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George Rose Smith, J. Appellant was indicted for burglary and grand larceny and appeals from a judgment sentencing liim to imprisonment for ten years. I)odd Teague, an accomplice in the commission of tlie crimes, had pleaded guilty to a separate indictment charging him with the same offenses. The evidence was amply sufficient to sustain the jury’s verdict, but the State was permitted to introduce the record of Teague’s plea of guilty. We passed upon the same question in Hammond v. State, 373 Ark. 674, 293 S.W. 714, and held that the admission of such evidence constitutes prejudicial error. ,The judgment must therefore be reversed.

Holt, J. Appellant sought by this action to recover death benefits under the terms of a health and accident quarterly term policy issued by appellee September 3, 1940, to Anna Powell, appellant’s wife. Anna Powell was accidently killed January 5, 1948. Appellee, insurance company, contended that the policy was not in effect at the time the insured met her death and the trial court, a jury having been waived, sustained appellee’s contention. This appeal followed. It appears to be undisputed that following the issuance of the policy the first premium paid the insurance to twelve o’clock noon January 1, 1941, and that for the year 1941, and the first half of 1942, each quarterly premium was made on the first day of each quarter. The quarterly payment of $4.50 due July 1,1942, was paid September 9, 1942, a receipt countersigned by the company issued to the insured to the effect that the policy was reinstated on that day, September 9, for accidents sustained thereafter until twelve o’clock noon, standard time, December 1, 1942. This September 9th payment was credited by the company to the months of September, October and November, 1942, there being no coverage until September 9th. Next quarterly premium was paid December 16, 1942, and credited to months of December, 1942, January, 1943, and February, 1943. (No coverage between December 1, 1942, and December 16.) Quarterly premium paid March 15, 1943, credited to months of March, April, and May. (No coverage between March 1, 1943, and March 15, 1943.) Appellee thereafter accepted late quarterly premiums on June 21, 1943, June 12, 1945, October 15, 1945, October 10, 1946, and on October 14, 1947. The last quarterly premium was paid by the insured October 14, 1947, which payment was credited by appellee to the remainder of October, all November and December, 1947, there being no coverage between October 1 and October 14. Appellee reinstated the policy on such dates, but its contention was that coverage was limited to the remainder of the month in which reinstatement occurred and the succeeding two months only, or until the next quarterly premium was due and payable on the first day of the next regular quarter. In other words, appellee contends that this last quarterly premium here was restricted to coverage for the remainder of October in which reinstatement occurred and the succeeding two months only, making another quarterly premium due and payable on the first day of the next regular quarter, January 1, 1948. Appellant argues that this quarterly premium pay. ment on October 14th required appellee to give to the insured a full three month’s coverage, dating from October 14th, which would carry the coverage to January 15, 1948, and beyond the date of insured’s death, January 5, 1948. • It appears that a receipt countersigned by appellee was issued to the insured when each quarterly payment was made. All receipts were alike except as to date. The one here involved provided: “Payment of this premium receipted for, if made on or before the date to which premiums have already been paid, keeps your policy in continuous effect, and if made after that date, reinstates the policy on the date of this receipt, as provided in policy, until twelve o’clock noon, Standard time, January 1, 1948, at which time another premium will be due.” The insurance contract involved provides that protection ceases when premiums are unpaid, but that reinstatement may be effected by subsequent payment of premium. The policy provides: “If default be made in the payment of the agreed payment for this policy, the subsequent acceptance of a premium by the Association . . . shall reinstate the policy but only to cover accidental injuries thereafter sustained and such sickness as may begin more than ten days after the date of acceptance. ’ ’ Paragraph C provides: ‘ ‘ The term of this policy begins at twelve o’clock noon, Standard time, on date of delivery to and acceptance by the insured against accident and on the thirty-first day thereafter against disease, and ends at twelve o’clock noon on .date any renewal is due.” Appellant thus states the issues: “1. Where an accident policy provides that it will lapse if premiums are not paid, but may be reinstated upon subsequent acceptance of a premium by the company, may coverage after reinstatement be restricted to a period less than the premium pays for if the policy omits such restriction? 2. Where receipts are issued for premiums given to reinstate a policy, do these receipts become a part of the policy and add to its terms?” His position is “that premiums and coverage must be coextensive — that under the contract no penalty was provided for late payment, hence none could be assessed; that issuance of a receipt by the company could not change the contract, because such action was wholly unilateral, there being no evidence of assent by insured, her silence or failure to protest being insufficient basis on which agreement could be predicated.” Appellee, on the other hand, in effect, earnestly contends that reduced coverage was contemplated and necessary when the insurance was reinstated because appellee was put to extra expense to secure reinstatement (reinstatement being optional with appellee), that the insured understood and agreed to this condition for the reason that she accepted the receipts without protest, that the receipt thereby became a part of the insurance contract, and insured (as well as appellant here) was bound by its provisions. The question presented seems not to have been heretofore decided by this court. The essential facts appear not to be in dispute. The insurance contract alone contains no provision upholding appellee’s contention that each quarterly premium when paid kept the policy in force only for the remainder of the month in which payment was made and the remaining two months, or until the next quarterly due date. Unless, therefore, the receipt countersigned by the company, and issued to the insured, became a part of the insurance contract, or unless the insured is bound by accepting same without objection, then appellant would be entitled to prevail in this action. No rule is better settled than that insurance contracts which are prepared by the company, when any doubt arises as to construction, must be construed most strictly against the insurer. The contract before us contains no provision that reinstatement will date from the first day of the next quarter. It contains no provision making the receipt a part of the contract of insurance. Obviously, it would have been an easy matter for the company to have so provided in the policy by a simple provision to the effect that any fractional part of a month remaining after the date of reinstatement should be paid for by the insured as a full month, or that the receipt would become a part of the contract of insur anee. Nor do we think that the acceptance of these receipts by the insured, without protest, and which she did not sign, made it a part of the contract, or that by such acceptance insured was bound by its provisions, in the circumstances. The general or prevailing rule of law applicable to situations such as are presented here, is stated in Vol. 167 A.L.R., under the Annotations — Insurance-Reinstatement-Coverage, p. 340, § b. Other insurance, in this language: “Where an insurance policy is by its nature a term insurance contract, providing for no grace period, . . . it would seem that the effective date of coverage should begin at the date on which the policy is reinstated, running prospectively for that period which the amount of premiums paid will purchase. In the ordinary policy of health and accident insurance the exact duration of the risk assumed by the insurer is set out, and such policies, even without express provisions to that effect, are generally regarded as a species of term insurance, not renewable except with the consent of the insurer, differing in this respect from the policies of life insurance, wherein the right of reinstatement is preserved to the insured as a contractual right. . . . “In connection with health and accident policies the prevailing rule seems to be that reinstatement has a prospective effect dating from the time of reinstatement. The theory underlying this rule is predicated, inter alia, on the view that reinstatement is, in effect, a renewal for another term, creating a new contract prospective in nature, and, as reinstated or renewed, the policy covers losses thereafter sustained. Equally persuasive to the courts is the knowledge that a retroactive dating would unjustly deprive the insured of insurance protection for which he has paid, and would have the effect of compelling the insured to pay for insurance throughout a period for which the insurer is admittedly not liable. ’ ’ Bearing in mind that the policy here in question is a quarterly term policy, with no grace period, when reinstatement is permitted, as here, we think a full term of three months was contemplated, creating a new contract prospective, in effect, to cover “accidental injuries thereafter sustained.” Certainly, it would be unjust to require the insured to pay for insurance over a period, when she was not covered and during which time no liability or risk attached to the insurance company. Appellee seems to rely strongly on such cases as American National Insurance Company v. Otis, 122 Ark. 219, 183 S. W. 183, L. R. A. 1916E, 875, but that case is clearly distinguishable. There, the policy contains a reinstatement clause which provided (quoting from the opinion) “that the company would not be liable for death occurring within five weeks from the date of the reinstatement, etc.” There, reinstatement occurred on the fourth day of January, 1915, and the insured died January 19, 1915. The reinstatement clause, supra, is far different and contains no such provisions as in this Otis case. So, also, is the case of National Equity Life Insurance Company v. Bourland, 179 Ark. 398, 16 S.W. 2d 6, distinguishable. That case involved the construction of a life insurance contract which, together with a rider attached, contained provisions not present in the contract now before us and upon which the opinion was based. Accordingly, the judgment is reversed and the cause remanded for further proceedings. McFaddin, J., concurs. The Chief Justice did not participate in the consideration or determination of this case, nor did he attend the conference at which it was discussed.

Robert A. Leflar, J. Nathaniel Williams was convicted of the felony of possessing an illicit still, and he appeals. (1) The original information filed in this case omitted the name of the defendant from its charging sentence, as follows: “ ... accusing............................................., of the crime of possessing an illicit still committed as follows, to-wit: The said Nathaniel Williams in the County and State aforesaid, on the 12th day of December, 1948, did unlawfully and feloniously keep in his possession a still . . .”, etc. After motion to quash because of this omission, the Court allowed the Prosecuting Attorney to amend the information by inserting the name of Nathaniel Williams in the blank therein. This amendment was permissible, and the Judge committed no error in allowing it, inasmuch as there could previously have been no doubt as to who was accused by the information. Under the circumstances the amendment related to form only. See Ark. Stats. (1947) § 43-1024. Furthermore, after the motion to quash was overruled, the defendant pleaded guilty to the offense charged in the information. “A plea of guilty waives any defect not jurisdictional, and which may be taken advantage of by motion to quash or by plea in abatement.” Hudspeth v. State, 188 Ark. 323, 326, 67 S. W. 2d 191, 192. Accord: Weir v. United States, 92 Fed. 2d 634, 114 A. L. R. 481. Finally, the appellant failed to bring forward this exception into his motion to set aside the judgment. For that reason also it is without merit here. (2) Appellant contends that his offense, as of December 12, 1948, when it was admittedly committed, was a misdemeanor only rather than a felony, and that he was improperly convicted and sentenced for commission of a felony. Act 200 of 1949, making the possession of an illicit still a felony,-was in force at the time of trial, but did not apply to an offense committed in 1948. Act 206 of 1947 made the possession of an illicit still a misdemeanor only. This Act was vetoed by the Governor, then enacted over the Governor’s veto on March 11,1947, but with an inadequate emergency clause, so that it did not become operative until June 10, 1947,’ ninety days after the General Assembly adjourned. Ark. Const., Arndt. 7. Act 391 of 1947 made the possession of an illicit still a felony. This Act included a valid emergency clause, was approved by the Governor on March 28, 1947, and became law on that day, effective at once. Appellant’s contention is that since Act 206 did not become effective until June 10,1947, it was the later law, and repealed Act 391. This is not correct. Act 206 became a law on March 11, 1947, when it ivas passed over the Governor’s veto, even though its effective operation was postponed ninety days by the Initiative and Referendum Amendment. And Act 391, enacted later, repealed all prior conflicting laws, including Act 206, whether they were then effective or effective only at some future date. ‘ ‘ Statutes do not always take effect upon their enactment but the effective date may be postponed either by virtue of their own provisions, or by the terms of a general law or a constitutional requirement upon the subject. ... It sometimes happens that the legislature at the same session will enact two laws which are irreconcilable. Where this happens, the one which is the latest expression of the legislative will should prevail ; the other will be repealed by implication. ’ ’ Crawford, Statutory Construction (1940) §§ 105, 313. “As between two acts, it has been held that one passed later and going into effect earlier will prevail over one passed earlier and going into effect later. Thus, an act passed April 16th and in force April 21st was held to prevail over an act passed April 9th and in effect July 4th of the same year.” Lewis’-Sutherland on Stat utory Construction (2d Ed., 1904) § 280, citing Dewey v. Des Moines, 101 Iowa 416, 70 N. W. 605. And see People v. Mattes, 396 Ill. 348, 71 N. E. 2d 690. That the legislative intent of the 1947 General Assembly was in accord with our conclusion, favoring Act. 391, is shown by its Calendar, establishing that final action on Act 391 was taken in the legislature itself, and not merely by the Governor, after Act 206 had been passed over the Governor’s veto. Enactment by the 1949 General Assembly of a law (Act 200) repeating the provisions of Act 391 of 1947 proves no more than that there was confusion as to which 1947 enactment was the law, and the 1949 legislature wanted to end the confusion as soon as possible. It has no tendency whatever to establish a 1947 legislative intent that the rejected Act 206 should prevail. The judgment of the Circuit Court is affirmed.

Robins, J. Appellant sued appellee for $1,533.54 which she alleged was due her (under § 9084, Pope’s Digest) for overtime work done by her as a waitress for appellee. Appellee’s answer was a general denial and plea of accord and satisfaction. A jury found issues in favor of appellee and from judgment on the verdict this appeal is prosecuted. Appellee has filed a motion to affirm for noncompliance with Rule 9' of this court, in that appellant has failed to make and file abstract as required by this rule. This motion must be granted. The motion for new trial contains eight paragraphs and as abstracted reads: “Motion for a New Trial provides: The verdict of the jury is contrary to the law, facts; the law and facts. The court erred in its instructions to the jury, etc.” No abstract of the instructions given by the court has been made. Two instructions given at the request of appellee, and thought by appellant to be erroneous, are copied in the argument portion of appellant’s brief. Other instructions were given, but without a search of the transcript we have no way of knowing whether the instructions, as a whole, correctly presented the case to the jury. We have uniformly held that where, as here, there is no record error in the judgment appealed from, it must be affirmed when appellant fails to file proper abstract and same is not supplied by appellee. Crouch v. Gilbert, 210 Ark. 885, 198 S. W. 2d 72; Pool v. Shuffield, 213 Ark. 975, 214 S. W. 2d 223. The judgment is affirmed.

Holt, J. John M. Prince, appellee, sued appellant, Power Company, for a substantial sum to compensate-for personal injuries alleged to have been received at about 3:30 in the afternoon on January 15, 1948, while he was assisting his brother and father in lifting a 134-inch metal pipe from a well and the pipe came in contact with a 7,620-volt electric wire. He alleged, in effect, (1) that appellant was negligent in stringing its uninsulated wire over the corner of his brother’s, B. L. Prince, yard without right and was a trespasser, (2) that its power poles so resembled telephone poles as to confuse appellee, (3) that appellant strung its uninsulated wires at an insufficient height to prevent physical contact, and (4) allowed the electric wire in question here to sag to a point where it would be dangerous. Appellant denied any negligence on its part and affirmatively pleaded contributory negligence of appellee. From a judgment in the amount of $1,500 is this appeal. For reversal, appellant earnestly contends (1) that there was no substantial evidence to support the verdict and that the court erred in refusing its request for an instructed verdict at the close of all the testimony, (2) that there were errors in certain instructions, and (3) that the verdict was excessive. The conclusions we have reached make it necessary to consider appellant’s first contention only — the sufficiency of the evidence. The evidence, considered in the light most favorable to appellee, as we must, was to the following effect. Appellee’s brother, B. L. Prince, owned a 163-acre farm on Boute 2, Bismarck, Arkansas, near the Caney Community, at an intersection of the highways to Hickory Grove and Antioch. At the time of the injury, appellee and his father were employed by, and assisting B. L. Prince, in lifting a 30-ft. water pump pipe from a well in the front yard of B. L. Prince, when the pipe, while thus being elevated, swayed approximately 9 feet from perpendicular, came in contact with appellant’s high voltage uninsulated electric wire, resulting in appellee’s injury. The wire in question was approximately 23 feet from the ground with no appreciable sag. The power line was of recent and general approved construction, having been placed there in March, 1947, and was installed according to the standards set forth by the U. S. Department of Commerce and the Arkansas Public Service Commission, in fact, appellee so conceded. Appellant’s witness, Walsh, an electrical engineer, on direct examination, testified that the high voltage wire in question was 23 feet above the ground and that there was a. neutral wire beneath 20 feet from the ground which carried no electric current, that “the code requires that wire be 19 feet high.” “Q. Now, what does the regulations of the Department of Commerce require for a line of that kind to be above the ground for that voltage? A. Well, that type of line is covered by a safety code and Rule 232A entitled Basic Clearances, and at that particular location comes under the designation. . . . The Court: For the particular place over there read the regulations pertaining’ to that requirement and that will be sufficient. A.- Locations entitled Public Streets, Alleys or Roads in urban or rural districts, now for lines of voltage. . . . Mr. Cole: If it will help any and to save time, the plaintiff admits into the record that the construction of the line so far as the type of material and the height from the ground and the type of pole and type of insulators all meet the requirements.” Appellee knew that appellant’s high voltage wire was strung on poles along the highway, but did not know that it was over a part of his brother’s yard, as indicated. He knew that his brother, B. L. Prince, had electricity in his home. He had helped his brother install the electric pump at the well and testified that the electric current leading from the house to the pump had been cut off, in fact, the wires disconnected and laid back. He testified that he did not know that the wire in question was above the well, but admitted that it was in plain view and that there was nothing to prevent his seeing it had he looked. In these circumstances, the burden was on appellee to establish some act of negligence on the part of appellant before he conld be entitled to recover. After a careful review of all the testimony, we are unable to find any substantial evidence of any act of negligence on the part of appellant that would warrant recovery. Appellee conceded that appellant had constructed its practically new line in a modern and approved manner, as above indicated. It was in a rather sparsely settled farming area and the line was in plain view for all to see. He argues, however, that since there was substantial evidence that appellant was a trespasser, or had erected the line in question over the corner of his brother’s yard without right, this was such negligence as would justify a recovery. We cannot agree. The rule in a trespass situation is stated in 18 Am. Jur., § 96, p. 490, as follows: “On or Over Private Property. . . . Thus, the Company is liable where ... it maintains an uninsulated high-voltage wire over farm land and the owner thereof was killed when an iron pipe he raised over his head came in contact with the wire (which was 17 ft. above the ground). But the circumstances must be such as to show some negligence on the part of the electric company. 'The- mere maintenance of the high-tension transmission line is not wrongful; and in order to hold the owner liable for an injury, he must he shown to have omitted some precaution which he should have taken.” In the case, in support of the text, cited by the text writer (footnote 17), Card v. Wenatchee Valley Gas & E. Co. (1914), 77 Wash. 564, 137 Pac. 1047, the principle act of negligence on which recovery was allowed was the fact that the wire in question was strung only 17 feet above the ground. Here, the wire was 23 feet above the surface, in a sparsely settled rural community in plain view. We said in Arkansas General Utilities Company v. Wilson, Adm’r, 197 Ark. 351, 122 S. W. 2d 956: “ ’We have repeatedly held that it was the duty of the company to keep its appliances in safe condition, and that either the wires must be kept insulated, or must be so located as to be, comparatively speaking, harmless. If the company does not choose to properly insulate a deadly wire of its maintenance, it must place the same under ground, at a high altitude, or at some inaccessible place.’ Stringing the wire twenty-two feet above the path would appear to be placing it at an inaccessible place, where insulation would not be required, as no one would likely come in contact with it in that position. We think, therefore, that it was error to predicate negligence upon the failure to insulate.” In Arkansas Power & Light Company v. Hubbard, 181 Ark. 886, 28 S. W. 2d 710, Mrs. Hubbard was assisting others in erecting a sign in front of her husband’s place of business. They were raising a pine pole from 24 to 25 feet long to be set in a hole some four feet deep. The sign was attached to the pole. There was a high voltage uninsulated transmission wire about 19 feet overhead. As the pole was being raised into position, the sign, attached to it,, contacted the live wire and appellee was injured by the current. There were four people attempting to raise the pole. We there said: “It must have been apparent to any one of ordinary prudence that there was danger that the pole might fall before it reached the perpendicular, and was set in the ground, and that, if this happened, the pole would come in contact with the bare high-tension wires of the appellant. The appellee knew that the transmission wires were electric wires, but seeks to avoid the consequences of her negligent act by the statement that she did not know the wires were dangerous. . . . “In the case at bar the appellee is a woman of mature years and of sound business judgment, and at least of ordinary intelligence, for she is shown to be capable of managing the business in which she and her husband are engaged, and of earning more than $100 a month. Electricity is used in connection with her busi ness; her home and place of business are lighted by electricity. Appellee must have known that the transmission line, before reaching her place of business, had served others along its route, and that it extended on beyond to a neighboring town carrying on its wires the energy sufficient to serve the needs of that community. Common experience and observation must have given her knowledge that these wires carried a considerable voltage, and that they were dangerous, and whether or not she knew of the dangerous character of the transmission wires, the true test is, what would one of ordinary prudence and caution be presumed to know with reference to such wires, and what would one of such caution and prudence do or ref rain, from doing under similar circumstances? St. L. S. F. R. Co. v. Carr, 94 Ark. 246, 126 S. W. 850; Bulman Furn. Co. v. Schmuck, 175 Ark. 442, 299 S. W. 765, 55 A. L. R. 1039. . . . “Under the undisputed facts of this case, we are of the opinion that the appellee was guilty of negligence contributing to her injury, which bars recovery on her part. The judgment of the trial court is therefore reversed, and the cause is dismissed.” For the error indicated, the judgment is reversed and since the cause appears to have been fully developed, it will be dismissed. Justicés McFaddin and Millwee dissent. Justice G-eorge Rose Smith concurs.

Frank G. Smith, J. Tlie issue in this case is whether or not Act 234 of the Acts of the 1949 session of the General Assembly increased the rate of income taxes by eliminating income taxes paid the United States Government .as an allowable deduction in computing the income taxes due the State. If it did so, it was done in violation of § 2 of Amendment 19 to the Constitution and is invalid for that reason. Amendment No. 19 was not initiated by the people under the I. and R. amendment to the Constitution, but was proposed by the General Assembly at its regular 1933 session, and was approved at the ensuing general election held Nov. 6, 1934, by a large majority. It was proposed as an amendment to Art. V of the original Constitution, which is the article dealing with the title “Legislative Department,” and not as an amendment to Art. XYI, which deals with the title “Finance and Taxation.” The relevant portion of the amendment is found in § 2 thereof .and reads as follows: “None of the rates for property, excise, privilege or personal taxes, now levied shall be increased by the General Assembly except after the approval of the qualified electors voting thereon at an election, or in case of emergency, by the vote of three-fourths of the members elected to each House of the General Assembly.” Act 234 of the Acts of 1949 is entitled: “An Act to Amend Act 118 of the Acts of the General Assembly of the State of Arkansas for the Tear 1929; to Declare an Emergency; and for Other Purposes,” which reads as follows: “Section 1. That Subsection (c) of § 13 of Act 118 of the Acts of the General Assembly, approved March 9, 1929 (Sub-section (c) of § 14036 of . Pope’s Digest) is hereby amended to read as follows : “ ‘(c). Taxes paid or accrued-within the- income year, imposed by the authority of the United States or any of its possessions, or of any State, territory, or any political sub-division of any state, or territory, or the District of Columbia, or of any foreign country, except Estate, Succession or Inheritance taxes, or except income taxes imposed by this Act, and taxes assessed for local benefits of a kind tending to increase the value of the property assessed for such benefits; provided, however, that the deductions herein allowed for taxes imposed by the authority of the United States or of any of its possessions shall not include any allowances or deductions for federal income taxes paid or accrued by the taxpayer within the income year.’ “Section 2. The provisions of this Act shall be applicable to tax years on and after January 1, 1949, as the term ‘tax year,’ defined in Sub-section 11 of § 14025 of Pope’s Digest of the Statutes of Arkansas. “Section 3. That § 2 of Act 135 of the General Assembly, approved March 3, 1947, is hereby repealed.” Attached to this Act and as a part thereof appears in G4 thereof an emergency clause reading as follows: “Section 4. WHEREAS, it has been ascertained that the increased cost of living has placed heavier demands upon the funds of the State of Arkansas than are presently available, and that unless these available funds are increased and supplemented, the necessary functions of our state government are in serious danger of not providing for the necessary protection and benefit for which it is so designed and intended.” Having this emergency clause, the sufficiency of which to declare the existence of an emergency not being questioned, the Act became effective March 3, 1949, when approved by the Governor. Section 2 of Act 135 of the 1947 General Assembly reduced the deduction on exemptions previously allowed of the Federal income tax paid to one-half thereof, instead of the whole amount thereof which had previously-been allowed as a deduction. We have copied in full Act 234 and now, with its provisions before us, attention is called to the fact that it has not one word to say about the rate of taxes or the total amount of taxes. ‘ The basic income tax statute of this State is Act 118 of the Acts of 1929. That act provides that in computing net income for tax purposes a deduction shall be allowed the taxpayer of all income taxes paid the United States. That particular deduction was allowed in full until 1947, when by Act 135 of the 1947 session of the General Assembly, this deduction was reduced to fifty per cent of the income taxes paid by the taxpayer to the United States. This Act was passed by a vote in excess of three-fourths of the members of both houses of the General Assembly and has not been challenged on the ground that it violated Amendment No. 19 to the Constitution. Therefore prior to 1949 all taxpayers, both corporate and individuals, were entitled to a deduction of fifty per cent of.the income taxes paid the United States, in computing their state income taxes. This suit challenges the validity of Act 234 of 1949 eliminating this deduction. Appellee, a citizen and taxpayer of this state, whose income is subject to income taxes due both the state and the Federal Government, filed with the Collector of the state income tax, a report of his income, in which he claimed as a deduction from his total income the exemption allowed by Act 135 of 1947. He was advised by the Commissioner of State Revenues that he was not entitled to that exemption or deduction, whereupon his taxes were computed after disallowing this exemption, and he paid under protest the amount demanded. Whereupon he brought this suit to recover what he alleges was the excess he was required to pay under the provisions of § 14055 Pope’s Digest. Upon his appeal from the determination of the Commissioner as to the amount of taxes due, he was granted the relief prayed, and the Commissioner was directed to return the alleged excess, and from that decree is this appeal. In passing upon the question thus presented certain legal propositions, which are not in dispute, must be held in mind. One of these, as stated in the case of Ouachita County v. Rumph, 43 Ark. 525, is that the right to impose taxes upon citizens and property for the support of the state government may be restricted by the Constitution, but needs no clause to confer it. Another is, as said in the case of Stanley v. Gates, 179 Ark. 886, 19 S. W. 2d, 1000, in which case it was held that the tax imposed by the Income Tax Act of 1929 was not a property tax and therefore not violative of the equality and uniformity clause of the Constitution (§ 5, Art. XVI), that unless inhibited by some constitutional provision the Legislature has power over all matters of taxation and the collection and disbursement of taxes. Still another is that the tax may be imposed only upon the net income, which is defined as the gross income of a taxpayer, less the deductions and exemptions allowed by law. And still another as said in the case of Cook, Commissioner of Revenues, v. Walters Dry Goods Co., 212 Ark. 485, 206 S. W. 2d, 742 that, “We think the allowance or disallowance of taxes as a deduction from net income for tax purposes, rests entirely in the legislative discretion, and exists by legislative grace, just as do exemptions.” In other words, while only the net income may be subjected to the payment of income taxes, the power of the Legislature is plenary in prescribing how the amount of the net income may be determined, that is, what credits and deductions may be allowed or disallowed. It is contended, however, that inasmuch as the Income Tax Act in force when Amendment • No. 19 was adopted, allowed the taxpayer the full deduction of the total amount of the Federal Income Tax paid by him, he cannot be deprived of that deduction for the reason that to do so would increase the amount of his taxes, and that this cannot be done except by a vote of the people, or by an act passed by the affirmative vote of three-fourths of all the members elected to both houses of the General Assembly. It cannot be questioned, and is not questioned, that the effect of Act 234 will be to increase the amount of the taxes to be paid by all persons who pay federal income taxes, but that is not the question here presented, which is, whether Act 234 has increased the rate of taxes of the taxpayer. Attention is again called to the fact that Amendment No. 19 makes no reference to the amount of taxes, and Act 234 does not refer either to the amount of taxes or the rate thereof, but deals only with the question of a deduction to be allowed in determining the net income, a subject over which, as was held in the case of Cook v. Walters Dry Goods Co., supra, the General Assembly has plenary power. In this connection attention is called to the fact that the opinion in the Cook case just cited was delivered fourteen years after Amendment No. 19 was proposed by the General Assembly. It is urged that the term “rate for taxes” is sufficient to include and does in fact include, amount of taxes, and it is argued that “§ 2 of Amendment No. 19 was intended to prohibit the enactment by the Legislature of any statute which would result in increasing the burden on the people of the State of Arkansas of the taxes being levied in 1934 when the Amendment was adopted”, except by a vote of three-fourths of the membership. In this connection it may be said that in the Biennial Report of the Department of Revenues for 1944-1946, which is the last published report of that department, there appear statements of the various excise taxes collected, and in the portion thereof dealing with income taxes appears this statement: “Since the low year of 1933 when only $117,000 was collected, there has been a decided increase in the collections of the Income Tax Division. Collections for the fiscal year 1945-46 which amounted to $3,375,049.51 shows an increase of 2885% over the calendar year of 1933”, in which year Amendment No. 19 was proposed. Of course, the greater part of this increase arose from increased income yet efficient administration of the law no doubt played a prominent part. Of all the various excise taxes collected, that from the sales tax exceeds all others. Of this tax and its collection the Commissioner says in his report (page 43) that, “The Commissioner of Revenues is charged with the administration of the Gross Receipts Tax Law and has promulgated thirty-two supplemental regulations for the proper administration of the Law.” Roughly speaking, taxes may be classed as general and special, and by general taxes, as ordinarily understood, is meant the taxes collected on advalorem assessments for the support of the State, the counties, the cities and towns, and the school districts thereof. These taxes are collected by the local officers. The rate of the general taxes collected for the use and benefit of the State is fixed by the General Assembly. Other rates for general taxes are fixed by local taxing agencies clothed with that authority, and the sum total of those rates comprise the rate for the general taxes. The rate of taxes is one thing, and the- assessed valuation upon which these rates are computed in determining the amount of the taxes is quite another. If one who had just come into the State, or who contemplated doing so, asked what the rate for general taxation was, he might be told that depended upon the city or town or school district, or even the county, in which the property was located, but nowhere would he be told that the rate of general taxation depended upon the assessed valuation, and he would be much surprised to receive that answer, for it would not be true. Rate applied to valuation determined the amount of the taxes, but in the common understanding one' means one thing and the other something different. Rate of taxation in common parlance means the percent of valuation taken as the tax. Valuation is the ascertained sxxni to which the rate is applied and amount of taxes means the amount ascertained when valuation has been multiplied by rate. An examination of many acts levying taxes, both general and special, since and including territorial days, shows that the above terms are used as finis defined. We will discuss some of them later. It was said in the case of State ex rel. v. Irby, 190 Ark. 786, 81 S. W. 2d, 419, that the words of the Constitution should be given their plain, common meaning, that is as ordinarily used, and understood, unless there is something in the context to indicate a different intent. In Ellison v. Oliver, 147 Ark. 252, 227 S. W. 586, it was said that when language used in a constitutional provision is plain and unambiguous, the court cannot seek other aids of intei-pretation, and again, that when words are plain, clear and determinate, they require no interpretation, and it (interpretation) should be admitted if at all, with great caution and only from necessity, either to escape from absurd consequences or to guard against some fatal error. State ex rel. v. Irby, supra. Now it must be conceded, and the concession is freely made, that there are cases in which the term rate of taxation has been used in its generic sense, rather than in the sense in which it is ordinarily employed, and in the sense in which it has been employed in this State from territorial days. In other words, the term must be interpreted in connection with the context in which it was employed. Cases are cited in which rate of taxation and amount of taxation are used synonymously, notably cases which involved taxes on national banks. Legislation of an early date was passed to permit taxation of national banks without discrimination against them, yet in several states, they were subjected to discriminatory taxation. The leading case involving such legislation is that of People of the State of N. Y. v. Weaver, 100 U. S. 539, (10 Otto 539), 25 L. Ed. 705, in which, although the same rate of taxation was applied to national banks as to citizens of that state having capital invested otherwise, the latter were allowed deductions denied the national banks. The legislation leading to that result was declared discriminatory and void for that reason as the same amount of taxes should have been paid in both cases on the same value. In such cases and to prevent discrimination, rate of taxation was held to mean amount of taxes that is the same amount of taxes was payable on the same value to prevent discrimination. In the opinion in the "Weaver case, supra, it was said that the Congress was conferring a power on the states .which they would not otherwise have had, to tax shares of national banks, but the legislation imposing a restriction on the exercise of that power manifestly intended to prevent taxation which would be discriminatory, that is the property of the national banks should be subjected to no greater amount of taxes than was imposed on other property of the same value. The opinion states: “As Congress was conferring power on the States which they would not otherwise have had, to tax these shares, it undertook to impose a restriction on the exercise of that power, manifestly designed to prevent. taxation which should descriminate against this class of property as compared with other moneyed capital. In permitting the States to tax these shares, it was foreseen — the cases we have cited from our former decisions showed too clearly — that the State authorities might be disposed to tax the capital invested in these banks oppressively. ’ ’ To prevent this discrimination the court said: “This valuation, then, is part of the assessment of taxes. It is a necessary part of every assessment of taxes which is governed by a ratio or percentage. There can be no rate or percentage without a valuation. This taxation, says the act, shall not be at a greater rate than is assessed on other moneyed capital. What is it that shall not be greater? The answer is, taxation. In what respect shall it be not greater than the rate assessed upon other capital? We see that Congress had in its minds an assessment, a rate of assessment, and a valuation; and, taking all these together, the taxation on these shares was not to be greater than on other moneyed capital”. Tlie same purpose to prevent discrimination controls the decision of the other cases decided by the Supreme Court of the United States cited in the briefs. Other cases are cited holding that freight rates include the total charge made for the transportation. In these and in similar cases rates would mean total charge because there is involved no question of percentage. But in taxation, rate of taxation means the percent of the assessed or ascertained valuation taken as taxes. We find no statute in our history in which it has been otherwise used. A subdivision of the chapter on Taxation, Pope’s Digest, § 13604, is entitled “Rate of Taxation”. The general taxes for the state, for the counties thereof, and for the cities and towns therein and for all school districts of every kind are assessed as mills on the dollar and this is the rate of taxation. Note the following provisions, among others, in the following sections of the digest. “For the support of the common schools of the state, a rate of three mills. For ex-Confederate soldiers, a tax of two mills. For state charitable institutions a rate of 1.2 mills”, and so on without exceptions as to all the general taxes. Section 13605, Pope’s Digest. Section 13607 provides that the Auditor before the meeting of the Quorum Courts throughout the State, shall certify rates of percentum for the general property tax. Section 13611 deals with rates specified for county and school district taxes and directs that these taxes be levied as mills on the dollar. Section 13612 deals with rates specified for cities and towns and contains the same provision. The section next following provides that all levies of taxes in cities and towns shall be based upon the appraisement of the county assessor as equalized for the levy of state and county taxes. An important functionary in our scheme and system of taxation has been the equalization boards, oper ating in eacli of the counties, and by § 13645, Pope’s Digest, it is provided that “It (the equalization board) shall raise or lower the valuation of any property to such figure as in the opinion of the board will bring about a complete equalization.” Other and recent legislation which we shall not review, is designed to equalize valuations, not only within each particular county, but between the counties of the state. It is submitted that if the decree from which is this appeal correctly construes our revenue laws as meaning that rate of taxation means amount of taxes, and can be changed only by a vote of the people, or by a three-fourths vote of the General' Assembly, our equalization laws may be impaired, if not invalidated. Equalization could mean raising as well as reducing assessed values, with the consequent increase or decrease in the amount of taxes paid, and our equalization laws authorize that action. Section 13653, Pope’s Digest, provides rules for valuation of property for purposes of taxation, compliance with which might well increase many assessments of value. May these rules so stated be changed only by a vote of the people or upon the approval of three-fourths of the General Assembly? In addition to the general taxation to which we have just referred taxes are now derived from some sixty odd other sources, principally excise taxes. These are assessed in some instances at so much per yard, or pound, or gallon or ton, etc., but in all instances when based upon valuation they are assessed at a certain rate percentum thereof. As typical of all others take the income taxes with which we are specifically dealing. Section 14026, Pope’s Digest, provides that this tax shall be levied, collected and paid annually at a given percentum of the ascertained net income. This rate increases as net income increases, but whatever the income, the tax is a percent thereof.- This percentum, whatever it may be, is the rate of taxes and Act 234 makes no changes therein, indeed as has been said makes no reference thereto. The construction of Act 234 given by the court below, makes it mean what it would have meant if it had provided that “the amount of taxes now paid shall never be increased” or the basis thereof changed, if any increase of taxes results from the change except by vote of the people or with the approval of three-fourths of the membership of the General Assembly. The language employed does not admit of that construction. It is contrary to our system of levying taxes and to the general understanding of the words employed, to say that rate of taxes means amount of taxes. As a practical matter, it seems highly improbable that the General Assembly in proposing the amendment intended that all future sessions of the General Assembly should be deprived of the power to legislate as to deductions and exemptions which might increase the amount of some of the various existing taxes, except by a vote not of a majority of its membership, but by three-fourths vote thereof. In our opinion Act 234 is valid legislation and the decree of the court below will be reversed and the complaint of appellee will be dismissed. Justices Holt and George Rose Smith, dissent.

Holt, J. February 8, 1948, three bachelor brothers, Frank, Louis, Jr., and Albin Grilc, were accidently killed by an explosion in a coal mine of appellant, E. H. Noel Coal Company, in Sebastian county. Appellees were their aged parents and the only surviving dependents, within the terms of our Workmen’s Compensation Statute, Act 319 of 1939. It was conceded that these three sons were employed by appellant, coal 'company, at the time of the explosion and received accidental injuries, arising out of and in the course of their employment, which resulted in their deaths. A separate claim for compensation for the death of each son was filed by appellees before the Commission, and a maximum award of $20 per week, to be divided equally between the parents, for the death of each son, — or a total of $60 per week, — was made. The Commission’s award in each case was affirmed by the Sebastian Circuit Court on appeal, where the three claims, identical in effect, were consolidated for trial. From the Circuit Court’s judgment is this appeal. For reversal, appellant says: “ We contend the Compensation Commission erred in making three separate maximum awards, thus creating three separate whole dependencies, when as a matter of fact only one whole dependency actually existed. By these three awards the Commission has directed payment to the father of $10 per week in each case, or $30 for the three, and like sums for the mother, for a combined total payment of $60 per week, which is three times a maximum single award under the Compensation Law. The Commission, in its identical opinion in each ease, simply finds the parents were dependents of each deceased son and states that the Commission cannot agree with respondents’ contention that compensation for the death of all three sons should not exceed $20 per week. * * * “We do not think the Compensation Law intended any result which would multiply the maximum payments by three, .simply because there were killed three people, each of whom was contributing equally to the support of the same dependents.’’ - The question presented appears to be of first,impression under our Compensation Act, supra. The essential facts appear not to be in dispute. Appellees, the father and mother of these unfortunate men, were aged, infirm, and unable to work, the father being 76 years of age and the mother 70. Appellees owned no property except the house which they built about forty years ago, (the land on which it stands belonging to another coal company, for which appellees paid a nominal rental of $9 per year), two milk cows and a few chickens. They have no income except approximately $15 per- month, old age security payments. Until about ten years ago, the father had been an active coal miner, and his three sons, since they were old enough to work, had also worked as coal miners, and each, at the time of their deaths, was earning approximately $73 per week. These three sons lived with their parents and had never left the parental roof. Since their parents became nnable to work, these sons supported them out of their weekly earnings, paying for groceries (which alone at times amounted to as much as $200 per month), clothing, medical expenses, and generally the expenses of maintaining the home and their parents. All of these expenses were shared equally by the three sons, each paying one-third. The question of dependency presented here is one of fact since there is absent in Act 319, supra, any provision making a parent wholly dependent on any one person. In the recent case of Crossett Lumber Company v. Johnson, 208 Ark. 572, 187 S. W. 2d 161, we held: (Headnote 2) “The question of dependency is one of fact in the determination of which all the circumstances of the particular case are to be considered.” (Headnote 3) “Where the testimony showed that the deceased gave to appellees (his father and mother) as much as one-half of his income it was sufficient to sustain the Commission’s finding of fact that appellees were dependent upon the deceased.” (Headnote 5) “It is apparent from the reading of the Workmen’s Compensation Act that the lawmakers intended to make the word ‘dependent’ mean something different from the words ‘wholly dependent;’ and the only difference that can exist is that ‘dependency’ means partial dependency unless it is stated to mean ‘total dependency.’ ” In that opinion, we approved the following conclusions of law of the Commission: “It is well settled that partial dependency is sufficient to justify an award for compensation. * * * One is a dependent within the meaning of the Workmen’s Compensation Law if one relies for support in Avhole or in part upon the aid of another.” We also approved the following from Honnold on Workmen’s Compensation, Yol. 1, page 232: “The phrase ‘actual dependents’ means dependents in fact whether wholly or partially dependent. Hence it was no defense, in proceedings under an act using this term, that petitioner and his family were hot entirely depend ent on deceased. Partial dependency, giving a right to compensation, may exist, though the contributions be at irregular intervals and of irregular amounts, and though the dependent have other means of support, and be not reduced to absolute want.” See, also, Arthur Murray Company, Inc. v. Cole, 209 Ark. 61, 189 S. W. 2d 614 and H. N. Rodgers & Sons Company v. Nelson, 209 Ark. 866, 192 S. W. 2d 972. Under the topic “Workmen’s Compensation: double compensation to dependents in case of death of two or more,” 45 A. L. R., page 894, the annotator announces the general rule, in circumstances such as are presented here, as follows: “It is a general rule that unless a workmen’s compensation act specifically sets forth who shall be considered to be wholly or partially dependent on the earnings of an employee, dependency, and the extent thereof, are to be determined as questions of fact in accordance with the facts as they existed at the time of the injury to the employee. It seems, therefore, that unless a workmen’s compensation act specifically provides that the widow and children shall be presumed, or are conclusively presumed, to be dependent upon the father, the dependents may, in case of the death of two or more of the family, contributing to the support thereof, recover compensation in respect of each. There is, however, but little judicial authority on the specific question. “In the reported case (Utah Fuel Co. v. Industrial Commission, 67 Utah 25, 245 Pac. 381, 45 A. L. R. 882, where both father and son met death in the same accident, and the earnings of both were required for the support of the family, it was held that the dependents were entitled to the maximum amount of compensation provided for by the statute, for each death. “To the same effect in Hodgson v. West Stanley Colliery (1910) A. C. (Eng.) 229—H. L., wherein it was held that where a father and two sons, all killed in one accident, paid their wages into a common fund for the support of the family, the mother and the surviving children were entitled to receive compensation in respect to the death of each of the deceased. The decision in the above case was oil tlie ground that there was no presumption of law making the widow and children totally dependent on the father, and not dependent at all on the other two.” Giving to the findings of the Commission the same effect as a jury’s verdict, as we must, and a liberal construction to the provisions of Act 319, as we have many times said we should and must do to effectuate its purpose, we hold that the Commission was warranted in finding the evidence sufficient to show that these two parents were each dependent on their deceased sons. Since, as noted above, we have held that one is a dependent who relies for support in whole or in part upon the aid of another, the Commission was justified in holding that the appellees, whether partially or wholly dependent on each son, were entitled to the maximum weekly award, under the Act, in each case. The conclusions we have reached are supported not only in our own eases, supra, but what appears to be the weight of authority. Affirmed.

Minor W. Millwee, Justice. This is an action- to recover accident benefits on a policy of insurance issued to appellee, Warren C. Fairchild, by appellant, Metro politan Casualty Insurance'Company of New York, on June 21, 1937. The policy provides for the payment of accident indemnity of $50 per month in case of total disability resulting from accidental injury. It specifically insures against “the effects resulting directly and exclusively of all other causes, from bodily injury sustained during the life of this policy solely through external, violent and accidental means ’ ’. Trial before the circuit court, sitting as a jury, resulted in a judgment in appellee’s favor for accrued disability payments plus the statutory penalty and attorney’s fee. The court found that appellee was totally disabled from coronary occlusion which was caused by an accidental injury within the meaning of the policy. Appellant earnestly insists that the evidence is insufficient to support the finding and judgment of the trial court. The facts are. undisputed. Appellee was employed as chief engineer and ice puller for the Southern Ice Company at Arkadelphia for several years prior to February 2, 1948. On that day he was engaged in thawing a frozen valve on a storage tank on top of the building housing the ice plant. The storage tanks were about sixteen feet above the roof of the building. Appellee stood with his left foot on a rod which connected and supported the tanks and was leaning over in a strained position with most of his weight resting on his left arm and reaching over with his right arm using a blowtorch to thaw the frozen valve. While in this strained position he felt a severe pain in his chest and left arm. When the pain grew steadily worse a physician was summoned who diagnosed the case as either a strained muscle or a coronary occlusion, based upon the history given by appellee. An electro-cardiogram was made about three days later which disclosed a coronary occlusion. Appellee’s physician testified that coronary occlusion is a disease caused by a rupture of a blood vessel in the heart. He gave it as his unqualified opinion, based on the case history and testimony of appellee, that the disease was not present prior to, but was precipitated by, the unusual strain from the position in which ap pellee was placed in thawing the frozen valve. It was also shown that appellee was healthy and accustomed to hard manual labor prior to the injury, which rendered him totally disabled. The effect of appellee’s testimony is also that he had engaged in thawing valves before, but not on the same tank or in the strained position employed at the time he was stricken. The conflict in the authorities on the question here presented is stated in 29 Am. Jur., Insurance, § 1006, as follows: “The difference of opinion as to whether accidental means may consist of an unusual and unexpected result of a voluntary and intended act is reflected .in the cases dealing with death or injury resulting from exertion or strain. A number of cases — in accordance with the rule that accidental means cannot consist of a voluntary act, and that it is not enough that the death or injury is unusual and unexpected, but that the cause must also be unusual and unexpected — have denied recovery on account of death or injury resulting from the insured’s voluntary act involving exertion, over-exertion, or strain. ... In other cases, however, the view has been taken that where death or injury following overexertion or strain is unforeseen and unexpected, and is not such as to naturally and probably result from the voluntary act done, but is rather an unusual result, such death or injury is an accident or is effected by accidental means.” Opposing counsel have cited cases from other jurisdictions in support of their respective contentions. Many cases demonstrating the conflict in the authorities are collected in 111 A. L. R. 630, which supplements six prior annotations there cited. In support of the second view as above stated, the textwriter cites Standard Life & Accident Ins. Co. v. Schmaltz, 66 Ark. 588, 53 S. W. 49, 74 Am. St. Rep. 112. There the insured, a mechanic, in lifting and removing a cylinder head from an engine, suffered a ruptured blood vessel in the stomach which caused his death. Justice Battle, speaking for the court in that case, said: “In the case before us the deceased was a strong, muscular man. The cylinder head removed weighed only eighty pounds. He had been engaged in the service in which he was employed at the time of his death seven or eight years, and in that time had frequently removed cylinder heads without detriment to himself. Other machinists had been accustomed to do the same kind of work without injury. The jury could have reasonably inferred from the evidence that the death of the deceased was caused by ‘external, violent and accidental means.’ ” In Continental Casualty Co. v. Bruden, 178 Ark. 683, 11 S. W. 2d 493, 61 A. L. R. 1192, we held that heat prostration, or sunstroke, suffered by one unexpectedly is within the terms of a policy insuring against bodily injuries sustained through external, violent and accidental means. See, also, U. S. Fidelity & Guaranty Co. v. Hoflinger, 185 Ark. 50, 45 S. W. 2d 866. The same result was reached in Washington Fid. Nat. Ins. Co. v. Anderson, 187 Ark. 974, 63 S. W. 2d 535, where death resulted from, ptomaine poisoning caused by eating unwholesome food in a cafe. It will be observed that in those cases which follow the first view as above expressed, the rule is premised in part upon the fact that the death or injury resulted from a voluntary or intentional act carried out in the ordinary way without the intervention of any unusual circumstances. So, if some unforeseen or involuntary movement of the body occurred which, in connection with the voluntary act, brought about the injury, the means would be accidental. This is the effect of the holding in the case of United States M. Acci. Asso. v. Barry, 131 U. S. 100, 9 Sup. Ct. 755, 33 L. Ed. 60, which this court cited with approval in the Schmaltz case, supra. There can he no material difference in principle in holding an injury to he by accidental means in the case of the rupture of a blood vessel in the stomach by handling a heavy piece of machinery, as in the Schmaltz case, supra, and in a case where the rupture of a blood vessel in the heart is caused by an unusual strain, as in the case at bar. It is also clear from our cases that disability or death results solely and exclusively from accidental means although disease plays a part in the disability or- death, if the disease was due to the accident. We have also held in several cases that, if an accidental injury is the primary or proximate cause of death or disability, it is not material that disease contributed thereto. These cases are cited in the recent case of The Travelers’ Insurance Co. v. Johnston, 204 Ark. 307, 162 S. W. 2d 480. In that case we reaffirmed the rule announced in Fidelity & Casualty Co. v. Meyer, 106 Ark. 91, 152 S. W. 995, 44 L. R. A., N. S. 493, where it was held (Headnote 1): “When an accident insurance policy limits liability to ‘bodily injuries sustained through accidental means resulting directly, independently and exclusively of all other causes of death, ’ and it appears that death resulted from an aggravation of a latent disease to which the deceased was subject, an instruction is correct to the effect that .the defendant insurance company is liable, under the contract, if death resulted when it did on account of the aggravation of the disease from the accidental injury, even though death from the disease might have resulted at a later period, regardless of the injury. ’ ’ We conclude that the trial court, sitting as a jury, was warranted in finding that appellee suffered a disabling bodily injury sustained through external, violent and accidental means within the terms of the policy, and that the evidence is substantial and sufficient to support the judgment. Affirmed.

Griffin Smith, Chief Justice. By information Albert Anglin was charged with stealing a .25 calibre pistol, “revolver type,” valued at $15, the property of Albert Horner. The appeal is from judgment on a jury’s verdict finding the defendant guilty of petit larceny and fixing his punishment at sixty days in jail and a fine of $300. At trial it was shown, over appellant’s objections, that the pistol once owned by Horner was an automatic. The main contention for a reversal is that ownership of the weapon by Horner at the time it was thought to have been stolen was not established by competent evidence. The trial occurred September 27, 1948. However, Lee Davidson, whose testimony on cross-examination was not impaired, identified the pistol as one purchased by Horner approximately “two -years ago.” Davidson was Horner’s neighbor and could not be mistaken because the intials “E. O. C.” were imprinted on the grip. Directly following Davidson’s statement that he was present when Horner “traded for the gun,” the witness was asked if he had seen it lately, and answered yes. The next question was, “when did Mr. Horner die ? ” A. “Last Saturday night two weeks ago. ’ ’ Davidson had previously testified that after 1946 he visited in Horner’s home “every day” and had seen the pistol “hundreds of times.” John Harbottle runs a liquor store at Altus. Silas Harmon testified that after July 10, 1948, he saw Horner’s pistol, and called attention to it, presumptively in Harbottle’s custody. Harbottle testified that he bought the pistol from Anglin “about mid-September a year ago,” and paid $13 for it. The record is somewhat abbreviated, indicating that incidental facts showing the relationship of Horner and Anglin were mentioned in preliminary statements. For example, the Court remarked to a witness: “You keep saying ‘they’ pulled [Horner] out of the car! What was wrong with him — sick or drunk? Why pull him out: couldn’t he get out?” An answer was: “Well, he was drunk, and in the back seat, as it was reported to me. Anglin was driving Horner’s car, and [when the car caught oh fire] he pulled him out.” When the State rested its case with the testimony of witnesses mentioned, and others who were not informed in respect of the principal issues, appellant moved for a directed verdict on the ground that Horner’s ownership of the pistol when it was sold to Harbottle by Anglin was not established, nor was there any evidence it had been stolen. Whereupon the Prosecuting Attorney requested the Court’s permission to testify. Anglin, he said, while speaking in the presence of D. B. Bartlett, claimed that he “ . . . picked the gun up off the ground the night of the fire as he dragged Horner from the car. He said he helped drag Horner, and as he did so the gun fell to the ground, and he picked it up at the fire.” Bartlett testified that Anglin said he “found” the pistol, but did not remember that he said where he found it. Appellant did not testify. Our view is that if additional testimony supporting the information had not been given after the State rested, a directed verdict would have been imperative. But it was within the Court’s discretion to allow other witnesses to testify if the circumstances were not such as to prejudice the defendant through surprise or otherwise at a time when the disadvantage could not be overcome. No contention of this kind is made. We must, therefore, treat the appeal as properly containing the supplemental evidence. In this light Anglin is shown to have sold the pistol to Harbottle; and, by his own statements, to have taken it when Horner was helpless. Whether he appropriated the weapon from Horner’s personal presence, or picked it up where the owner had dropped it — in either event the presumption of ownership by Horner is something more than speculation. If appellant’s statements to the Prosecuting Attorney be treated as an extra-judicial confession, not sufficient alone to convict, then the rule cited by Judge Hart in Reed v. State, 102 Ark. 525, 145 S. W. 206, is applicable, for declarations or comments made by the accused before or after commission of a crime, “although not amounting to a confession, but from which, in connection with other evidence of surrounding circumstances an inference of guilt might be drawn,” are admissible. Affirmed. There was testimony that the pistol was of Greek manufacture, and was worth from $15 to $25.

