zoning classifications under that Act, one, that portion of the city where manufacturing establishments might be erected, two, those portions of the city where business, other than manufacturing, might be carried on, and finally, those portions of the city set apart for residential purposes. Act 186 of the Acts of the General Assembly of 1957, Ark. Stat. Ann. § 19-2825 (Supp. 1965) is a comprehensive act authorizing cities of the first and second class to adopt and enforce plans “for the coordinated, adjusted and harmonious development of the municipality and its environs.” The purposes of the act are set out in Subsection a. as follows: “The plan or plans of the municipality shall be prepared in order to promote, in accordance with present and future needs, the safety, morals, order, convenience, prosperity and general welfare of the citizens; and may provide, among other things, for efficiency and economy in the process of development, for the appropriate and best use of land, for convenience of traffic and circulation of people and goods, for safety from fire and other dangers, for adequate light and air in the use and occupancy of buildings, for healthful and convenient distribution of population, for good civic design and arrangement, for adequate public utilities and facilities, and for wise and efficient expenditure of funds.” The Act itself consists of nine lengthy sections, including approximately forty sub-sections, and composing fourteen pages (Acts of Arkansas 1957), all dealing with the preparation of plans for the orderly growth of a city. Included is the authority of the city council to pass proper zoning ordinances, which “shall designate districts or zones of such shape, size or characteristics as deemed advisable.” Section 8 provides that the provisions of the Act shall be construed liberally. It is apparent that the passage of Act 186 of 1957, to some degree, necessarily modified our holding in Pfeifer, for a strict and literal interpretation of all the language in that case would certainly result in nullifying the effort by a city to coordinate development of lands, and, more than that, in effect, would nullify Act 186. The right and responsibility for classifying the various areas in the city are with the zoning authorities, and their decision will only be disturbed if it is shown that they acted arbitrarily. Lindsey v. City of Camden, 239 Ark. 736, 393 S. W 2d 864. The sole question before this court on this appeal is “Did the preponderance of the evidence before the Chancellor show that the city acted arbitrarily in refusing to rezone the properties here at issue as ‘F-'Commercial’?” While the word, “arbitrary,” has several definitions, probably the most generally accepted one is, “arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenient selection or choice, rather than on reason or nature.” (Webster’s Third New International Dictionary, 1961) After carefully reviewing the evidence, we are of the opinion that the answer is, “No, the preponderance of the evidence does not show that the city acted arbitrarily.” The testimony has been set out rather fully, and we think it clearly shows a reasonable basis for the decision by city authorities. Several property owners in Brookfield testified in opposition to the rezoning change, and this opposition was probably intensified by the fact that no definite decision had been reached by appellees as the the type of commereiál business that would be placed at the location sought to he rezoned. The increase in traffic, and the fact that a junior high school is located nearby are also cogent reasons to support the city’s position. However, the fact that the city was justified in refusing to rezone to ££F-Commercial” does not mean that the properties should remain within the residential classification. Appellees, as previously mentioned, cite City of Little Rock v. McKenzie, supra, in support of their contention that Pfeifer is controlling. In McKenzie we quoted Pfeifer as follows: “* * * When a business district has been rightly established, the right of owners of property adjacent thereto cannot be restricted, so as to prevent them from using it as business property.” But here, we are not saying that the city would not be acting arbitrarily in refusing to rezone these properties to any type of business property. We are only saying that the refusal to rezone same as ££F-Commercial” was not arbitrary. In fact, in McKenzie the east half of the property involved was rezoned from one family residential use to quiet business, and the west half was rezoned from one family residential to apartments not exceeding three stories in height. It might also be pointed out that in McKenzie, the City of Little Rock approved the rezoning (while here, it rejected it, and we simply held that the rezoning by the city was not shown to be arbitrary. In line with what has been said, we find that the court erred in holding that the city had acted arbitrarily in refusing to rezone the involved properties as “F-Commercial,” and the decree is accordingly reversed. It is so ordered. Ward, J., not participating. Section 3 authorized an exception to be made in a particular instance “only for good cause, and in case of abuse the adjaceni property owners shall have the right to appeal to the courts of Chancery to protect their property from depreciation by reason of the setting up of such exceptional business within the zone.” This act is a “far cry” from Act 6 of 1924, which consisted of five short sections, and comprised only a page and a half in the volume containing the acts of the special session of 1924. At the meeting of the Board of Directors of the City of Little Rock, when the proposal for rezoning was presented, counsel for appellees stated that he could not specify the definite use of the property, if rezoned, though he did state that certain specific uses of the property would not be made.	[ 118, -17, -48, 76, 24, 72, 24, -68, 90, -103, -11, 83, -81, -36, 28, 121, -21, -35, 116, 121, -123, -78, 23, 98, -64, -13, -21, -51, -72, -35, -11, -41, 76, 65, -54, 85, -62, 72, -51, 28, 78, 5, 27, 77, -39, -127, 52, 42, 16, 15, 85, -113, -46, 44, 52, -63, -24, 44, 93, 52, 80, -70, -72, -100, 127, 23, 0, -76, -8, -127, 104, 8, -104, 117, 8, -24, 119, 38, -122, 100, 7, -101, 12, 32, 98, 10, 65, -17, -88, 13, 6, 58, -115, -90, -90, 25, 11, 67, -105, -98, 125, 22, 67, 126, -51, -123, 25, 108, -115, -18, -108, -95, -58, 56, -123, 3, -13, 7, 116, 116, -53, -26, -2, -58, 51, -37, -122, -15 ]
Guy Amsler, Justice. Appellant, Johnnie Gilchrist, was tried in the Circuit Court of Pulaski County, on a charge of murder in the first degree and convicted of murder in the second degree. The jury fixed his punishment at 21 years imprisonment in the State Penitentiary. Motion for a new trial was overruled and appeal was perfected in due time. The only point relied on is that “The court erred in refusing to charge the jury on the lesser offense of manslaughter.” The background facts as reflected by the proof may be briefly stated. Sometime during the early morning of August 21, 1965 (the exact time is uncertain because of conflicts in the evidence) appellant Johnnie Gilchrist and his brother Walter got into a “ruckus” at their mother’s home on Raines Road outside the city limits of Little Rock. They were “quieted down” by other members of the family. Later the brothers went their separate ways on different missions and returned to their mother’s around 9:00 a.m. During their absence from home Johnnie procured a pistol someplace and fetched it home with him. Johnnie was in the home of his sister and Walter (the deceased) was at his mother’s house. The houses are some 100 to 150 feet apart. Walter had returned to his home with a nephew Leon Parr. When he entered the house his sister, Alice Gilchrist, warned him not to' go out the hack ‘ ‘ door because Johnnie said he was going to kill him,” but that he went anyway. She said Walter did not have a gun, and Leon Parr said he saw no gun. There was no eye witness to the shooting other than appellant and his version is somewhat different. His testimony was that he told his niece that he was going to take the pistol back to his nephew’s and when about to leave he saw Walter out in the back yard with a .22 rifle, and that his brother, the deceased, told him to come on out he (Walter) “was going to kill me.” He says that he then went hack and told his niece (not corroborated by her) “that fool was standing ont there with a gun,” and while he talked with his niece a few minutes, “I figured he’d go and put it up,” and then: “Q. Okay. Now, what happened when you went out, or did you go out the door then? A. Yes, I went out the back door. Q. Okay, then what happened? A. When I came out, I shot him, That’s all I know what happened. Q. How many shells did you fire? A. Twice. Q. You fired twice? A. Yes, sir. Q. How many times did your brother fire? A. He didn’t get a chance to fire. Not then he didn’t. He had already shot before then, before I went in the house talking to her. Q. How many times did he shoot? A. He didn’t shoot hut one time. Q. And you say he told you to come out of the house, that he was going to kill you? A. That’s right. Q. And when you came out the door you had your mind made up that you were going to protect yourself? A. That’s right.” He further testified that “I felt like if I would shoot him in the leg or something to make him drop that gun.” Appellant then left and reported to the officers that he had shot his brother. He also delivered the pistol to the deputy sheriffs and they found four spent cartridges in it. He never reported to the officers that his brother had a gun at the time he shot the deceased. The instructions which appellant contends should have been given read: “Manslaughter is the unlawful killing of a human being without malice, express or implied, and without deliberation. “Manslaughter must be voluntary upon a sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. That is voluntary manslaughter.” Three cases are cited in support of appellant’s argument. Collins v. State, 102 Ark. 180, 143 S. W. 1075, may be distinguished on the facts. Collins and Jones were riding by Yarbrough’s (the deceased) home in a buggy, at night, when one of them fired a pistol (apparently into the air). Yarbrough came from his house toward the buggy, with gun in hand and ordered the occupants of the buggy to halt. Both sides started firing and Yarbrough was killed. Collins was indicted for and convicted of murder. The trial court refused to instruct on voluntary manslaughter and we held this to be error. Justice Frauenthal wrote: “Both Jones and the defendant were surprised by the appearance of the deceased near the buggy and by his attack made with gun in hand, and, not knowing who he was, they feared either that they would be robbed by him or receive injury to their persons from him; and that by reason of this fear and surprise Jones fired at the deceased. This, in short, is the testimony of the defendant himself, which though contradicted in many material points by other evidence in the case, nevertheless presented an issue which, under the law, he had a right to have submitted to and be determined by the jury upon proper instructions. It appears that the court instructed the jury relative to murder in the first and second degrees, but did not instruct them at all in reference to the crime of manslaughter or the punishment for that degree of homicide, although requested to do so by the defendant. The grade of a homicide may be reduced from murder to manslaughter by reason of a passion caused by a provocation apparently sufficient to make the passion irresistible. The passion may consist of anger or fear or terror. These are the causes from which the passion springs; and, whether induced by the one or other of these causes, it will reduce the grade of the homicide from murder to manslaughter. It is perfectly proper to show that in a given case the passion did exist for the reason that it was induced by anger suddenly aroused, or by surprise, or by fear, or by terror; and where there is any evidence tending to show that the defendant was guilty of a lower grade of homicide than murder, the trial judge should instruct the jury in reference thereto when requested by the defendant.” In the instant case we have a distinctly different set of facts. Appellant was not confronted with a ‘ ‘ surprise ’ ’ situation which might be calculated to create a sudden heat of passion, fear or terror. He seemingly was in a perfectly safe place — his sister’s home. His conversation with his niece (which, according to the proof, may have lasted some 15 or more minutes) indicates neither fear nor terror and his act of deliberately walking out the back door into the very “mouth of the cannon” so to speak, does not indicate any great measure of fear on his part. If his brother, gun in hand, (as he says) was standing in the adjoining back yard some 50 to 100 feet away threatening to kill him his (appellant’s) conduct (under his own testimony) may best be categorized as poor judgment or willfully intentional rather than charged to a sudden heat of pas sion, fear, surprise or terror. We do not consider the Collins case beneficial to appellant’s contention. Pickett v. State, 91 Ark. 570, 121 S. W. 732, is relied on. Henry and Wilson Pickett were indicted on charges of first degree murder for killing Charles Abbott and were convicted of second degree murder. The court refused an instruction on voluntary manslaughter and this was held to be error. On the 8th day of December, 1908, Henry Pickett went to the store of Bunk Abbott and reported that he (Pickett) had a bale of cotton at the gin for which he wanted credit on his store account. Abbott told Pickett that he (Abbott) “would go down there and get the cotton.” That evening about supper time Pickett was sitting on his front porch when Charles and Bunk Abbott drove up in a wagon. Justice Hart narrates Pickett’s version of what happened: ‘ ‘ and Mr. Abbott says: ‘ Henry, come out here and get in this wagon, and go back to town with me.’ I said: ‘Mr. Abbott, you have plenty of help without me.’ He says: ‘Damn that! This is your cotton, and I want you to go back to town and unload it.’ I started to tell him something, and he said again: ‘Come out here.’ I started to go out there, and then concluded I had better stay where I was, and said to him that I had better stay where I was, as he did not look right. He says: ‘You damned son of a bitch, come out of there! ’ And I told him I was not coming, and he said: ‘If you don’t come out of there, I am coming in there.’ He said: ‘You may think I have no right to come in there, but I will show you.’ I said: ‘I have got nothing to say about that.’ He then pulled his gun out and started in. He got about half way between the gate and the doorsteps where I was sitting. I was still sitting there, and he had the gun in his hand. I did not think he was going to shoot me, and I just stayed there. I stayed there until he stepped up to me, and when he gets up to me he says: ‘By God, you get up and come out of here.’ I sat there just a second and then I gets up and whirls right quick in the house. He then shoots at me three or four times, maybe five, and then he started in the house. Mr. Bunk was running in this way shooting, and Mr. Charlie was shooting this way (indicating). My children was running around after me hallooing and screaming. And they were just shooting every way. ... I ran to the corner where I generally kept my gun, and I did not find it, and I ran to the bed and found my gun where they had put it while they were cleaning up. I grabbed my gun, and began shooting at them. I did not have but one shell, and I shot it, and then I ran back and got my rifle. My brother did not shoot at all. He had nothing to do with the difficulty. I did not have any pistol that day; never owned one in my life. After the shooting I ran out of the back door and into the field where we saw Mr. Porter.” The third case offered by appellant as supporting his position is Ringer v. State, 74 Ark. 262, 85 S. W. 410. Ringer owned a country store in Yell County. On Christmas Bay several persons gathered at the store for a “turkey shoot.” York McCullom and his son John were there and John had an air gun. A shot from the air gun entered the store and when Ringer went out the front door to warn the boys he and John got into a fight. John cut Ringer in the back with a knife and chased him back into the store. Ringer thinking the boy was still in pursuit grabbed his Winchester rifle, wheeled and fired from the back of the store. York McCullom who was in the store during the altercation had started to walk out the door. Ringer’s bullet struck him in the back and he died- Ringer was indicted and tried for the killing. The testimony was in conflict as to whether the homicide was intentional or an accident. The trial court refused an instruction on “involuntary” manslaughter and we held this to be error. It is readily apparent that neither of the foregoing cases presents such factual pictures as confronted the trial court in the instant prosecution. We think that they are distinguishable on either the facts or the law, if not both. We have numerous cases holding that it is not error for the trial court to refuse an instruction on “lesser degrees” of an offense when the evidence does not justify doing so. McGarrah v. State, 217 Ark. 186, 229 S. W. 2d 665; Washington v. State, 181 Ark. 1011, 28 S. W. 2d 1055; Allison v. State, 74 Ark. 444, 86 S. W. 409. Having concluded that the record reflects no proof that would require an instruction on voluntary manslaughter and no other error being urged the case is affirmed.	[ 113, -21, -4, 31, 59, -32, 42, -68, -42, -61, 102, 115, -17, 78, 69, 105, 41, 111, 85, 105, -96, -105, 23, 33, -110, -77, 25, -41, 50, -55, -68, -99, 8, 96, -54, 89, -30, 72, -25, 80, -114, -124, -87, -30, -126, 18, 34, 47, 4, -114, 5, -114, -29, 42, 30, -54, 105, 44, 75, -67, 80, 121, -38, 15, -51, 16, -125, -78, -104, 5, -16, 60, -39, 53, 8, -4, 115, -90, -128, 84, 45, -119, 44, 102, 118, 36, -99, -17, -24, -119, 31, 47, -107, -121, 24, 73, 65, -116, -97, -35, 42, -12, 30, 116, -31, -42, 80, 108, 32, -49, -76, -79, -87, 40, 20, 58, -53, -89, 32, 112, -49, -86, 92, 69, 121, -101, -122, -16 ]
Carleton Harris, Chief Justice. Appellant, James Lloyd Bostic, was convicted in the Municipal Court of the City of Little Rock on March 17, 1966, of the offense of keeping a gambling device. He was fined $50.00 and costs, and the alleged gambling machine was ordered destroyed. Bostic appealed from the conviction to the Circuit Court of Pulaski County, Arkansas, and, on trial by the jury, was convicted and fined $200.00. From the judgment so entered, appellant brings this appeal. For reversal, appellant relies upon two points, first, that the trial court committed prejudicial error by informing the jury that Bostic had been convicted of the charge in the Municipal Court, and second, that the section under which appellant was convicted, Ark. Stat. Ann. § 41-2003 (1947), does not, in defining gambling devices, include the machine possessed by Bostic. We proceed to a discussion of each point in the order listed. In acquainting the jury with the nature of the case, the judge of the Circuit Court said: “This is Case No. 65656, City of Little Rock v. James Lloyd, Bostic. The charge is keeping a gambling device. This defendant was convicted in the lower court and he has appealed, which he has a right to do, and, of course, as he stands before you he is innocent until the City convinces you of his guilt beyond a reasonable doubt. That’s all I know about the case. I don’t know anything about the facts because all that comes over to me is this appeal transcript.” Appellant objected to this statement by the court, and upon being overruled, noted his exceptions. It is argued that appeal cases are tried anew, in the same manner as if no judgment had ever been rendered, and that the trial court committed reversible error by informing the jury that Bostic had been convicted in the Municipal 'Court; that “the jury’s knowledge of lower court conviction would prejudice them in their consideration of the case.” We do not agree. In Stanley v. State, 174 Ark. 743, 297 S. W. 826, error was asserted because the trial court permitted the prosecuting attorney, in his opening statement, to mention that the defendant, who was charged with manslaughter, had been previously convicted of the offense about a year prior thereto, but the case had been reversed by the Supreme Court. We held that where the record showed this to be true, there was no error. Of course, the trial court, in its remarks, gave no opinion as to the guilt or innocence of the accused, and it is that type of comment, i.e., upon the weight of the evidence which this court has held to he improper and prejudicial. Hearn v. State, 211 Ark. 233, 200 S. W. 2d 513, and cases cited therein. Here, the court very clearly told the jury that the defendant stood before them innocent until they were convinced of his guilt beyond a reasonable doubt. We see no possible way that prejudice could have resulted. The proof on the part of the city reflected that Bostic operated a cafe, in which there ivas a pinball machine. Free games could be accumulated on the machine, and Bostic was observed paying off persons for these games. A button would then be pressed on the bottom of the maching for the purpose of “running off” the games. A witness testified that he won games on three occasions, eighty the first time, two hundred the second time, and five hundred on the third occasion, and was paid by Bostic at the rate of a nickel per game. Appellant argues that the pertinent statute (41-2003) specifies certain gambling devices, the keeping of which constitutes the offense of keeping a gambling device, but that the pinball machine, here involved, is not included among the prohibited machines. We find no merit in appellant’s contention. It is true that Act 137 of 1933, as amended by Act 201 of 1939, Ark. Stat. Ann. § 84-2611 (Bepl. 1960), provides that the anti-gambling statutes (including what is presently § 41-2003) “shall not be expanded to include a free amusement feature such as the privilege of playing additional free games if certain score is made on a pinball table and on any other amusement game described in this section.” Thus, merely setting up a machine that gives free games is not a violation of § 41-2003, but there are additional facts in this case, which bring it within the provisions of that stutute, viz, that the free games won on the machine were converted to cash by the proprietor’s paying off these games in money. When this was done, the machine clear ly became a gaming device, and appellant was subject to the penalty of the law. In Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426, we held that teletype machines, operated for the purpose of securing information as to horseracing at different tracks in the United States, the information received then being transmitted to other places in the city where gambling was carried on, became gambling devices within the meaning of our statutes. Of course, a teletype machine is not a gambling device, per se, but it was the use employed which brought the machines within the prohibitory statute. In that case, we said: “It seems to us that the evil effects flowing from the use of instrumentalities designed for lawful use, when put to an unlawful use, would be just as great as when such machines were designed for unlawful purr-poses. Our lawmakers have gone far in their attempt to suppress the gambling evil and in so doing have given our enforcement officers authority to destroy the tools by the use of which gambling is carried on.” Under our law, and the facts shown, the jury was justified in finding Bostic guilty of the offense charged. Affirmed.	[ 48, -24, -108, 62, 24, 64, 18, 56, 66, -95, -25, 114, 37, -44, 20, 119, -77, 123, 116, 99, -38, -77, 23, 65, -30, -13, -103, -105, -71, 105, -20, -76, 72, 32, -62, 85, 102, 72, -27, -44, -114, 4, 11, 96, 81, 83, 44, 42, 34, -113, 33, -98, -61, 43, 30, 74, 109, 44, 91, -68, 89, -111, -54, 13, -19, 16, -95, 38, -101, 5, 88, 44, -36, 49, 0, -8, 115, -90, -126, 84, 105, -37, -116, 96, 34, 0, 29, -49, -88, 8, 31, -81, -73, -90, -102, 81, 3, 109, -98, -35, 102, 22, 14, -2, 113, -44, 89, 44, 7, -34, -108, -77, -87, 108, -124, 82, -21, -29, 84, 117, -51, -22, 92, 71, 59, -101, -106, -106 ]
Carleton Harris, Chief Justice. This is an action, instituted by appellant, Billy Reeder, against nine insurance companies, to recover on policies as a result of a fire which occurred at the Stardust Club near Fort Smith, Arkansas. The contents of the building, including furniture, fixtures, equipment, supplies, improvements, etc., were insured in the amount of $18,500.00. Appellees, the nine insurance companies, answered, denying each material allegation, and pleading further, inter alia, that appellant should not recover for the reason that he had failed to comply with the provisions of the several policies of insurance, in that he had not filed a proof of loss within sixty days as provided by each policy. The cause proceeded to trial before a jury, and at the conclusion of appellant’s evidence, appellees moved for a directed verdict in their favor; the motion was granted, and the jury was instructed to return its verdict for the defendants. From the judgment so entered, appellant brings this appeal. It is admitted that appellant did not file a proof of loss with the appellee companies, but Reeder’s contention is that appellees waived this requirement. The question therefore, presently before the court, is whether there was sufficient evidence of waiver offered by appellant to present a jury question. As will be subsequently pointed out, there was evidently a suspicion that arson had been committed when the fire occurred, and, in fact, on the next day, Reeder and employees were called to the Prosecuting Attorney’s office to answer questions concerning the fire; thereafter, appellant was charged with arson, and on August 23 and 24, 1965, was tried for this offense in the Fort Smith District of the Sebastian County Circuit Court. The trial resulted in an acquittal. It should be remembered that on appeal, in passing on the question of the correctness of the trial court’s action in directing a verdict, we must take that view of evidence most favorable to the party against whom the verdict is directed. As stated in Barrentine v. The Henry Wrape Company, 120 Ark. 206, 179 S. W. 328: “In determining on appeal the correctness of the trial court’s action in directing a verdict for either party, the rule is to take that view of evidence that is most favorable to the party against whom the verdict is directed, and where there is any evidence tending to establish an issue in favor of the party against whom the verdict is directed, it is error to take the case from the jury. [Citing cases] ” Without discussing all of the testimony, we will mention two instances that, taken together with findings at the pre-trial conference, precluded the court from properly directing a verdict. Reeder testified that he was notified of the fire about 6:30 or 7:00 o’clock on the morning after it occurred; that he immediately went to the premises, arriving there about 7:30, and that Robert Smith, an insurance adjuster, was already there, together with the State Police. Later in the day he returned, and Smith was also present at that time. From appellant’s testimony: “Well, Mr. Smith was out there then so we walked back in to the kitchen and I had one of those big meat boxes that was a freezer on one side and just a regular icebox on the other side so I opened it up to examine the meat and I could see that it was still frozen so I told him ‘lets inventory this out and maybe I can save some of it.’ And he said ‘No, you just lock it up, everything is just a total loss.’ “Q. And that was Robert Smith the adjuster for the insurance company? “A. Right.” The court had previously, in its pre-trial order of March 4, 1966, found: “* * * It is conceded that Robert D. Smith is the Manager of the local branch office of General Adjustment Bureau. It is conceded that Smith was the adjuster for the defendant companies. The existence of an agency relationship between Mr. Smith and the defendant insurance companies does not appear to be in doubt, but the question of whether or not his conduct would operate as a waiver is reserved.” Likewise, Earl Flaherty, appellant’s uncle, testified that, upon hearing about the fire, he went to the scene and saw Kit Barton, who was an insurance agent selling policies for the insurance firm of Sagely, Bennett, and Barton, and who had sold some of the insurance to Reeder. According to Flaherty, he was discussing the fire with Barton, and the latter said, “Well, he had just gutted it.” Flaherty then stated that they walked into the kitchen, and he (Flaherty) said that it did not look too bad in there, and Bartin replied, “No, he didn’t start it here in the kitchen where they ususally start them;” that when Flaherty asked if he should “stay around and see that nothing was bothered or destroyed,” “No, it was totaled out,” subsequently explaining to Flaherty that he meant that there was a total loss. The witness stated that Burton did not say who he was referring to as “he,” but when Flaherty mentioned that Reeder was his nephew, Barton “just turned around and started out the door.” It is emphasized by appellees that, according to Flaherty’s testimony, Barton never did state to whom “he” referred, but we think, under all the evidence, it could properly be considered that the reference was to Reeder. The pretrial order finds that Barton “is an agent selling policies for the insurance firm of Sagely, Bennett & Barton asserts that Mr. Barton cannot waive a proof of loss and on which policies the suit is brought. The defendant for his company. The defendant acknowledges, however, that if a proof of loss had been submitted it properly could have been submitted to Mr. Barton. The court stated that, under these circumstances, his authority to waive a proof of loss would be considered as established, although a ruling on whether or not his alleged conduct amounted to a waiver was not resolved.” It is our opinion that these findings, along with the testimony, particularly that of Smith, “Everything is just a total loss,” presents the question of whether there was a waiver. In addition, a rather pertinent finding is made in Paragraph 12 of the pre-trial order. It sets out that appellant concedes that he did not file a proof of loss, and then states, “The defendant does concede that a notice of loss was given.” The record does not reflect how, or when, the notice of loss was given, but certainly, upon notice, the usual practice of an insurance company is to furnish proof of loss forms. In American Fidelity Fire Insurance Company v. Winfield, 225 Ark. 139, 279 S. W. 2d 836, the testimony reflected that appellee’s landlord wrote to the insurance company, advising that appellee’s automobile had been destroyed by fire. The company denied receiving such a letter, but this court held that the landlord’s testimony that he properly mailed the letter, together with the presumption that it was received by the addressee, constituted substantial evidence to sustain the court’s finding that notice was in fact received by the company. This court then said: “It being determined that the company received notice of the loss, the next question that arises is: Did the insurance company’s failure to acknowledge receipt of the notice of loss relieve the policyholder from furnishing proof of loss within the 60-day period provided by the policy?” In answering this question in the affirmative, we quoted from Appleman’s Insurance Law and Practice, Volume 5, § 3633: “* * * ‘It has been stated that unless there is a bona fide.attempt by the company to adjust a loss, there is a refusal to pay. Therefore, the mere effect of silence or inaction might be sufficient to excuse compliance.’ ” Further: “In Ward v. Pacific Fire Insurance Company, 115 S. C. 53, 104 S. W. 316, it is said: ‘While there was no express or unequivocal denial of liability during the period of time prescribed in the policy within which proofs of loss were to be and might have been furnished, yet defendant’s silence, in the light of facts and circumstances, clearly warranted the inference that liability was and would be denied, as it was in fact denied, and plaintiff was warranted in so believing and in acting accordingly. . . . The company received the notice of loss in due time, and, in fairness, it should have notified plaintiff that he must furnish proofs of loss, as required by the policy, if it intended to pay the loss.’ ” Here, there is a finding that a notice of loss was given. For the reasons herein stated, we think there was a jury question as to waiver, and the judgment is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion.	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Paul Ward, Justice. This is an eminent domain proceeding. On May 25,1965 the Arkansas State Highway Commission (appellant) filed suit to condemn several lots and parts of lots owned by James Henry Clay and his wife (appellees) for use in construction of Interstate Highway No. 40. A jury verdict awarded appellees the sum of $22,500. When appellant attempted to prosecute an appeal to this Court it learned that, due to a defect in the reporter’s recording machine, all of the testimony and proceedings had not been recorded and that a complete record could not be furnished. Thereupon appellant prepared and served on appellees its statement of evidence and proceedings in accordance with the provisions of Ark. Stat. Ann. § 27-2127.11 (Repl. 1962). Then appellees filed objections and amendments to appellant’s statement (in accord with the same statute) over the objections of appellant. On June 9, 1966 the trial court approved the statements of both parties, and on the same day appellant 'filed a motion for a new trial on the ground that the failure to obtain a complete record was the result of the unavoidable situation above mentioned. The motion was denied, and this appeal follows. One. We find no merit in appellant’s contention the trial court erred in refusing to grant a new trial. Appellant’s remedy was to prepare its “statement of the evidence or proceedings . . .” by the method provided in said section 27-2127.11. This section has pre viously been construed by tbis Court (against tbe contention of appellant) in Mowrey v. Coleman, 224 Ark. 979, 277 S. W. 2d 481, and Tomlin v. Reynolds Mining Corp., 231 Ark. 393, 329 S. W. 2d 552. Two. As previously mentioned, appellant prepared a statement and presented it to tbe trial court for approval pursuant to tbe statute above mentioned. A copy of tbis statement was served on appellees in due time. It appears, however, tbat appellee failed to serve its objections or proposed amendments within tbe time (ten days) required by the same statute. However, tbe trial court approved appellees’ statement. We think tbe court was in error, but we also think it was harmless error. It must be kept in mind (as was referred to in tbe Mowery case, supra) tbat tbe jury bad already reached its decision before it was learned tbat a complete transcript of tbe testimony and proceedings could not be obtained. They beard and considered all tbe testimony. Therefore tbe burden was on appellant to show error or lack of substantial evidence to support the verdict. As pointed out hereafter, appellant has not met tbat burden. Three. We do not agree with the contention of appellant tbat tbe trial court should have declared a mistrial. During tbe trial appellees’ witnesses made references to damages caused to lots outside of tbe taking. Each time such a reference was made appellant objected, and the trial court sustained the objection. On one occasion tbe trial court reprimanded appellees rather severely. At no time did tbe witnesses attempt to say to what extent appellee had been damaged. We are unable to see bow tbe jury was prejudiced in favor of appellees or against appellant. In this connection appellant calls particular attention to remarks made by appellees’ attorney in addressing tbe jury, to which objection was made by appellant. All tbe attorney said was: “. . .we are not permitted under tbe law ... to talk about tbis type of damage. ” . . . “ The court has instructed us that we could not consider those damages in arriving at our damages.” The trial court was not asked to give the jury any cautionary instruction, and we do not think it was an abuse of discretion for the court to refuse a new trial. Four. Finally, appellant contends “there is no substantial evidence to support the verdict”. Again, we do not agree. The record contains twenty three pages of testimony which the court reporter verified, and to which appellant makes no objection. Included therein is the testimony of several qualified witnesses each of whom valued the property damage at approximately $8,000 more than the amount fixed by the jury. Affirmed.	[ 112, 106, -79, 92, -87, 96, 120, -118, 65, -93, 101, 83, -81, -58, 16, 51, -93, 57, 116, 121, 70, -78, 83, 67, 114, -77, 91, 119, 115, 77, -28, -10, 76, 32, -54, 85, 68, 104, -59, 88, 78, 10, -103, 76, -39, -32, 48, 111, 82, 15, 49, -90, -13, -83, 24, -61, 73, 46, 79, -82, 73, 48, -102, 7, 127, 0, -79, 100, -104, 1, -8, 42, -112, 49, 17, 24, 115, -90, -122, 100, 107, 25, 12, 34, 99, 43, 92, -57, -72, -120, 38, -66, 13, -90, -46, 9, 75, 73, -106, -107, 121, 82, 6, -6, -19, 69, 89, 108, 7, -22, -110, -95, 39, 108, -108, 3, -29, -127, 16, 117, -51, -26, 89, 71, 51, -101, -121, -79 ]
Paul Ward, Justice. Involved here is a property settlement incident to a divorce decree. Raymond B. Alexander (appellant) and Mary Lee Alexander (appellee) were married in 1936 and lived together until Dcember 3, 1961 when appellant left. They quit living together as man and wife on August 18, 1962. Pleadings. On November 5, 1962 appellee filed a suit for separate maintenance and a property settlement. Appellant filed a general denial, containing allegations that appellee withdrew $1,234.60 from their account before filing her complaint and that appellee was gainfully employed. Later appellant filed a cross-complaint alleging that appellee treated him with indignities, that she abandoned him, that they had been separated more than three years, and that she was able to work but refused to do so. He also asked that temporary maintenance (previously granted) be reduced and that he be given a divorce. Then, in an amended complaint, appellee prayed for an absolute decree of divorce, possession of the home and a division of real and personal property. After extensive hearings over a period of several months the court, on December 16, 1965, entered, in substance, the following decree: (a) appellee was granted an absolute divorce; (b) appellee was given possession of their home with the provision that she be responsible for payment of all taxes, insurance and maintenance expenses thereon; (c) all transfers of stock in Alexander, Inc. (a corporation organized by appellant) made by appellant to his son, Ray, after August 18, 1962 were set aside as being fraudulent transfers; (d) appellant was ordered to transfer to appellee 17,905 shares of stock in said corporation, being one-third of the 53,710 shares owned by him on August 18, 1962; (e) appellee was ordered to give appellant one-half of $375 worth of government bonds held by her (the parties having agreed on a division of two parcels of real property), and; (f) appellant was ordered to pay appellee $100 per month as alimony. The trial court retained jurisdiction of the cause to enforce and protect the rights' of the parties. For a reversal appellant relies on only three points: One, the court erred in cancelling the stock (in Alexander, Inc.) which appellant had transferred to his son; Two, it was error to allow appellee alimony, and; Three, it was error not to require appellee to account for money she had used for certain joint accounts. One. We agree with appellant that it was error to cancel the stock transfers because the son was not made ■a party to the litigation. See: City of Bentonville v. Browne, 108 Ark. 306 (p. 311), 158 S. W. 161, and Bryan v. Akers, 177 Ark. 681 (p. 682), 7 S. W. 2d 325. We also agree with appellant’s statement that it was not neces sary to cancel the stock held by the son because appellant “was left with adequate stock to make the transfer [to appellee] without setting aside the transfer to the son of the parties hereto”. It appears likely that the trial court meant to cancel only such transfers as was ncessary to protect appellee, but the decree is modified as indicated. Two. We do not agree with appellant’s contention that it was error to allow alimony to appellee. In the case of Lewis v. Lewis, 202 Ark. 740, 151 S. W. 2d 998 there appears this statement. “This court has many times announced the rule that in fixing the amount of alimony to be awarded a wide discretion rests with the trial court and unless there appears to be a clear abuse in the exercise of this discretion it will not be disturbed by this court. ’ ’ In that case we also pointed out that consideration should be given to the ability of the husband to pay and the station in life of the parties. To the same effect see: Foster v. Foster, 216 Ark. 76, 224 S. W. 2d 47 and Harbour v. Harbour, 230 Ark. 627, 324 S. W. 2d 115. We may also add that, in fixing the amount of alimony, the financial needs of the wife should not be overlooked. When the testimony in this case is weighed in the light of the above rules we are unable to say the trial court abused its sound discretion in allowing the amount of alimony above mentioned. The record reveals that appellant and his son had withdrawn in excess of $25,000 from the corporation in less than a year, not counting an expensive boat bought for them or the corporation; that he draws an annual salary in excess of $5,000 not counting an expense account, and; that he owns real estate of undisclosed value. The record also discloses that appellee was earning $88.42 per month at the time of the divorce; that the house in which she lives is in need of extensive repairs and that she is not able to work regularly because of bad health, being afflicted with bronchitis and chronic kidney and bladder trouble. She testified that she needed approximately $250 per month for living expenses. Three. Finally, appellant contends the court “erred in declining to require appellee to deduct, from her portion of the marriage estate, the sums which she had withdrawn from the estate personally”. We find no merit, and no reversible error, in this contention. The record discloses there was a deposit in the name of appellant or appellee in the sum of $1,234 which appellee withdrew because (she testified) she needed the money for living expenses due to the fact that appellant failed to pay support money as had been previously ordered by the court. The above money, according to appellee, was deposited in the Union National Bank and used as mentioned above. It appears that appellee in 1962 earned $1,100 which she deposited in another building and loan association, which, of course, was her. own money. It must be presumed that the trial court, took into consideration the above facts, together with appellee’s health and inability to work regularly, in making the proper settlement, and we are unwilling to say there was any abuse of discretion. The decree, as modified, is therefore affirmed. Appellant is ordered to pay all costs incident to this appeal including a fee for appellee’s attorney in the sum of $200. Modified and affirmed. 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INTRODUCTORY FACTS: Osro Cobb, Justice. This appeal involves a dispute between claimants to the proceeds of insurance benefits which became due following a total loss of a family residence by fire. In February, 1960, appellee and his wife at that time, Mary Barner, executed their separate warranty deeds conveying a certain parcel of land with the family residence thereon to their son, Melvin Gordon Barner, then approximately four years of age. The record in this case does not indicate that there was any insurance on the residence at the time of the deeds, nor did the deeds contain any language purporting to assume any obligation with reference to the carrying of any insurance on the property. Furthermore, the deed of appellee expressly reserved a life tenancy, use and control of the property. It appears from this record that appellee and Mary Barner were subsequently divorced, with the mother taking custody of their young son. Appellee remarried and continued to reside in the same residence. On February 19, 1964 appellee purchased an insurance policy providing three years coverage as to fire damages to the residence in the principal sum of $8,-000.00. On April 3, 1965 the residence was totally destroyed by fire. Appellee made seasonable demand upon the insurance company to settle the claim. The insurance company, while conceding its policy obligation to pay the loss, declined to make settlement with appellee for the stated reason that there was uncertainty as to the legal claimant or claimants to the funds. Thereafter, appellee brought suit against the insurance company. The insurance company, instead of paying the funds represented by the loss into the registry of the court, filed an answer and cross-complaint making Melvin Gordon Barner a third party defendant, upon the allegation that he was a necessary party to the action. Subsequently, Mary Barner filed an intervention in her capacity as natural guardian and next friend on behalf of Melvin Gordon Barner, contending that intervenor was a necessary party and that the court should determine the respective value of the life estate interest of appellee in the funds due from the insurance company, and that the court should enter judgment directing legal and equitable pro rata payment of said funds between appellee and the intervenor. The intervention alleged an equitable lien on the funds and the intervenor asked the court to transfer the action to equity. Appellee moved to strike all of the pleadings relating to the assertion of any claim to the proceeds of the insurance loss by Melvin Gordon Barner. Following hearing, the court sustained appellee’s motion to strike and entered judgment solely for appellee in the sum of $8,000.00, plus statutory penalties and attorney’s fee. The insurance company did not prosecute an appeal from the judgment of the trial court. The case therefore reaches us for appellate review solely upon the contention that Melvin Gordon Barner had a legal right to some part or all of the insurance funds paid as a result of the fire. ■ Appellant insists that his interest' in the proceeds of the insurance policy is established by the fact that appellee, M. I. Barner, as life tenant of the insured property, held the position of a fiduciary to appellant, as the remainderman of the property. On virtually identical fact situations we have held to the contrary. In Jackson v. Jackson, 211 Ark. 547, 201 S. W. 2d 218 (1947), we quoted with approval from Harrison v. Pepper, 166 Mass. 288, 44 N. E. 222, as follows: “It is plain that the plaintiff is not entitled to recover unless she has some claim upon the funds in the hands of the defendant. In the absence of any thing that requires it in the instrument creating the estate, or of any agreement to that effect on the part of the life tenant, we think that the life tenant is not bound to keep the premises insured for the benefit of the remainderman. Each can insure his own interest, but, in the absence of any stipulation or agreement, neither has any claim upon the proceeds of the other’s policy, any more than in the case of mortgagor and mortgagee, or lessor and lessee, or vendor and vendee. . . . The contract of insurance is a personal contract, and inures to the benefit of the party with whom it is made, and by whom the premiums are paid.” In the Jackson case, we also quoted with approval 33 Am. Jur., Life Estates, Remainders, etc., § 332 p. 838, as follows: “It is clearly the general rule that where a legal life tenant insures the property in his own name and for his own benefit and pays the premiums from his own funds, he is, at least in the absence of a fiduciary relationship between him and the remainderman existing apart from the nature and incidents of the tenancy itself, or of an agreement between him and the remainderman as to which of them shall procure and maintain insurance, entitled to the proceeds of the insurance upon a loss; and the fact that the insurance was for the whole value of the fee is not generally regarded as affecting the right of the life tenant to the whole amount of the proceeds.” We have consistently followed the rule announced in the Jackson case. See Coleman v. Gardner, 231 Ark. 521, 330 S. W. 2d 954 (1960), and Brown v. Brown, 233 Ark. 422, 345 S. W. 2d 27 (1961). In the instant case, appellant did not show or plead that there was any agreement or stipulation that would produce a fiduciary relationship. Furthermore, when the mother took custody of Melvin Gordon Barner she became the sole natural guardian of his person and estate. Ark. Stat. Ann. § 57-646 (1965 Supp). We therefore have concluded that the trial court properly determined that appellant had no interest in the proceeds of the insurance policy and properly granted appellee’s motion to strike the intervenor’s -.claim thereto. Affirmed.	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Osro Cobb, Justice. On April 5, 1946, appellee Rich purchased some 14 lots located in the Braley Addition to the City of Lincoln, Washington County, Arkansas from the State of Arkansas, and received a tax deed thereto. This is an appeal from a decree of the trial court quieting title to the 14 lots in appellee. Appellants claimed title to these lots under a Sheriff’s Deed dated November 8, 1946; also, by adverse possession. Appellants further contend that title should be quieted and confirmed in them. After hearing, the Chancellor found for appellee and entered a decree confirming title in appellee. On appeal, appellants urged two points for our consideration : (1) That the original suit was in fact a suit in ejectment brought by appellee, who was not then in possession, and that no equity jurisdiction existed as to the cause of action asserted. (2) That the Chancellor erred in quieting and confirming title in appellee. Appellants’ Point 1 — The question of equity jurisdiction. When appellants answered appellee’s complaint and prayed for a decree quieting and confirming their title to the subject lands then in their possession, they themselves sought equitable relief and it gave the equity court jurisdiction as to the entire controversy between the parties. This precise question under identical facts was before this court in an early case, Goodrum v. Ayers, 56 Ark. 88-93, 19 S. W. 97, (1892) in which we said: “Conceding that the plaintiff was not in possession of the land, and for that reason could not maintain a suit to quiet title, it cannot avail the appellant; for he filed a cross-bill seeking to quiet his own title, and it gave the court jurisdiction of the entire controversy. ’ ’ We' know of no decision of this court, and certainly appellants have failed to cite any such decision, wherein we have deviated from the rule announced in Goodrum v. Ayers, supra. Indeed in a considerable number of cases we have followed the rule. For example, see N.ot tingham v. Knight, 238 Ark. 307, 379 S. W. 2d 260 (1964); Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660 (1950); Spikes v. Ribbard, 225 Ark. 939, 286 S. W. 2d 477 (1956). We therefore find no merit in appellants’ contentions as to Point 1. Appellants’ Point 2 — The claim of title by adverse possession. Appellants’ claim to title by adverse possession was not predicated upon their own possession, which was limited to a period of approximately four years, but upon the alleged possession of their predecessor in title, Alvin B. Brown, father of Barline Spears, one of the appellants. We test this factual issue in the light of the proof adduced as between the respective claims on behalf of Alvin B. Brown and appellee. It is undisputed: (a) that appellee obtained a tax deed from the State of Arkansas on April 5, 1946 conveying subject lots to him and that said deed was recorded by appellee on April 10, 1946, and that thereafter appellee has paid the annual taxes thereon. (b) That Brown shortly after appellee recorded the deed and acting upon the advice of his attorney, went to see appellee in an effort to come to some settlement with appellee concerning the lots. Brown testified that appellee demanded $800.00 for the lots and no settlement was made. (c) Brown testified that he tried to assess the lots but that the assessor refused same for the reason that they were already assessed in the name of appellee. (d) When a sewer district was formed embracing lands in the vicinity of subject lots and including sub ject lots, Brown made no effort at any time to pay benefits assessed for the improvement district against the lots. (e) Brown gave the sewer district contractor an easement across his farm bnt never undertook to execute any easement crossing the lots in issue. (f) "When Brown traded with appellants in 1960, he conveyed 10 acres by a warranty deed and conveyed his interest in the lots in controversy by a separate quitclaim deed. (g) Appellant, Alvia Spears, in the course of his testimony stated that Brown had told him about Mr. Rich’s (appellee’s) land. (h) That Brown did not get his deed from the sheriff of Washington County until November 8, 1946, some seven months after the execution and delivery of the deed of the State of Arkansas to appellee, and Brown did not record his sheriff’s deed until February 26, 1965, which was after the filing of the instant suit. (i) That Brown had the lots under fence and in use as a pasture for more than ten years prior to the transfer of his interest to appellants. Appellee testified that shortly after he had acquired the deed from the State and had filed his deed of record in Washington County, that Brown had come to see him and had asked for his permission to pasture livestock on the land, and that he had given Brown such permission and that thereafter no change had been made in that relationship, the use of the land by Brown being at all times a permissive one. Appellee also testified that he made no charge for Brown’s use of the land nor did Brown offer to pay him anything for pasture purposes. After hearing the evidence introduced, the Chancellor found against appellants on the fact question involving the alleged acquisition of title to subject lands by adverse possession. We have concluded that this finding against appellants on this issue was supported by a clear preponderance of the evidence and, under such circumstances, such finding will not be disturbed here on appeal. Orrell v. E. C. Barton & Co., 240 Ark. 211, 398 S. W. 2d 685 (1966); Williams v. Walker, 148 Ark. 49, 229 S. W. 28 (1921); Ellis v. Blankenship, 207 Ark. 739, 182 S. W. 2d 756 (1944). We therefore find no merit in appellants’ contentions as to Point 2. Having found no merit in any of the contentions of appellants, the decree of the trial court is affirmed.	[ -16, -18, -11, 60, 40, -32, 58, -88, 99, -89, 39, 83, 47, -53, 16, 125, -29, 57, 117, 104, -57, -78, 71, -61, 83, -77, 89, -59, -67, -52, -26, -41, 76, 33, -54, 85, 66, -30, -59, 28, -114, 13, -101, 77, -39, -64, 52, 43, 80, 15, 33, -121, -13, -84, 17, 67, 109, 44, -55, -68, 80, 120, -98, 13, 127, 7, 49, 37, -88, 33, 88, 26, -112, 121, 4, -24, 51, -90, -126, 116, 9, -101, 40, 36, 103, 18, 109, -25, -72, 8, 46, 126, 29, -90, -110, 88, 75, 8, -105, -99, 125, 0, -57, -10, -18, -51, 92, 108, 15, -50, -106, -93, -115, -72, -112, 3, -29, -121, 48, 80, -49, -58, 93, 71, 86, -101, -114, -48 ]
Carleton Harris, Chief Justice. Sarah Panich, a resident of Marianna, Arkansas, died testate on March 8,1965. Under the provisions of her will, all of her property was devised and bequeathed to Ike Panich and David D. Panich, who were named co-executors. The will was admitted to probate on March 17, 1965, the nominated co-executors being appointed co-executors of the estate. On September 7, 1965, Dr. Mac McLendon of Marianna, appellee herein, filed a claim against the estate in the amount of $1,350.00, the claim being set out in a statement entitled, “To Balance Account Bendered.” Charges were shown in the amount of $150.00 per month from March, 1963, to December, 1963, both inclusive, and a like sum per month for December 1964, to February, 1965, both inclusive. The entire amount of the claim totaled $2,850.00, but credits were reflected in the amount of $1,500.00, leaving a balance of $1,350.00. A motion was filed by the executor, David D. Panich, appellant herein, to make the claim more definite and certain, and McLendon responded, setting out the basis for the amount sought, the answer reflecting the claim related to professional services rendered to Miss Panich. On hearing, the court allowed the claim, and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erroneously permitted appellee to change his cause of action, and it is then contended that the evidence was insufficient to establish the amount of the claim. We proceed to a discussion of these points in the order listed. The first contention is based upon the fact that Dr. McLendon’s claim was a statement of account setting forth only charges and credits, without giving the reason for the alleged indebtedness. Before the hearing commenced, counsel for the appellant stated to the court that appellant objected to the claim and any testimony that might be taken in support of it, because it did not comply with Ark. Stat. Ann. § 62-2603 (Supp. 1965), in that it did not describe the nature of the claim. Counsel asserted that "it might be for professional services rendered; it might be for medicines furnished or prescribed ; it might be for a personal debt, or it might he for anything.” He objected to hearing proof, stating, “So, if Your Honor please, the nature of the debt has not been stated.” Appellant complains that the court permitted Dr. McLendon to establish the amount of his claim on a quantum meruit basis, and that he was not prepared to defend against this pleading, his understanding being that the claim was predicated upon an oral contract between appellee and Miss Panich as to the amount of the doctor’s charges for services rendered. We do not agree with appellant that error was com mitted. This particular attack appears to be presented fpr the first time in this court, and there appears no objection during the trial in line with the present argument. Appellant’s objection went only to the sufficiency of the claim itself (because the nature of the indebtedness was not stated in the original claim filed); however, the answer filed in response to appellant’s motion to make more definite and certain, gave the information that the claim was for professional services, and the court exercised its discretion in permitting the amendment. This was done at the very outset of the trial, and before the introduction of any proof. Appellant did not seek a continuance, and permitted all six witnesses who testified for appellee to offer their evidence without objection. The evidence of the several doctors who testified related to the reasonableness of Dr. McLendon’s charges on a quantum meruit basis. The court was entirely within its rights in permitting the amendment, and did not abuse its discretion. See, among many cases, Missouri Pacific Transportation Company v. Brown 193 Ark. 304, 99 S. W. 2d 245; Missouri Pacific Transportation Company v. Williams, 194 Ark. 852, 109 S. W. 2d 924; Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217. Also, the particular argument here offered, as previously stated, was not presented to the Probate Judge, and we have repeatedly held that a litigant cannot, on appeal, raise an issue for the first time in this court. Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330. Nor do we agree that the evidence was insufficient to establish the claim. Dr. McLendon testified that his charges for house calls are $5.00 each, and that he was due, at the time of the trial, a balance of $1,350.00. He, of course, could not testify as to any contract with the deceased because of the provisions of schedule § 2 Arkansas Constitution of 1874. Mrs. McLendon, who at times works with her husband in his office, testified that Miss Panich called the doctor numerous times between March, 1963, and February, 1965. The witness said that Miss Panich required Dr. McLendon’s services three or four times a day during the period of time mentioned, and that some of the visits made were at night. Virginia Parnell, a practical nnrse, employed by appellee during the period in question stated that she saw Sarah Panich every day, sometimes as much as three or four times per day; that she would take Miss Panich medicine; that on numerous occasions, ‘ ‘ she let me give her shots.” Mrs. Parnell testified that Dr. McLendon would go to the home of this patient, upon request, five or six times a day. Dr. Dwight W. Gray, of Marianna, testified that Miss Panich was his patient for three months during 1962, and he administered demerol to her for pain. The doctor said that he or his office nurse would visit her two or three times on some days. It was the opinion of the witness that a charge of $150.00 per month was a reasonable charge by a doctor who was called upon to render service to his patient three, four or five times per day. Dr. William C. Hayes testified that Miss Panich was a patient of his from 1946 until about 1960, and that when he last treated her, she required daily medication. He agreed with Dr. Gray that a charge of $150.00 per month would be a fair amount for the services that Dr. McLendon testified he rendered. Appellant complains that there is no proof that there was an express or implied agreement that Miss Panich would pay for the services heretofore mentioned, but we think the proof warrants an inference that this was true. Certainty, there is no indication that Dr. Mc-Lendon was making these visits with no expectation of receiving remuneration. Let it be remembered that absolutely no evidence was offered to contradict the testimony heretofore referred to, so that the entire testimony, including Dr. McLendon’s testimony, that he was due a balance of $1,350.00 is completely undisputed. It is established that Miss Panich was in need of medical services several times per day, and this fact was testified to by Doctors Gray and Hayes, who treated this patient for some time before Dr. McLendon became the physician for Miss Panich. Dr. Hayes testified that, even in 1959 or 1960, when he last treated her, her condition required daily medication, and this, of course, was some period of time before Dr. McLendon entered the case. It would appear, under the evidence, that as her condition worsened, more medication, and more visits were required. Appellant complains that the charges were made on a monthly basis, and insists that allowance of same is improper, because the exact number of visits, together with the charge for same, is not shown. The simple answer to this is that, under the evidence, appellant is in no position to complain, for the charges, based on specific visits to the home would have been far greater than the amount of the claim filed. The testimony reflected that the ordinary charge for a home visit by doctors in Marianna was $5.00 per visit, and simple mathematics establishes that, during this two-year period of time, if Dr. McLendon only made one visit per day the charges would amount to something over $150.00 per month. One call per day is an inappreciable number, as it relates to the overall number of visits testified about during the trial. The court found that the claim fairly and justly represented the value of the services rendered, and we are unable to say that this finding was against the preponderance of the evidence. Affirmed. Amsler, J., not participating. The record does not reflect whether David D. Panich, subsequent to the issuance of letters testamentary, became sole executor of the estate, but he is the sole appellant. Miss Panich was suffering from cancer of the lung, and also an arterial disease, which had affected her lower limbs, and prevented her from moving about, except on crutches.	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Conley Byrd, Justice. This litigation arises as a result, of the “one man, one vote” decisions of the United States Supreme Court , and the case of Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965). Appellant Mark Block, a qualified voter, has brought this declaratory judgment action against the five Senators of the eighteenth senatorial district to determine whether the Senate must be divided into two classes by lot in accordance with Section 6 of Amendment 23 to the Constitution of the State of Arkansas. Appellees, Ben Allen, Max Howell, Dan Sprick, Joe Ford and Oscar Alagood, being the five Senators of the eighteenth senatorial district, filed a demurrer to the complaint which the trial court sustained. In sustaining the demurrer, the trial court held that Amendment 23, Section 6, the Senate must be divided of Arkansas was not applicable. While we agree that the demurrer should have been sustained, we do not adopt the theory of the trial court. Appellant contends that the apportionment made by The Board of Apportionment following the cases of Yancey v. Faubus, supra, and Faubus v. Kinney, 239 Ark. 443, 389 S. W. 2d 887 (1965), is but an apportionment following the 1960 federal census, and that under Amendment 23, Section 6, the Senate must be divided into two classes by lot. Appellant’s theory is that Amendment 45 has been voided in its entirety by the “one man, one vote” decisions, since the sole purpose of Amendment 45 was to freeze the senatorial apportionment existing at the time of its adoption in 1956. Appellees first take the position that Amendment 45 is controlling and that under that amendment a Senator is elected for a term of four years. For their alternative position, appellees contend that even if we should decide that Amendment 23 is the controlling law, by virtue of the provisions of Section 4 thereof the Senate will not be required to divide itself into two classes by lot until after an apportionment is made following a federal census. The historical background out of which this problem arose is hereinafter set out to give a better understanding of the problem involved. The 1874 Constitution of Arkansas, Art. VIII, § 2, provided that the legislature should from time to time divide the state into convenient senatorial districts, having not more than 35 nor less than 30 Senators. Article V, § 3 provided that at the first session the Senators should divide themselves into two classes by lot, in which case the first class would hold office for two years only but thereafter all Senators would be elected for four-year terms. In 1936, Amendment 23 to the Constitution of Arkansas was adopted. This amendment, providing for 35 Senators, set up a Board of Apportionment, consisting of the governor, secretary of state, and attorney general. The Board of Apportionment had the imperative duty to make apportionment of the Representatives and Senators in accordance with population as shown by the federal census within 90 days after January 1, 1937, and thereafter on or before February 1 immediately following each federal census. Section 6 of this amendment provided that at the next general election following any .¡such apportionment, the Senators and Representatives should be elected in accordance with the apportionment, and furthermore, that the Senate at the first regular session succeeding any apportionment so made “. . .shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next apportionment hereunder.” This amendment also prohibited the division of a county in the formation of senatorial districts. As far as the problem here is concerned, Amendment 23 was before this court twice following the 1940 decennial census. No change was made in any senatorial district following the 1940 census, and in Bailey v. Abington, 201 Ark. 1072, 148 S. W. 2d 176 (1941), and Butler v. Democratic State Comm., 204 Ark. 14, 160 S. W. 2d 494 (1942), we held that where no change was made in the geographical boundaries of any senatorial district, it was not necessary to elect an entirely new Senate nor for the Senate to divide itself into two classes by lot as provided in Section 6 of the amendment. We there held, however, that if there was any change in any senatorial district following a decennial census, an entirely new Senate must be elected at the next general election and that at the first regular session following such election it would be necessary for the Senate to divide itself into two classes by lot as provided in Amendment 23, Section 6. Following the 1950 decennial census, senatorial apportionment was again before this court in Smith v. Board of Apportionment, 219 Ark. 611, 243 S. W. 2d 755 (1951), and Pickens v. Board of Apportiomnent, 220 Ark. 145, 246 S. W. 2d 556 (1952). These two cases were direct appeals from the action of The Board of Apportionment pursuant to Amendment 23, Section 5, which confers original jurisdiction on this court in such matters. The 1950 reapportionment and the subsequent division of the Senate into two classes by lot, for the purpose of the two- and four-year term provisions of Section 6 of Amendment 23, were not popular with members of the Senate. The Senators who ostensibly were elected to a four-year term in 1950, and some whose districts were not affected, found themselves running* for office again in 1952, and some of them subsequently found themselves running for office again in 1954 because ■ of the “division into two classes by lot” required by Section 6 of the amendment. In 1956 the problem of apportionment was temporarily solved by the passage of Amendment 45 to the Constitution of Arkansas. By this amendment the senatorial districts were frozen in the manner set out in Pickens v. Board of Apportionment, supra, and the Sen ate was removed from the jurisdiction of The Board of Apportionment. Following the “one man, one vote” decisions of the United States Supreme Court, that portion of Amendment 45 which froze the senatorial districts was declared void by a three-judge federal court in Yancey v. Faubus, supra. ' Since the “oneman, one vote” decisions voided so many sections of our Constitution, the decision by this court in Faubus v. Kinney, supra, was expedited through ■ the courts to get a judicial determination to see if the .portions of Amendment 45, which established 100 members in the House of Representatives and 35 members in the Senate, were still valid and, if so, whether the apportionment ordered by the federal court in Yancey v. Faubus, supra, should be made by the legislature or by The Board of Apportionment. We there held that the portions of Amendment 45 which provided for 100 members in the House of Representatives and 35 members in the Senate were still valid and that The Board of Apportionment set up thereunder was the proper body to reapportion the legislature as directed by the federal court in Yancey v. Faubus, supra. Following Faubus v. Kinney, supra, The Board of Apportionment, pursuant to the directions of Yancey v. Faubus, supra, reapportioned the state upon the basis of ‘1 one man, one vote, ’ ’ but in doing so left unaffected the districts of nine Senators who had ostensibly been elected to a four-year term in 1964. In Catlett v. Jones, 240 Ark. 101, 398 S. W. 2d 229 (1966), we held that these nine Senators could serve out the remainder of .their four-year terms without standing for re-election in 1966. While there is logic and apparent merit in appellees’ contention that we cannot hold Section 6 of Amendment 23 applicable at this session if we follow our previous. decisions— i. e., Bailey, Butler and Catlett, supra — we do not at this time find ourselves in a position to make a final determination upon the merits. There is an obvious detect in the parties defendant, since only 'five members of the Senate are made parties to this declaratory judgment action. See Ark. Stat. Ann. § 34-2510 (Bepl. 1962), which provides as follows: “Parties. — When the declaratory relief is sought, all persons shall be made parties who have or claim any interest which would be affected by the declaration, and no declaration shall prejudice the rights of persons not parties to the proceeding. . . [Acts 1953, No. 274, § 10, p. 802.]” • Consequently, the decree of the trial court will be affirmed upon the ground that the demurrer should have been sustained because of the defect in the parties defendant. The gravity of this defect is pointed up by reason -of the fact that any decision as to these five members could not control the action of the Senate. The constitutional provision sought to be invoked would require action by the Senate, not individual Senators. Thus, no effective relief could have been granted to either party in this case. Affirmed as modified. Harris, C. J., and Fogleman, J., concur. AMENDMENT NO. 23 Sec. 1. Board of apportionment created — Powers and duties. — A board to be known as “The Board of Apportionment,” consisting of the Governor (who shall be Chairman), the Secretary of State and the Attorney General is hereby created and it shall be its imperative duty to make apportionment of representatives and senators in accordance with the provisions hereof; the action of a majority in each instance shall'be deemed the action of said Board. Sec. 2. One hundred members in house of representatives. — Apportionment.