Ed. F. McFaddin, Justice. Appellants challenge a decree of the Benton Chancery Court, and also a decree of the Washington Chancery Court (both rendered on the same evidence), in each of which decrees the Courts set aside as fraudulent certain conveyances and transactions between the appellants (defendants), and subjected properties in Benton and Washington Counties to the lien of the judgment which the appellees (plaintiffs) hold against appellant,. W. L. Hinton. The record presented is voluminous. The two transcripts exceed 620 typewritten pages; and the abstracts and briefs exceed 450 printed pages. For convenience, we will refer to the parties as they were styled in the lower courts; and will detail the facts and discuss the issues in the following topic headings. I. The Judgment Rendered by the Sebastian Chancery Court and now Sought to be Enforced by the Plaintiffs. For approximately ten years W. L. Hinton was secretary and manager of the Mutual Savings Building & Loan Association of Fort Smith (hereinafter called “Association.”). He resigned in 1938, and the Association sued him for an accounting, in the Sebastian Chancery Court. A master was appointed and considerable evidence was taken — all of which is in the record in the present cases. Hinton voluntarily conveyed to the Association certain properties; but even after these conveyances, a decree was entered: (1) returning title from Hinton to the Association to other properties, and (2) awarding the Association a personal judgment against W. L. Hinton for $12,643.27 with interest at 6% until paid. This money judgment was rendered on October ' 10, 1939,. and is the one which the plaintiffs are now seeking to enforce. The only credits on the judgment are: $179.17 on April 9, 1940, and $300 on January 7, 1941. The judgment was assigned to C. B. Willard and A. F. Hoge, who — along with Hinton — had been officers in the Association. By proper writs of scire facias and orders of revivor (§§ 8271-77, Pope’s Digest), the judgFebruary 27, 1945, and, again, on February 24, 1948. In each of these instances, the writ of scire facias was duly served on W. L. Hinton, and also the order of revivor recites the assignment of the judgment by the Association to Willard and Hoge, and the two payments credited thereon as previously mentioned. One of Hinton’s main contentions in the present suits is that these orders of revivor are not res judicata against him, and that he is entitled to cross complain against the plaintiffs, Willard and Hoge, in these suits and compel them to account to him now for all of their actions in the liquidation of the Association. Hinton claims (1) that Willard and Hoge, as directors of the Association, were trustees ; (2) that Willard and Hoge, in winding up the affairs of the Association after Hin ton left, were gnilty of neglect as trustees; and (3) that the judgments of revivor in the scire facias actions were not res judicata against the cross complaint of Hinton. We hold against Hinton on the third contention (i. e., res judicata), and such holding makes it unnecessary to discuss the other two. From 1939 until 1948 Hinton seemed absolutely indifferent to the affairs of the Association. He moved from Fort Smith to northwest Arkansas, and went into the winery business. Willard and Hoge, as the remaining officers of the Association, were left “with the bag to hold.” By borrowing large sums on their own financial standing, they satisfied creditors and other stockholders; and, in order to salvage what they could to apply on their own losses, they took the assignment of the Hinton judgment from the Association. The Association was liquidated, its charter surrendered, and Willard and Hoge revived the judgment as previously recited. If Hinton had desired to question the validity of the assignment of the judgment from the Association to Willard and Hoge, or had wanted to claim on the judgment any bona fide credits due him by the Association or by Willard and Hoge, then in any such event, Hinton should have offered such defenses when the writs of scire facias were served on him, and before the judgments of revivor were entered. The purpose of a revivor of a judgment by scire facias is to continue the lien of the judgment by the holder thereof for the amount due, less credits. So. ownership of the judgment and the extent of the credits are matters necessarily within the scope of defense in the proceedings to revive by scire facias. In Ward v. Sturdivant, 96 Ark. 434, 132 S. W. 204 Mr. Justice Frauenthal, speaking for this Court, said — concerning the force and effect of a judgment of revivor based on a writ of scire facias: “That judgment was rendered in a proceeding by scire facias, and, after its rendition, it became as effective as an adjudication as other judgments. In a proceeding to revive a judgment by scire facias the defendant is bound to plead all matters of defense that he has, just as he would in an ordinary suit. The judgment of revival is conclusive against all facts and defenses which existed before its rendition. In 2 Freeman on Judgments, § 448, it is said: “The effect of a judgment entered upon a scire facias as an adjudication does not differ from that of other judgments. It cannot be collaterally avoided for mere error or irregularity, and, until set aside by some proper proceeding, it conclusively establishes the facts necessary to support it as against all persons properly made parties thereto.’ Helms v. Marshall, 121 Ga. 769, 49 S. E. 733; Babb v. Sullivan, 43 S. C. 436, 21 S. E. 277; Witherspoon v. Twitty, 43 S. C. 348, 21 S. E. 256.” In Ward v. Sturdivant, supra, it was attempted in a subsequent proceeding to raise the issue of defect of parties in the order of revivor, and this Court said: “But, having failed to raise' any objection to the party in whose name the judgment of revivor was rendered, the parties are now concluded thereby; . . . ” Holdings in other jurisdictions are in accord with the Arkansas holdings as to the effect of the writ of scire facias and the order of revivor. See 47 Am. Juris. 482. We therefore conclude that when the defendant— by offering no defense to the writs of scire facias and by allowing the Sebastian Chancery Court to enter the uncontested orders of revivor in 1945 and 1948 — -is bound by the rules of res judicata, and cannot be heard in the present suits to say either that Willard and Hoge are not the owners of the judgment, or that Hinton is entitled to credits (other than the two entered on the judgment) for any matters prior 'to the 1948 order of revivor. II. W. L. Hinton’s Ownership of the Winery and the Other Properties in Washington and Benton Counties. On October 6,1939, (four days before the Sebastian Chancery Court judgment was rendered) Hinton and his wife 'and daughter (all of whom are defendants) signed and placed of record a limited partnership agree ment for the ownership and operation of “The W. L. Hinton Winery.” This instrument recited the interest of the parties to be: 98% to Mrs. Hinton and the daughter, and 2% to W. L. Hinton. Furthermore, after 1939, title to various tracts of property in Washington and Benton Counties was taken either in the name of the winery or in the name of Mrs. W. L. Hinton. In these suits the plaintiffs seek to enforce the lien of their judgment not only against the winery, but also against the other property held in the name of Mrs. Hinton. The plaintiffs claim that all of these transactions were fraudulent as against the judgment rendered against Hinton in favor of the Association in 1939. It was conceded in the evidence — -in fact, Mrs. Hinton so testified — that Mr. Hinton was insolvent when he moved from Fort Smith. Our cases hold that when an insolvent debtor deals with the members of his family, such transactions are to be closely scrutinized to determine whether they were to evade the payment of the debts of the insolvent. See Quisenberry v. Davis, 136 Ark. 115, 206 S. W. 139; Brady v. Irby, 101 Ark. 573, 142 S. W. 1124, Ann. Cas. 1913E, 1054; Driggs v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78, and other cases collected in West’s Arkansas Digest, “Fraudulent Conveyances,” § 104. The evidence on this fraudulent conveyance phase of the case is as voluminous as that on the other topic previously mentioned, but it was shown that W. L. Hinton was in every respect the moving spirit and controller of the destinies of the winery. -There was some effort to show that Mrs. Hinton had obtained some money from her father’s estate that went into the enterprise; but from a full review of the entire evidence — • which we do not lengthen this opinion by detailing— we conclude that this limited partnership agreement was a badge of fraud conceived and executed by W. L. Hinton in his scheme to place his property beyond the reach of the judgment that he is here seeking to defeat. Likewise, we conclude that the title to the various tracts of property in Washington and Benton Counties taken in the name of Mrs. W. L. Hinton was really owned by W. L. Hinton, and the properties are subject to the lien of the plaintiff’s judgment. ■ The Chancery Courts so found, and we affirm such portion of the decrees. III. Defendant’s Claim of Homestead Rights in Washington County. Mr. and Mrs. W. L. Hinton claimed that they had acquired the right of homestead in certain property in Washington County. Our cases on homestead hold that there must be the intent to occupy in good faith, as well as the actual occupancy in good faith, before the homestead right attaches against pre-existing creditors. See Gibbs v. Adams, 76 Ark. 575, 89 S. W. 1008; Chastain v. Arkansas Bank & Trust Co., 157 Ark. 423, 249 S. W. 1; Bank of Quitman v. Mahar, 193 Ark. 1111, 104 S. W. 2d 800; Shell v. Young, 78 Ark. 479, 95 S. W. 798; Gebhart v. Merchant, 84 Ark. 359, 105 S. W. 1034; and other cases collected in West’s Arkansas Digest, “Homestead,” §§ 31-35, inclusive. Among other salient facts, it was shown that Mr. and Mrs. Hinton made only sporadic visits to the Washington County property; that they spent most of their time in Benton County; and that both of them had voted in the election in Benton County. We therefore affirm the decree of the Chancery-Court, which denied the Hintons the claimed homestead rights in the property in Washington County. IV. Mrs. Hinton’s Rights to the Proceeds of the Sale of the Sebastian County Homestead. On this one point we hold with the appellants. When the Association obtained its judgment in 1939 the Hintons had a homestead in Sebastian County. On January 7, 1941, for a consideration of $300, the Association released the lien of its judgment on the property that was or had been the homestead of the Hintons in Sebastian County; and the release of the lien on this particularly described property was endorsed on the margin of the record where the judgment was recorded. After such release the Sebastian County homestead property was sold by Mr. and Mrs. Hinton, and she has in cash the proceeds of that sale, which amounted to several thousand dollars. The Chancery Courts, in the decrees from which come these appeals, held that this sale and delivery of the money to Mrs. Hinton “was for the purpose of defeating these plaintiffs in their rights as judgment creditors,” and ordered all of such money in the hands of Mrs. Hinton to he held to apply on the plaintiff’s judgment. The plaintiffs seek to defend this portion of the decree by citing such cases as Tucker v. Stell, 169 Ark. 1, 272 S. W. 864, in which it is stated that the proceeds from the sale of the homestead, if not reinvested in another homestead, become personal property and lose the immunity of homestead exemption. Of course, the judgment lien could not have been enforced against the property as long as it .remained homestead, and was claimed as such, but the holding in Tucker v. Snell, supra, is not applicable here. The Association, for a valuable consideration, released the lien of its judgment on this Sebastian County property, and thereby enabled Hinton to sell the property free of any subsequent attempt of the judgment creditor to seize the released property. Hinton and wife did sell the property, and he gave her his part of the'money from the sale. We conclude that, by receiving the said $300 and contractually releasing the lien of its judgment on the specific property, the Association and the plaintiffs herein (as its assignees) are estopped to claim any lien on the proceeds of the sale of the Sebastian County homestead. So we hold that the money held by Mrs'; Hinton, and conceded by all parties to be the proceeds of the sale of the property on which the lien had been released, is exempt from seizure in this fraudulent conveyance suit. We therefore reverse only those portions of the decrees, here appealed from, which concern the money in Mrs. Hinton’s hands admitted to have been received by her from the sale of the Sebastian County homestead. In all other respects the decrees are affirmed, and all costs are assessed against the defendants. The Mutual Savings Building & Loan Association, as assignor of the Sebastian Chancery Court judgment, was listed as a party plaintiff and appellee. Clyde B. Willard, one of the plaintiffs, died pending the present litigation, and the cause as to him was revived in the name of his executrix. For clarity in detailing the facts in this opinion, we have styled the appellees as “Clyde B. Willard, et al.” Sections 29-601 to 29-607, inclusive, Ark. Stat. (1947). ment was revived by Willard and Hoge, as assignees, on Citing Hornor v. New South Oil Mill, 130 Ark. 551, 197 S. W. 1163, and Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880. Citing Clark v. Spanley, 122 Ark. 366, 183 S. W. 964, and Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848. Citing, inter alia, Biederman v. Parker, 105 Ark. 86, 150 S. W. 397; Ellis v. Caruthers, 137 Ark. 134, 208 S. W. 425; Fawcett v. Rhyne, 187 Ark. 940, 63 S. W. 2d 349, and Lilly v. Verser, 133 Ark. 547, 203 S. W. 31.

George Rose Smith, J. This suit was brought by Travis Insulating Company, L. W. Hamilton, and Federal Insurance Company, for property damage resulting from a fire caused by the appellant railroad. At the close of the testimony the only instructions offered were requests for directed verdicts. In accordance with our practice in that situation the trial judge decided all questions of fact, directing a verdict against the railroad upon the Travis and Hamilton claims and in its favor upon the insurance company’s claim. Only the railroad has perfected an appeal. Arkansas Sales Company had leased from the railroad certain property on its right of way for the purpose of maintaining a warehouse owned by the sales company. After the fire the insurance company paid to its insured, the lessee, the amount of its loss and by subrogation asserted its claim against the railroad. Travis and Hamilton had stored personal property in the warehouse and joined in the suit to recover their damages. Appellant relies upon two paragraphs in,its lease to the sales company to exempt it from liability for these claims. The first is paragraph ten, by which the lessee assumed liability for “all damages resulting from fire ... to property of any kind or character . . . that may now or hereafter be upon said leased premises . . . and to whomsoever the same may belong, whether any such damages shall be caused by negligence of lessor . . . or otherwise. Lessee covenants and agrees to release . . . and to protect, save harmless and indemnify lessor from and against any and all damages in this paragraph referred to . . .” Provisions of this kind, exempting the railroad from liability to its tenant, are almost universally upheld when inserted in a lease covering property situated on the railroad right of way. Elliott on Railroads (3rd Ed.), § 1760. The placing of property on the right of way is not required by any public duty of the carrier and increases the danger of fire; so the policy that ordinarily prevents a railroad from contracting against the consequences of its own negligence is inapplicable. Without discussion of the principles involved we sustained a similar provision in Mo. Pac. R. Co. v. Barnes, 197 Ark. 199, 121 S. W. 2d 896. This provision in the lease, however, does not affect the rights of Travis or Hamilton. The lease does not purport to extinguish the railroad’s possible liability to third persons, as was the case in some of the decisions cited by appellant. Here the lessee merely agreed to indemnify the lessor against such claims and to release any claims of its own. No doubt the trial court ruled against the insurance company for the reason that as subrogee it occupied no better position than its insured, which had already agreed to ,make no claim for damage by fire. But the same considerations obviously do not apply to Travis and Hamilton. Their causes of action are not affected by the lessee’s agreement to indemnify the lessor. The Barnes case, supra, seems to lend support to the opposite conclusion only because the facts were not fully stated. The opinion indicates that J. K. Barnes was the lessee, while the court relied upon the lease to defeat the claim of Maggie Barnes — apparently a stranger to the lease. But the transcript and briefs reveal that Maggie Barnes was undeniably a party to the lease. She owned the improvements on the leased premises and was in reality the lessee. J. K. Barnes, her son, had managed her property for years and signed the lease in his own name merely as a matter of convenience. The Barnes case is not authority for the position that a clause like the one now in question relieves the railroad from the claims of third persons. The other provision in the lease relied on by appellant is paragraph sixteen: “Lessee shall have no right to, and will not, assign this agreement or sublet said leased premises, or any part thereof, or permit the same to be used or occupied by any person, firm or corporation other than lessee, without first obtaining the written consent of lessor thereto.” The railroad’s consent had not been obtained when the Travis and Hamilton property was stored. Appellant, contending that this paragraph of the lease was violated, characterizes Travis and Hamilton as trespassers and cites Elliott on Railroads, supra, % 1759, as authority for the statement that a trespasser on the railroad right of way cannot recover for loss caused by fire. We do not decide whether an entry in violation of the lease would be a trespass; for we do not think that the lease prohibited the action taken by the lessee in this instance. We pass over the prohibitions against assignment or subletting, as the meager testimony in this case does not establish either one. The real question is whether the lessee permitted the'premises to be “used or occupied” by Hamilton or Travis without the railroad’s consent. We think not. The burden was upon the appellant to prove this affirmative defense. The trial court was justified in believing that the lessee merely allowed Travis and Hamilton to store personal property upon its premises, without relinquishing its own dominion and control. It was not shown that any specified part of the warehouse was turned over to the exclusive possession of these appellees. All that can be said is that the lessee accepted property for. safekeeping under its own supervision. This conduct does not show use or occupancy of the premises by Travis and Hamilton. On the contrary, it was the lessee who was using and occupying the property, for the purpose of storing chattels as a bailee. This conclusion is inescapable when we observe that this is a printed lease, prepared by the railroad and to be construed favorably to the lessee. If the lessor intended to forbid the storage of property belonging to. others, it could have put a clause to that effect in the lease. Instead, it merely prohibited use and occupancy by third persons. These two words are often used interchangeably. Smith v. Mechanics’ & Traders’ Fire Ins. Co., 32 N.Y. 399, and Jackson v. Sewell, 284 S.W. 197 (Mo.App.). A definition of “use” in Webster’s New International Dictionary is: “That enjoyment of property which consists in its employment, occupation, exercise or practice. ’ ’ In the view we take, the lessee did not violate the terms of its lease in accepting property for storage. This answers the argument that Hamilton at least should be bound by the contract, he being the secretary of the lessee corporation and having attested the lease in its behalf. Hamilton’s knowledge of terms of the lease is of course immaterial if, as we hold, the lease permitted what was done. In closing its argument the railroad complains of the allowance of an attorney’s fee. to the appellees. Hamilton recovered only half the amount he sued for, and appellant insists that this fact precludes the award of the fee. That is the rule under our statute allowing attorney’s fees in insurance cases, but the reason is that the statute applies only when the insurer fails to pay the loss “after demand made therefor.” Ark. Stats. (1947), § 66-514; Pac. Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S.W. 384, 124 S.W. 764. The statute applicable to the present case requires only that the plaintiff recover in the action. Ibid., § 73-1014. We have twice upheld the allowance when the plaintiff recovered less than the amount of damages alleged in his complaint. Kansas City S. R. Co. v. Cecil, 171 Ark. 34, 283 S.W. 1; Mo. Pac. R. Co. v. Campbell, 206 Ark. 657, 177 S.W. 2d 174. Affirmed. G-rippin Smith, C. J., and Frank G. Smith and Holt, JJ., dissent.

George Rose Smith, J. This case involves appellant’s liability for having set his dogs upon the appellee’s cow, -which had escaped from her pasture and was trespassing upon appellant’s cotton field. There was testimony to the effect that the appellant, discovering this cow and other cattle upon his property, sicked four dogs upon the intruders. One of the dogs was a bulldog estimated by appellee to weigh about eighty pounds. This dog bit the cow so severely that her value as a milch cow was destroyed. The jury awarded compensatory damages in an amount not questioned by appellant. For reversal appellant contends only that he was entitled to an instructed verdict, as he was not shown to have had notice of the bulldog’s viciousness. He relies upon the familiar rule that the owner of a dog is not liable for harm caused by it unless he has reason to know of the animal’s dangerous propensities. But this principle does not roach the point involved here, as appellant is not charged with responsibility for injuries caused by the dog while acting upon its own initiative. Here the bulldog was obeying its master’s command. Upon discovering the trespassing cattle the appellant was entitled to use only such force as was reasonably necessary to drive them from his land. Reinman v. Worley, 125 Ark. 567, 188 S.W. 1175. Appellee testified that the bulldog was vicious when sicked upon something by the appellant. The injured cow was a gentle and easily managed animal. The jury may well have believed that the appellant exceeded the limits of reasonable necessity in resorting to the use of a pack of dogs, including a large animal of vicious nature when incited to the attack. Affirmed.

Frank G. Smith, J. Appellant, Ozan Lumber Company, brought this suit in ejectment against appellee, Smith, to recover possession of the Ey2, section 34, T. 7 S., R. 23 W., lying east of Antoine River, Clark gounty, containing 270 acres, more or less. All parties in interest claim title through R. L. Blakeley, who entered into an oral contract with appellee Smith to sell and convey land to the latter. Smith entered into an arrangement with Henry and W. T. Hill, for the location and operation of a small saw mill on the land and Smith had logs cut from the land, sawed into lumber, which was sold to I. B. Thomas. Smith had acquired no title to the land when this lumber was sold to Thomas, and when Blakely was advised of the sale he demanded treble damages from Thomas for the conversion of the lumber. Thomas thought he might be liable, or that he would be sued therefor, and he decided that the best’ way out was to buy the land from Blakely and he did so, under an arrangement to this effect: He entered into a contract with the Hills whereby they were to saw the timber on the land into lumber, sell the lumber and deduct $5.00 per 1000 feet to be applied on the purchase price of $1,500 which Thomas had paid Blakely for the land. After $628 had been thus paid, Hill surrendered his contract to Thomas, and moved the mill from the land. A contract was then entered into between Thomas and Smith whereby it was agreed' that Thomas would sell the land to Smith for $1,200 with interest at 8% from July 1, 1944, the date of the contract. Smith had made certain payments to Blakely prior to making this contract with Thomas, but the contract of July 1, 1944, fixed the amount Smith should pay Thomas for the land. The court found that the contract between Thomas and Hill and the contract between Hill and Smith constituted a single transaction and the testimony warrants that finding. Smith did not pay the $1,200 as agreed and that sum was' wholly unpaid and past due when the decree was rendered from which is this appeal. The court found that the defendant, Smith, from time to time thereafter, offered to pay the amount due if Thomas would advise him of that amount. It does not appear why Smith, knowing the amount he agreed to pay, and the date from which the interest thereon should be computed could not by computation have ascertained the amount due, and he has never made tender, but he expressed his ability and willingness to pay at all times when advised of the amount to be paid. Smith does not appear ever at any time to have paid any taxes on the land. On June 19, 1947, Thomas sold the land in question, with other lands, totaling 5,034.56 acres, to the Ozan Lumber Company, for a consideration of $277,500. It was not shown how the purchase price was arrived at. This sale made the Ozan Lumber Company the owner of the record title to the land on which it brought ejectment to recover tlie land in question of which Smith was in possession. Inasmuch as Thomas had conveyed by warranty deed, he was joined as a party plaintiff. The court found, and the testimony is sufficient to support the finding, that the Ozan Lumber Company was not an innocent purchaser of the land. Smith filed an answer and cross-complaint in which he alleged possession under a contract of purchase with which he was ready, willing and able to comply. He alleged that Thomas was a trustee for his benefit and that in violation of his duty as trustee, Thomas had conveyed to Ozan Lumber Company land to which he, Smith, was entitled to have a deed upon payment of the agreed purchase money, and the interest thereon. Smith alleged his election to ratify the sale to Ozan Lumber Company and prayed that he be allowed the same price per acre at which the other land had been sold to the Lumber Company, and that from this amount there be deducted the unpaid purchase price, and that he have judgment for the excess which he alleges was $13,650. He prays this relief upon the theory that Thomas was a Trustee for his benefit, and had wrongfully disposed of trust property thereby giving him the option to ratify the same, which he offered to do, or to sue for the price received for the trust property, which he did not elect to do. We think no trust relationship was established. The only right Smith has at all is the mere option to buy the land and receive a deed when he has paid the agreed purchase price, with interest thereon, and that right was accorded him in the decree from which is this appeal. This relief was granted upon the theory that Ozan Lumber Company was not an innocent purchaser, but had acquired title subject to Smith’s right to demand a deed when he had paid the purchase money. The decree from which is this appeal was rendered October 19, 1948. It gave Smith until Feb. 20, 1949, or in case of an appeal 60 days from the date of the final adjudication of the case by the Supreme Court, in which to pajr tlie $1,200 and interest, with the proviso that if not paid, the land be sold in satisfaction of the amount due on the land. The court retained jurisdiction of the cause to render a final decree when the appeal has been disposed of, and will therefore proceed to the execution of the decree which is here affirmed. The court found that the cost should be taxed against the defendant Smith, because the. outcome of this action is to effect the foreclosure of Thomas’s equitable title. This being an equity case, the assessment of costs was a matter within the discretion of the court, and we are unable to say that discretion was abused, not only for the reason assigned by the court, but for the additional reason that Smith’s delay in demanding a deed and making payment which would have entitled him to a deed precipitated this law suit. On the whole case we think equity has been accomplished and the decree is in all respects affirmed.

George Rose Smith, J. Appellant brought this action to recover installments said to be due under a contract by which it was to act as the appellees’ resident buyer in New York City. The appellees, Collins and Ingram, are partners who own dry-goods stores in Forrest City and Wynne. By the terms of the written agree ment the • partnership employed appellant corporation for a period of six months beginning November 1, 1946, and agreed to pay $75 monthly for appellant’s services. The installment for November was paid when due, but that was the only payment made by appellees. Their defense is that the appellant failed to perform its part of the agreement, as it did not buy any merchandise for appellees until April, 1947, when appellant caused to be shipped to the partners a number of blouses that were rejected. The appeal is from judgment upon a verdict for the appellees. The pivotal question is whether the appellant was required by the contract to purchase merchandise for appellees on its own initiative or was to await orders from its principals. In this respect the contract is ambiguous, as it merely states that appellees employ appellant as their resident buyer. That term is not defined, nor does the agreement specify the duties undertaken by appellant in that capacity. Parol evidence of the antecedent negotiations of the parties was admissible to explain the meaning of this doubtful term. Mays v. Barnett, 150 Ark. 492, 234 S. W. 488. Hence the court properly permitted Collins to relate a long distance telephone conversation between him and Ben F. Levis, president of appellant corporation. Levis called Collins in September, 1946, when there was a shortage of many articles ordinarily sold by appellees. Levis assured Collins that by November 1 the appellant would be able to obtain for the partnership the items needed. Collins agreed to employ appellant and detailed a list of articles in critical demand. From, this evidence the jury could have found that appellant was to purchase merchandise without waiting for orders in addition to the list originally provided. Appellant also recognized the existence of ambiguity by offering to prove that in New York the custom among resident buyers is for them to buy goods only upon orders from their principals. The court correctly excluded this testimony. A custom may be shown as an aid to interpretation if it is known to both parties or is such a widespread trade usage that the contract will be presumed to have been made with reference to it. Appellant’s evidence proved a custom local to New York, but failed to establish appellees’ knowledge or notice thereof. Without the latter element the testimony was iliadmissible. Markstein Bros. Millinery Co. v. J. A. White & Co., 151 Ark. 1, 235 S. W. 39. Later in "the trial Collins admitted that he had previously dealt with two New York resident buyers and was familiar with their custom, though he did not say what it had been. We need not determine whether these bare admissions supplied a sufficient foundation for appellant’s proof as to custom, for the evidence was not offered again for the court’s consideration. Aside from these matters of evidence, the only question is whether appellant breached the contract before the December payment was due. There was sufficient testimony to support the view that appellant’s duties as resident buyer required it to supply at least some merchandise in November and that its failure to do so was a breach of the contract. If so, appellant is not in a position to take advantage of a later breach by the appellees. Mo. Pac. Ry. Co. v. Yarnell, 65 Ark. 320, 46 S. W. 943. Affirmed.

Holt, J. Appellants, Barnes and York, Negroes, were convicted of the crime of grand larceny and the punishment of each was assessed at five years in the State Penitentiary. From the judgment is this appeal. For reversal, appellants have brought forward in their motion for a new trial twenty-nine assignments of alleged errors. While they strenuously contend that the trial court committed reversible error by permitting their alleged confessions to go to the jury, over thieir objections, we find it unnecessary to determine this issue and the other assignments for the reason that the judgment must be reversed for the error alleged in appellants’ fourteenth assignment, which is as follows: “The court erred, oyer the objections and exceptions of the defendants, in permitting the prosecuting attorney to refer to a statement made by Wilton Austin, who was never called as a witness and who was purportedly in jail with these defendants at the time they were being grilled and questioned; and which witness aforesaid, made statements against these defendants, and after said written statement of said witness, Wilton Austin, was attempted to be read to the jury by the prosecuting attorney, and ruled improper, permitted the prosecuting attorney to ask other witnesses what witness Wilton Austin said relative to these defendants; which was improper, hearsay, and highly prejudicial to the rights of these defendants, and tending to bias, prejudice and inflame the minds of the jurors, and denying the defendants their constitutional rights of being confronted with the witnesses, both for and against them, as set forth in § 10, Art. 2 of the Constitution of the State of Arkansas, . . . and the right to cross-examine said witness.” The record reflects that on the night of November 1, 1948, a store building on the outskirts of Blytheville was forcibly entered and a metal safe containing $1,000 in cash and a number of checks was stolen. The safe was found November 7th in a Negro cemetery about a mile from the store. A large hole had been made in its side and the money taken. Suspicion fell upon appellants and another Negro, Wilton Austin, and on November 19th, appellants and Austin were apprehended and held by officers in Hayti, Missouri. The sheriff of Mississippi County, Arkansas, Mr. Berryman, was notified and went to Hayti, took charge of the three suspects and transported them in his car to Blytheville, Arkansas, and placed them in jail. Thereafter, alleged signed confessions were secured from both appellants and also Wilton Austin. Austin for some undisclosed reason was not offered as a witness and did not testify at the trial. During the course of the trial, after having permitted the confessions of each of the appellants to be read to the jury, over appellants’ objection, as indicated, the prosecuting attorney offered in evidence the alleged confession of Wilton Austin, but on appellants’ objection, the court properly denied its admission. Later on in the proceedings, counsel for the State, while cross-examining appellant, Barnes, with the alleged written confession of Wilton Austin before him, proceeded to read certain questions and answers from the Austin confession and interrogate Barnes as to the truth or falsity of Austin’s statements and whether he was present when Austin’s alleged confession was read to Austin. Much of Austin’s testimony detailed in his confession was, in effect, damaging to appellants and tended to point to their guilt, and was allowed to go to the jury, over appellants’ objection, on the theory that the jury might consider it for the sole purpose of its effect upon the credibility of appellants. This was error for the reason that it denied to appellants the constitutional safeguard, vouchsafed them, to be confronted by the witnesses against them (Art. 2, § 10, Constitution of the State of Arkansas) and the privilege of cross-examination of Austin. In the circumstances, this was hearsay evidence and improperly admitted. Barnes was being cross-examined relative to statements made by Austin in his confession and not by any statements which he, Barnes, was alleged to have made. Wigmore on Evidence, Third Edition, Yol. 5, at page 3, § 1362, has this to say on the Hearsay rule: “The fundamental test, shown by experience to be invaluable, is the test of cross-examination. ... 1. The theory of the Hearsay rule is that the many possible deficiencies, suppressions, sources of error and untrustworthiness, which lie underneath the bare untested assertion of a witness, may be best brought to light and exposed by the test of cross-examination. ... It is here sufficient to note that the Hearsay rule, as accepted in our law, signifies a rule rejecting assertions, offered testimonially, which have not been in some way subjected to the test of cross-examination. . . . “In the preceding passages, the testing required by the Hearsay rule is spoken of as cross-examination under oath. But it is clear beyond doubt that the oath, as thus referred to, is merely an incidental feature customarily accompanying cross-examination, and that cross-examination is the essential and real test required by the rule. That this is so is seen by the perfectly well-established rule that a statement made under oath (for example, in the shape of a deposition or an affidavit or testimony before a magistrate) is nevertheless inadmissible if it has not been subjected to cross-examination.” See, also, 31 C. J. S., p. 919, §§ 192-193. For the error indicated, the judgment is reversed and the cause remanded. •

Griffin Smith, Chief Justice. John Henry Speer died July 31, 1947, from a gunshot wound. The circumstances were such that family, friends, and officials who were called, believed that the .22 calibre rifle bullet entering Speer’s head slightly above the right eye was fired with suicidal intent. There was no inquest. Speer carried insurance with three'companies: Pacific Mutual, Continental Casualty, and Brotherhood of Locomotive Engineers. The latter paid without suit. The $2,000 policy by Pacific Mutual was against death through accidental means, excluding suicide. Continental Casualty would pay $1,000 for accidental death, suicide excluded, plus twelve times the amount of a stipulated accident indemnity of $60 per month, — $720. Bessie L. Speer, beneficiary named in each of the policies, demanded payment under claim that her husband’s death was accidental. In addition to the contention that suicide avoided the policies, each Company denied knowledge of the other’s insurance, and pleaded a contractual provision for proportional reduction of the amount payable. Sufficiency of the Evidence.- — -Appellants think they should have had instructed verdicts based on the proof of suicide. This would require a determination here that the presumption against self-destruction was overcome by inferences from physical facts. Stated differently, our finding would be that the position of Speer’s body when found, the location of the wound, and the relative situation of gun and body, pointed absolutely to a purposeful act. There was testimony, however, that the single-shot bolt-action rifle could be unintentionally discharged. The mechanism was worn, or defective to such an extent that if the weapon were “cocked” it could be fired by touching the “bolt,” and without reference to the trigger. In spite of assertions by witnesses that for several hours before death Speer had been drinking, the jury could have believed those who discounted the assertion of appreciable intoxication; nor can it be said that a motive was shown. Speer was 38 years of age, lived with his wife in the City of Wynne, and had four children. He earned approximately $300 per month as a Missouri Pacific fireman. Mrs. Speer had a separate income from services as clerk in a local grocery store. During the fateful day Speer expressed an intent to report for duty, but shortly before the tragedy he sent a note to the foreman, explaining that illness had intervened. No one was in the room when the weapon was discharged. A witness stated that when she discovered the body Speer was lying with his head on a pillow, with his feet crossed at the foot of the bed: “He was on his back just as though asleep. The gun was across his body with the muzzle toward his face, at a slight angle. His left hand was holding the barrel of the gun and his right hand [was at] the trigger guard.” The gun was not introduced as an exhibit, although the record shows that it was displayed at trial. There is an inference that demonstrations incidental to testimony of the witness Penix (one familiar with firearms) emphasized the mechanical fault which might allow the firing pin to function without use of the trigger. It is argued that Speer — who kept the gun' within easy reaching distance of the bed — may have concluded to clean the barrel, and was looking down from the muzzle when the accident occurred. If we should agree that in the light of all circumstances this vas highly improbable, the alternative is that it was not impossible. We conclude, therefore, that the' defendants did not overcome the presumption against suicide. Availability of the gun for examination could conceivably present a different record. Copies of Letters.- — -Appellants’ counsel propounded to an official of each company interrogatories designed to bring into the record certain transactions with Speer that might affect the policies. The interrogatories were not crossed by the plaintiff. When at trial appellee under guidance of her attorney undertook to testify that as agent for Speer she wrote to the defendants, informing each that the other had issued a policy, objections were interposed on the ground that the original letter would be the best evidence. Mrs. Speer then stated that she retained carbon copies, and replies were received and placed with her husband’s books and papers, but after Speer’s death the answers were unintentionally destroyed when a room was renovated, hut the copies were saved. The originals, said Mrs. Speer, were written on a common ruled tablet, such as would be used by a child for school work. The carbon copies bore date of July 20, 1946, — nineteen days after issuance of the policies. The originals were properly addressed, stamped, and posted. At the time these letters are alleged to have been written, Mrs. Speer and her husband were living on a farm near Colt, in St. Francis County, and there was no thought of litigation. It was not contended that the purpose was to put -each company on notice of the other’s policy. On the contrary, Mrs. Speer testified that because of a disparity in premium rates, she wanted an explanation, hence the inquiries. Appellants’ interrogatories were not directed to this specific transaction for the reason, as counsel explained, that there had been no intimation such a claim would be advanced; and general explanations in response to direct interrogatories were not sufficient to meet the issue. When overruled on this point the defendants pleaded surprise and asked for sufficient time to communicate with the companies’ home office, and to make inquiry regarding collateral matters touching the com tention that the copies were genuine. The motions were overruled and exceptions saved. We think the trial Court underestimated the importance to appellants of an unimpaired opportunity to defend against a situation reasonable foresight might not have anticipated. The purpose of trial is to administer justice within the law. The interrogatories were forwarded at a time when there had been no hint of an intention to claim, through incidental references in letters not written for that express purpose, notice of plural insurance; hence, when company officials responded to the inquiries, they had no reason to make the thorough search one might be expected to engage in when a particular thing could have been misplaced; nor could they, if convinced that the described letter had not been received, make the characteristic denial that ordinarily attends emphatic disclaimer. While counsel for appellee no doubt felt that he was justified in offering the copies when the' companies inferentially denied the originals by failing to mention them, we think the better practice, and the procedure more nearly conforming to statutory intent, required a demand for the originals. Pope’s Digest, §§ 5147-48. See Heard v. Farmers’ Bank of Hardy, 174 Ark. 194, 295 S. W. 38; Union Central Life Ins. Co. v. Mendenhall, 183 Ark. 25, 34 S. W. 2d 1078. For the errors- indicated the judgments are reversed.

Ed. F. McFaddin, Justice. Appellant, by action of replevin, sought to recover a Ford automobile from appellee. The Circuit Court trial resulted in a jury verdict; and judgment for appellee, and appellant now urges two assignments for reversal. I. Sufficiency of the Evidence. Will Benson, a negro sharecropper on appellant’s farm, owned an old model Dodge car on which appellant held a bill of sale as security. Benson desired to trade the old car for a new model Ford owned by appellee. A trade was made whereby appellant surrendered her claim on the old car and issued a check to appellee for $700. The testimony is in agreement as to these facts; but a sharply disputed question of fact is presented as to the remaining terms, if any, of the trade. Appellant testified that the $700 check and the old car were to be in full payment for the new Ford, and that appellee therefore had no claim on the Ford, to which appellant claimed title. Appellee’s witnesses testified that, in addition'to the old car and the $700. there was a balance of $150 due appellee for the new Ford; and that Will Benson had signed a conditional sales contract for said $150 and carrying charges. The contract was introduced in evidence, and Benson reluctantly admitted that he had ‘ ‘ signed some papers. ’ ’ As aforesaid, the evidence was in sharp dispute as to what the agreement was between appellant and appellee. There was sufficient evidence to support a verdict for either party; and the decision by the jury settles the fact question. II. Instructions. In appellant’s instruction No. 1 the Court told the jury: "If you find from the evidence that the automobile in controversy is the property of the plaintiff, Miss Bautts, you will find for the plaintiff for the recovery of the property; and you will also find for the value of the auto in controversy in the event its recovery cannot be had; and also the damage suffered by plaintiff by reason of its detention.” Appellant now complains of the refusal of the Court to also give appellant’s instruction No. 2, which reads: “If the jury believe from the evidence that Miss Beulah Bautts had an interest in the automobile involved in this case, coupled with the right to take possession and control the same, at the time of the commencement of this action, they must find for the plaintiff, though they may believe from the evidence that other parties had an ultimate interest in an account concerning it. ’ ’ The Court committed no reversible error in refusing this instruction. The controversy was'between appellant and appellee; and the concluding language in the refused instruction (i. e., “although they may believe from the evidence that other parties had an ultimate interest in an account concerning it”) was misleading and uncertain. An instruction subject to these vices should not be given. Insofar as the requested instruction was a correct declaration of law, it was a duplication of instruction No. 1, which was given; and insofar as the requested instruction No. 2 was broader than instruction No. 1, it was misleading and uncertain. Affirmed. See Helena Gas Co. v. Rogers, 104 Ark. 59, 147 S.W. 473 and other eases collected in West’s Ark. Digest, Trial, § 242.

Minor W. Millwee, Justice. The J. H. Blount estate owns a 200-acre farm near Madison in St. Francis county. The St. Francis River runs on the north and east sides of the Blount lands. Appellant, Dwight R. Martin owns a farm adjoining the Blount lands on the west. Appellee, Theo Bond, as trustee of the J. H. Blount estate, brought this suit to restrain appellant and his tenants from closing a road which extends across appellant’s land from the Blonnt farm on the east to a county road leading north to Madison on the west. Appellee alleged that the road furnished the only reasonable and convenient way to and from the Blount lands; that it had been in use by the owners and tenants of the Blount property and the public generally for over 50 years; that appellee and the public generally would be without access to lands lying east of appellant’s lands if said road is closed. It was further alleged that appellee would suffer irreparable injury by closing the road and that he was without adequate remedy at law. Appellant filed a motion to dissolve a temporary restraining order issued by the court in which pleading he denied the allegations of the complaint. After two hearings the trial court found that the road in controversy had become a public way by prescription, and the temporary restraining order was made permanent. This appeal challenges the correctness of the decree based on the chancellor’s finding. The road in question was established by appellee’s father in 1892 and originally followed a meandering route along Crow Creek across the lands now owned by appellant. About 1923 or 1924 the route of a portion of the road was changed to run as it does today because of washouts along the banks of the creek. An insurance company acquired the Martin lands by foreclosure sometime prior to 1924 and sold to Pies Purcell in December, 1936. The warranty deed to Purcell contained a general exception as to roads across the lands conveyed. Appéllant purchased the land from Purcell in 1943. The lands of both parties have been occupied and in cultivation for more than 50 years. Eight or nine tenant families have resided on the Blount lands and have produced more than 100 bales of cotton per year for a number of years. The proof shows that these families and the public generally used the road as it originally ran without interruption until 1923 or 1924, when the route was changed. This use was continued over the changed route until 1938 or 1939. There is considerable dispute in the testimony as to whether the rdad was thereafter used by appellee’s tenants and the public under claim of right or by permission of Purcell and appellant. Some of Blount’s tenants were warned by Purcell to stop using the road, but most of them continued to do so despite the warnings, after consulting their landlord. There was apparently no effort on the part of either Purcell or appellant to stop use of the road by the general public. The county judge testified that he warned Purcell not to close the road. While there was no order of the county court making the road a public way, it was shown that the county worked the road at times prior to 1924 and that tenants on the Blount estate worked and assisted in maintaining the road from 1924 to 1939, and at times since. There are 25 or 30 school children living on the Blount lands who would have to walk two and one-half miles farther to school if denied a way across appellant’s land. Photographs introduced by appellee show the road to be well traveled and tend to refute the testimony of some of appellant’s witnesses that it was merely a turnrow. The greater weight of the evidence also shows that an alternate route over the lands of another adjacent owner was about two and one-half miles longer than the ronte in controversy. The alternate ronte was also narrow, impassable during winter months, and used only by permission of the owner of the lands through which it ran. The principal contention of appellant for reversal of the decree is that, since the road in controversy is across uninclosed lands, a presumption arises that the use by appellee and the public generally was permissive and that this presumption has not been overcome by an affirmative showing of adverse use for more than seven years. In most of the cases relied on by appellant the route sought to be established as a public way by prescription was across lands which were not only uninclosed but also wild, unimproved and unoccupied. Some of these are Merritt Mercantile Co. v. Nelms, 168 Ark. 46, 269 S. W. 563; Caddo River Lbr. Co. v. Rankin, 174 Ark. 428, 295 S. W. 52; and Bridwell v. A. P. & L. Co., 191 Ark. 227, 85 S. W. 2d 712. In Brumley v. State, 83 Ark. 236, 103 S. W. 615, also relied on by appellant, the court in describing a part of the way involved, said: “They were dirt roads leading-through unfenced and wild lands, and the mere fact that the public may use such roads leading through the open forest for seven years or over does not as a rule make them public roads. When the public use a road running through open and unfenced lands without any order of the county court making it a public road and without any attenlpt to work it or exercise authority over it as a public highway, the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent. When he needs the land, he may withdraw his consent, fence the land and exclude the public without violating the law.” Appellant also cites Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986. That case involved the question whether a private way was acquired by prescription over uninclosed and vacant lands in the City of Little Rock. Particular reliance is placed on the following language of the court: “While not. universally recognized, the prevailing rule seems to be that, where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right; but where the easement enjoyed is across property that is unmclosed, it will be deemed to be by permission of the owner, and not to be adverse to his title. ’ ’ (Italics supplied). The difficulty that arises in attempting to apply this rule in the instant case is that the land in controversy is both occupied and uninclosed. Language subsequently used in the opinion would seem to indicate that use of the word “uninclosed” had reference to lands that were also open, or unoccupied. The court further said in that case: “Cases might, and do, arise where those using a private way over uninclosed lands may, by their conduct, openly and notoriously pursued, apprise the owner that they are claiming the way as of right and thus make their possession adverse . . .” In Holt v. Crawford County, 169 Ark. 1069, 277 S. W. 520, the court said: “Appellant contends for a reversal of the judgment offsetting his damages with benefits because the public had no prescriptive rights, under the law, in the old road. In support of this contention, he cites the case of Brumley v. State, 83 Ark. 236, 103 S. W. 615, in which the rule was announced that where the road was used by the public without an order of court through wild, unused land, the presumption is that it was used by permission or consent of the owner of the lands. In the instant cáse, even if such a presumption existed, it was not conclusive, and might be overcome by facts and circumstances adduced in evidence . . .” In Howard v. State, 47 Ark. 431, 2 S. W. 331, it was held: “A road becomes established as a public highway by prescription, where the public, with the knowledge of the owner of the soil, has claimed and continuously exercised the right of using it for a public highway for the period of seven years, unless it was so used by leave, favor or mistake; and this though the public travel may have somewhere slightly deviated from the original track by reason of any obstacle that may have been placed in it.” Later cases have consistently followed this rule. See, Patton v. State, 50 Ark. 53, 6 S. W. 227; McCracken v. State, 146 Ark. 300, 227 S. W. 8, 228 S. W. 739; Harrison v. Harvey, 202 Ark. 486, 150 S. W. 2d 758; Pierce v. Jones, 207 Ark. 139, 179 S. W. 2d 454. In McClain v. Keel, 135 Ark. 496, 205 S. W. 894, the court said: “It is well settled that where a highway is used by the public for a period of more than seven years, openly, continuously and adversely, the public acquires an easement by prescription or limitation of which it can not be dispossessed by the owner of the fee. Patton v. State, 50 Ark. 53, 6 S. W. 227; District No. 2 v. Winkler, 102 Ark. 553, 145 S. W. 209. But it is also equally well settled that the right to a public highway once established by limitation or prescription may be abandoned by nonuser, and if so abandoned for a period of more than seven years, the right' of the owner of the fee to re-enter and to thereby exclude the public from the use of the highway is restored. ’ ’ A preponderance of the evidence in the case at bar supports the conclusion that a public way by prescription had been established over the land now owned by appellant at the time it was purchased by Purcell in 1936. The evidence is insufficient to show that'the right thus established has since been abandoned by non-user. While the testimony is conflicting as to whether use of the road since 1938 has been adverse and under claim of right, or permissive, we cannot say that finding of the trial court is against the weight of the evidence as a whole. Affirmed.

Ed. F. McFaddin, Justice. This action is an effort to hold appellants liable because they rented an airplane to a person whose conduct caused the death of appellees ’ son. Appellants, Garbacz and Holbert, are partners owning and operating the Central Flying Service in Little Rock. Yernon Wilkerson was a young man interested in aviation. He held a student’s permit which allowed him to rent and fly a plane, but not to carry passengers. On March 23rd Wilkerson rented á plane from appellants for three days in order to fly to Forrest City and attend a-fraternity convention; and while there, on March 24th, he took his fraternity brother J. W. Crigger, on a flight. The plane crashed and both Wilkerson and Crigger were killed. Appellees (plaintiffs below), as the parents and legal representatives of Crigger’s estate, brought this action against appellants (defendants below) to hold them liable for his death. The theory of alleged liability was: (1) that Wilkerson was notorious for his recklessness in the operation of an airplane; (2) that Crigger was killed because of the said recklessness of Wilkerson; (3) that appellants had actual or imputed knowledge of Wilkerson’s recklessness; and (-4) tliat in renting the plane to Wilkerson with such knowledge, the appellants became liable for all of his acts. Appellants denied liability; bnt a jury trial resulted in a verdict and judgment against appellants; and this appeal challenges that judgment. We are presented with the question of the tort liability of one who rents an airplane to another; and very few relevant cases can be found. In Brewer v. Thompson, ante, p. 164, 219 S. W. 2d 758, a person legally riding as a passenger in a rented plane being operated by the bailee sued the bailor for damages, on the theory that the plane was defective. We denied recovery, because there was no proof of negligence on the part of the bailor. The decision in that case turned on the absence of negligence. In 4 A. L. R. 2d page 1306 there is an annotation entitled, “Tort liability of one renting or loaning airplane to another”; and this annotation comments on the paucity of cases and also the failure of even the few cases to bottom the holdings on a uniform legal principle. Arkansas has never adopted the Uniform Aeronautics Act; instead, the Arkansas General Assembly of 1941 by § 13 of Act 457 provided: “The liability of the owner or pilot of an airplane carrying passengers, for injury or death to such passengers, shall be determined by the rules of law applicable to torts on the lands or waters of this State arising out of similar relationships.” Both sides to the present litigation concede the validity and applicability of tin-quoted section. Since the bailment of a motor vehicle presents, in many instances, an analagous situation to the bailment of an airplane, we turn, then, to the automobile cases for applicable rules. Our cases recognize that one who rents an automobile to a known reckless driver is liable for the damages which reasonably and proximately result from the reckless driving of such bailee. See Layes v. Harris, 187 Ark. 1107, 63 S. W. 2d 971; Chaney v. Duncan, 194 Ark. 1076, 110 S. W. 2d 21; McAllister v. Calhoun, 212 Ark. 17, 205 S. W. 2d 40. Apparently attempting to follow the rationale -of these cases, the trial court instructed the jury, at the request of the plaintiffs, and over the general and specific objections of the defendants, as follows: “You are, therefore, instructed that if you find from a preponderance of the evidence in this case that the defendant, Central Flying Service, leased- or rented an airplane to Vernon Wilkerson as alleged in the complaint and if you further find from a preponderance of the evidence that at the time -said airplane was rented or leased to Vernon Wilkerson the defendant knew, or by the exercising of ordinary care could have known, that Vernon Wilkerson by reason of his want of age or experience, his physical or mental condition, or his known habit of recklessness was incompetent to safely operate the airplane, and if you further find from the evidence that because of reckless and negligent operation of said plane, if any, by Vernon Wilkerson, J. W. Crigger lost his life you are told as a matter of law that the action of the defendant(s) in leasing or renting said airplane to Vernon Wilkerson will be deemed to be the proximate cause of the death of J. W. Crigger and your verdict will be for the plaintiffs.” A careful review of the record discloses sufficient evidence to. take the- case to the jury on the questions (1) whether Wilkerson was notorious for his recklessness; (2) whether Crigger was killed because of said recklessness; and (3) whether the appellants had actual or imputed knowledge of Wilkerson’s recklessness. But we hold that there was no sufficient evidence to support the finding that the appellants could have reasonably anticipated that Wilkerson would take a passenger in the plane while he had it rented. According to tlie rules of the Civil Aeronautics .Board, which are controlling here, anyone sixteen or more years of age, who satisfactorily passes a mental and physical examination, may receive a student permit; after six hours of flying with an instructor — and upou approval of the instructor — the student is eligible for a solo flight; after other required hours of solo flying, the student may take a cross-country flight with an instructor, and then a solo cross-country flight; upon completion of 35 hours of flying, and with the approval of a recognized instructor, the student becomes eligible for a pilot’s license, Only a person holding a pilot’s license is permitted to take a passenger in the plane; but anyone holding a student’s permit, who has completed his solo flight and his cross-country flight with an instructor, is eligible to rent a plane from any flying service. Wilkerson held a student’s permit, and had completed his solo and cross-country flights, so it was entirely legal for the appellants to rent the plane to him. Wilkerson did not have a pilot’s license, so he could not legally take a passenger in the plane. We find no facts that could have imputed to appellants — when they rented the plane to Wilkerson — any . reason to believe that he would take a passenger in the plane in violation of the regulations of the Civil Aeronautics Board. As one witness expressed it, “he was an eager beaver about flying.” He was anxious to get his pilot’s license. The only former indiscretion, of whieh he was definitely shown to have been guilty, was one act of low flying which occurred several months before the events here. He had been disciplined for this low flying, and then allowed to resume the renting of planes. No reasonable person could have been required to foresee, on March 23rd when the plane was rented to him, that the next day Wilkerson would endanger his entire avia tion career and lose even Ms student permit, by taking a passenger in tbe plane. • In our- automobile" cases previously cited, we bave said tbat one renting a ear to a known reckless driver may be liable for injuries resulting from negligence of tbe driver. But tbat statement means tbat tbe negligence upon tbe part of tbe driver must be in tbe operation of tbe car; it does not mean tbat one renting a caito a reckless driver becomes liable for any other act of indiscretion — e. g., kidnapping — done by tbe driver of tbe car and not proximately connected with tbe driving. Tbe damage must flow from tbe driving of tbe car, and not from tbe separate tort of tbe driver. There is an exhaustive annotation in 168 A. L. B>. 1364 entitled, “Common-law liability based on entrusting automobile to incompetent, reckless or unlicensed driver”; and on page 1369 of that annotation.there is a section entitled, “Necessity of causal relation between injury complained of and driver’s incompetency, inexperience or unfitness.” It is there stated: ‘‘ Generally, in order to recover against tbe owner of an automobile on the ground of bis negligence in entrusting tbe automobile to an incompetent driver, for injuries inflicted by the driver’s operation of tbe car, tbe plamtiff must establish tbat tbe injury complained of was caused by tbe driver’s disqualification, incompetency, inexperience, or recklessness. . . . most cases bold that failure to show tbat tbe matter of operation of tbe offending vehicle arose from or was induced by tbe disqualification alleged, of tbe driver to whom it was entrusted by the owner, precludes recovery against the latter under tbe common-law rule embodying tbe doctrine of liability for entrustment to an incompetent person.” Tbe necessity of establisMng causal connection between tbe negligence of tbe driver and tbe resulting damage is so clear tbat our automobile cases bave shown such connection without stating tbe necessity for its existence. We bave many cases on proximate cause and causal connection. In Wisconsin & Ark. Lbr. Co. v. Scott, 153 Ark. 65, 239 S. W. 391 this Court said: “To constitute actionable negligence, there must be negligence and injury resulting as the proximate cause of it. Proximate cause has been defined as a cause from which a person of ordinary experience and sagacity could foresee that the result might probably ensue. ’ ’ Again, in Meeks v. Graysonia, Nashville & Ashdown R. Co., 168 Ark. 966, 272 S. W. 360 this Court said: “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 he had on account of saicl 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, 113 S. W. 647, 18 L. R. A. N. S. 905; St. L. & S. F. R. Co. v. Whayne, 104 Ark. 506, 149 S. W. 333; St. L. Kennett & S. E. Rd. Co. v. Fultz, 91 Ark. 260, 120 S. W. 984; Hays v. Williams, 115 Ark. 406, 171 S. W. 882; and Bona v. Thomas Auto Co., 137 Ark. 217, 208 S. W. 306.” Applying the rules of causal connection and proximate cause to the case at bar, it follows that before the appellants could have been held liable, it was necessary for the appellees to show that the appellants could have reasonably foreseen that Wilkerson, while on his trip to Forrest City, would take a passenger in the plane in violation of the rules of the Civil Aeronautics Board. No such showing was made, nor does the inference arise as a matter of law. It follows therefore that the judgment of the Circuit Court is reversed, and the cause is dismissed. Millwee and George Rose Smith, JJ., dissent. For brevity, we have used here the word “recklessness.” The complaint used a more comprehensive term, i. e., “wilfull and wanton negligence and misconduct.” In this opinion “recklessness” includes the comprehensive term. See footnote preceding. The Uniform Aeronautics Act was approved by the National Conference of Commissioners on Uniform State Laws in 1922. It may be found in vol. eleven, Uniform Laws Annotated, page 157. On page 274 of the 1948 Cumulative Annual Pocket Parts for said vol. 11, it" is stated that this Uniform Aeronautics Act was withdrawn by the National Conference of Commissioners on Uniform State Laws in August, 1943. The latter portion of this instruction is erroneous. “The Civil Aeronautics Act of 1938” was enacted by the Congress of the United States on June 23, 1938, c. 601. 52 Stat. 977. It may be found in U. S. C. A. title 49, § 401, et seq. Under the Civil Aeronautics Act the rules for the licensing of pilots, etc., are prescribed and regulated by the Civil Aeronautics Board. Some of the rules and regulations of the Civil Aeronautics Board were referred to in our recent case of West Memphis Flying Service v. American Aviation, etc., Co., ante, p. 6, 219 S. W. 2d 215.