—The house of representatives shall consist of one hundred members and each .county existing at the time of any apportionment shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties of the State, in accordance with a ratio to be determined by the population of said counties as shown by the Federal census next preceding any apportionment hereunder. Sec. 3. Senatorial districts — Thirty-five members of senate. — The Senate shall consist of thirty-five members. Senatorial districts shall at all times consist of contiguous territory, and no county shall be divided in the formation of such districts. “The Board of Apportionment” hereby created shall, from time to time, divide the State into convenient senatorial districts in such manner as that the Senate shall be based upon the inhabitants of the State, each Senator representing, as nearly as practicable, an equal number thereof; each district shall have at least one Senator. Sec. 4. Duties of board of apportionment. — The Board shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following* each Federal census, said Board shall reapportion the State for both Representatives and Senators, and in each instance said Board shall file its report with the Secretary of State, setting forth (a) the basis of population adopted for representatives; (b) the basis for senators; (c) the number of representatives assigned to each county; (d) the counties comprising each senatorial district and the number of senators assigned to each, whereupon, after thirty days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period. Sec. 5. Mandamus to compel board of apportionment to act. — Original jurisdiction (to be exercised on application of any citizens and taxpayer) is hereby vested in the Supreme Court of the State (a) to compel (by mandamus or otherwise) The Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by The Board in making any such apportionment; provided any such application for revision shall be filed with said Court within thirty days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Conid, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon be and become a substitute for the apportionment made by the Board. Sec. 6. Election of senators and representatives. —At the next general election for State and County officers ensuing after any such apportionment, senators and representatives shall be elected in accordance therewith and their respective terms of office shall begin on January 1 next following. At the first regular session succeeding- any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder. AMENDMENT NO. 45 § 1. Board of apportionment created ■ — • Powers and duties. — A Board to be known as “The Board of Apportionment,” consisting of the Governor (who shall be Chairman), the Secretary of State and the Attorney General is hereby created and it shall be its imperative duty to make apportionment of representatives in accordance with the provisions hereof; the action of a majority in each instance shall be deemed the action of said board. § 2. One hundred members in house of representatives. — Apportionment.—The House of Beprésentatives shall consist of one hundred members and each county existing at the time of any apportionment shall have at least one representative; the remaining members shall be equally distributed (as nearly as practicable) among the more populous counties of the State, in accordance with a ratio to be determined by the population of said counties as shown by the Federal census next preceding any apportionment hereunder. § 3. Senatorial districts — Thirty-five members of senate. — The Senate shall consist of thirty-five members, Senatorial districts as now constituted and existing, as heretofore directed by the Supreme Court of Arkansas in the case of Piclcens v. Board of Apportionment, 220 Ark. 145, 246 S. W. 2d 556, shall remain the same and the number of Senators from the districts shall not be changed. § 4. Duties of board of apportionment. — On or before February 1 immediately following each Federal census, said Board shall reapportion the State for Bepresentatives, and in each instance said Board shall file its report with the Secretary of State, setting forth (a) the basis of population adopted for representatives; (b) the number of representatives assigned to each'county; whereupon, after 30 days from such filing date, the apportionment thus made shall become effective unless proceedings for revision be instituted in the Supreme Court within said period. § 5. Mandamus to compel board of apportionment to act. — Original jurisdiction (to be exercised on application of any citizens and taxpayers) is hereby vested in the Supreme Court of this State (a) to compel (by mandamus or otherwise) the Board to perform its duties as here directed and (b) to revise any arbitrary action of or abuse of discretion by the Board in making such apportionment; provided any such application for revision shall be filed with said Court within 30 days after the filing of the report of apportionment by said Board with the Secretary of State; if revised by the Court, a certified copy of its judgment shall be by the clerk thereof forthwith transmitted to the Secretary of State, and thereupon he and become a substitute for the apportionment made by the Board. § 6. Election of senators and representatives.— At the next general election for the State and County officers ensuing after any such apportionment, Representatives shall be elected in accordance therewith, Senators shall be elected henceforth according to the apportionment now existing, and their respective terms of (office shall begin on January 1 next following. Senators ishall be elected for a term of four years at the expiration of their present terms of office. Carleton Harris, Chief Justice, concurring. I concur in the opinion handed down by the court, since I would also affirm, but for an additional reason. I agree that there is a defect of parties, and, strictly speaking, other members of the Senate should have likewise been named party defendants. However, this matter was mentioned to counsel during oral argument, and I gained the impression, at that time, that the entire Senate was interested, and desired a decision on the merits. The defect of parties is not raised in the briefs. In Faubus, Governor v. Kinney, 239 Ark. 443, 389 S. W. 2d 887, we held only those provisions of Amendment 23 to the Constitution of Arkansas invalid, which were in conflict with the Federal Court decision of Yancey v. Faubus, 238 F. Supp. 290 (E. D. Ark. 1965). The provision, hereafter quoted, of Section 6 of Amendment 23, was not affected in Faubus v. Kinney, supra. That provision is as follows: “* * * At the first regular session succeeding any apportionment so made, the Senate shall be divided into two classes by lot, eighteen of whom shall serve for a period of two years and the remaining seventeen for four years, after which all shall be elected for four years until the next reapportionment hereunder.” The words, “any apportionment,” refer to the reapportionment made following the Federal csnsns; Section 4 of Amendment 23 provides: “The Board shall make the first apportionment hereunder within ninety days from January 1, 1937; thereafter, on or before February 1 immediately following each Federal census (my emphasis), said Board shall reapportion the State for both Representatives and Senators,* * In Butler v. Democratic State Committee, 204 Ark. 14, 160 S. W. 2d 494, we held that Amendment 23 was intended to apply only to apportionments of the House and Senate made after each Federal decennial census in the state, and further held that, if no change was -required in the geographical boundaries of any senatorial district (as a result of an apportionment made pursuant to this census), no drawing of lots for two and four-year terms was necessary, and each Senator would be entitled to serve a four-year term. Accordingly, it is my view that it would be improper to draw lots for two and four-year terms at the present session of the General Assembly; rather, there is no occasion for a drawing until at least after the 1970 Federal census has been taken. I therefore agree with the trial court to the extent that Amendment 23 does not require a drawing for terms at this session of the Legislature. The reapportionment was directed under the authority of several cases, decided by the United States Supreme Court, viz., Baker v. Carr, 369 U. S. 186, decided in 1962, and the following cases, decided in 1964: Reynolds v. Sims, 377 U. S. 533; WMCA, Inc. v. Lomenzo, 377 U. S. 633; Maryland Committee for Fair Representation v. Tawes, 377 U. S. 656; Davis v. Mann, 377 U. S. 678; Roman v. Sincock, 377 U. S. 695; Lucas v. Colorado General Assembly, 377 U. S. 713.” Faubus v. Kinney, 239 Ark. 444, Footnote 2. Amendments 23 and 45 are set out in full as an appendix to this opinion.	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Paul Ward, Justice. A complaint was filed by Attorney Paul K. Eoberts (appellee, represented by another attorney) to collect a fee from the Metropolitan Life Insurance Company (appellant) based on legal services rendered in an attempt to collect on an insurance policy written by appellant in which his client was the beneficiary. A jury trial resulted in a judgment in favor of appellee for $1,000, and this appeal follows. Facts. The basic background facts, about which there is no dispute, are as follows. On November 1, 1950 appellant issued its policy to George 0. Henley undertaking to pay, at his death, the sum of $5,000 to liis wife, Mrs. Lela M. Henley. Mr. Henley died January 5, 1964 and when payment was not promptly paid Mrs. Henley on July 22, 1964, employed appellee to effect settlement, agreeing to pay a fee. Appellee promptly gave appellant notice of his employment and forthwith began writing letters and gathering information, with appellant’s knowledge and consent, in an effort to effect payment. These activities by appellee continued until March 4, 1965 when he was notified by Mrs. Henley that his employment was terminated. This information was also made known to appellant. On May 12, 1965 appellant wrote appellee it would pay Mrs. Henley the $5,000 when she executed certain forms and returned them, which she did. On June 3,1965 appellee wrote appellant that he had ‘ ‘ expended a great amount of labor and time in the prosecution of Mrs. Henley’s claim”, and that he was impressing a lien, under Ark. Stat. Ann. § 25-301 (Eepl. 1962) on the proceeds of the policy. Eeplying to this letter on June 10,- •196'5 appellant wrote appellee stating, in substance, that Ms claim had no merit, and that it would pay the $5,000 to Mrs. Henley “unless within ten days from the date of this letter you are able to restrain the company from doing so by legal process”. The money was paid to Mrs. Henley and appellee filed this action on July 7, 1965, asking for a reasonable attorney’s fee on a quantum meruit basis. On appeal appellant urges only two points for a reversal. One. It is that “appellee was not entitled to an at7 torney’s lien because he failed to comply with requirements for notice in the statute”. The statute mentioned above is Ark. Stat. Ann. § 25-301 (Repl. 1962). This statute is a lengthy one and it would serve no useful purpose to quote it in full, espe7 cially so due to the point here raised. Suffice to point out th.e following language: “From and after service upon the adverse party a written notice signed by the client and by the attorney ... to be served by registered mail . . . .” (Emphasis ours.) Referring to the above language it is appellant’s sole contention that the notice given by appellee in his letter written on June 3, 1965 (mentioned previously) was not signed by the client, Mrs. Henley. It is true that Mrs. Henley did not sign the notice, but we cannot agree that this omission is fatal. As we interpret the intent and purpose of the statute it was enacted to make sure (in this case) that appellee represented Mrs. Henley and that appellant would be aware of appellee’s intention to claim a lien, for his fee, on the proceeds of the litigation before they were paid to the client (Mrs. Henley). We hold that the notice here given by appellee was a substantial compliance with the above provision of the statute, under the undisputed facts as previously set out. Here appellant was fully, aware of appellee’s claim before paying the money to Mrs. Henley. This view is supported by language found in the emergency clause of Act No. 306 of 1941 (said; act being 25-301), where it explains the reason for avoiding the “necessity of filing suit under existing laws in order to establish the lien of attorneys. . .” This Court has held that a statute of this kind should be liberally construed: St. Louis, Iron Mountain & Southern Railway Company v. Hays and Ward, 128 Ark. 471 (p. 478), 195 S. W. 28; Slayton v. Russ, 205 Ark. 474 (p. 476), 169 S. W. 2d 571, and Whetstone v. Daniel, 217 Ark. 899 (p. 901), 233 S. W. 2d 625. Having concluded that the notice here given by appellee was a substantial compliance with the statute, it follows that appellee is entitled to a “ reasonable fee for his services ’ ’, as was held in Whetstone v. Travis, et al, 223 Ark. 856 (p. 858), 269 S. W. 2d 320. Two. We find no reversible error based on this point, which is that the statute does not cover an unmatured contract right. The thrust of appellant’s argument appears to be that no liability or cause of action attached against it until proof was furnished that Mr. Henley was continuously disabled from 1961 to the time of his death (as provided by the terms of the policy), pointing out such proof was not furnished here before appellee gave notice of his claim. It is then pointed out that section 25-301 provides for an attorney’s lien upon his clients cause of action. We cannot agree with the above contention. In the case of Metropolitan Life Insurance Company v. McNeil, 192 Ark. 978 (p. 984), 96 S. W. 2d 476, where this same question was under consideration, we said: “The rule is that liability attaches upon the happening of total and permanent disability, although not recoverable until due proof of disability was made”. In this case there can he no question about “due proof” being made, because the full claim was paid by appellant. Finding no error, the judgment of the trial court is affirmed. Affirmed.	[ 48, -20, -103, -67, 8, -94, 58, -102, 80, -32, 37, -45, -5, -29, 17, 37, -15, -71, 97, 106, -46, -89, 87, 98, -14, -77, -15, -43, -112, 125, -26, 95, 69, 32, 2, -43, -26, -114, -59, -40, 78, 12, 11, -31, -39, -48, 48, -19, 80, 79, 49, -98, -5, 40, 29, 99, 40, 44, 123, -88, -48, -80, -117, 5, 127, 18, -80, 7, -104, 103, 88, 12, -104, -79, 32, -23, 115, -90, -122, 118, 99, -103, 0, 100, 99, 32, 33, -19, -4, -104, 30, -4, 15, -121, -106, 121, 3, 13, -74, 31, 122, 4, 7, -12, -24, 20, 31, 36, 3, -113, -44, -77, -83, -24, -100, -102, -17, -119, 118, 117, -53, -86, 93, -57, 123, -101, 30, -95 ]
George Rose Smith, Justice. Faber Padgett and his wife brought this action against the appellants, Life & Casualty Insurance Company of Tennessee and its agent, A. J. Skinner, to recover damages for injuries sustained when Skinner assaulted and beat Padgett with a heavy stick of wood. The jury’s verdict, against both defendants, awarded Pag'dett $15,000 as actual damages and $35,000 as punitive damages. Mrs. Padgett’s cause of action is no longer in issue. The verdict was against her claim, and she has not appealed. The first question is whether there is substantial evidence to support a finding that Skinner’s tortious assault was committed in the prosecution of his employer’s business. The testimony of Mr. and Mrs. Padgett is so similar that we need not narrate it separately. On the afternoon of February 22, 1965, Skinner called at the Padgetts’ home, a few miles from Conway, to collect premiums upon policies issued to the Padgetts. A dispute arose about whether the Padgetts were behind in the payment of one weekly premium. Skinner attempted to convince the couple, by his collection records, that there was a delinquency, but the Padgetts insisted that their payments were current. Finally Padgett said that he would write to the company and let them straighten it out. Skinner .stamped the floor with anger and said: “Well, you do that.” Two or three times during the altercation Padgett asked Skinner to leave the house. Eventually Skinner did leave, closing the front screen door behind him as he stepped from the living room to the porch. At that point Padgett said: “Don’t come back to my house any more, Mr. Skinner. If that’s the kind of a man you are, I don’t want to have any dealings with you whatsoever.” Skinner answered: “There ain’t nobody going to tell me what I can do and what I can’t do.” With that Skinner put down his satchel of papers, seized a heavy piece of firewood, re-entered the house, and struck Padgett repeatedly about the head. That Padgett suffered serious injuries is not denied. Counsel for Life & Casualty, in arguing that it was entitled to a directed verdict, cite several out-of-state decisions holding that an employer is not liable for his employee’s intentional tort unless the nature of the employment is such as to make the use of force not unlikely. That principle seems really to be a liberalization of the law’s bygone reluctance to hold a master liable for his servant’s intentional torts. “There was once a great deal of conceptual and procedural difficulty in the way of holding the master for the deliberate and other willful wrongs of his servant in any case where such acts were not specifically commanded. . . . But all this is now a matter of history.” Harper & James, Torts, § 26.9 (1956). Prosser takes much the same view, pointing out that the tendency of the modern cases is to hold the employer liable when, as here, the employee loses his temper and attacks the plaintiff during a quarrel arising out of the employment. Prosser, Torts, p. 478 (3d ed., 1964). We think the law as it stands today is fairly summarized in the Restatement of Torts, where it is said that the master is subject to liability for his servant’s intentional tort “if the act was not unexpectable in view of the duties of the servant.” Restatement, Torts (2d), § 245 (1958). For a quarrel to arise in the course of an employee’s attempt to collect money is certainly “not unexpectable.” The jury might well have concluded that disputes over money matters are of such common occurrence that Skinner’s conduct could not reasonably be said to be unforeseeable. Our cases have not been out of step with the trend elsewhere. Not infrequently, in cases similar to this one, our main concern has been whether a dispute arising out of the employment was continuous up to the time of the intentional wrong. Such a case was Bryeans v. Chicago Mill & Lbr. Co., 132 Ark. 282, 200 S. W. 1004 (1918), where we said: “If the quarrel which was started by Breysacre in telling Bryeans that he would have to stop bothering the men in the shop was continuous to the time of the killing, and the killing grew out of such quarrel, then Breysacre at the time of the killing was acting in the scope of his employment. But if the quarrel which was thus started had ceased for an appreciable interval, however short, and was then renewed through the fault of Bryeans and the killing was the result of the quarrel thus renewed by Bryeans, then Breysacre at the time of the killing was not acting within the scope of his authority.” We adhered to that view in American Ry. Express Co. v. Mackley, 148 Ark. 227, 230 S. W. 598 (1921), although there we found from the undisputed proof that there had been an interruption of the quarrel and that the employee renewed it the next day for personal reasons having nothing to do with his employment. In the present case we think it clear that the jury might justifiably have found that the dispute arose out of Skinner’s employment and continued to its conclusion without interruption. Indeed, that was the purport of Skinner’s own testimony, who insisted that he acted merely in self-defense, Padgett being the aggressor. The remaining questions have to do with the award of punitive damages. The appellants contend that under our holding in Dunaway v. Troutt, 232 Ark. 615, 339 S. W. 2d 613 (1960), the plaintiffs waived their claim to punitive damages by suing two defendants and that the trial court erred in permitting the plaintiffs to introduce proof of the financial worth of both defendants. In the Dunaway case we relied upon Washington Gas Light Co.,v. Lansden, 172 U. S. 534 (1898), for our conclusion that a plaintiff waives his right to punitive damages simply by asserting such a claim against two or more defendants. In fact, the Lansden case did not go that far. There the court merely approved the majority rule that one who sues two or more defendants for punitive damages waives his right to prove the financial con dition of any one of them. The conrt went on to say: “This rule does not prevent the recovery of punitive damages in all cases where several defendants are joined.” See also Note, 15 Ark. L. Eev. 208 (1961). We think the law was correctly stated in the Lansden case and that we misconstrued that holding- in Dunaway v. Troutt. In the court below the Padgetts were permitted to prove that Life & Casualty had a net worth of about sixty-one million dollars and that Skinner had a net worth of about one thousand dollars. Under the Lansden case the admission of that evidence was reversible error. Padgett’s attorney argues that regardless of the rule in the case of independent tortfeasors proof of financial worth should be allowed when the defendants are employer and employee. That argument is not sound. The reason for the rule — that one defendant should not be punished on the basis of another defendant’s wealth —applies just as well to employers and employees as to others not standing in that relation. Hence the rule, as one might expect, is applied in master-servant cases. Chicago City Ry. v. Henry, 62 Ill. 142 (1871); Dawes v. Starrett, 336 Mo. 879, 82 S. W. 2d 43 (1935); McAllister v. Kimberly-Clark Co., 169 Wis. 473, 173 N. W. 216 (1919). Does the erroneous admission of the testimony about the appellants’ financial means affect the judgment for actual damages as well? In law cases two issues may be so interwoven that an error with respect to one requires a retrial of the whole case. Mowery v. House, 234 Ark. 878, 355 S. W. 2d 275 (1962). That is the situation here with reference to the compensatory and exemplary damages. It is hardly possible that the jury did not take each into consideration in fixing the other. Furthermore, the inadmissible proof of the defendants ’ worth may have influenced the jury in its assessment of compensatory damages. The only way in which we can with certainty protect the appellants from the possibility of prejudice is to grant a new trial upon all issues. Beversed.	[ -80, 62, -8, -65, 8, -32, 58, 122, 123, 66, -73, 83, -19, -27, 9, 111, -45, 125, 85, 106, -42, -73, 23, 102, -46, -5, 121, 69, -79, 74, -20, -35, 64, 112, 66, 69, -90, 10, -27, 24, -122, -128, -95, -24, -39, -64, 48, 11, 68, 15, 49, -105, -5, 42, 29, -49, 9, 44, 75, -82, 82, -71, -126, 21, 124, 6, -79, 38, -98, 3, 80, 14, -103, 49, 8, -24, 114, -74, -126, 116, 45, -99, 5, 98, 98, 37, -127, -91, 104, -40, -113, -26, -115, -113, 18, 104, 49, 13, -65, -99, 114, 21, 6, 124, -7, 93, 5, 104, 3, -122, -108, -79, -113, -94, -98, 26, -17, 31, 50, 113, -49, -86, 93, 69, 118, -97, 31, -78 ]
J. Fred Jones, Justice. This case involves a petition for habeas corpus filed in Pulaski County Circuit Court by an inmate of the Arkansas penitentiary without assistance of an attorney of record. The petition was denied by the Circuit Court and petitioner has appealed. Petitioner, Billy Scott, was arrested in Pulaski County on or about March 26, 1964, and on April 3,1964, he was charged on information filed by the prosecuting attorney, with the crime of assault with intent to kill. On June 1, 1964, he entered a plea of not guilty in the Pulaski County Circuit Court and the case was passed to the September setting on motion of the defendant. On December 7, 1964, counsel for the defendant was appointed by the Court and the case was set for jury trial on January 18,1965. When the case came on for trial on January 18, 1965, the defendant advised the Court that his counsel was not properly representing him, and at defendant’s request, his counsel was discharged by the Court and the case was passed to the February setting to be re-set for trial. On January 19, 1965, the defendant was charged with assault with intent to rob instead of assault with intent to kill, and the charge of assault with intent to kill was nolle prosequi by the prosecuting attorney and dismissed by the trial court. On February 1, 1965, the defendant entered a plea of not guilty to the charge of assault with intent to rob, a new attorney was appointed for him, and the case was set for jury trial on April 6, 1965. On April 6, 1965, the defendant was tried to a jury who returned a verdict of guilty with punishment to be fixed by the Court. The defendant was committed to jail in lieu of $5,000.00 bond, and on April 12,1965, he was sentenced to five years in the state penitentiary where he is now serving that sentence. On November 17, 1965, the defendant filed his petition in the Pulaski County Circuit Court for a writ of habeas corpus alleging that he is being illegally held in the Arkansas penitentiary against his will in direct violation of his constitutional rights as guaranteed to him by the due process clause of Amendment 14 of the United States Constitution. Petitioner enumerates many assignments of alleged violations of his constitutional rights in numbered paragraphs some of which, as abbreviated, allege the following: 1. That the warrant for arrest on the charge of assault with intent to kill was improper and illegal because there was no evidence to support the charge. 2. That he was denied a proper hearing on this charge and requested dismissal of his attorney for refusal to properly represent him. 3. That the “warrant was dismissed” by the Pulaski County Circuit Court. 4. That as a result of “the same warrant which was dismissed” another warrant was read to him charging him with assault with intent to rob. 5. That there was no evidence advanced at a hearing or at his trial to show cause for a warrant to be issued charging robbery or attempt to rob. That the warrant was improper, illegal, unconstitutional, and its issuance constituted an unlawful act against him by the Pulaski County Court officials. 6. That after the warrant was read to him on January 19, 1965, he was “denied the right to have an attorney and a proper hearing before a proper judge until on or about the first day of February 1965; “a period of more than ten days,” all in violation of his constitutional rights under the decisions of the United States Supreme Court in the cases of Mallory v. U. S., 354 U. S. 449, 77 S. Ct. 1356 (1957), and Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758 (1964). 7.That the warrant and bill of information is illegal and unconstitutional because there was no evidence to verify the alleged crime and under Amendment 4 of the United States Constitution “no warrants shall be issued except on probable cause.” 8.That it was the lawful duty of the presiding judge at the trial on April' 6, 1965, to dismiss the charge of attempting to rob. In the petition for a writ of habeas corpus the petitioner then prayed for the appointment of attorney to represent him at the hearing on his petition for habeas corpus. Hearing on the petition was set for January 13, 1966, and an attorney was again appointed to represent the petitioner. On January 13, 1966, the hearing on the petition was continued and on May 5, 1966, the petition was set for hearing on May 9, 1966. On April 29, 1966, the defendant presented a petition for habeas corpus to the United States District Court, Eastern District of Arkansas, Pine Bluff Division, complaining that the Circuit Court had not granted him a speedy hearing on his petition then pending in that Court, and that the attorney appoined to represent him in that Court was not representing him properly. The petition was dismissed without prejudice in the Federal Court for failure to exhaust State remedies. On May 9, 1966, a hearing on the petition was conducted by the Pulaski County Circuit Court at which time the petitioner appeared with his counsel and testified in his own behalf in support of his petition. The petition was denied and petitioner appealed to this Court. We have examined the record in this case, including each assignment contained in appellant’s petition, and dispose of the first five assignments together. The warrants in this case were issued on information filed by the prosecuting attorney in lieu of grand jury indictment under Amendment 21 of the Arkansas Constitution, and we reaffirm our decisions in the cases of Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 (1937); Payne v. State, 226 Ark. 910, 295 S. W. 2d 312, and Deckard v. State, 241 Ark. 504, and we again hold that an examination and commitment by a magistrate is not required when a person is arrested on a warrant issued on a grand jury indictment or information filed by the prosecuting attorney, and certainly appellant’s constitutional rights were not violated in the nolle prosequi by the prosecuting attorney on the charge of assault with intent to kill and the dismissal of that charge by the trial court. The petitioner in this case, as any other individual, is entitled to all the rights, privileges, immunities, and protection afforded under the constitutions of the Unit ed States and State of Arkansas, but our constitutions are not only designed to protect the rights of individuals charged with the commission of crime; they are also designed to protect the rights of individuals who have never been charged with the commission of crime. In petitioner’s assignment six, he apparently misconstrued the decisions of the U. S. Supreme Court in Mallory v. United States, 354 U. S. 449, and Escobedo v. Illinois, 378 U. S. 478. In the Escobedo case, the petitioner was arrested without a warrant, taken to police headquarters with his arms handcuffed behind him and placed under interrogation by the police officers. The petitioner, as well as his regularly retained attorney, made several requests and attempts to confer with each other while both were in the same building where petitioner was being held prisoner, but the lawyer was denied access to his client, and the client was told that his lawyer did not want to talk to him. After persistent questioning without advising the petitioner of his legal rights, damaging statements were obtained from the petitioner which were used in evidence against him at Ms trial. ■ In the case before us, the petitioner was not only permitted to see an attorney, the Court appointed one for him. The trial court not only appointed an attorney for the petitioner, it discharged the attorney and passed the case at petitioner’s request and appointed another attorney who represented petitioner at his jury trial. In the Mallory case supra, the petitioner was arrested before indictment and apparently without a warrant, and after considerable interrogration by arresting officers, and without advising him that he had a right to remain silent, and a right to the benefit of counsel, a confession was obtained from him and then he was arraigned before a magistrate and his confession was used against Mm at his trial which resulted in his conviction. In the case before us, no confession or other evidence procured from, or furnished by, the petitioner is involved. He has had the benefit of three Court appointed attorneys in this case. He obtained the discharge of one of his attorneys because his case was not being handled to his satisfaction, and he threatened to have another one discharged for the same reason. The decisions in the Mallory and Escobedo cases are not mere pass keys from the Arkansas, or any other, penitentiary. They are new indictments of the age old system known as “third degree” in the interrogation of suspects in criminal cases, and neither case guarantees the accused that his case will be tried within ten days or within any other specified time. We see no need to prolong this opinion further. The petitioner in this case was awarded more than was guaranteed to him under the constitutions of the United States and the State of Arkansas. Finding no error in the trial court’s denial of the petition for a writ of habeas corpus, the order of the trial court is hereby affirmed and the petition is denied and dismissed. Affirmed.	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Conley Byrd, Justice. Appellants, W. J. Styers, et al., brought this suit to quiet title to a strip of land lying between his house and a service station owned by appellee Eddie Davis in the city of Benton, Arkansas. Appellants have no record title and proceed upon the theory that they have acquired title by adverse possession. Mr. Davis denied Mr. Styers’ title, set up title in himself by adverse possession and prayed that the title to the lands be quieted in him. The trial court found that neither appellants nor appellee is entitled to have the title quieted in him by-reason of adverse possession, that neither of them has the right to deny the other the use of the driveway, and refused to quiet appellants’ title. The driveway covers only a portion of the north end of the strip of land in question. On this appeal appellants raise four alleged issues, all of which we group together for discussion purposes. The facts show that Mr. Styers acquired title to his home which lies immediately west of the disputed strip in 1929, and that his son acquired title to the 111-foot tract on Edison Avenue where appellee’s service station is now located. The latter tract lies immediately east of the disputed strip. For the first six or eight years of his ownership, Mr. Styers had a garden on the strip and had it under fence, but later on he and his son went into the wine business and the strip was used in connection with .their wine business. The service station now owned by appellee is built on the foundation of the winery, which was on the 111-foot tract acquired by the son. The son conveyed title in 1946 to Robert Thomas and wife, who conveyed to Dalton Northern, et al. In 1951, Dalton Northern conveyed to Dr. Buffington. It is admitted that in 1952 Dr. Buffington built the filling station on the 111-foot tract, and that at that time Dr. Buffington made an agreement with Mr. Styers concerning the concreted portion of the strip. Appellant Styers admits that, with respect to the concreted portion, he gave permission to Dr. Buffington or anyone else to use it, so long as it was kept open for his use — apparently the concreting of the strip benefited appellant Styers. At the time the service station was constructed by Buffington, Dalton Northern was an agent for American Oil Company and the station was leased by Dr. Buffing-ton to American Oil Company for a period of years which has expired. Dalton Northern, subsequent to the construction of the station, re-acquired ownership from Dr. Buffington, and in September, 1963, the station was sold to appellee Davis. The parties are in agreement that during the American Oil lease, which expired some time in the early sixties, all of the operators made an effort to comply with the agreement between Dr. Buffington and Mr. Styers by keeping ears out of the easement. Appellee Davis testified that the concreted portion of the strip of land was shown to him as being part of the service station; that he bought the service station thinking it was part of the premises; and that one could not operate the station without the concreted portion of the strip involved. Appellant offered no testimony to show that the service station could be operated without the concreted portion of the strip, and the overwhelming evidence points this up to have been a known fact when the agreement was made with Dr. Buffington. Appellant Styers’ fencing of the tract in question and his use of it for a garden was substantiated by Jody ^Gentry, who had known the place ever since Mr. Styers went into possession in 1929. ’ Under the circumstances, it is seen that appellant Styers was aware that Dr. Buffington constructed the service station on the old winery foundation in reliance lupon the agreement with respect to the use of the concreted portion of the strip of land involved in this litigation. Furthermore, appellant Styers ’ testimony indicates that the concreting of that portion of the strip* for •driveway purposes was a benefit to him at the time. The record shows -without contradiction that, from 1952 until appellee Davis acquired the premises in 1963, appellees’ predecessors in title accepted the benefit of Dr. Buffington’s agreement which recognized appellants’ right to the land. Appellants, having permitted Dr. Buffington to make substantial improvements upon his own property in reliance upon their oral agreement with reference to the driveway, together with Dr. Buffington’s performance of the condition of the oral agreement by improving his driveway so that it cauld be used for the benefit of both appellant Styers and himself, are estopped to contest appellee Davis’ right to use the driveway in accordance with the agreement between appellant Styers and Dr. Buffington. Wynn v. Garland, 19 Ark. 23 (1857). It 'also follows that, since appellee Davis’ predecessors in title accepted the benefits of the oral agreement between appellant Styers and Dr. Buffington by which they were permitted to enter on the lands, appellee is also estopped to question appellant Styers’ title to the property. See Illinois Standard Mortgage Corp. v. Collins, 187 Ark. 902, 63 S. W. 2d 342 (1933) and Mantooth v. Burke 35 Ark. 541 (1880). Therefore, we hold that upon the record in this case the trial court should have quieted appellants’ title to the property involved as against appellee Davis, subject, however, to the agreement made between appellant Styers and Dr. Buffington with respect to the concreted portion of the strip. Since this is in effect the result reached by the trial court when it said that neither of the parties has the right to deny the other the use of the driveway, we are modifying this on appeal to the extent indicated but directing that each party bear his own cost. Affirmed as modified, and remanded for entry of a decree in conformance with this opinion.	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Paul Ward, Justice. This appeal is a continuation of the litigation involved in the case of The Housing Authority of the City of North Little Rock v. Amsler, Judge, 239 Ark. 592, 393 S. W. 2d 268 (decided May 31, 1965), to which reference may be made for fuller details. In that case the Housing Authority asked the trial court for permission to withdraw its suit after the july had returned a verdict favorable to the landowner. The trial court allowed the withdrawal, but held the Housing Authority’ must pay the landowner all reasonable expenses for defending the litigation. The trial court then set a hearing on November 13,1964 to determine the “amount, if any, to be awarded to'” . . . the owner.' • Before the hearing could be held on NovembéíTT3) 1964, appellant filed a petition in this Court to prohibit the trial court from proceeding further, contending it had no jurisdiction to award appellee said expenses. On May 31, 1965 we denied the petition and held the trial court did have inherent jurisdiction to award expenses under the circumstances. Following the decision of this Court, the trial court then found that appellee was entitled to the sum of $12,562.92- — hence this appeal. One. We find no merit in appellant’s contention that the trial court had no authority to award expenses. Our decision in the prohibition proceeding is now the law in this case, and refutes appellant’s contention on this point. Appellant makes the contention however that our previous decision is not conclusive here because there was evidence to show appellant acted in good faith in dismissing the original suit. Again, we find no merit in this contention. Even though it be conceded for the purpose of this opinion, that a showing of lack of good faith is a prerequisite to jurisdiction, still appellant cannot prevail. The trial court held that appellant failed to show g’ood faith and we think the trial court was correct, in so holding. Three witnesses testified for appellant on this point. Their testimony, in substance, was that .it did not have enough money to pay the amount of the jury verdict. We cannot be impressed with their reasoning, especially when this acute money situation was not revealed in advance to appellee or the court. Certainly, the situation cannot be attributed to any fault of appellee. ■Two. We have concluded the allowance of $12,-562.92 made by the trial court is excessive. Testimony on the part of appellee, to justify that amount, was that he had paid two appraisers the sum of $1,400; that he had paid $162.92 for maps, and that his attorney should have- $10,000 for his services. The testimony regarding the last item was far from convincing. It is true that a reputable attorney testified that, in his opinion, a fee of $10,000 was reasonable. However, that testimony appears to have been based on the fact that a verdict of $45,-000 was returned in favor of appellee. The fact, however, is that appellee was not allowed to collect anything. Appellee is entitled to he reimbursed only for all reasonable expense incidental to defending the suit. We refrain from setting out in detail the testimony relative to the claimed expense because we have concluded the judgment is excessive by the amount of $5,-000. Therefore, if appellee will, within seventeen calendar days, enter an acceptance of a judgment in the amount of $7,562.92 such judgment will be affirmed, otherwise the judgment will he reversed and the cause remanded for a new trial. Harris, O. J. & McF addin, J., dissent. Amsler, J., not participating.	[ 112, -2, -8, 62, 10, 96, 58, -104, 83, -81, 103, 83, 111, -53, 21, 61, -30, 63, 117, 107, -57, -78, 7, 106, -14, -69, -37, -59, -68, 109, -11, 30, 76, 33, -22, -43, 70, -61, -123, 80, -114, 12, -118, 77, -7, -62, 48, 59, 18, 11, 49, -97, -21, 45, 17, 67, 77, 44, 95, 37, 80, -16, -98, 13, 95, 2, -79, 54, -104, -93, 120, 104, -112, 49, 1, -56, 123, -90, -106, 52, 67, -103, 12, 36, 98, -128, -11, -29, -8, -119, 14, -4, -115, -90, -48, 89, 67, 72, -74, -107, 116, 0, 13, -10, -27, -107, -35, 108, 3, -114, -44, -77, -81, 96, 18, 2, -49, -125, 52, 97, -52, -26, 92, 87, 50, -101, -114, -39 ]
Ed. F. MoFaddin, Justice. This is another “Wet” v. “Dry” case from Ouachita County. In the present appeal the “Drys” are the appellants and the “Wets” are the appellees. In the 1964 General Election there was submitted to the voters of Ouachita County the question of the legal sale of liquor in that County, and on the face of the returns the vote was: For the legal sale of alcoholic beverages 6310 Against the legal sale of alcoholic beverages 5618 Tims, on the face of the returns, the “Wets” won the election. The “Drys” asked for and obtained a recount by the Election Commissioners; and the result of such recount showed the certified result to be: For the legal sale 6364 Against the legal sale 5651 or a majority for the “Wets” of 713 votes. The ‘ ‘ Drys ’ ’ then filed a contest in the County Court, which contest was unsuccessful; and the case was appealed to the Circuit Court, wherein there was a lengthy trial for a number of days. The “Drys” alleged many irregularities and illegalities connected with the voting and asked that all of the ballots be thrown out from each of eighteen precincts. The Circuit Court judgment was in favor of the “Wets” and the “Drys” bring this appeal, presenting only a partial record and urging only one point: “The Lower Court erred in failing to strike all votes cast in Camden Ward 3B from the total votes cast in the local option election. ’ ’ In Camden Ward 3B the certified returns after the recount showed a total of 828 votes for legal sale and 88 votes against legal sale; or a majority for the “Wets” of 740 votes in that particular ward. As previously stated, the certified returns showed the “Wets” winning by 713 votes; so if the entire vote from Camden Ward 3B should he thrown out, then the “Drys” would win the election by 27 votes. This makes readily apparent the materiality of Camden Ward 3B; and we proceed to the evidence as to conditions surrounding the voting in that ward. _ The election was a General Election, with constitutional amendments as well as State and County officers on the ballot. Because of the large number of voters in Camden Ward 3B the election officials realized that with one set of judges and clerks the counting of the ballots would require days; so the Election Commissioners selected two sets of judges and clerks and two ballot boxes and two tables, all being located in the same room. When a voter arrived to vote and entered the room, he went to whichever of the tables had the shortest line of people waiting; the voter was checked against the list of qualified voters and allowed to vote, if qualified. The Chairman of the Board of Election Commissioners testified that this procedure for two sets of judges and clerks was done to speed the voting and to complete the counting of the ballots as soon as possible. Even with the two sets of judges and clerks, as outlined, the counting of the ballots from Camden Ward 3B was not completed until 5:00 a.m. the morning following the election. Appellants assailed this “two box — two sets of officials” procedure as being highly irregular; and that is one of the grounds for claiming that the entire returns from Camden Ward 3B should be thrown out. In addition, the appellants claim other matters, to-wit: (a) That while the judges and clerks at the two tables may have signed the oaths of office, nevertheless the notary or other official failed to complete the jurat of such election officials; and this is claimed as a fatal irregularity. (b) That at least 7 named people voted twice (once at each table), and that some 58 named people voted who were not on the list of qualified voters; and this irregularity is claimed to be sufficient to throw out all the votes in Camden Ward 3B. (c) That after the recounting of the ballots (as requested by the appellants) the ballots were not placed back in the same boxes from which they had been taken, so that it is now impossible to determine which set of election judges and clerks allowed any specific person to vote; and this is claimed to be fatal to the entire vote. (d) That the two sets of election judges and clerks Avere not properly instructed as to their duties and did not follow the requirements of the laAV in many instances ; and this is claimed to be fatal to all of the votes cast in Camden Ward 3B. Some, if not all, of the County election officials and judges and clerks in Camden Ward 3B testified in the Circuit Court case, and such testimony is before us. We are impressed with the integrity that these witnesses demonstrated. They did not profess to know all about the election laws in Arkansas (who does?); but they honestly desired to hold a fair and impartial election. There is no showing’ that any illegal or irregular votes were cast except to the extent of not to exceed 65 specifically named and challenged voters, and this number Avould not change the result of the election. There is no fraud shown to have been committed in the Camden Ward 3B election. With becoming candor the appellants say: “... no contention is here made of deliberate fraud on the part of any person serving in the capacity of an election official in Ward 3B Camden. So far as the record is here presented, the multitude of irregularities which unquestionably occurred, were the result of three failures, which are: ‘ ‘ 1. The failure by election officials to properly instruct the persons selected by them to serve as election officials. “2. The failure of election officials to follow the procedure prescribed in order to legally conduct an election in Ward 3B. “3. The failure of the precinct officials to understand and perform their duties in the manner prescribed by law. ’ ’ Even after making the above quoted concession, appellants insist that we should throw out all the ballots in Ward 3B Camden; and to sustain such contention appellants cite these cases from other jurisdictions: Tebbe v. Smith (Calif.), 41 p. 454; Hatfield v. Scaggs (W. Va.), 133 S. E. 109; Kerrigan v. Vetsch (Minn.), 71 N. W. 2d 652; State of Iowa v. Community School Dist. (Iowa), 78 N. W. 2d 86; and Johnson v. Hall (Ky.), 121 S. W. 2d 935. It would serve no useful purpose to state the facts and the holdings in each of these cited cases from other jurisdictions because we have Arkansas cases which completely answer the appellants’ contentions. In Henderson v. Gladish, 198 Ark. 217, 128 S. W. 2d 257, we said: “All provisions of the election law are mandatory, if enforcement is sought before election in a direct proceeding for that purpose; but after election all should be held directory only, in support of the result, unless of a character to effect an obstruction of the free and intelligent casting of the vote or to the ascertainment of the result, or unless the provision affects an essential element of the election, or unless it is expressly declared by the statute that the particular act is essential to the validity of the election, or that its omission shall render it void.” So if we struck out the maximum of 65 votes particularly and specifically challenged in Camden Ward 3B, we would still know the result; and the result of this election would not be changed by striking out the said 65 votes. Furthermore, we have repeatedly stated the quantum of evidence that must be shown in order to justify a court in throwing out all the ballots in an election or in a precinct. The case of Baker v. Hedrick, 225 Ark. 778, 285 S. W. 2d 910, involved a “Wet” v. “Dry” election contest from Bradley County, and the contention was there urged that all of the votes should he thrown out because of irregularity; and in disposing of that contention we quoted from Judge Eakin’s language in the case of Patton v. Coates, 41 Ark. 111, as to what must be shown before all the ballots in a precinct will be thrown out: “ ‘The wrong should appear to have been clear and flagrant; and in its nature, diffusive in its influences ; calculated to effect more than can be traced; and sufficiently potent to render the result really uncertain. If it be such, it defeats a free election, .... If it be not so general and serious, the court cannot safely proceed beyond the exclusion of particular illegal votes, or the supply of particular legal votes rejected.’ ” In Jones v. Glidewell, 53 Ark. 161, 13 S. W. 723, Chief Justice Cockrill, speaking for this Court, said: “It is a serious thing to cast out the votes of innocent electors for acts done by others, and it is the province of the courts to see that every legal vote cast is counted where the possibility exists.” In the case at bar we are convinced that the Election Commissioners and election officials in Camden Ward 3B honestly and conscientiously tried, to the best of their abilities, to see that a fair and honest election was held. No fraud was shown or claimed. It would be outrageous to throw out all the votes in Camden Ward 3B under the facts in this case. We agree with the Circuit Court that we do not condone irregularities or illegali ties; but we do say that there is substantial evidence to sustain the findings of the Circuit Court to the effect that all of the specific items of irregularities and illegalities, when totalled, were not sufficient to void the entire election in Camden Ward 3B. Therefore we affirm the judgment of the Circuit Court. Lin Parker v. Rowan, 239 Ark. 929 S. W. 2d 338, we listed in some detail some of the Ouachita County litigation on this issue. This was in accordance with Initiated Act No. 1 of 1942, as found in Ark. Stat. Ann. § 48-801 et seq. (Repl. 1964.) The words, “Thrown out,” are frequently used in regard to election contests. Funk & Wagnalls New Standard Dictionary of the English Language says of “throw out,” “. . . to cast out or aside; reject; as to throw out dishonest items . . .” Webster’s International Dictionary, 2nd edition, says of “throw out,” “. . . to east out, to reject, or discard. . .” Eaeh set of judges and clerks counted and certified the votes in the box that such judges and clerks had been using at their table. In a footnote to Baker v. Hedrick, supra, we cited a number of cases which have followed Patton v. Coates, and some of these involved the vote in one precinct, as distinct from the entire election.	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Hart, J., (after stating the facts). The Legislature of 1915 provided for the establishment of road improvement districts for the purpose of constructing improved roads, and § 5446 of Crawford & Moses’ Digest is a part of that act. The section provides that all contractors shall be required to give bond for the faithful performance of such contracts as may be awarded to them, with good and sufficient security, in an amount to be fixed by the board of commissioners, and that said bond shall contain an additional obligation that such contractor or contractors shall promptly make payment to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contract. When the contract was awarded to E. C. Parker and O. E. Lowery for the construction of said improved road, they gave bond as provided in the section of the Digest just referred to. Counsel for the plaintiff insist that the case is controlled by Kotchtitzky v. Magnolia Petroleum Co., 161 Ark. 275. In it a similar section of the statute applying to drainage districts was construed. In that case the court held that one who undertakes to construct a drainage ditch impliedly contracts to pay for all labor done and materials furnished for that purpose, either to himself or to a subcontractor. We do not regard that case as decisive of the present one. The facts in that case recited that the materials furnished were used in the construction of the improvement. The opinion does not state what the materials were, and the question under review in this case was not discussed or determined. The same thing may be said of the cases of Oliver Construction Co. v. Williams, 152 Ark. 414; Arkansas Road Construction Co. v. Evans, 153 Ark. 142; and Gage v. Road Improvement Dist. No. 3, 153 Ark. 321. Ill Oliver Construction Co. v. Erbacher, 150 Ark. 549, it was held that, where a contractor agrees to he liable for all outstanding bills against a subcontractor “for work and labor and material, services done for and furnished to” the subcontractor, this did not bind the contractor to pay the meat bill of the subcontractor incurred in boarding employees. Thus it will be seen that the question under consideration in this case has never been decided by this court. The general rule is that dynamite and other explosives used in breaking up earth which must be removed' in the construction of roadbeds and embankments, are materials used within the meaning of a statute providing a mechanic’s lien for the furnishing of such materials; In some of the cases it is said that, in a broad and practical sense, explosives so used might be said to partake of the nature of both materials and labor. On the other hand there is a direct conflict in the authorities as to whether oil and coal used in operating road and dredging machinery and in trucks used in hauling earth and stone for constructing roads and levees ■are material within the meaning of the mechanics’ lien statutes of the kind under consideration in this case. On the one hand, the Supreme Courts of Minnesota, California, and other States have held coal and gasoline used for the generation of power in excavating earth to be materials furnished and lienable under statutes of this sort. In Associated Oil Co. v. Commary-Peterson Co., 32 Cal., app. 582, 163 Pac. 702, the Supreme Court of California held that, under its statute requiring contractors of public works to furnish bonds to pay for materials or supplies furnished, recovery may be had on the bonds for gasoline used in trucks to haul gravel, cement, etc., for road construction. Iii Johnson v. Starrett 127 Minn. 138, 149 N. W. 6, L. R. A. 1915B, p. 708, under a similar statute, it Was held that there was a lien for coal used in generating the steam power for a machine used in excavating and for the gasoline used in motor trucks which carried the excavated earth away. On the other hand, the Supreme Court of Massachusetts and the Court of Appeals of New York have decided the other way. In Shultz v. C. H. Quereau Co., 210 N. Y. 257, 104 N. E. 621, L. R. A. 1915E, 986, it was held that coal sold to a highway contractor and used to generate steam to propel road rollers and traction engines used on the contract is not within the operation of a statute giving a lien to any person furnishing material to a contractor for “the construction of a public improvement,” upon the moneys due him by the State. To the same effect see Thomas v. Commonwealth, 215 Mass. 369, 102 N. E. 428. It is worthy of note that these same courts held that there was a lien for dynamite employed directly to the earth which had to be removed. The reason was that it was an essential part of the construction to break up the earth, and dynamite used for that purpose entered primarily into the construction .of the improvement. On the other hand, coal and oil, while used as fuel for portable engines and machinery used in construction work, are merely an incident in the operation of the machinery and partake of the same characteristic as it does. In other words, they are at least one step- further removed from the actual work of construction 'and do not have any imlmediate connection with the structure at any time. In short, they are used in' operating the tools and machinery which in their turn act upon the structure. Courts must stop somewhere in the construction of these statutes. Otherwise repairs on the machinery used in the construction of the improvement and the diminished value of the machinery and tools used in such construction will 'be deemed to be lienable claims. If matters which are only remotely connected with the construction of the public improvement should be held to be lienable, the protection of the bond to the class intended by the statute would 'be greatly impaired. To the same effect see Alpena v. Title Guaranty & Surety Co., (Mich.) 123 N. W. 1126; Philadelphia v. Malone, 214 Pa. 90, 63 Atl. 539; and S. B. Luttrell & Co. v. Knoxville, L. & J. R. Co., 119 Tenn., 492, 105 S. W. 565. It has also been held that lumber furnished for and used in making forms for a concrete structure as provided in the contract and specifications for its erection, aiid which is practically consumed and rendered value-’ less for such use is material, within the meaning .of a mechanics’ lien law, and of the provision of a bond given by a surety company that the contractor will “pay all the 'indebtedness incurred for labor and materials furnished and used in and about .'said contract work, or which might become the basis of a lien. ’ ’ Chicago Lbr. Co. v. Douglas, 89 Kan., 308, 131 Pac. 563, 44 L. R. A. (N. S.) 843; and Avery v. Woodruff, 144 Ky. 227, 137 S. W. 1088, 36 L. R. A. (N. S.) 866. It is earnestly insisted by counsel for the plaintiff that this court should not follow the principles of law decided in the cases above cited and quoted from;- -but it should, for the sake of uniformity, at least, follow the decisions of the Supreme Court of the United States in construing a similar statute. We might adopt this course, but for the fact that this court has already taken a position in the construction of a similar statute of our own. Sec. 5446 of Crawford & Moses’ Digest provides in effect that contractors constructing improved highways shall be required to give bond for the faithful performance of their contracts, and that said bond shall contain an additional obligation that such contractor or contractors “shall promptly make payment to all persons supplying him or them labor and materials in the prosecution of the work provided for in such contracts.” The Legislature of 1899 passed a statute providing that contractors and other designated persons, “who-shall do or perform any work or labor, .or cause to be done or performed any work or labor upon, or furnish any materials, machinery, fixtures or other things toward the building, construction or equipment of any railroad,” etc., shall have a lien on the railroad for such labor, materials, etc.' Acts 1899, p. 145. In construing this statute a lien wias denied for articles furnished by a hardware company consisting .of rope, block and tackle, chains, wheelbarrows, wedg'es, axes, blacksmith’s outfits, such as forges, anvils and tools and sundry steel and tools such as are usually used in quarrying stone. The court held in effect that these articles were equipment merely, and for that reason were not liena'ble. In other words, the court held that under the statute there was no lien for anything beyond that which entered into or became a part of the roadbed. Again in St. L. I. M. & S. R. Co. v. Love, 74 Ark. 528, the court held that there was no lien, for the hiring of teams furnished by the claimant to a subcontractor for use in repairing the railroad. The reason again given wtets that the statute did not create a lien for anything beyond that which entered into and became a part of the railroad. The object of statutes of the kind under consideration is to substitute the bond required for the security which the claimant might otherwise obtain under a mechanics’ lien statute. The giving of the bond under the statute adds nothing to the obligation of the contractor. His liability is fixed by the terms of the statute. The contractor has supervision of the work, and it is easy for him to see what labor and materials are actually used in the work. Oliver Construction Co. v. Williams, 152 Ark. 414. The provision of the bond upon which the claim of the plaintiff is based is the promise of the contractor to pay all persons supplying him with labor and materials in the prosecution of the work provided in the contract. The lien statute relating to railroads above referred to gave the contractor, and other named persons who should do any wtork or furnish any materials or other thing's towards the construction of -the railroad, a lien. Therefore, it will be seen that the provisions of the two statutes are substantially the same. It is to 'be presumed that the Legislature in passing •the later statute had in mind the provisions of the earlier statute and the construction placed upon it by this court. Thus it will be seen that we have ruled that our statute giving a lien upon railroads for materials furnished should be limited to materials that are furnished for and' used in the construction of the road, so as in a sense to become a part of it. Having regard then for the well-defined and established meaning ¡of a similar statute, we think that the fair meaning of the language used in the statute under consideration is only to give persons a lien who supply materials directly used in the prosecution of the work or materials substantially consumed in the prosecution of the work and which are practically useless after such use. Therefore, we do not think that oil or other fuels used in operating motor trucks engaged in hauling stone for the construction of an improved, highway can fairly and justly be said to be supplying materials to be used in the prosecution of the work. As above stated, oil so used is only incidental to the operation of the motor trucks, and can be no more considered materials used in the prosecution of the work, than the motor trucks themselves or the repairs on them. The result of our views is that the judgment of the circuit .court was correct, and must therefore be affirmed.	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HaRt, J., (after stating the facts). Counsel for the plaintiff ask for a reversal of the judgment because the court erred in giving instruction No. 5 to the jury at the request of the defendant. The instruction reads as follows: “The court instructs the jury that the law requires railroad companies to furnish toilets for its patrons, and that the plaintiff is charged with knowledge of that fact, and that, if plaintiff - neglected or failed to ask the agent of the defendant for a key or location of the toilet, and, by reason of her failure or neglect to get this information from the agent of the company, but acted on her own volition and thereby received an injury, then the plaintiff would be guilty of negligence, and you will find for the defendant.” In the first place, this instruction entirely ignores the theory upon which the plaintiff predicated her right of action in this case. In her complaint she alleges that she was injured by the negligence of the defendant in the operation of its train upon which she was riding as a passenger. The particular act of negligence complained of was that the defendant negligently coupled its train to the coach in which she was riding as a passenger, and that she was violently thrown to -the floor. Moreover, the fact whether or not the defendant had a toilet at the station, and whether or not the plaintiff asked-the agent for a key to said toilet, was not the proximate cause of her injury. It cannot in any sense be said that the failure of the railroad company to comply with the statutory requirement of maintaining water-closets at its passenger depots was shown to be the natural and immediate cause of the injury to the plaintiff. The rule is well established in this State that, in an action for personal injuries, although the defendant may be shown to have been negligent in some manner, yet, unless the negligence so shown is the proximate cause of the injury complained of, no recovery can be had on account of said injury. It has been uniformly held that, in order to warrant a finding that negligence is the proximate cause of an injury, it must appear that the injury was the natural and probable consequence of the negligence and that it ought to have been foreseen in the light 'of the attending circumstances. Pittsburg Reduction Co. v. Horton, 87 Ark. 576; St. L. & S. F. R. Co. v. Whayne, 104 Ark. 506; St. L., Kennett & S. R. Rd. Co. v. Fultz, 91 Ark. 260; Hays v. Williams, 115 Ark. 406; and Bona v. Thomas Auto Co., 137 Ark. 217. It is manifest that the failure of the defendant to maintain toilets at its station, as required by statute, was not the proximate cause of the injury to the plaintiff, and that if could not have foreseen that its failure in this respect would have caused the injury complained of by the plaintiff. The allegation of the complaint is that the defendant was guilty of negligence in the operation of its train upon which the plaintiff was a passenger and thereby caused her injury. The particular act of negligence com-' plained of was that the other cars in the train were hacked against the caboose in which the plaintiff, was riding with such violence as to lift her up and throw her down on the floor. Instruction No. 5 wholly ignored the plaintiff’s theory of the case, and made it the duty of the jury to find for the defendant upon facts which were not the proximate cause of the injury. Hence it was necessarily prejudicial to the rights of the plaintiff. In view of another trial, we deem it necessary f,o state that the degree of care required in the operation of: freight trains which, by law, may carry passengers, was not correctly stated in the instructions given at the •request of. the plaintiff. "While local freight trains are allowed to carry passengers, the primary purpose of such trains is the transportation of freight. Their equipment therefore is adapted to such business, and those of the traveling public electing to ride on mixed trains are charged with knowledge of such facts. It is a matter, of common knowledge that jolting and jarring, are incident to the operation of freight trains, and therefore the company is bound to exercise only the highest degree of care that is usually and practically exercised consistent with the operation of trains of that nature. In this connection it may be also stated to be a. matter of common knowledge that a good deal of switching is necessary when local freight trains stop at a station, and this fact, together with the age and experience in traveling of the passenger, are to be considered in determining whether she is gnilty of contributory negligence in standing in the aisle and talking to a fellow traveler. St. L. I. M. & S. R. Co. v. Brabbzon, 87 Ark. 109, and cases cited; St. L. I. M. & S. R. Co. v. Hartung, 95 Ark. 220; Rodgers v. Choctaw, Okla. & Gulf Rd. Co., 76 Ark. 520; and Pasley v. St. L. I. M. & S. R. Co., 83 Ark. 22. In Pasley v. St. L. I. M. & S. R. Co., 83 Ark. 22, it was held.that, while it is not practical to operate freight trains without occasional jars and jerks calculated to-throw down and injure careless and inexperienced persons standing in the car, jars of great, unusual and unnecessary violence would he evidence of negligence on the part of the trainmen. The injury to plaintiff was caused by the operation of the train of the defendant, and, under our statute, proof of this fact made a prima fade case of negligence against the railroad company. ■ Crawford & Moses’ Digest, § 85:62, and cases cited in foot-note: The defendant attempted to overcome the prima facie case in favor of the plaintiff by introducing witnesses who testified that the coupling of the rest of the train to the caboose in which'the plaintiff was standing at the time she was hurt was not accompanied by any unusual jolt or jar, and in fact was a very easy coupling. On the other hand, the evidence for the plaintiff tends to show that, while she was eighty-two years old, slie had been in good health all of her life, and was a sturdy old woman. She had left the closet, and had only been standing in the aisle a' few minutes 'when the accident occurred. She was talking to a negro woman who-had conducted her from the' station to where the caboose was standing. As the plaintiff expressed it, she had started to her seat when she was “lifted clear up off the floor’,’ and thrown down when the rest of the train was coupled to the caboose. ’ ' The jury might have legally inferred from the evidence for. the plaintiff that the train was coupled together with a jar of'great, unnecessary and'unusual violence. If the evidence for the plaintiff was legally sufficient, if' believed by the jury, to warrant a verdict in'her favor, we are not concerned upon appeal as to where the weight of the evidence was. This was a question for the trial court in determining whether or not a new trial should be granted. St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428. It is true that the plaintiff would not likely have been hurt if she had been in her seat, but, under the circumstances as detailed by her, the question of whether she was guilty of negligence was a proper one to have been submitted to the jury. ■ For the error in giving instruction No. 5 at the request-of the defendant the judgment will be reversed, and the cause remanded for a new trial.	[ -80, -4, -35, -81, 72, 96, 42, -120, 69, -121, 39, -9, -19, -54, -103, 47, -13, -1, -43, 43, 84, -93, 23, -126, -10, -47, 114, -58, -73, 107, 102, -18, 77, 48, -62, -43, 102, 75, 85, 124, -118, -108, 40, -32, 1, 64, 96, 122, -124, 7, 49, -114, -29, 42, 24, 71, 110, 108, 43, 57, -22, -16, -34, 5, 99, 0, -95, 38, 21, 35, -36, 16, -120, 49, 9, -72, 114, -74, -109, 84, 73, -101, -124, 98, 101, -95, 5, 99, -67, -88, 46, 62, 47, -90, 59, 12, -55, 37, -74, -99, 51, 20, 23, -4, -20, 77, 93, 100, 1, -117, -108, -111, -49, 100, -74, 35, -18, 7, 54, 113, -52, -32, 92, 68, 114, -101, -97, -82 ]