Holt, J. Della B. Singer died testate October 11, 1944. She left surviving her husband, appellant, now 73 years of age. Under the terms of her will, appellee, Bank, was named her executor. Appellee, May 29, 1945, brought the present suit against appellant for an accounting, alleging in substance that from about 1924 until the death of his wife, appellant, as trustee and agent, had handled her property generally, involving in excess of $750,000, had made investments in Government bonds and securities, kept bank accounts, and occupied a fiduciary relationship. Appellant answered admitting that he had handled and managed his wife’s property, but denied that in doing so he acted as trustee, agent, or in a fiduciary capacity and further denied that appellee was entitled to an accounting, in the circumstances. The Court appointed Jacob L. King master to state an account, and on December 10,1946, he filed his report. July 9,1948, after an extended hearing during which voluminous testimony was presented by the. parties, the trial court found that appellant, Charles Singer, was not acting in the capacity of trustee of assets belonging to his wife from 1924 to 1944, inclusive. The court further found that appellant had not accounted for $18,910.74, and that he owed the estate this amount for which decree was entered for the executor, appellee. The cause comes here on appellant’s direct appeal and appellee’s cross appeal. As we read the record, the primary and decisive question presented is whether, in the circumstances, an accounting was required of Charles Singer, or whether Charles Singer occupied such fiduciary relationship to ward Ms wife that would give a court of equity power to require an accounting. The material facts appear to be practically undisputed. Della and Charles Singer were married in St. Louis, Missouri, in 1907. They moved to Hot Springs, Arkansas, in 1912 where appellant operated a tailoring business until 1923 when, at his wife’s request, he sold his business. From the earnings of business and sale thereof he had accumulated approximately $18,000 cash. Shortly before this sale, Mrs. Singer, through her brother in St. Louis, had inherited a one-sixth interest in the income, during her life, from a large estate from wMch she had received in monthly payments at the time of her death in 1944, a total of $749,420.21. Prior to her inheritance, Mrs. Singer , had no estate or income of her own and was solely dependent upon appellant for support. Immediately following her good fortune and during all the years from 1923 to October 11, 1944 (when Mrs. Singer died), they had commingled and mixed all their assets, wMch at Mrs. Singer’s direction, and with her consent, appellant handled generally. He made purchases of Government bonds with her knowledge and consent, not only for her but for himself. He opened ten joint bank accounts in various banks in and out of Arkansas, rented lock boxes in their joint names, wherein he stored bonds and assets. From Mrs. Singer’s funds he built their home in Hot Springs at a cost of approximately $60,000, purchased automobiles, Mred a chauffeur, servants, nurses when needed, spent vacations in Florida and made trips to California. When they moved to Hot Springs, Mr. Singer was suffering from arthritis and Mrs. Singer was a semi-invalid, though always mentally alert, much of the time after their removal to Hot Springs and until her death. No complete record was kept by appellant of all moneys that passed through his hands, except bond purchases and other investments, for the reason that his wife consented to the manner in which he was handling her money and required no such completed record, or accounting. The record discloses that their married life was harmonious and congenial, and pictured a couple devoted, happy, and with each holding the absolute trust and confidence of the other. The record is devoid of any suggestion of fraud, overreaching or undue influence on the part of Charles Singer or of any mental incapacity on the part of his wife. Following her death, appellant cooperated with the executor to the fullest extent. He readily disclosed and produced all assets which had come into his hands which he held, as indicated, in Arkansas and outside the State. He aided the executor in making a complete inventory of these assets and about the 24th of April, 1945, he made a settlement with the executor of his interests in his wife’s estate, which settlement had not been questioned until the present suit for an accounting was filed. True it is that appellant handled more than $750,000 of his wife’s money over the period from 1923 to 1944, but it is undisputed that she permitted-him to do so without restraint. She also made gifts to him of large sums of money, and required no accounting from him, which obviously she had the right to do if she so desired. When Mrs. Singer made her will, June 2, 1944, she gave her husband the home with its furnishings, $100,000 in cash, and after a large number of other bequests, she provided that her executor pay to her “beloved husband,” during his life, the net income from her trust estate, and in addition that he pay all hospital and medical bills of her husband, and if necessary to use the principal for such purpose. She further stipulated in her will: “I appreciate that my husband is fully competent to fully handle and manage my estate, but it is my wish and desire that my husband, for the remainder of his lifetime, will not be burdened with the care and management of business affairs,” and further “it is my will and desire that in the performance of the management of my estate and in the sale and purchase of assets, including the transfer thereof, that said Trustee will freely consult and confer with my beloved husband, to the end that he will, at all convenient times, be informed of such management, and in return therefor the Trustee will receive the benefit of his good advice.” The Master’s report did not purport to be a complete report and accounting of all moneys, receipts and disbursements handled by appellant for the simple reason that he could only work from such records as appellant kept. Obviously he could not make an accurate accounting and audit when appellant was not required by his wife to keep complete records or to account to her. The Master testified that it was not possible for him to make an accounting with any degree of accuracy whatever with the records that he had and that he made no attempt to set up in his report the. amount of money that Charles Singer received from his wife. He further testified that in his efforts to state an account, no transactions or items of $200 or less, were considered. The number, or total, of such items was not shown. Robert B. Wilson, an employee of the auditing firm of Russell Brown & Company, also attempted to make an audit and accounting, and he tended to corroborate the Master’s'testimony. He testified that as a matter of fact, he could not certify a balance sheet on his report, neither could he give a positive statement to the court where he could certify it to be correct due to the lack of information and records. Of much significance in this case is the fact that all beneficiaries and parties having any interest- in Mrs. Singer’s estate and who were made defendants to this suit, answered appellee’s complaint denying appellee’s alleged right to an accounting, and alleged.that they were opposed to this litigation and prayed that appellee’s complaint be dismissed! In the circumstances, and after consideration of all the testimony, we have concluded that an accounting was not warranted, that while the trial court correctly held that Charles Singer was not acting as trustee of assets belonging to his wife from 1924 to her death in 1944, there was error in the decree directing an accounting. The most the testimony shows is that appellant was his wife’s agent in the sense that he followed her directions and acted with her consent, and was not acting in a fiduciary capacity. “The duty of an agent to account . . . arises, not from the bare relation of agency, but rather from the fiduciary character of the relation between the parties, which character forms the basis for equitable interposition and gives the chancery court jurisdiction of a suit by the principal.” 2 Am. Jr., § 286, p. 226. “Where principal, expressly or by implication, has led liquidating agent to believe that he would not be required to account, or that particular method of accounting would be satisfactory, principal cannot complain that agent; acting in good faith, has not Kept accounts with strictness which might otherwise have been required.” Pennsylvania Trust Co. v. Billman, et al., 61 Fed. 2d 382, (Headnote 3). In the well reasoned case of Barnett v. Kemp, 258 Mo. 139, 167 S. W. 546, 52 L. R. A. N. S. 1185, in which the facts are, in effect, similar to those presented here, and the reasoning sound, the principals of law are well stated and apply with equal force here. We quote somewhat extensively from that opinion. “To sustain an action for an accounting, some such business relation must be shown to have existed between the parties as to create a liability on the part of the one to the other. More briefly, the basis of the action must be the existence of the relation of principal or agent, in some one of the varied forms of business activity under which one, being authorized, acts for and on behalf of another. In fact, no form of human action, save by the actor himself, is possible without the creation, although it may be for the one act alone, of the relation of principal and agent. It was created and existed between defendant and his mother. So well defined was the relation that he did not rent an acre of ground, reset a fence, sell a crib of corn, or a stack of hay, except under her direction and with her approval. That he received and paid out money for her in conducting her business as we do not doubt, although there is a paucity of testimony in this regard. In the absence of an express appointment, or acceptance, much may, of course, be inferred as to the nature of a business relationship from the words and conduct of the parties and the correlative circumstances connected with the case. We have weighed all of these in an effort to determine whether the relation which existed between these parties was such as to create a liability on the part of the defendant. The fact that the relation of principal and agent may in form have existed in this case lends no force to’plaintiff’s claim, unless it be shown that a liability was thereby created on the part of defendant. “The property, real and personal, belonged to the mother. Her mental alertness and the exercise of her authority in regard to it, shown by the testimony, we have adverted to. The mother being dead, the son’s mouth is closed as to the nature of his relations with her, and the evidence in regard thereto, in the absence of other witnesses, must be gleaned from her conduct, so far as it can be shown by all the facts and circumstances in the case. While he acted for her, and she kept a watchful eye upon his actions, she required him to keep no books, and if he accounted to her it must have been orally after each transaction. If he was required to make settlements, the conclusion is almost inevitable that they were made after the same manner as his reports. No-syllable of testimony indicates that she was at any time dissatisfied with this manner of proceeding, and it is almost proof positive that if dissatisfaction existed the ever open ears of the village gossip would have heard it from her at some time during the 20 years and more that the relation existed. Under this state of facts, in the utter absence of evidence to sustain it, we are asked by the plaintiff to require the. defendant to do what was never required of him by his mother, viz: Render an account of his transactions. “Living, Mrs. Sarah Kemp may have been unbusinesslike in her methods, but her power to do with her own as she chose cannot be questioned. If she chose to give her income or more to her son in exchange for a home and the companionship of those endeared to her by association and ties of blood, a court of conscience, whose decrees should be tempered by sentiment as well as a wholesome sense of right, should not interfere with her choice. Especially is this true where, as in this case, there is no allegation of fraud, unfair dealing, or undue influence, and no intimation that she was not, at all times, of sound mind. The plaintiff’s petition is to be commended in this respect, as, after the necessary formal allegations, it plants its plea for a decree upon defendant’s mismanagement of the estate. In our opinion, the facts and circumstances do not justify equitable intervention. Precedents in support of the conclusion reached here in regard to an accounting may be found in the following cases: Donovan v. Griffith, 215 Mo. 149, 114 S. W. 621, 20 L. R. A., N. S. 825, 128 Am. St. Rep. 458, 15 Ann. Cas. 724; Smith, Admr. v. Perry, 197 Mo. loc. cit. 461, 95 S. W. 337; Crowley v. Crowley, 167 Mo. App. 414, 151 S. W. 512; Carrau v. Chapotel, 47 La. Ann. 408, 16 So. 873; Evans v. Evans, 42 Tenn. (2 Cold.) 143; Fidelity T. & T. Co. v. Weitzel, 152 Pa. 498, 25 Atl. 569; McCarty v. McCarty’s Admr., 11 Ky. Law Rep. 366; Rich v. Austin, 40 Vt. 416; Maccauley v. Elrod, 28 S. W. 782, 29 S. W. 734, 16 Ky. Law Rep. 549; Hamilton v. Hamilton, 15 App. Div. 47, 44 N. Y. Supp. 97, 102; Robbins v. Robbins, (N. J. Ch.) 3 Atl. 264.” This Barnett case was cited, and quoted from, with approval, by the Supreme Court of Michigan (9-5-39) in the case of Grand Haven State Bank v. Prendergast, 290 Mich, 206, 287 N. W. 435, where it was held: “Deceased’s intimate associate who, before deceased’s death, handled deceased’s business affairs, would not be required to account, on deceased’s death, where no undue influence, fraud, or misrepresentation was exercised on deceased, all expenditures were with deceased’s consent and approval, and satisfactory accountings had been made to deceased from time to time up until his death.” The Supreme Court of Oklahoma in the case of Winter v. Klein-Schultz, (1-18-38) 182 Okla. 231, 76 Pac. 2d 1051, also approved and cited this same case. "We conclude, therefore, that on direct appeal, the decree should be and is reversed and the cause is dismissed. On cross appeal, the decree is affirmed. The Chief Justice dissents.

Griffin Smith, Chief Justice. Appellant, a widow who worked as a seamstress, has two sons, one of whom —Bobby, 18 years of age — occasionally drove her car, sometimes using it to deliver newspapers. Marion Surman, 14 years of age, was injured in April 1948 while assisting Bobby with his work. In a suit by Virginia Haley, Marion’s mother, judgments for $2,000 were rendered against appellant, — $1,500 for Marion and $500 for his mother — on the theory that when the collision occurred, “Bobby Bonner was in and about the business of Rachael Bonner”. Bobby usually covered his route on a bicycle during afterschool periods. However, on April 20 he borrowed his mother’s car, first driving from home to the school campus where Marion and a young girl friend joined him. Marion had formerly assisted Bobby in serving the route. There was sufficient evidence for the jury to find that Bobby’s inattention as a driver caused the collision with a parked truck, resulting in Marion’s injuries, hence a review of circumstances is not necessary. The only question is, Was there substantial evidence that delivering papers was Rachael Bonner’s business? It was admitted that Bobby occasionally used the money he earned in a way indirectly advantageous to appellant. The complaint alleged that Bachael Bonner “. . . was engaged in delivering . . . the Helena ‘World’ to the various subscribers residing [in an interurban area called Crestwood] and [elsewhere], . . . and in connection with delivering said papers used an automobile which was regularly driven by her son, Bobbie Bonner. ...” Undisputed evidence is that Mrs. Bonner did not have a contract with the Helena World, and that her son’s work, although permissive, was on his own account. The peg upon which it is urged liability should be fastened is Mrs. Bonner’s frank statement that Bobby had at times used his earnings to purchase personal wearing apparel. Bobby did not contribute to the household upkeep, such as buying groceries and like necessities. Appellant testified positively that no contributions were made to her. The rule has been repeatedly stated that a parent is not liable for the negligence of a son or daughter when operation of the parent’s automobile caused damage in circumstances where the relationship of principal and agent, or master and servant, did not exist. Featherstone v. Jackson, 183 Ark. 373, 36 S. W. 2d 405. Where a mother received all of her minor son’s wages as employe of an oil company and furnished the automobile he used in going to and returning from work, it was held that the employment was for the mother’s sole benefit and advantage, hence she was liable for damages caused by use of the car. Irvine v. Killen, 109 Pa. Super. 34, 165 Atl. 528. In another Pennsylvania case recovery against a minor’s father was denied because agency was not established as a matter of law where evidence showed that the son was permitted by his father to drive a car wherever he desired. Other facts were that if a member of the family chose to enjoy the car, the son drove it for them. He had been trained at a business college, had been employed by various persons, had received — with his father’s consent — wages thus earned, and from these wages had educated and practically clothed himself. On the day of accident, desiring to go to a neighboring town in response to a letter offering employment, the minor requested his father to permit him to' take the automobile, first informing the parent of the object of the trip. The Court said, in effect, that the paternal interest a father has in his son’s welfare is not to be confused with a business interest, which would subject the father to damages. Kunkle v. Thompson, 67 Pa. (Superior Court) 37. The general common law rule is that a parent is not liable for the minor child’s torts unless there is some element of participation. McCarthy v. Heiselman, 140 App. Div. 240, 125 N. Y. S., 13. The New York case dealt with a situation where the defendants’ infant entered the plaintiff’s employment with defendants’ consent, and turned over his wages to them. This, it was held, did not make such infant the agent or servant of defendants so as to charge them with liability for the infant’s conversion of the employers’ money. In the absence of extraordinary circumstances the head of the parental household is entitled to a minor child’s wages. Where, however, the parent in authority permits the child to contract for himself, emancipation in respect of earnings may be implied. Biggs v. St. Louis, Iron Mountain & Southern Railway Co., 91 Ark. 122, 120 S. W. 970. In the case at bar the collateral benefit received by appellant was what she may have saved in the purchase of clothing for Bobby, due to his voluntary act in applying some of his money in that way. But before this money was spent, the mother had relinquished any claim to it, and did not exercise any element of control. At most the benefit was uncertain, and dependent upon the minor’s volition. We are hot able to say that a substantial question of fact was made for the jury. It follows that the trial Court should have instructed the jury to find for the defendant. Reversed. Cause dismissed. The quoted matter appears in an instruction, made a condition precedent to the right of recovery.

Ed. F. McFaddin, Justice. A traffic collision between approaching vehicles resulted in this litigation. The plaintiff Glaze was driving west, and the defendant Newsom was driving east; and the left front portion of plaintiff’s car struck, or was struck by, the left side of defendant’s car. In the ensuing litigation tbe plaintiff testified that tbe defendant’s car traveled over tbe center line to tbe plaintiff’s side of the road and “sideswiped” plaintiff’s car; the defendant testified that the plaintiff’s car traveled over the center line to the defendant’s side of the road, and struck the defendant’s car. The jury accepted the plaintiff’s version, and from the verdict and consequent - judgment defendant brings this appeal. He urges for reversal: that the undisputed physical facts are susceptible of only one conclusion, and definitely prove that the plaintiff’s testimony is unworthy of belief. • It is admitted by the defendant that there is sufficient evidence to sustain the verdict of the jury, unless the physical facts prevail as a matter of law; but it is most earnestly insisted that certain physical facts establish the defendant’s case and necessitate reversal of the jury’s verdict. Learned counsel for defendant invoke the rule that a verdict will be set aside if it be against incontrovertible physical facts; and in support of that rule he cites St. L. S. W. Ry. Co. v. Ellenwood, 123 Ark. 428, 185 S. W. 768; Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342; Platt v. Owens, 183 Ark. 261, 35 S. W. 2d 358; Magnolia Petroleum Co. v. Saunders, 193 Ark. 1080, 104 S. W. 2d 1062. To these cases might well be added: Aldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571; and Mo. Pac. R. Co. v. Diffee, 212 Ark. 55, 205 S. W. 2d 458. See, also, the following: 3 Am. Juris. 451, 4 C. J. 861, 5 C. J. S. 631, and note on page 640; 46 C. J. 183; and the annotation in 21 A. L. R. 141 on ‘‘Evidence contrary to scientific principles or laws of nature. ’ ’ With the rule of our cases in mind, defendant lists seven physical facts which he claims (a) to be undisputed and (b) to prove beyond controversy that the collision occurred on the defendant’s side of the highway. We quote from defendant’s brief: “The physical facts that show positively and conclusively that Glaze is clearly and palpably wrong, and that the verdict shocks the sense of justice, are: “1. When two cars run together, one of them traveling fifty miles per hour, knocking its front wheel and fender down, and damaging the rear of the other car, some physical signs at the place of impact will be left to tell the tale. “2. All of the glass, rim signs, and dirt from the cars were at the point along the road where Newsom said he got hit. “3. There is not a single sign of the collision across the road where Glaze said he was struck, or on any portion of the road close by. “4. Newsom’s car was struck at the left rear wheel and knocked off the road and stopped facing west. ■ “5. The left front wheel and fender of Glaze’s car was the part damaged. “6. The position and trail left by Glaze’s car after the collision establish the positive truth of Newsom’s statement. “7. The admitted speed of the Glaze ear makes it impossible for his version to be correct.” Even though the foregoing list appears formidable, nevertheless, those seven points are far from being undisputed. For instance: (a) the speed of the car was disputed; (b) the broken glass alleged to have been found near the scene of the collision was never shown to have been broken from either car; (c) the only marks or signs of the collision testified to by any witness were some on the gravel shoulder of the road; and (d) one of the witnesses (a minister) testified that there were no marks or signs at the scene where the collision took place. Thus, some of the seven “physical facts” offered by the defendant were not established by affirmative evidence, and it is only when the physical facts are “incontrovertible” that they may be used as a basis to impeach the jury verdict. When we lay aside — as we must — the controvertible physical facts, we have these left: (a) the damage to each car (that is, the left front of the plaintiff’s and the left side of tlie defendant’s); (b) the course of the vehicles after the impact; and (c) the final stopping place of each car. These three physical facts are not sufficient to establish defendant’s contentions in the face of the jury verdict. Regardless of the exact point of the collision on the highway, there could have been the same damage, the same resulting course of the vehicles, and the same final stopping place of each car. In Aldread v. Mills, 211 Ark. 99, 199 S. W. 2d 571 we had a case similar to the one here, and what was said in that case in regard to such physical facts is applicable to the case at bar. We apply here what we there quoted from Lang v. Mo. Pac. R. Co., 115 Mo. App. 489, 91 S. W. 1012: “ ‘So frequently do unlooked-for results attend the meeting of interacting forces that courts, in such cases, should not indulge in arbitrary deductions from physical law and fact, except when they appear to be so clear and irrefutable that no room is left for the entertainment, by reasonable minds, of any other. ’ ’ ’ It is not for us to substitute our conclusions for those of the jury, unless the incontrovertible physical facts demonstrate beyond a doubt that the verdict was erroneous. We cannot so declare in this case. Affirmed.

Holt, J. February 14, 1933, R. S. Warnock secured a judgment in the Columbia Circuit Court for $9,945.60 against Wade Kitchens and J. B. Wilson on a joint note, signed by each, the judgment being against them as individuals. November 10, 1933, Warnock died and his son, R. S. Warnock, Jr., was appointed administrator of his estate. On June 2, 1936, after the lapse of more than three years, execution was issued on the judgment against Kitchens and Wilson, advertising for sale a number of tracts of land, some of which belonged to Kitchens individually, some to Wilson individually, some to them jointly, and some few tracts that neither owned were erroneously included. All the lands included in the sale in which either Kitchens or Wilson had an interest were mortgaged. The lien of the judgment had expired February 14, 1936. For the purpose of the sale, the lands’were grouped and sold by the Sheriff in four different lots. Alvin Rogers was the successful buyer, paying $500 for one lot, $1,000 for another, $1,250 for another and $2,000 for the other, or a total of $4,750. These sales began before three p. m. and concluded shortly after that hour. The sales did not divest Kitchen’s wife of her dower interest. Kitchens knew about the sale, but was not present in person. He, however, sent his secretary, Miss Stevens, to make notes on the sale and to report proceedings to him. For some time prior to the sale Wilson and Kitchens had become estranged and were not on speaking terms, but Wilson, through emissaries, had contacted Kitchens in an effort to save their property from being sold. Kitchens refused to negotiate or take any part in the matter. In the forenoon on the day of the sale, Wilson entered into an agreement with the administrator, Warnock, to purchase the judgment. In effect, this agreement provided that Wilson might acquire the judgment at a discount, for $9,500, on condition, however, that the judgment in so far as it effected Wade Kitchens, should be assigned to a nominee of Wilson. Accordingly, Wilson paid the administrator $2,500 in cash, the balance to be paid in 15 days in settlement of the judgment. The Administrator, Warnock, agreed to instruct the sheriff to sell, under the execution, only lands, levied upon, belonging to Kitchens. The sheriff carried out these instructions in accordance with the agreement and sold only the Kitchens’ lands, for a total of $4,750, the amount Kitchens owed as his part of the judgment. As above noted, Wilson had paid $2,500 and was personally liable for the remainder of the $9,500. On this balance due, Wilson would owe as his part $2,250, the difference between $4,750 and $2,500/ Shepp Beene advanced to Wilson $5,000 and as security took an assignment of the judgment. Wilson secured $2,000 additional from another source and paid off the judgment. Thereafter, April 1, 1937, Beene assigned the judgment in question to J. B. Wilson. It is undisputed that Kitchens did not redeem the lands which had been sold under the execution within the year allowed by statute for redemption, (Ark. Stat., 1947, § 30-441). After the redemption period of one year had expired, the sheriff executed four separate deeds dated August 12, 1937, to Alvin Rogers', which deeds corresponded, as to lands described and amounts paid, to the four certificates of purchase. Thereafter, August 28, 1937, Alvin Rogers and wife, by quitclaim deed, conveyed the lands so conveyed to him at the execution sale, to J. B. Wilson. The present suit was filed January 13, 1938, by Kitchens against Wilson to cancel the deeds executed, in connection with the execution sale, by the sheriff to Rogers, and the deed from Rogers and wife to Wilson. Appellee alleged that the execution sale was void primarily because (1) at the time of the sale, Wilson and Kitchens were partners, the judgment represented a partnership debt, the lands sold on execution were partnership lands, and that one partner could not purchase the lands of the other at such sale; (2) that the sale was also void because made after three o’clock in the afternoon; (3) the lands were sold in lots including separate tracts; (4) lands were included in the sale which did not belong to Kitchens or Wilson; (5) that there were certain erroneous descriptions; (6) the sheriff failed to make proper return of the execution; (7) the sheriff failed to file copies of the certificates of the purchase in the office of the clerk, and (8) that a trust relationship existed between the parties and for fraud on the part of Wilson. Appellee also asked for an accounting. ' Defendant, Wilson, interposed a general denial, and specifically denied that a partnership relationship or a trust or fiduciary relationship existed; denied that he, Wilson, was guilty of any fraud, alleged that the execution sale was valid, and asked that appellee’s complaint be dismissed for want of equity and that his, Wilson’s, title to all lands embraced in the sheriff’s deeds, and the deed from Alvin Rogers to him, Wilson, be quieted against any claims of appellee. The trial court found, in effect, that a partnership relation existed between Kitchens and Wilson which had never been dissolved, that the execution sale was ineffective and should be cancelled in so far as the rights of Kitchens were concerned, because of such relationship. No specific finding was made by the court whether the sale was ineffective or void for any of the other reasons, supra, alleged and assigned by appellee. The court further found that Kitchens and Wilson had from time to time engaged in other partnership enterprises, that all lands and other partnership assets should be converted into partnership property and that a Master should be appointed to make an accounting, and entered a decree accordingly. This appeal followed. Appellant, Mrs. Mary Bird, a daughter of J. B. Wilson, was made a party defendant by appellee. Refer ence will presently be made as to her connection with the case. We first determine whether there existed a partnership or trust relation between Kitchens and Wilson in the lands sold at the execution sale and whether Wilson practiced a fraud on Kitchens, in the circumstances. We have concluded, after considering the entire record, that the preponderance of the testimony shows that no partnership or trust relationship was established or existed, that no fraud was shown on the part of Wilson, and that the findings of the court to the contrary were against the preponderance of the testimony. The facts reveal that Kitchens and Wilson, for a great many years prior to about 1931, had been engaged in a number of separate joint enterprises or adventures for profit, such as purchasing lands, buying cotton and borrowing money. Each also, during this time, carried on separate undertakings and enterprises of his own without including or consulting the other. Kitchens was a prominent attorney and also Member of Congress for a number of years. His own testimony on this relationship is most significant. He testified that he practiced law as a profession, that he had lands and other property in which Wilson had no interest, that he made deals of his own for profit and sums up their relationship in his answer to the following question: “Q. As a matter of fact each trade that was made was either put up to him by you, or by him to you, and you could come in on it or stay out, couldn’t you? A. Well, I suppose so.” We hold, therefore, that they were not partners, but were dealing at arms length with a joint obligation at the time of this execution, in the circumstances, and no fiduciary relationship existed between them. . While, as indicated, since three years had elapsed after the entry of the judgment in question, the judgment lien had expired, (Ark. Stat. 1947, § 29-131). However, while the judgment lien expires at the end of this three year period, unless revived, the judgment it self remains in full force, and effect for ten years, and the execution may be issued at any time within this ten year period, (Ark. Stat. 1947, §§ 30-103, 37-212 and 29-130). Under the statutes, supra, appellee had the right, at any time within the one year redemption period, to make a direct attack upon the execution sale in the Circuit Court where the judgment was rendered and on which the execution was issued, for any of the irregularities alleged, supra, the sale during this redemption period being voidable and not void. He was also given the absolute right to redeem it within this period. As indicated, appellee took no action at all during the redemption period. The Circuit Court had ample power to determine whether the sale should have been vacated, but appellee having waited until after his right to redeem had expired and the sheriff had executed the deeds to the purchaser, his right to question the sale for irregularities, such as alleged, was terminated or cut off and his present suit to void the sale is a collateral attack. After the redemption period, his right of attack was limited to defects, in the sale, which made the sale void, or for actual fraud perpetrated by appellant, Wilson. As we have pointed out, the sale was not void, but during the redemption period was voidable only and subject to direct attack by Kitchens during this period. The applicable and general rule is stated in 21 Am. Jur. 257, VII. Belief from Execution, as follows: “Section 517. Generally. — The fact that there is a valid judgment does not, of course, preclude an attack upon an execution sale held thereunder and a deed executed and delivered in pursuance thereof. Generally, relief should be sought, if at all, in the court from which the execution issued. * * * “Section 519. Collateral Attack. — -The general rule is that if there is any ground for relief against an execution, such relief must be sought in the original cause, and not by a new and independent proceeding. This rule is upheld of course, not merely in regard to original writs of execution, but also in regard to alias and pluries writs of execution. The rule prevails where the collateral attack is sought to be made because of a clerical error or because of an irregularity committed by the execution officer, such as a sale made in violation of a stay of execution, or after a defective appraisement, or without any appraisement, or, in general, because of defects or irregularities in connection with the execution which do not render it void, particularly where no one sustains an injury thereby and where the sale has been confirmed. There are, however, some eases in which a confirmation of the sale is held not to preclude a collateral attack thereon. The collateral attack may be made where the execution is void, and the same remedy in certain cases of fraud. These general rules are applicable to execution deeds which may not be impeached collaterally for mere irregularity, although the defendant in execution may deny the validity of such a deed if made to one who was not the purchaser, but a stranger to the proceeding's.” Appellant, Mrs. Mary Bird: Nearly a year after the filing of the present suit, appellee, as indicated, by amendment to his complaint, made Mrs. Bird a party. He alleged that a deed of trust given by Wade Kitchens and J. B. Wilson to Clyde Fincher, trustee for T. P. Lester, had been foreclosed and judgment rendered October 26,1936, against Kitchens and Wilson for $6,844.44 plus interest; that this judgment was assigned by Lester to Mrs. Bird December 30, 1936, for $7,000; that the lands described in the deed of trust were sold and purchased by Mrs. Bird September 11, 1937; that Kitchens redeemed the lands by paying to the Clerk September 10, 1938, $8,303.13, and this money was paid by the Clerk to Mrs. Bird. It thus appears that Kitchens has paid $8,303.13 to satisfy a judgment for which he was liable for only one-half. Appellant so concedes and says: “One-half of the judgment was the debt of Mr. Wilson and he should be accountable for one-half of the amount paid by Kitchens to satisfy the Lester judgment.” It appears, however, that the trial court made no finding as to the amount due from Wilson to Kitchens on this particular transaction, it appearing that an accounting would he necessary in order to determine the interest of each party after allowing certain credits. The proof was not fully developed, and this joint transaction, along with others, not determined, was reserved for further proceedings, involving an accounting. Accordingly, the decree is reversed and the cause remanded with directions to quiet appellants’ title to all the lands sold at the execution sale and described in the sheriff’s deeds in which Wilson and appellee, Kitchens, had any interest, to give appellants possession and for further proceedings consistent with this opinion. Griffin Smith, C. J., dissents in part. Justice McFaddin concurs.

Holt, J. Appellant, Mothershead, owns 1,950 shares of.’ slock in the Polk-Southard Mining Company, an Arkansas Corporation, in Batesville, Arkansas. Appellees constitute a majority of the board of directors and stockholders. E. P. Douglas is its president and J. Bay Nuckols, secretary-treasurer. This corporation acquired certain mining property and equipment from J. B. Davis and assumed a substantial mortgage indebtedness held against the property by the Hendricks Mining & Milling Company, a partnership. In the latter part of 1947, there was due on this debt to the partnership $45,000, which the Polk-Southard Mining Company was unable to pay. After some negotiations, the Hendricks partnership agreed to accept by way of compromise $15,000 in full settlement of the above debt. To arrange to secure this latter amount, the Board of Directors of the Polk-Southard Mining Company held a meeting January 24,1948, at which the following action was taken: “January 24, 1948. Present the following Directors; E. P. Douglas; H. C. Hummel; M. L. McNaught; and B. E. Sanders; Moved by Mr. Sanders and seconded by Mí. McNaught that the president and secretary be authorized to sign a note in the amount of $49,000, plus interest at six per cent, payable within sixty days, made payable to Mr. Douglas, Mr. Hummel, Mr. W. E. Shutt, Mr. M. C. Shutt, Mr. J. B. Nuckols, Mr. Biekel, Mr. M. L. McNauglit and Mr. C. F. Pennington. “This note to cover the advance of $4,000 made by those men at an earlier date and the $45,000 mortgage which they took over from Mr. Hendricks in order that Mr. Hendricks could not foreclose. Motion carried.” On this same day, the Polk-Southard Mining Company, by its president, Douglas, and its secretary-treasurer, Nuckols, executed to the appellees for themselves as individuals, its note for $49,000, secured by deed of trust on the property belonging to the Mining Corporation, due 60 days from date, with 6% interest. April 13, thereafter, appellees, including Douglas and Nuckols, sued the Polk-Southard Mining Company on the $49,000 note and asked that the deed of trust be foreclosed, and on June 1, 1948, decree was entered for $49,000 and sale of the property ordered. On July 8, 1948, appellant, a stockholder, intervened, denying that the Polk-Southard Mining Company was indebted to appellees in the sum of $49,000, but alleged the actual indebtedness to be $15,000, or less, denied appellees’ right to purchase a claim owed by the Corporation, and alleged fraud. His prayer was that the decree he set aside and that the order of sale of the property he withheld pending final determination of the rights of the parties. Trial on appellant’s intervention was had October 7, 1948, which resulted in the dismissal of the intervention for want of equity. Prior thereto, June 1, 1948, the property was sold under the foreclosure decree for $42,500, and the sale later confirmed. Prom undisputed facts presented by this record, appellees, as directors of the Polk-Southard Mining Company, stood in a fiduciary relation to the stockholders of the corporation, were their trustees in handling its affairs and at all times owed the utmost good faith to these shareholders who elected them. They could not, therefore, take advantage of the company’s insolvent condition to purchase claims against it for their own personal benefit, contrary to the trust imposed upon them. The principles of law announced in our own case of Hornor v. New South Oil Mill, 130 Ark. 551, 197 S. W. 1163, are controlling here. There, speaking through the late Judge Hart, this court said: "A corporation can only act by agents and the directors are the governing body of the corporation. They stand in a fiduciary relation to the corporation and its stockholders. They owe the duty of the utmost good faith toward the corporation and toward the shareholders who elect them. Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880. * * * “In Thompson on Corporations, Vol. 2 (2d Ed.), par. 1238, the rule is stated as follows: ‘It may be stated as a general rule that a director will not be permitted to purchase claims against the corporation, either when he owes to it the duty of acting in its interests and for its benefits, or when, knowing the corporation to be insolvent, he buys such claims for his own benefit, intending thereby to get an advantage over the other creditors and hold the claims thus purchased against die corporation for their full amount. In all such cases it may be said that the director will have no claim against the corporation beyond the amount actually expended by him. Thus a director acting as a special committee to settle certain claims against the corporation, can not claim for himself the benefit of reductions secured by him in the adjustment and compromise of claims, though purchased by him with his own funds.’ ” The evidence is not sufficiently clear, or developed, for this court to determine the correct amount which appellees had expended in satisfaction of the Hendricks partnership debt. Whether they had expended $19,000 as they claim, or only $4,000, as appellant claims, or $15,000, the amount that the Hendricks partnership agreed to take in settlement of the debt, we cannot say, on the record presented. Accordingly, the decree is reversed and the cause remanded with directions to set the sales aside and ascertain the correct amount expended by appellees and enter a decree in their favor and for further proceedings consistent with this opinion. All costs in both courts to be borne by appellees.

Griffin Smith, Chief Justice. Mary Ruth Reynolds, and others were record owners of eighty acres sold by the Collector for delinquent State and County taxes in November 1941. ‘ The property was purchased by Manie Schuman, to whom a Clerk’s deed was issued September 25, 1945. In a suit filed in June 1947 the record owners alleged errors in the assessment and sale, the nature of which, it was insisted, avoided the sale. From a decree in favor of the plaintiffs, sustaining their contentions in three respects, Schuman has appealed. The trial Court found (a) that in the absence of record entries affirmatively showing a valuation fixed by the assessor, when considered in connection with the Clerk’s testimony, there was a reasonable inference that the Assessor failed to value the land; (b) that a mathematical error caused an overcharge of ten cents for which the property sold, and (c) one of the oaths the Assessor was required to make, was omitted, and another was defective. Since the overcharge has been established, and it alone is controlling, there is no occasion to discuss other assignments. Book C (1940) was identified by the Clerk as the official record of Lands Sold to Individuals. Three items ($7.16, 72c, and 55c) were extended as $8.53. The Clerk testified that if the owners [during the two-year grace period allowed by law] had sought to redeem, “. . . they would have been required to pay ten cents more.than was due.” Appellant replies that in the certificate he received the extension was correctly shown to be $8.43. This, he thinks, was sufficient to create a conclusive presumption that the land was “struck off” for the correct amount, and that the alleged overcharge should be attributed to faulty addition entering into transactions after the sale • — an error the Clerk would have discovered had the owners sought to redeem. But this conclusion is not in harmony with the Clerk’s testimony that the owners would have been required to redeem as though, the sale had been made for $8.53. In principle the case is not distinguishable from Lumsden v. Erstine, 205 Ark. 1004, 172 S. W. 2d 409, 147 A. L. R. 1132. Affirmed. Pope’s Digest, § 13623. Pope’s Digest, § 13676. The testimony referred to was: Question: “Then there is an error in taxes, penalty and cost of ten cents?” A. “Yes.” Q. “And one redeeming it would have been required to pay ten cents more than was due”? A. “Yes.”

Griffin Smith, Chief Justice. In 1943 the City of Fordyce enacted an ordinance designed to regulate garages, filling stations, and bus or truck depots. Section 3 of the ordinance requires that a permit be procured as a condition precedent to the right to build a structure for any of the uses mentioned, or for converting an existing structure to such use. Violation is a misdemeanor punishable by fine not to exceed $50, each unauthorized day of operation being a separate offense. . Mrs. Fay Clyde Dunn owns a lot on Fourth and Graham streets, and in June 1948 filed with the Recorder her request for permission to construct and operate a filling station on the property. When the application was presented to the City Council, the Recorder was directed to publish notice that a hearing would be had June 28. By unanimous action of all Councilmen who participated the application was denied. Alderman Leroy Turner did not vote. This appeal is from a Chancery Court decree enjoining the Council from enforcing the ordinance as to Mrs. Dunn, and authorizing her “to construct, as she sees proper, a filling station on the property in question. ’ ’ The Chancellor expressly found that the Council had acted honestly and in good faith, “with the public interest in mind,” and in response to its best judgment, but had exceeded its authority “under this ordinance.” It will be observed that the Court did not hold the ordinance void. The opinion seems to have been that, granting the City’s right to regulate, power was lacking under the ordinance to prohibit erection of the building in the circumstances disclosed by the proof. A City’s right to promulgate and enforce ordinances of the tenor here questioned was sustained in Van Hovenberg v. Holman, 201 Ark. 370, 144 S. W. 2d 718. In essentials the controversy presents facts similar to those discussed in the Holman case, one distinction being proof relating to character of the area in question —whether residential or business property. Yan Hovenberg relied on an ordinance requiring a permit before constructing or operating a filling station. In holding that the power derived from §§ 9543 and 9589 of Pope’s Digest, irrespective of zoning regulations, it was said that public policy of Texarkana was expressed in the ordinance. In reviewing reasons for holding the ordinance enforcible, this Court said: “The prohibition against erecting and operating filling- stations without permission was a regulation within the City’s police power, intended for the benefit of all. Many factors are involved. The use of gasoline, oils, and other inflammables creates fire hazards which the City may regulate. Whether a particular community, (suitable, preferentially, as a residential district) shall be invaded by construction and operation of a filling station is a matter which, under State laws, may be regulated, even though the station, per se, is not a nuisance.” In his summation of issues in the case at bar, Judge Haynie commented: “I believe this property is just across the street from another filling station, and [the application for a permit] should not be considered entirely on the ground of residential interests. From all of the testimony and circumstances shown, the building up of Fordyce will probably extend westward. ” Whether location of the filling station on the lot owned by appellee would be a well-disposed transaction in respect of City interests was a matter to be determined by the municipality’s governing body; and unless an abuse of discretion be shown, Courts will not arrest its acts. See McQuillin on Municipal Corporations, Vol. 1, § 380, (2d Ed. rev., p. 1068). In Herring v. Stannus, 169 Ark. 244, 275 S. W. 321, the same principle as that presented in the instant ap peal was discussed iu upholding the Little Rock City Council’s action in granting a filling station permit in a zoned area. The presumption was indulged that the Council, in exercising the power conferred upon it, had acted “in a fair, just, and reasonable manner. . . . [Because] conditions vary in different portions of an area, ... if any discretion is to be exercised, that right must be vested in some one, and no more appropriate agency for that purpose could be constituted than the Council of the City, where the duty and the authority to pass upon the question [were] vested”. So here, the question being one involving discretion, and the Council having acted on a record showing sharp differences of opinion, and the Chancellor having found that it acted in the utmost good faith and that the unanimous vote of all who participated was in response to the better judgment of each, the act must stand unless the Council, in changed circumstances, should again consider the matter. The decree is reversed. The opinion, written by Mr. Justice Frank G. Smith, contained the further statements that “This was a question about which reasonable minds might differ, and did differ sharply as reflected by the testimony in the case, and the ordinance constituted the Council as the tribunal to pass upon this question. . . . [Discretion to approve or reject the petition], in so far as discretion abides, is vested in the City Council, charged by law with the duty of passing on the question, and does not rest in the Courts which revi'ew the Council’s actions.”

Ed. F. McFaddin, Justice. This is an action instituted hy appellee, as widow and administratrix, to recover damages for the death of Joe Williams. Giem and Associates, hereinafter called appellants, obtained a contract to construct a dormitory on the campus of the University of Arkansas in Fayetteville. Appellants sublet the excavation work to Carl Tune. Joe Williams (hereinafter called deceased) went to the place of construction to apply to appellants’ superintendent for work as a carpenter. While in appellants’ shed on the premises, Williams was struck on the head by a large rock which had been hurled through the roof of the building as the result of blasting then being done by Tune in the excavation work. Williams died three days later as a result of his injuries; and this action ensued. Tune was originally named as a defendant, but was dismissed after he had paid appellee $4,000 in return for a “covenant not to sue. ’ ’ The plaintiff (appellee) tried the case on the theory that the defendants (appellants) were liable for (a) failure to use proper care'towards the deceased, as an invitee on the premises, and/or (b) failure to see that Tune, even as independent contractor, exercised proper care in the use of the explosives in excavation work. Appellants, for defense, claimed (a) that there was no negligence on their part; (b) that Tune was an independent contractor for whose acts appellants were not liable; (c) that deceased was not an invitee on the premises; (d) that the death of deceased was the result of an accident; and (4) that deceased was guilty of contributory negligence. The trial resulted in a verdict against appellants for $8,950. From an unavailing motion for new trial, there is this appeal, presenting questions as to the law, the evidence and the amount of the verdict. I. Correctness of the Rulings of the Trial Court in Giving and Refusing Instructions. We discuss' the instructions at the outset in order to state the law before considering the evidence. Besides general instructions regarding form of the verdict, credibility of the witnesses, etc., the trial court gave five instructions as requested by appellee and 15 instructions as requested by appellants. Also, the trial court modified one of appellants’ requested instructions by adding certain language as to whether the deceased was an implied invitee. In the light of what will be hereinafter stated as to the deceased’s status, such modification was proper. We consider, then, the five instructions given on request of appellee, and presenting her theories for recovery. Appellee’s instruction number 1 gave the definition of an implied invitee and a statement of the duty that one in charge of premises owes such invitee, and stated the application of such to this case. Appellee’s instruction number 2 presented to the jury for decision the question, whether appellants, by claiming that Tune was an independent contractor, could thereby escape liability for his negligence, if any, in the inherently dangerous blasting. Appellee’s instruction number 3 presented to the jury for decision the question, whether the deceased had the right to rely on the assurances of safety when he went into the shed to await the termination of the blasting. Appellee’s instruction number á presented to the jury for decision, whether the blasting — under the facts and circumstances in this case — was of such nature that the duty of appellants, as to proper care, could not be delegated. Appellee’s instruction number 7 related to the elements of damage in the event the verdict should be for appellee. These instructions presented the law as to the liability, if any, of appellants. A number of well-reasoned cases and authorities are cited in the briefs as bearing on these legal principles. Besides our own cases, there are also those from other jurisdictions, as well as citations from general texts. A good discussion on the particular point at issue — blasting by an independent contractor — may be found in 22 Am. Juris. 182, et seq. From all of the authorities, we conclude the law to be: (a) that the status of the deceased as an implied invitee on the premises was a question for the jury in this case; (b) that if deceased was an implied invitee, then the appellants owed him the duty to use proper care for his safety; (c) that appellants, in having blasting done in the excavation for the dormitory, near a well-traveled street and in a populous center, could not escape liability, for failure to use proper care, through the claim that the blasting had been entrusted to an independent contractor ; (d) that if Tune (the independent contractor) failed to use proper care to prevent injury by missiles from the explosion, then such failure — under the facts herein— would be negligence imputed to appellants; and (e) that the question of the contributory negligence of the deceased was a question for the jury under the evidence in this case, and was properly submitted. Appellee’s five instructions covered the above points. To set out in extenso the said instructions would unduly prolong this opinion. Appellants objected to the instruction's by claiming that they were either general, long, abstract, or factually assumptive. Testing appellee’s instructions against the objections made in the trial court and argued in the briefs, we find no errors committed. II. Sufficiency of the Evidence to Sustain Recovery Against Appellants. In addition to the facts previously stated, there was evidence tending to show: (1) ' that appellants had erected at the place of construction, about 160 feet from where Tune was excavating, the ordinary contractor’s shed, which was a frame building about 12 feet wide and 30 feet long, and with a frame roof and roofing paper thereon; (2) that the deceased and his fellow carpenter (Lindler), having learned that carpenters would soon be needed on the work, went to the place of construction in Lindler’s car, which they parked on the street near appellants ’ shed; (3) that deceased and Lindler, in proceeding towards the shed, met Nordstrom, appellants’ superintendent, and were discussing with him the employment of carpenters, when Tune came up and advised Lindler: “You had better move your car; you are liable to get some glass broke, because they are going to shoot.” (4) that Lindler then drove his car a distance of 30 or 40 feet from where it had been parked, sat in the car until the blasting had been accomplished, and then returned to Nordstrom to complete the interrupted conversation ; (5) that when Lindler went to move his car Nordstrom and the deceased stepped into appellants’ shed and were standing there “shoulder to shoulder” when the blasting occurred; (6) that a rock ‘ ‘ the size of a brick” crashed through the roof of the shed and struck the deceased on the head, causing the injuries which resulted in his death three days later; (7) that in the excavation work Tune at that time was using three sticks of dynamite in each of four holes, the detonators of the dynamite being exploded simultaneously by an electric current; (8) that the fact that dynamite was being used for such excavation was known to appellants and Nordstrom, and the test holes for such nse were shown on the plan furnished to Tune by appellants; (9) that Tune used no mat or cushion (other than sand) over the holes for protection of the public against flying missiles, although he had on the location materials for constructing such mats; and (10) that such mats should be used in blasting in populous places such as where this excavating was being-done. From what we have detailed of the evidence it is clear that the jury could have found that the deceased occupied the status of an implied invitee when he was in the shed with Nordstrom at the time of the blasting. In St. L. I. M. & S. Ry. Co. v. Wirbel, 104 Ark. 236, 149 S. W. 92, Ann. Cas. 1914C, 277, we held that one seeking employment was an implied invitee when he went on the premises of a company at the place he had been informed he could find the official who was authorized to employ him. According to Lindler, the conversation with Nordstrom was interrupted by Tune’s announcement of the impending blast; Lindler went to move his car, and deceased and Nordstrom went into the shed, apparently to await the blasting and Lindler’s return before resuming the conversation. Nordstrom testified that the conversation was concluded when Tune advised the moving of the car; but Lindler’s testimony and his conduct are to the contrary: so a jury question was made as to deceased’s status as an implied invitee. There was also a jury question as to whether the appellants’ superintendent, Nordstrom, used proper care in selecting the shed as a place of safety and impliedly inviting deceased therein, when Nordstrom knew — or in the exercise of ordinary care, should have known — that Tune was not using mats or cushions over the holes in which the dynamite was to be exploded. Just' because Nordstrom was personally willing to take the chance of injury by missiles from the blast does not furnish a criterion of due care by appellants towards an implied invitee. The evidence made a jury question on the issue of the contributory negligence of the deceased. There was also a jury question as to whether due' care required Tune to use mats or cushions over the particular blasting about to be done, which was incident to the act of excavation on the campus of the University of Arkansas, very close to a well-traveled street. In short, we find the evidence sufficient to sustain the verdict. III. The Joint Tortfeasor Question as to the “Covenant Not to Sue”, which Appellee Executed to Tune. When the action was originally filed, Tune was made a defendant along with appellants. Just before the trial, Tune paid appellee $4,000 for a covenant not to sue, and, accordingly, was dismissed from the suit without any record objection being made by appellants. In the trial appellants introduced in evidence the covenant not to sue which appellee had executed to Tune, and showed to the jury that appellee had received $4,000 from Tune. After the verdict for appellee for $8,950, appellants moved the court to credit the verdict with the $4,000 which Tune had paid appellee in order to obtain the covenant. The motion was denied, and appellants claim error. Act 315 of 1941 is the Uniform Contribution Among Tortfeasors Act, and may be found in §§ 34-1001, et seq., Ark. Stats. of 1947. Appellants and appellee both cite the case of Shultz v. Young, 205 Ark. 33, 169 S. W. 2d 648 as applicable to the question now presented. In Lacewell v. Griffin, 214 Ark. 909, 219 S. W. 2d 227 we listed other cases which have involved phases of the Uniform Contribution Among Tortfeasors Act. Appellants had the right, under § 34-1007 Ark. Stats, of 1947, to make Tune a third-party defendant, even after the appellee had dismissed as to him. But, instead of availing themselves of the said section, appellants evidently decided to proceed under § 34-1004 Ark. Stats, of 1947, which reads: “Release of one tortfeasor — effect on injured person’s claim. A release by the injured person of one joint tortfeasor, whether before or after judgment, does not discharge the other tortfeasors unless the release so provides; but reduces the claim against the other tortfeasors in the amount of the consideration paid for the release, or in any amount or proportion by which the release provides that the total claim shall be reduced, if greater than the consideration paid.” At all events, as between appellants and appellee, appellants in the trial of the case before the jury obtained the full benefit of the above-quoted section by introducing into evidence, proof as to the amount of money that appellee received from Tune. Certainly, in such circumstances, appellants were not entitled to have the court— after the verdict — make the allowance again. We hold against appellants on this said contention. Kinding no error, the judgment is affirmed. Stout Lbr. Co. v. Reynolds, 175 Ark. 988, 1 S.W. 2d 77; Holden v. Carmean, 178 Ark. 375, 10 S.W. 2d 865; Hammond Ranch Corp. v. Dodson, 199 Ark. 846, 136 S.W. 2d 484; Aluminum Ore Co. v. George, 208 Ark. 419, 186 S.W. 2d 656. Cary v. Morrison (8th CCA), 129 Fed. 177, 65 L. R. A. 659; Rosenberg v. Schwartz, 260 N.Y. 162, 183 N.E. 282; McConnon v. Hodgate, 282 Mass. 584, 185 N.E. 483. 45 C.J. 956 and also the annotation in 23 A.L.R. 1084, “Nondelegable Duty of Employer with Respect to Work which is Inherently or Intrinsically Dangerous.” See other cases on this point collected in West’s Ark. Digest, “Negligence,” § 32; see, also, discussion in 38 Am. Juris. 758, et seq.; see, also, Mo. Pac. R. Co. v. Ross, 211 Ark. 748, 202 S. W. 2d 365.

Smith, J. Prior to 1880 Wash Ballard and his two brothers owned the southeast quarter of section 33, township 1 north, range 10 west. Wash Ballard died, and M. C. Armstrong was appointed guardian of the minor children. On May 11, 1891, Armstrong filed a final settlement of his guardianship of John Ballard, the oldest of the children, who had then, come of age; but it does not appear that he ever made final settlement of his guardianship of the three younger children. In 1884 Armstrong, as guardian, filed a suit for the partition of the land owned by the Ballard brothers, and in' the decree rendered in that cause a tract of land on the east side of the southeast quarter, containing 55.35 acres, was apportioned to the “Wash Ballard children. On June 12, 1893, there was a sale of a tract of land, described as “Und. 1-3 southeast quarter section 33 * * * ,” for the taxes of 1892. This sale was made to J. D. Shulte, who assigned his certificate of purchase to W. P. Fletcher, who, upon the expiration of the period of redemption, received a tax deed therefor. On December 21, 1896, Fletcher conveyed an undivided half of the undivided third southeast quarter section 33 to Julia Cleveland, Irene Ellis and Emanuel Ballard. Jeff Cleveland paid the purchase price to Fletcher and had the deed made to Julia, his wife, and to Irene Ellis, who was Julia’s niece and a minor, and to Emanuel Ballard, a brother of his wife, who was also a minor. Julia Cleveland was a daughter of Wash Ballard by his first wife, and on her death she was survived by two sons, whose names are Ben and Grover. On December 16, 1898, Fletcher conveyed to Armstrong an undivided half of an undivided 1-3 southeast quarter of section 33. Armstrong had been in possession of the land as guardian of the minor children, 'and after the deeds from Fletcher were executed Armstrong and Cleveland shared the possession jointly. The testimony shows that at the time of the execution of the deed from Fletcher to Cleveland, Emanuel Ballard was a minor and on his death was survived by an only child, a girl known as Rosie Johnson, who was also known as Fannie Ballard, and who was born December 20,1898. On of the questions of fact in the case is the identity of Fannie Ballard and Rosie Johnson, and, if the same person, whether she was the only child of Emanuel Ballard. AVithout reviewing here the testi mony on this issue, we affirm the finding of the court below that Eosie Johnson is Fannie Ballard, and was the only child of her father, Emanuel Ballard. Eosie Johnson’s mother probably had other children after the death of Emanuel; but that is unimportant, as the inheritable blood was on the part of the father, and not that of the mother. After the death of Emanuel Ballard in 1899 Julia Cleveland took Emanuel’s daughter Eosie, then an infant a year old, into her home as a member of the family, where Eosie lived until her marriage in 1913. Irene Ellis, another niece of Julia Cleveland, was also taken into Julia’s home as a member of her family and reared by her. Irene Ellis was one of the three grantees in the deed from Fletcher dated December 21, 1896. Irene Ellis was the daughter of a child of Wash Ballard by his first wife, and Irene’s ancester took no interest in the lands because Wash Ballard had conveyed his interest in the quarter section to his children by his second wife. Susan Ballard intermarried with one J. W. Mc-Creary. Susan died in 1894, and was survived by only one child, a son named J. A. B. McCreary, who was born May 30, 1894, and was therefore just twenty-two years old when this suit was brought. Eosie Johnson became of age December 20, 1916, the day before this suit was filed. It does not appear that, at the death of Emanuel Ballard and Susan McCreary, Armstrong, their guardian, had made final settlement of the guardianship or had been discharged by the probate court. In 1901 Armstrong sued Jeff Cleveland and Julia, his wife, and Irene Ellis and Fannie Ballard for partition. Fannie Ballard was about three years old at that time, and Irene Ellis was also a minor. J. C. Boyd, an attorney, was appointed guardian ad litem to represent these minors. Boyd also represented Julia and Jeff Cleveland, and was allowed a fee of fifty dollars by the court, which was declared a lien on the land. Partition of the land was made in kind, and the north half was given to Armstrong and the south half to Julia Cleveland and the other defendants. The fee allowed Boyd was not paid, and he 'caused an execution to be issued on the judgment, and in January, 1906, the.south half was sold under this execution, and Boyd himself became the purchaser. Later, after obtaining the sheriff’s deed, Boyd executed a quitclaim deed to Jeff Cleveland for the land thus purchased for the recited consideration of one dollar. Jeff and Julia Cleveland died, and their children, Ben and Grover, executed a quitclaim deed to their interest in the land to W. H. McLaughlin and to J. P. ICerby. In the partition suit between Armstrong and Cleveland et al., Armstrong w-as represented by G-eorg’e Sibley and the firm of Trimble & Robinson, attorneys, and a fee was allowed these attorneys, which was fixed as a lien on the north half, this being the land assigned their clients, the heirs of Armstrong, who had died before the final decree was entered. This fee was not paid, and at a sale under an execution which issued on this judgment T. C. Trimble, Jr., who was not then a member of the firm of Trimble & Robinson, became the purchaser, and, by mesne conveyances from T. C. Trimble, Jr., this north half was conveyed to J. H. Robinson. This suit was brought by Rosie Johnson and her mother, Mollie Morris, and by J. A. B. McCreary and his father, J. W. McCreary. . Ben and G-rover Cleveland were made parties defendant, but they made no defense. The other defendants, W. H. McLaughlin and J. P. Kerby- and J. H. Robinson, have a paper title which has its origin in the tax sale to Fletcher; and they say that this title, if not good originally, has been made so by possession of Armstrong and Cleveland, who lived on the land until a short time before the institution of this suit; and that the plaintiffs are barred by limitation. Pending this litigation E. D. ICidder obtained from Rosie Johnson a quitclaim deed for her undivided interest; but that deed was canceled in the final decree which was rendered November 15, 1920. This decree recites that Kidder prayed, and was granted, an appeal; but his appeal was never perfected. The transcript herein was filed May 10, 1921, at which time McLaughlin and Robinson prayed an appeal, which was granted by'the clerk of this court. Not having perfected his appeal, we need not now review the action of the court in canceling Kidder’s deed. Section 2135, C. & M. Digest; Damon v. Hammonds, 73 Ark. 608. The court found that the plaintiffs Rosie Johnson and J. A. B. McCreary are each the owner of an undivided one-third of the land sued for; and that the defendant J. H. Robinson is the owner of an undivided third'in the north half of said land; and that the defendants W. H. McLaughlin and J. P. Kerby are the owners of an undivided one-third of the south half of said land, each owning an undivided one-sixth interest. The tax deed to Fletcher was void. The description employed in the tax sale and in the deed made pursuant thereto is identical with the description which the court held to be bad in the case of King v. Booth, 94 Ark. 306, except that in that case the description was “Und. 2/6,” while here the description is TJnd. 1/3.” We will not repeat here the reasoning of the court in that case distinguishing it from the earlier case of Payne v. Danley, 18 Ark. 441. Moreover, it may here be said that the description now under review was bad because it appears that in 1884 this quarter section was actually partitioned in a suit brought by Armstrong, as guardian, for that purpose, and therefore the interest of the Wash Ballard heirs was not an “undivided” interest. The big question in the case is whether or not a trust relation existed on the part of Armstrong and Cleveland and his wife which prevented them from acquiring the title to the land in suit. After a careful consideration of the testimony we have concluded that the finding of the court below, that there was a trust relation, is not contrary to the preponderance of the testimony. Armstrong was the administrator of Wash Ballard’s estate; and he was guardian of Emanuel Ballard, the father of Rosie Johnson; and was also ihe guardian of J. A. B. McCreary’s mother. As administrator and as guardian he took possession of the land, and remained continuously in its possession until the time of its partition in the suit brought by him for that purpose. It appears that he was removed as administrator for mismanagement of the estate; but it is not shown that he ever made a final settlement of his guardianship or received his discharge; and, in the absence of that showing, his purchase from Fletcher must be held to be for the benefit of Ms wards. Sconyers v. Sconyers, 141 Ark. 256; Holloway v. Eagle, 135 Ark. 206; Sorrels v. Childers, 129 Ark. 149; Hawkins v. Reeves, 112 Ark. 389; Waldstem v. Barnett, 112 Ark. 141; Haynes v. Montgomery, 96 Ark. 573; Eagle v. Terrell, 95 Ark. 434; Burel v. Baker, 89 Ark. 168; Reeder v. Meredith, 78 Ark. 111; Montgomery v. Black, 75 Ark. 185; Thweatt v. Freeman, 73 Ark. 575; Thomas v. Sypert, 61 Ark. 575; Gibson v. Herriott, 55 Ark. 85; Hindman v. O’Connor, 54 Ark. 633; Clements v. Cates, 49 Ark. 242. Cleveland and his wife are in no better circumstances as regards their title. Cleveland took the deed from Fletcher to' his wife and to Irene Ellis and to Emanuel Ballard. Julia was a child by Wash Ballard’s first marriage, and Irene Ellis was the daughter of another child by Wash Ballard’s first wife; and Emanuel Ballard was Julia Cleveland’s brother. Irene and Emanuel were at the time both minors, and both were then living with Julia Cleveland as members of her family. Upon Emanuel Ballard’s death, Julia took Rosie, his infant daughter, into her home, where she lived as a member of Julia’s family until her marriage in 1913. Julia and her husband Jeff thereafter stood in loco parentis to the infant child of Emanuel, as they had to Emanuel himself at the time of the execution of the deed from Fletcher. It is true that, in the deed to them from Fletcher made in 1896, they had Emanuel named as grantee, along with Julia Cleveland and Irene Ellis; but Emanuel was then a minor and his brother-in-law and sister, Jeff and Julia, could not thus acquire an interest in the land adverse to him. See cases cited above on the inability of Armstrong to purchase. The testimony as to Emanuel Ballard’s age at the time of his death in 1899 is conflicting; and the contention is made that as he died in 1899 the statute of limitations has since run against his heir, Rosie Johnson. This is not true because the trust relation on the part of Julia and Jeff continued down at least until the time of Rosie’s marriage in 1913, until which time she had lived on the land with her uncle and aunt, and the bar of the statute could not have fallen between that date and December 21, 1916, the date of the institution . of this suit. As to J. A. B. McCreary, there can be no question of limitation in any event, as he was born May 30, 1894, and his mother died that year, and Fletcher did not obtain the tax deed under which his adversaries claim title for more than a year thereafter, and he became of age May 30, 1915, which was only a little more than a year before this suit was brought. Among the numerous other objections to the decree of the court below, it is insisted that the will of Wash Ballard was invalid as against his children by his first wife, because they were not mentioned therein. Such appears to be the fact. It is also insisted that the deed from Wash Ballard to his children by his second wife is void because of the indefinite description, and, if not void for that reason, that it was void because it undertook to convey a particular part of a quarter section, containing sixty acres, when the interest then owned by Ballard was an undivided third. Neither of these objections to this deed appears to be well taken. The deed from Wash Ballard conveyed a tract of land in shape of a parallelogram off the east side; and, while it does appear that.Wash Ballard did not then own that land in severalty, it does appear that when the partition was made the grantees in that deed were given substantially that land, the difference being that they were given only 55.35 acres, but that land lay within the boundaries of the sixty-acre tract. It is this 55.35-acre tract which forms the subject-matter of this litigation, and that land was embraced in the tract described in the deed from Wash Ballard. We do not know what showing was made in the suit for partition brought by Armstrong back in 1884; but we do know that the land now in litigation was assigned to Armstrong’s wards; and we also know that this land was included in Wash Ballard’s deed, although that deed conveyed about five acres more land than was assigned to Armstrong’s wards. It is insisted that, as Rosie Johnson, or Fannie Ballard, was a party to the' partition decree in the suit of Armstrong et al. v. Cleveland et al. (and such is the fact), her title passed by operation thereof in the following manner. The court allowed J. C. Boyd a fee of $50 for his services in that case; and as the fee was not paid an execution issued and the whole half interest there assigned to the defendants in that case was sold, at which sale Boyd became the purchaser. Later Boyd received a sheriff’s deed, and thereafter conveyed to Cleveland, whose heirs, upon the death of their ancestor, conveyed to McLaughlin and to Kerby. But the sale to Boyd was void for the reason that he was the guardian ad litem of the infant defendants; and by sec. 8115, C. & M. Digest, it is provided that persons standing in that relation may not purchase at a partition sale. It is said that McLaughlin had no notice of the infirmity in the sale. He makes no showing to that effect, although he alleges the fact so to be in his answer. But this infirmity appears in the chain of his title, and he is therefore affected with notice of it. Star Lime & Zinc Mining Co. v. Arkansas National Bank, 146 Ark. 246; Madden v. Suddarth, 144 Ark. 79. The purchasers claiming title through T. C. Trimble, Jr., acquired no title, for the reason that Trimble himself acquired nolle in buying in the Armstrong title, for, as we have herein shown, Armstrong was a trustee, and as such held the titlé. Upon a consideration of the whole case we are of opinion that the decree of the court below is correct, and it is therefore affirmed.

McCulloch, C. J. W. E. Dew, one of the appellees, held a lease for the year 1920 and other years on a farm in Ashley. County through which the Wilmot Eoad Improvement District constructed a public road. The other appellees were his sub-tenants, all of whom separately cultivated and produced crops of corn and cotton. There were about 300 acres in cultivation on the farm, enclosed by a 4-wire fence around the- entire premises, there being no intersecting or cross fences. The construction of the road was begun in October of that year, and it occupied a right-of-way 60 feet wide through this farm. The Oliver Construction Company, one of the defendants in this action, entered into a contract with the road improvement district to construct the road and made sub-contracts with the other defendants. Appellant Van Troop took the contract for the grading and ditching, and appellant Maddox was his foreman. Appellant Van Orden-Winans Construction Company (a corporation) took the contract for what is termed the gravel work in the 'construction of culverts or bridges, and some of this work was sublet to L. L. Winans, one of the defendants. It is alleged somewhere in the pleadings that E. O. McDermott and E. L. McDuffie took the contract for removing fences. The farm occupied by appellees was entered for the purpose of constructing the road, the fence was broken, and, as is alleged in the complaint, it was not replaced for a considerable time, and cattle were permitted to enter at will and to destroy the crops. This is an action at law instituted by appellees against all of said parties jointly to recover damages resulting from the destruction of the crops by the depredation of cattle. Each of the appellees claimed separate damages foi the destruction of their respective crops. After the testimony had been introduced, the court gave peremptory instruction in favor of the Oliver Construction Company, the principal contractor, and Tipton, its foreman, and also in favor of McDermott and McDuffie and L. L. Winans. The issues were submitted to the jury concerning the liability of Van Troop, Maddox and the Van Orden-Winans Construction Company, and the jury returned a verdict against each of these appellants jointly, assessing damages separately in favor of each of the appellees, aggregating the sum of $1,700, total damages. No question has been raised as to the right of appellees to join in a suit each to recover compensation for his separate injury, and,, it being conceded that, since there is sufficient identity in the causes of action to justify consolidation under our statute, there was no prejudice in joining the action originally, instead of instituting separate actions and then consolidating them. Mahoney v. Roberts, 86 Ark. 130. It is, however, very earnestly insisted that the facts of this case, as disclosed by the evidence adduced, do not constitute joint liability on the part of appellants, if indeed it establishes liability at all, and that the court erred in submitting the case to the jury on instruction permitting recovery as on joint liability. Of course, it must be conceded, as too clear for argument, that separate and distinct tortious acts resulting in separate and distinct injuries, even to the same subject-matter, do not create joint liability on the part of the tort-feasors. There seems to be a considerable contrariety of opinion among the authorities on the question whether separate and distinct acts of negligence. committed by different persons, which unite and culminate in injurious results, constitute joint liability of the different persons committing the separate tort, so as to make each responsible for the entire result. There are numerous authorities on both sides of this question. 26 R. C. L. 763-764; 29 Cyc. 484-488; Day v. Louisville Coal & Coke Co., (60 W. Va. 27) 10 L. R. A. (N. S.) 167; Gibboney Sand Bar Co. v. Pulaski Anthracite Coal Co. (Va.) 24 L. R. A. (N. S.) 1185; Swam v. Tennessee Copper Co., 111 Tenn. 430. It is clear, however, that joint liability exists for separate acts of negligence where there is a common design or purpose or concert of action in the commission of the separate acts, or where such separate acts of negligence are concurrent as to time and place and which unite in setting in operation a single force which produces the injury. See the same authorities cited above. The testimony was sufficient to bring this case within the rule last stated and to warrant the submission of the issue to the jury. Viewing the testimony in the light most favorable to appellees, it shows that the fences were broken on or about October 18, 1920, and on subsequent days at different places, and were not replaced for a considerable length of time; that appellant Van Troop and his foreman caused the removal of the fence at least at one of the places, and that appellant Van Orden-Winans Construction Company caused the fence to be removed at other places; and that Van Troop, who was engaged in doing the ditching and grading, and the Van Orden-Winans Construction Company, which was doing the work of constructing culverts, used the openings for a considerable length of time in hauling and removing teams and other equipment back and forth 'without guarding the gaps or putting up the fences. The proof further shows that cattle were permitted to pass through these openings at night, and that the crops of -appellees were destroyed. There was a conflict in the testimony, and some of the vdtnesses testified with reference to-a’map or plat showing the different gaps and the locations thereof, and this map is not in the. record, henee we are unable' to follow the testimony as accurately as could be done with the map before us. But there is, as before stated, testimony sufficient to show that each of the parties made gaps in the fence, which were. not replaced for a considerable length of time, and that both of the parties used these gaps without restoring the fence-or protecting the field from the depredation of cattle. Each of these parties was working to a common purpose,' that is to say, the construction of the road, and each used the open gaps while being under obligation to repair them so as to prevent injury to the farmers who had crops inside of the enclosure. The case, therefore, comes not only within.the rule of joint liability where there is concert of action, but also within the other rule stated above, that there is joint liability where the different acts of negligence concur as to time and place and unite in setting in operation the force which causes the injury. In other words, they used the open gaps for the same purposes and at the same time, each being under duty to repair the gaps, and the conduct of each resulted in admission into the field of large numbers of cattle. It cannot be said that the entrance of the cattle was the result of the separate acts of either, but it was rather the result of. the act of both of the parties in failing to repair the gaps so as to keep the cattle out. It is nest contended that the court erred in its instructions on this subject, and that the instructions were conflicting. The first instruction given at the instance of appellees told the jury that if “the defendants, or any of them, did negligently and carelessly permit cattle and other stock to enter said field, as alleged, and that plaintiffs did have therein crops of corn and cotton, and that said crops of corn and cotton * * * were damaged by said cattle and other stock, and that the entry of said stock and damage to the said crops * * * were the result of the carelessness and negligence of defendants, or some of them, then your verdict should be for the plaintiffs, against such of the defendants as, by their negligent acts, if any, caused the damage to the said crops * * *.” Other instructions given at the instance of the plaintiff told the jury that if the ‘ ‘ defendants, or any of them, or their employees have failed to observe, for the' protection of the interests of the plaintiffs, that degree of care, precaution and vigilance one of ordinary prudence would have used under the circumstances of this case, and that thereby the plaintiffs have suffered injury, then such defendants are guilty of negligence, and your verdict should be for the plaintiffs.” Other instructions given at the instance of appellants told the jury that each of them would only be liable for damage, if any, caused by stock which entered the field through openings caused by such appellants respectively. These instructions separately told the jnry that appellant Maddox was not liable for any damage except such as was caused by stock which entered the field through openings caused by Maddox himself; and another instruction to the effect that appellant Van Orden-Winans Construction Company was not liable for any damage except that caused from stock which entered the openings in the fence caused by that appellant; and another instruction that appellant Van Troop was only liable for damages done by the stock which entered the field at openings which he had caused. These instructions were even more favorable than appellants were entitled to, for they excluded the idea of joint liability and made the liability of each depend separately upon the fact whether or not the stock entered at the openings caused by him. The instructions given at the instance of appellant did not exclude the idea of a separate liability nor assume that the liability, if it existed at all, was joint, for these instructions merely told the jury that there was liability on- the part of each of the appellants whose negligent act caused injury. There is no conflict in the instructions 'except that resulting from the too favorable instructions given at the instance of appellants, and they are in no attitude to complain on that account. The verdict of the jqry, under these instructions, necessarily implies a finding of facts which constitute joint liability, and, as before stated, the testimony was sufficient to justify such finding. We are of the opinion that there was no prejudicial error in the instructions given by the court. It is also contended that the court erred in modifying instruction No. 20, requested by appellant Van Troop. The instruction, as requested, told the jury that Van Troop was not liable for any damage except such as might have been suffered from the depredation of stock which entered through the fence on the ditch. The court modified this instruction by adding the words, “and other gates or gaps left negligently open, if any.” The instruction was erroneous without this modification, for the reason that the evidence was sufficient to show that Yan Troop’s outfit, comprised of 30 teams which he owned himself and numerous other hired teams, used the gate, and that the cattle got through the open gates, It was proper, therefore, to modify this instruction as was done by the court. Judgment affirmed.

McCulloch, C. J. Appellee was the plaintiff below in this action to recover rents on lands alleged to be due for the year 1918 under a written contract. The case was tried before the court on an agreed statement of facts. The farm which constituted the subject-matter of the lease contract was owned by appellee' and-others as tenants in common. Appellee owned an undivided 1-6 thereof; D. H. Wilhite and W. O. Anthony, owned an undivided 1/2 thereof, and two other persons, whose names are not disclosed in this record, owned the other 2/6 interest. Appellant leased the land from'the owners for a period of 5 years ending December 31, 1919, under written contract stipulating that the rents should be payable annually on November 15, and the amount sued for by appellee is the amount stipulated to be paid her in the contract for her interest. This suit is, as before stated, one to recover the rent for the year 1918. In the spring of that year, appellant made an absolute assignment of the lease to Wilhite and Anthony, they paying to appellant the sum of $500 as consideration for the assignment and as purchase price for a lot of corn, and they “ succeeded to the rights and assumed the liabilities of the Barfield Mercantile Company under its lease contract covering said land.’? On October 12,1918, appellee sold, and conveyed by warranty deed without reservation, her said interest in the tract of land to S. E. Simonson, and on November 12, 1918, Simonson conveyed that interest dv warranty deed without reservation to Wilhite and Anthony. These deeds were placed of record on December 8, 1918, and by the purchase Wilhite and Anthony became the owners of the whole of the land except an undivided 2/6 owned by persons not involved in this litigation. Appellee was allowed to prove, over the objections of appellant, that in the sale by appellee of her interest in the land to Simonson there was an oral agreement that the rents for the year 1918. should be reserved to appellee. The trial court made a finding of fact to the effect that the sum of $500 paid by Wilhite and Anthony to appellant for the lease included the rents due appellee for that year, and that in this manner “Wilhite and Anthony paid the defendant the sum of $146 for the use and, benefit of plaintiff, independent of the purchase of the land.” Counsel for appellee defend the judgment on this finding of fact, and contend that appellee is entitled to recover on the ground that the rent money was paid over to appellant for the benefit of appellee and accepted by appellant for her benefit. This finding by the court, however, is not only without evidence to support it, but it is contrary to the affirmative evidence on this subject. The only testimony on that subject is that of Anthony, incorporated in the agreed statement of facts, wherein he testified that Wilhite and Anthony “paid the Barfield Mercantile Company $500 for its contract on said land, and for some corn,” and that “by said transaction the said Wilhite and Anthony succeeded to the rights and assumed the liabilities of the Barfield Mercantile Company under its lease contract covering said lands.” Nor can we, for the purpose-of sustaining a recovery in favor of appellee against the Barfield Mercantile Company, treat the alleged oral agreement between appellee and Simonson as an undertaking on the part of the latter to pay the rent for that year as a part of the consideration for' the deed. It may be conceded that oral proof of such an agreement would not offend against any of the established rules of evidence, but that would not help appellee’s case, inasmuch as Simonson is not sued and appellant can not be held responsible for Simonson’s undertaking to pay the rent as part of the consideration for the deed. Appellee’s right to recover must be tested solely upon the question of her right to prove an oral reservation of the rents in the sale of the land to Simonson. It is well settled that a deed conveying the title to land in fee simple carries with it the right to collect the rents, and, “unless the deed reserves the right in the grantor to collect and use the rents, these pass as a necessary incident with the land to the grantee.” Gibbons v. Dillingham, 10 Ark. 9; Latham v. First National Bank of Fort Smith, 92 Ark. 315; Gailey v. Ricketts, 123 Ark. 18. Where the deed is absolute on its face and contains no reservation of the rents, proof of an oral reservation is not admissible. Gibbons v. Dillingham, supra; Hardage v. Durrett, 110 Ark. 63; Broderick v. McRae Box Co. 138 Ark. 215. “The rule that parol evidence,” this court has held, “is inadmissible to contradict or vary the terms of a written instrument, is necessarily confined in its application to the parties to it or those claiming some right or interest under it.” Talbot v. Wilkins, 31 Ark. 411; Gates & Bro. v. Steele, 48 Ark. 539. However, the situation of appellant, Barfield Mercantile Company, falls within the operation of this rule, for appellant assigned the lease to Wilhite and Anthony, and they undertook to assume the obligation by paying the rent. The leasehold estate thus acquired by Wilhite and Anthony under the assignment became merged into the fee simple title in the purchase 'by them of appellee’s interest, and the obligation of appellant, as the original lessee, to pay the rent to appellee was thereby extinguished. Appellant was therefore directly interested in the deed from appellee to Simonson, because it was in the chain of conveyances to Wilhite and Anthony, which constituted the extinguishment of appellant’s obligation under the lease by the merger of the leasehold into the greater estate. The court therefore erred in permitting, appel lee to prove the oral reservation and in rendering judgment in favor of appellee on the undisputed facts. The judgment is therefore reversed, and the cause is remanded for a new trial.

McCulloch, C. J. 'The appellant was indicted and convicted of tbe offense of allowing stock to run at large in a stock-law district in Randolph County. Tbe statute creating tbe district (Act No. 657 of tbe Session of 1919) is a special act creating tbe district in Randolph County, but providing that tbe district shall not be put into operation unless approved by a majority of tbe legal voters in tbe territory at a special election ordered by tbe county court upon petition of 125 voters in tbe district. The statute provides that, if a petition signed by 125 electors of tbe district be filed in tbe office of tbe county clerk of Randolph County, tbe judge shall call an election in tbe district to determine whether “a majority of the legal voters in said district are in favor of this act,” and that tbe election shall be held at the place or places in the district named in the petition and on the date fixed in the order made by the county judge. The details and method of conducting the election are prescribed in the statute. The election commissioners of the county are required to canvass the returns, and, within ten days after the election, to file in the office of the county clerk a certificate showing the result of the election. It is provided that “if a majority of the legal voters of said district voting in said election shall vote for no fence or stock law, as hereinbefore set forth, then this act shall be in force.” It was conceded by appellant in the trial of the case that be had permitted his stock to run at large inside the boundaries of the district, but he sought to prove, as a defense, that the election was not held as prescribed by the statute, and that the boundary fence had not been constructed in accordance with the terms of the statute. The court excluded the offered testimony, and, nothing else being offered in defense, the court charged the jury peremptorily to return a verdict finding appellant guilty. The court was correct in refusing to admit testimony concerning the election to be held putting the law into operation in the territory mentioned. The certificate of the election commissioners is the best evidence of the adoption of the law by the voters of the district, and, if regular on its face, is not subject- to collateral attack in a prosecution for violation of the terms of the statute. Any other view of the matter would prevent an enforcement of the’ law, and the guilt or innocence of the accused would depend upon the degree of proof as to the validity of the election. l'A criminal prosecution under the statute could, in other words, be converted into a contest over the election. There was no offer to, prove that no certificate was filed by the election commissioners nor that the election, according to the certificate, was irregular. The other defense offered by appellant is equally untenable. The statute does not make the operation of the district depend, as a condition precedent, upon the construction of a boundary fence. In„ this respect the statute is quite different from the general statute authorizing the creation of stock-law districts, as construed by this court in Hill v. Gibson, 107 Ark. 130. The general statute provides that it shall be unlawful for any owner to permit stock to run at large in a district formed thereunder “after any fencing district has been enclosed by a good and lawful fence.” Crawford & Moses’ Digest, § 4684. The special statute now under consideration contains no such condition, but it declares unconditionally that it shall be unlawful for any owner of stock or cattle to permit such animals to run at large beyond the limits of his own land in the district, and that any person, firm or corporation who shall knowingly permit any such animal to run at large within said territory shall be guilty of a misdemeanor. Our conclusion is therefore that there was no valid defense offered, and, according to the undisputed evidence, appellant was guilty of a violation of the statute.. The court was correct in its ruling, and the judgment is affirmed.

Humphreys, J. Appellant was indicted, tried and convicted in the Sevier Circuit Court for the crime of carnal abuse, and as punishment therefor sentenced to serve a period of two years in the ¡State penitentiary. Prom the judgment of conviction an appeal has been duly prosecuted to this court. According to the evidence adduced in behalf df the State, appellant had sexual intercourse with Nina Olmstead, a female under the age of sixteen years, on the night of the 26th day of April, 1920, in his home where she was employed to wait upon appellant’s wife during her illness occasioned by childbirth. In the course of the trial the court refused to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness, Nina Olmstead, with other men, because the State had not put the chastity of the prosecutrix in issue, to which ruling of the court an exception was saved. Bearing upon this particular question, appellant requested instruction No. 5, which was refused by the court, to which ruling appellant also saved an exception. Appellant’s requested instruction No. 5 is as follows: “"While it would be no defense which would justify or excuse the defendant if other men- had been criminally intimate with the prosecuting witness, this fact, if you should find it to be a fact, should be considered as it might tend to discredit or impeach the testimony of the prosecuting witness and render her unworthy of belief.” The court also ruled that, if appellant interrogated the prosecuting witness in reference to specific acts of intercourse with other men. upon cross-examination for the purpose of discrediting her, he would be bound by her answers, to which ruling an exception was saved. The court gave a number of instructions to which general objections were made and exceptions saved by appellant. The refusal of the trial court to permit appellant to show by other witnesses specific acts of immorality of the prosecuting witness was correct. Her chastity was not involved in the charge, and such proof would not have been responsive to the issue. Pleasant v. State, 15 Ark. 624; Plunkett v. State, 72 Ark. 409; Renfroe v. State, 84 Ark. 16; Peters v. State, 103 Ark. 119. It is not admissible as affecting the credibility of the prosecuting witness because it related to matters collateral to the issue. McAlister v. State, 99 Ark. 604. The holding of the trial court to the effect that appellant would be bound by the answers of the prosecuting witness on cross-examination with reference to specific acts of intercourse with other men was correct. The questions and answers related to collateral matters. This court held in the case of McAlister v. State, supra (quoting syllabus): “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 issue, he cannot, as to his answer, be subsequently .contradicted by the party putting the question.” The refusal of the court to give appellant’s requested instruction No. 5 did not constitute reversible error because it was abstract. There was no evidence in the record upon which to base the instruction. During the progress of the trial, the prosecuting attorney, over the objection and exception of the appellant, was permitted to say: “I remember Judge Lake, in Howard County,' stating there that a girl had been seduced, and he was representing the State in the case, and claimed it only happened one time, and that standing up, and she and the boy living in the same community, and it was never repeated again, and the jury believed him.” Judge Lake, while making his argument in defense of appellant, made some remarks tending to show the improbability of sexual relations having occurred between appellant and the prosecuting witness as testified to by her. These remarks related to matters outside of the record. The statement made by the prosecuting attorney was an attempt to answer these remarks. The error, therefore, if any, was invited error. The prosecuting attorney was also permitted, over the objection and exception of the appellant, to say to the jury that ‘ ‘ the jurymen are the ones that enforce the law, 'and if the people know the law is not enforced, the law is going to be violated.” We do not think error was committed in permitting the prosecuting attorney to make the statement. It was ruled in the case of McElroy v. State, 106 Ark. 131, that “prosecuting attorneys have a right to appeal to the jury to do its duty in the punishment of heinous crimes.” The statement simply emphasized the necessity of enforcing the law if it had been violated. We have carefully examined the several instructions given by the court, and are unable to discover any reversible error in them. No. 1 defined the crime for which appellant was indicted in accordance with section 2720 of Crawford & Moses’ Digest, and, in substance, instructed that the jury should convict appellant if convinced beyond a reasonable doubt that he had sexual intercourse with the prosecuting witness in the county within three years before the filing of the indictment. Instruction No. 2 announces the correct rule of law relative to the credibility of witnesses. No. 4 gave a proper definition of the term “reasonable doubt.” Instruction No. 3 instructed on the credibility of appellant, who testified in his own behalf. While the practice of declaring the rule of law relative to the credibility of an accused separate from other witnesses is not commended, the court has ruled that it is not reversible error to do so. Vaughan v. State, 58 Ark. 353. The judgment is affirmed.

Smith, J. Appellee, an insurance company,- hereinafter referred to as the company, issued its policy of insurance “against all direct loss or damage by fire,” to the extent of $2,300, on a one-story, shingle roof, frame building, in the city of Little Bock, owned by the appellant Benson. The house was damaged by a fire, which occurred on Monday, September 29, 1919, at two o ’clock in the afternoon. Benson notified the agent who had written the policy on the afternoon of the fire, and on the following morning he and the agent inspected the property, and the agent advised Benson to have some contractor figure what it would cost to replace the house-as it was. A contractor named Schay made an estimate of $1,280; but there is some controversy as to the items included in his estimate. This estimate was given to the company’s agent, who told Benson that he would mail it to Smallwood, the company’s inspector and adjuster. About the end of the week in which the fire occurred, it commenced raining and ■ continued to rain every day for a period of three weeks, and it was about three weeks before Smallwood appeared at the scene of the fire to make an inspection and adjustment of the loss for the -company. When he came, he made some objection to Schay’s estimate, but finally said he would pay it. Benson declined to -accept Schay’s estimate in satisfaction of his claim and demanded $2,300, the face of the policy. At the trial the court excluded all testimony in regard to the damage done by the rain, and the instruction on the measure of damage expressly excluded this element of damage from the jury’s consideration. There was a verdict in Benson’s favor for $1,500, and both parties have appealed. It is insisted on behalf of the company that the verdict should not have exceeded Schay’s estimate. But the undisputed testimony does not show that the damage (exclusive of that caused by the subsequent rains) did not exceed that amount. On the contrary, there was testimony placing the damage as high as $1,650. The appeal of the company is, therefore, disposed of by saying that there is testimony legally sufficient to support the. ver diet. Benson took the position, and still maintains it, that the company was liable for all damage which occurred after the fire and until the time of the inspection by Smallwood, and his insistence is that, if he had made sufficient repairs to have protected the house from further damage after the fire, it would merely have added to his troubles in adjusting his' loss with the company, and that he was under no duty to protect the property hy repairing the roof; that this duty rested upon the company and not upon him. We do not concur in this view. The policy sued on contained the stipulation that there could be no abandon - ment of the property to the company. The policy further provided “This company shall not be liable for loss caused, directly or indirectly, * * * by neglect of the insured to use all reasonable means to save and preserve the property at and after the fire. * * Smallwood testified — and his statement was not denied — that by using a tarpaulin, or an army fly, or putting on the roof four or five squares of shingles, the rains which later came could have been kept out and no additional damage would have occurred on account of these rains. We can easily imagine a case where the insurance company would be liable under such a policy as is here sued on for damage done by rain as a “direct loss or damage by fire.” Such would be the case if the rain followed so closely after the fire that no reasonable opportunity was offered to protect the .property from that damage, because the fire would continue to be the proximate cause. We need not stop here- to decide what would be a reasonable time for such purpose, as the undisputed testimony shows that Benson had a reasonable time to protect his property, and did not do so. Several days elapsed between the date of the fire and the beginning of the. rains, and it was not until about the middle of December1 that Benson commenced to rebuild his house. He testified, however, that as much damage was done by the first three days of rain as ever occurred. In the case of Beavers v. Security Mutual Insurance Co., 76 Ark. 595, the policy sued on contained the identical provision found in the policy here sued on, that the company should not be liable for loss caused “by neglect of the insured to use all reasonable means to save and preserve the property at or after a fire. * * *” We there said: “This part of the contract only requires the insured to exercise care in saving and preserving the property at or after the fire, and prevents a recovery for loss of so much of the property as could have been saved by the insured with the exercise of due care and the use of reasonable means. German-American Ins. Co. v. Brown, 75 Ark. 251.” There was here a failure to exercise due care and use reasonable means to protect the property after the fire; and this failure broke the causal connection between the fire and the subsequent damage, so that, it cannot be said that this subsequent damage was a “direct loss or damage by fire” against which the company had contracted to indemnify the insured. Judgment affirmed.

McCulloch, C. J. Appellant brings up for review, by writ of certiorari, the record in proceedings before the chancellor where bail was sought. The prayer of the petition below was denied on the face of the record without the introduction of testimony. So we must test the correctness of the chancellor’s ruling by the facts appearing upon the face of the record. Petitioner was arrested in Nevada County on. a charge of felony, and was carried before a justice of the peace, who held an examining trial on August. 19, 1921, and committed petitioner to await the action of the grand jury at the next regular term of the Nevada Circuit Court, to be held in January, 1922. The magistrate fixed bail in the sum of $2,000, which was given before that officer, and petitioner was released from custody. Subsequently the sureties on the bail bond surrendered petitioner to the sheriff of the county, who took him into .custody and still holds him in the county jail. The surrender was made without delivering to the sheriff a certified copy of the bail bond, but it is recited in the response of the sheriff in the present proceedings that the bond had been lost by the committing magistrate. Nothing else appears in the record in regard to the failure to furnish a copy of the bond. On September 16, 1921, there appeared before the committing magistrate, according to the record of that officer now before us, the attorney for petitioner and the deputy prosecuting attorney of the county, and an order was entered reducing petitioner’s bail to the sum of $1,500, reciting that this reduction was agreed upon between the two attorneys. It is also recited in the order that a bail bond was then presented to the committing magistrate and approved. The sheriff, according to his response in this case, declined to approve the bond on the ground that the sureties were insolvent and petitioner is still in jail. The first contention of counsel is that the surrender of custody of petitioner to the sheriff was not made in accordance with the statute in that a certified copy of the bond was not furnished, and that for that reason the surrender was illegal, and the first bond is still in force, which entitles petitioner to be discharged from custody. The statute provides that “the bail may surrender the defendant, or the defendant may surrender himself, to the jailer -of the county in which the offense was committed; but the surrender must be accompanied by a certified copy of the bail-bond to be delivered to the jailer.” Crawford & Moses’ Digest,3 2961. The two succeeding sections provide that “the bail may obtain from the officer having in his custody the. bail-bond or recognizance a certified copy thereof, and thereupon, at .any place in the State, arrest the defendant,” or that “the bail may arrest the defendant without such certified copy.” The recital of the sheriff’s response is that the bail-bond was lost, bnt this did not deprive the sureties of the right to surrender the accused into the custody of the sheriff. According to the express language of the statute, the sureties had the right to make the arrest without a copy of the bail-bond and surrender the accused to the sheriff, and the furnishing of bond was only for the protection of that officer. Only substantial compliance with the statute is required, and the actual surrender of the person of the accused to the proper officer, and the acceptance by that officer, even without a delivery of a copy of the bond, constitutes substantial compliance with the statute, so as to effectuate the release of the sureties from further liability. Sternberg v. State, 42 Ark. 127; Hester v. State, 145 Ark. 347. This disposes of the petitioner’s claim to the right to be discharged under the first bond. It is next contended, that the committing magistrate was the proper officer to approve the second bond, and that petitioner should be discharged under that bond, notwithstanding the refusal of the sheriff to approve the bond. There is no question raised about the validity of the order of the committing magistrate reducing the amount of the bail subsequent to his original order fixing the amount. The order reducing the bail was made upon agreement between the deputy prosecuting attorney and counsel for the accused, and the refusal of the sheriff to approve the bond was not based on the reduction of the amount. The real controversy on this feature of the case relates to the question which of the officers was authorized, under the statute, to approve the bond tendered after the accused was taken into custody when surrendered to the sheriff on his former bail bond. The ground of thé--sheriff’s refusal was, ns before áfrated, that'the sureties were insolvent, and there-is no'attempt in the present proceedings to show ihat the sheriff’s refusal was arbitrary, or without justification, if he was authorized by statute to approve or disapprove the bond. Section 2937 of’ Crawford & Moses’ Digest, which was section 60 of the Criminal Code, reads as follows: “If the defendant is committed to jail, the magistrate shall make ont a written order of commitment, signed by him, which shall be delivered to the jailer by the peace officer who executed the order of commitment. If the offense is bailable, the magistrate must fix the sum for which bail is to be given, and, if sufficient bail is offered, take the same and discharge the defendant. If, however, sufficient bail is not offered,' the sum in which bail is required must be stated in the order of commitment.” It is clear from this section that a bond offered at the time of the commitment is to be approved by the committing magistrate, but that, if bail is not offered at that time, the amount thereof shall be fixed and stated in the order of commitment. Section 61 of the Criminal Code reads as follows: “The defendant, after commitment, and before the commencement of the next term of the court having jurisdiction to try the offense, may be admitted to-bail in the sum fixed by the committing magistrate, by such magistrate, or by the judge of the probate court; but, after 'the commencement of the term of the court, he can only be admitted to bail by the court or the judge thereof. ’ ’ Mr. Gantt in digesting this section, of the Code erroneously substituted the words, “or the circuit court, or the judge thereof, in vacation,” in the place of the words, “or by the judge of the probate court.” Gantt’s Digest of 1874, § 1715. This error has been brought forward in all of the later digests. Crawford & Moses’ Digest, § 2938. Doubtless the error occurred inadvertently by reason of the fact that when trie Digest of 1874 was compiled probate jurisdiction had been transferred to the circuit court, and in all instances where the statute referred to the probate court the digester changed it to.read “circuit court.” The change was made in the section now under consideration upon the theory that the change in probate jurisdiction called for a change in the wording of this section. The change, however, was inappropriate from the fact that the authority conferred by this section on the judge of the probate court to approve bail was a ministerial and not a judicial act, and if it had been judicial it could not, under the Constitution, have been conferred upon the probate court. The question then arises whether this statute should be construed 'to give authority to the committing magistrate, or the probate judge, after commitment of a prisoner, to change the amount of bail as originally fixed by the committing magistrate, or whether it merely conferred authority to accept and approve bail in the amount originally fixed by the committing magistrate. We are of the opinion that this section only conferred authority to accept bail in the amount originally fixed. It provided, in express terms, that at any time ‘ ‘ after commitment and before the commencement of the next term of the court” the accused may be admitted to bail “in the sum fixed by the committing magistrate, by such magistrate, or by the judge of the probate court.” If it was intended to allow the committing magistrate to change the amount of bail, it would not have been necessary to' put in the words “in the sum fixed by the-committing magistrate.” The use of these words negatives the idea that the magistrate should have the authority to reduce the amount of bail. Besides the same expression which confers authority on the committing magistrate to admit to bail applies with equal force to the judge of the probate court, and it is not conceivable that the framers of the statute meant to confer such authority on that officer. Section 2940 Crawford & Moses’ Digest was section 78 of the Criminal Code and reads as follows: “The sheriff arresting a person under a warrant or other process, in which it shall appear that the person is to be admitted to bail in a specified sum, may 'take the bail and discharge the person from actual custody. A sheriff taking bail shall be officially responsible for the sufficiency of the bail, as in taking bail in civil actions. ’ ’ In the case of Pinson v. State, 28 Ark. 397, the question arose whether or not the sheriff had authority to accept bail of a person in his custody under indictment where the amount of bail was fixed by order of the circuit court and the prisoner had not been arrested by the sheriff under bench warrant. The contention of the sureties 'against whom liability on the bond was sought was that the sheriff had no authority to accept the bond because he had not made the arrest, though the accused was in his custody. The court decided that the sheriff who had the accused in custody, regardless of the manner of acquiring custody, had authority to accept bail in the amount fixed by the court. Shortly after that decision was rendered, the Legislature enacted a statute which was approved November 12, 1875, and now digested as § 2951, Crawford & Moses’ Digest, which reads as follows: “When- a sheriff shall commit to the common jail of his county any prisoner, under a bench warrant, in a bailable case, when the amount of bail has been fixed by the circuit judge, and when he shall so commit, under a warrant from a magistrate who has fixed the amount of bail, it shall be lawful for said sheriff to take the bail and discharge the prisoner in the same manner as he could have done before the said commitment.” This statute makes clear the authority of the sheriff, after commitment, to accept bail in the amount fixed, either by the circuit court, on a bench warrant, or by a committing magistrate in the order of commitment. The use of the concluding words of this section shows that the purpose of the lawmakers was to make clear the authority of the sheriff to accept a bond after commitment the same as he had theretofore been expressly authorized to do in case of making an arrest under a bench warrant containing an order fixing the amount of bail. This statute expressed in clear terms what this court had in substance decided in Pinson v. State, supra, to be the effect of section 78 of the Criminal Code, but it was the last expression of the legislative will and must control in all instances where doubt arises. We are of the opinion that the enactment of this section displaced all other authority for accepting bail after commitment and, by implication, repealed section 61 (Crawford & Moses’ Digest, § 2938), which gave authority to the committing magistrate or the judge of the probate court to accept bail after commitment. It is a statute covering the whole subject of accepting bail after commitment, and therefore must be deemed to have entirely supplanted the other section conferring such authority on other officers. Our conclusion, therefor'1, is that the sheriff was the proper officer to' approve the bond; and, since his approval has not been obtained, the chancellor was correct in his order refusing to discharge the petitioner from sustody. The writ of certiorari is therefore quashed, and the order of the chancellor affirmed.

McCulloch, C. J. D. C. Holland and appellant, T. R. Huckaby, executed a promissory note to appellee, J. F. Holland, for the sum of $1,100, the price of an automobile sold by appellee to D. C. Holland. Appellant’s name appears signed to the note as one of the joint makers, but, according to the undisputed evidence, he signed merely as surety for D. C. Holland. The note concludes with the following clause: “The above note was given for Dodge car.” This is a suit on the note, and the only defense is that the note, when signed, contained a clause retaining title to the automobile in appellee as the seller thereof, and that this clause had, without the consent of appellant, been erased. There is a conflict in the testimony, and we think there was .testimony adduced legally sufficient to justify the submission of the issue whether the clause mentioned was a part of the note when signed by appellant. It appears from the testimony that, after the parties had agreed upon the execution of the note, they repaired to a certain mercantile establishment and there obtained a printed form of note containing a clause for the retention of title. That clause appeared at the time of the trial to have been erased,'but appellant’s testimony was to the effect that the clause was in the note at the time of its execution. Appellee testified positively and unequivocally that the clause retaining title to the car was not a part of the note at the time it was signed. We can not, therefore; sustain the contention of counsel that the verdict in appellee’s favor on this issue was altogether without testimony to support it. It is insisted that the court erred in giving the following instruction: “If you find that the note in suit has been changed in a material matter since it was signed, by erasure or otherwise, then it will be your duty to find for the defendant, Huckaby, against the plaintiff, but if you should find from the evidence that the note had the clause retaining title to the car in the plaintiff erasure, then you should find for defendant Huckaby.. That is all of the law there is to the case.” It is contended that this instruction is so vague that it is misleading. There was, however, no specific objection to it, and the only objection was a general one, We think that, while the instruction is ambiguous, and therefore, uncertain to some extent, it is not inherently incorrect, and that the objection to it should have been specific, so as to point out to the court the defect in the language used. It is manifest that the court meant to tell the jury that, if the clause retaining title to the car in the plaintiff had been erased after execution of the note, the verdict should be for appellant, and the error in the instruction is doubtless a clerical one in copying. The assignment of error most earnestly insisted upon here relates to the ruling of the court in refusing to grant a new trial on account of evidence alleged to have been newly discovered. Appellant filed with his motion for a new trial several affidavits, one being from W. T. Crawford, who was assistant cashier of a bank at Alma, who testified that the note was sent to that bank for collection, and that it then had in it the clause retaining title to the car. Affidavits of other witnesses tended to show admissions on the part of appellee that the note had originally contained the clause in question, but that the same had been erased. This testimony was cumulative, and for that reason the court was justified in refusing to grant a new trial on that ground. Moreover, there was a lack of diligence, which justified the court in granting the motion. Appellee further contends, in defense of the judgment, that, since he had the right to make an election not to enforce the clause retaining- title, an alteration of the note in that regard was not material. It is unnecessary, however, to discuss that question, for the reason that we find that the case was submitted to the jury upon the sole issue joined by the parties themselves whether the erasure was made before or after the note was signed, and that that issue was properly submitted to the jury, and there is no error in the proceedings. The judgment is therefore affirmed.

McCuleooh, C. J. This appeal is from a judgment of conviction under an indictment charging appellant with the crime of rape. The charge is that appellant as saulted and raped a certain young woman on the night of March 19,1921, in the city of Little Bock. The assaulted female testified that on the night mentioned she rode home on a street car from her place of work, and walking a short distance after she debarked from the car she was met and assaulted by a negro man, whom she identified as appellant, and another negro, about whose identity she was uncertain. It appears from the record that there was a former mistrial of the case before a jury which was discharged. The first assignment of error relates to qualifications of several talesmen, each of whom appellant challenged peremptorily after the court had refused to sustain challenges for alleged canse, and later appellant exhausted all of his challenges. One of them testified that he had formed an opinion in regard to the guilt or innocence of the accused, and that the opinion was formed from reading newspaper accounts of the crime and from hearing a discussion of the case between two of the jurors at the former trial. He testified that he had heard two of the jurors discuss the merits of the case and had read the accounts in the newspapers and formed an opinion, but that he could not state that the opinion was formed exclusively from either of the sources mentioned, and further stated that he could lay aside that opinion and be controlled, in arriving at a verdict, by the testimony adduced at the trial. Another one of them testified that he had heard the case discussed, that he heard a part of the argument in the former trial of the case and formed an opinion, but that it was not a fixed or definite opinion, and that he could lay it aside and be controlled by the evidence adduced at the trial. Another one testified that he had formed an impression from what some one had told him what a juror in the former trial had said about the case, but that he had no fixed opinion, and could lay aside the impression thus obtained and try the case according to the law and the evidence adduced. ■ The law with reference to the qualifications of jurors lias been often discussed in the decisions of this court, and it is scarcely necessary to reiterate what has already been said. The oft-repeated rule announced is that the entertainment of # preconceived opinion about the merits of a criminal case renders a juror prima facie incompetent; and unless it is shown that such opinion is based on rumor or is not of a nature calculated to influence an intelligent and fair-minded man, the disqualification is established, notwithstanding he states that he can lay aside the opinion and try the case upon the evidence adduced at the trial. Polk v. State, 45 Ark. 170; Hardin v. State, 66 Ark. 53; McGough v. State, 113 Ark. 304. In the present instance it fairly appears' that the opinions of these talesmen were founded, not on narratives of what purported to be the facts in the case, but upon newspaper accounts and other discussions. It is true that one of them said that he heard a discussion between two jurors which influenced him in arriving at an opinion, and another stated that he had heard a portion of the argument at the former trial, but neither of them stated that he heard a narrative of the facts in the case nor what purported to be the testimony of the witnesses. An opinion thus founded is not one calculated, to influence an intelligent juror when he declares himself to be able and willing to discard such opinion and try the case upon the testimony adduced at the trial. In other words, it is such an opinion that can be discarded by an intelligent and fair-minded person without having testimony to remove it. Neither of the talesmen said that the opinion entertained was based on a statement by the jurors in the former trial of the facts or what purported to be the facts. The examination was had by the trial judge, and he was in situation to correctly determine whether or not the jurors entertained settled or fixed opinions which would likely influence them in the trial of the case. A due amount of deference ought, under the circumstances, to be given the finding of the trial judge on that issue, and his conclusions should not be discarded unless it appears that he erroneously accepted a juror who had a fixed opinion on the merits of the case, based on a narrative of facts traceable to a definite source and not based merely on rumor. Hardin v. State, supra; Reynolds v. United States, 98 U. S. 145. Our conclusion is, therefore, that this casé falls within the rule announced in many of our decisions where such opinions have been held not to disqualify if the juror declares himself able and willing to lay aside the opinion thus formed. In the progress of the trial the State introduced a witness who testified that he owned a dog trained to following the trail of human beings, and that on the night the offense was committed he took the dog to the scene of the crime, and he undertook to relate the action of the dog on that occasion. He testified, in substance, that when the place of the alleged assault was pointed out to him he took the dog there, that the dog picked up the trail and followed it several blocks to the car line. There was testimony tending to show that appellant, shortly after the crime was committed, boarded a car at the place where the trail followed by the dog ended. The witness testified that lie had trained the dog to follow human trail; that he and his brother had trained the dog, and that it had on other occasions followed human track. We have held in a number of cases that such testimony is competent, but in each case it was stated that there must be preliminary proof that the dog had been trained for this purpose or that the dog possessed the capacity of following the human trail. Holub v. State, 116 Ark. 227; Padgett v. State, 125 Ark. 471; Cranford v. State, 130 Ark. 101. It is contended in the present instance that there was not sufficient proof of the training or capacity of the clog, but we think that the proof was sufficient to justify the submission of this issue to the jury. The question of the weight of the testimony was one for the jury. Finally, it is contended that the evidence is not sufficient to sustain the verdict, but it is clear from a perusal of the testimony that it is legally sufficient. The young woman alleged to have been assaulted testified concerning the assault and definitely identified appellant as the man who had committed the assault. Her testimony was sufficient to establish all of the elements of the crime of rape, and that appellant was the man who committed the crime. Appellant attempted to' establish an alibi and to show that the young woman was mistaken in her identification of appellant as the criminal, but the weight of all this testimony was a question for the jury, and we find that there was sufficient testimony to sustain the verdict. Affirmed.