Smith, J. On January 12, 1923, the Jonesboro Trust Company took a real estate mortgage on certain lands belonging to Otto Ruegger. On January 18, 1923, the Bank of Weiner took a chattel mortgage on a rice crop to be grown by Ruegger on said lands during the year 1923. The chattel mortgage was signed by Ruegger, and the notary public attached his seal thereto, but failed to sign his name to the certificate of acknowledgment. This chattel mortgage was forwarded to the circuit clerk of Poinsett County, in which the property was situated, “to be filed but not recorded,” as authorized by § 7384, C. & M. Digest, and was so marked filed by the clerk on the 19th day of January, 1923. This chattel mortgage was given to secure an indebtedness then due the bank and to secure future advances to be made by it. After the rice crop had matured and cutting had begun, the Jonesboro Trust Company filed suit to foreclose its mortgage, and had a receiver appointed by the chancellor in vacation. The holder of a prior mortgage and the Bank of Weiner were made parties to this proceeding, and, at the final hearing, the court held that, as the notary public did not put his signature to the certificate of acknowledgment, the mortgage was void as against third parties, and the trust company, by reason of having a receiver appointed, was entitled to all of Ruegger’s crop not cut at the time of the receiver’s appointment, and the Bank of Weiner, hereinafter referred to as the bank, has appealed. The bank contends that the mortgage was good as between it and Ruegger, that the receiver took no greater interest in Ruegger’s crop than Ruegger had, that its mortgage was an equitable one, and that, in any event, (he trust company would be entitled only to the rents and profits of the land, and not the entire nngathered crop. It was alleged in the hill to foreclose that Ruegger was insolvent, and that the land was not of sufficient value to pay the indebtedness secured by appellee’s mortgage and the prior mortgage, and that the crop would be required for that purpose. The truth of this allegation was shown by the fact that the proceeds of the sale of the land, including the crop, under the decree of foreclosure, were insufficient to pay the debt due appellee. The failure of the notary public to sign the certificate of acknowledgment to the chattel mortgage executed to the bank rendered the certificate void, and that mortgage was in effect an unacknowledged instrument. Davis v. Hale, 114 Ark. 426. This being true, the chattel mortgage was not entitled to be recorded, and the fact that it was filed with the clerk is unavailing, and, while it was good between the parties thereto, it constituted no lien on the property therein described as to third parties, and was not binding on them, even though they had had actual notice of it. Gross v. Fombey, 54 Ark. 179. In regard to the contention that the mortgage to the bank is an equitable one and should be given priority as such, it may be said that this is a legal mortgage. It was in fact good between the parties thereto, and might have been foreclosed as between the parties, without the intervention of a court of equity. But, so far as third parties were concerned, this chattel mortgage was not a mortgage at all, because it had not been properly acknowledged, and was not therefore entitled to be placed of record. Sections 7380, 7381, C. & M. Digest; Merchants’ & Planters’ Bank v. Citizens’ Bank, 125 Ark. 131, 135, and the numerous other oases cited in appellee’s brief. The mortgage to appellee contained a clanse accelerating the maturity of the debt there secured in the event Ruegger made default in the payment of the taxes due on the land mortgaged, and it was alleged and shown that Ruegger had made default in this respect. Upon filing this suit to foreclose, appellee asked that a receiver he appointed, and this was done, and the receiver gathered the portion of the crop which, at that time, was unsevered from the soil, and this unsevered crop was sold under the decree of the court. Appellee was entitled, under the allegations of the complaint, to have a receiver appointed to take charge of the land (§ 8612, C. & M. Digest), and, when he did so, this action resulted in impounding the unsevered crop then growing on the land. In the case of Osburn v. Lindley, 163 Ark. 260, the court said: “The bringing of this action (a suit to foreclose a vendor’s lien) and the petition asking for the appointment of a receiver to take charge of the rents and profits of the lands on which the vendor’s lien existed, had the effect of impounding the proceeds of those rents and profits in the hands of the receiver for the benefit of the vendor, to he appropriated in satisfaction of the decree in his favor for the purchase money. The rents and profits on the lands, after their sequestration by the institution of this suit and the appointment of a receiver, stand in the same category as the land itself. A vendor’s lien in equity is of the same nature as a mortgage, and is treated and enforced as such. (Citing cases).” See also Lee v. Bandimere, 140 Ark. 277; Gailey v. Ricketts, 123 Ark. 18; Oliver v. Deffenbaugh, 166 Ark. 118. It is finally insisted that the court below erred in decreeing a sale of the crop, and should have given appel-lee a decree for the rental value of the land only. In reply to this contention, it may he said that no such issue was raised by the pleadings in the court below; and it may he further said that Ruegger has not appealed, and, as the hank has no lien on the crop, it is in no position to raise the question. Moreover, the lien of appellee’s mortgage on the land attached to the growing crop when the land was impounded for the purpose of foreclosure, and the crop was therefore subject to sale along with the land, as it had not been severed by the execution of a valid mortgage thereon, or otherwise. It is true appellee’s mortgage did not specifically describe the crop, but the mortgage to the bank on the crop would have been a lien thereon only from the date of its filing, and, as it was not entitled to be filed, it must be treated as not having been filed, and the lien of the mortgage on the land attached to the crop growing thereon at the time possession was taken of the land for the purpose of foreclosure. The court did not therefore err in directing the sale of the unsevered crop, instead of rendering a decree for the rental value of the land only. The decree is correct, and is affirmed. Oases cited in appellee’s brief: Challis v. German Nat. Bank, 56 Ark. 88; Main v. Alexander, 9 Ark. 112; Hannah v. Carrington, 18 Ark. 90; Jarratt v. McDaniel, 32 Ark. 598; Haskill v. Sevier, 25, Ark. 153. (Rep.)	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McCulloch, C. J. The three appellants instituted, separate actions ag’ainst appellee to recover damages on account of a collision of automobiles, alleged to have been caused by negligence on the part of appellee. Appellee denied the charge of negligence, and the three cases were consolidated by consent and tried before a jury, but the court directed a verdict in favor of appel-lee. The question presented on this appeal is whether or not the evidence was legally sufficient to call for a submission of the issues to the jury. The collision occurred during the afternoon of a certain Sunday in the month of July, 1923. It occurred a few mües east of the city of Little Bock, on an asphaltum road, eighteen feet wide, with dirt shoulders on each side about three feet in width. Both automo biles were going in the same direction — 'towards the east. The car in which appellants were riding was in front, and, at the time of the collision, appellee’s car was attempting to pass the other one. The three appellants, Mrs. J. C. Johnson and her daughter, Mrs. Holton, and 0. Anderson, a friend or acquaintance, were riding in the same car, a Ford coupe, owned by Anderson. Mrs. Holton was on the left side of the car, driving, and Anderson was sitting next to her, in the center, and Mrs. Johnson was sitting on .the right-hand side, holding in her lap the three-year-old child of Mrs. Holton. The car was constructed to seat two passengers, hut there is a conflict in the testimony as to whether or not three persons could ride without crowding the driver and interfering with the operation of the brakes and gear-shift. Appellee Newman and his wife were riding in a Ford coupe, owned by appellee, and Mrs. Newman was doing the driving. The testimony of each of the appellants is to the effect that they were going along at a speed of about twelve to fifteen miles an hour, and, as they approached a motor bus standing on the right-hand side of the road, they turned the car to the left and into the center of the road in order to pass the bus, and that, as they did so, appellee’s car dashed by at a high rate of speed and struck the front hub-cap and the fender of the car of appellants with the rear wheel of appellee’s car with such violence that the driver of the car of appellants lost control of the steering-wheel, and the car turned to the right at an angle and ran into a ditch, without fault on the part of the driver. The car turned over in the ditch, and each of the appellants received, in consequence, very serious personal injuries. Mrs. Johnson and Anderson both sustained bone fractures, and there was evidence to show that their injuries were not only very severe and painful, but permanent. Mrs. Holton’s injuries, according to the testimony, were not permanent, but were substantial and painful. The lms was, according to the undisputed evidence, stopped on the side of the road for tire repairs, and each of the appellants testified that, when their car got within about twenty feet of the rear of the bus, the driver, Mrs. Holton, turned out to the left, and got about the center of the road, perhaps the left wheel being slightly over the center, and that the front end of the oar was within five or ten feet of the rear end of the bus when the collision occurred. They testified that they heard no signal from appellee’s car as it approached from the rear, and that they did not see the car until it came alongside of their ear and struck the front wheel. They stated that the car struck with a terrific impact and made a great noise, and that the force was sufficient to break open the right-hand door of the car in which they were riding. The evidence of another witness tends to show that the impact was very severe, from the fact that the hub-cap on the car was mashed in against the end of the axle. The narratives of appellee and his wife coincide with each other, but they are in direct conflict with tíie testimony given! by appellants. They testified that they were in a line of cars, going at a very moderate rate of speed, and that many of the cars were passing each other, and that, as they approached the motor bus standing on the side of the road, which they observed ahead of them, they speeded up slightly for the purpose of passing the car in which appellants were riding and two others, and that, just as they went to pass appellants’ car, the driver thereof suddenly veered the car to the left and ran into appellee’s car-, striking the rear wheel with the front wheel of appellants’ car. They testified that the collision occurred forty to fifty feet behind the motor bus, and that the impact was so slight that it was hardly noticeable, and that they did not discover that any injury had resulted until they had traveled a distance of about half a block in front of the bus. They testified that, when they started to pass the cars in front, appel-lee began sounding the horn, and continued to do so until after they had passed. Appellee stated in a very emphatic way that he was “playing- a tune” on the horn, meaning that he was honking- it constantly. He testified that, when he noticed appellant’s car turning out into the road,.lie cried out to his wife, “Look out for this car,” and that she cut her car around to the left, which was 'on the extreme left-hand side of the road; that, when the two cars struck, Mrs. Newman asked, “Did I do any harm?” and that he (appellee) replied, “No, everything is all right.” He testified that no signals were given from appellants’ car, and appellants themselves admitted that they gave no signal. Appellee testified that, after the collision, he looked back and saw that apparently there was nothing wrong with the car with which they had collided, but that, when they got about half a block in front of the bus, he looked back again and saw the car of appellants turning around the bus and saw it run into the ditch. Now7, it is apparent from this recital of the testimony in the case that there was a sharp conflict on material points, and that it showed negligence on the part of one side or the other of this controversy. The jury might have found in favor of either party on this issue, but it -was a question for the .jury, as the evidence was legally sufficient to support a verdict either way. The issue should not have been taken away from the jury by a peremptory instruction. In the first place, the evidence was sufficient to show that appellee was guilty of negligence himself in failing to exercise control over the driver in order to prevent the collision. Minor v. Mapes, 102 Ark. 351; Carter v. Brown, 136 Ark. 23; Pine Bluff Co. v. Whitlaw, 147 Ark. 152; Wisconsin & Arkansas Lbr. Co. v. Brady, 157 Ark. 449. Appellant was not only sitting in the car beside the driver, where he could observe everything* that occurred, but, according to his own statement, he was actually participating in the operation of the car by giving directions to his wife and by giving signals. He appears to have been, for all practical purposes, as much in control of the car as was his wife, who was doing the driving. He admits that he saw the bus standing on the side of the road, and if, as testified by appellants, they were moving out into the center of the road for the purpose of passing the bus, the jury would have been justified in finding that appellee and his wife were negligent in attempting to pass at that moment. The evidence adduced by appellants, if accepted. by the jury, was sufficient to show that they were out in the middle of the road, perhaps a little to the left of the middle of the road, in the very act of passing the bus, when appellee undertook to pass at a rapid rate of speed. Appellants were entitled to a submission of the issues as to liability on the theory that appellee himself participated in the act of negligence which caused the collision. In the nest place, we are of the opinion that there was sufficient evidence to justify a submission of the issue of appellee’s responsibility on the theory that his wife, while driving the car, was acting as his agent. This court has refused to accept the so-called “family purpose” doctrine as a basis of liability on account of automobile collisions. Norton v. Hall, 149 Ark. 428; Volentine v. Wyatt, 164 Ark. 172. We have also discarded the doctrine of imputed negligence (Carter v. Brown, supra; Miller v. Fort Smith Light & Traction Co., 136 Ark. 272; Pine Bluff Co. v. Whitlaw, supra; Itzkowitz v. P. H. Ruebel & Co., 158 Ark. 454), and the common-law liability of the husband for torts of the wife has been eliminated by statute (Bourland v. Baker, 141 Ark. 280), but we have not departed from the elemental principles of the law of agency in determining the question of liability for automobile accidents. The doctrine of respondeat superior still obtains. In Norton v. Hall, supra, we said: “In other words, we reject the so-called ‘family purpose’ doctrine as stated by some of the courts in its broadest sense, though we do not mean to hold that there may not be circumstances under which it would be a question of fact for the jury to determine whether the person so operating the car was the agent of the head of the family or was agent of the particular member or members of the family for whose pleasure and benefit the car was then used.” In Wisconsin & Arkansas Lumber Co. v. Brady, supra, we held that the husband, who was riding in his own car which his wife was driving, was responsible for the negligence of his wife on the theory that she was, under those circumstances, acting as his agent in the operation of the car. Why shouldn’t the doctrine of respondeat superior apply under such circumstances? If the owner of a car in which he is riding permits some other person. to operate it — no matter whether it is his wife or child or friend — there is no reason why the relation of principal and agent should not be held to be subsisting between them so as to make the owner, as the principal, responsible for the negligent act of the driver as his agent. The question merely involves the application of elemental principles of law on this subject, and we are of the opinion that the testimony in the case is sufficient to call for a submission of the issue as to liability of appellee on account of the negligence of his wife as his agent, as well as his ©wn negligence in controlling or failing to control the operation of the car. Of course, we express no opinion on the weight of the evidence further than to say that it is legally sufficient to justify a submission of the issues in regard to negligence. For the error in taking the case away from the jury the .judgment is reversed, and the cause remanded for a new trial. Wood and Hart, JJ., dissent.	[ -16, -7, 96, -84, 10, 98, 34, 26, 100, -125, 101, -45, -81, -39, 77, 101, -2, 125, 80, 43, -15, -78, 23, 18, -110, -109, 123, 15, -105, 74, 116, 119, 76, 32, -54, 29, 70, 74, -59, 62, -114, -100, -8, 104, 25, -46, 52, 114, 86, 15, 113, -97, -57, 46, 28, -42, 104, 44, 75, -71, -47, 112, -113, 5, 125, 18, -95, 84, -98, 33, -8, 24, -100, -79, 24, -8, 50, -90, -111, -44, 107, -117, 8, 54, 102, 0, 1, -49, -3, -72, 38, 122, 29, -122, 62, 1, 9, 1, -74, 29, 113, 80, 15, 126, -6, 85, 92, -20, 5, -117, -106, -95, 71, 112, -98, 1, -21, -123, 50, 113, -51, 114, 92, 69, 18, -69, 87, -122 ]
1 McCulloch, C. J. Appellant was ' the sheriff of Phillips County, and this appeal involves the question as to the amount of compensation to which he is entitled for feeding prisoners confined in jail. The General Assembly of 1919 enacted a special statute fixing the fees and emoluments of all the county officers in Phillips County. This act contained an emergency clause, and was approved by the Governor on February 17,1919. Special Acts 1919, p. 132. The provision of that statute with reference to the sheriff’s office fixed the salary of the sheriff and ex-officio collector at the sum of $5,000 per annum and allowing him a certain additional amount for expenses of deputies and clerical assistance, and also contained a provision with reference to feeding prisoners, which reads as follows: “The county court shall provide and pay out of the county treasury the expenses of lighting and heating the county jail, and for bedding of tlie prisoners, and shall allow* the sheriff the actual cost of feeding the prisoners confined in the jail, not to exceed, however, the sum of fifty cents per day for each prisoner; provided, the salary of the jailer, shall be included in, the cost of feeding the prisoners in this section provided. ’ ’ At the same session a statute was enacted, approved February 27, 1919, fixing the fees of sheriff for feeding and keeping prisoners at the sum of one dollar per day. Acts 1919, p. 127. That statute, omitting the caption, and the second section declaring an emergency and putting the statute into effect, reads as follows: “Section 1. ■ Hereafter sheriff shall be allowed as fees for feeding and keeping a prisoner confined in the county jail, per day, the sum of one ($1) dollar; provided, the provisions of this act shall not apply to Crawford, Madison, Sebastian, Newton, Greene, Lafayette and St. Francis.” The point of this case is whether or not the last statute repealed the first one. Appellant claims that there was a repeal by implication of the first statute, and that he is entitled to the amount of fees prescribed in the last one. Appellee contends to the contrary. Counsel on both sides present with much care all of the authorities bearing on the subject, and particularly the decisions of this court, which are so numerous and harmonious that it is scarcely worth while to cite them. The principles of law with respect to the interpretation of statutes in determining whether or not there is an implied repeal are elemental. Reference may only be made to a comparatively recent case where the rules of law on this subject are aptly stated. Sanderson v. Williams, 142 Ark. 91. In that case it was stated that “where there is a plain repugnancy between two acts upon the same subject, the later act repeals the former, or, if the two acts are not in express terms repugnant and the later act covers the whole subject of the first and embraces new provisions, showing that it was intended as a substitute for the first, the last act will stand as the law upon the subject, and the first will be set aside.” It has often been announced that repeals by implication are not to be favored, and, in another recent case on this subject, we said: “Repeals by implication are not favored, and, when two statutes covering the whole or any part of the same subject-matter are not absolutely irreconcilable, effect should be given, if possible, to both. It is only where two statutes relating to the same subject aré so repugnant to each other that both cannot be enforcéd that the last one enacted will supersede the former and repeal it by implication.” Martels v. Wyss, 123 Ark. 184. Now, applying these principles, we do not find that these two statutes cover the same identical subject nor that they are in irreconcilable conflict with each other. Nor can it be said that the last statute takes up the whole subject and covers the subject-matter of the first one. The first statute relates to salaries of all of the county officers of a particular county, and it covers all of the details with reference to the, salaries, emoluments and expenses of the office of sheriff. The last statute does not take up the whole subject anew, but it relates to the single subject of compensation for -feeding prisoners. The first statute not only fixes the compensation in money of the sheriff for feeding prisoners, but it also requires the county to pay the expense of lighting and heating the jail and for the bedding of .the prisoners. If the latter statute can be given any effect at all in its application to the emoluments of the sheriff of Phillips County, it is only to the extent of raising the compensation to one dollar per day instead of the maximum of fifty cents' per day, and still leaves the provision requii*' ing the county to furnish the light, heat and bedding. All the fees seem to have been adjusted with care by the first statute, and there is no reason to presume that the Legislature intended to raise the compensation for feeding prisoners above that enjoyed by the same officers in other counties. On the other hand, if we place them on an equality, we would have to indulge the presumption that the. Legislature intended to take away by repeal the other requirements placed upon the county with respect to furnishing beat, light and bedding. In this state of the matter we must presume that-the Legislature, having taken up the whole subject of salaries in Phillips County, did not. intend to impliedly repéal those, provisions merely by fixing generally the fees for feeding prisoners. We attach no importance .to the fact that the last statute expressly exempts certain other counties.. This affords no grounds for. interpreting the statute ,as an express inclusion of all counties not thus exempted in express terms. If we are indulging in theories and presumptions, it is fair to assume that the Legislature, in passing this statute without expressly repealing the Phillips County special statute, assumed that it was unnecessary to exempt Phillips County, which was within the operation of the special statute and would not he controlled by the last one. The case is, we think, governed by the principles announced in Bank of Blytheville v. State, 148 Ark. 504. The relation of the two statutes involved in the present case removes the case from control of the recent case of Massey v. State use Prairie County, ante, p. 174, where the later statute was held to have covered the whole subject embraced in the older statute. Upon the whole, we are convinced that, under settled principles of interpretation, the last statute should not be held to have repealed the first one, and that the circuit court was correct in its judgment limiting the amount of the sheriff’s compensation to the specifications of the special act governing that county. Affirmed. Wood and Hart, JJ., dissent on the ground that Massey v. State use Prairie County governs.	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McCulloch, C. J. Proposed amendment No. ll, prohibiting counties, cities and towns from making contracts or allowances in excess of the revenues for the current fiscal year, was declared adopted under the decision of this court in Brickhouse v. Hill, 167 Ark. 513, and it contains a proviso authorizing counties, cities and towns to issue bonds for funds to pay debts outstanding at the time of the adoption of the amendment. The proviso reads as follows: “Provided, however, to.secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax, in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.”' ' Pursuant to this amendment, the city council of Little Rock passed an ordinance authorizing the mayor, city clerk and board of public affairs to contract for the sale of bonds to secure funds with which to pay existing indebtedness. After the passage of the ordinance, notice was given for receiving competitive bids on March 31, 1925, for the issuance of bonds. Bids were received on the day mentioned, but there was an adjournment over to the next day and additional' bids were received, and a contract was entered into for the sale of bonds. Appellant, as a citizen and taxpayer, instituted this action in the chancery court, to restrain the performance of the contract by the issuance Of bonds. The General Assembly enacted, an enabling statute putting the amendment into force, in “any city of the first class which has taken proceedings and published notice of sale to issue bonds.” Act 292, session 1925. This statute contains what purports to be an emergency clause and was approved by the Governor on March 30, 1925, which, it will be observed, was after the passage of the ordinance by the city council authorizing the issuance of bonds and one day before the advertised day for receiving 'bids. The contention of appellant is that amendment No. 11 is not self-executing, that the emergency clause was not properly attached to the bill, and that an emergency was not sufficiently expressed in the clause, and that, even if the statute went into full force and effect on the day it was approved by the Governor, the proceedings of the city council prior thereto were void.. The first question presented, and the one which we think is determinative of the present case, is whether or not the proviso in the amendment relating to the issuance of bonds by counties and municipalities is self-executing. We therefore confine the decision, so far as concerns the effect of the amendment, to that question The case of Griffin v. Rhoton, 85 Ark. 89, we quoted fronrfpage Cooley the following test: “A constitutional provision may be said to be self-executing if it supplies a sufficient rule by means of which the right given may be enjoyed and protected, or the duty imposed may be enforced; and it is not self-executing when it merely indicates principles, without laying down rules by means of which those principles may be given the force of law.” Cooley’s Const. Lim. (7th. ed.) p. 121. We decided in that case, in an analysis of a certain provision of the Constitution in regard to limitation upon salaries of public officers, that it was not self-executing. In the case of Arkansas Tax Commission v. Moore, 103 Ark. 48, we held that the initiative and referendum amendment adopted in 1910 was self-executing,' and in reaching that conclusion the opinion quoted with approval Judge Cooley’s test, the same as in Griffin v. Rhoton, supra. In addition to that, we quoted with approval the following language from the Supreme Court of Minnesota in Willis v. Mabon, 48 Minn. 140: “The question in every case is whether the language of a constitutional provision is addressed to the courts or the Legislature — does it indicaté that it was •intended as a present enactment, complete in itself as definitive legislation, or does it contemplate subsequent legislation to carry it into effect? ' This is to he determined from a consideration both of the language used and the intrinsic nature of the provisión itself. If the nature and extent of the right conferred and of the liability imposed are fixed by the provision itself, so that they can be determined by the examination and construction of its own terms, and there is no language used indicating that the subject is referred to the Legislature for action, then the provision should be construed as self-executing' Applying those tests to the present case, we are of the opinion that the proviso in amendment'No. 11 is self-executing. Its language satisfies eacJajbf the above tests prescribed for a self-executing prc^Son. It “supplies a sufficient rule by means of whiehnSie right given may be enjoyed and protected,” and it does not merely indicate principles “without laying down rules by means of which those principles may be given the force of law.” The ^proviso, in unmistakable terms, confers powers upon counties, cities and incorporated towns, power to issue “interest-bearing certificates of indebtedness or bonds with interest coupons” to secure funds to pay indebtedness outstanding at the time of the adoption of the amendment, and it also authorizes an additional levy of taxes not exceeding three mills, “until such indebtedness is paid.” The limitation upon the power to issue bonds is fully stated in the proviso itself, and the power is completely conferred without any additional legislation. The county courts and municipal authorities were already clothed with complete authority over the levying of taxes and" the control of their financial affairs with the constitutional prohibition against the issuance of interest-hearing evidences of indebtedness and levying a tax in excess of five mills. So the effect of this proviso was to remove those restrictions to a ’ certain extent and to permit counties and municipalities to exercise those powers for the purpose of raising funds to pay indebtedness outstanding at ' the time of the adoption of the amendment. The words, “as provided by law,” refer to levying of; additional taxes and not to the exercise of the power of Issuing bonds. The power to' levy 'taxes was already provided for, and the authority to levy additional taxes being conferred, the language just quoted had reference to the method of levying taxes. Our conclusion is that the proviso is self-executing and that additionl legislation is unnecessary, and it is therefore unimportant to inquire whether or not the enabling act passed by the Legislature was in force at the time, unless it is found that the proceedings for the sale of the bonds are in conflict with some provision of the statute. We do not find any such conflict. It-is contended that the statute requires1 an advertisement for bids, and that this necessarily implies that the bids must be received on that day and negatives any authority to adjourn over to another day. This argument is, we think, unsound, even- if it be .conceded that the statute requires advertisement for the receipt of bids on a particular day. There is certainly nothing in the statute which, expressly or by implication, prohibits adjournment from the advertised day over to the. next day for the purpose of receiving bids. Such á postponement would not, in any event, affect the validity of a bond issue, and a taxpayer would have no right to intervene for the purpose of preventing the issuance of bonds on that ground unless it be shown that an actual loss may result. The decree of the chancery court was correct, and the same is affirmed.	[ 86, 105, -76, -20, -54, 64, 24, -104, -45, -87, -27, 91, -21, 72, 21, 97, -93, 125, 101, 96, 117, -74, 5, 75, -14, -77, -57, -57, -78, 111, -30, 23, 12, 48, -56, -107, -58, -22, -63, 28, 14, -119, -118, -63, -3, 73, 52, 107, 50, 17, 81, -66, -30, 40, 16, -22, -83, 44, -56, -107, -47, -15, -99, -115, 127, 21, 1, 118, -104, 5, -30, -114, -104, 49, -119, -24, 118, -90, -106, 20, 109, 25, 12, 98, 38, 0, -87, -17, -112, -88, 6, -102, -115, -122, -106, 121, 43, 10, -74, -105, 92, -108, 70, -2, -94, -107, 95, 108, 4, -86, -12, -9, -89, 124, 25, 3, -10, 71, 48, 117, -52, 103, 92, -25, 16, -101, -122, -3 ]