McCulloch, C. J. Appellee instituted this action in the chancery court of Randolph County against one Dillport and the appellants, Tom Lingo and D. H. Osburn, and appellants were served with process in Lawrence County, where they reside. A decree by default was rendered in favor of appellee and against all of the defendants, and the two appellants subsequently prosecuted an appeal. Dillport has not appealed. It appears from the record that the decree was rendered by the court upon the complaint and exhibits. It is alleged in the complaint that on September 5, 1919, Dillport executed and delivered to appellant Lingo his promissory note for the -sum of $17'5, payable! October 5, 1920, and that on September 27, 1919, appellee indorsed the note, as an accommodation for Dillport, and that Dillport executed a chattel ■ mortgage to appellee to secure him against loss. The complaint further alleges that appellant Osburn was also an indorser on the note. The complaint contains the further allegation that Lingo assigned and indorsed the note, before maturity, to the Lawrence County Bank, and that later appellee paid the note in full, and that the Lawrence County Bank transferred the note to appellee. The prayer is for foreclosure of the chattel mortgage and decree over and against defendants for the balance paid by appellee in satisfaction of the note. The mortgaged chattels were sold under order of the court during the pendency of the action, and the proceeds applied on the satisfaction of the debt to appellee, and the court rendered final decree against Dill-port and appellants for the remainder. The note is exhibited, and shows blank indorsements by appellee and Lingo and Osburn in the order mentioned. Under the statutes of this State, service cannot, in a transitory action, be had on a defendant in a county other than that of his residence, except where there is service in the county where the action, is instituted on a co-defendant who is jointly liable. Crawford & Moses’ Digest, § 1178; Hoyt v. Ross, 144 Ark. 473. If there be liability at all on the part of either of the appellants to appellee, it is not a joint liability with Dillport, the maker of the note. According to the allegations of the complaint, there was no liability at all on the part of appellant Lingo. He was payee in the note, and his indorsement, regardless of the position of his name on the instrument, could only have had the effect, of transferring the note to the Lawrence County Bank. He was liable only on that indorsement to his assignee or to subsequent holders of the note. Appellee did not become a subsequent holder of the note by paying it; the payment was by reason of his liability as an indorser, and he did' not become the purchaser of the note. Neither was the liability of appellant Osburn, if there existed any liability at all, a joint one with Dillport. According to the pleadings in the case, appellee was not a holder of the note by purchase, and had no right of action against appellant Osburn as a joint maker. The decree is therefore reversed, and the cause remanded for further proceedings, the appeal operating as an entry of appearance by appellant. Southern Bldg. & Loan Assn. v. Hallum, 59 Ark. 583. It is ordered.

Humphreys, J. Appellee instituted suit against appellant in the White Circuit Court to recover the possession of forty acres of land, alleged to be unlawfully detained by appellant, on account of his failure and refusal to enter into a written lease in accordance with an oral agreement entered into between said parties. Appellant filed an answer denying that he failed and refused to enter into a written lease for the land in accordance with the oral agreement, but alleged that on the contrary he had reduced the agreement to writing, and that it had not been executed because appellee refused to sign it; that, pursuant to the oral understanding, he had entered into possession of the premises and carried out all the terms of the lease until interrupted by a demand for possession of the premises and the institution of this suit by appellee. The cause was submitted upon the pleadings, eviJ dence and instructions of the court, which resulted in a finding and judgment in favor of appellee for the possession of the land. It was agreed between the parties that a written lease should be executed to the effect that appellant should plant as much as he could of a certain block of six acres in strawberries in the spring of 1920, should cultivate four acres of strawberries already growing on the land, and should cultivate the balance of the land in corn; that appellee should receive one-fourth of the proceeds derived from the berries and one-third of the corn for the use of the land. Appellant took possession of the land and planted about an acre and a half of berries in the spring of 1920 and worked out the four acre tract, when appellee demanded possession of the lands and instituted this suit. The evidence is conflicting as to whose duty it was to prepare the written lease. Appellant prepared a written lease and left it at the McRae State Bank foxappellee to sign. Tlie lease provided for the balance of the berries to be planted in the spring of 1921, and appellee refused to read or sign it because it provided that the strawberries should be planted in the spring of 1921 instead of 1920. The evidence is also in conflict as to whether appellee planted all the strawberries he could have plaxited in the spring- of 1920 under the prevailing weather coxiditions. When the evidexxce was concluded, appellant requested a peremptory instruction, on the ground that the right of eviction did not exist in favor of the lessor in the absence of a clause in the contract providing for a forfeiture upon failure to comply with the terms • of the lease, and it is now insisted that the court committed reversible error in refusing to give appellant’s peremptory request. This contention is xiot sound, for it. is well settled that a lessor may disaffirm a lease contract and regain possession of the land if the lessee, either in words or by equivalent acts,- had repudiated or abandoned tlie coxxtract. Buckner v. Warren, 41 Ark. 532. The doctrine announced in the case cited was approved in the later case of Lindsey v. Bloodworth, 97 Ark. 541. In the latter case the court'took occasion to say: “The' other allegations ' of the complaint show that the' appellant had violated the obligations of his contract' with appellee in such manner as tó evince an intention on his (appellant’s) part not to pay the rents as stipulated for, and, in fact, to abandon the contract. The complaint is crude, but, taken as a whole, it certainly states facts to show that appellant had wholly abandoned the contract which created the tenancy, and that his holding thereafter was unlawful.” The evidence in the instant case, as stated above, was in conflict as to whether appellant abandoned his contract by failing and refusing to prepare and execute a lease requiring him to plant as many strawberries as he could in the spring of 1920 on a certain six-acre block in the forty-acre tract. If he did so fail and refuse, it amounted to a repudiation of his contract, and an action in unlawful detainer would lie. For this reason it was proper to refuse appellant’s peremptory request. Appellant insists that the court erred in giving appellee’s instruction No. 1, which is as follows: “You are instructed that if you find from the testimony in this case that the defendant failed or refused to comply with the terms of the contract for the lease of the lands mentioned in Ibis action through no fault of the plaintiff or her agent, then the plaintiff had the right to rescind said contract and to treat the same as at an end, and your verdict will be for the plaintiff.” The insistence is that the instruction authorized a rescission of the contract for a mere breach thereof. The instruction is ambiguous• in that it is doubtful whether it was intended to relate to the failure and refusal of appellant to execute a written contract or a failure and refusal to plant as many strawberries as he could on the six-acre block of ground in the forty-acre tract. The attention of the court was not called to this ambiguity existing in the instruction by specific objection. The objection interposed to it was general. But, even if inherently wrong, appellant waived the error by requesting an instruction upon the same issue. The court gave appellant’s request No. 2, which contained a proviso submitting the identical issue to the jury. The provision is as follows: “Provided, you find that the defendant complied with the terms of the contract for the lease of the land.” Appellant’s last insistence for reversal is that an error was committed by the court in failing to tell the jury that a suit in unlawful detainer would not lie for a partial breach. It is true that a lessor cannot evict a lessee from the leased premises unless the lessee has repudiated the contract by word or act, but appellant never raised this question below. No request was made by appellant submitting the issue of the effect of a partial breach to the jury. The case was tried and submitted upon the issues of whether appellant had failed and refused to execute a written contract in accordance with the parol agreement, and whether he failed to plant all the strawberries he could in the spring of 1920 on the six-acre block in the forty-acre tract. No error appearing, the judgment is affirmed.

McCulloch, C. J. This is an action instituted in the chancery court by appellee against the town of Hoxie to quiet appellee’s title to a strip of land in the town, formerly owned by appellee’s mother, Mary A. Boaz, and dedicated by the latter to the public as a part of a certain street of the town of Hoxie. The chancery court granted the relief sought by appellee, and an appeal is prosecuted to this court. Appellee’s mother, Mrs. Boaz, formerly owned the land on which the town of Hoxie is situated, and in the year 1883 she causécl the same to be platted into lots and blocks, intersected by streets and alleys, and filed the plat for record. Lots were sold according to the descriptions set forth in the plat, and the streets and alleys thus became' dedicated to public use. The property in controversy is a strip 60 feet in width and 291 feet in length, south of block 12, according to the plat filed by Mrs. Boaz, and is a part of Springfield Street between two other streets designated as' Texas Street, which is east of block 12, and Maple street, which is west. Mrs. Boaz erected a building on one of the lots in block 12 for use as a hotel. She died, leaving appellee as her sole heir. According to the testimony adduced,, the part of Springfield Street on which- block 12 abutted was left open for public use, but was little used as a -street. It was used so little by the public that it got to be a place where cattle congregated in the evening and at night near the rear entrance to the hotel, and the place became insanitary. It is not contended, however, that the attempted dedica tion by Mrs. Boaz was not complete, nor that the dedication remained unaccepted by the public. The contention of appellee is that the street was vacated and abandoned, and that all rights acquired under the original dedication were thereby extinguished. In the year 1905 a petition .of certain citizens of the town of Hoxie was presented to the Legislature, perhaps at the instance of appellee, and a special statute was enacted by the legislative session of that year authorizing the town of Hoxie to vacate, by ordinance, this portion of Springfield Street and a certain part of another street contiguous to appellee’s land not involved in this appeal. Pursuant to this statute, the town council enacted and published an ordinance on October 6, closing this part of Springfield Street, and within a short time thereafter appellee took possession of the strip of land in controversy and fenced it. in connection with her other property in block 12. She has kept the property fenced and has maintained exclusive dominion over it from that time until the commencement of this action. The old hotel building was burned in the year 1912, and was replaced by a brick building, used for the same purpose and still owned by appellee. The testimony is ¿bundantly sufficient to establish the fact that appellee has continuously held the property since the autumn of 1915, in hostile possession and under a claim of ownership sufficient to completely vest the title in her by limitation unless, under the law and the facts of the case, the statute did not run in her favor. This court, in an early decision, announced the rule, which has been several times reiterated, that “the interest which the public acquires by the dedication of land for a highway or street is merely an easement or right of passage over the soil, the original owner still retaining the fee, together with all rights of property not inconsistent with the public use,” and that “when the streets are vacated or the use abandoned, they revert to the owners of'abutting lands.” Taylor v. Armstrong, 24 Ark. 102; Packet Co. v. Sorrels, 50 Ark. 466; Dickinson v. Arkansas City Improvement Co.,77 Ark. 570. At the time the adverse possession of appellee began, there was no exemption in the statute of limitation in favor of incorporated towns. A statute was enacted declaring such exemption at the legislative session of 1907 (Acts 1907, p. 1147), but that statute contains a provision limiting its operation to “adverse possession or occupancy commenced or begun after the passage of this act.” The effect of this statute wras construed and its provisions applied in the case of Madison v. Bond, 133 Ark. 527. The statute, of course, ran against private rights acquired by individuals under purchases of lots according to the plat filed by Mrs. Boaz. Mebane v. Wynne, 127 Ark. 364. The fact that appellee acquired possession of the property in controversy pursuant to to the ordinance enacted by the town council vacating the street does not render such possession a permissive one, so as to prevent the statute of limitation from running. It is contended by learned counsel for appellant that the special act of the Legislature authorizing the town council to vacate the street was invalid, a question which we do not deem it necessary to discuss; but, whether this be so or not, it demonstrates the fact that appellee’s possession began under a claim of legal right and not by permission, for it constituted an assertion of her right to resume possession of the property, in which she owned the fee after the public use was abandoned. Nor is it material that when appellee took possession of the property in controversy and fenced it she did not then, as now, purpose to extend the hotel building thereon. The controlling fact, however, is that she took possession and maintained it as a matter of right and under a hostile claim of ownership. Madison v. Bond, supra. Our conclusion is, that regardless of the question of the legality of the proceedings on the part of the town in vacating the street, appellee’s title is complete by adverse possession, and that all other rights have been extinguished by operation of the statute of limitation. There is another feature of the case, however, which calls for1 discussion. The General Assembly of 1921 passed a special statute (Act No. 397) referring to the property in controversy and to the -special statute of 1905 in regard to vacating Springfield Street, and authorizing the town of Hoxie to institute proceedings in the circuit court of Lawrence County “against any one claiming ownership in said street, for the purpose of determining whether any one has acquired rights in said street by limitation or under the provision of said statute.” The statute further provides that, if the circuit court “finds that other parties have acquired rights in said street, it shall appoint three citizens of Lawrence County to-act as appraisers,” and that there shall be an appraisal of the value of the property, and that when the appraisal has been made the town council “shall determine whether they are willing to pay the amount thereof and to open said street; and, in the event they determine to open said street, the incorporated town of Hoxie shall execute and deliver' to the parties who are adjudged by the circuit court to be the owners of said street, the warrants of said incorporated town, drawn on its treasurer, for the amount of the appraised value of said street.” Appellant, in its answer in the present case, pleaded the statute just referred to, and moved the court to transfer this cause to .the circuit court for further proceedings in accordance with the statute. This motion was overruled. u We are of the opinion that the court was correct in refusing to transfer the case. The chancery court rightfully acquired jurisdiction 'for the purpose of quieting appellee’s title to the strip of land in controversy. The relief sought in this action fell within the original jurisdiction of chancery courts, and the statute in question was nothing more nor less than one prescribing the method for condemnation of this property for public use under the right of eminent domain. It could not deprive the chancery court of the jurisdiction already rightfully acquired, nor was it an attempt to do so. Appellee’s title to the property has been quieted by the decree of the chancery court, and her rights therein are thus settled, but appellant’s authority under this statute to proceed to condemnation of this property is still unimpaired, notwithstanding this decree adjudicating and quieting appellee’s title to the property, for, as before stated, the only purpose of the act is to prescribe the method of condemnation. It is unnecessary for us at this time to determine the question of validity of the mode of condemnation prescribed in this statute, nor is it proper that we should do so, for that question will not arise until the prescribed method is pursued. The decree is affirmed.

Hart, J., (after stating the facts). In Jackson v. Lady, 140 Ark. 512, the court held that a deed must be so construed that all of its parts may be harmonized and stand together, if the same can be done, and yet carry out the manifest intention of the parties. The court held further that, to ascertain the intention of the parties, not only must the contents of the deed as a whole be considered, but also the relation of the grantor to the property conveyed. In the application of this well known rule of construction, we think the decision of the chancellor was wrong. Under the terms of the lease from appellants, appellee became entitled to sink a shaft and mine the coal on a certain forty-acre tract of land of appellants for a certain stipulated period. On the 19th day of February, 1917, appellants conveyed to the grantors of appellee one acre of land to establish a tipple to better mine the coal on said forty-acre tract. In the deed it was expressly stipulated that the object of the conveyance was to facilitate the opening of the coal mine and the conducting of the mining operation on the leased forty-acre tract and that,when the land ceased to be used for this purpose, the title should revert to the grantors. It further provided that the conveyance only covered the surface of the earth and gave no title to the coal or minerals under the surface. On Máy 17, 1917, appellee and its grantors, Hoye and Chitwood, executed an instrument whereby they guaranteed to appellants a minimum royalty of $250 per annum, commencing . January 1,1918, until all the coal on a certain forty-acre tract is worked out from the shaft to be sunk on the adjoining forty acres. The agreement also recites that it is made in consideration of a certain tract of land given to the grantors' for tipple purposes. Under this clause it is insisted that this obligation became void when the deed of May 14, 1918, from appellants to appellee was executed. In making this contention, however, counsel have not given full effect to the entire deed conveying the 4.2 acres of land. It is true that the latter deed includes the one-acre tract in the description of the 4.2 acre tract; hut, immediately following the description, the deed recites that it is in addition to the former deed conveying the one-acre tract, and for the purpose of conveying the additional land described in the latter deed and not described in the former deed. Moreover, the deed is a deed in fee simple, and does not contain any clause whereby the land reverts to the grantor when the land ceases to be used for the purpose of opening up the mines and conducting mining operations on the leased premises. So it will be seen by the latter deed that three additional acres of land are conveyed, and the title to the one-acre tract is granted in fee simple to appellee. There is nothing in the language of the instrument to indicate that it was the intention of the parties to cancel the guaranty agreement whereby the minimum royalty was fixed at $250 per annum. It is true that the guaranty obligation recites that it is made in consideration of the one-acre tract for tipple purposes; but it will be noted .that the second deed, as above stated, grants the fee simple title to the one-acre tract as well as the additional three acres. There is no language in the deed, nor is there anything from the surrounding circumstances, that indicates that it was the intention of the parties’to cancel the. guaranty contract by the execution of the later deed. On the contrary, when all three instruments are read and considered in the light of each other, we think that it was not the intention of the parties to cancel the guaranty agreement by the execution of the later deed conveying the 4.2 acres of land, and that the chancellor erred in so holding. But it is insisted that the decree must be affirmed, because it recites that the cause was heard on the pleadings and the attached exhibits and the admission of the parties as to the deed to the one-acre tract. There is no bill of exceptions, and the insistence is, that on this ac count there is a presumption that the admission of the parties as to the deed to the one-acre tract supports the finding and decree of the court. This would be true if the decree did not recite what the admission of the parties was. The decree specifically recites that the admission was that the warranty deed subsequently executed to the 4.2-acre tract also includes the, one-acre tract mentioned in the first deed. It is well settled that when the decree itself contains a recital of the testimony, no bill of exceptions is necessary. Baucum v. Waters, 125 Ark. 305 and Strode v. Holland, Ante p. 122, and cases cited. So in the present case, the record itself having recited what the admission as to the one-acre tract was, it was not necessary to bring the facts relating to the admission into the record by bill of exceptions. This being an equity case, the exhibits attached to the pleadings became a part of the record and might be considered as well as the recitation concerning the admission contained in the decree itself. The decision of the chancellor was based upon the pleadings, the exhibits thereto, and the recital of the decree as to the admission of the parties that the deed to the 4.2 acre tract also included the one-acre tract. Upon this state of the record the court erred in holding for appellee and in dismissing the complaint of appellants for want of equity. It follows that the decree must be reversed, and the cause will be remanded for further proceedings in accordance with the principles of equity and not inconsistent with this opinion.

McCulloch, C. J. Appellee owned a farm in Benton County, and listed it with appellant for sale or exchange, agreeing to pay a commission. A. L. Pickerall and L. A. Dykes also owned a farm in Benton County, and listed same with appellant, who negotiated an exchange between appellee and those parties. Under the terms of. the exchange, Pickerall and Dykes were to pay the sum of $600 to appellee. They executed a note to appellant for said amount, and appellee instituted this action against appellant to restrain him from collecting the note, on the ground that he had misrepresented the terms of the sale to appellee. The controversy between appellant and appellee relates to the amount of the commission and certain alleged -representations made by appellant to appellee concerning the terms of the trade between the appellee and .Pickerall and Dykes. The contention of appellee is that he first demanded the sum of a thousand dollars in the trade, but finally agreed to accept $600 on condition that appellant would only require him to pay $200 commission; but that appellant subsequently represented to him (appellee) that Pickerall had refused to consummate the trade unless he should receive $300 of the $600 that was paid in the exchange, and that appellee, in order to consummate, the trade and in reliance upon the representations of appellant concerning the demand of Pickerall, consented to this arrangement. The allegation of the complaint is that the representations made by appellant concerning the dedemand of Pickerall were false; and there was testimony tending to sustain appellee’s contention on that point. Appellant contends, on the other hand, that he made no such representations to appellee in regard to such demand from Pickerall; that appellee agreed to pay him a commission of $500 on the exchange, and that he had tendered to appellee the sum of a hundred dollars — the difference between the amount of the note and his commission. The testimony is sharply conflicting, and is confined mainly to the testimony of the two parties themselves— appellant and appellee. There was another witness, named Holcomb, a nephew of appellant, who testified that he was present when the parties went out to look at the farms, and heard appellee agree to pay a commission of $500. The contention, however, of appellee is that, at that time, he was holding out for a difference of a thous- and dollars in the exchange, and that afterwards, when Pickerall and Dykes offered $600, he consented to the reduction on condition that appellant would reduce his commission to $200. Pickerall testified that he made no demand on appellant that he should he paid $300 out of the note when collected, and he testified that he and Dykes gave the note for the difference with no expectation that any of it would be returned Viewing the testimony in the record, it appears to be about evenly balanced, and under those circumstances it is our duty not to disturb the finding of the chancellor. The point is made that appellee had no right to rely on alleged representations of appellant, but should have pursued the inquiry and ascertained from Pickerall that no such demand had been made. The answer to that contention is that appellee had the right to rely upon the representations of appellant as his agent, and the fact that he did so rely upon these representations, without inquiring further, does not deprive him of relief against the fraud of his agent. Again, it is contended that appellee should be denied relief on the ground that he consummated the exchange after ascertaining the falsity of the alleged representations made to him. This contention is not sound, for the reason that Pickerall and Dykes we're not parties to the misrepresentations, and appellee was bound by his contract with them, notwithstanding the misrepresentations of his agent, and appellee’s only remedy was to consummate the sale and seek a remedy against his agent. The state of the record is, as before stated, such that we cannot say that the preponderance of the evidence is against the finding of the chancellor. The decree is therefore affirmed.

Humphreys, J. Appellant instituted suit against appellee in the Crittenden Circuit Court to recover damages in the sum of $3508.42, the value of 28 bales of cotton, stored in appellee’s warehouse and destroyed by fire through appellee’s alleged negligence in permitting loose lint cotton and sawdust to remain on the ground and platform near the -warehouse, and in not preventing the fire after it was discovered. Appellee filed an answer, specifically denying that the fire originated or continued after discovery through its negligence. The cause was submitted upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment for appellee, from which an appeal has been duly prosecuted to this court. The evidence adduced by appellant tended to show that the warehouse and contents were destroyed by fire originating in the sawdust and lint cotton round about and under the warehouse. The evidence of appellee tended to show that the fire originated from a bale of cotton which had been delivered and placed near the center of the compress, and which was burning on the interior when received, the fire being undiscoverable until it burnt out and came in contact with the air, at which time it flashed up and could not be extinguished. Appellant insists that the court committed reversible error in giving appellee’s requested instruction No. 4, which appellant interprets as requiring him to establish the origin of. the fire to a moral certainty, or beyond a reasonable doubt. Appellee insists that the instruction simply emphasized that the burden of proof rested upon appellant, and has no reference to the degree of persuasion to which the jury should be brought before it should find for appellant. The instruction is as follows : “Evidence may be either direct or circumstantial. Circumstantial evidence is the evidence of certain facts from which are to be inferred the existence of other material facts bearing upon the question at issue, or facts to be proved. But, while circumstantial evidence is legal and proper, you are instructed that no inferences or presumptions should be indulged in by you that do not necessarily arise from the circumstances proved. In other words, the circumstances proved must convey by a. logical train of reasoning that the defendant was negligent, and that such negligence was the direct and proximate cause of the loss of the plaintiff’s cotton by fire, before you can find in favor of the plaintiff. If the circumstances in evidence are explainable on any other reasonable theory than that of the negligence of the defendant, your verdict should be for the defendant.” I'Ve think the last clause’ of the instruction imposed upon appellant the duty to establish his theory of the origin of the fire to the exclusion of any other reasonable theory as to how the fire originated, which, in effect, told the jury that appellant must establish the origin of the fire beyond a reasonable doubt. The only burden resting upon appellant was to establish his case by a preponderance of the evidence. The instruction was inherently wrong, and is not cured, as suggested by appellee, in instruction No. 3. The two were in direct conflict upon the extent of the burden of proof resting upon appellant, and because of the conflict the one cannot cure the other. Appellant insists that the court erred in giving, on its own motion, the last instruction, which exempted appellee from liability for acts of third persons, without modifying it by adding the following clause: “Unless, after the discovery of such negligence, the defendant w^s negligent in failing to prevent the loss of the plaintiff’s cotton. ’ ’ All the instructions given are not abstracted, and we are unable, without exploring Ihe transcript, to ascertain whether the modification requested was embodied in other instructions. The instruction, however, as given by the court, was erroneous for another reason, that is, for failing to embod}^ the idea of appellee’s liability for acts of third parties which it could have prevented through ordinary care. We are not reversing the case on account of this error, but, as the case must be reversed for error in giving appellee’s requested instruction No. 4, we call attention to the error, so that .the law may be properly declared on trial anew. The judgment is reversed, and the cause remanded for a new trial.

McCulloch, C. J. The indictment against appellant charges grand larceny in the stealing of two cows, the property of George Carlson, and on the trial of the case the State proved the stealing of a steer, the property of Carlson. There was no objection made to this testimony, but one of the grounds set forth in the motion for new trial is that the verdict is contrary 'to the evidence. In other words, in the proceedings below, appellant in apt time raised the question of sufficiency of the evidence; but did not, when the testimony was introduced, raise the question of the variance between the allegations in the indictment and the proof. It is conceded by the Attorney General that there is a substantial variance between the indictment and the proof, and that if the question had been raised in apt time it would have been fatal to the State’s case, but it is insisted that it is too late to raise that question here for the first time. That the variance is material is settled by several decisions of this court. State v. McMinn, 34 Ark. 160; Keoun v. State, 64 Ark. 231. The case of State v. Haller, 119 Ark. 503, is not in conflict with prior decisions. We agree that the question cannot be raised here for the first time, but is it not raised by the assignment in' the motion for a new trial challenging the legal sufficiency of the evidence? We think that the result of a substantial variance between the allegations and the proof is necessarily a failure of proof, for the proof must conform to the allegations, and, unless it does, there is no evidence to sustain the verdict. Our previous decisions seem to be to the effect that a material variance between the allegations and the proof may be raised on appeal in the same way that the legal sufficiency of the evidence may be challenged. Wilburn v. State, 60 Ark. 141; Blevins v. State, 85 Ark. 195. The judgment is therefore reversed, and the cause is remanded for a new trial.

Hart, J. T. O. Masner was convicted of the crime of carrying metal knucks as a weapon, and his punishment was fixed by the jury at a fine of $50. Judgment was rendered accordingly. The defendant then filed a motion in arrest of judgment, which, was sustained by the court, and the judgment arrested. The State of Arkansas has duly prosecuted an appeal to this court. The body of the indictment is as follows: “The grand jury of the Southern District of the Sharp Circuit Court, in the name and by the authority of the State of Arkansas, accuse T. O. Masner of the crime of wearing weapons, committed as follows, to-wit: The said T. O. Masner in the county, district and State aforesaid, on the 15th day of October, A. D. 1920, unlawfully did wear and carry certain metal knucks, against the peace and dignity of the State of Arkansas.” Counsel for the defendant contends that the facts stated in the indictment do not constitute a public of- fen.se within the jurisdiction of the court, and that the court properly arrested the judgment. The indictment was found under § 2804 of Crawford & Moses ’ Digest, which reads as follows: “Any person who shall wear or carry in any manner whatever, as a weapon, any dirk or bowie knife, or sword or spear in a cane, brass or metal knucks, razor, or any pistol of any kind whatever, shall be guilty of a misdemeanor,” etc. Counsel for the defendant claims that, inasmuch as the crime prohibited by the statute is the carrying of metal knucks as a weapon, no crime is charged by alleging that the defendant unlawfully carried metal knucks. In other words, counsel contends that the act charged is carrying- metal knucks, which in itself is not unlawful, and that an allegation that it is unlawfully done does not render it indictable. We do not agree with counsel in his contention. The only ground upon which a judgment shall be arrested is that the facts stated in the indictment do not constitute a public offense within the jurisdiction of the court. Farrell v. State, 111 Ark. 180. Hence the words used in the indictment to describe the act charged are to be taken in their broadest sense. The indictment is sufficient if it contains such description of the offense charged as will enable the accused to make his defense and to plead the judgment in bar of any further prosecution for the same crime. Rosen v. United States, 161 U. S. 29. The indictment in this case meets these requirements. The first part of it accuses T. O. Masner of the crime of “wearing weapons.” It then charges that said Masner “unlawfully did wear and carry certain metal knucks.” These last words, when considered in connection with the accusing part of the indictment, imply that the defendant did wear or carry metal knucks contrary to law or in violation of law. In short, the indictment accuses the defendant of wearing weapons by unlawfully wearing and carrying metal knucks. It is true the essence of the offense charged is carrying as a weapon metal knucks. But we are of the opinion that accusing the defendant of wearing weapons by unlawfully carrying metal knucks, put him. on notice of the charge he was required to meet and enabled him to make his defense thereto and to plead the judgment in bar of any further prosecution for the same offense. The indictment accuses the defendant of the crime of wearing weapons, and then charges that he committed it by unlawfully carrying the metal knucks. This sufficiently shows that the metal knucks were carried as a weapon, as otherwise it could not be said to have been done unlawfully. In this way the word, “unlawfully” connects the words, “did wear and carry certain metal knucks,” with the preceding words, “accused T. O. Masner of the crime of wearing weapons,” and thus becomes a part of the description of the offense. It follows that the court erred in sustaining the motion in arrest of judgment, and for that error the judgment will be reversed, and the cause- will be remanded with directions to the circuit court to enter judgment upon the verdict.

Smith, J. This cause was heard in the court below on an agreed statement of facts, the essential provisions of which are as follows: S. A. Cruse died testate in January, 1899, seized of the land in controversy. He left surviving a woman to whom he had been married in due form of law in this State, and several children by a former wife. Letters testamentary issued to J. E. Scanlan, who had been named executor in.the will. Scanlan collected the rents from the lands until 1904, and turned them over to Mary Cruse as widow. It is reflected in the agreed statement of facts that the executor suspected that Cruse had a living wife at the time of his marriage to Mary Cruse; but this suspicion proved to be groundless. A controversy arose between the widow and the executor over one of the settlements of the executor, and there was an appeal from the order and judgment of the probate court thereon. This appeal was heard at the September term, 1904, of the circuit court, when a judgment to the following effect was entered. The court found that the widow had received all personal property of the estate and the proceeds of all the rents up to and including the year 1903; that the widow owned a separate homestead at- the time of the death of her husband, and was not therefore entitled to the rents on the homestead of her husband. The court directed the executor to retain possession of the land and to loan all rents thereafter collected until legal demand therefor was made upon him by the heirs of Cruse, and that “no further money shall be paid to the s'aid widow until the heirs receive their proportion that has been paid to the widow, it being ordered by the court that the widow in this ease is entitled only to her dower of one-third of the proceeds of said estate from the death of the said S. A. Cruse.” The agreed statement of facts further recites that said lands were never needed to pay debts of the said S. A. Cruse, and that the said executor claims only the right to control said lands in so far as he may legally do so by virtue of his executorship and said order of the circuit court. That the lands were sold to S. K. Patton June 28, 1919, for partition under the decree of the court in a suit between the heirs of Cruse brought for that purpose. This partition suit was brought in the chancery court, the sale was regularly confirmed, and the commissioner, under the orders of the court, executed a deed to Patton. It was further stipulated that the partition proceedings were regular, except that Scanlan was not made a party. The widow was dead at the time of the partition suit, and there was no widow or minor heirs in possession of said lands when partitioned, and the proceeds of the sale of said lands for partition were distributed to the heirs of S. A. Cruse, who were parties to the partition suit. Patton brought this suit at law to recover the lands against the executor, who defended his right of possession by setting up the judgment of the circuit court set out in the agreed statement of facts. On the defendant’s motion the cause was transferred to equity, where there was a decree in favor of plaintiff for the lands, from which is this appeal. There was no decree for the rents, the cause being continued for the taking of testimony on that issue. Appellant insists, for the reversal of the decree of the court below, that there was a final binding judgment of the circuit court rendered upon the appeal from the judgment of the probate court, which judgment he was and is bound to obey; yet he cannot obey that judgment if he is required to surrender possession as directed by the decree of the chancery court. In answer to this contention, it may be said that there were no debts, and the law gave tire executor no right to control the possession of the land. The executor was not a party to the partition proceeding; but there was no reason why he should have been. Neither under the will nor under the statute did the executor have a right to the possession of the land. There was nothing in the judgment of the circuit court which could postpone the heirs from taking possession of the land. They were not parties to the litigation between the widow and the executor, and were therefore not bound by it. Moreover, we find nothing in the judgment itself which would have postponed the right of entry of the heirs. Evidently the names and addresses of the heirs were not known when the circuit court rendered its judgment, and because of the lack of this knowledge the executor had paid to the, widow all the rents and had delivered to her all the personal property. To make amends for this,, the circuit court directed the executor to collect rents thereafter for the account of the heirs until a sum had been collected sufficient to equalize them under the law with the widow. The judgment recognized the rights of the heirs to the rents from the lands and the executor was ordered to retain .possession for the purpose of collecting the rents for the benefit of these heirs. Since then the widow has died, and the land was sold for partition in a suit brought by the heirs for that purpose; and we perceive no reason why the purchaser at that sale should not be awarded possession of the land. This was the decree of the court below, and it is therefore affirmed.

Smith, J. Appellant has been convicted for violating section 1 of Act No. 324 of 1921 (General Acts of 1921, p. 372), which reads as follows: “Section 1. No mash, wort or wash fit for distillation or for the manufacture of beer; wine, distilled spirits or other alcoholic liquor shall be made or fermented by any person other than a person duly authorized under the laws of the United States to manufacture sweet cider, vinegar, non-alcoholic beverages, or spirits for other than beverage purposes.” For the reversal of the judgment, it is first insisted that the court erred in refusing to continue the case. It appears, however, that a motion for continuance was not made or filed until after the trial had been concluded and the verdict returned, which was, of course, out of. time. It is next insisted that the court erred in permitting the officer who made the arrest to testify to statements made by appellant at the time which, in effect, amounted to a confession. Appellant testified that the statements made by him to the officers were induced by fear and by the representation then made that it would go lighter with him to confess, and that he was not cautioned as to his right to remain silent, and that his statements might be used against him. According to the officers, the statements of appellant were freely and voluntarily made. The officers admit that they did not caution appellant as to his right to remain silent nor that his statements might be used against him. But the law does not require that this shall be done before such statements are admissible. Greenwood v. State, 107 Ark. 579; Dewein v. State, 114 Ark. 472. The court did give proper cautionary instructions-on the value and competency of confessions, and it must be presumed that, if the jury attached any weight to the alleged confession, 'this was done after the finding-had been made that the 'Confession was free and voluntary, for such was the requirement of the instruction on that subject. According to the officers, appellant was caught flagrante delicto making whiskey. He ran away at the approach of the officers, and was pursued into a nearby house, and upon the entry of the officers was found lying on a bed feigning to be asleep. He testified that the officers were mistaken in assuming that he was the man seen and pursued by them, as he had been asleep ■all the afternoon. The jury’s verdict has, of course, settled this issue of fact. This is the first conviction under this act of 1921 which has reached this court. Other sections of that act besides the one copied above make it unlawful to possess a still; to operate a distillery, which is defined; and to manufacture a still worm or still, and providing what shall be accepted as evidence in certain cases, and fixing the punishment for a violation of any of the provisions of 'the act. This act must, of course, be construed in the light, of the purpose of the General Assembly in enacting it. ■ 2 Lewis’ Sutherland, Statutory Construction (2 Ed.) § 456, p. 864; Endlich on the Interpretation of Statutes, § 27, p. 35; § 29, p. 37; Black on Interpretation of Laws, § 30, p. 56; Empire Carbon Works v. Barber & Co., 132 Árk, 1; Doles v. Hilton, 48 Ark. 305, 309; Gibboney v. Rogers, 32 Ark. 462, 465; State v. Jennings, 27 Ark. 422; Wassell v. Tunnah, 25 Ark. 101; McKenzie v. Murphy, 24 Ark. 155. Manifestly, it was not the legislative purpose to make it a felony merely to make a mash, wort or wash out of which it would be possible to manufacture beer, wine, distilled spirits, or alcoholic or fermented liquors; for it is a matter of common knowledge that mashes are quite frequently made out. of which such liquors might be made, with no thought or purpose of making such liquors. We are not controlled by the title of an act in determining its meaning, but we may look to it to ascertain the legislative purpose. The title of this act is, “An Act to Make it an Offense to Set Up or Operate a Distillery in the State of Arkansas, to Provide a Penalty Therefor, and for Other Purposes.” In the practical enforcement of the prohibition law it has been found difficult in many cases to prove that the mash, wort or wash, which was admittedly intended for an illegal use, had in fact reached, in the process of its manufacture, the alcoholic or intoxicating stage. The recent cases of Graham v. State, ante p. 363, and Foshee v. State, 149 Ark. 559, together with the cases therein cited, are illustrations of this difficulty. In those cases the jury was required to find, before convicting the accused, that 'the mash made for an illegal purpose had in' fact reached the alcoholic or intoxicating stage of its manufacture. This act of the Legislature was obviously designed to relieve the State of the necessity of making such proof, by making it illegal to make a mash, wort or wash fit for the distillation or manufacture of beer, wine, distilled spirits, or other alcoholic liquor. But the words, “fit for” must, of course, be interpreted and defined as meaning “intended for” the uses there prohibited, and not as meaning merely adapted to or capable of being used for such purposes. The first definition of the adjective “fit” given in Webster’s New International Dictionary is “1. Adapted to an end, object, or design; suitable by nature or by art; suited by character, qualities, circumstances, education, etc., qualified; competent; worthy.” The words, “suitable, appropriate, proper,” are given as synonyms of the adjective “fit.” And, as distinquished from its synonyms, it is there said that “fit implies adaptation, competence, or (frequently) conformity to a standard.” It must be confessed that the adjective “fit” and the phrase, “fit for” are susceptible of a wider meaning than we have given them; but the purpose of all statutory construction is to ascertain the legislative will, and, in' doing so, it is proper to consider the evil against which the legislation is directed. Empire Carbon Works v. Barber & Co., 132 Ark. 1, and the other Arkansas cases cited above immediately following this case. And, when thus viewed, the conclusion is reached that the legislative inhibition is against the making of a mash, wort or wash intended as preliminary processes in making distilled, alcoholic and fermented beverages. To give the statute the broad interpretation which would convert into a felony the making of a mash, wort or wash out of which a distilled, alcoholic or fermented liquor might be made, although such was not the purpose for which it had been made, would make the constitutionality of the act very doubtful. It is a settled rule to so construe a legislative act as that it may be held constitutional, if it is reasonably susceptible of such construction. Commissioners, etc., v. Quapaw Club, 145 Ark. 279,283; Booe v. Sims, 139 Ark. 595; Dobbs v. Holland, 140 Ark. 398. We think we have given this act, not only a reasonable construction, but the construction, which comports with the legislative' purpose in its enactment. : As thus interpreted, the act fits appellant’s case. Indeed, there can be no question about the use intended of the mash found in the still .by. the officers, for whiskey was actually being manufactured. The only real question is appellant’s connection therewith; and that question is settled by the verdict of the jury. Judgment affirmed.

Wood, J. On April 1,, 1920, W. A. Winters was indebted to Crutcher & Company in the sum of $4500, evidenced-by promissory note of that date, due November 1, 1920, and secured by a mortgage executed on the 8th day of April, 1920, in which the property mortgaged is described as “all tlieir right, title, claim and interest in the entire crops of cotton, cotton seed, and corn, which the party of the first part (Winter) will cultivate, and agrees to cultivate and produce, during this year on what is known as the Walter Gray place farms, or elsewhere in the county and State aforesaid.” Winter owned what is known as the Walter Gray place farms in St. Francis county. Winter leased these farms to negro tenants for the year 1920 and took their notes for their rents, amounting in'the aggregate to $2,800. Winter furnished to these tenants in the aggregate more than $4000 to enable them to make and gather crops. Winter was indebted to the First National Bank in a sum in excess of $6000, secured by a deed of trust on certain lands and by mortgage on chattels. On the 30th day of November, 1920, Winter deposited the rent notes mentioned above with the First National Bank as collateral security for his indebtedness to the bank. This was in addition to the other security which he had given the bank. At the time he deposited these notes as collateral, he did not obtain from the bank any more money or additional consideration. On the first day of December, 1920, Winter delivered to the First National Bank ten bales of cotton which had been grown by his tenants on the Walter Gray place farms. This suit was begun by a complaint in equity filed by Crutcher & Company, and at their instance an attachment was issued and levied upon the ten bales of cotton which had been delivered to the First National Bank. Crutcher & Company alleg’ed that they had a lien on the cotton by virtue of the chattel mortgage executed by Winter to them, and the First National Bank alleged that it had a right to the cotton because same had been delivered to them by Winter on the notes of his tenants which Winter had deposited with it as collateral. At the time the bank accepted these notes as collateral, it knew of the existence of the chattel mortgage which Winter had executed to Crutcher & Company. Before the attachment issued, the First National Bank had sold the cotton, and had received therefor the sum of $641:62. The above are the facts upon which the trial court rendered a judgment in favor of the appellees, from which the appellants prosecute this appeal. The decree of the court was correct. The language of the mortgage is: “ The party of the first part (Winter) has bargained, granted and sold,- and does by these presents bargain, grant and sell to said party of the second part (Crutcher & Company) their heirs, administartors and assigns, all their (his) right, title and interest in the entire crops of cotton, cotton seed and corn, which the party of the first part (Winter) will cultivate and agrees to cultivate and produce during this year on what is known as the Walter Gray place farms in the county, and State aforesaid.” The above language is not sufficient to create in favor of the appellants any lien on the cotton in controversy. For this cotton was cultivated and produced by the tenants of Winter and not 'by. Winter himself. But the language of the mortgage only conveyed to Crutcher & Company “all the right, title, claim and interest in the crops of cotton” which Winter himself “will cultivate and agrees to cultivate and produce” on the farms mentioned. Winter had no right, title, claim and interest in and to the crops of cotton grown on his farms by his tenants. These tenants were not share-croppers. They paid their rent in money, and not by sharing their crops with Winter. True, Winter, as the landlord, had a lien on the cotton grown on the farms during the year 1920 for the rent and supplies furnished the tenants by him for that year. Sections 6889, 6890, C. & M. Digest. But such lien did not give Winter any right, title, claim and interest in the cotton itself grown on his farms by his tenants. The crops grown by Winter’s tenants on Winter’s .farms belonged to the tenants and were only subject to his lien for rents and supplies which he furnished them. “A lien is neither property nor a debt, but a right to have satisfaction for a debt out of property, and is not the subject of sale or assignment.” Roberts v. Jacks, 31 Ark. 597. See also Buckner v. McIlroy, 31 Ark. 631. But, even if it could be said that- the language “all right, title, claim and interest” was broad enough to include future cotton afterward grown on Winter’s plantations and delivered to him by his tenants, nevertheless such cotton was not convej^d by the mortgage, for the reason that the language, as before stated, only purports to convey to appellants the entire crops of cotton which Winter himself would cultivate and produce. He did not cultivate and did not produce the cotton in controversy. The case of Delta Cotton Co. v. Ark. Cotton Oil Co., 80 Ark. 431, upon which appellants rely, does not sustain their contention. By the language of the mortgage in that case the mortgagor conveyed the “entire crop of cotton, cotton seed and corn grown and to be grown during the year 1903 on certain described real estate in the county of Jefferson and State of Arkansas.” No such language is contained in the clause of the mortgage under review. In the case of Blakemore v. Eagle, 73 Ark. 477, the deed of trust described the property conveyed, as fol lows: “The entire crop of cotton and corn that I (the mortgagor, Blakemore) may raise or cause to be raised during the year 1898 on my plantation known as the Blakemore place in Lonoke county, etc.” In that case Mr. Justice Biddick, speaking for the court in construing the above language, expressed the opinion that the cotton delivered to Blakemore by his tenants in the settlement of accounts for supplies furnished by him was not covered by the trust deed. While this language, as the opinion further shows, was not necessary to the decision in that case and was therefore obiter, nevertheless it is very persuasive as to the proper construction of such language. And in the later case of Delta Cotton Co. v. Ark. Cotton Oil Co., supra, Judge Battle, in the concluding part of his opinion, expressed the view that the court in Blakemore v. Eagle, supra, was of the opinion that the language of the deed of trust in that case was not sufficient to cover cotton raised and cultivated during the year by the tenants on the plantation of the mortgagor (Blakemore), and the court in making the distinction between the cases of Delta Cotton Co. v. Ark. Cotton Oil Co. and Blakemore v. Eagle, recognized that the latter case decided that the language therein contained was not sufficient to cover cotton raised by tenants on the plantation of the mortgagor. So we feel that our opinion and judgment in the case at bar is fortified by the opinions of two former very able judges of our court. In 11 Corpus Juris, § 178 (3), p. 505, the following language is used by the authors of the text: “As a general rule, where the mortgage purports to cover crops to be grown by the mortgagor, it will not include crops grown by his tenants, or other persons, but will cover the crops grown by him on the land designated. * * * But a mortgage on crops to be grown during a certain year on certain lands will include crops grown on the premises by tenants and share-croppers of the mortgagor.” Several cases are cited to support the first part of the text, and, to support the latter part of the text, our own case of Delta Cotton Co. v. Arkansas Cotton Oil Co., supra, is cited. We conclude that there was no error in the decree of the court, and the same is therefore affirmed.

Hart, J. This appeal challenges the correctness of a judgment of the circuit court dismissing the appeal of property owners from a judgment of the county court levying an assessment upon the real property in a drainage district to pay certain indebtedness. Drainage District No.' 24, Craighead County, Ark., was organized under the alternative system of drainage districts. Crawford & Moses’ Digest, §§ 3607-3655 inclusive. The commissioners of the drainage district held a meeting on the 4th day of September, 1920, in Jonesboro, Ark., at which all the members were present. The matter of the indebtedness of the district was taken up and discussed. Claims for engineering services, attorney’s fees, fees and expenses of the commissioners, fees paid an abstracter of title and certain printing expenses, amounting in the aggregate of $5,528.21, were allowed. After all the claims had been allowed, a resolution for a tax to be levied to pay said claims was adopted. A petition setting up the foregoing facts more in detail was filed in the county court by the commissioners. The commissioners further stated that the claims as allowed at their said meeting represented all of †1--lawful indebtedness of said district, and that a tax of 3 ■per cent, on the face of the assessed benefits would be required to pay said indebtedness. Tlie prayer of the petition is that the county court make an order approving the action of the commissioners and directing the levy of the tax. On the 12th day of November, 1920, the county court made an order approving the proceedings of the board of commissioners of said drainage district, 'and the levy of the tax by them on the real property in said drainage district. The county clerk of Craighead County was directed in the order to extend said taxes on a book specially procured by him for that purpose, and the collector was directed to collect the taxes in the year 1921. On the 25th day of January, 1921, Allen Morris and J. D. Haynes, property owners in said drainage district, filed affidavits for appeal duly verified and prayed an appeal to the circuit court from said order. The affidavits for appeal were duly examined by the county court, and an order was made on said 25th day of January, 1921, granting an appeal from said judgment of the county court to the circuit court. On the 7th da}*- of February, 1921, the commissioners of said drainage district appeared in the circuit court and fih'd their motion to dismiss the appeal of Allen Morris and J. D. Haynes. The circuit court granted the motion and dismissed the appeal. Allen Morris and J. D. Haynes excepted to the ruling of the court, and have duly prosecuted an appeal to this court. The correctness of the'judgment of the circuit conF depends' upon the construction to be given - to sections 3610 and 3617 of Crawford & Moses’ Digest. Sec. 3610 provides that, when the county court has established the drainage district, it shall appoint three owners of real property within the county to act as commissioners. After providing the form of oath the commissioners shall take, and how vacancies may be filled by the county court, the section continues as follows: “Upon their qualification, the board shall prepare plans for the improvement within the district, as prayed in tlie petition, and shall procure estimates from competent engineers as to the cost thereof. For this purpose the board may employ such engineers and other agents as may be needful, such engineers to give bond as required in § 3607, and may provide for their compensation, which, with all other necessary expenditures, including the services of such attorneys as the county may employ, shall be taken as a part of the cost of the improvement. If for any cause the improvement shall not be made, said cost shall be charged on the real property in the district, including railroads and tramroads, and shall be raised and paid by assessment in the manner hereinafter prescribed. ’ ’ Sec. 3617 reads as follows: “The county court shall at the same time that the assessment of benefits is filed, or at any subsequent time when called upon by the commissioners of the district, enter upon its records an order, which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement, with ten per cent, added for unforeseen contingencies; which tax is to be paid by the real property in the district, in the proportion to the amount of “the assessment of benefits thereon, and which is to be paid in annual installments, payable hot to exceed twenty-five }ier cent, for any one year, as provided in such order. The tax so levied shall be a lien upon all the real property in the district from the time that the same is levied by the county court, and shall be entitled to preference over all demands, executions, incumbrances or liens whatsoever created, and shall continue until such assessment, with any penalty and costs that may accrue thereon,, shall have been paid. The remedy against such assessment of taxes shall be by appeal, and such appeal must be taken within twenty days from the time that said assessment has been made by the county court, and on such appeal the presumption shall be in favor of the legality of the tax. Any owner of real property witliin the district may by mandamus compel compliance by the county court with the terms of this section. ’ ’ It will be noted that § 3617 requires that the remedy against the assessment of taxes as provided in the section shall be by appeal, and that such appeal must be taken within twenty days from the time the assessment has been made by the county court It is the contention of counsel for appellees that the appeal in the present case should be taken as provided in said section, and that, inasmuch as the appeal was not taken within twenty days as prescribed by the statute, the circuit court was right in dismissing the appeal from the judgment of the county court. We do not agree with counsel in this contention. Sec. 3617 provides that the county court shall make an order which shall have all the force of a judgment, providing that there shall be assessed upon the real property of the district a tax sufficient to pay the estimated cost of the improvement with 10 per cent, added for unforeseen contingencies. The section further provides that the. tax is to be paid in annual installments not to exceed 25 per cent, for any one year as provided in the order. The words, “estimated cost of the improvement,” mean the whole cost of constructing the drainage ditch including the overhead charges. When the plans of the commissioners for making the improvement are carried out, the preliminary expenses contemplated in § 3610 become a part of the cost of the improvement. They are then included in the words, “estimated cost of the improvement,” in § 3617, and that section means that the county court should make but one order for the assessment of the real property of the district for the payment of the cost of improvement to be paid in annual installments not to exceed 25 per cent, for any one year as provided in such order. It does not appear from the record in this case that the county court made an order under this section for the assessment of the real property of the district to pay the estimated cost of the improvement. Therefore, the part of that section providing that the remedy against such assessment shall be by appeal to be taken within twenty days from the time the assessment was made by the county court has no application to the facts presented in the record. It will be noted that § 3610 provides that, if for any cause the improvement shall not be made, its costs shall be charged on the real property in the district. This means that when the district is not established by the county court the preliminary expenses shall be charged on the real property in the district and shall be paid by assessment in the manner hereinafter prescribed. Sam v. Bogle, 122 Ark. 14. . Under the provisions of the act, if the improvement is constructed, the preliminary expenses become a part of the estimated cost of the improvement, and as such are embraced in the amount for which the county court makes an order for the assessment of the real property of the district under § 3617. When the district is not established by the county court, the preliminary expenses become a charge on the real property in the district under § 3610 and are to be collected by an assessment made by the county court in the same manner as when the improvement is constructed. The amounts allowed in the. present case are not perliminary expenses, as contemplated in. § 3610, because the district was established by the county court, and the charges in question will become part of the estimated cost of the improvement to be collected as provided in § 3617, as interpreted in this opinion. That section contemplates one assessment for the whole estimated cost of the improvement, and does not contemplate that the county court should make an assessment at one time for part of the costs of the improvement and another assessment at a later date for the remaining costs of the improvement. It follows that the commissioners had no right U present the claims to the county court and ask an assessment upon the real property in the district to pay tliem in advance of an assessment for the payment of the whole cost of the improvement. It is no answer to say that the commissioners might refuse to go ahead with the district and thus indefinitely delay the claimants in the collection of their claims. There is no allegation or proof to that effect in the record, and that question will not be decided until presented by a record calling for its decision. It is sufficient to say in the present case that the court had no authority to make the assessment under § 3617 for the reasons above stated, and that on this account the time for appeal given by that section has no application to the present case. The taxpayers had a right to appeal under the general statute regulating appeals from the county court, which is six months. Huddleston v. Coffman, 90 Ark. 219. It follows that the circuit court erred in dismissing the appeal of appellants from the judgment of the county court, and for that error the judgment will be reversed and the cause remanded with directions to the circuit court to overrule the motion of the commissioners to dismiss the appeal, and for further proceedings according to law.

Wood, J. The appellees instituted an action in the Logan Chancery Court against the appellant — the appellees J. W. Lovelady and A. Newman to recover compensation for the alleged taking of a right-of-way through their lands and damages to the severed parts and appellee J. C. Lovelady for damages to crops on account of the alleged failure of the appellant to put in safe and sufficient stop gaps, and also for damages to his land 'by reason of an alleged overflow washing the same and damages on account of the alleged failure of the appellant to maintain a dirt road-crossing in compliance with an alleged agreement to do so. The allegations setting forth the causes of actions in the respective complaints were all denied in separate answers by the appellant. The trial resulted in judgments in favor of each of the appellees against the appellant. Each of these judgments recited as follows: “Now on this day comes on for hearing this cause, copies the plaintiff in person and Eobert J. White, his attorney, comes also the defendant, by E. H. McCulloch, its attorney, and both parties announcing ready for trial, and the cause was submitted to a jury of twelve good and lawful jurors, who, after hearing the evidence, the instructions of the court, and the argument of counsel, retired to their room to consider of their verdict and after deliberation returned into court the following verdict.” Then follow' the verdict and judgments for the amounts returned by the jury against the appellant in each case. The transcript in this -case first sets out the pleadings. Then follows what purports to be “a bill of exceptions” showing that the causes were by consent consolidated and tried before one jury; that before the jury wás impaneled special demurrers to the complaints were filed in each of the cases, and that these demurrers were by the court ovérruled. Then follows a statement to the effect that the parties introduced the full testimony as reported by the official stenographer in the case. Then follows a deed from masters appointed by the United States District Court for the Western District of Arkansas in a case pending in that court between the St. Louis Union Trust Company and the Ft. Smith, Subiaco & Eastern Eailroad Company to the Commonwealth Trust Company, a Missouri corporation; and a deed from the Commonwealth Trust Company to the appellant. Then follow the judgments as above set forth. Then follow motions for a new trial and the orders overruling the same and an entry giving the ap pell ant ninety, days within which to prepare its bill of exceptions, followed by the recital, “and now comes the defendant and offers the above and foregoing as and for its bill of exceptions in all cases tried,' and asks that the same be signed and sealed and made a part of the record herein, which is accordingly done this 4th day of April, 1921.” Then follows what purports to be another “bill of exceptions,” in which is,set forth what purports to be the testimony of the appellees and also of appellant and of other witnesses in behalf of the respective parties; and also documentary evidence consisting of certified copies of certain proceedings had before the United States District Court of the Western District in the case of Union Trust Company v. Ft. Smith, Subiaco & Eastern Railroad Company. Then follows what purports to be certain instructions given by the trial' court on its own motion and the exceptions of the appellant to these instructions. Then follows the recital showing that the causes were argued and submitted to the jury. Then follows a call for a copy of the jury’s verdict and a call for the copy of the motion for a new trial, and concluding with the recital that the appellant was given ninety days within which to prepare and file Ms bill of exceptions and that the same was presented and found correct. This purported bill of exceptions concludes as follows: “In testimony whereof, I hereunto set my hand as judge of the 15th Judicial Circuit of Arkansas and of Logan Circuit Court, northern district thereof, on this............day of............, 1921- ’ ’ This bill is not signed. Then follows a certificate of the reporter that the above is a correct and complete copy of the evidence introduced at the trial of the above entitled cause as shown by his notes. Then follows a statement to the effect that “the foregoing bill of exceptions contains all the evidence heard or offered in the trial of the cause and all the instructions and all the proceedings had and done at the trial of the cause. In witness whereof the said counsel have hereunto set their hands this 'the ............ day of April, 1921.” The statement of counsel is left blank, unsigned. Then follows a notation by the clerk that the above was filed for record on the 22nd day of May, 1921. Then follows a statement to the effect that the defendant requested instructions and setting them forth and noting the rulings of the court in refusing to give the prayers, and concluding with the recital that “the above and foregoing instructions, together with the instructions reported and transcribed in the official stenographer’s report of the cases, were all the instructions asked for, given or refused by either side in these several cases.” Then follows another statement to the effect that the causes, after argument, were submitted and the following verdicts returned. Then follows another recital purporting to be “bills of exceptions” icontaining a call for the clerk to copy the special demurrer interposed in each of the cases and for the clerk to copy the records, deeds, etc., which were introduced in support of the demurrers referred to.. This is followed again by a recital to the effect that the demurrers were overruled, and that the causes came on for trial, and the plaintiff in each case presented his testimony, and with a call for the clerk to insert the testimony as reported by the official stenographer. Then follows a recital that the court instructs the jury and a call for the clerk to insert the instructions as reported by the official stenographer. Then follows the recital that the causes were again submitted and the verdicts returned, and a call for the clerk to copy the verdicts in each case. Then follows a call for the clerk to copy the motions for a new trial. Then follows certain sheets containing the instructions asked by the defendant with a notation on the margin thereof, “Befused — all of them.” •• Then follows a statement signed by the trial judge to the effect that the motions for new trials were overruled, and that the appellant saved its exceptions, was granted ninety days within which to prepare its bill of exceptions, and “offers the above and foregoing as and for its bills of exceptions in all cases tried, and asks that the same be signed, sealed and made a part of the records herein, which is accordingly done this 4th day of April, 1921.” The' transcript concludes with a certificate of the clerk that the annexed -and foregoing pages contain a true and correct transcript of the proceedings had, signed the 3rd day of June, 1921. It is impossible from the transcript of the record thus presented by the appellant to ascertain which of the entries was the bill of exceptions and, what it really contains. With the record in this confused condition, the appellees obtained a writ of certiorari to have the clerk of the Logan Circuit Court “certify the original bill' of exceptions as approved and ordered made part of the record by the trial judge.” In response to the writ of certiorari, the clerk has brought into the record the original bill of exceptions, which is a mere skeleton bill. It contains a call for certain records of the United States District Court for the Western District of Arkansas and certain deeds that were introduced in evidence to be copied by the clerk; and for the testimony that was introduced in the causes by plaintiffs and defendant and reported and transcribed by the official stenographer to be copied by the clerk, and for the instructions that were given by the court at the request of the plaintiffs to be copied by the clerk, and the instructions given orally by the court on its own motion to be copied by the clerk. It thus appears that the testimony and the instructions are not contained in the bill of exceptions. In Dozier v. Grayson-McLeod Lumber Co., 100 Ark. 244, we held, quoting syllabus: “Where a bill of exceptions recited: ‘The following testimony was introduced before the court and jury, which was all the evidence introduced by either party (insert testimony),’ meaning that the clerk should insert the official stenographer’s notes of the testimony, and the certificate of the stenographer shows that the testimony was subsequently transcribed, and it does not appear that the transcribed testimony was ever presented to the circuit judge for examination, it did not become a part of the bill of exceptions, and cannot be considered on appeal.” In the above case we said: “Before the bill of exceptions receives the signature of the judge, it must be allowed by him, and this means that it must be approved by the judge after an examination thereof and a finding by him that it is correct. The bill should be complete when it receives the signature of the judge, so that there is no further discretion relative thereto. ‘It must be its own evidence of all it contains. ’ ’ ’ The above case rules the present one. This bill of' exceptions shows that the testimony adduced by the parties and the instructions given by the court on its own motion and at the request of the appellees were not transcribed by the official stenographer and copied into the bill before the same received the signature of the trial judge. The causes were submitted to the jury upon the testimony and instructions of the court as shown by the recitals in the judgments, as well as in the “bill of exceptions.” Every presumption must be indulged in favor of the rulings of the trial court until it affirmatively appears from the record that its rulings were erroneous. No such showing is made by the record in this ease. The judgments are therefore affirmed.

McCulloch, C. J. The General Assembly of 1921, by special act approved February 18, 1921, (Act No. 143) created a road improvement district in Hot Spring County and named the commissioners thereof. Authority was conferred to improve a certain road or roads, to levy assessments to pay for the same and to issue bonds. A complaint was filed against the commissioners in the chancery court by an owner of real property in the district attacking the validity of the statute and seeking to enjoin proceedings thereunder. Other owners of real property in the district intervened. The chancellor granted a temporary injunction at the commencement of the action, and on July 14, 1921, the court entered an order or decree from which an appeal is prosecuted. The finding of the court is recited in the order to the effect that in a suit pending in the United States District Court for the Eastern District of Arkansas a temporary injunction had been issued at the instance of the Missouri Pacific Railroad Company and the Chica go, Rock Island & Pacific Ry. Co., plaintiffs in the suit, temporarily restraining the commissioners of this district from collecting any of the taxes assessed on the property of said railroad corporations, which the conrt found to be at least 40 per cent, of the entire taxes assessed against the property of the district, and the order of the court was that the “temporary injunction heretofore granted by this court in this cause against Road Improvement District No. 1, and the commissioners thereof, their agents, servants and employees, should be continued until the temporary injunction issued by Jacob Trieber, Judge of the United States District Court of the Eeastern District, Western Division of Arkansas, enjoining and restraining said commissioners and their servants, agents, and employees from the collection of taxes or penalties assessed against the Missouri Pacific Railroad Company and the Chicago, Rock Island & Pacific Railway 'Company, is fully and finally determined by said United States courts, or until the further order of this court.” There was a further order that the commissioners be enjoined from attempting to enforce the payment of the taxes for the year 1921 until the further orders of the court, and that the injunction bond executed by the plaintiffs in the action (appellees) “be and remain in full force and effect.” The first question which arises is whether or not this is a final decree from which an appeal will lie. We think that it is not such a decree, ‘and the appeal must be dismissed. An order granting or refusing a temporary injunction is interlocutory and not final. Miller v. O’Bryan, 36 Ark. 200; Ex parte Batesville & Brinkley R. Co., 39 Ark. 82. An order or decree extending an injunction for a fixed time, or until the happening of a certain event, may be final, but it appears clearly from the recitals in the decree that the court meant to continue control over the injunction grantéd in this case and over the subject-matter of the litigation. It was so declared in the decree, and the court continued in force the bond executed by plaintiff at the commence ment of the action, which shows that the injunction was not intended to be permanent nor the order final; it was merely interlocutory, and remains within the control of the court. It- is argued by counsel with much earnestness that a decree of this sort may work great injury unless there can be an appeal from it. This may be true, but the authority of this court is limited by the Constitution to jurisdiction over final judgments and decrees, and we are without power, to correct errors which occur during the progress of proceedings until after there has been a final decree from which an appeal can be prosecuted. If injury results, it is one merely incident to the litigation which cannot be corrected by an appeal in advance of a final decree. Appeal dismissed.

Hart, J. (after stating the facts). On the part of the plaintiff, it is contended that the two bridges contemplated in the act are four blocks apart, and that the construction of one has no relation to the other. Therefore counsel insists that the construction of the two bridges constitutes independent improvements, and that the act of the Legislature in creating.the district as a single improvement district was arbitrary, and the act is consequently void. The act is entitled, “An Act to Create a Broadway-Main Street Bridge District of Pulaski County,” and was approved February 5, 1919. Act 49 of the Special Acts of 1919, page 74. Séction 1 of the act creates the district, defines its territory, and names the commissioners. It authorizes the commissioners to build a bridge across the Arkansas River from a point on Broadway Street, in the city of Little Rock, to a point across the river in the city of North Little Rock to be selected by the commissioners. It also authorizes the construction of a bridge from a point on Main Street in the city of Little Rock to a point on the opposite side of the Arkansas River in the city of North Little Rock. The proposed bridges are four blocks apart, and the court will take judicial notice that there are connecting streets' between Broadway and Main Streets in the city of Little Rock and between the corresponding streets on the opposite side of the river in the city of North Little Rock. Under our former decisions bearing on the question, the statute can not be assailed on the ground that it embraces more than one improvement. The Legislature, in passing the statute creating the district, must have found, as a matter of fact, that two bridges were necessary to carry the traffic between the two cities, and that the business centers of the proposed district were so situated, with respect to the contemplated improvements, as to justify treating them as parts of a common enterprise and as a single improvement. With the expediency of the proposed improvement in its present form, we have no judicial concern. It is sufficient for us to say that the Legislature must have found that the construction of the two bridges was necessary to secure a convenient and useful means of approach between the two cities, and that by uniting them in a single improvement they could best promote the improvement of the property within the district. When the topography of the proposed district is considered in connection with the density of population, it can not be said that the action of the Legislature providing that the construction of both bridges should be undertaken and prosecuted as one improvement is arbitrary and void. We consider the question no longer an open one in this State, and that it has been settled by the decisions cited below as well as many other decisions of this court. Bennett v. Johnson, 130 Ark. 507; Easley v. Patterson, 142 Ark. 52; Johns v. Road Imp. Dist., 142 Ark. 73; Tarvin v. Road Imp. Dist. No. 1, 137 Ark. 355; and White v. Ark. & Mo. Highway Dist., 147 Ark. 160. It follows that the chancery court did not err in holding that the construction of the two bridges constituted, under the circumstances, a single improvement. In the third paragraph of the complaint it is alleged that the commissioners are arranging to employ agents or brokers to dispose of the bonds to be issued under the provisions of the act for the construction of the improvement, and that this action is in violation of the terms of the act. Section 9 of the original act reads as follows: “In order to do the work, the board may borrow money at a rate of interest not exceeding six per cent, per annum, may issue negotiable bonds therefor, signed by the chairman and secretary of the board, and pledge and mortgage all assessments for the repayment thereof. Said bonds shall not be disposed of at less than par on the basis of interest at the rate of six per cent, per annum. But, if they should bear a less rate, they may be disposed of at less than par provided that the district shall receive therefor and pay thereon the equivalent of not more than six per cent, per annum at par. “No bonds issued under the terms of this act shall run for more than thirty years; and all issues of bonds may be divided, so that a portion thereof may mature each year as the assessments are. collected.” Special Acts of 1919, No. 49 p. 74. The evident pbject of the Legislature by the enactment of this section was to prevent speculation in the bonds to be issued by the commissioners for the construction of the proposed improvement and to insure to those who must pay the bonds a dollar in currency for every dollar of bonds issued. Par means equal, and par value means a value equal to the face of the bonds. So it is generally said that a sale of bonds at par is a sale at the rate of a dollar in currency for a dollar in bonds. Under the statute, the commissioners were not authorized to sell the bonds at a discount by reason of any commissions or attorneys’ fees paid to the purchasers, or to their agents or attorneys or by reason of issuing bonds drawing interest from a certain date and allowing the purchaser the use of the money loaned for a period of time thereafter. Counsel for the plaintiff insists that under the statute the commissioners could not employ a broker to sell the bonds, regardless of the fact of whether he was the agent of the commissioners or the purchasers of the bonds. To support his contention, counsel cites the following: Uhler v. Olympia (Wash.), 151 Pac. 117; Davis v. San Antonio (Tex. Civ. App.), 160 S. W. 1161, and Whelen’s Appeal (Penn), 1 Atl. 88. In each of these cases the purchaser was allowed a discount by way of compensation paid it, or its agents, for commission, interest, or attorneys’ fees, and the court properly held, as a matter of law, that this constituted an evasion of the statute. In Spear v. Bremerton (Wash.), 156 Pac. 825, the statement of facts shows that a contract for the sale of the bonds was made with John E. Price & Company, whereby that company agreed to attend to all the proceedings necessary in the issuance of the bonds, and to take the bonds at a discount of five per cent. The court properly held that this was clearly an evasion of the statute, and the reason given was that, under a statute forbidding the sale of the bonds at less than par, the taxpayer could not be put to the burden of paying the purchaser of the bonds anything in the way of commission or bonus, or for attorney’s fees and expenses of printing, etc. So, too, in Bay City v. Lumberman’s State Bank (Mich.), 160 N. W. 425, the court held that under the facts stated the transaction was a sale and purchase of the bonds by the bank from the city, and that the payment of the commission to the bank by the city was a discount in violation of the statute. The bank in that case claimed that it merely acted as the agent of the city in selling the bonds, but the court held that under the facts the bank took over the whole issue of bonds itself and resold them to its customers, The court said that, after the hank took -over the bonds, the -city had no interest in the selling value of the bonds, and, if they had appreciated in value, the bank and not the city would have received the 'benefit. On the other hand, had they depreciated, the loss would not have fallen upon the city. The bank never made any report of its sales of the bonds to the city, and there was no accounting for the proceeds of the bonds that it sold. The bank simply took over the whole issue of the bonds and disposed of them as it saw fit to its customers. In the case of Paul v. Seattle (Wash.), 82 Pac. 601, relied on by counsel for the plaintiff, the charter of the city provided that no debt or obligation of any kind against the city should be created by the city council except by an ordinance specifying the amount and object of the expenditure. Therefore, the court properly held that the comptroller had no implied authority to contract with a broker to sell the bonds of the city. Another case relied on by counsel is Fort Edward v. Fish (N. Y.), 50 N. E. 973. In that case the bonds -contracted to be sold by the water board included accrued interest and amounted to $50,444.44, whereas the contract price was but $50,000. The court held that the executorv contract provided for the sale of the bonds at less than their1 par value, and was absolutely void because this was prohibited by the statute. So it will be seen that where the contract in express terms shows that the purchaser of the bonds is to .receive a discount, the courts hold as a conclusion of law that there has been an evasion of the statute. On the other hand, where the evasion of the statute appears from the facts stated and not from the contract itself, the courts hold, not as a matter of law, but as a matter of fact, that there has been an evasion of the statute. Whenever the facts show a subterfuge for an actual sale at less than par, or if the charges made are grossly unreasonable, or the transactioh is attended by bad faith, the courts will not hesitate to declare such transaction fraudulent and void. No allegation of bad faith on the part of the commissioners in seeking the service of a broker to sell the bonds is made in the complaint. The plaintiff merely alleges that under the statute the commissioners have no authority, either express or implied, to procure the service of a broker to sell the bonds or to aid them in the sale thereof. This contention is against the weight of authority on the question. The statute gave the commissioners express power to issue and sell the bonds at not less than their par value and to pay interest thereon at not moré than six per cent, per annum. The power to sell the bonds carriedwith it the implied authority to pay a broker to sell them, or to assist the commissioners in doing so, if this was reasonably necessary. The employment of a broker might be reasonably necessary in order to sell the bonds, and, if so, the expenses of his commission would be incidental to the express authority to sell and would fairly come within the scope of the main power. The authorities cited below sustain this view, and say that it is according to the weight of authority. State v. West Duluth Land Co. (Minn.), 78 N. W. 115; Manitou v. First Nat. Bank of Colorado Springs (Col.), 86 Pac. 75; Church v. Hadley (Mo.), 145 S. W. 8; Armstrong v. Fort Edward (N. Y.), 53 N. E. 111, and cases cited; Miller v. Park City (Tenn.), Ann. Cas. 1913 E 83, and Brownell v. Greenwich (N. Y. Ct. of Appeals), 22 N. E. 24. We believe that the above states the law applicable to this case, and that under the facts alleged in the complaint the commissioners would have the authority, if reasonably necessary to enable them to sell the bonds, to employ a third person as a broker for that purpose. Therefore, the court erred in overruling the demurrer to the third paragraph of the complaint, and in enjoining the commissioners from employing brokers to sell the bonds of the district. According to the allegations in paragraph, two of the complaint, the commissioners are about to borrow money from the banks of the city of Little Rock and to pledge the assessments for the security of the said loans. It is claimed by counsel for the plaintiff that the act only authorizes the commissioners to issue negotiable bonds at a rate of interest not exceeding six per cent. The complaint does not allege that the commissioners are going to pay more than six per cent, interest to the banks in the city of Little Rock from which they borrow money for the purpose of constructing the bridges. The bonds of the district would be nothing more than evidence of indebtedness of the district, and it could make no difference whether the commissioners borrowed the money in the city of Little Rock or from banks or other persons elsewhere. The issuance and sale of the bonds of the district is nothing more than borrowing money by the commissioners for the purpose of constructing the improvement. The only prohibition in the statute is that they shall get face value for .the amount borrowed and shall not pay more than six per cent, interest per annum. Consequently the court was right in sustaining the demurrer of the defendants to the second paragraph of the plaintiff’s complaint. From the views expressed, it results that the chancery court was right in sustaining the demurrer of the defendants to the second and fourth paragraphs of the complaint, and in these respects the decree will be affirmed. It also follows that the court erred in overruling the defendants’ demurrer to the third paragraph of the complaint, and for this reason the decree will be reversed and the cause remanded with directions to enter a decree sustaining the demurrer to the third paragraph of the complaint, and for other proceedings in accordance with the principles of equity and not inconsistent with this opinion.

Wood, J. This action was instituted by the appellee against the appellant for divorce and permanent alimony. The appellee alleged that she and the appellant were married in August, 1901, and lived together until February, 1919; that during their married life she had been a faithful and dutiful wife and gave the appellant no cause to desert her; that in February, 1919, appellant, without reasonable cause, wilfully deserted the appellee and has continuously absented himself from her since that time, and had not since his desertion contributed anything toward her support and maintenance. She prayed for absolute divorce, costs and attorney’s fees, and a reasonable amount of alimony. The appellant answered, and did not deny the allegations of the complaint as to the desertion and only contested the appellee’s claim for alimony. He set out in detail allegations as to his own financial condition and hers, and prayed that the complaint be dismissed, in so far as it asked judgment against him for the support and maintenance of the appellee. Upon the testimony adduced, the court made the following findings: “That the plaintiff and defendant were lawfully married in Wright County, Missouri, on the 25th day of August, 1901, and lived together as husband and wife continuously thereafter until on or about the 16th day of February, 1919; that on the 16th day of February, 1919, the defendant wilfully and without cause deserted the plaintiff, and ever since said time has continuously and without cause absented himself from the plaintiff and has not lived with her as his wife The court further finds that the plaintiff and the de fendants moved to Jackson County, Arkansas, in the month of September, 1913, and lived together ■ and resided continuously in said county until February, 1919, at which time the defendant left Jackson County and went to Randolph County, Arkansas, and that the plaintiff has resided continuously in Jackson County from September, 1913, up to the filing of this suit. The court further finds that the defendant is without property, but from the time he deserted plaintiff he was receiving a salary of $150 per month up to October, 1920, as a bookkeeper, at which time his salary was reduced to $100 per month; that the defendant has formerly for a number of years received a salary as public school superintendent and a teacher in the public schools of from $2,000 to $2,400 per year; that he is forty years of age; physically strong and in good health and is capable of earning a salary of $1,800 to $2,400 per year, The court further finds- that the plaintiff is without property except the sum of $800 in money which she has saved and a library consisting ' mostly of school text books of the value of about $500; that she is now earning a salary of $85 per month as a teacher in the public schools during the school term; that she is now past the age of forty-one years and has probably attained her greatest earning capacity, and that the defendant should contribute something from his earnings for her support and maintenance.” Upon these findings the court entered a decree of absolute divorce in favor of the appellee and awarding her alimony in the sum of $30 to be paid -monthly. From that part of the decree awarding the appellee alimony is this appeal. As to whether the appellant was financially able to pay to the appellee the sum of $30 per month for her support and maintenance was purely a question of fact. It could serve no useful purpose to set out and discuss the testimony bearing upon this issue in detail. We are convinced that the finding of the chancellor1 on this issue of fact is not clearly against the preponderance of the evidence. On the contrary, the preponderance of the evidence sustains the finding of the chancery court. Counsel for appellant contend that §§ 3508, 3509, and 3510 of Crawford & Moses’ Digest have been repealed by the act of March 28, 1893, p. 176 (§ 3511, C. & M. Digest). Sections 3508, 3509 and 3510 contain provisions relating to the allowance of alimony, the care and maintenance of children, and the enforcement of the court’s decree for alimony. These sections are taken from the Revised Statutes. The act of March 28, 1893, relates to an entirely different subject, and, although it contains a clause repealing all laws and parts of laws in conflict therewith, the sections above quoted concerning alimony are not in conflict with it. The act of March 28, 1893, relates entirely to the disposition and division of property upon a final judgment of absolute divorce granted to the husband or the wife, as the case may be. The act provides that where the divorce is granted the wife “the court shall make an order that each party be restored to all property not disposed of at the commencement of the action which either party obtained from or through the other during the marriage and in consideration or by reason thereof; and the wife * * * '* shall be entitled to one-third of the husband’s personal property absolutely, and one-third part of all the lands whereof her husband was seized of an estate of inheritance at any time during the marriage for her life, unless the same shall have been relinquished by her in legal form, and every such final order or judgment shall designate the specific proprety, both real and personal, to which such wife is entitled.” The concluding portion of the act relates to the sale and disposition of the property according to their respective rights under the act where the property is not susceptible of division and providing that the decree of the court making the division shall be a bar to all claims of the wife to dower in the lands and personalty of the husband. In Beene v. Beene, 64 Ark, 518, we said: “As to the question of alimony, that is settled by statute, see. 2517 of Sand. .& Hill’s Digest, (corresponding’ to sec. 3511 of Crawford & Moses’ Digest). The Legislature seems to have enacted the statute (act of March 28,1893) for the purpose of putting an end to all after-con troversies as to dower rights and to settle the matter when a divorce is granted dissolving the marital bonds. Hence the allowance to the divorced wife who’ is entitled at all, is exactly or substantially the same as would be her dower interest in case of the death of her husband; that is to say, one-third for life of all real estate of which he has been seized of an estate of inheritance at any time during the marriage, except such as she has relinquished in due form.” While the court in the opinion in the above case spoke of the amount allowed the divorced wife as “alimony,” it is obvious from the division that was made of the- property by the decree of the lower court that that court designated the amounts allowed as “alimony,” and this court inaptly referred to the allowance made as “alimony.” But it was clearly not the purpose of the court, by the use of the above language, to intimate that the sections of the revised statutes- concerning alimony above had been repealed by the act of March 28, 1893, (sec 2517, S & H Digest; sec. 3511, C. & M. Digest). No such issue was raised in the above case, and hence could not have -been properly decided. Nor do the later -cases of Shirey v. Shirey, 87 Ark. 175; Leonard v. Leonard, 101 Ark. 522; Crosser v. Crosser, 121 Ark. 64, (upon which appellant also relies) hold that the provisions of the law concerning alimony have been repealed by the act of March 28, 1893. On the contrary, our decisions show that there is a clear distinction between alimony and the statutory disposition of property made to the respective spouses under the provisions of the act of March 28, 1893. (sec. 3511, C. & M. Digest). See Pryor v. Pryor, 88 Ark. 307. The latter act was not intended as a substitute, nor does it expressly repeal the former provisions concerning alimony, nor are these provisions impliedly repealed by anything contained in the act of March 28, 1893. “Alimony is not a sum of money, nor a specific proportion of the husband’s estate, given absolutely to the wife, but it is a continuous allotment of sums payable at regular intervals for her support from year to year. And it continues only during the joint lives of the parties, or when there is a divorce from the bonds of matrimony until the wife married again.” Brown v. Brown, 38 Ark. 328; Kurtz v. Kurtz, 38 Ark. 119; Pryor v. Pryor, supra. That part of the act of March 28, 1893, under review here, has reference peculiarly to an allowance made in favor of a divorced wife out of the property of her husband in lieu of the unrelinquished dower rights that she would have had therein in case of the death of her husband, the divorce in her favor in such cases being treated as tantamount to his death. In other words, he is civilly dead to her when, without any fault on her part, he wilfully deserts and abandons her for the statutory period, and she, by reason of such abandonment, has obtained a decree of absolute divorce. See Beene v. Beene, supra. In such cases the act of March 28, 1893 (sec. 3511,o C. & M. Dig.) makes provision for her in the nature of dower, giving her an interest absolute in the personal property of her husband and one-third for life of all the lands of which he was seized of an estate of inheritance during the marriage. In determining whether or not the court shall grant alimony, and, if so, the amount thereof, the court may take into consideration the property that comes to the wife by the above statutory -provision, but it was never the design of the lawmakers, in the enactment of the above statute, to do away with the ancient and inherent common-law jurisdiction of chancery courts ovetr the subject of alimony, which jurisdiction is brought into our Revised Statutes and is preserved and digested under the sections, supra, concerning alimony. Reynolds v. Reynolds, 68 W. Va. 15; Ann. Cases, 1912-A 889; Stewart v. Stewart, 27 W. Va. 167; Carr v. Carr, 22 Gratt. (Va.) 168; 1 R. C. L. 877-878, Secs. 15, 16, 17. The decree is in all things correct, and it is therefore affirmed.

Smith, J. Appellant was convicted in the Greenwood District of Sebastian County under an indictment wbicli charged that lie “did manufacture and was unlawfully and feloniously interested in the manufacture of ardent, vinous, malt, spirituous, fermented, alcoholic and intoxicating liquors,” and has appealed. For the reversal of the judgment, he assigns numerous errors in the admission of testimony and errors in giving and refusing instructions. The testimony established the fact that a still had been in successful operation on an island in the Arkansas River, and that the island was in Crawford County. Clawson and some other officers made a search of the island for the still, and found it. Before crossing over on the island, they found' a barrel sunk down in the ground, covered over with brush. A tow sack was there, which had been used as a strainer, and which contained some of the mash and hops similar to that in the barrel. It does not appear through what processes the mash had gone, but the mash had fermented, and Clawson, who testified that he was familiar with the processes of manufacturing intoxicating liquors, stated that the liquor in the mash was intoxicating. He stated that it would make a hog drunk, and exceptions were saved to the admission of that testimony. On crossing the river the officers found, in the boiler of the still, a mash identical with that found in the hidden barrel, and the testimony shows that whiskey had been very recently distilled, as the boiler was hot. The evidence on the part of the State is to the further effect that appellant and a party of men with him were seen coming almost directly from the still; that one of them had a large milk can which gave off an odor just like that given off by the mash found in the barrel; and that appellant and those with him, as soon as they landed from boats on the Sebastian County side of the river, started at once with the- milk can directly towards the barrel, and that when they got to the road which runs to the river within a short distance of the barrel and saw the tracks made by the searching party they stopped and held a consultation, after which one Jackson, a member of appellant’s party, went on by near the barrel to the pump, and after pumping a few strokes stopped and looked around, after which he returned to his waiting companions, and they again, after a short consultation, went back to the river bank and sat upon a log, and when the searching, party went up to where appellant’s party was and informed them that the mash had been found, and that they were looking for the still, Carson, one of the appellant’s companions, jumped in one of the boats and was only restrained from leaving when the constable drew his pistol. We think this testimony sufficiently connects appellant with the crime there being committed to support the jury’s verdict of guilty. Numerous assignments of error relate to the admission of testimony in regard to the things found on the island and around the hidden barrel, and the conduct of appellant’s companions while being observed by the officers. But this testimony was all competent to show that the crime of manufacturing intoxicating liquors was being committed, and that it was an operation in which appellant and his ' companions were alike concerned. Appellant accounted for the peculiar odor of the milk can he and his companions were carrying by stating that it had been used for carrying fish-bait, and his companions corroborated that statement. No error was committed in permitting Clawson to testify that the mash would have made a hog drunk. This was but an emphatic way of stating that the mash was intoxicating. He had testified that he was familiar with the mash used in making whiskéy, and that the mash found was intoxicating, and to say that it would make a hog drunk was tantamount to saying that it was highly intoxicating, a comparison which it was not improper for him to make. Clawson was permitted to testify over appellant’s objection that a diligent search of the island was made, and that he did not think it possible for three men to have been hidden on the island while the searching party were there without being discovered. The significance of this testimony is that appellant attempted to show that when a member of the searching party fired his gun twice — thus giving the signal agreed upon to other members of the searching party that the still had been found— three men were seen leaving the island, the inference to be drawn from the testimony being, of course, that these escaping men were the guilty parties. Clawson’s testimony was competent to rebut this inference, and it was proper for him to state how thorough the search of the island had been. The instructions in the case were those usually given in prosecutions of this kind, except one numbered 3, dealing with the question of venue, which' reads as follows: “If you believe from the evidence that the offense, if any, was committed partly in Sebastian County, Arkansas, and partly in Crawford County, Arkansas, or the acts or effects thereof requisite to the consummation of the offense occurred in both counties, the court tells you that this court would have jurisdiction of the offense committed, if any.” No error was committed in giving this instruction. Appellant was not indicted for manufacturing whiskey, but for manufacturing intoxicating liquor, and the testimony on the part of the State was to the effect that the mash found in Sebastian County, where the venue was laid in the indictment, was intoxicating. The subsequent process of distillation may have been necessary to improve its palatability, or to make the mash info whiskey; but if the mash was intoxicating, as Clawson stated it was, then its manufacture was unlawful, although it had not become whiskey, as the inhibition of the statute is against the manufacture of ‘ ‘ any alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters, or medicated liquors, within the State of Arkansas.” Act No. 30, Acts 1915, p. 98. This feature of the case is similar to the question considered in the case of Foshee v. State, 149 Ark. 559. There an instruction told the jury that when the beer or mash had been made in the process of distillation of whiskey, it will be declared an intoxicating liquor, even before it passes through the process of distillation. In condemning this instruction, we there said: “The instruction given by the court in each case set out above was predicated upon the idea that when the liquid commonly called beer was produced in the process of the distillation of whiskey it will be judicially said that the liquor is an intoxicating liquor, even before the vapor or gas produced therefrom by the use of heat passes through a worm or coil. No such presumption can be indulged. In the case of Lowery v. State, 135 Ark. 159, this court declared, as a matter of law, that the running of the liquid through the worm or coil once had the effect of producing spirits or fermented liquor within the meaning of the statute prohibiting the distillation of spirits or fermented liquors. As to whether the liquid or beer before such treatment is intoxicating within the meaning of the statute preventing the manufacture of spirits or fermented liquor was a question for the jury. The instruction given took that question from the jury and was erroneous.” See, also, Robertson v. State, 148 Ark. 585; Marsh v. State, 146 Ark. 77; Patterson v. State, 140 Ark. 236. The court did not assume in the instant case that the mash or beer found in Sebastian County was in fact intoxicating, and the jury passed upon that question of fact. The court did refuse to give an instruction numbered 4, asked by appellant, which told the jury that they “could not convict the defendant unless you further find the defendant did, in Greenwood District of Sebastian County, convert said mash into an alcoholic liquor.” This instruction was properly refused, because it leaves out of account the question of the intoxicating character of the mash itself, which, as appears from the case just quoted from, was a question of fact for the jury where the distillation had not taken place. No error appears, and the judgment is affirmed.

Wood, J. The appellant obtained a judgment in the justice court against the' appellee in the sum of $77. The appellee filed the following schedule: “G. H. Harden, defendant in the above styled cause, states: That he is a resident of the 'State of Arkansas and the head of a family; that he is the owner of the following described property in -addition to the wearing apparel of himself and family, towit: “ Ninety-two dollars and ten cents due him from Brundidge & Neelly; $60.30 due said defendant from J. F. Dyson; about $235 due defendant at this time as salary from the counties composing the First Judicial District, and $25 cash on hand. $412.40. “That a writ of garnishment has been issued by A. Neelly, justice of the peace, against his property. That under the provisions of article 9 of the Constitution of the State of Arkansas, he claims as exempt from seizure under such writ of garnishment the following described personal property, being all of his aforesaid personal property: “$92.10 due him from Brundidge & Neelly; $60.30 due said defendant from J. F. Dyson; about $235 due defendant at this time as salary from the counties composing the First Judicial District, and $25 cash on hand. ‘£ That this writ of garnishment was obtained in a suit for debt by contract. “This, the 2d day of June, 1919. “G. H. Harden. “I, G. H. Harden, solemnly swear that the above and foregoing schedule embraces all of my property of every kind except my wearing apparel and that of my family, and that the personal property claimed as exempt does not exceed in value the sum of five hundred dollars, and’ that I am the head of a family, and a resident of the State oh Arkansas, and the claim of plaintiff is for debt by contract. "G-. H. Harden.” The appellant filed the following exceptions to the schedule: “First. That under the law the defendant, who is the duly appointed, qualified and acting court reporter of the First Judicial Circuit of Arkansas, is neither a laborer nor mechanic and therefore is not entitled to claim exemption of sixty days ’ wages. “Second. Defendant does not list any household furniture, furnishings and supplies which he owns, if he is at the head of a household. “Third. The defendant does not show in said schedule of exemptions a list of all moneys received by him during the sixty days for which he is claiming exemption of his wages, which list should show his salary for said time. “Fourth. Defendant does not state for what given period of time he is claiming exemption of wages. “Fifth. Defendant does not state in what way he is the head of a household, which would entitle him to claim exemptions. "Wherefore, plaintiff prays that his exceptions and objections to said schedule of exemptions be heard by the. court, and, finally, that said schedule of exemptions be rejected and he be permitted to proceed according to law in the collection of judgment due him. "Cul L. Pearce, Plaintiff.” The justice of the peace overruled the exceptions and issued a supersedeas. The appellant appealed to the circuit court. In the circuit court the appellee filed a motion to dismiss the exceptions, which the court treated as a general demurrer, sustained the same, and, appellant electing to stand on his exceptions, the court entered a judgment dismissing the appeal, from which appellant prosecutes this appeal. While.the exceptions of the appellant filed to the schedule of the appellee are not -artistically framed, the effect of these exceptions, when taken together, was to challenge the truth and accuracy of appellee’s schedule and to put in issue the declarations contained in said schedule. True, the exceptions were not as specific as they should have been, but no motion was made to make them more specific, and the court on demurrer erred in treating them as wholly defective and insufficient to raise an issue as to the truth of the allegations ’contained in appellee’s schedule. The effect of sustaining the demurrer was to deprive the appellant under the allegations contained in his exceptions from raising the issue as to the correctness of the appellee’s schedule, whereas the exceptions should have been treated as a denial of the allegations contained in the appellee’s schedule. It can be very plausibly contended that there is no denial in specific terms of the allegations contained in the appellee’s schedule, but, as before stated, the effect of these various exceptions is to deny that the appellee was entitled to the exemption claimed by him, and this was sufficient at least on demurrer to raise the issue and place the burden upon the appellee to prove by a preponderance of the evidence that he was entitled to have the property specified declared exempt from execution to satisfy appellant’s judgment. Blythe v. Jett, 52 Ark. 547; Porch v. Arkadelphia Milling Co., 65 Ark. 40-45. The exceptions of the appellant, in other words, should be treated as something more than- a mere demurrer or general objection to the form of appellee’s schedule. Appellant’s prayer to his exceptions show that appellant intended something more than a general objection to the form. Exceptions No.- 2 and No. 5, while not specifically denying, should nevertheless on- demurrer be treated as a denial of, the appellee’s allegation that he was the head of a family, and these, with the other allegations, should be treated as denying that the appellee was entitled to hold specific articles which he set up in his schedule exempt from appellant’s judgment. The appellant prayed “that his exceptions and objections to said schedule of exemptions be heard by the court.” The trial court, instead of dismissing the appellant’s exceptions-under the above prayer, should have treated them as raising an issue on the facts alleged in appellee’s schedule. The judgment is, therefore, reversed, and the cause remanded with directions to overrule appellee’s demurrer to appellant’s exceptions.

Smith, J. Appellant Owens was given a sentence of three years in the penitentiary upon a charge of assault with intent to kill, alleged, to have been committed by shooting at one Jimmie McDowell. The testimony on the part of the State showed that Owens and McDowell had cursed each other, following a conversation in regard to a check which Owens had given McDowell’s father and which had not been paid on presentation at. the bank on which it was drawn, and that between ten and eleven o’clock a few nights later McDowell and his brother met Owens in the road, that they spoke as they passed — thus showing their recognition of each other — and that when they had passed and were a short distance apart Owens commenced firing at them and fired his pistol three or four times in rapid succession. Owens was walking, and the McDowell boys were riding, and when the firing commenced they spurred their horses and ran as fast as the horses could go down the road, but they testified they heard the bullets hit the ground around them. Owens admitted firing the shots, but. denied that he was shooting at the McDowell boys. He testified that just as the boys passed him he saw an opossum and commenced shooting at it. The McDowell boys reported the incident to their father upon their arrival home.. The sheriff was notified, and the testimony is that, in attempting to arrest Owens, an exchange of shots occurred between Owens and the sheriff, and Owens escaped. The following day Owens was arrested, and at this trial denied that he had shot at the sheriff. G. W. McDowell, the father of the boys at whom Owens was accused of having shot, went to the scene of the alleged shooting, and there found some empty cartridges. He was asked, “State to the jury what you found.” And answered, “He (Owens) was something like fifteen feet from the boys when he was doing the shooting.” Objection was made; whereupon the court said, “Give the indications, Mr. McDowell, and let the jury draw the conclusions.” The witness was then asked, “Did you examine the place as to the tracks of Will Owens?” In overruling an objection to this question, the court said, “If you found tracks there, it will be all right.” The witness then answered: “There was bis tracks where he stopped and turned around in the road, and it was something like fifteen feet from where these horses commenced jumping.” It is insisted that this answer of the witness, in connection with the ruling of the court, constituted an expression by the court upon the weight of the testimony and amounted to an expression of opinion by the court upon a disputed question of fact! The objection made to the testimony at the time it was given was that the question and answer assumed the tracks were made by Owens. It is not denied that Owens made the tracks there, and the important point in the inquiry was to determine the distance from the place where the empty cartridges were found to the point where the stride of the horses increased, the purpose being, of course, to show the distance between the parties when the shooting commenced. It is undisputed that the horses jumped when the shooting began, and that they ran for some distance down the road. The court had, just immediately before this question was asked, admonished the witness himself to give the indications and let the jury draw the conclusions ; and we think the remark of the court set out above is not open to the objection now made to it. • Over the defendant’s objection the court gave an instruction reading as follows: “You are instructed, if you find from the testimony in this case, beyond a reasonable doubt, that Will Owens shot at Jimmie McDowell with intent to kill him, because McDowell had cursed him or used abusive or threatening .language, or because he was mad at him, you will convict defendant of assault to kill.” Objection to this instruction is made upon the ground that it is not predicated, upon the testimony. This objection is well taken if we accept as undisputed the. statement of Owens that he was not mad at McDowell, and had not cursed him, and did not shoot at him; but the testimony presents this issue of fact. The testimony of McDowell is sufficient to support a finding of the facts stated hypothetically in the instruction. Another instruction given over the defendant's objection'was numbered 4, and reads as follows: “You are instructed that, while it is necessary that you find the defendant had malice at the time of his shooting, you are further told, where no considerable provocation appears and a deadly weapon is used, malice is implied.” It is contended that it was not proper for the court to tell the jury that as a matter of law simply because a deadly weapon was used the defendant had malice and tlie jury could imply it. It will be observed that the instruction is more comprehensive than the objection to it would indicate. The instruction does not say that malice is implied from the use of a deadly weapon, but that “where no considerable provocation appears and a deadly weapon is used, malice is implied. However, the absence of that qualification under the issues here joined would' not call for the reversal of the judgment. No provocation or justification was claimed. The defense was that Owens had not fired at McDowell, and the case went to the jury on that issue. In the case of Taylor v. State, 82 Ark. 540, the court had before it for review an instruction very similar to the one here objected to. Mr. Justice Riddick, speaking for the court, said: “This instruction would be very objectionable if there were any circumstances that tended to justify or excuse the act of the defendant. To constitute the crime of assault with intent to kill, the assault must have been made with malice aforethought. But this instruction tells the jury that, if the defendant shot at Marsh with intent to kill him, they should convict him of the crime of assault with intent to kill, omitting any reference to malice. This would be unwise and prejudicial if there was anything to rebut the presumption of malice which arises from an assault with a deadly weapon with the intent to take life. If death had resulted from the act of the defendant, it is plain under our statute that the defendant would, as the evidence stands in the record, have been guilty of murder, for there is nothing in the evidence to justify or excuse the act. In a case of that kind the court does not have to submit the question to the jury of whether there was malice or not for the law raises it from the unexplained attempt to take life, as, under the facts in this case, if the jury found that the defendant shot at Marsh with intent to kill him, it was their duty to convict, and the instruction was correct. Kirby’s Digest, sec. 1765.” It is finally insisted that the court erred in refusing to charge upon the lesser grades of assault included in the indictment. But we think that error was not thus committed, for the reason that the testimony presented no such issue. Appellant either shot at Jim McDowell or he shot at the opossum. If he shot at McDowell intending to kill him, he was guilty of ah assault with intent to kill, although his aim was bad, and no physical injury was inflicted; if he shot at the opossum, he was not guilty of any grade of assault. This issue was properly submitted to the jury, and it was not error therefore to refuse to charge on the lesser grades of assault. No error appearing, the judgment is affirmed.

Smith, J. Appellee was the beneficiary in a certificate issued to T. J. Lewellen, her husband., by appellant, a fraternal insurance company. The certificate was issued on the 31st day of May, 1919, and the insured died on August 13, 1919. The premium was payable monthly on the first day of each month in advance, and there was a provision in the constitution and by-laws of the order that, if any member should fail to pay any monthly assessment by the last day of the month for which the assessment was due, the delinquent member should automatically stand suspended. The controlling question of fact in the case is whether the insured had paid two premiums or only one. The parties practically agree that if two premiums were paid the company is liable, whereas, if only one premium was paid, appellant is not liable. In fact, appellee, in stating the case, says: “The paramount issue, and really the only issue, in the case was as to whether the assured had paid his dues.” We do not set out the testimony bearing upon this issue, as it may be different upon' the retrial of the cause. In submitting the case to the jury the trial court, among other things, said: “If he failed to pay his dues, then he would stand automatically as suspended unless the association would voluntarily carry him on its boohs. On that feature of it, even though he had not paid his dues for the month of July, if they still carried him on the books and charged that dues to him and notified him that he was in arrears and made a demand on him, I think there was some evidence here to that effect, why that would be a waiver of that part’of the constitution and by-laws which says that a member is suspended for- the nonpayment of dues, but unless they did carry him on that way, if he failed to pay the dues for July he was suspended and dropped automatically and could not claim any right at all under the certificate. ’ ’ The only testimony on this feature of tlie case was that on August 6, 1919, the home office of the appellant company addressed to Lewellen, the insured, a formal notice that he was in arrears for his July dues. Objection was made to the introduction of this testimony on the ground that it was irrelevant and incompetent, inasmuch as the original notice was not produced or its loss accounted for. We think, however, that the introduction of the original of the notice would not have warranted the giving of the instruction set out above. It does not appear how the insured would have been reinstated if, in fact, he was delinquent. It may be that payment of the delinquent dues would have been sufficient, but no contention is made that any dues were paid after the date of this notice. It is certain, however, that the mere giving of formal notice of delinquency did not operate to reinstate the suspended member, as he was not thereby induced to take any action or to pay any .money. 2 Bacon’s Life & Accident Ins., 601. The certificate sued on was for the sum of $2,000, but it contained the provision that, if the member should die within six months after the delivery of the certificate to the member, the company would be liable to the beneficiary for only sixty per cent, of the amount of the certificate; and, inasmuch as the assured died within six months of the date of his certificate, it is conceded that the appellant company is not liable for more than $1200. The judgment rendered was for this amount. It is claimed, however, that this sum is excessive under another section of the policy; and such appears to be the fact. Section 7 of the policy reads as follows: “It is herein further provided that, for the purpose of creating and maintaining a reserve fund, that, on the death of the said member, tbe National Council shall retain fifty dollars of each one thousand dollars of this certificate, less one dollar per thousand for each year this certificate shall have remained in force.” This certificate is for $2,000, and would have been enforceable for that amount if the assured had not died within six months of the date of his certificate. The beneficiary is not entitled to the credit of the dollar per thousand as the certificate had not been in force for one year. The necessary effect of this section of the policy is therefore to' further reduce the amount of the recovery by a hundred dollars (in the event liability is properly found upon the retrial of the cause). Other assignments of error are argued, but, as they may not arise on the retrial of the cause, we do not discuss them. For the error in giving the instruction set out above, the judgment is reversed, and the cause remanded for a new trial.

McCulloch, C. J. On March 17, 1921, appellant applied to the building inspector of the city of Little Rock for a permit to erect a frame building on a certain lot in this city, said lot not then being within the fire limits as fixed by existing ordinances of the city. The structure was to cost approximately $1,000, and on the same day the permit was issued to appellant, signed by the building inspector and countersigned by the city collector, in accordance with the provisions of the ordinance. At that time there was pending before the city council a proposed ordinance extending the fire limits so as to include the lot mentioned in the permit issued to appellant. On the following Monday night, March 20, the city council passed the new ordinance, which was approved by. the Mayor and published, and on March 23 appellant leased the lot mentioned in his permit from the owner, one Dodd. -The written contract of lease between the parties contained the stipulation that “if the city of Little Rock revokes permit ■to put up building, this contract is void. ’ ’. The building contemplated by appellant would be contrary to the provisions of the ordinance creating the fire limits, which prohibits the 'construction of frame buildings. Later the city council revoked the permit, and this action was instituted by appellant in the chancery court of Pulaski County to restrain the city and its officers from interfering with the construction of the building. Appellant alleges in his complaint that, in contemplation of the construction and erection of the building, he purchased material of the value of $100 and that he leased the lot for a period of 5 years, obligating himself to pay $30 per month, and that he paid the sum of $180 in advance. At the hearing appellant proved that he had entered into a verbal contract with Dodd, the owner of the lot, whereby he agreed to lease the .lot on the Saturday before the city council enacted the ordinance on Monday, but that the lease was not reduced to writing and signed and delivered until after the enactment of the ordinance. There was no proof, so far as the testimony is abstracted, tending to show that appellant had incurred any other liability. So, as the case stands, appellant is insisting that the permit issued by the city authorities is irrevocable, and that his right to construct the building is unaffected by the ordinance subsequently passed. The statutes of this State authorize city councils of all municipalities to “regulate the building of houses; to make regulations for the purpose of guarding against accidents by fire, and to prohibit the erection of any building or any addition to any building unless the outher walls thereof be made of brick- or mortar, or stone and mortar; and to provide for the removal of anv building or addition erected contrary to such prohibi tion.” Crawford & Moses’ Digest, § 7544. Another statute, applicable to cities of the1 first class, provides that such municipalities “shall have the power to regulate the building of houses, and to provide that no house or structure shall be erected within the city limits except upon a permit to be issued by such officer or •officers as the city council shall designate, and to provide that no permit shall be issued for the building of any house or structure deemed to be unsafe, insanitary, obnoxious, or detrimental to the public welfare.” Id. § 7754. This statute also authorizes such municipalities to “order the removal or razing of, or to remove or raze, any buildings or houses that have become, in the opinion of the city council, dilapidated, unsightly, unsafe, insanitary, obnoxious or detrimental to the public welfare.” Id. § 7755. Ordinances of the city of Little Rock have been enacted pursuant to this legislative authority. The chancery court dismissed the complaint for want of equity, and an appeal is prosecuted to this court. A permit to build a house in the city is, under the statutes and ordinances of the city, issued without regard to its situation, either in or out of the fire limits. The officers of the city have no authority to issue a permit in conflict with the valid ordinances of the city relating to fire limits and the construction of buildings, nor can such officers restrict the lawful authority of the city by issuing. permits. Conceding that a permit is irrevocable, it does not follow that the issuance thereof is a bar to the exercise by the city of its power in extending the fire limits so as to include the lot on which the building is to be erected. The permit was merely the granting of a privilege, and did not constitute a contract between the city and appellant. No vested rights were acquired by obtaining a permit, and none arose in the acquisition of property or preparations for the construction of the building prior to the enactment of the new ordinance, so we do not have to deal here with the question of displacement of vested rights by the pass age of tlie ordinance extending the fire limits. The city council was clearly within its powers in passing the new ordinance, and, as before stated, appellant was not exempted from its operation by the fact that he held a permit to construct a building on the lot in question. The cases cited by learned counsel for appellant relate merely to the question of the irrevocability of a permit issued by a municipality, and do not reach the question of the power to extend the fire limits after the issuance of a permit. Our conclusion is that the decree of the chancellor was correct, and the same is affirmed.