Hart, J. Bert Brock was convicted before a jury of the crime of assault with intent to rape, and Ms punishment fixed at three years in the State Penitentiary. The case is here on appeal. ■ : • The first assignment of error of appellant is that the evidence is not legally sufficient to support the verdict. Bessie Dobbs was the prosecuting witness, and was eighteen years of age at the time she claimed that Bert Brock made the alleged assault upon her in Crawford County, Arkansas. According to her testimony, in November, 1923, she was carrying the mail from Bosedale to Evansville, in Crawford County,'Arkansas. She said that she knew Bert Brock and Clay Cusick. We quote from her testimony the following: “Q. They are charged here with making an-assault upon you about the 5th of November ; tell the jury what happened. A. I carried the mail. When I got back to Odell, Bert and Clay were standing out there, and when I stepped back to the door they were going off down the road, and when the postmaster got the -mail fixed up, I took it and went out and put it on the horse and started on. I got down the trail; they were both sitting there on a log, and when I saw them I started to run by them, and Bert run and caught the horse’s rein; and Bert said, 'Get off of there, and I said, ‘I won’t dó' it,’ and he said, ‘Get off of there and jazz,’ and I hit him, and he hit me just as hard as he could on the leg, ahd turned me loose, and I told him I was going to' tell on them, and they said they did not give a damn what I told. Q: Tell the jury how he took hold' of you. A. He tried to pull me off. Q. Did he try to pull you off? A. He just told me to get off and jazz with him. They had a gun. Q. What kind of a gun was it? A. Gome kind of a shotgun. Q. You hit him with a switch? A. Yes sir. Q. Was it then he turned you loose?- A. He turned the horse loose when- he was pulling on me, but Clay had hold of the reins... Q. "Was anybody with yon? A. I was by myself;” Howard White,.a boy fourteen years old, testified that he knew Bert Brock and Olay Cnsick. He was on the porch, of the building in which the postoffice was kept at Odell, at the time it is charged that they made an assault upon Miss. Bessie Dobbs. . He heard them say that they were going down the road and hold the girl up. This testimony, if believed by the jury, was sufficient to warrant the verdict. • Our statute provides • that whoever shall; feloniously, wilfully and with malice aforethought assault any person with intent to commit rape shall,, on conviction, be imprisoned in the penitentiary not less-than three nor more than twenty-one years. In construing this-statute this Court has held that a conviction’ for an assault--with intent to commit rape will be set aside where- the evidence fails to show that the accused did an act which was the beginning or part of; the -contemplated crime. Anderson v. State, 77 Ark. 37, and McDonald v. State, 160 Ark. 185. > : The testimony- of the -prosecuting witness tends to show that Bert Brock and his companion had a gun, and that .Brock stopped and attempted to drag her from her horse. She hit him with her whip, and he- hit her just as hard as. he could-on the leg. . He had demanded that she get off of her horse-and “jazz” with him. . ' The jury-might have inferred from this testimony that he was guilty of- something more than an intent or preparation tó' commit the alleged crime. The circumstances- detailed showed the beginning of an attempt to -rape .the prosecuting 'witness, and that the unlawful attempt- was coupled with the present ability to do the injury. .Therefore ¡the assault, was complete. The next assignment of error is that the court'erred in giving instruction No. 3 to-the jury, which reads as follows: : - . . ' '1 . “If he put his hands upon her, and she objected or rejected, his advances-, or if he did it in a lascivious way, without her consent, then he would be guilty of assault. The first thing you have to determine is whether he is guilty of assault to rape, and then for you to determine whether he is guilty of' any grade of assault.” In instruction No. 2 the court had gone into the ingredients necessary to constitute the crime. A specific objection was made to instruction No. 3 on the ground that it tended to leave the impression on the jury that, if Bert Brock laid his hands on .the prosecuting witness- in a lascivious way, without her consent,.they might find him guilty of an assault with intent to rape. ' We think the instruction is open to the construction placed upon it,' and necessarily constituted' prejudicial error to the', rights of appellant. In a prosecution for assauit with intent to rape, force is a necessary element of the crime. It is necessary for the .jury to find that the acciised intended' to use whatever force was necessary to overcome the prosecuting witness and have sexual intercourse with her, and that he intended to use as much force as would he necessary to accomplish that purpose and overcome her .resistance. Paul v. State, 99 Ark. 558; Kindle v. State, 165 Ark. 284. Of course, if the circumstances of .the case show that the woman .was put in fear of death or bodily harm to such an extent that she was unable,to re.sist,. this would he equivalent to force. This instruction was erroneous because it told the jury that the defendant would be guilty of assault with intent to rape if the prosecuting witness rejected biis advances, or if he made such advances in a lascivious way without her consent. This left out of consideration the question of -force. Therefore, for the error in giving instruction.No. 3 oyer the specific objections of appellant, the judgment must, be reversed, and the cause will be remanded for a neurtrial. . •	[ 113, -17, -7, -99, 40, -27, 42, -72, 82, -123, -76, 50, -115, -35, 65, 121, 122, 109, 84, 105, -58, -73, 19, -29, 18, -13, 47, -107, 55, 79, -92, -43, 11, 112, -54, 81, 35, 66, -123, 28, -116, 5, -87, -56, 18, -48, 56, 111, 44, 15, 49, -66, -61, 42, 92, 83, 73, 108, 75, 63, -40, 113, -14, 71, -51, 18, -93, 38, -100, -127, 88, 56, -39, 53, 0, 120, 119, -124, -126, 84, 13, -120, 4, 98, 34, 113, 125, -51, -96, -120, 47, 62, -43, -89, -104, 0, 75, 45, -82, -99, 2, 84, 6, -6, -27, 68, 60, 100, 39, -33, -108, -109, 15, 36, -106, 25, -45, 37, 52, 117, -51, -94, 93, 5, 121, -101, -121, -77 ]
Humphreys, J. This suit was brought on November 29, 1924, in the chancery court of Saline County by appellee against appellants to enforce the specific performance of a written contract of sale and purchase of 5,000 acres of timber land in Saline County, particularly describing same. The memoranda evidencing the agree ment were in the form of a letter of acceptance and a receipt which are as follows: “August 23, 1922. Little Bock, Ark. “Lena Lumber Company, Benton, Ark. “Gentlemen: I am this day accepting your proposition on the 5,000 acres of timber lands, more or less, in 'Saline County in fee for the price and terms below: $5,000 cash to 'bind the trade as forfeit or to he refunded in case abstract proves to be worthless. $10,000 down when title is shown to be good, $10,000 note for one year from today at 7 per cent, interest, and one note for $10,000 due two years from today at 7 per cent, interest. The interest on the second note is to ‘be paid one year from today when first note is paid, and I am to retain lien on land and timber until both notes are paid. These notes are to be secured by the Citizens’ National Bank o,f Boston, Mass. The purchase price is $35,000 on the terms mentioned above. “Yours very truly, “ (Signed) B. B. McIntosh. “Accepted this August 23,1922. Lena Lumber Company, by II. Faisst, Pres.” “To Lena Lumber Company: • “Beceived of the Lena Lumber Company check in the sum of $5,000 as payment on account of purchase of five thousand acres more or less in Saline County, a list'' of which lands has been submitted as shown on plats. It is agreed that a further sum of ten thousand dollars is to be paid when warranty deed and abstract showing-good title are delivered. As a further consideration, you are to give two notes as balance purchase money, each in the sum of $10,000, payable one and two years after date, with interest at the rate of seven per cent, per annum, payable semi-annually, the said notes to be guaranteed by the Citizens’ National Bank, of Boston, Massachusetts, and a vendor’s lien retained on the land to sejcure the payment of said notes. You are to have a reasonable time to examine the abstract of title -after the abstracts are delivered to you for examination; and it is agreed that your failure to complete this transaction Within a reasonable time, condition that the title be good, will be sufficient cause to declare forfeiture of the five thousand dollars this day paid on account of this purchase. “R. R. McIntosh. “Accepted: Lena Lumber Company, by H. Faisst, President, this day August '23, 1922. ” It was alleged that, after the abstract was approved and accepted, appellee drew its draft for $10,000 on the Citizens’ National Bank of Boston to pay the balance of the cash consideration, and executed two notes evidencing the balance of the purchase money, which papers, together with the deed of McIntosh to it and the muni-ments of title, were delivered to the People’s Bank of Little Rock under agreement that the draft should be forwarded for collection and the notes for indorsement, after which the notes should be delivered to McIntosh and the deed and other muniments of title to appellee; that it was discovered that the indorsement by the Citizens’ National Bank of Boston of notes secured by mortgage on real estate was not enforceable, whereupon McIntosh waived the bank’s indorsement, and agreed to accept such indorsement in lieu thereof as would meet the approval of W. E. Lenon, president of the People’s Bank; that it tendered the personal indorsement of Guy A. H\|am, president of the Citizens’ National Bank of Boston, and while W. E. Lenon was investigating his financial condition, McIntosh, without notice to appellee, sold and conveyed said lands to the Valley Planing Mill Company with the knowledge on its part of the contract between McIntosh and appellee; that McIntosh kept the $5,000 cash payment, obtained the notes and draft from tbe People’s Bank, and returned them to appellee, claiming that appellee had forfeited its rights under the contract for the sale and purchase of said lands by failure to furnish acceptable indorsement on the twó $10‘,000 notes. E. E. McIntosh filed an answer admitting the execution, of the contract for the sale of said lands to appellee and the receipt of, the initial payment of .$5,000, but denied every other material allegation in appellee’s bill, and alleged that appellee breached the contract to his damage in the sum of $5,000. He prayed for the dismissal of appellee’s bill for the want of equity. The Valley Planing Mill Company filed an answer adopting the answér of McIntosh, and, by way of further defense, alleging that, it purchased said land from appel-lee for $34,500; that, in order to make the payment, it mortgaged the lands for $20,000, to the Arkansas National Bank of Hot Springs, which is a first lien thereon; that it purchased the land in good faith and without knowledge of appellee’s claim. The Arkansas National iBank intervened, alleging that it accepted the mortgage from the Valley Planing Mill Company in good faith for $20,000 in the belief that said company was the owner of said lands, and prayed that its rights be protected by declaring its lien prior and paramount to that of all other persons. The cause was submitted to the court upon the pleadings and testimony, which resulted in a finding of the issues for appellee, and a rendition of the decree for specific performance of the contract between McIntosh and - appellee. In order to effect specific performance thereof, appellee was ordered to pay $30,000 principal and $251 interest to the commissioner of the court, who was to pay the Arkansas National Bank of Hot Springs out of the fund the amount due on the mortgage and to pay the balance to appellee, Valley Planing Mill Company; and said Arkansas National Bank was ordered to release its mortgage upon payment of same; and. the Valley Planing Mill Company to execute a deed for said lands to appellee upon pavment to it of the balance of said fund. Appellee paid the amount to the commissioner, whereupon he filed a commissioner’s deed to appellee for said lands, which was confirmed by the court and ordered to be delivered to appellee. A supersedeas bond was executed, and an appeal duly prosecuted to this court. Upon application, an injunction was issued against all parties restraining them from cutting timber on said land during the pendency of the appeal. The facts necessary to a determination of the issues involved on tbe appeal are, in substance, as follows: B. B. McIntosh was the owner of the lands in question by purchase from the Hamlin Stave Company. The People’s Savings Bank advanced the purchase money for the lands to his vendor and held his unrecorded deeds as security for the advancement until he could sell the lands. On August 3,1922, he entered into a contract for the sale and purchase of them to appellee for $35,000, $5,000 of which amount was paid in cash, pending the consummation of the deal. The examination of the abstract by appellee’s attorneys was completed on October 18,. 1922, and accepted with a written understanding that McIntosh might procure patents for about forty pieces of the land at a later date and have them recorded. After the acceptance of the abstract, the parties met at the People’s Savings Bank to close the deal. McIntosh executed a deed for the lands to appellee, drew a draft for $10,000 on the Citizens’ National Bank of Boston, and appellee executed two notes to McIntosh for $10,000 each evidencing the balance of the purchase money; and these, together with the abstract and other muniments of title, were left in the People’s Savings Bank with directions to forward the draft for collection and the two notes for the indorsement of the Citizens’ National Bank of Boston; and when the draft was paid and the notes returned, to deliver them to McIntosh, and the deeds, abstracts, and other muniments of title, when patents were obtained, to appellee. About this time it was discovered that the national banking law prohibited a national 'bank from indorsing notes of this kind: so an attempt was made to close up the deal on the basis that Guy Ham, the president of said bank, should.personally indorse the notes in the place of the bank. This arrangement was agreed upon dependent upon the approval of Ham’s indorsement by W. E.-Lenon. While W. E. Lenon was investigating the solvency and sufficiency of Guy Ham as indorser upon the notes, McIntosh became apprehensive lest the first deal might fail, and, having an opportunity to sell the lands to the Valley Planing Mill Company, gave it a week’s option to buy same for $34,500 on condition that the deal with the Lena Lumber Company should fail. At the time he executed the option, he gave the Valley Planing Mill Company a copy of his written contract with the Lena Lumber Company. The Valley Planing Mill Company obtained information that W. E. Lenon was not satisfied with the personal indorsement of Guy Ham upon the two $10,000 notes and that the draft had been returned unpaid, whereupon'it paid McIntosh $34,500 and obtained a deed from him to the lands. This understanding was obtained through conversation with W. E. Lenon, but it is quite evident that, at the time of the conversation, Lenon had not determined whether he would approve Ham’s personal indorsement. The Valley Planing Mill Company made no inquiry of appellee concerning the matter. On November 9, W. E. Lenon went away on a hunting trip before he had completed his investigation of the financial condition of Guy Ham. The sale of the lands by McIntosh to the Valley Planing Mill Company was completed November 14 before Lenon returned from the hunting trio and before he had decided whether the individual indorsement of Guy Ham. on the notes would be sufficient. Appellee had no notice of the option which McIntosh had executed to the Valley Planing Mill Company, and the first information it received of the sale was contained in a. registered letter written to it by 'McIntosh claiming that, on account of the failure to comply -with the terms of the contract of sale and purchase, he was forfeiting the contract by taking down the deposit of $5,000 and returnina- it, the draft for $10,000 and .the two. notes for $10,000 each. Appellant’s first contention for a reversal of the decree is appellee’s failure to pay the $10,000 draft. The insistence is made that this constituted a breach of the contract, thereby preventing appellee from demanding its specific performance. We do not think the failure to pay the draft under the circumstances in this case constituted a breach of the contract. As we read the contract, its payment was to be coincident 'with the indorsement of the notes and concurrent with the delivery of the deed as contended by appellee. Payment thereof was not refused but withheld pending the acceptance of the personal indorsement of the two notes by Ham, which indorsement had been offered and was being considered as a substitute for the indorsement of the Citizens National Bank of Boston. The validity of the indorsement of the Citizens National Bank of Boston had arisen when the parties came to close the contract. All the parties recognized that the contract had provided for an indorsement of the two $10,000 notes, which could not be enforced. When this discovery was made, appellee offered to substitute the individual indorsement of Huy A. Ham for that of the bank, which was satisfactory to McIntosh if it should meet with the approval of W. E. Lenon whose bank had advanced the money to McIntosh with which to purchase the land. Pending the investigation and decision of W. E. Lenon relative to the sufficiency of Ham’s personal indorsement, the matter was left in statu quo. The failure to pay the $10,000 draft during the time W. E. Lenon was considering the acceptance of Ham’s personal indorsement in lieu of that of the bank, could not, in good conscience, be treated as a refusal to pay same in the sense of breaching the contract. Appellant’s next contention for a reversal of the decree is that appellee’s offer of Ham’s in-dorsement in the place of the indorsement of the bank, provided for in the contract, and the agreement of McIntosh to accept Ham’s indorsement subject to the approval of W. E. Lenon constituted a material change in the original contract and was void because not in writ* ing. The contract in question related to the sale and purchase of real.estate; and, in order to be enforced, must have been in writing to meet the requirements of the statute of frauds. St. L. I. M. & S. R. Co. v. Beidler, 45 Ark. 1. The general rule is that a material modification of a contract within the statuté of frauds must be in writing in order to be valid and binding. Such a contract cannot be modified in essential parts by parol agreement so as to be valid against a plea of invalidity under the statute of frauds. Arkmo Lumber Co. v. Cantrell, 159 Ark. 445. There is a marked difference, however, between a modification of a written contract in the essentials required to meet the statute of frauds and an agreement for a substituted method of performance not within the statute. The former is required to be in writing in order to be enforceable as against a plea of the statute of frauds, whereas the latter is valid if in parol. The reason of the distinction is that the purpose of the statute of frauds is to require contracts to be certain and definite which it attempts to regulate, but does not attempt to regulate a substituted mode of performance thereof not within the statute. Cummins v. Arnold (Mass)., 37 Am. Dec. 155; Lowe v. Freadwell, 12 Me. 441; Conroy v. Toomay, 234 Mass. 384; Long v. Hartwell, 34 N. J. L. 116; Moore v. McAllister, 34 Miss. 500; Sharpe v. Wichoff, 39 N. J. Eq. 346; Warden v. Christ, 106 Ill. 326; Welsh v. McIntosh, 130 Penn. 641. It is true that the written contract provided that the two $10,000 notes evidencing the deferred payments should be indorsed 'by the Citizens National Bank of Boston, Mass. Neither party knew at the time that such an indorsement was not enforceable. It was discovered that the national banking law prohibited national banks from making such in-dorsements, whereupon it was orally agreed that Guy A. Ham should indorse them if W. E. Lenon would accept him as the indorser in lieu of the bank. This arrangement had relation solely to the performance of the con tract and not to an essential thereof necessary to meet the requirement of the statute of frauds. It was not necessary, therefore, under the rule announced in the authorities last cited, for the agreement for a substituted indorsement to he in writing. The facts in the instant case bring; it within the doctrine announced in the case of Adams v. Rhodes, 143 Ark. 172, to the effect that where time is not made the essence of a contract in a memorandum for the sale of land, and steps toward a completion of the executory contract have been continued, the vendor cannot summarily and arbitrarily, without reasonable notice to the vendee to perform, stop negotiations. Under such circumstances, reasonable notice must be given a vendee to pay the consideration and accept the deed so that he might have an opportunity to comply and protect himself. 39 Cyc. 1370. The vendor will not be permitted to .spring a surprise upon the vendee by abruptly announcing a forfeiture without extending a reasonable time to the vendee to perform. In the instant case, while negotiations were pending for the substitution of the indorser, McIntosh declared a forfeiture without giving appellee notice that the tendered indorsement was. not sufficient, and without extending appellee a reasonable opportunity to furnish an indorsement which would be acceptable to W. E. Lenon. The next and last contention of appellants for a reversal of the decree is that the Valley Planing Mill Company is an innocent purchaser of the lands for value. The Valley Planing Mill Company took its option on the lands with full knowledge of the executory contract for the sale of same by McIntosh to appellee. In fact, it was furnished with a copy of the contract between McIntosh and appellee. It exercised its option to buy without making any inquiry whatever of appellee as to whether it had forfeited its rights under the contract. It was known to the Valley Planing Mill Company that appellee had made a $5,000 cash payment to McIntosh and that the matter was pending, awaiting the approval of the abstract of title by the attorneys. Instead, of inquiring from appellee, it relied solely upon the statement of McIntosh that appellee had refused to comply with its part of the contract, and a statement of W. E. Lenon that the personal indorsement of Guy A. Ham on the two $10,000 notes was not satisfactory to him. Had inquiry been made of .appellee, the Valiey Planing Mill Company would have received information that the matter was in abeyance, awaiting the decision of W. E. Lenon as to whether the indorsement of Ham would be sufficient after getting further information as to his financial condition. At the time Lenon made the statement to appellee’s representative that he was not satisfied with Ham’s personal indorsement,. Lenon had not completed his investigation of Ham’s financial condition. He had the matter under advisement, and had agreed to' get a report from Bradstreet, and then make his decision and report to appellee, and give appellee an opportunity to furnish other secu-lity if Ham’s indorsement was hot sufficient. The rule is: '“Notice of facts putting a man of ordinary prudence on inquiry is tantamount to knowledge of the facts to which the inquiry might lead: ’ ’ Halloway v. Eagle, 135 Ark. 205, and cases cited therein. Had the Valley Planing Mill Company prosecuted the inquiry, it could have easily ascertained the real situation. We think, under the circumstances, that it should have made inquiry from some representative of appellee before exercising an option which it took from McIntosh, subject to the rights of appellee under a written contract with him for sale and purchase of the lands, a copy of which had theretofore been furnished to it. No error appearing, the decree is affirmed.	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HUMPHREYS, J. Appellee brought suit against appellant in the circuit court of Randolph County to recover damages in the sum of $3,000 on account of an injury received while attempting to 'board its mixed freight and passenger train at Knobel, en route to Peach Orchard. The complaint alleged, in substance, that, on the 5th day of October, 1923, appellee was at Knobel, a junction station on the line of appellant’s railroad, and that he purchased a ticket at Knobel for Peach Orchard, entitling him to ride as a passenger on the local freight train running 'between said towns; that, at the time, said train was switching at Knobel, and that he was informed by those operating the train that, after they got through switching, they would stop at the depot for passengers; that said train passed the depot without stopping, and, while same was moving slowly, he attempted to board the caboose, and was jerked by the train, thrown to the platform, and injured'. Appellant filed an answer denying the material allegations of the complaint, pleading contributory negligence and assumption of the risk by appellee in attempting to board the train. The cause was submitted to the court upon the pleadings and testimony, which resulted in a verdict and consequent judgment against appellant for $2,000, from which is this appeal. The first insistence of appellant for a reversal of the judgment is that the court erred in refusing to instruct a verdict for it, because appellee left the caboose after purchasing his ticket and boarding the train; second, that appellee was not at the depot when the local freight train came by, and that he attempted' to board the train 150 feet north of the station platform; and, third, that appellee attempted to board the train when it was moving fifteen miles an hour, and, in doing so, was guilty of such contributory negligence as precluded him from recovering for the injury. The undisputed testimony shows that appellee arrived at Knobel on an incoming train at 1:30 o’clock p. m. ; that he immediately purchased a ticket and boarded the mixed train, then switching in the yard, for Peach Orchard, the point to which he was going; that it was not very light in the caboose, and, after ascertaining that the train would 'stop at the depot for passengers and wiould not leave for forty-five minutes, he got out of the caboose and went up to the depot to await its arrival. We do not think it was incumbent upon appellee to remain in the caboose while the train was being switched about in the yard. It was his right and privilege to debark and wait for the train at the depot. This court held in the case of St. L. I. M. & S. R. Co. v. Glossup, 88 Ark. 225, that “a passenger is not compelled to continuously remain aboard the train until he reaches his destination. He may, at regular stopping places, leave the train for refreshment, exercise, or other matters of convenience or necessity, provided he exercises proper care.” The same doctrine was announced in the recent case of Missouri Pacific Railroad Co. v. Kennedy, 153 Ark. 77. The second reason assigned by appellant in support of its contention that it was entitled to a peremptory instruction is not tenable, for thfe testimony is in sharp conflict as to whether appellee attempted to board the caboose at the depot. The testimony most favprable to appellee upon the point is that he attempted to board the train almost in front of the depot, and where passengers usually get on the train. The third reason assigned by appellant in support of its contention that it was entitled to an instructed verdict is likewise not sound, because the testimony is in conflict as to whether the train was moving slowly or rapidly when appellee attempted to board the caboose. The testimony most favorable to appellee upon the point is that the train failed to stop at the depot for passengers, and that, when he attempted to board the caboose, the train was moving not to exceed four or five miles an hour. This court has held in several cases that the question of whether or not an attempt by a passenger to board1 a slowly moving train constitutes contributory negligence, is one for the jury. Arkansas Cent. Rd. Co. v. Bennett, 82 Ark. 393; St. L. I. M. & S. R. Co. v. Green, 110 Ark. 232; Mo. Pac. Rd. Co. v. Kennedy, 153 Ark. 77. The second insistence of appellant for a reversal of the judgment is because the court instructed the jury to the effect that, if a passenger is injured by a moving train, it is prima fade evidence of negligence on the part of the railroad company operating the train. The instruction is based upon § 8572 of Crawford & Moses’ Digest, .and is correct. Barringer v. St. L. I. M. & S. R. Co., 73 Ark. 548; St. L. I. M. & S. R. Co. v. Fambro, 88 Ark. 12; Huckaby v. St. L. I. M. & S. R. Co., 119 Ark. 179. Tlie third insistence of appellant for a reversal of the judgment is because the court gave the following instruction: '‘You are instructed that the law of Arkansas requires that all railroad' companies operating railroads in this State shall, at all junctions where two or more trains connect, require that all trains carrying passengers departing from such junctions shall depart only from the station-house or depot at such junction.” The instruction is based upon § 960 of Crawford & Moses’ Digest, and, as given, conforms to the language of the statute. The testimony reveals that the Missouri Pacific Railroad Company owns two lines of railroad connecting at Knobel, one being the main line of the Missouri Pacific, and one a branch line known as the Para-gould and Nettle ton road. Learned counsel for appellant argues that a junction within the meaning of the statute is where main lines of different roads cross. We think “junction” as used1 in the statute means a place where two or more tracks of a railroad or railroads meet or cross, regardless of whether the tracks are owned by the same or different railroad companies. The language of the statute is “at all junctions where two or more trains connect.” The fourth insistence of appellant for a reversal of the judgment is that the court erred in giving instruction No. 3. It is suggested that the instruction is fatally defective because it left out entirely the requirement that appellee should have exercised ordinary care for his safety, and because it was argumentative. We have read the instruction carefully and find that it fully covers the question of contributory negligence; and, while very long, it is not argumentative, but simply states the facts necessary to sustain a finding for appellee. We do not commend the form and length of the instruction, but find no inherent error in the subject-matter contained therein. We do not regard tlie other suggestions of error contained in appellant’s brief as well grounded, so shall proceed to discuss the claim of appellee on his cross-appeal for the allowance of a reasonable attorney’s fee. The trial court overruled appellee’s motion for the allowance of an attorney’s fee. The claim is based upon § 85Í of Crawford & Moses’ Digest, which is as follows: “In all actions at law or suits in equity against any railroad company, its assignees, lessees or other person or persons owning or operating any railroad in this State (or) partly therein, for the violation of any law regulating the transportation of freight or passengers by any such railroad, if the plaintiff recover in any such action of suit, he shall also recover a reasonable attorney’s fee, to be taxed up as a part of the costs therein, and collected as other costs are or may be by law collected. ’ ’ The allowance of an attorney’s fee under this ¡statute is in the nature of a penalty, and should be restricted to suits based exclusively upon a violation of some ¡statute ¡and not to suits involving issues of negligence and contributory negligence. This suit involves other issues than a mere failure to stop the train at. the depot in Knobel to receive passengers, as required by § 960 of Crawford & Moses’ Digest. The judgment is therefore affirmed upon both the direct and cross-appeal.	[ -80, 100, -68, -113, 122, 109, 10, -110, 97, -127, 39, -13, -17, -57, 1, 61, -9, 47, 85, 47, 101, -77, 86, -94, -109, -109, 115, -57, -73, 75, 100, -41, 9, 49, 74, 17, 103, 72, -59, 28, -114, -92, -81, -24, 25, -56, 40, 120, 68, 79, 49, -114, -6, 42, 28, 115, 108, 45, 123, -87, -62, 120, -110, 13, 5, 6, 32, 36, -101, -125, 12, 24, -104, 53, 48, -8, 115, -90, -109, -44, 9, -103, 8, 98, 103, 33, 5, -89, -84, -88, 46, 58, -97, -89, 42, 84, 123, 13, -66, -99, 116, -44, 5, 126, 120, 68, 93, 96, -125, -117, -108, -109, -33, -92, -106, 19, -53, 21, 50, 117, -50, -78, 93, 69, 56, -101, -33, -102 ]
McCulloch, C. J. T. E. Ray conveyed certain lands in Chicot County to S. A. Wilson by warranty deed, which recited notes executed by Wilson to Ray for unpaid purchase money. These notes were assigned by Ray to appellant, and Wilson subsequently conveyed the land to appellee Ross and one Van Ness, the grantees expressly assuming payment of said purchase money notes. The notes were not paid, and appellant instituted this action against Van Ness and appellee Ross to recover the amount of the notes and to enforce the vendor’s lien. At the commencement of the action appellant filed allegations and interrogatories to the Monroe County Bank and the First National Bank of Fort Smith, respectively, as garnishees, and writs of garnishment were duly issued and served, and each of the garnishees reported that it had funds in its hands belonging to appellee Ross. Ross appeared by attorneys and filed an answer on the merits, denying the allegations of the complaint with respect to his having assumed the payment of the notes held by appellant, and also filed a motion to quash the garnishments. The court sustained the motion and dismissed the garnishments, and an appeal has been prosecuted to this court. The effect of the dismissal of the garnishments was to end the proceedings as to those parties, and was a final order, and appealable. Helton v. Howe, 162 Ark. 243. Appellee relies on the rule in some jurisdictions, and the one said to prevail generally in the absence of statute, that a personal judgment should not be rendered in a suit to foreclose a mortgage or other lien except for the deficiency after the report of the sale of the property showing that the amount realized from the sale was not sufficiént to pay the debt. Cases in support of that contention are cited in the brief of counsel. Conceding that such is the general rule, it is changed by the statutes of this State. Crawford & Moses’ Digest, §§ 6240, 6242, 6244. The first section mentioned above provides that it. shall not be necessary in such proceeding to enter an interlocutory judgment, “but final judgment may in such cases be given in the first instance. ’ ’ Section 6242 reads as follows: “In an action on a mortgage or lien, the judgment may be rendered for the sale of the property and for the recovery of the debt against the defendant personally.” Section 6244 provides that, if the mortgaged property “does not sell for a sum sufficient to satisfy the amount due, an execution may be issued against the defendant, as on ordinary judgments.” The purpose of the latter provision was to continue the right to have process as to any deficiency, but it does not bar any other available remedy. In the recent case of McCormick v. Daggett, 162 Ark. 16, we recognized the right of the plaintiff in a lien foreclosure to have personal judgment in the first instance. There is no reason why this should not be so, for the remedies are not inconsistent. A plaintiff is entitled to only one satisfaction, but he is entitled to pursue all available concurrent remedies not inconsistent with each other. There is no reason for holding that the plaintiff in a foreclosure suit is not entitled to ancillary remedies, such as attachment and garnishment. The statutes conferring these remedies are each emphatic, and contain no exceptions. The garnishment statute (§ 4906) in express language extends the remedy to “all cases where any plaintiff may begin an action in any court of record.” There is no principle of equity which requires the holder of a security to exhaust his security before resorting to other remedies for the enforcement of personal liability of the debtor. Final judgment should not be rendered against the garnishee and in favor of the plaintiff until the latter’s right to recover from the defendant is established. Norman v. Poole, 70 Ark. 128; St. L. I. M. & S. Ry. Co. v. McDermitt, 91 Ark. 112; Smith v. Spinenwebber, 114 Ark. 384; Smith v. Bank of Higden, 115 Ark. 216. But the garnishee is held bound from the time of the service of the writ, and this remedy is available in a foreclosure proceeding as well as in any other action for debt. The decree of the chancery court is therefore reversed, and the cause remanded for further proceedings not inconsistent with this opinion.	[ -78, -20, -112, 12, -22, -32, 40, -102, 88, 32, 53, 83, 109, -62, 21, 41, -30, 109, 97, 105, 100, -77, 15, 64, -38, -109, -47, -59, -75, -49, -92, -42, 76, 48, -54, -107, -58, -126, -125, 80, 14, 7, 9, 68, 121, -58, 52, 123, 24, 9, 113, -90, -5, 45, 25, 106, 105, 45, -51, 9, -48, -8, -97, 5, 127, 7, 17, 100, -48, 3, 74, 42, -112, 49, 1, -24, 114, -78, -122, 84, 73, 27, 8, 118, 98, 34, 84, -19, -104, -100, 46, -2, 13, -89, -45, 121, 2, 75, -66, -99, 60, 64, 7, -10, -18, -115, 25, 104, 15, -53, -106, -109, 43, 60, -102, 11, -10, 23, 48, 96, -51, -30, 92, 67, 113, -101, -114, -37 ]