Humphreys, J. Appellant was indicted and tried in the Jefferson Circuit Court for murder in the first degree for shooting and killing one King Waters, found guilty of murder in the second degree, and as a punishment therefor sentenced to serve a period of twenty-one years in the State penitentiary, from which judgment and sentence an appeal has been duly prosecuted to this court. Appellant’s first insistence is that the evidence on . behalf of the State tended to establish murder in the first degree, and that adduced on behalf of appellant tended to establish a justifiable homicide, and, for that reason, the evidence is insufficient to support a verdict for murder in the second degree. This court is committed to the doctrine that no prejudice can result to a defendant if convicted of a lower degree of homicide than warranted by the evidence. Allen v. State, 37 Ark. 433; Bruce v. State, 68 Ark. 310; McGough v. State, 113 Ark. 301; Lasater v. State, 133 Ark. 373. If, therefore, the evidence is sufficient to support a verdict for murder in the first degree against appellant, he can not complain because a verdict of murder in the second degree was returned against him. It is admitted by appellant and his brother that he and his brother, Nick Webb, shot King Waters, their tenant, in a field being cultivated by him; that they shot him in the legs; that he, appellant, fired only one shot with a pistol, 32-caliber, which at the time contained nine cartridges, and his brother one shot with a pump gun; that his brother had about a half box of shells with him, a part of which was loaded with buckshot; that, at the time they fired the shots, they were standing near a thicket, and the deceased, King Waters, had approached them to a point about 75 yards distant; that Waters grabbed his knees . and began to stagger around; that neither waited to see the result, but passed through the thicket and to their car, which had been left at their father’s, and then went home and telephoned to the officers at Pine Bluff; that Nick Webb and King Waters had a difficulty the day before the tragedy occurred, of which appellant had been informed; that the difficulty was discussed just before starting to that part of their farm cultivated by Berry Webb which adjoined that part cultivated by King Waters. The evidence on the part of the State tended to show that King Waters was shot down while examining a piece of wet land to ascertain whether it was dry enough to plow; that he stated several times during the short time he survived that he did not see or know who fired upon him; that three shots were heard, two being from a pistol and one from a shotgun; that eleven shot entered Waters’ body between his knees and groins — the two highest being larger than the others, the highest entering the groin and supposed to be the fatal shot, as it severed an artery; that, after being shot, Waters staggered around considerably before falling; that his pistol, which he carried in a scabbard, was found on the ground near him with loads in every chamber; that, upon examination, a place in the thicket was observed where some one had apparently stood and whittled, and at or near which an empty 32 pistol shell wás found. The testimony adduced on behalf of appellant tended to show that they took the loaded weapons along with them on the visit to the farm on account of the difficulty the day before and for protection in ease an attack was made by King Waters upon Nick Webb; that, in passing around the thicket on the side of the field cultivated by Waters, en route to that part of the land cultivated by Berry Webb, they were discovered by Waters, who immediately advanced upon them with drawn pistol, cursing and abusing them, and, when ordered to stop, instead of doing so, fired upon them, when a shot was fired by each in succession in necessary self-defense. If the evidence introduced by the State was believed by the jury, it was sufficient to sustain a verdict for murder' in the first degree. If, however, the jury disregarded the State’s evidence tending to establish an assassination, they were not necessarily driven, under the evidence in this case, to the conclusion that the homicide was justifiable. The jury may have believed that part of appellant’s testimony to the effect that they were walking around the thicket and were in plain view at the time the fatal shot or shots were fired, and yet may have concluded that the killing was unnecessary. They might well have argued that, on account of leaving the scene of the tragedy immediately, appellant and his brother had fired upon Waters, without sufficient provocation or justification, for, had they fired in necessary self-defense, in all probability they would have remained to assist the wounded man or to have explained the details of the tragedy to the first who might appear on the scene. In this event, malice, a necessary essential in second degree murder, would arise by implication from the manner and circumstances of the killing. The law implies malice where one purposely kills another with a deadly weapon without provocation. McAdams v. State, 25 Ark. 405; Vance v. State, 70 Ark. 272. In the course of the trial, over the objection and exception of appellant, the court refused to permit Nick Webb to testify concerning the trouble which occurred between him and King Waters the day before the tragedy. He was permitted to state that they had a difficulty, and that he communicated this fact to his brother, but was not permitted to go into details concerning it. Appellant insists that the court erred in excluding this evidence, because, under the theory of the State that he was present, aiding- and abetting, or present and ready and consenting to aid and abet Nick Webb, he was entitled to have all facts go to the jury in mitigation or exculpation of Nick Webb. If this contention were true, the case could not be reversed in the state of this record on that account, for the reason that the record fails to show what his brother would have said concerning the details of the trouble if permitted to prove them. Unless the excluded testimony of a witness is offered and set out in the record, it is impossible to determine its materiality to the issue involved. This court said in the case of National Life & Accident Ins. Co. v. Henderson, 133 Ark. 599, that “objection to the exclusion of testimony would not be considered on appeal, in the absence of showing what the testimony would have been.” The same announcement was made in St. L. S. W. Ry. Co. v. Myzell, 87 Ark. 123, ánd Boland v. Stanley, 88 Ark. 562. Appellant insists that instructions numbered 10 and 11, given by the court, as to the necessity of an accused to do .all in his- power to avoid a killing or to avert the necessity therefor before resorting to force in his own defense, are fatally defective, because they did not define the test by which an accused may determine the danger and necessity for acting. It is true this phase of the law of self-defense was not included in the instructions referred to, but was thoroughly covered in the instruction numbered 5, requested by appellant and given by the court. There was no conflict between instruction No. 5 and the two instructions given by the court. "Where there is no conflict between instructions, it is proper to read them together to ascertain whether the whole law in the case is correctly declared. Ward v. Blackwood, 48 Ark. 396; Burke v. Sharp, 88 Ark. 433; Yellow Rose Mining Co. v. Strait, 133 Ark. 206. No error appearing, the judgment is affirmed.

McCulloch, C. J. Appellee presented in the probate court of Miller County a claim for allowance against the estate of appellant’s intestate, and the case was tried in the circuit court on appeal, resulting in a verdict and judgment in favor of appellee for the allowance of the claim. The claim of appellee is for the sum of $500 as commissions for services alleged to have been performed by him for the decedent in the purchase of a farm from W, W. Paup. There was no attempt in the trial below to establish an express agreement between appellee and appellant’s intestate for the payment of a commission, but the testimony adduced by appellee tended to prove that decedent engaged his services in an effort to buy the farm from Paup, that appellee’s services procured the purchase from Paup, which was duly consummated, that the price of the farm was about $50,000, and that the amount sued for was reasonable compensation for the services rendered. These issues were submitted to the jury upon correct instructions, and the verdict settled the issues in appellee’s favor. Error of the court is assigned in permitting witness Tom Hinton to testify concerning a conversation between appellee and Paup in the absence of appellant’s intestate. The witness testified concerning interviews, at which he was present, between deceased and appellee, and between deceased, appellee and Paup, and also between appellee and Paup. The witness testified that he had two conversations with decedent in regard to appellee’s services in this matter, in the first one of which witness advised decedent to get appellee to handle the matter with Paup, and in the second conversation decedent stated to witness that appellee was working on the matter and “was still trying to get it lined up. ” The witness also testified to being present at a conversation between decedent and Paup and appellee, in which Paup said, in connection with stating the price, that he would not pay any commission on the sale. The witness was then permitted to testify, over the objection of appellant, that he was present at an interview between appellee and Panp concerning the purchase of the farm for appellant’s intestate. Counsel for appellee offered this testimony merely for the purpose of proving that appellee was attempting to purchase the farm for decedent, and not for the purpose of proving the statements of Paup and appellee to each other. The court admitted the testimony for'that purpose alone, and we are of the opinion that there was no error committed in that respect. There was no attempt to bind appellant’s intestate by the statements made by appellee and Paup to each other, but this testimony tended to establish the fact that the efforts of appellee brought about the purchase of the farm from Paup and that the commission was earned. The sale of the land by Paup was consummated by a joint deed to appellant’s intestate and to C. R. Crank and Allen Winham. Appellant offered to prove by Crank and Winham that they were interested with appellant’s intestate in the purchase of the farm, and that appellee had not presented any bill to them for compensation for making the purchase. The court was correct in excluding this testimony, for the reason that there was no contention on the part of appellee that he had performed the service at the instance of or for the benefit of Crank or Winham. The fact that he had not made any claim against those gentlemen for compensation had no probative force in determining whether or not appellee’s claim against the estate of the decedent Williams was well founded. It was developed in the testimony that, shortly after the consummation of the sale, Paup paid appellee the sum of $500, and the contention of appellant was that this was paid as commission on the sale, that the payment thereof demonstrated the fact that appellee was attempting to act for both parties, and was claiming a commission from each of them. Appellee and Paup each testified that the payment of $500 by the latter to the former was not as a commission on this sale, but was for other services; and the court submitted that issue to the jury in instructions which told the jury that, if appellee was acting’ as agent for both parties in the transaction, he could not recover against the estate of Williams unless there was an express promise on the part of Williams to pay a commission with knowledge of the fact that appellee was acting as agent for both parties; but that, if the payment of $500 was not made as compensation for services in making this sale, it would not affect appellee’s right to recover compensation from appellant’s intestate. We find no error in the proceedings, and since the evidence is legally sufficient to sustain the verdict, the judgment must be affirmed, and it is so ordered.

Wood, J. This is an action for damages brought by the appellee against the appellant Ben Parker, C. G. Barton and H. Fletcher to recover of Parker, the principal, and the others as sureties on his bond, for breach of contract. The appellee set up in substance that he was the owner of the land described in the contract, and that on the 22nd day of July, 1916, he entered into a contract with Parker whereby the appellee conveyed and sold to'Parker all the merchantable timber upon the 240 acres of land with the privilege of removing the same until the first day of November, 1917; that Parker agreed that he would cut and slash all the timber upon the land “while the leaves were green if possible during the season of 1916 and not later than the year 1917;” that as a guaranty of the performance by Parker of his part of the contract O. G. Barton and H. Pletclier joined with Parker in a bond of $1,000 .conditioned that Parker would perform the contract. The appellee alleged a failure of performance on the part of Parker by which he had been damaged in the sum of $2,000. He prayed that he have judgment against Parker and the other appellants in the sum of $2,000 and against Parker in. the sum of $1,000. The appellants denied the allegations of the complaint, and they set up by way of an affirmative defense that, while Parker was complying with the terms of his contract, he was notified by one Max Levy and E. J. Badinelli to discontinue cutting on the lands described in the contract, they claiming to be the owners of the lands, and they forbade Parker from cutting on the same; that Parker notified the appellee of the demand made by Levy and Badinelli, and the appellee told him (Parker) to go ahead and cut the timber, but this Parker could not do in safety to himself, and therefore he discontinued operations on the lands. Parker made his answer a cross-complaint and asked judgment against the appellee in the sum of $600 and the sureties prayed that the complaint as to them be dismissed. Before the case went to trial Parker died, and thereafter as to his estate the ease was revived and progressed in the name of his administratrix. The appellants offered to introduce testimony to prove that Max Levy notified Parker to discontinue cutting timber on some of the land described in the contract ; that Max Levy and E. J. Badinelli claimed to own these lands; that this fact was communicated to the agent of the appellee, and that nothing was done by appellee to relieve the situation; that at that time not more than one-half the timber embraced in the contract had been cut down and removed, and that there was enough timber left to more than pay for the cutting of the timber on all the lands embraced in the contract; that by reason of this notice to Parker he discontinued the cutting of the timber. Appellants also offered to prove that, in a conversation between Parker and a third party when the appellee was not present, it was said that the cost of the ■cutting and 'slashing of the timber would not have amounted to the sum for which the jury returned a verdict and for which judgment was rendered against the appellants. The court excluded this testimony, and the appellants duly excepted. The appellants requested the court to submit the issue to the jury as to whether or not the appellee was the owner of the lands and also the issue as to the cost of cutting and slashing the timber under the contract as shown by the offered testimony. The court refused those prayers, to which rulings the appellants objected and duly excepted. The court, in instructions on its own motion, after defining the issues raised by the pleadings and the uncontroverted testimony, told the jury that the only question left for their determination was what would have been the reasonable cost of cutting and slashing the timber on the 320 acres of land in section 8 described in the contract during the year 1917? That the plaintiff was not asking a verdict against the estate in a sum exceeding $1,000, and that in no case could they find against the sureties in a greater sum than this with interest from January 1, 1918. The appellants duly excepted to the rulings of the .court. The jury returned a verdict in favor of the appellee in the sum of $1,000. Judgment was entered in favor of the appellee for that sum, from which is this appeal. There is no error in any of the rulings of the court. The appellants offered to prove by a certain witness that, after the contract herein involved was made, the witness entered into a contract with Parker to remove the timber, and appellants also offered to prove by this witness, and from the contract entered into between him and Parker, as to what would be the cost of cutting and removing the timber from the lands. Tim appellee was not present when the alleged contract was entered into between Parker and the witness, and there fore was not ¡bound by any contract or conversation that Parker may have had with witness. The offered testimony was purely hearsay. The court likewise ruled correctly in refusing to allow appellants to submit to the jury the issue as to whether or not the appellee was the owner of the lands described in the contract, and as to whether or not Parker was prevented from performing his contract by the interference of third parties or strangers to the contract. The testimony' offered by the appellants did not tend to prove that they were ousted from the lands by the appellee, nor that appellee had done anything to obstruct them in the performance of the contract. There is no testimony tending to prove that the appellee was in any manner responsible for the acts of the third parties who claimed to own the lands. That appellants lent “a too diligent ear” to the claims of these parties, and voluntarily quit their work and abandoned their contract because of such claims is their own fault and not the fault of the appellee. Their right of possession under him had not been challenged by third parties in a manner to make it incumbent on the appellee to offer assistance or protection. Parker, therefore, when he abandoned his contract, violated the same, and he and his bondsmen are liable for the resultant damages. See Ingham Lumber Co. v. Ingersoll, 93 Ark. 447, and cases there cited. Since there is no error, the judgment must be affirmed.

McCulloch, C. J. Mrs. Nannie E. Sumpter, one of the appellees, was the owner of certain rear estate in the city of Hot Springs, including a lot described as lot 1 in block 112, known as the Sumpter House property, and she mortgaged it to appellant to secure an indebtedness of $14,000, evidenced by promissory note. Appellant obtained a decree of the chancery court of Garland county foreclosing the mortgage, the in debtedness at -that time, including accumulated interest and costs, being the aggregate sum of $17,100, and the property was ordered to be sold by a commissioner of the court. At the sale by the commissioner, William Sumpter became the purchaser of lot 1, block 112, for $17,100, the full amount of the decree, and executed á bond for the purchase price with Mrs. Nannie E. Sumpter and O. H. Sumpter as sureties. The sale was duly reported to the court and was confirmed, and the commissioner was ordered to execute a deed to William Sumpter, the purchaser, but he failed to pay any part of the purchase price, and the deed has never been ex: ecuted. In this state of the matter appellant caused an execution to be issued on the bond, which, under the statute (Crawford & Moses’ Digest, § 4306), had the force and effect of a judgment. The execution was levied on lot 1, block 112, as well as other property of William Sumpter and also of Mrs. Nannie E. Sumpter. Lot 1 in block 112 was sold first; and appellant became the purchaser for the sum of $10,000. Later other property of William Sumpter and Mrs. Nannie E. Sumpter was sold under the execution for various sums. After the time for redemption from the execution sales had expired, the sheriff made deeds to appellant, who then instituted an action in the chancery court of Grarland county, alleging that it was in possession of the Sumpter House property under its said purchase, but that appellees, Mrs. Nannie E. Sumpter and O. H. Sumpter, were interfering with its said possession by' threatening to bust its tenants, and also alleging that the possession of the other property purchased by appellant under execution sales was wrongfully withheld by said appellee. The chancery court confirmed the various sales under execution and granted the relief prayed for by appellant, but on appeal to this court the decree was reversed and the cause remanded with directions to transfer the cause to the circuit court for further proceedings. We held, in substance, that the chancery court had no authority. to confirm the sales of real estate made by the sheriff under execution; that the present appellant had rightfully obtained possession of the Sumpter House property by the attornment of Mrs. Sumpter’s 'tenant, but that appellant was not entitled to the relief in a court of equity by injunction to protect its possession against trespasses remediable at law, and that, as to the property other than the Sumpter House property, the action was merely one to recover possession, and that the remedy was complete at law. Sumpter v. Hot Springs Savings, Trust & Guaranty Co., 140 Ark. 91. Upon the remand of the cause, it was transferred to the circuit court, and there was a trial before the court sitting as a jury, which resulted in a judgment in favor of appellees. The circuit court decided that appellant had, by its purchase of the Sumpter House property at the execution sale, acquired only the equitable title of William Sumpter, and was entitled to convert it into a legal title by paying the purchase price bid by William Sumpter and securing a deed from the commissioner of the chancery court. The court also held that the purchase by appellant of the Sumpter House property constituted a satisfaction of the judgmen on which all of the execution sales were based, and that the sales of the remainder of the property were void for that reason. The effect of the circuit court’s decision was to hold that appellant, by its purchase of the Sumpter House property for the sum of $10,000, merely acquired the right of William Sumpter to complete his purchase by paying the amount of the original bid and that 'this extinguished the judgment. We are of the opinion that the decision is based upon an erroneous conception of the effect of the purchase by appellant. Counsel for appellees defend the rulings of 'the court on the doctrine announced by this court that a sale of mortgaged' real estate under a judgment for the debt secured only operates as a sale of the equity of redemption. Rice v. Wilburn, 31 Ark. 109; Whitmore v. Tatum, 54 Ark. 457. It is by no means certain that there is an analogy between the case of a salo under execution for a mortgage debt and one where there has been a decree of foreclosure, and the sale, as in this case, is on an execution issued on a statutory bond for the purchase price having the force and effect of a judgment. But, treating the analogy as complete, it does not follow 'that the trial court was correct in holding that in this case appellant only acquired an equitable title and its purchase at the sale extinguished the judgment. The original mortgage lien held by appellant was merged into the decree of foreclosure, and, when the purchaser at the sale executed the statutory bond for the purchase price, there arose in appellant’s favor two remedies — one to have the sale set aside and the property resold, or to proceed, as was done, to enforce the remedy under the bond. It was a case of a person having two remedies, but entitled to only one satisfaction. There could, however, be no satisfaction short of a payment of the entire debt, the obligation of the bond being for that amount. Appellant was entitled to receive the full amount of its debt, whether it came through he channel of the purchase under the chancery sale, or the execution sale, and the amount of the bid at the execution sale served only as a diminution pro tanto of the total debt, and only to that extent did it satisfy 'the judgment. Whitmore v. Tatum, supra. The effect of appellant’s purchase of 'the property was precisely the same as if the purchase had been made by another person. The amount of the bid at the execution sale was, in either event, to be credited on appellant’s debt, and another purchaser at the sale would have had the right to convert William Sumpter’s equitable title into a legal one merely by paying the remainder of the debt. Upon no theory can a sale for a less sum than the full amount of the debt be held to be an extinguishment or satisfaction of appellant’s original debt. There is still another reason why the court was in error in holding 'that all that appellant acquired by its purchase at the execution sale was the right to perfect William Sumpter’s bid by paying the full amount of the purchase price. The execution ran not only against William Sumpter but against Nannie H. Sumpter, the •holder of the legal title, and since the sale carried the interest of both parties, the equitable title was merged in the legal title. Appellant therefore acquired a complete legal title under the execution sale. This view of the matter also disposes of the contention of appellees on the cross-apjjeal of William Sumpter’s widow that the cause should have been transferred to equity for the purpose of awarding dower in the Sumpter House property and damages for the detention. The legal title being complete in appellants, William Sumpter’s widow was not entitled to dower nor to possession of the property. It was-decided on the former appeal, and the evidence is undisputed, that appellant was rightfully in possession of the Sumpter House property, and the only question left open for further determination was the validity of the execution sales as to the other property. That issue was tried by the court below, and, according to the undisputed evidence,'the sales were regular and valid. Another issue to be tried on the transfer of the case to the law court was the question of damages for interfering by trespass with appellant’s possession, but there is no evidence in the case of any injury. The facts being undisputed, it is the duty of the court to render a judgment in favor of appellant for possession of all of the property in suit other than the Sumpter House property (appellant being already in possession of that property), so the judgment will be reversed, and the cause remanded with directions to the circuit court to enter a judgment to that effect.

McCulloch, C. J. Appellant became bail for one Hagan, who was under indictment in the circuit court of Sebastian County, Fort Smith District, on the charge of felony, and when the principal failed to appear the court declared a forfeiture on the bond. Thereafter, during the term, the principal was taken into custody through the efforts of appellant and lodged in jail awaiting trial under the indictment. This is a summary proceeding on the bond, and appellant pleads the right of discharge from liability on the ground that he was not at fault and was instru mental in returning the principal to custody after the forfeiture. A statute on this subject reads as follows: “If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond.” Crawford & Moses’ Digest, § 2974. The answer of appellant contains the following: “That, immediately upon learning that the defendant, Verda Hagan, had not appeared at the date set for her trial, this defendant immediately endeavored to locate her, and finally did locate her in the city of San Antonio, in the State of Texas, at a cost to himself : of $175, and returned her from said city to the city of Fort Smith, where he delivered and surrendered her to the jailer of Sebastian County for the Fort Smith District, on the 31st day of March, 1920, and during the same term of court at which her case was set for trial, and that she has remained in jail ever since said date; that two terms of this court have intervened since March, 1920, and that no trial has been had.” The matter was heard by the court upon the pleadings, without introduction of testimony, and the court proceeded to render judgment against appellant for the amount of the bond. It is conceded that under the statute it is a matter of discretion with the court whether or not the penalty of the bond, or'any part thereof, shall be remitted, but the contention is that, on the facts recited in the answer, the refusal of the court to remit any part of the bond constituted an abuse of discretion. The statute plainly lodges a discretion in the trial court to determine whether or not the sum mentioned in the bond, or any part thereof, shall be remitted, and this discretion should be fairly exercised upon the facts of a given case. The mere fact that the principal in the bond has been surrendered into custody by the bail does not entitle the bail, as a matter of right, to a remission of the penalty of the bond. 6 Corpus Juris 1053. The substance of the answer is nothing more than that appellant, at his own expense, returned the principal in the bond to custody, and, as before stated, this does not necessarily call for a remission of the penalty. It devolved upon appellant to establish facts to justify favorable action in the exercise of the discretion authorized by the statute, and, even if the facts set forth in the answer are accepted as true, that does not necessarily show an abuse of the court’s discretion. The judgment is affirmed.

Wood, J. One H. H. Capps was the agent of W. W. Rivers to sell for him certain lands near Judsonia, Arkansas. Capps negotiated for a sale of the lands to W. L. House for a consideration of $3,600. Rivers executed a deed and sent same to Capps for delivery; but this deed was not satisfactory in form, and, at the suggestion of House, on March 29, 1920, Rivers mailed a second deed to House 'in care of the First National Bank at Judsonia. Rivers had received from House through the First National Bank the sum of $600 as part payment of the purchase money. Some time elapsed, and Rivers began to urge in letters to that bank the payment of the balance of the purchase money, or a return of his deed. A letter of May 12, 1920, advised the First National Bank to return the deed to Rivers unless its client would take up same and' pay balance of purchase money in twenty-four hours. On May 15, 1920, the First National Bank wrote Rivers inclosing cashier’s check for $2,996, balance due on purchase, and stating that House had been ill, and the payment thus delayed. Rivers received the above letter and cashier’s check on May 17, 1920, and on the same day he received from the Farmers & Merchants Bank of Judsonia (hereafter called Farmers Bank) the following telegram: “This .bank guarantees payment three thousand dollars for W. L. House on your deed upon satisfaction oif mortgage on lands — answer.” The telegram was the first information Rivers had that there was a mortgage of record on the’ lands unsatisfied. Rivers had mortgaged the lands to the Bank of Hattiesburg, Mississippi, March 2, 1912. The mortgage was settled that year, but the record had not been satisfied, and River held the cashier’s check pending orders from the Hattiesburg Bank to satisfy the mortgage on the record. Rivers did not deposit the cashier’s check in his home bank for collection until about ten days after receiving it. The- First National Bank, on which the cashier’s check was drawn, did not request Rivers to withhold the deposit, and the check, he says, was not deposited because of the telegram of the Farmers Bank. River's sent a release — satisfaction—of the mortgage for record, and at the same time sent the cashier’s check to the First National Bank. That bank, in the meantime, had become insolvent, and was in the hands of a receiver, so when the check was presented it was not paid. This action was instituted by Rivers against .House and the Farmers Bank to recover the balance of the purchase money. House defended on the ground that he had paid the balance of the purchase money. The Farmers Bank defended on the ground that the telegram sent by it to Rivers was without consideration, and furthermore was only an offer of guaranty which was never accepted. Both House and the Farmers Bank also defended on the ground that Rivers had presented a claim for the amount involved to the receiver of the First National Bank which estopped him from claiming against them. Such other facts as may be necessary will be stated as we proceed. The court rendered a decree dismissing the complaint against the Farmers Bank for want of equity, and a decree in favor of Rivers against House for the sum of $1899.47, and declaring same a lien, etc. Rivers appealed, and House has taken a .cross-appeal here. Thé first question is: Was the appellee, Farmers Bank, liable on the telegram. The telegram was only an offer of guaranty. The appellee bank could not know until same was answered whether appellant was willing and able to satisfy the mortgage of record and whether the offer was accepted and would be relied on by him. The offer to guarantee payment by appellee bank was conditioned upon the satisfaction o'f the mortgage; and the request for an answer indicated that the appellee bank did not know whether the appellant would or could have such satisfaction entered of record. In Bishop v. Eaton, 161 Mass. 496, it is held, quoting syllabus: “Ordinarily, there is no occasion to notify a guarantor of the acceptance of an offer of guaranty,’ for the doing of the act specified in the offer is a sufficient acceptance; but when the guarantor would not know of himself from the nature of the transaction whether the offer had been accepted or not, he is not bound without reasonable notice of the acceptance seasonably given after the performance which constitutes the consideration.” See also Davis Sewing Machine Co. v. Richards, 115 U. S. 524; Davis v. Wells, 104 U. S. 159; Whiting v. Stacey, 15 Gray 270. The appellant never notified the appellee bank that he would satisfy the mortgage of record. The appellee bank requested the appellant to answer in effect whether or not the mortgage would be satisfied' of record. The appellant did not answer, and therefore there was no acceptance, no meeting of minds, and no completed contract of guaranty upon which the appellee bank can be held liable. The decree of the chancery court dismissing the appellant’s complaint against the Farmers Bank is correct. It could serve no useful purpose, and it would unduly lengthen this opinion, to set out and discuss in detail the testimony bearing upon the issue of fact as to whether or not the First National Bank was the agent of House in the negotiations for the sale of this land by appellant and the purchase thereof by the appellee House. We are convinced that a preponderance of the testimony shows that the First National Bank was the agent of House and not the agent of appellant. The Farmers Bank paid the check which appellee House had drawn in favor of the First National Bank to pay appellant the balance of the purchase money, and the First National Bank received this money for appellee House. If it had honored its cashier’s check, in doing so it would have been acting for the appellee House and not the appellant Rivers. See Virginia-Carolina Chemical Co. v. Steen, 55 So. 47 (Miss.), 34 L. R. A. (N. S.) 734. The First National Bank had in its hands the money of House which it was holding as his agent or representative, and not as the agent or representative of the appellant, and, as 'between appellant and appellee House, the neglect or failure of the First National Bank to pay the check and the resultant loss must fall on the ap pellee House, rather than on the appellant. The decree' therefore in favor of the appellant against the appellee House is also correct. The appellant is not estopped, because he presented a claim to the receiver of the First National Bank for the balance of the purchase money due him. That act should be viewed in the light of an effort to collect his money by presenting the check or claim to the proper authorities to make payment of same. It was not an election-by appellant to pursue the bank rather" than House. It was to the interest of the appellee House that such claim be made. There is certainly nothing in this to -prove that the appellant had recognized the First National Bank as his agent for the collection of the balance of the purchase money due him. The decree is in all things correct, and it is affirmed.

Wood, J. This is an appeal from a decree of the Yell Chancery Court in favor of the appellee against the appellants. The decree adjudged that the appellee was the owner and entitled to the possession of an undivided one-fourth interest in the S% of the SE14 of section 15, (designated in the record and hereafter called the “Key-wood Place”) and the SW14 (fr.) of section 14 in township six north, range 19 west, and the accretions thereto. The decree also awarded the appellee judgment in the sum of $700 as her portion of the rents and profits with interest thereon at the rate of six per cent, per annum from the rendition of the decree, less $19.50, taxes for the years 1919 and 1920. While the decree awards to the appellee an undivided one-fourth interest in the SW fr. 14 of section 14, and the accretions thereto, the appellee, in her brief, has abandoned here her claim to this tract, for she says that “by the judgment of the circuit court of Yell County rendered in 1870 to Evaline Vickers and James Vickers jointly were set apart the NV2 of the SW% of section 36, T. 6 N. R. 20 W. This was the Tipton tract, being seventy-four acres, * * * * and to Laura McCrackin and Sarah Price, sisters, jointly, the commissioners set apart the S1/^ of the SE14, section 15-6-20, known as the “Iveywood tract, being sixty-six acres. ’ ’ Again she says: “This Keywood tract is the land involved in this suit.” The appellee instituted separate actions against the appellants, one in the chancery court, September Í9,1919, and the other in the circuit court of Yell County. The purpose of these actions was to have the appellee adjudg ed the owner and entitled to the possession of the lands in controversy. The action at law was transferred to the chancery court and consolidated with the cause pending in that court, and the consolidated cases proceeded to a trial and decree in the chancery court. The appellee alleged in her complaint, among other things, that she and the appellants deraigned title from a common source as follows: “That the original owners of said lands from whom plaintiffs and defendants deraigned title were Laura Vickers and Miss Ruth Ann Keywood; that Laura Vickers was the mother of the following children, who were her heirs at law, her husband being dead at the time of the partition of her lands: 1st. Lavina Price, who married E. L. McCrackin. 2nd. Sarah Price, who married W. P. Wooten. 3rd. James Vickers, who died without issue. 4th. Evaline Vickers, this plaintiff, who married W. S. Campbell in January, 1874, and since and now is, a married woman. 5th. Ruth Ann Keywood, who with her mother was the owner of said lands; that Ruth Ann Keywood was never married, died in 1867, about eighteen years of age, without issue, leaving the first four children, her sisters and brother of the half blood on her mother’s side as her only heirs at law; that, on the death of Laura Vickers and Ruth Ann Keywood, said- lands descended in equal parts to Lavina McCrackin, Sarah Price, James Vickers, and plaintiff, who held same as tenants in common. That at the November term, 1870, of the chancery court of Tell County, Arkansas, Lavina McCrackin, Sarah Price, James Vickers and Evaline Campbell filed a petition for the partition and division among them of said lands, and other lands, alleging that they were the only heirs at law of Laura Vickers and Ruth Ann Keywood, both deceased, who at the time of their death were owners of raid lands, end the court appointed commissioners to partition said lands among the four tenants in common. ’ ’ Then follows an allegation that the lands were partitioned by the circuit court of Tell County, and the title to the lands vested in fee simple in Lavina McCrackin and Sarah Price, giving to each an undivided one-half interest. The complaint then alleged that Sarah Price married W. P. Wooten after the lands had been set apart to her as above ; that one child, Newton Wooten, was born to them; that Mrs. Wooten died in 1871 intestate, leaving surviving an infant son, Newton Wooten, and her husband, W. P. Wooten; that at the time of her,death she was the owner of an undivided half interest in the lands which descended to her son, Newton Wooten, subject to the curtesy of her husband, W. P. Wooten; that Newton Wooten lived three days after the death of his mother, and at his death his interest in the lands vested in fee simple subject to the curtesy rights of W. P. Wooten, his father, in his material aunts’ and uncle as above; that his uncle James Vickers, died intestate and without issue, leaving as his only heirs at law his sister of the half blood on his mother’s side, Lavina McCrackin and plaintiff, his father being dead; that James Vickers at the time of his death was the owner as the heir of Newton Wooten of an undivided one-sixth interest in said lands, which thereupon became vested in Lavina McCrackin and plaintiff, subject to the curtesy of W. P. Wooten; that in 1883 W. P. Wooten and his then wife, Mary E., and Lavina McCrackin and E. L. McCrackin executed a deed to J. K. Perry; that, at the time,of the execution of this deed, W. P. Wooten had a life estate only in an undivided one-fourth interest in the lands, and by said deed conveyed such interest to J. K. Perry; that Perry in 1891 conveyed the lands to Elizabeth C. Sadler and Rufus Sadler under whom appellants claim; that W. P. Wooten died in 1919, and upon his death the plaintiff was entitled to immediate possession of an undivided one-fourth interest in the lands. She prayed that the lands be partitioned, and, if this could not be done, that, they be sold; that she have the portion of the lands or the proceeds of the sale to which she was entitled, and have judgment for rents and profits. In their answer the appellants denied all the material allegations of the complaint. They deny that they were tenants in common with the appellee; deny that she had any right, title, or interest in the lands; deny that she had ever been in possession of same with or without color of title. They admit the appellants claim the lands by virtue of the will of Elizabeth C. Sadler. Among other things, they allege that John T. Keywood died seized and possessed of the lands; that he left surviving him his widow, Laura Keywood, who afterwards married James Vickers, and had by him two children, plaintiff and her brother, James Vickers, Jr.; that Keywood, at his death, left surviving him his daughter, Ruth Ann, his only child and heir at law, and his widow, Laura Key-wood; that the only interest Laura Keywood, afterward Vickers, had in the land was a dower interest; that at the death of Keywood the lands descended to his daughter, Ruth Ann Keywood; that Mrs. Laura Keywood Vickers died- before Ruth Ann Keywood, and that at the death of Ruth Ann Keywood the lands vested in her paternal uncle, and aunts, to-wit, Jeff Keywood, and -others, and not in the half sisters and half brother of Ruth Ann Key-wood. The appellants set up that the partition under which the appellee claims title through Ruth Ann Keywood was void and was obtained by fraud practiced on the court. They allege that at the time of the approval of the report of the commissioners appointed to partition the lands’under that judgment, Mrs. Sarah Price, then Wooten, and her son, Newton Wooten, were dead; that the title of the heirs of John T. Keywood who inherited the lands from him was not put in issue and was not divested by that judgment of partition, and that Sarah Price Wooten acquired no title or right of possession to the lands, and hence none descended from them to the plaintiff (appellee.) They deny that Sarah Price Wooten obtained title by purchase from Ruth Ann Keywood, but say that, if so, then on the death of Newton Wooten the lands would vest in the father of Sarah Price Wooten and descend at his death to his daughter, Mrs. Lavina McCracldn. They deny that the plaintiff obtained title by the statute of limitations. They deny that the plaintiff and the defendants claim under the same source of title, and allege that Wooten and Lavina McCrackin obtained title through the heirs of Ruth Ann Keywood; that they entered into possession of the same and held the same adversely for more than seven years, and had title by limitation in 1883, when they conveyed the same to James K. Perry; that if Newton Wooten, at his death June 15, 1871, owned an undivided interest in the lands and the plaintiff and her half brother inherited such interest, they were at that time entitled to the possession, and plaintiff,being at that time a single person, the statute of limitations began to run against her in favor of Wooten and Lavina McCrackin, who were then in possession of the lands; that they acquired title by such adverse possession, which title was conveyed by them to Perry and by him to Mrs. Elizabeth C. Sadler, who willed the lands to appellants. The appellants set up title by adverse possession and pleaded the statute of limitations and laches. Such are the issues. The evidence adduced at the trial established the following facts', which are uncontroverted. Miss Laura Tipton was thrice married; first, to Isaac Price, then to John T. Keywood, and then to James Vickers. By her first husband she had two daughters, Lavina, who married E. L. McCrackin, and Sarah, who married W. P. Wooten. By Keywood she had one daughter, Ruth Ann, and by Vickers she had two children, James Vickers, Jr., and Evaline, who married W. S. Campbell in the year 1874. John T. Keywood, the owner in fee of the “ Key-wood place” died about the year 1852. Laura Price Keywood Vickers died in 1864, and Ruth Ann Keywood died in the year 1868 intestate and without issue. At the November term in the year 1870 Lavina McCrackin and her husband, Sarah Price and James and Evaline Vickers, minors, through their guardian, filed in the circuit court a petition for the partition of the “Keywood pláce” and other lands, alleging that they were the only persons interested therein, and no others were made parties. The court entered a judgment at that term for a partition of the lands described in the petition and appointed commissioners and directed them to make a partition and report at a subsequent term of the court. The commissioners made the partition and set aside the “Keywood place” to Lavina McCrackin and Sarah Price. Their final report was made November 8, 1871, and the same was approved by the court on that day. After the judgment for partition, but before the final report of the commissioners was made to and approved by the court, Sarah Price married W. P. Wooten. To them was born a son, Newton Wooten. The mother died about the 12th of June, 1871, in childbirth, leaving her son and only issue Newton Wooten, who survived her only three days. James Vickers died in the year 1882 without issue. The appellants contend that Sarah Wooten did not during her lifetime take possession of the lands set apart to her by the commissioners under the partition decree. The appellee testified that, after the land w;as divided, Lavina McCrackin and Sarah Price Wooten took possession of the Keywood farm; that they were in possession and renting the same at the time of Mrs. Wooten’s death; that after her death her husband, W. P. Wooten, took possession of Mrs. Wooten’s part and controlled it until he sold it to Perry. By agreement between the parties evidence contained in a transcript of the record before the Supreme Court in an action between Mrs. James K. Perry and R. C. Sadler was considered by the chancery court herein. In that case W. P. Wooten testified that he was a joint owner with E. L. McCrackin and Lavina McCrackin of a tract of land in Yell County known as the “Keywood Place,” (describing it). “I was,” he says, “joint owner of the above-described land. Said lands were inherited by my wife and the wife of E. L. McCrackin. At the time of the conveyance made by McCrackin and myself, my wife was dead, and my interest in the land at that time was the interest of a child born during the marriage, who died soon after its mother’s death. In 1883 McCrackin and his wife and myself sold the ‘Keywood Place’ to James K. Perry.” In that case a warranty deed dated May 16, 1883, was also in evidence conveying the “Keywood Place” as above described to James K. Perry from E. L. Mc-Crackin and wife and W. P. Wooten and wife. Perry took possession under said deed and held the same until the 9th of June, 1891, when he (Perry) conveyed to R. C. and Elizabeth Sadler, under whom the appellants claim, and the Sadlers have been in possession ever since. The first question'for our consideration is: Do the appellee and the appellants deraign title from a common source? The testimony of the appellee shows that Mrs. Sarah Wooten and Mis'. McCrackin took possession of the “Keywood Place” that was set apart to them by the commissioners appointed by the court to make the partition of this and other lands; that they were in possession of the same and owned it at the time of Mrs. Wooten’s death. The testimony of Wooten was to the effect that the Keywood farm was inherited by his wife and the wife of McCrackin, and that at the time of the conveyance made by him and McCrackin and wife to Perry, his (Wooten’s) interest in the land was that of a child born during his marriage to Sarah Price, which child died soon after his mother’s death. While Wooten was mistaken as to the nature of the estate he held in the land, his testimony shows unmistakably that the estate he claimed was derived from his wife, Sarah, at the time of her death. . The .undisputed testimony shows that James K. Perry went into possession of the land under the warranty deed executed to him by E. L. McCrackin and wife and W. P. Wooten. We conclude, therefore, that the appellee and the appellants trace their title to the land in controversy to a common source, to-wit, Sarah Price Wooten. Such being the fact, even though the judgment in partition, under which Mrs. Wooten ob tained possession of the land, be void, and even though she acquired no title thereunder, nevertheless appellants cannot challenge the source of her title. Stafford v. Watson, 41 Ark. 18, 21; Freisler v. McKennon, 44 Ark. 517; Wood v. Freeman Lumber Co., 109 Ark. 499; Eichoff v. Scott, 137 Ark. 170, 173, 174; Cox v. Hart, 145 U. S. 376; Bonds v. Smith, 106 N. C. 553; Scott v. Singer, 54 Ga. 689, and numerous cases cited in note to Jenkins v. Marston, 7 A. L. R. p. 860. Since the appellee and appellants claim from a common source, it was only necessary for the appellee to prove that her title was superior to that of the appellants. This she has done, for when Mrs. Sarah Wooten died intestate, her son Newton inherited her interest in the “Keywood Place,” and at his death without issue this interest in the lands ascended or passed to his material aunts and uncle. Sec. 3480, C. & M. Digest; Kelley’s Heirs v. McGuire, 15 Ark. 555; West v. Williams, 15 Ark. 682; Oliver v. Vance, 34 Ark. 564; Campbell v. Ware, 27 Ark. 65; Coolidge v. Burke, 69 Ark. 238; Carter v. Carter, 129 Ark. 7 and 573. Although Wooten, in his testimony, designated the interest he held in the land as that of' a child bom during his marriage to Sarah Price, this was a mistake' of law on his part, for Wooten did not inherit any interest from his wife, nor, as we have seen, did he inherit any interest from Ins son. The interest which'Wooten acquired in the Keywood Place was that of curtesy. Curtesy at the common law is an estate for life which the husband acquires upon the birth of lawful issue of the marriage born alive and capable of inheriting, in the lands or tenements of which his wife is seized in fee simulo or in tail. Owens v. Jabine, 88 Ark. 468. See also Smith v. Maberry, 148 Ark. 216. Curtesy becomes initiate upon marriage, seizin, and the birth of issue, and becomes consummate when added to tie above requisites is the death of the wife. 1 Washburn on Real Estate, Sec. 313; 17 C. J. 413 et seq_. 416-421; 8 R. C. L. p. 387, Secs. 1-6 inclusive. “Seizin is either in deed or in law. Seizin in deed in actual possession. ’ ’ Tate v. J ay, 31 Ark. 576. See also McGuire v. Cook, 98 Ark. 118. Mrs. Sarah Wooten and Mrs. McCrackin took possession of the “Keywood Place” in 1870, and Mrs. Sarah Wooten was in possession when she married W. P. Wooten and remained in possession until she died in 1871. As we have seen, Mrs. Sarah Price Wooten was the common source of title, and at the time of her marriage to W. P. Wooten was in actual possession of the land in controversy, and after her marriage a son was born alive and capable of inheriting from her. This all occurred before the married woman’s statute (1873) and the Constitution abolished the curtesy initiate. Therefore, W. P. Wooten had such curtesy, which, upon the death of his wife, Sarah, in 1871, became consummate. Loyd v. Planters’ Mutual Ins. Co., 80 Ark. 486; Neeley v. Lancaster, 47 Ark. 175; Hampton v. Cook, 64 Ark. 353. As the estate of curtesy in W. P. Wooten was only a life estate, it was inferior to the estate which the appellee inherited upon the death of Newton Wooten. This brings us to the consideration of the questions as to whether or not the appellants have acquired title by the seven years statute of limitations, and whether or not the appellee is barred by that statute and by laches, all of which questions we will consider together. Although the deed from W. P. Wooten purported to convey to J. K. Perry the fee in the Keywood place, nevertheless he could not convey a greater estate than that of which he was possessed. Therefore, the deed of W. P. Wooten purporting to convey the fee to Perry in fact conveyed to him the right to the possession and rents and profits of the lands during Wooten’s life only. Morris v. Edmunds, 43 Ark. 427; Smith v. Maberry, supra. W. P. Wooten having the right to the possession of the lands during his life, the appellee could not institute an action to recover her interest which was inherited from Newton Wooten until the death of the life tenant, W. P. Wooten. It is well established by the decisions of this court that “neither the possession of the life tenant nor his grantee by any possibility can become adverse to the reversioner or the remainderman for the reason that such possession is not an interference with the rights of the latter.” Smith v. Maberry, supra, The appellee instituted an action to recover her interest in the “Keywood Place” in less than one month after the death of W. P. Wooten, the life tenant. She is seeking relief to which she is entitled at law, and is therefore neither barred by the statute of limitations nor by laches. Smith v. Maberry, supra. Lesser v. Read, 142 Ark. 320; Galloway v. Battaglia, 133 Ark. 441; Anders v. Roark, 108 Ark. 248; Neeley v. Martin, 126 Ark. 1; LeSieur v. Spikes, 117 Ark. 366; Ogden v. Ogden, 60 Ark. 74; Moore v. Childress, 58 Ark. 510; Padgett v. Norman, 44 Ark. 490; Morris v. Edmund, supra; Banks v. Green, 36 Ark. 84. There is an allegation in the answer to the complaint in the chancery action that the appellants, ■ believing themselves to be the owners, had made valuable improvements on the land to the value of $1,000, and that plaintiff had not tendered one-fourth thereof nor offered to pay for the improvements nor the taxes paid thereon by the defendants before instituting her action against them. There is no allegation of this kind in the answer to appellee’s action at law. The answer concludes with a prayer that the judgment of the court in partition rendered in 1870 and the approval of the report of the commissioners in that action be cancelled and set aside, and that the appellee’s complaint be dismissed, and that the appellants have judgment for costs and for such other relief as in equity and good conscience they are entitled to. We do not find that the appellee denied the allegations of the answer as to the improvements and taxes. But there is no evidence in the record as to the amount appellants expended for improvements. It does appear that the court in its decree rendered judgment in favor of the appellee in the sum of. $700 less $19.50, taxes for the years 1919 and 1920. Since the court had under consideration the amount claimed for rents and taxes and rendered a decree in favor of the appellants, the court, we must assume, did not render any decree in favor of the appellants for the improvements claimed because that issue was abandoned, or because there was no proof in the record to justify a judgment in appellant’s favor for improvements. A denial of the allegations of the answer as to the improvements and taxes was not called for under the betterment statute. That allegation was in issue without a formal denial thereof, and it was incumbent on the appellants to prove the allegations in order to entitle them to a judgment thereon. Sections 3703-3704, Crawford & Moses’ Digest. As we view the statements made in brief of counsel for the appellee concerning the land in section 14 and the accretions thereto for which appellee obtained a decree against the appellants, the appellee has abandoned her claim to those lands. • Therefore, the decree as to the lands in section 14 should be reversed, and remanded, and appellee’s complaint as to that tract dismissed, and appellant’s title to that tract quieted. It is so ordered. The decree in all other respects is correct, and it is affirmed. Justice Hart not participating.

Humphries, J. This is an appeal from the judgment of the Gfarland Circuit Court rendered on the pleadings in the case. The court overruled the demurrer of appellant to the complaint, and sustained appellees’ demurrer to appellant’s answer. Appellant stood upon his answer, and, on his refusing to plead further, the court rendered a judgment against him for $200, which had been received by appellant as part payment on the purchase price for certain laud. The gist of the complaint is that appellee, owner of the south half of the west half of the southwest quarter of section 12, township 3 south, range 20 west, listed it with appellant, a real estate dealer, for sale at the price of $4500, $500. of which was to be paid in cash as part payment on the purchase price of said property to bind the trade, agreeing to pay appellant as a commission for effecting the sale the sum of $300; that pursuant to the agreement a sale was effected to a Mr. Wood, from Houston, Texas, who paid appellant $200 as part of the purchase price, for the use of the appellee, agreeing to pay the remainder of the purchase price as soon as he could move from Texas to Arkansas: that a week or two later appellant informed appellee that Wood, the prospective purchaser, declined to consummate the deal and pay the balance of the purchase price; that thereupon appellee requested appellant to pay him the sum of $200 which he had received as par:; of the purchase price for said land to bind the trade, but that appellant refused to pay said sum to him, wrongfully converting the same to his own use. The gist of the answer was that Mr. Wood verbally agreed to purchase the property through appellant, the agent, from appellee for $4500; that Wood paid appellant $200 with the understanding and agreement between Wood and appellant that, if Wood failed to pay for the place and take it, the $200 was to be the compensation of appellant for trouble and expense incurred in the transaction; that Wood failed to pay the $4500, and that no sale was consummated, and for that reason .appellant had not received the sum of $200, or any other amount, for the use and benefit of appellee. The answer also embraced a plea that the entire transaction was not in writing, and was therefore void under the statute of frauds. The ground of demurrer to the complaint was that the facts stated therein did not constitute a cause of action. The ground of the demurrer to the answer was that the i acts stated therein did not constitute a defense to the allegations of the complaint. Appellant first contends that the court erred in rendering judgment in favor of appellee against appellant because the alleged agreement between appellee and appellant in the complaint related to the sale of a piece of real estate and, not being in writing, was void under the statute of frauds. Appellant insists that nobody was bound by the alleged oral agreement, and for that reason no rights or liabilities in favor of or against either party could grow out of the agreement. We do not think the statute of frauds applicable to contracts for the sale of real estate by a broker to third parties for the owners of land. This court said, in the case of Kempner v. Gans, 87 Ark. 221, that “a contract employing an agent to find a purchaser for lands is not within the statute of frauds.” This doctrine has been re-announced and adhered, to in later cases. Forrester-Duncan Land Co. v. Evatt, 90 Ark. 301; Vaught v. Paddock, 98 Ark. 10; Barr v. Johnson, 102 Ark. 377. Appellant also contends that the court erred in overruling the demurrer to the complaint, and sustaining the demurrer to the answer. ' The demurrer to the answer relates back to the complaint, and we find no sufficient denial of the allegations of the complaint to the effect that appellant was acting in the capacity of agent for appellee to sell the tract of land in question upon terms therein specified, and that the $200 sued for was received by appellant as part payment of the purchase price for the land by Wood. It is true the answer denies that the initial payment was made to appellant for thb benefit of appellee, but this denial is limited by an explanation which does not negative the. allegations in the complaint' that it was received for appellee’s.benefit. The explanation is that, under and by virtue of side agreement between appellant, appellee’s agent, and Wood, the purchaser, the $200, in the event the.sale was not consummated by the payment of the balance of the purchase money, should be regarded as compensation of appellant for the trouble and expense incurred by him in the transaction. Appellee was not apprised of any such agreement nor a party to it. It could in nowise bind him. The gravamen of the complaint was an allegation to the effect that an agency was created for the sale of lands. The sufficiency of the answer to the issues tendered must be determined by the rules governing principal and agent in contracts for, the sale of lands. It was alleged in the answer that' the initial payment of $200 was received by appellant as a forfeit for his personal use by way of reimbursement if the sale was not consummated. It was' not alleged that appellee knew anything about this arrangement or authorized it. Under the rules of principal and agent such an agreement was beyond the authority conferred by appellee on appellant. Loyalty is one of the first duties an agent owes to his principal. An arrangement such as is pleaded in the answer between tbe agent and the purchaser, without the knowledge and consent of appellee, could not be regarded as loyalty of the agent to the landowner. The rule is well expressed in the text in Ruling Case Law, vol. 21, p. 828. It is said there: “In the exercise of good faith, skill and diligence, the agent is bound to keep his principal informed of all matters that may come to his knowledge concerning the principal’s rights and interests. For example, if, after receiving instructions to sell property on certain specified terms, the agent learns that other and more advantageous terms can be obtained, it is his plain duty, and he is under every legal and moral obligation to communicate the facts to the principal, that he may act advisedly in the premises.” The following enunciation at page 829 of the same work is applicable: “The doctrine is familiar that an agent cannot, either directly or indirectly, have an interest in the sale of the property of his principal which is within the scope of his agency, without the consent of his principal, freely given, after full knowledge of every matter known to the agent which might affect the principal. ’ ’ The matter pleaded by way of defense to the allegations in the complaint was not and could not constitute a defense without full knowledge and consent of the appellee. Knowledge and consent on the part of the appellee was not pleaded. Under the pleadings as framed, therefore, the $200 received could have been received for no other purpose than the use and benefit of appellee. Under the allegations, it was not proper for appellant to appropriate the amount paid. It was his duty to account for it to his principal. It is the duty of an agent to account for money received by him for his principal. 21 R. C. L. p. 832. The allegations in the answer not being sufficient to meet the issue tendered in the complaint, it was proper to sustain a demurrer to the answer. We think the allegations of the complaint constituted a cause of action, and it was therefore proper to overrule the demurrer to the complaint. No error having been committed by the court in its rulings on the demurrers, nor in the rendition of a judgment against appellant when he stood upon his answer and refused to plead further, the judgment is affirmed.