Smith, J. The parties to this litigation entered into a written contract on the 10th day of- February, 1917, whereby they agreed, according to our interpretation of the contract, as follows: Chesney, who was -a local fire insurance agent representing four companies, sold his agency to Griffin for $500 cash, which was paid upon the transfer of the agency for these four insurance companies from Chesney to Griffin. Chesney reserved- the right, at his option, to solicit insurance business for Griffin, and .was to be paid for any business written by him as follows: For all new. business Chesney was to receive, the entire premium, whether the policy was for a year, or for a term of years, and new business was defined to mean not renewals of old policies, but business not on the: boofcs of Chesney at the time of the sale of his agency. From the commissions thus earned a deduction- of twenty-five cents for-each policy issued by Griffin was to be made for a period of twelve months, dating from the date of the sale. When Griffin desired Chesney to assist in securing renewals of existing policies, that service was to be rendered by Chesney, and one-half of the commission thus earned was to be paid him for this service. Chesney also agreed that he would not enter into the fire insurance business in Siloam Springs, Arkansas, where his agency had been located, for himself, or in connection with any other agent, so long as “the party of the second part (Griffin) shall remain continuously and directly from the date of -this contract in such business in this city, and not violate the terms of this contract.” :- The contract contained certain other, provisions which need.not be stated, as -they are not involved in this litigation. Suit was brought by Griffin, who alleged that Ches-ney had breached the contract by reentering the. insurance business in .Siloam Springs, and that Chesney sought to defend his .action in so doing by falsely claiming-that plaintiff Griffin had previously breached the contract. There was a prayer that Chesney be enjoined from continuing in the business of. writing* fire insurance in the city of Siloam Springs. Chespey filed an answer admitting the execution of the contract, and admitted that he had reentered the fire insurance business, but he alleged that plaintiff had first breached the contract in several respects, and his obliga tion. under the 'contract to stay .out of the insurance busi•ness had thereby been annulled. ¡By way of cross-complaint, the defendant Ohesney alleged that Oriffin had failed to properly account to him for the commissions he had earned 'on insurance he had written, and he prayed that an accounting he had 'between them. ■ It would serve no useful purpose to set out the testimony offered by the litigants in .support of their respective allegations. The court found the fact to be that there was no equity in either the complaint or the cross-complaint, and dismissed them both as being without equity, for the reason that the plaintiff had violated the contract from the beginning by secretly withholding a portion of the commissions to which defendant was entitled, and defendant had violated the contract by secretly giving a portion of his business to other insurance agents, and upon this express finding the court assessed half of the' costs against each of the parties: We are unable to Say that this finding is clearly against the preponderance of the evidence; in fact, the finding is virtually supported-by the admissions of the parties. There is more uncertainty about who committed the first-breach, and this appears to be the principal question of fact in the case. Cases are cited holding that the party who commits the first substantial breach of a' contract cannot maintain an action against the other contracting party for a subsequent failure to perform. This i-s, of course, a well settled principle of - the law. •' Without 'undertaking to. decide who committed the ■ first breach-of the; contract, it may be said that the testi- ' moxiy shows that each party had breached the contract before the other was aware of the fact that the -other had also breached it. Indeed, the plaintiff alleged in his ' complaint that it had come to- his knowledge, since the institution -of -this suit, that defendant had never in good faith complied with the contract, and, while the plaintiff alleged and testified that he had never breached the contract himself, we think, as we have .said, that the chancellor’s finding to the contrary is not clearly against the preponderance of the evidence. As we have said, appellant (plaintiff) brought suit to enjoin defendant from engaging in the insurance business in the city of iSiloam Springs, and we think the court was warranted in denying him the relief prayed because of his own breach of the contract. There is no cross-appeal by appellee, and we do not consider what relief, if any, he might have had by way of damages had he cross-appealed. The question presented by appellant’s appeal is whether he is entitled to enjoin appellee from reentering the insurance business in the city of - Siloam Springs, and, as we have stated, this relief was properly denied him because of his own breach of the contract-upon which he predicates his cause of action. In 32 C. J., p. 192, § 290 of the chapter on Injunctions, it is said: “A party is not entitled to enjoin the breach of a contract by another, unless he himself has performed what the contract required of him so far as possible; if he himself is in default,-or has given cause for nonperformance by defendant, he has no standing in equity.” Under the circumstances we think appellant has not made a case entitling him to equitable relief, and the detree of the court below is therefore affirmed.	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Robinson, J. The issue on this appeal is the interpretation of a policy of insurance providing disability benefits. The appellant insurance Company contends that the insured must be confined to bed in a hospital before the Company is liable for any payments under the terms of the policy. The trial court held otherwise and the insurance Company has appealed. On the face of the policy is the following provision: “Hereby insures the person named in this policy while confined as a bed patient within any recognized hospital, subject to all the provisions and limitations hereinafter contained, against, (1) loss caused by hospital and other specified expenses resulting directly or indirectly from accidental bodily injury, sustained while this policy is in effect and (2) Loss caused by hospital and other specified expenses resulting from sickness, the cause of which originates while this policy is in effect and after thirty days from the effective date thereof and (3) Loss or hospital expense resulting from surgical operations (except in connection with accidental injury) the cause of which had its beginning after this policy has been in continuous force for not less than six months from the effective date hereof or six months after the effective date of last reinstatement. ’ ’ Part Six of the policy is as follows: “If the insured shall require the services of a Licensed Physician or Surgeon as the result of accident covered by this Policy: The Company will pay at the rate of One Hundred ($100.00) per month beginning with the eighth day of confinement but not to exceed a total of thirty consecutive days for any one accident. Payment will be made in full in this part except: (a) No benefits under this part will be paid for. any person under twenty-one (21) years of age; (b) If the insured be a female the amount pay able under this part shall be fifty per cent of the amount otherwise payable.” Part B of the policy provides: “If the Insured as a result of injury or sickness which is covered under this policy, shall have a surgical operation performed by a licensed physician or surgeon, the Company will indemnify the Insured for the fee charged by such physician or surgeon for such operation (or will pay the physician or surgeon, if authorized by the Insured to do so), not exceeding the amount set opposite the name of the operation in the Schedule of Operations below. Not more than one indemnity, the largest, will be paid for operations performed on account of any one injury or sickness or for two or more surgical procedures performed during one operation. Benefits under this Part B shall be payable in addition to any and all other benefits provided in this policy. * * ” In the schedule of operations set out in Part B, $60 payment is provided for Pasteur treatment for hydrophobia. Appellee policyholder was bitten by a dog infected with hydrophobia. Therefore, it was necessary for appellee to take the Pasteur treatment and he was thereby disabled, but was not confined to bed in a hospital. There seems to be no question about the length of time he was disabled. The policy does not state that in no event is the Company liable unless the insured is .confined to bed in a hospital. It is true that the policy is subject to that interpretation. There is an ambiguity in that respect, for it is also true that the policy is subject to the interpretation that “bed patient in a hospital” does not apply to Part Six, providing indemnity for loss of time and Part B which pertains to surgical operations under which is listed “Pasteur treatment for hydrophobia. ’ ’ The clause on the face of the policy which appellant claims limits recovery to a policyholder confined to bed in a hospital is divided into three parts, providing: First, for loss caused by hospital and other specified expenses resulting from accidental injury; Second, for loss caused by hospital and other expenses resulting from sickness; Third, for loss or hospital expenses resulting from surgical operations. Nothing is said in the clause appearing on the face of the policy about loss of time, although Part Six provides for payment of $100 per month therefor if the insured requires the services of a doctor. Part Six has no provision with reference to confinement to bed in a hospital. So far as Part Six is applicable here, the only limitation is that the insured requires the services of a doctor. Since the clause on the face of the policy does not mention loss of time, and ordinarily, loss of time is not referred to as an item of expense, the argument could be made that the policy does not cover loss of time although Part Six specifically provides therefor. The policy provides $60 for Pasteur treatment, which is listed under the heading of surgical operations, and, yet, it does not appear that such treatment in itself requires confinement to bed in a hospital. It also provides principal sum benefits payable for certain specific losses, such as loss of an eye or loss of a hand, etc. It is entirely possible that a person could suffer one of the specifically named losses and never be confined to a bed or a hospital. Moreover, Part One of the policy providing for payment for specific losses does.not say that the insured would have to be confined to bed in a hospital before he could recover for such loss. In that respect Part One is similar to. Part Six providing for loss of time. Part B provides for surgical indemnity. A long-schedule of payments is set out for specific operations, among which is listed $60 for Pasteur treatment. Nothing is said in Part B about the necessity of being confined to bed in a hospital before the surgical indemnity is payable. Under the schedule of operations is provided indemnity of $5.00 for the reduction of a simple fracture of one finger. It is hard to believe that the framers of the policy intended that the policyholder would have to go to a hospital and get in bed before having a finger set in order to collect the $5.00. The policy is much more than one merely providing indemnity for expenses caused by being confined to a hospital,’ although the policy appears to be designated by printing on the back thereof as “all standard hospital policy. ’ ’ It provides indemnity for loss of time and for specific losses such as an eye, etc. It also provides payment for what the policy designates as snrgical operations which would not ordinarily require that one be confined to bed in a hospital, such as $5.00 indemnity for reduction of a dislocated finger, and $5.00 for injection of antitoxin for tetanus.- It is a matter of common knowledge that, ordinarily, treatments of this kind do not require confinement to bed in a hospital. The policy is ambiguous and this court has held many times that any ambiguity policy of insurance must be construed most strongly in favor of the insured and against the insurer. Central Manufacturers’ Mutual Ins. Company v. Friedman, 213 Ark. 9, 209 S. W. 102, 1 A. L. R. 2d 557. See, also, cases which hold to the same effect cited in the Arkansas Digest, title “Insurance,” §146. This case was first tried in the Municipal Court where there was a judgment for plaintiff in the sum of $101.33, the amount sued for, and the Court allowed an-attorney’s fee of $25. On appeal to the Circuit Court the case was again decided in favor of the policyholder and an additional fee of $50 was allowed. Appellee is allowed an additional fee of $50 on appeal to this court, making a total of $125 allowed to appellee as attorney’s fee. The judgment is affirmed.	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Ward, J. C. E. Taylor, appellant, was charged by information on 16 counts for forging and uttering certain title-retaining notes. There were eight separate notes involved, supposedly signed by eight different people, all of which were sold to one J. Fred Livingston. At the beginning of the trial the Coui’t instructed a verdict of not guilty on the first four counts [involving two separate charges of forgery and two of uttering] because they were barred by the statute of limitation. Later on the Court instructed a verdict of not guilty on all remaining counts for forgery, and appellant was tried and convicted on all remaining sis counts for uttering. Punishment was fixed at two years in the penitentiary on each count to run concurrently and sentence was accordingly pronounced. Appellant prosecutes this appeal. In view of the conclusion we hereafter reach, only a brief outline of the facts will be sufficient. Appellant had for some time been engaged in Batesville in buying and selling secondhand automobiles. As is usual in such a business, when appellant sold a car he would take a title-retaining note from the purchaser for a portion of the sales price and would then sell the note in order to secure money to make other purchases for resale; and, also, as is usual, he would require the purchaser to take out insurance on the car as a matter of financial protection to himself and the one to whom he sold the note. All the notes involved in this case were sold at a discount to one J. Fred Livingston, who in turn sold them with recourse to the First National Bank at a smaller discount. Livingston, who was engaged in the insurance business, also wrote an insurance policy on each car involved, supposedly getting his information relative to name, address, occupation, etc., from the appellant. After several monthly payments were made to - the bank on each note here involved, the payments stopped and the bank quite naturally looked to Livingston for payment. It then developed, after thorough investigation, that none of the automobile purchasers and note signers could be located or identified. This led to the assumption that the names of the supposed purchasers were fictitious and that the notes were forgeries, and, of course, led to the charge against appellant. The enforcement officers shrewdly surmising, it seems, that it was going to be difficult to produce testimony showing appellant’s guilty knowledge that the notes were forgeries when he sold them to Livingston, had a subpoena issued for appellant’s wife sometime before the trial. She appeared before the sheriff and the prosecuting attorney and gave them a specimen of her handwriting. At the trial this specimen of handwriting was introduced by the State as “Exhibit D” to the sheriff’s testimony, over the objections of appellant. A handwriting expert, using £ ‘ Exhibit D ” as a basis of comparison, testified that in his opinion appellant’s wife had written the fictitious names on the said notes. It is not and cannot be denied that this testimony was calculated to lead the jury to believe appellant had knowledge that the notes were forgeries at the time he sold them to Livingston. Although several questions are raised by appellant there is only one which we need to decide, and that is: Avas “Exhibit D” admissible in evidence? After careful deliberation by the Court, we have reached the conclusion that “Exhibit D” should not have been admitted in evidence. At common law neither spouse was a competent witness against the other. Following this statement made in the case of Jenkins v. State, 191 Ark. 625 at page 627, 87 S. W. 2d 78, the Court said: “This Court is thoroughly committed to the rule stated above except in so far as it has been changed by statute. ’ ’ Then, immediately after this, the Court also said: “It goes without saying that this rule might be changed by statute, but such a statute, being in derogation of the common law, must be strictly construed. ’ ’ In 1903 such a statutory change was made by Act No. 81 [now Ark. Stats., § 43-2020] which permitted one spouse to testify against the other in criminal cases in which an injury has been done by one against the person or property of the other. This statute has been construed many times and obviously affords no support to the State’s position here. See Murphy v. State, 171 Ark. 620, 286 S. W. 871, 48 A. L. R. 1189; Robison v. State, 191 Ark. 455, 86 S. W. 2d 927; and Sutton v. State, 197 Ark. 686, 122 S. W. 2d 617. The only other statutory change in the common law regarding the admissibility of a spouse’s testimony in criminal cases was Act No. 14 of 1943 [now Ark. Stats., § 43-2019], This statute clearly cannot be invoked by the State because appellant’s wife was not called by him to testify, as the statute provides. Therefore, since it is obvious that appellant’s wife could not have been called to the witness stand by the State to give a specimen of her handwriting, the admissibility of “Exhibit D” can be- sustained only on the ground that it was obtained before the trial and in the manner above set forth. There are no decisions by our' court directly on this point and neither do we find such decisions in other jurisdictions. This leaves us to reason and to examine cases which may throw some light on the question. In People v. Bladek, 259 Ill. 69, 102 N. E. 243; State v. Smith, 215 Ia. 374, 245 N. W. 309; and Molyneux v. Wilcoxson, 157 Ia. 39, 137 N. W. 1016, 41 L. R. A. N. S. 1213, under statutes similar to ours, it was held that a wife is not competent to testify against her husband before a grand jury. In our State, prosecuting attorneys have in a sense replaced grand juries and have been given the power to subpoena witnesses. It seems to us that it would be a violation of the holdings indicated above to approve the method used here to secure information from appellant’s wife. In fact, it appears to us to be a more direct violation of the common law rule than to permit such testimony before a grand jury which has no power to convict. Constitutional Amendment No. 21, giving the prosecuting attorneys the power to try offenses on information as well as on an indictment by a grand jury, was passed in 1936 and declaration of adoption was made in the General Assembly on January 12, 1937. The same General Assembly passed Act No. 160 [now Ark. Stats., § 43-801] giving the prosecuting attorneys and their deputies the authority to issue subpoenaes in connection with the investigation of all criminal matters and to administer oaths. It may be significant that the Act states that such oath shall have the same effect as if administered by the foreman of the grand jury. It may also be significant that the emergency clause recognizes the necessity of the Act is based on the less frequent meetings of the grand jury and the necessity of the “prosecuting attorney to subpoena witnesses in order to properly prepare [emphasis ours] criminal cases.” Had the General Assembly by this Act intended to abrogate the common law prohibition against a wife’s testimony in criminal cases it should have said so, especially since our court has said, as noted before, that the Act in this particular must be strictly construed. We recognize the fact that our court has approved in certain instances the use of testimony illegally obtained, but even so this case can be distinguished because here overt action on the part of the wife was necessary. Nor is it a sufficient answer to say the wife could have refused to cooperate, for it is common knowledge that the average person is not always aware of his rights in such instances and, also, that most people are impressed by the dignity of the processes of the law. It is only fair to appellant’s wife to assume that she would not have voluntarily and knowingly given testimony calculated to convict her husband of a felony. We are loathe to approve a method of legal procedure that might conceivably be used to trap or coerce a person into discarding a right or privilege guaranteed by law. If there were other ways by which a sample of the wife’s handwriting could have been obtained, then there was no necessity for the method here employed. On the other hand, if it could be obtained only from the wife, it serves to emphasize the importance of protecting her right not to assist in the prosecution of her husband. The holding in the case of Brummett v. Commonwealth, 33 Ky. L. R. 355, 108 S. W. 861, confirms the view we take. There the State offered evidence of a conversation between a wife and the co-defendant of her husband which tended to show his guilt. Under a statute like ours, the court refused to admit the testimony on the ground that, in effect, it would make the wife an unwilling witness against her husband. The State, in securing the handwriting specimen of appellant’s wife and offering it in evidence in the manner described, was attempting to do something indirectly which could not be done directly, and, in our opinion, should not be condoned. The judgment of the lower court is reversed and the cause is remanded for a new trial.	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G-bifeiN Smith, Chief Justice. Appellee successfully established title by adverse possession to a strip of land approximately eight feet wide adjoining the boundary of appellant’s property. This appeal challenges a portion of the decree, under which appellee confirmed her right to a uniform strip of such width, it being urged that the proof failed to support actual claim to part of the property. Appellee’s deed was recorded in 1926 after two years possession under a contract to purchase. The description included the south half of Lot 8 and 13 feet off the north side of Lot 7, Block 18, East Argenta, North Little Rock. The disputed strip, which appellee was found to have adversely claimed since 1924, is the north 8 feet of the south 37 feet of Lot 7, Block 18. A fence had been built along the line which the Chancellor found to be the boundary, and this fence was in existence at the time appellee purchased. However, the fence was partial only, and did not extend far enough to completely separate the respective properties. Outside toilets adjoined each side of the fence. The chancellor awarded appellee the entire strip, extending the line on which the fence stood, in the same manner as would have been the case if the fence had been completed. Appellee testified that at the time of purchase she accompanied the vendor to the property and inspected it. At this time the vendor (prior owner of both properties), agreed that the boundary would coincide- with the fence line. Appellee took possession and said she utilized the property under the belief that the fence line was the true boundary. She cut the grass on the now disputed strip, repaired the fence, and built a tenant house which extended slightly over the true line onto the disputed strip. Appellee stated that she frequently announced to appellants that the fence line was the boundary. It was stipulated that appellee ran a water and sewer line through the strip and maintained it for a period in excess of the time required to establish adverse possession. Appellants denied that any claim of ownership had ever been expressed by appellee and insist that use of the strip was permissive. Appellants do not challenge the adequacy of evidence supporting the chancellor’s finding insofar as property physically separated by the fence is concerned, but claim the finding is not supported by evidence as to the remainder. The chancellor must have accepted the version offered by she and the original vendor, agreed on a boundary at the time of purchase and in effect extended the line on which the fence stood. Viewed in this manner, it was' inconsequential whether the deed accurately described the property occupied. Claim of ownership, even under a mistaken belief, is nonetheless adverse and ripens into title after lapse of sufficient time. Appellee’s testimony as to the agreement with the original vendor, though because of her status as an interested party it cannot be deemed undisputed, is still sufficiently convincing to justify us in holding that the chancellor’s finding is not against a preponderance of the evidence. Affirmed.	[ -15, 109, -36, 108, 24, 96, 56, -104, 99, -119, 101, 83, -81, 74, 92, 125, -57, 121, 97, 105, -57, -77, 71, -27, -14, -13, -101, 93, -71, 92, -11, 22, 76, 97, -54, 87, 70, -62, -19, 88, -50, -121, -117, 109, -39, 112, 60, 43, 80, 71, 21, -97, -13, 44, 17, -61, 104, 46, -53, 60, 57, -8, -65, 13, 127, 7, 17, 39, -69, -95, -22, 74, -112, 125, 0, -24, 115, -90, -106, 116, 7, -101, 8, 34, 98, 2, 108, -1, -94, -120, 6, 122, -115, -90, -110, 24, 75, 96, -66, -103, 109, 0, 103, 126, -26, -59, 92, 108, 45, -53, -110, -95, 13, 40, -128, 3, -21, -89, -80, 112, -49, -22, 92, 87, 51, -101, -114, -47 ]
DAVID M. GLOVER, Judge. \|Jn this case, the issue is whether the trial court erred in denying appellant Joshua Turley’s petition to seal his criminal record pursuant to Arkansas Code Annotated section 16 — 93—303(b) (Supp.2011). We hold that the trial court erred, and we reverse and remand this case for entry of an order consistent with this opinion. On August 24, 2009, Turley pleaded guilty to four Class C felony drug charges. He was placed on six years’ probation pursuant to Act 346 of 1975 (codified at Ark.Code Ann. §§ 16-93-301 to -303), which authorizes a trial court to defer proceedings, place a first-time offender on probation, and then dismiss the case and expunge the record at the ^termination of the defendant’s probation. The plea agreement, order, and probation agreement were all filed of record on September I, 2009. Three years later, on August 29, 2012, an order was filed releasing Turley early from his probation. This order was agreed to by the State and provided, in pertinent part: 2.The defendant has served his time and completed the long-term drug treatment program at RPF, paid all restitution, costs, and fees as ordered by the Court, remained on good behavior, and complied with all of his probation officer’s requests and directives. 3.The defendant should be, and he is hereby, released from the remainder of his probation period. IT IS SO ORDERED, AS PER AGREEMENT OF THE PARTIES. (Emphasis added.) Thereafter, on September 9, 2012, Tur-ley filed a petition to dismiss and seal his record. At that time, the State reversed its earlier position and opposed Turley’s petition, contending that Turley had violated the terms and conditions of his probation when he was found guilty of driving while intoxicated on March 6, 2011, while he was still on probation. The State also alleged that other offenses appeared on Turley’s Arkansas Crime Information Center report on which it was then obtaining information. The State argued that pursuant to Luevano v. State, 2012 Ark. App. 436, 2012 WL 3744797, the trial court was not required to expunge Turley’s record. After a hearing in November 2012, the trial court refused to seal Turley’s record, finding that while Turley had been released early from his probation, he had violated his probation by committing DWI in March 2011 while still on probation and, pursuant to Luevano, Turley’s petition to dismiss was denied. Turley then filed this appeal. \|sThe issue before our court is solely one of law, a question of statutory interpretation. Arkansas Code Annotated section 16-93-303 (Repl.2006) is the statute directly involved, and it provides in pertinent part: (a)(3) Nothing in this subsection shall require or compel any court of this state to establish first offender procedures as provided in this section and §§ 16-93-301 and 16-93-302, nor shall any defendant be availed the benefit of this sec tion and §§ 16-98-301 and 16-93-802 as a matter of right. (b) Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and expunge the record, if consistent with the procedures established in § 16-90-901 et seq. Turley argues that the trial court erred in not entering an order expunging his record because he had been released early from his probation by the trial court. The State argues, again citing Luevano, supra, that because Turley violated the terms and conditions of his probation prior to being released early from his probation, the trial court did not err in refusing to expunge Turley’s record. We hold that the Lueva-no decision is inapplicable to this case. There, the defendant violated the terms of his probation, but the trial court did not revoke his probation. After Luevano’s probation had expired, he petitioned the trial court to expunge his record; the trial court declined to do so, and Luevano appealed to this court. This court affirmed the trial court’s refusal to expunge Lueva-no’s record, holding that the decision of whether to immediately enter an adjudication of guilt upon the violation of a condition of probation is within the trial court’s discretion, and failure to \| ¿revoke had no bearing on whether Luevano had fulfilled the terms and conditions of his probation pursuant to Arkansas Code Annotated section 16 — 93—303(b). Here, Turley freely admits that he violated the terms and conditions of his probation; however, he argues that he is not attempting to have his record expunged under the provision within the statute that he had fulfilled the terms and conditions of his probation. Rather, he contends that the trial court is required to expunge his record because he had been released by the court prior to the termination of his probation period, and, in that situation, the statute requires that the trial court shall discharge the defendant without court adjudication of guilt. We agree with his assertion. Subsection (b) of Arkansas Code Annotated section 16-93-303 provides that “[ujpon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof,” a person who is dealt with under the first-offender procedures “shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order that shall effectively dismiss the case, discharge the defendant, and expunge the record.... ” (Emphasis added.) The basic rule of statutory interpretation is to give effect to the intent of the legislature. State v. Martin, 2012 Ark. 191, at 3, 2012 WL 1548076. Where the language of the statute is plain and unambiguous, we determine the legislative intent from the ordinary meaning of the language used. Id. at 3-4, 2012 WL 1548076. In considering the meaning of a statute, we construe it just as it reads, giving the words their ordinary and usually accepted meaning in common language. Id. The word “shall” when used in a statute means that the legislature intended mandatory \| ^compliance -with the statute unless such an interpretation would lead to an absurdity. Loyd v. Knight, 288 Ark. 474, 477, 706 S.W.2d 393, 395 (1986). Furthermore, the statute here at issue is written in the disjunctive, not the conjunctive — the two provisions stand alone and are not dependent on each other. Quite simply, if a defendant is released early from his probation under this statutory provision, he is not also required to prove that he fulfilled the terms and conditions of his probation. The State apparently-agreed to Turley’s early release from probation without researching whether Turley had in fact been compliant with the terms and conditions of his probation. When Turley was released from his probation early by the trial court’s order, the trial court was then required to expunge Tur-ley’s record. The dissent relies on subsection (a)(3) to grant the trial court discretion to deny expungement as provided for in subsection (b). We hold that that provision exclusively addresses the discretion of the trial court whether to establish first-offender procedures and place a defendant under these procedures. Once the trial court places a defendant under first-offender status, however, it is bound by the requirements set forth in subsection (b), which provides that if the defendant is released from his probation early by the trial court, the trial court shall expunge his record — there is no discretion. \|fiThe dissent also cites Barnett v. State, 366 Ark. 427, 236 S.W.3d 491 (2006), in which our supreme court held that section 16-93-303 makes it clear that no defendant has a right to expungement. The issue in Barnett was whether the State breached its plea agreement when it opposed the expungement of his record (when the first-offender statute was amended to exclude sex offenders of minors, Barnett’s offense) during his probation period; our supreme court held that expungement had not been a term of Barnett’s plea agreement with the State. The Barnett court correctly stated that no defendant is entitled to ex-pungement — the statute clearly states that trial courts are not required to establish first-offender procedures. However, when a trial court does establish such procedures, and when a defendant is in fact accepted under the first-offender procedures, subsection (b) then becomes the applicable subsection. As discussed above, subsection (b) offers two separate scenarios under which a trial court shall discharge the defendant without court adjudication of guilt and expunge the defendant’s record — (1) when the terms and conditions of probation have been fulfilled, or (2) upon the defendant’s release by the court prior to the termination of the probation period. The trial court released Turley early from his probation. It did so by an order with which the State agreed. The statute further mandates that the trial court discharge Turley without an adjudication of guilt and expunge his record. The trial court erred in refusing to do so. \|7Reversed and remanded. WYNNE, WHITEAKER, and VAUGHT, JJ., agree. HARRISON and GRUBER, JJ., dissent. . Two of the conditions of Turley’s probation included not committing a criminal offense punishable by imprisonment and not drinking or possessing alcoholic beverages. . We note that Act 1460 of 2013 amended Arkansas Code Annotated section 16-93-303. Subsection (a)(3) now provides, "This subsection does not require or compel any court of this state to establish first offender procedures as provided in this section and §§ 16-93-301 and 16-93-302.”	[ 48, -23, -44, 28, 74, 97, 51, -104, 91, -41, 97, 83, -81, 86, 21, 41, -31, 123, 97, 121, -51, -74, 85, 81, 98, -37, -56, 85, -71, 75, -28, -68, 30, 32, -54, 85, 102, 80, -121, 88, -90, 1, -119, 101, 121, -128, 100, 35, 30, -113, 49, -98, -29, 127, 54, -53, 73, 44, 89, -87, 72, -112, -103, 79, -21, 20, -125, -28, -101, 2, -6, 38, -108, 49, 1, 120, 115, 38, -126, 116, 73, -103, 44, 96, 102, 33, 101, -17, -72, -96, 54, -82, -115, -90, -8, 73, 75, 12, -106, -107, 110, 86, 38, -6, 125, -59, 53, 40, 1, -50, -48, -79, 13, 112, 68, -13, -21, 35, -76, 116, -51, -10, 84, 114, 81, -37, 110, -42 ]
DAVID M. GLOVER, Judge. liThe parental rights of Jeremiah Cala-han to his daughter, L.J.C., born February 16, 2010, were terminated by an order entered December 26, 2012. Pursuant to Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), and Rule 6 — 9(i) of the Rules of the Arkansas Supreme Court and Court of Appeals, Calahan’s attorney has filed a no-merit brief asserting that there are no issues that would support a meritorious appeal and a motion requesting to be relieved as counsel. The clerk of this court provided Calahan with copies of his counsel’s motion and brief and notified him of \|2his right to file pro se points of appeal. Calahan has filed points, but DHS has not filed a responsive brief. This case began in February 2010 when DHS filed a petition for emergency custody of L.J.C. on two bases: that L.J.C.’s sister, L.C., died at eleven months of age in Virginia as a result of subdural hemato-mas from being shaken; and that Cala-han’s stepson, L.D., was placed in foster care in Virginia due to multiple injuries he sustained while in the Calahans’ care, including healed burn marks, broken bones, bruises, and blunt-force trauma to the abdomen that resulted in a perforated intestine requiring emergency surgery. The Calahans maintained that L-.D.’s injuries were self-inflicted; by contrast, L.D. had not sustained any unusual injuries after being removed from the Calahan home. The trial court granted DHS’s request for emergency custody. An adjudication hearing was held in April 2010, at which time L.J.C. was adjudicated dependent/neglected based on the death of L.C. and the severe injuries sustained by L.D. A permanency-planning hearing was held in February 2011; Calahan was not present. The trial court found that L.J.C. had been subjected to aggravated circumstances and that there was little likelihood of reunification; the goal of the case was changed from reunification to termination. A petition for termination of parental rights was filed in April 2011, and a hearing was held in September 2012 on that petition. After the hearing, the trial court found that it was in the best interest of L.J.C. for Cala-han’s parental rights to be terminated and that DHS had proven grounds for terminating Jeremiah’s parental rights under Ark.Code Ann. §§ 9-27-341(b)(S)(B)(i)(a) (the child has been adjudicated dependent/neglected and has continued Rout of the parent’s custody for twelve months and the conditions causing removal have not been remedied by the parent despite a meaningful effort by the department to rehabilitate); (b)(3)(B)(vi)(a.) (the court has found the juvenile or a sibling dependent/neglected as a result of neglect or abuse that could endanger the life of the child, any of which was perpetrated by the juvenile’s parent or step-parent); (b)(3)(B)(ix)(a )(2) (the parent is found by a court of competent jurisdiction, including the juvenile division of circuit court, to have committed a felony battery that results in serious bodily injury to any juvenile); (b)(3)(B)(vii) (other factors arose subsequent to the filing of the original petition for dependency/neglect that demonstrated that the return of the juvenile to the custody of the parent was contrary to the juvenile’s health, safety, or welfare); and (b)(3)(B)(ix)(a )(3) (the parent is found by a court of competent jurisdiction to have subjected any juvenile to aggravated circumstances). At the termination hearing, Lisa Wall, a child protective-services investigator with the City of Virginia Beach Department of Human Services, testified that she had been involved with three investigations of Calahan, that she had interviewed him in April and May 2009 regarding the blunt-force abdominal injuries sustained by L.D., and that Calahan had maintained that L.D.’s injuries were self-inflicted. Wall said that she made findings against Cala-han for internal injuries, physical abuse, physical neglect, and inadequate supervision based on L.D.’s injuries; she further stated that since L.D. had been placed in foster care, he had not sustained any significant injuries. She testified that while the investigation on L.D. was still open and active, she received another referral in May \|42009 on the Calahans’ daughter L.C., which resulted in Wall petitioning for an emergency removal order for L.D. and an emergency protection order for L.C., both of which were granted. Wall stated that, to her knowledge, her findings were not appealed and that L.D. was still in protective custody. However, L.C. had sustained severe subdural hemorrhaging and a skull fracture, and as a result of those injuries, she died in May 2009. When interviewed, Calahan stated that he did not know how L.C. could have been injured, and he denied that either he or his wife hurt L.C. In 2011, Virginia DHS filed charges against Julie Calahan in the death of L.C., and she later pleaded guilty to the murder of L.C. Wall testified that Jeremiah Calahan was not charged in L.C.’s death, and she admitted that there was no physical evidence to link him to L.D.’s injuries. Annette Scott, an employee of Arkansas DHS’s Children and Family Services, testified that neither of the Calahans completed in-home counseling; that they were both noncompliant with the case plan; that the grandparents did not complete the paperwork for relative placement; and that no other relative inquired about relative placement. She stated that L.J.C. was adoptable. Jeremiah Calahan testified that he was still married to Julie. When asked about L.D.’s injuries, Calahan continued to assert that L.D.’s injuries were self-inflicted. He stated that after L.D. was removed from their home, he and Julie made arrangements with Child Protective Services in Virginia for L.C. to remain in the home by having his brother, Stephen, move into the house with them. It was after Stephen moved in that L.C. suffered her fatal injuries. \| ñNicole Hampton, L.J.C.’s foster mother, testified that she would like to adopt L.J.C. if parental rights were terminated. In Myers v. Arkansas Department of Human Services, 2011 Ark. 182, at 15-16, 380 S.W.3d 906, 915, our supreme court set forth the standard of review in appeals concerning the termination of parental rights: Our standard of review in cases involving the termination of parental rights is well established. Arkansas Code Annotated section 9 — 27—341(b)(3) (Repl.2009) requires an order terminating parental rights to be based upon clear and convincing evidence. Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction as to the allegation sought to be established. Camarillo-Cox v. Ark. Dep’t of Human Servs., 360 Ark. 340, 201 S.W.3d 391 (2005). When the burden of proving a disputed fact is by clear and convincing evidence, the question that must be answered on appeal is whether the trial court’s finding that the disputed fact was proven by clear and convincing evidence was clearly erroneous. Id. A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with a definite and firm conviction that a mistake has been made. Id. Such cases are reviewed de novo on appeal. Wade v. Ark. Dep’t of Human Servs., 337 Ark. 353, 990 S.W.2d 509 (1999). However, we do give a high degree of deference to the trial court, as it is in a far superior position to observe the parties before it and judge the credibility of the witnesses. Dinkins v. Ark. Dep’t of Human Servs., 344 Ark. 207, 40 S.W.3d 286 (2001). In order to terminate parental rights, a trial court must find by clear and convincing evidence that termination is in the best interest of the juvenile, taking into consideration (1) the likelihood that the juvenile will be adopted if the termination petition is granted; and (2) the potential harm, specifically addressing the effect on the health and safety of the child, caused by returning the child to the custody of the parent. Ark.Code Ann. § 9-27-341(b)(3)(A)(i) & (ii) (Repl. 2009). Additionally, the trial court must find by clear and convincing evidence that one or more statutory grounds for termination exists. Ark.Code Ann. § 9-27-341(b)(3)(B). Here, L-J.C.’s siblings had suffered severe abuse — even fatal in L.C.’s case— while in the care of Jeremiah and Julie Calahan. In the adjudication order, the trial court found \|fiby clear and convincing evidence that either Julie or Jeremiah had caused the death of L.C. and that Jeremiah had caused severe physical injury to L.D. While the Calahans did appeal the adjudication order, Calahan v. Arkansas Dep’t of Human Servs., 2011 Ark. App. 165, 2011 WL 714966, they did not challenge the sufficiency of the evidence of the finding of dependency/neglect made at the adjudication hearing. It is clearly not in L.J.C.’s best interest to be returned to Calaharis custody. Calahan’s stepson had been severely injured while in Calaharis custody, and Calahan’s daughter had suffered fatal injuries. Given such evidence, the trial court is not required to return L.J.C. to the Calahans’ custody to see if she will also be injured. Furthermore, L.J.C. was clearly adoptable, as her foster mother testified that she would like to adopt her if parental rights were terminated. With respect to the grounds for termination, only one ground is required to be proven for termination. Myers, supra. Here, the trial court found that LJ.C.’s life could be endangered based on the fact that L.D. had suffered severe physical injury at Calaharis hands, which satisfies one of the grounds to be proven for termination. Adverse Rulings There were several rulings during the course of the termination hearing adverse to Calahan. First, during Lisa Wall’s testimony, she began to testify as to what a physician had told her caused L.D.’s injuries; Calaharis attorney objected on the basis that it was hearsay and that Calahan could not confront the doctor with regard to his opinions because the doctor was not being called as a witness. The trial court overruled the \|7objections; however, Wall did not testify to anything the doctor told her. Therefore, this adverse ruling provides no basis for reversal. The next adverse ruling occurred when Wall was testifying about the injuries L.D. suffered that caused his removal from the Calahans’ home and whether L.D. had suffered any further injuries after being removed from the home. Cala-han’s attorney objected on the basis that that information was not relevant to the termination hearing. The trial court overruled the objection. A circuit court’s evi-dentiary rulings are reviewed for an abuse of discretion. Cotton v. Arkansas Dep’t of Human Servs., 2012 Ark. App. 455, 422 S.W.3d 130. “Relevant evidence” is defined as “evidence having any tendency to make the existence of any fact than is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Ark. R. Evid. 401. Here, the question was relevant. It was necessary to determine if L.J.C. would be safe if she remained in the Cala-han home. Jeremiah Calahan had told authorities that L.D. had injured himself; therefore, it was relevant to know whether L.D. had injured himself after he was removed from the home, or if Jeremiah Cala-haris explanation for the injuries was likely untruthful. During Calaharis testimony, counsel for DHS showed him the report from the psychological examination performed on him and asked him to read from it. Calaharis counsel objected on the basis that his client could not identify the report, and the document had to be authenticated in order to be introduced or read into the record. The trial court ruled that DHS could proceed regarding the diagnosis because Cala-han recalled \|8tbe evaluation, but ruled that DHS could not ask Calahan what the psychological evaluator actually said. Ca-lahan testified that the evaluation stated that he was diagnosed with narcissism; however, no other line of questioning on this issue was pursued. This adverse ruling does not create a meritorious issue. Next, DHS counsel asked Calahan if he was aware that L.D. had indicated that Calahan was the person who punched him in the stomach. Calaharis counsel objected on the basis of hearsay, and the trial court ruled that the question had been asked and answered earlier. Cala-han then responded that L.D. would sit and hit himself, and “other people also seen that.” DHS objected on the basis of hearsay, which the trial court sustained. Calahan then testified that L.D. was caught at the hospital hitting himself and that the hospital employees saw L.D. hit himself. DHS moved to strike that testimony, which the trial court granted. As Calahan’s counsel points out, it is unclear from the testimony whether other people told Calahan that they had seen L.D. hitting himself, or if other people were present when Calahan saw L.D. hitting himself and saw it as well. Even if the statement was not hearsay and should have been allowed into evidence instead of being stricken, there was no prejudice. In the adjudication order, the trial court found that Calahan had caused L.D.’s injuries, a finding that was not appealed. Therefore, these adverse rulings do not present any meritorious issues for reversal. Next, Calahan testified that he was not sure how long it was between L.D. being injured and when L.C. was taken to the hospital. As he continued to testify about L.C., his counsel objected to any further testimony about L.C. because DHS had previously ^entered testimony that Calahan’s wife, Julie, had pleaded guilty to causing L.C.’s death, that no charges regarding L.C.’s death were brought against Calahan, and that Calahan had nothing to do with L.C.’s death. DHS counsel responded that he was only trying to show Calahan’s response after learning that L.C. was injured. The trial court allowed the line of questioning. Calahan testified as to the information he received about L.C.’s injuries. Nothing in this testimony was harmful to Calahan and in fact showed his concern about what happened to L.C. The last adverse ruling occurred when Calahan testified that L.D. had been diagnosed with oppositional defiant disorder (ODD) and was bipolar. DHS objected to Calahan giving diagnoses, and the trial court sustained the objection. Calahan’s counsel then rephrased the question, asking what medications L.D. was taking, and Calahan was allowed to testify that the medications were for ODD and bipolar disorder. Therefore, L.D.’s diagnoses were ultimately entered into evidence. Calahan’s Pro Se Points Calahan’s statement of points is an argument that his attorney was ineffective because she believed that he was guilty and did not try to defend him at the hearing. However, this objection was not made to the trial court, and therefore it cannot be addressed now on appeal. Arkansas appellate courts will not consider a claim of ineffective assistance of counsel as a point on appeal unless it was first raised in the trial court. Weaver v. Arkansas Dep’t of Human Servs., 2011 Ark. App. 680, 2011 WL 5429565. lipAfter carefully examining the record and the brief presented to us, we hold that counsel has complied with the requirements established by the Arkansas Supreme Court for no-merit appeals in termination cases and conclude that the appeal is wholly without merit. Accordingly, counsel’s motion to withdraw is granted and the order terminating Calahan’s parental rights is affirmed. Affirmed; motion to be relieved granted. WOOD and BROWN, JJ., agree. . Julie Calahan’s parental rights were also terminated in this order, but she is not a party to this appeal.	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SMITH, J. Appellants seek by this suit to enjoin the directors of Common School District No. 51 of White County, Arkansas, from building a room or an addition to the school building of the district without first submitting the matter to the electors of the district. From the agreed statement of facts in the case it appears that the district owned a schoolhouse twenty by thirty-four feet, which answered the purposes of the district until the school attendance had so far increased that another room became necessary. The matter of its construction was discussed at the annual school meeting, but no action thereon was taken by the electors, although a tax of seven mills was voted for general school purposes. Thereafter, without any authorization' from the electors, the directors undertook to erect an addition or an L to the school building, the same being eighteen by twenty feet, and this suit was brought to enjoin that action. The complaint was dismissed for want of equity, and this appeal has been duly prosecuted. The district directors claim that authority for their action is found in section 7614 of Kirhy’s Digest. It is there provided that the directors shall have charge of the school affairs and of the school educational interests of their district, and shall have the care and custody of the school houses and grounds, the books, records, papers and other property belonging to the district, and shall carefully preserve the same, preventing waste and damage. It is there also provided'that they shall purchase or lease such schoolhouse site as may be designated by a majority of the legal voters at the district meeting, and shall hire, purchase or build a schoolhouse with funds provided by the district for that purpose, and may sell or exchange such site or schoolhouse when so directed by a majority of the electors of any legal meeting of the district. This statute was construed by this court in the case of Fluty v. School District, 49 Ark. 94, where it was held that the directors of a school district had no power to build a schoolhouse with the funds of the district unless authorized so to do by the annual school meeting, and upon the authority of that case appellants insist that the same authorization is necessary to build a portion of a building as is required to build a complete building. We do not think, however, that the powers of the directors are thus circumscribed. Certain things stated above may not be done by them until authority to act has been first conferred by the electors; but the directors are given charge of the school affairs and of the educational interests of their district subject to the limitations stated. The directors here are not proposing to select a site for the building, nor to build a schoolhouse, within the meaning of the statute, but are only making needed improvements upon the building already on the grounds, and we are of the opinion that this is one of those incidental things contemplated in the general grant of authority to have charge of the school affairs and of the school educational interests of their district. Decree affirmed.	[ 116, -2, -36, 108, 26, 97, 90, -106, 97, -93, 100, -45, -19, 94, 4, 119, -93, 63, 81, 120, -57, -77, 83, -32, -78, -5, -1, -57, -67, -57, -12, -34, 76, 53, -62, -35, 70, -62, -51, -40, -114, -127, -86, 110, -35, -126, 56, 111, 122, 15, 37, 94, -13, 40, 28, -61, 77, 46, 89, -81, 64, -13, -102, -107, 125, 7, -79, 118, 26, -63, -56, 40, -40, 49, 12, -24, 115, -90, 2, 116, 13, -119, 8, -96, 98, 2, -87, -9, -16, -120, 22, 51, 61, -26, -109, 25, 114, 13, -66, 30, 117, 16, -113, 122, -25, -59, 83, 124, -115, -49, -14, -73, -115, 49, -125, 3, -21, 10, 48, 113, -53, -50, 94, -63, 19, 27, -50, -8 ]
PER CURIAM. bin 2009, appellant Dellemond Cunningham was found guilty of being an accomplice to aggravated robbery, an accomplice to theft of property, and a felon in possession of a firearm, as well as intimidating a witness. An aggregate sentence of 444 months’ imprisonment was imposed. He appealed the conviction for witness intimidation, and the Arkansas Court of Appeals affirmed. Cunningham v. State, 2010 Ark. App. 130, 2010 WL 475348. Appellant subsequently filed in the trial court a timely pro se petition for postconviction relief pursuant to Arkansas Rule of Criminal Procedure 37.1 (2009). The petition was denied, and appellant brings this appeal. This court has held that it will reverse the circuit court’s decision granting or denying postconviction relief only when that decision is clearly erroneous. Pankau v. State, 2013 Ark. 162, 2013 WL 1694909; Banks v. State, 2013 Ark. 147, 2013 WL 1491272. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. The grounds advanced by appellant for reversal of the order consist of a series of \|2allegations that he was not afforded effective assistance of counsel at trial and an allegation of prosecutorial misconduct. A review of the Rule 87.1 petition and the order reveals no error in the trial court’s decision to deny the petition. When considering an appeal from a trial court’s denial of a Rule 37.1 petition, the sole question presented is whether, based on a totality of the evidence under the standard set forth by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the trial court clearly erred in holding that counsel’s performance was not ineffective. Taylor v. State, 2013 Ark. 146, 427 S.W.3d 29. The benchmark for judging a claim of ineffective assistance of counsel must be “whether counsel’s conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result.” Strickland, 466 U.S. at 686, 104 S.Ct. 2052. Pursuant to Strickland, we assess the effectiveness of counsel under a two-prong standard. First, a petitioner raising a claim of ineffective assistance must show that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the petitioner by the Sixth Amendment to the United States Constitution. Williams v. State, 369 Ark. 104, 251 S.W.3d 290 (2007). There is a strong presumption that trial counsel’s conduct falls within the wide range of professional assistance, and an appellant has the burden of overcoming this presumption by identifying specific acts or omissions of trial counsel, which, when viewed from counsel’s perspective at the time of the trial, could not have been the result of reasonable professional judgment. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55; McCraney v. State, 2010 Ark. 96, 360 S.W.3d 144 (per curiam). Second, the petitioner must show that counsel’s deficient performance so prejudiced petitioner’s defense that he was deprived of a fair trial. Holloway v. State, 2013 Ark. 140, 426 S.W.3d 462. A petitioner making an ineffective-assistance-of-counsel claim must show that his counsel’s performance fell below an objective standard of reasonableness. Abernathy v. State, 2012 Ark. 59, 386 S.W.3d 477 (per curiam). The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the errors. Howard v. State, 367 Ark. 18, 238 S.W.3d 24 (2006). A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. Id. The language, “the outcome of the trial,” refers not only to the finding of guilt or innocence, but also to possible prejudice in sentencing. Id. Unless a petitioner makes both showings, it cannot be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. “[T]here is no reason for a court deciding an ineffective assistance claim ... to address both components of the inquiry if the defendant makes an insufficient showing on one.” Strickland, 466 U.S. at 697, 104 S.Ct. 2052. Appellant’s first point on appeal is that the prosecutor failed to timely disclose the name of an expert witness on gangs, causing interruption of trial preparations as well as a potential Brady violation based on any benefit he might have gained from the State’s witness. The United States Supreme Court, in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), held that “the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material to guilt or punishment, irrespective of the good faith or bad faith of the prosecution.” Brady, 373 U.S. at 87, 83 S.Ct. 1194. The undisputed evidence at the Rule 37.1 hearing was that the trial court excluded the testimony of the expert witness based on a lack of qualifications and 14untimely disclosure, and appellant admits that the expert witness did not testify at trial. Thus, appellant fails to demonstrate prejudice stemming from the alleged prosecutorial misconduct based on untimely disclosure. Moreover, allegations of prosecutorial misconduct could have been raised and addressed at trial. It is well settled that a claim of prosecutorial misconduct standing alone is not a ground for postconviction relief. Johnson v. State, 2012 Ark. 225, 2012 WL 1877343 (per curiam). In a related argument, appellant contends that his counsel was ineffective for failing to ask for a continuance following the State’s disclosure of the expert witness on the basis that the defense may have benefited from the testimony of the expert or had time to consult with its own expert witness on gangs. At the hearing, appellant’s attorney testified that she sought to exclude the testimony rather than move for a continuance based on a strategic decision not to emphasize the role of gangs in the case. Where a decision by counsel was a matter of trial tactics or strategy, and that decision is supported by reasonable professional judgment, then such a decision is not a proper basis for relief under Rule 37.1. Mitchem v. State, 2011 Ark. 148, 2011 WL 1319579 (per curiam). Because the decision to move to exclude the testimony rather than seek a continuance was a strategic decision supported by reasonable professional judgment, appellant’s claim of ineffective assistance must fail. For his third argument on appeal, appellant maintains that his counsel was ineffective for failing to excuse a biased juror. During voir dire, appellant’s counsel asked a juror if she thought appellant should testify on his own behalf. The juror, who was later seated on the jury, responded by saying that “if he has nothing to hide, it won’t hurt anything.” Appellant claims Isthat the juror’s response indicates a predisposition for bias on the part of the juror that could not be overcome based on his intention not to testify at trial, a fact that he claims was known by his attorney. Appellant’s attorney testified at the Rule 37.1 hearing that she did not believe that the juror’s response was an indication of bias and that “a lot of people ... would like a defendant to testify but it doesn’t mean they’re gonna hold it'against him and she never stated that she would hold it against [appellant].” Counsel also testified that she believed that the juror would be a favorable juror for appellant based on her background and training as well as her responses to other questions and the fact that she was the only African-American juror, the same race as appellant. Finally, during the voir dire phase, the trial court asked the jurors if they could follow the instruction that “[t]he fact that the Defendant did not testify is not evidence of his guilt or innocence and under no circumstances shall be considered by you in arriving at your verdict or verdicts.” All of the jurors, including the juror at issue, responded in the affirmative. The decision to accept or exclude a particular juror may be a matter of trial strategy or technique. Butler v. State, 2011 Ark. 435, 384 S.W.3d 526 (per cu- riam). Matters of trial strategy and tactics are not grounds for a finding of ineffective assistance of counsel. Id. Based on the testimony given by appellant’s trial counsel with regard to the juror’s response, we cannot say that the trial court erred in finding that the decision to keep the juror was anything other than trial strategy. Moreover, appellant has failed to demonstrate that he was prejudiced by the juror’s having been seated. Jurors are presumed unbiased and qualified to serve. Burton v. State, 2011 Ark. 351, 2011 WL 4092783. To prevail on an allegation of ineffective assistance of counsel with regard to jury \| (¡selection, a petitioner has the heavy burden of overcoming the presumption that jurors are unbiased. Id. Here, the trial attorney made the tactical decision that the juror was not biased and would be a favorable juror for appellant, and the juror affirmed that she would not consider the fact that appellant did not testify as evidence of guilt or innocence. Thus, appellant has failed to meet his burden of proving that the juror was actually biased against him; thus, his claim of ineffective assistance of counsel based on this point fails. Appellant next asserts that his counsel provided ineffective assistance as a result of her failure to request a mistrial following the admission of testimony from a detective as to statements made by appellant’s accomplice. Appellant’s counsel objected to the detective’s testimony as inadmissible hearsay, and the trial court overruled the objection on the basis that the testimony was not being offered for the truth of the matter asserted. Following the testimony, counsel renewed her objection, and the trial court stated that it had already ruled on the objection and then gave a limiting instruction. At the Rule 37.1 hearing, counsel testified that because her objection had been overruled, a motion for mistrial would have been “fruitless” and that she believed her remedy was on appeal. A mistrial is a drastic remedy that should be granted only when justice cannot be served by continuing the trial. Hogan v. State, 2013 Ark. 223, 2013 WL 2295431 (per curiam). The circuit court has the sound discretion to decide whether to grant a mistrial, and this decision will not be overturned absent a showing of abuse or upon manifest prejudice to the complaining party. Id. We have held that a mistrial should be employed only when the error cannot be cured by an instruction to the jury. Zachary v. State, 358 Ark. 174, 188 S.W.3d 917 (2004). Not only does appellant fail 17to demonstrate that a mistrial was warranted, but also he fails to present any evidence that a motion for mistrial would have been granted, particularly in light of the trial court’s overruling of counsel’s objection. Appellant next contends that he was denied effective assistance of counsel because his counsel failed to properly introduce a transcript of a police interview of Barving Price. The conviction of appellant for intimidating a witness was based on a finding that he threatened Price for the purpose of influencing his testimony, and this conviction was affirmed on appeal. Cunningham, 2010 Ark. App. 130, 2010 WL 475348. During the testimony of a police detective at trial, appellant’s counsel unsuccessfully attempted to introduce a transcript of a police interview of Price by the detective in response to the State’s theory that appellant threatened Price as a result of the interview. The trial court, following an objection from the State, found that the transcript was inadmissible as follows: Again, counsel, one, you had an opportunity when that witness [Price] was testifying to offer it and it was not offered so clearly had there been an objection to that testimony when this witness testified that objection would be sustained. But under, third, and more importantly, under the rules of evidence, that for any purpose is not admissible so for all those reasons I’ve sustained the State’s objection. Appellant contends that his counsel committed prejudicial error because the trial court would have allowed the admission of the interview transcript during the testimony of Price. He further contends that prejudice resulted because the transcript would have shown the disparity in treatment that he and Price received from the police during their respective interviews. Based on the trial court’s finding that the Price interview was not admissible for any purpose, appellant’s argument that the interview would have been admitted if offered during the \| ^testimony of Price must fail. Moreover, appellant fails to establish that he was even prejudiced when the transcript was not admitted because he fails to demonstrate how the alleged disparity in police interview techniques had any relevance to the charges against him. Finally, appellant alleges that he received ineffective assistance of counsel based on counsel’s failure to object to hearsay testimony by the witness, Price. While appellant contends that these statements were prejudicial because they implied that he was an active participant in the robbery, he does not state with any particularity on appeal which statements he is referencing. The burden is entirely on the petitioner in a Rule 37.1 proceeding to provide facts that affirmatively support the claims of prejudice. Payton v. State, 2011 Ark. 217, 2011 WL 1805840 (per curiam). Neither conelusory statements nor allegations without factual substantiation are sufficient to overcome the presumption that counsel was effective, and such statements and allegations will not warrant granting postconviction relief. Id. A court is not required to research or develop arguments contained in a petition for postconviction relief. Id. In order to demonstrate prejudice for failure to object, appellant must have submitted facts to support the proposition that counsel could have raised a specific meritorious argument and that failing to raise a specific argument would not have been a decision supported by reasonable professional judgment. Jones v. State, 2011 Ark. 528, 2011 WL 6091468 (per curiam). Appellant’s reference to hearsay during the testimony of Price, without identifying on appeal the specific statements that he alleges warranted an objection, is not sufficient to support a claim of ineffective assistance of counsel. Further, even if appellant’s general reference to alleged hearsay in Price’s testimony was considered sufficiently specific, his argument must still fail. The unspecific nature of the \|saIlegation does not demonstrate prejudice. Whether to object to hearsay is ordinarily a matter of trial strategy, and appellant has not shown that counsel made a specific error or that counsel’s conduct was not supported by reasonable professional judgment. See Hoyle v. State, 2011 Ark. 321, 388 S.W.3d 901 (per curiam). Experienced advocates might differ about when, or if, objections are called for since, as a matter of trial strategy, further objections from counsel may succeed in making the comments seem more significant to the jury. Nance v. State, 339 Ark. 192, 4 S.W.3d 501 (1999). As a matter of trial strategy, counsel’s decision not to object to any alleged hearsay cannot be considered a ground for postconviction relief. Appellant’s claims fail to rebut the presumption that counsel’s conduct was within the wide range of reasonable professional assistance under Rule 37.1. See Weatherford v. State, 363 Ark. 579, 215 S.W.3d 642 (2005) (per curiam). Having considered the arguments raised by appellant in this appeal, the record, and the order rendered by the trial court, there is no ground on which to reverse the trial court’s ruling. Accordingly, the order is affirmed. Affirmed.	[ 112, -22, -19, -67, 75, 64, 18, -68, 65, -121, 111, 81, -89, -26, 0, 123, -5, 77, 80, -23, -60, -78, 7, 65, -62, -13, 81, 84, -73, 107, -26, -37, 12, 112, -30, -43, 102, 68, -9, 80, -114, 5, -102, 100, 112, 5, 116, 56, 20, 15, 49, -100, -29, 42, 16, -53, 73, 44, 75, 61, 72, -71, -118, 13, -49, 20, -95, 36, -6, 6, 112, 62, -108, 57, 3, -7, 114, -106, -126, 116, 75, 25, 44, 100, 98, 1, 80, -57, 40, -84, 62, 62, -99, -90, -40, 73, 75, 13, -106, -11, 119, -106, 15, 124, 119, 29, 56, 108, -120, -49, -108, -77, -81, 28, -108, -109, -21, 33, 20, 116, -52, -30, 92, 87, 57, -102, -114, -43 ]

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