Hart, J. (after stating the facts). Appellant filed a plea of the statute of limitations, and claims that Charles Chapman and William Chapman, who were adults at the time their father executed the right-of-way deed and the railroad company took possession of the land for a right-of-way, are barred by the seven-year statute of limitations. The railway company entered into possession of the land under its right-of-way deed in 1908, and the present suit was not filed until in December, 1919. See. 3930 of Crawford & Moses’ Digest provides that whenever any corporation, authorized by law to appropriate private property for its use, shall have entered upon and appropriated any property, the owner of the property shall have the right to bring an action against such corporation for damages for such appropriation at any time before an action at law or in equity for the recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations. In construing this statute, the court has held that it supersedes the comiüon-law remedies afforded the owner, and that the statutory remedy for damages is exclusive. McKennon v. St. L. I. M. & So. Ry. Co., 69 Ark. 104. The statute fixes the time for bringing the action at any time before the action at law or in equity for recovery of the property so taken, or compensation therefor, would be barred by the statute of limitations. At common law the owner would have had the right to have brought his suit at any time before the company had acquired the right to the property taken by adverse possession for the statutory period of seven years. Organ v. Memphis & Little Rock Rd. Co., 51 Ark. 235. Thus it will he seen that under the statute the owners of the land had a right to bring suit for compensation for the land taken by the railroad company for its right-of-way at any time within the period of seven years after the land was taken. In a case note to 2 A. L. R. at p. 786, it is said that the word, “owner” as used in statutes relating to con demnation proceedings, may be construed to apply to every person having any interest in the property taken. Again, it is said that it embraces not only the owner of the fee, but a tenant for life and the lessee for years and any other persons who have an interest in the property which will be affected by the condemnation. This is in accord with our own decisions relating to the question. As we have already seen, before the passage of the statute giving the landowner a remedy to sue for compensation, he might resort to his common-law remedy for damages. In Bentonville R. R. v. Baker, 45 Ark. 252, the owners sued under the common law to recover damages for the taking of their land by a railroad company for a right-of-way. The court held that a tenant for life and the remainderman may each recover compensation for the injury he sustains by the construction of a railroad over his land. The court said, however, that the remainderman can only recover such damages as affect his expectant estate. In that case the life tenant and owners of the inheritance joined in an action against the railroad company to recover damages for constructing its railroad across their land, and each was allowed to recover. The remainderman could not have brought suit unless his cause of -action had accrued; and where a cause of action has once accrued, the remedy must be pursued within the time given by the statute, or else the bar of the statute will ¡attach. This is in accord with the general rule that persons holding distinct interests in the same tract of land may proceed jointly to recover damages or compensation for its taking under the law of eminent domain. 15 Cyc. 1003; Lewis on Eminent Domain, 3 Ed. Yol. 2, §§ 716 and 976. This is especially true under our Constitution, which provides that no property shall be appropriated under the right of eminent domain until compensation shall be first made to the owner. Compensation precedes the ap propriation, and it was the evident intention of the framers of the Constitution to require compensation to be made to all persons interested in the land. It follows that the court erred in holding that Charles and William Chapman were not barred of recovery under the seven-year statute of limitations, and for that error the judgment in their favor will be reversed; and, inasmuch as the testimony with regard to the statute of limitations running against them is undisputed, their cause of action will be dismissed. It'is next contended by counsel for appellant that the value of the land should have been found by the jury as of the date when it was originally appropriated by the railroad company, and not of the date when this suit was brought. We do not agree with counsel in this contention. In Newgass v. Railway Company, 54 Ark. 140, condemnation proceedings were instituted by the railway company for the assessment of damages for the right-of-way of its railroad previously built without license across land belonging to Newgass. The court held that the value of the land taken for the right-of-way should be estimated as of the time the petition was filed. The court said: “As the filing of the petition is the attempt to assert the right of condemnation, and subsequent delay is without fault of either party, it seems fair to each alike that the assessment should be made with reference to value as of that date.” As we have already seen, where the railroad does not institute condemnation proceedings, the statute gives the landowner the right to sue for compensation, and the court has held that the statutory remedy thus given the landowner is exclusive. Hence the-action by the landowner should be viewed in the same light as a condemnation proceeding, which the law allows the property owner to commence, because the corporation has not done so. Our Constitution provides that no property shall be appropriated to the use of any corporation until full compensation therefor shall be first made to the owner in money, or first secured to him by a deposit of money. The railroad company could not acquire any rights or fix any liability as between itself and the landowner by wrongfully taking possession of the land. The appellees remained the owners of the property until proceedings were taken to enforce their claim for the value of the property taken. Therefore, the compensation to be paid the owner when he brings suit under the statute should be determined under the same rule as though the railroad company itself had begun condemnation proceedings at the date of the beginning of this action. Such a rule prevents confusion of rights and remedies and affords a definite and invariable rule for the assessment of damages. Such a rule prevents the railroad company from reaping any reward for its own wrongful action. Otherwise it might take possession of the property and build its road across it without first making full compensation to the owner, and then wait for the owner to sue because it might reap an advantage by not bringing the suit itself. It follows that the court did not err in holding that the value of the property should be proved as of the time of the filing of the suit, instead of the date the property was actually appropriated by the railroad company. The result of our views is that the judgment in favor of Charles Chapman and William Chapman will be reversed, and their cause of action dismissed. The judgment as to the other appellees will be affirmed.

Hart, J. (after stating the facts). It is insisted by counsel for the defendant that the court erred in sustaining the demurrer to the first paragraph of his answer because he notified the plaintiff after the note became due to sue the principal on the note forthwith,and that,the bank not having brought the suit within thirty days after the notice was given, the defendant is exonerated from liability on the note under the statute. Section 8287 of Crawford & Moses’ Digest requires that a surety on a note in order to exonerate himself from liability shall, after the note becomes due, by a notice in writing, require the person having the right of action to forthwith commence suit against the principal debtor and other party liable. The following section provides that, if such suit 'be not commenced within thirty days after the service of the notice, the surety shall be exonerated from liability to the person notified. In Wilson v. White, 82 Ark. 407, the court held that the statute, being in derogation of the contractual rights of the parties, must be strictly complied with by the surety before he can claim exoneration from liability on the obligation sued on. Under the language of the statute the requirement to sue must be unconditional. It contemplates a peremptory requirement of the surety to the creditor to commence suit forthwith. The notice in the present case is advisory merely. The language is, “My advice would be for you to take legal steps to collect the debt # * * and getting judgment for the balance.” The surety only advises the creditor to bring suit. The notice does not contain a demand or requirement for the creditor forthwith to commence suit. Not having shown a clear requirement or demand to the creditor to institute suit forthwith upon the note, the notice is insufficient because it is merely advisory, or at most a request to collect from the principal, and, if he fails to do so, to bring suit. This view of the statute is taken in the early case of Bates & Hughes v. State Bank, 7 Ark. 394. In that case the surety gave notice to and requested the bank “to put the obligation in a train of collection,”.and the court held that the notice was not sufficient under the statute. The court said that the statute gave the surety the right to require the plaintiff to commence suit forthwith, but that, if he wished to exonerate himself from liability, he must give such notice as to leave no option with the plaintiff. To the same effect see 32 Cyc. 104; Baker v. Kellogg, 29 Ohio St. Rep. 663; Rice v. Simpson, 9 Heisk. (Tenn.) 809; Parrish v. Gray, Humph. (Tenn.) 87; Kennedy v. Falde (Dak.), 29 N. W. 667; Benge v. Eversole (Ky.), 160 S. W. 911, and Edmonson v. Potts (Va.), 21 Ann. Cas. 1365. It is also contended that the judgment should be reversed because the court erred in sustaining a demurrer to the second paragraph of the answer, and in this contention we think counsel for the defendant is correct. Counsel for the plaintiff seeks to uphold the judgment on the rule laid down in Smith v. Spradlin, 136 Ark. 204, and cases cited, to the effect that th@ payment of a sum of money by one who is already legally bound to pay the same is not a valid consideration for a contract. Counsel claims that, inasmuch as the defendant was already bound to pay the note, there was no consideration for the contract whereby he was released from the payment of it, and that the case calls for the application of the well-known rule just announced. We do not think, however, that the rule contended for has any application to the facts of the present case. According to the allegation of the answer, the parties entered into a new contract with essentially different terms and imposing additional obligations upon the bank and the principal debtor. In Weaver v. Emerson-Brantingham Implement Co., 146 Ark. 379, the court held that the parties to a written contract may, subsequent to its execution, rescind it in part, or in whole, and substitute a new oral agreement therefor. Hence the parties had a right to make the new agreement. According to the allegations of the answer, which must be taken as true on demurrer, J. C. Sheperd, the principal debtor, made an assignment in writing of his war minerals claim against the United States to the bank, and it was agreed between Sheperd, the principal debtor, Glenn, the surety, and the cashier of the bank that the surety should be released from liability on the note. The assignment of JjSheperd’s claim against the United States to the bank constituted additional security to the bank. The bank had the right to accept this new security in lieu of the surety, and its action in doing so was sufficient consideration for making the new contract. The president of the bank doubtless thought that the assignment of Sheperd’s claim against the United States was better security for- the bank than the signature of Glenn to the note, and for that reason máde the contract. In any event he had the right to make the agreement with Sheperd and Glenn that the latter should be released from liability on the note in consideration that Sheperd would assign his claim against the United States to the bank. See Kilgore Lumber Co. v. Thomas, 98 Ark. 219, and Phoenix Cement Sidewalk Co. v. Russellville Water & Light Co., 101 Ark. 22. It is also insisted that the demurrer to the answer should have been sustained because the answer does not allege that the president of the bank had authority to make the contract in question. The authority of the president to make the contract would come up upon the proof in the case, and was not required to be alleged in the answer. For the error in sustaining the demurrer to the second paragraph of the answer, the judgment must be reversed, and the cause remanded for a new trial.

Hart, J. (after stating the facts). The judgment of the circuit court was correct. There is no principle better settled than that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in tis society or company name, but all the members must be made parties, since such bodies have, in the absence of statute,- no legal entity distince from that of their members. 5 C. J. 1369; Karges Furniture Co. v. Amalgamated Woodworkers’ Local Union (Ind.) 2 L. R. A. (N. S.) 788; St. Paul Typothetae v. St. Paul Bookbinders’ Union (Minn.) 3 Ann. Cas. 695. The common-law rule is recognized and followed by an unbroken line of authorities from many States which are cited in a case note to 3 Ann. Cas. at p. 699. The common-law rule was recognized by this court in Lewelling v. M. W. W. Underwriters, 140 Ark. 124. In that ease there was a statute providing for suits against certain insurance associations under their society name. This is an action at law, and the equity doctrine of virtual representation has no application. There is with-' in the power of a court of equity to name as defendants in certain classes of cases a few individuals who are in fact the -representatives of a large class having a common interest or a common right- — a class too large to he brought into court by a service on the individuals composing the class. See 20 R. C. L. p. 672; 5 C. J. p. 1371, and case note to Ann. Cas. 1913-C at p. 655, and Pomeroy’s Code Remedies (4 Ed.) par. 285-291. It is the contention of counsel for appellants that § 1089 of Crawford & Moeses’ Digest applies to both legal and equitable actions since no limitation is contained in its language. On the other hand, it is the contention of counsel for appellee that the section of the statute is a re-enactment of the .rule which already prevailed in equity, and is to he given a construction which will make it identical with the pre-existing equity doctrine. We need not decide this question for the reason that there was no attempt to comply with the statute. The section reads as follows: “Where the question is one of a common interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.” No attempt was made by appellants to sue certain persons as defendants who were in fact the representatives of a large class having a common interest. The suit was against the association itself by its society name. It is true, service was had upon the president of the district union in whose territory the tort is alleged to have been committed, but the president was not sued as an individual, or as the president of the district union. The United Mine Workers of America was sued by its society name, and this, as we have already seen, could not be done, in the absence of a statute authorizing it. If tlie United Mine Workers of America could not be sued by its society name, service of summons on one of its agents is insufficient for the purpose of bringing the association into court, in the absence of a statute authorizing it. If appellants had sued certain individual members of the' association as the representatives of all the class, then the application of the section of the statute just quoted to legal as well as equitable actions would be involved, but our statute does not authorize the bringing of actions against unincorporated associations in their common name. In Curators of Central College v. Bird, 148 Ark. 323, the court held that a suit cannot be maintained by the curators of a college where they are not named as individuals or not alleged to be a corporation. The complaint in this case alleged that certain named persons are officers of the union, but they are not sued as individuals or as representatives of a class. The United Mine Workers of America is sued by its society or common name. Again it is insisted that the judgment should be reversed because the suit is authorized under chapter 175 of Crawford & Moses’ Digest relating to Trade Unions. We do not think that this chapter of the digest has any application under the facts of the present case. It provides that labor unions may adopt a label and may proceed by a suit to enjoin the unauthorized use, display, and sale of any imitation thereof. Statutes of this sort, being-in derogation of the common law, are strictly construed and the prescribed method of procedure can only be followed in the action designated in the statute. The present action does not come within the class mentioned in chapter 175 of Crawford & Moses’ Digest. The result of our views is that the judgment of the circuit court was correct, and must be affirmed.

McCulloci-i, C. J. Appellee sued appellant, John Barton Payne, as designated agent of the Kansas City Southern Railway Company, in the circuit court of Polk County, to recover for injuries alleged to have been received while she was a passenger on a tram operated on said railroad. The basis of appellee’s claim is that there was a quarrel or controversy in her presence between the train auditors and a passenger, which became so violent that it excited and frightened her, and that she became seriously ill, and, being pregnant, a miscarriage subsequently resulted, as well as ill health in other respects. The answer of appellant contained appropriate denials of all the charges contained in the complaint. On a trial of the issues before a jury, there was a verdict in appellee’s favor assessing damages in the sum of five hundred dollars. One of the contentions made for reversal of the judgment is that the evidence is not sufficient to sustain the verdict. Appellee took passage on a train at Texarkana en route to Grannis, a station in Polk County. She had her four children with her, ranging in age from five to eleven years, and two of her children were placed in a seat across the aisle from her, and the other two occupied the seat with her. There were two train auditors, Patterson and Whitehead, 'the latter being a new and inexperienced man, and the former being on duty merely for the purpose of “breaking in” the new man. There was a stop in the yards at De Qneen for the purpose of setting in a new car or setting one out,.and during this stop a man named Wright, who was an employee of the railroad in some capacity not shown in the record, boarded the train and entered the coach occupied by appellee. Wright met the two auditors in the aisle immediately in front of the seat occupied by appellee and presented a pass,which was found to have expired, and, on the refusal of the auditors to honor the pass, Wright drew out his union card and presented that to the auditors, claiming the right to free transportation on the faith of his union card. The auditors refused to permit Wright to ride, and the latter became angry and used boisterous language, the extent of which is controverted in the testimony. Appellee in her testimony relates the substance of the occurrence, as follows: “A. Well, Wright got on the train and wanted Patterson'to recognize his pass, and he told him it was out of date, and he couldn’t ride on that, and Wright cursed him, and he stood there and let him keep on cursing him and abusing him and used very foul language, and he stood there, I suppose, fifteen or twenty minutes, maybe longer than that, .just using that talk over and over until the train started out, and he taken the cash fare from Wright, and let him ride on the train, and he got so abusive until Patterson made an attempt to use a gun right between me and my little children. Other parts of appellee’s examination are as follows: “Q. Did they pass any licks?” “A. No sir. * * *” “Q. Just state what they did?” “A. Well, they cursed, and just kept cursing and cursing.” “Q. Who did?” “A. Wright.” “Q. What did Patterson do?” “A. He just stood there and listened at it. ” “Q. Did he use any abusive language?” “A. No, I don’t reckon he did.” “Q. What made him start to draw his pistol?” “A. He just told him to hush, and he didn’t hush, and he put his hand back in his pocket.” “Q. What did you do then?” “A. I don’t know what I did do.” “Q. Was he close to you when he started to shoot?” “A. Yes, sir;-right at my arm. ” “Q. Did he make any effort to get Wright to leave the train?” “A. He just told him to get off, and he didn’t do it, and he just kept standing there listening at him.” On cross-examination of appellee, the following occurred: “Q. Wright was the man that did the swearing and cursing?” “Yes, sir.” “Q. You didn’t hear either of the other two men swear or curse?” “A. No, sir.” “Q. They didn’t swear any at all?” “A. No, sir; they didn’t swear. ” “ Q. They didn’t use any language of any kind in the way of insulting■ language?” “A. Not any profanity of any kind; just told him to get off, that he didn’t want to fight dogs.” Appellee testified further concerning her fright and excitement and illness which immediately ensued and resulted in a miscarriage. The two auditors were introduced as witnesses, and each testified that they used no improper language nor made any attempt to draw a pistol, and that they were not negligent in any respect. The substance of their testimony is that when Wright presented his pass and union card, which were refused, he became obstreperous and they called the conductor, who required him to pay his fare in money, and that this ended the controversy. We are of the opinion that the evidence was legally sufficient to warrant a submission of the issues to the jury. Hines v. Rice, 142 Ark. 159. The evidence justified a finding that Wright became obstreperous and used violent, insulting and profane language, and that the auditors, instead of quelling the disturbance and taking-steps to have him ejected, negligently permitted the passenger to continue his conduct for an unreasonable length of time, and even participated in it by making a move as if to draw a pistol, and in replying to the invitation to fight by saying “they did not want to fight dogs.” There is also sufficient evidence that appellee’s injuries, both physical and mental, resulted from the fright, which was caused by her critical condition of pregnancy. It is next contended very earnestly that the court erred in refusing to exclude all of the testimony of appellee which related to the conduct of Wright, the contention being that the allegations of the complaint are not sufficient to charge negligence of the train auditors in failing to repress the obstreperous conduct of Wright or cause his ejection from the train. The second paragraph of the complaint, which is the one setting forth the acts upon which recovery is sought, reads in part as follows : “Plaintiff alleges that on the said 6th day of December, 1919, she was a passenger on one of the passenger trains of defendant, the same being known as passenger train No. 2, north-bound, and had with her four little children of her own, and that as the train was leaving De Queen, the auditor, whose name is Patterson, began taking up tickets, and approached' a man named Wright for his ticket, and the said auditor and this man Wright became engaged in a dispute and almost a fight; that thev cursed and abused each other in the presence of this plaintiff and in the aisle in the coach immediately between where this plaintiff was sitting and her two little children, who were seated across the aisle from her, and in this difficulty the auditor attempted to draw a pistol from his pocket, as if to shoot the man Wright, and it is the act of the auditor, together with the insulting and abusive language used by the participants engaged in this dispute, so unnerved and excited plaintiff that she became ill as a result thereof. * * *” There was no demurrer to the complaint, and the question of the effect and sufficiency of the complaint was raised for the first time after the examination of appellee as a witness had been about completed, and a motion was made to strike out all the 'testimony which’ related to the conduct of Wright. The complaint only sets forth the facts upon which recovery is sought, without incorporating a formal charge of negligence. If it was thought that the complaint was insufficient, an objection ought to have been made before the trial commenced. The complaint stated a canse of action, even if imperfectly so; and,if objection was raised, it should have been to make more definite and certain. Appellant’s counsel cross-examined the appellee at length before making the motion to strike out the testimony, and when the motion was overruled there was no claim of surprise on account of the omission from the complaint of any specific charge of negligence with respect to the failure of the auditors to stop Wright’s improper conduct. The ruling of. the court was tantamount to treating the complaint as amended to conform to the proof, and, since appellant was not placed at a disadvantage by surprise, no prejudice resulted from the ruling. ■ The court gave the following instruction, the giving of which is assigned as error: “In this case, if you find from the evidence that plaintiff was a passenger on the train of defendant at the time and place alleged, with her children seated across the aisle of the train from her, and that a dispute arose between the auditor of defendant and another party in the aisle and near plaintiff and her children, and that abusive or profane language was used in the dispute or difficult}*-, and that the auditor acted as though he was going to draw a pistol and fire on the opposing party, and you find that plaintiff became excited and scared because of this trouble, and the acts and disputes of the participants, and as a result of her becoming excited and scared, if you so find from the evidence, she suffered a miscarriage and experienced pain and suffering and injury to her health, and you so find from the evidence, you will find for plaintiff, and assess her damages at such sum as you believe from the evidence she has been damaged, not to exceed the amount sued for, provided you find the same was caused by the negligent acts of defendant'or its employees.” The grounds of objection stated to the court at the time were that the evidence was insufficient to justify a submission of the issues to the jury, and that there was no allegation in the complaint concerning the negligence of the auditors in failing to protect the appellee as a passenger, from the conduct of Wright. There were these specific objections to the instruction, .but there was no objection made on the ground that the instruction did not properly submit to the jury the question of negligence of the train auditors in .their conduct toward the obstreperous passenger. The instruction, it must be conceded, is not very aptly phrased, but the concluding-portion of it does submit to the jury the question whether or not the conduct of the train auditors constituted negligence. If the instruction was ambiguous in its terms, there ought to have been a specific objection to it. It is too late now to criticise the instruction on account of ambiguity in its language. A specific objection, therefore, was essential in order to raise the objections now urged against it. The same may be said with reference to the objections now made that the use of the words “dispute or difficulty” was improper. If those words were inappropriate in view of the testimony, a specific objection ought to have been made to their use. There are other assignments of error to the rulings of the court in giving and refusing instructions, but we are of the opinion that the issues were properly submitted, and that there was no error in that respect. Nor is there any error in any other respect. Judgment affirmed.

McCulloch, C.' J. Appellant was the plaintiff below, and sought to enjoin the commissioners of appellee district from altering the plans and specifications, as approved by the county court, for the construction of the improvement and from proceeding to construct the improvement according to the altered plans and specifications. The district was created under Act 97 of the session of 1919 (Road Acts 1919, vol. 1, page 174), which provides that, as soon as the board of commissioners “shall have formed its plans and secured an estimate of the cost of the aforesaid improvement, it shall file a copy of its plans and specifications and estimates with the county clerk of Craighead County;” that the plans ‘ ‘ shall be accompanied by a map showing' in a general way the location.of the highway to be constructed,” and that, upon the filing of said plans, the clerk shall give notice that all parties interested will be heard on the question of the adoption of the plans. The statute is silent as to the authority of the board of commissioners to altor the plan after approved by the county court. The commissioners filed the plans; which specified in detail the method of improving the road, and the specifications contained a provision that the engineer should have the power, with the approval of the board, to alter the plans and specifications. The county court, on hearing the matter, approved the plans and specifications as a whole. These plans and specifications provided a method of surfacing the road with an application of light asphaltic oil and a cover of sand, spread for the purpose of absorbing the surplus oil. Subsequently the plans were changed at the suggestion of the State Highway Commissioner that, in order to secure federal aid, it was necessary to change the specifications with reference to the surfacing, and to provide for a heavier and better material. So the commissioners changed the plans and specifications to provide for the application of a heavier asphaltic oil and the nse of crushed stone as a binder instead of a covering of sand. It appears from the record that this change was necessary in order to conform to the requirements of the United States Bureau of Public Roads before aid from that department could be secured. It is shown by the agreed statement of facts that this change involved an additional cost of about $13,000, the contract for the entire improvement costing approximately $300,000. The road to be improved was 12.27 miles in length with 4.62 miles of laterals, and the surface yardage to be treated aggregated 116,980 square yards. The amount of federal aid expected to be obtained is $25,000. A contract was made by the board of commissioners for the construction of the improvement in accordance with the altered plans and specifications, and the contractor was made a' party defendant to this suit. The case was tried on the pleadings and exhibits and an agreed statement of facts, and the court rendered a final decree dismissing the complaint in so far as it concerned the prayer for an injunction to restrain the commissioners from constructing the improvement in accordance with the altered plans and specifications, but granted an injunction against the commissioners, restraining them from paying the additional cost under the altered plans and specifications out of the funds of the district “derived from present levies of taxes -on the assessment of benefits or funds derived from borrowing money.” Both parties have appealed. The fact that the suggestion for a change of plans came from the federal bureau or from the State Highway Commissioner is without controlling force in this controversy. If the board of commissioners was without authority to change the plans, they could not justify their action by showing that it was done at the direction of any other State or Federal agency, or for the laudable purpose of securing Federal aid. The limits of the authority of the hoard of commissioners must be tested by the statute. The statute contains no express provision on this subject, but authority is conferred in absolute terms to construct the improvement, and there is a direction that plans and specifications shall be prepared in advance and submitted to the county court for approval. We need not decide what the powers of the board would be with reference to material changes in the plans, but we think that authority is not wanting for making immaterial changes. It is not conceivable that the lawmakers meant to restrict the powers of the board, after having once adopted plans, in making immaterial changes from time to time. The plans filed with the county court contained an express provision for such changes, and a fair interpretation of the language used shows that only immaterial changes were in contemplation. The case turns, then, on the question whether or not these changes made by the board of commissioners constituted substantial or merely slight and immaterial changes in comparison with thre magnitude of the whole work. We think that the changes were not material, and in reaching this conclusion we are influenced by previous decisions of this court, notably tlie case of Hout v. Harvey, 135 Ark. 104, where we held that a change in the construction of' a road from a width of 12 feet of gravel 5 inches deep, with a gravel coat of asphalt treatment 1 inch deep, to a road 14 feet wide gravel 7y¿ inches deep, was not a material change. In that case the original cost was $176,717, and the change involved an increase of $52,231.49 in the cost. The change in the present instance is no more material than that made in the case just cited. The conclusion thus reached on this issue settles all the questions necessarily involved in the case, for if the change made was an immaterial one, and the commissioners had power to make it, the chancery court was correct in refusing to restrain the board of commissioners from proceeding under the altered plans and specifications, but erred in restraining the commissioners from paying for the added cost out of tbe funds of the district derived from borrowing money or from levying assessments. Of course, the Federal aid to be obtained will amount to more than the additional cost, but it is said that, inasmuch as that aid will not be forthcoming until the completion of the improvement, it is a substantial inconvenience for the commissioners not to be allowed to proceed with the use of the district funds in paying for the improvement. We do not see that the question of Federal aid enters into this controversy in any respect, but, if the commissioners had the authority to make the change, it follows necessarily that the court was wrong in restraining them from paying for the improvement out of the funds of the district, provided the total cost of the improvement, including the additional cost arising from the change in the plans, does not exceed the benefits. It is unnecessary to discuss the effect of subsequent statutes undertaking to approve the plans and sepecifications, or amending the original statute. The decree is affirmed on the appeal of the plaintiff, but on the appeal of the defendants it is reversed, and the cause remanded with directions to dismiss the complaint for want of equity.

Hart, J. (after stating the facts). The decision the court was right. According to the plaintiff’s own testimony, J. F. Woodson was a share cropper on McLaughlin’s farm. He was to cultivate and gather the crop for one-half of it, and McLaughlin allowed him to occupy a tenant house on the farm in order to cultivate and gather the crop. This constituted the relation of landlord and laborer, and not that of landlord and tenant. Bourland v. McKnight, 79 Ark. 427. It appears from Woodson’s own testimony that the title to the crop was to remain in McLaughlin until the latter divided it and gave the former his share-. This is exemplified by that portion of Woodson’s testimony where he speaks of picking1 some of the cotton and turning it over to McLaughlin. McLaughlin, after taking out certain supplies which he had furnished Woodson, would then turn over Woodson’s share of the crop to him. It appears that the occupation of the house by Woodson was merely ancillary to his employment. His occupation was merely in the character of share cropper, and he had no interest whatever in the premises. Woodson’s possession of the house was that of McLaughlin, and was a part of the contract price for: the services performed by him. When his contract was terminated by McLaughlin discharging him, his rights in the premises were extinguished, and it was his duty to get out. The general rule is that a person who occupies the premises of his employer as a part of his compensation is in possession as a servant and not as a tenant. On the termination of his employment; his right to occupy the premises ceases. The complaint does not allege a violation of the contract of hiring on the part of McLaughlin, but it alleges a trespass. Hence in this case it does not make any difference whether the discharge of Woodson by McLaughlin was lawful or not. It is sufficient that McLaughlin discharged him. Bowman v. Bradley, (Penn.) 17 L. R. A. 213, and Lane v. Au Sable Electric Co., 147 N. W. (Mich.) 546 Ann. Cas. 1916-C, p. 1108, and case note. If Woodson was wrongfully discharged, his remedy was to sue McLaughlin for a breach of contract. Where one, having contracted with another to allow him to cultivate his farm on the shares for a year, orders him off the farm before the end of the year, and refuses to let him gather the crop, the cropper may maintain an action at once against the land owner and recover as damages the value of such cropping contract. Jewett v. Brooks, 134 Mass. 505, and Tignor v. Toney, (Tex.) 35 S. W. 881. In such cases the damages, like the contract of hiring, are entire and accrue on the day when the contract is repudiated. They are measured by the value of the contract on which the cropper is deprived, and not by any injury done his person, or that of his wife. It follows that the judgment must be affirmed.

Wood, J. This is an action brought by the appellee against the appellant -to recover on an insurance policy insuring the life of Seddie L.« Simmons, in which policy the appellee was named as the beneficiary. The appellant is a fraternal benefit society and a corporation authorized to and doing business in this State. The appellee set up the policy, and alleged that the insured died on March 21, 1918; that at the time of her death all the premiums due on the policy had been paid; that appellee had complied, with all the conditions of the policy. The appellant defended on the groupd that the insured had failed to pay the monthly installment due for the month of December, 1917. The facts on this issue are substantially as follows: I. J. Stacey was president of the Bank of Augusta and Trust Company. He testified that he was the Worthy Secretary of the Local Household, being one of the subordinate and constituent lodges of the appellant, whose Eminent Household was located at Atlanta, G-eorgia. Witness countersigned the policy issued to Seddie L. Simmons on July 26, 1915. He had been local secretary since that time. Mrs. Simmons died March 21, 1918. The witness, as local secretary, adopted the followiilg plan for the collection of monthly premiums: During the first years he presented monthly receipts to the Augusta Mercantile Company, and it paid the installments. Later on Mr. Simmons opened an accoxmt at the Bank of Augusta, and witness made a check each month on Simmons’ account, making the same payable to Columbia Woodmen, specifying the amount of the monthly dues in dollars and cents and signing Sim mons’ name, by witness, and marked on tbe check what month the dues were being collected for. During the life of the policy the premiums were paid in the above manner. During the month of December, 1917, witness was away sick and didn’t make a ‘ check for that month. The witness instructed the cashier of the bank to make the monthly remittance, and for some cause he neglected to check on Simmons’ account for the dues for that month. On January 14, 1918, witness remitted the December, 1917, and the January, 1918, dues for Mrs. Simmons in a check for $2.60 covering these months, which the appellant accepted. Witness also drew a check for $1.30 for the February dues and a check for $1.30 for the March dues, both of which were accepted by the ap'pellant. On October 31, 1918, he received a check from the Eminent Household payable to the order of the appellee in the sum of $4.33 with instructions .to deliver same to-the' appellee. At the time witness forgot to forward the monthly premium on Mrs. Seddie L. Simmons’ policy, there was in the Bank of Augusta the sum of $539 subject to witness’.draft for the payment of the premiums on the policy of Mrs. Simmons. Witness further testified that it was his duty as Worthy Secretary to collect the dues from the members of the Worthy Household, the local lodge, and forward the same to the Eminent Household.. The appellee testified that from July 26, 1915, to February of 1916 he presented receipts to the Augusta Mercantile Company and got the money necessary to pay the premiums on his wife’s policy, and from the fall of 1916 to March 21, 1918, the day of his wife’s death, Stacy, the local Worthy Secretary, checked on witness’ account at the bank. Stacy asked witness if he could pay the premiums on his wife’s policy in that manner, and witness told him that it was all right. Between December 1 and December 10, 1917, witness had the sum of $539 in the bank on which Stacy could draw to pay the premiums. The application of the insured and the constitution and by-laws of the society expressly constitute a part of the contract of insurance. In the application the insured agreed, among other things, as follows: “If I neglect to pay all installments and dues on or before same become due, this shall render my cove-nant null, void and of no effect, and all my rights and benefits thereunder to myself or beneficiaries, shall be forfeited thereby without notice, and all payments made thereon by me shall be forfeited 'by liquidation. * * * I understand that no agent, officer or member can alter the requirements of the society in any way.” Among other provisions in the constitution are the following: “All installments are due and payable to the Worthy Secretary on the first -day of the month, and, when not paid on or before the tenth, the worthy guest shall thereby stand suspended, and his covenant shall be null and void. No agent, deputy, worthy secretary or any other person shall have the power to in any wise alter or change the above provisions nor any of the rules or regulations of the fraternity.” “Every beneficiary guest who shall fail to pay the beneficiary installment and the general expense and field fund installment on or before noon of the tenth day of the month, shall, by the fact of such non-payment, or any such non-payment, become and be suspended, and during such suspension the beneficiary covenant shall be null and void, and shall remain so absolutely until reinstated by compliance with the prescribed conditions, and during suspension a guest shall be without rights of any kind whatever in this fraternity.” The constitution and by-laws contain these further provisions: “The Worthy Secretary shall keep records, attend to the correspondence, accounts, literature, and the general labors of the Household; keep minutes of the Feasts, and shall notify the Household and Eminent Household of all guests in arrears. ***** He shall receive and receipt for all money due the House hold, turn the same over at once to the Banker; attest all orders drawn on the Banker. * * * * He shall make reports, post all notices required by the officers of the Eminent Household. He shall remit all funds due the Eminent Household to the Eminent Secretary, by postoffice or express money order or New York Exchange, payable to the order of the Eminent Banker (personal checks not acceptable), on or before the 12th of each month, and malee full and complete reports as required by the Eminent Household. * * * * The Worthy Secretary shall not make representation or waiver’s by the authority not delegated to him, or to 'the Household under the Constitution and Laws of the Fraternity, and no act exceeding the power thereby con■fe'rred or in conflict therewith shall be binding upon the Eminent Household. The Worthy Secretary is the agent of the guest of the Household.” Another provision reads in part, “No agent, deputy, Worthy Secretary or any other person, shall have the power to in any wise alter or change the above provision, nor any of the rules or regulations of the fraternity.” And further, “The Worthy Secretary of each Household shall remit on or before the 12th day of each month to the Eminent Secretary, * * * * all funds derived from the installments last levied, and arrearages, together with the full report, showing also the name of every guest not in good standing. The liability of the Household and its guests shall not be satisfied until the remittance shall be actually in the possession of the, Eminent Secretary. Without notice, the Worthy Secretary shall, on or before the 12th day of each month, forward full report as above, and the required installments from each guest.” Another provision reads as follows: “The liability of the Eminent Household of Columbian Woodmen for payment of benefits in the event of death or total disability of a guest shall not accrue nor exist on any cove nant unless all conditions thereof, as recited and referred to therein, and in this constitution and by-laws, be fully complied with.” On the back of the policy is an endorsement admonishing the Worthy Secretary to “pay on the first of the monith. Insure your loved ones against loss by accident lapse, as your failure to pay on or before the tenth of the month will render this covenant void. Hence be watchful.” Upon the above facts the appellant prayed the court to instruct the jury to return a verdict in its favor, which the court refused, to which ruling appellantsduly excepted. The court thereupon instructed the jury to return a verdict in favor of the appellee, to which ruling appellant also duly excepted. The jury returned a verdict in favor of the appellee in the sum of $840.80 with interest. Judgment was rendered in the appellee’s favor for that sum, from which is this appeal. In the case of Sovereign Camp Woodmen of the World v. Newsom, 142 Ark. 132-145, we said: “It appears from the undisputed facts of this record' that money was on deposit in the Bank of Portland for the purpose of paying the assessments of Newsom at the time when they became due under the laws of appellant. The laws of the order nowhere prescribe the method which the clerk should pursue in collecting the assessments. That was left entirely with him, and he adopted the method of collecting same, as we have shown, by draft, with his,receipt attached, on the bank where the money was deposited to pay the same. He also adopted (for his own convenience, not Newsom’s) the custom of making his remittance and report after the fifth of each month. It occurs to us that the case is precisely the same in legal effect as if Newsom had tendered to the agent of the appellant, duly authorized to collect monthly assessments, the amount of such assessment at the time the same was due, and that the agent failed or refused, for some reason, no matter what, to receive the same and report to his principal, as was his duty to do on the fifth of each month. * * * * “As we view the facts, it must be held as a matter of law that, so far as Newsom was concerned, he had .paid his March dues, which is but another way of saying that the appellant is estopped by the conduct of its .duly authorized agent acting within the scope of his authority from asserting that such assessments was not paid.” And on rehearing, at page 158, we said: “This doctrine of equitable estoppel is as applicable to fraternal societies as to old line companies. Now here there was something more than a single act of the local clerk in not collecting the dues of Newsom on or before the first of each month. The clerk through a period of years had adopted the method set forth in the original opinion which was clearly calculated to induce the belief upon the part of Newsom that his dues had been paid according to the method adopted by the local clerk for collecting the dues and reporting the same, and that the society had accepted such payments and would, therefore, not insist upon a forfeiture because of the failure of the clerk to comply, in this respect, with its laws and constitution. This conduct of appellant’s agent under the authorities above cited clearly estops appellant from denying that the March dues were paid as required. ’ ’ The facts in the case at bar are similar in all essential particulars concerning the payment of dues to the case of Soverign Camp W. O. W. v. Newsom, supra. The cases cannot be distinguished in principle on the facts. We do not care to travel over the same ground on the questions of payment and estoppel as were covered in the hTewsom case. See also Soverign Camp W. O. W. v. Key, 148 Ark. 562; Illinois Bankers Life Assn. v. Dowdy, 149 Ark. 72; and Security Life Ins. Co. v. Bates, 144 Ark. 345. Appellant contends that there is a clear distinction .between the facts of this case and those of the Newsom case in that the constitution and by-laws of the appel lant in the case at bar contain this provision: “The Worthy Secretary is the agent of the guest of the Household;” whereas no such provision was found in the constitution and by-laws under review in the Newsom ■case. But in the Newsom ease we quoted with approval from Supreme Lodge K. of H. v. Davis, 26 Colo., 252, holding as follows: “In a mutual benevolent order composed of a supreme lodge and subordinate lodges, an officer of a subordinate lodge charged with the duty of notifying the members of assessments made by the supreme lodge for the purpose of paying insurance certificates of deceased members, and of collecting and forwarding to the supreme lodge such assessments, is an agent of the supreme lodge, notwithstanding a rule or by-law of the order recites that such officer in collecting or fonvarding assessments shall be the agent of the members of the subordinate lodge, and the supreme lodge is charged with all knowledge possessed by the agent in making the collection.” The recital in the constitution and by-laws of the appellant that “the worthy secretary is the agent of the guest of the Household” can only mean that such secretary is the agent of the guest of the Household in those matters wherein he could perform some act or discharge some duty for the individual member or guest. The provision clearly could not relieve the local Household of the duties it had to perform as the agent or the representative of the Eminent Household. The local lodge as well as the Eminent Household could only act through its own agent in the matters of the countersigning of policies, the collecting of premiums, making reports as to the standing of members to the Eminent Household, posting notices, remitting dues, and various other duties-prescribed for the worthy secretary in the constitution and by-laws of the order. The. worthy secretary could not be the agent of both the insurer and the insured concerning matters wherein there might be a conflict in their respective interests. Here the uncontroverted facts show that, so far as Mrs. Simmons is con cerned, her dues were paid. .She had met all the requirements of the contract according to the methods which the appellant had adopted for collecting the installments. When the local secretary failed to send in the installments and make the correct report as to the payment of her monthly dues, in these particulars he was representing the appellants, and could not at the same time he representing- Mrs. Simmons. Having paid the installments and thus preserved her rights under the policy, she would not be estopped by any misapprehension that she may have had .as to her standing and the efforts toward reinstatement'growing out of such misapprehension. Therefore, as the insured was never in fact in arrears, the issue of invalid reinstatement raised by the appellant cannot avail. Under the uncontroverted facts it has no place in the case. The judgment is in all things correct, and it is therefore affirmed. McCulloch, C. J., and Smith, J., dissenting.

McCulloch, C. J. Appellants are farmers and owners of livestock in Columbia County, and claim the privilege of permitting their stock to run at large in a certain territory. This territory, it is claimed by appellees, is embraced within a stock-law district created under a special act of the General Assembly of 1915 (Acts of 1915, p. 676), the validity of which was upheld in the ease of Harrington v. White, 131 Ark. 291. Appellants instituted this action in the chancery court to restrain appellees from impounding livestock pursuant to the provisions of the aforementioned statute. The court sustained the demurrer to the' complaint and dis missed the complaint for want of equity. The act of 1915, supra, provides for the formation of stock-law districts in units of three or more townships in a county, to be adopted by a majority vote of the electors, at an election to be ordered by the county court on the petition of 25 per centum of said electors. The General Assembly of 1919 enacted another statute to provide, as stated in the caption, “a stock-law and to regulate the operation of same in Columbia County, Arkansas.” This statute, in its first seven sections, provides a complete method of impounding certain livestock found running at large, and for the punishment of the owners of such stock. The method of putting the law into operation is different from that prescribed in the act of 1915, supra, and also different livestock is mentioned. Sec. 8 of the act of 1919 provides that upon the petition of 35 per centum of the electors of any township or any number of townships in Columbia. County, filed with the county court at least sixty days before a genera] election, the court shall order the submission of the question of adoption to the electors "of the county at such general election, and that the words “For Stock Law” and “Against Stock Law” shall be placed on the tickets at that election. Sec. 10 of that statute reads as follows: “If it is shown by the returns of any election under this act that a majority of those voting for and against said law vote for stock law, four months thereafter this act shall become operative, provided, nothing in this act shall be so construed as to repeal any of the provisions of act No. 156 of the Acts of 1915 as it applies to Columbia County, until this act has been voted on and adopted and put into full force and effect in all of Columbia County, and until this is done this act will be considered cumulative.” It appears from the allegations of the complaint in this case that at the general election in the year 1920 there was submitted to the voters of the townships composing the aforementioned district, formed under the act of 1915, sicpra, the question of the adoption of the stock law of 1919, and that in each of said townships [he majority vote was against the adoption. The contention of counsel for appellants, as we understand it, is that the vote upon the question of adoption of the stock law was determinative of operation under either of the statutes, and that either an affirmative or negative vote on that question suspended the operation of the act of 1915 and constituted a dissolution of a district formed under that statute. This contention is, we think, directly contrary to the express language of the statute itself, which provides that the act of 1915 is not repealed “until this act has been voted on and adopted and put into full force and effect in all of Columbia County, and until this is done this act shall be considered cumulative.” Whatever else the statute may mean- — and we do not deem it necessary to enter any further into a discussion of other provisions of the statute — it is clear that the statute of 1915 is not repealed or suspended until there is a complete adoption of the new statute in the whole of Columbia County, and that districts formed under that statute are not, until then, suspended. The last statute is declared, in express terms, to be merely cumulative and leaves the former statute in force until the provisions of the latter one are adopted in the whole of Columbia County. It is further contended that there is an irreconcilable repugnance between the proviso in section 10 and the other sections of that statute, and 'that the proviso should be discarded, leaving the remainder of the act in effect,. To do this we would have to disobey the plain letter of the statute itself, which declares in the proviso that the former statute is not repealed but is to remain in full force until there be an adoption of the new statute by the whole county. It will be our duty, when the question of the validity of the new statute arises, to reconcile, if possible, the apparent inconsistencies in the different sections for the purpose of harmonizing them. It is unnecessary to do that in the present case, for we have reached the conclusion that, under the state of facts as set forth in the com plaint, the act of 1915 has not been suspended, and that the negative vote on the question of the adoption of the new statute did not operate as a dissolution of the district thus formed. The decision of the chancellor was therefore correct, and the decree is affirmed.

Smith, J. This is a suit filed by áppellee Hicks against appellant Griffith upon a statement of an account which is alleged to have become an account stated: Hicks was a resident of this State until 1916, when he removed to St. Louis, where he has since resided. Griffith is also a resident of that city. Hicks was for many years the attorney in this State for Griffith, whose interests here were varied and valuable. The professional relation was mutually satisfactory, and the personal relation was close and cordial, as shown by the. correspondence between the parties offered in evidence. Griffith is shown to be a man of large affairs, and from time to time loaned Hicks considerable sums of money. One such loan was evidenced by a note dated February 23, 1913, for the sum of $1,781.25, due one year after date. This note was executed jointly by Hicks and one E. A. Robbins, of Searcy, Arkansas. Finally an estrangement grew up between Hicks and Griffith, and on November 19, 1917, Hicks rendered Griffith what Hicks testified was a complete statement of the account between them, in which he embraced all the items of professional service for which charges had been made, and credited the account with’ payments received and also with the note signed by himself and Robbins. Griffith received the account the day after it was mailed. No objection of any kind to the account was made by him except as hereinafter stated. Griffith saw Robbins in Searcy and demanded payment of the note, and Robbins communicated that fact to Hicks in July, 1919. When advised of this demand on Robbins, Hicks told Robbins that he would attend to the note, as that was an affair between himself and Griffith, This assurance satisfied Robins, and he gave the matter no further attention. Robbins died in August, 1919, and some months thereafter Griffith filed the note with the administrator of Robbins’ estate for allowance and classification. This proceeding, was had in the probate court of White County, the county in which Bobbins lived and in which the administration on his estate was pending. On January 5, 1920, which was immediately after Hicks had been advised that the note had been filed as' a claim against Bobbins’ estate, Hicks brought this suit. On January 20, 1920, Griffith filed an answer, denying liability for the items comprising Hicks’ account. At the same time he filed a counterclaim and prayed judgment against Hicks. In the direct examination of Griffith in the trial from which this appeal comes he was asked if he had talked with any one about the statement he had received from Hicks. He answered that shortly after he got the statement he had a talk with Mr. Cornwell, who was' Hicks’law partner. This conversation occurred in Griffith’s office, where Cornwell had come as the representative of Hicks to discuss a matter of business between Hicks and Griffith, but which had no relation to the items covered in the account which Hicks had mailed to Griffith. Griffith was asked: “What, if anything, did Cornwell represent to you about the contract; I mean about the statement, and about the amount due or claimed to be due Mr. Hicks?” An objection to this question was sustained. Griffith was further asked: “Did Cornwell come there to see you as the representative of Hicks ? ” And, also: “Did Cornwell state to you that he wanted to talk to you about the account which Hicks had rendered to you?” Objections were sustained to both these questions. Thereupon Griffith offered to show that “Mr. Cornwell, the law partner of Mr. Hicks, came to see Mr. Griffith about the account, and asked to talk to him about it, and at that time he denied owing Mr. Hicks anything on the items charged to him. ’ ’ This offer of proof was by the court refused, and Griffith excepted. Griffith gave testimony sufficient to raise an issue for the jury as to the correctness of Hicks’ account, if the account was not in fact an account stated. Hicks denied that Cornwell had any authority to represent or act for him in adjusting or settling his account against Griffith. The court directed the jury to return a verdict in favor of Hicks, and this appeal is prosecuted to review that action. The statement of the account was mailed and received in Missouri, and we must, therefore, look to the law of that State to determine whether the account became stated. The case of Bloss v. Aurora Milling Co., 229 S.W. 833, is said to be the latest expression of an appellate court of that State on the question of an account stated. This decision is by the Springfield Court of Appeals, and, in defining an account stated, the court quotes from the case of Powell v. Pacific R. R., 65 Mo. 658, the following language of the Supreme Court of that State: “An account settled between the debtor and creditor therein in which a sum of money or balance is agreed on and an acknowledgment by one in favor o'f the other of a balance or sum certain to be due and an express or implied promise to pay the sum by one to the other.” Continuing, Cox, P. J., speaking for the court, said: “To constitute an account stated, the debtor and creditor must both agree to the correctness of the account, and in addition thereto the debtor must agree to pay or satisfy the amount agreed upon and the creditor must agree to accept the payment of the agreed sum in satisfaction of the account. “The agreement may be proven by evidence either direct or circumstantial as any other fact may be proven, or, if the party to whom the account is rendered retains it without objection for an unreasonable length of time, his so retaining it will justify the inference that he has approved it, and in such a case other proof of his acceptance and agreement to pay is not required. Kenneth Inv. Co. v. Bank, 96 Mo. App. 125, 135; 70 S. W. 173; Mo. Pacific Ry. Co. v. Coombs & Bro. Com. Co., 71 Mo. App. 299.” Under this test, the majority are of the opinion that the account rendered became an account stated for the following’ reasons. Where parties have had mutual dealings, and one renders to the other a statement, purporting to set forth all the items of indebtedness on the one side and credit on the other, the account so rendered, if not objected to in a reasonable time, becomes an account stated, and cannot afterwards be impeached, except for fraud or mistake Lawrence v. Ellsworth, 41 Ark. 502, and Dunavant v. Fields, 68 Ark. 534. The law requires an objection within a reasonable time. The retention of the account apparently beyond a reasonable time is open to explanation, and Griffith might have explained his waiting for a time by showing that he thought the law partner of Hicks was the latter’s agent in the premises. The objection, however, must be something more than a mental operation on the part of the person receiving the account. The objection must be made to the party rendering the account, or his duly authorized agent. Hence Griffith could not excuse his delay of two years in failing to object to the account by showing that ho thought he had made objection to a duly authorized agent of Hicks. In determining what was a reasonable time within which to object, the court might permit Griffith to explain the delay by showing that he-made objection to Hicks’ law partner thinking he was Hicks’ agent. He could not excuse himself indefinitely on this account. It was his duty to scertaiu the authority of Hicks’ law partner in the premises within a reasonable time, and he could not retain the account for twenty months without objection and excuse his delay by showing that he thought he had objected to a duly authorized agent of Hicks. This would be to allow his mental attitude in the premises to govern and would excuse the communication of his objection to the other party for an indefinite length of time. This is not the law. The objection must be made to the party rendering the account, or his duly authorized agent, within a reasonable time. It is the opinion of the Chief Justice and the writer that the excluded testimony of Griffith should have been admitted; that the actual agency and authority of 'Corn-well is not of controlling importance. An account rendered becomes an account stated only by the admission of its correctness by the debtor. This admission may be made expressly or it may arise by implication from the circumstances of the case. But an account cannot become an account stated unless the debtor, expressly or by implication, admits its correctness. The proper inquiry, therefore, is, what did Griffith do? Was his conduct such as that it must be said that he has impliedly assented to the correctness of the account? The assent of the debtor is ordinarily implied from the length of time during which the account is retained by the debtor without objection made. The courts, therefore, hold that the debtor may show any fact or circumstance which repels the implication that he has assented to the correctness of the account. So here we think the question of Griffith’s assent was for the jury. In determining whether Griffith has, by implication, assented, we view the circumstances from his perspective, for it is his acquiescence or non-acquiescence that we seek to determine. Did he believe, and was it reasonable for him to believe, that, in his conversation with Cornwell, the law partner of Hicks, he liad denied liability, it being borne in mind that Griffith supposed that Cornwell had been sent to him by Hicks to discuss the account, and. that no further communication between Hicks and Griffith occurred after the receipt of the account through the mails and Griffith’s repudiation of liability for any of the items covered by it fin his conversation with Cornwell? Or, to state the proposition conversely, must we say, as a mat ter of law, that, because of the lapse of time herein shown, Griffith must be held to have assented to the correctness of the account, notwithstanding his denial of liability to Cornwell and the absence of any further communication on the subject from Hicks? We think the question of Griffith’s assent, is one of fact which should have been submitted to the jury. As has been said, Griffith gave testimony questioning the accuracy both of the charges and credits on Hicks’ account; but if the account is, in fact, an account stated, these last questions pass out of the case. As before stated, the majority are of the opinion that the account rendered became.an account stated. The judgment is therefore affirmed.

Hart, J. (after stating the facts). The decree of the chancellor was correct. Sections 1798-1801 of Crawford & Moses’ Digest nrovide for the procedure for the winding ut> of the affairs of insolvent corporations and the distribution of their 'assets to their creditors. Sec. 1798 provides that no preference shall be allowed among the creditors of insolvent corporations except for wages and salaries of laborers and employees Sec. 1799 provides that any creditor of such insolvent corporation may institute proceedings in the chancery court for the winding up of its affairs and the distribution of its assets among the creditors after paying the wages and salaries due- laborers and employees. Sec. 1800 provides that every preference obtained or sought to be obtained by any creditor of such corporation, whether by attachment, confession of judgment or otherwise, shall be set aside by the chancery court, and such creditor shall be required to relinquish his preference and accept his pro rata share in the distribution of the assets -of such corporation, provided that no such preference shall be set aside unless complaint thereof be made within ninety days after the same is given or sought to be obtained. The attachment in favor of appellant was issued and levied on the 20th day of September, 1917. The laborers and employees of the company filed their claims with the receiver within three months thereafter, and asked that the preference by attachment obtained by appellant be set aside. The receiver allowed the claims of the laborers and employees of the company and classed them as preferred claims. He made his report thereof on the 6th day of Decembér, 1917. This all occurred within three months after the preference by attachment was obtained by the appellant. Hence the chancery court correctly held that the preference sought to be obtained by appellant by the issue and levy of the attachment should be set aside. A decree was entered accordingly, and it follows that the decree must be affirmed.

Wood, J. This is an action by the appellees against the appellant to recover the statutory penalty provided in section 887, Crawford & Moses’ Digest, for an admitted overcharge of passenger fare paid by the appellees for the transportation of their minor child between Bauxite, Arkansas, and Benton, Arkansas, on November 22, 1919. The Chicago, Rock Island & Pacific Railway Company’s train on which the child was a passenger was at the time being operated by Walker D. Hines as Director General of Railroads under the proclamation of the President of the United States in exercise of the war powers conferred upon him by acts of Congress August 29, 1916, and March 21, 1918. Section 10 of the latter act provides: “That, during tlie period of Federal control, whenever in his opinion the public interest requires, the President may initiate rates, fares, charges, classifications, regulations, and practices by filing the same with the Interstate Commerce Commission, which said rates, fares, charges, classifications, regulations, and practices shall not be suspended by the commission pending final determination.” The justness and reasonableness of these fares initiated . by order of the President were under the act subject to review by the Interstate Commerce Commission, such commission at the hearing to take into consideration the fact that the transportation systems were being operated under a unified and coordinated national control- and the finding and certificate of the President and his recommendations concerning the expense of operation under Federal control. The passenger tariff in effect at the time of the overcharge was one promulgated by the government railroad administration and approved by the Interstate Commerce Commission, known as local passenger tariff No. 28, and contained in a schedule of passenger fares between local points on the Arkansas Division of the Chicago, Rock Island & Pacific Railway Company, of which Bauxite and Benton are stations. In Northern Pacific Railway Company v. North Dakota, 250 U. S. 135, it is held, quoting syllabus: “The Federal Control Act being an exercise of a complete, exclusive and necessarily paramount Federal power (the war power) and its provision for a 'complete change to Federal control being clear and unambiguous, there can be no room for a presumption that State control over intrastate rates was to remain unchanged because it previously existed.” It is further held that the Government under the Federal Control Act “is granted the power through the President and the Interstate Commerce Commission to fix the rates on intrastate traffic, superseding the State power over that subject.” It follows that the present action will not lie to enforce the penalty imposed by section 887, Crawford & Moses’ Digest. In the recent case of Missouri Pacific Ry. Co. v. Ault, 41 S. C. Rep. 593, it was held that it was not the purpose of sections 10 and 15 of the Federal Control Act of Congress to allow the Government to be sued for penalties. Justice Brandéis, in that case, speaking for the Supreme Court of the United States, said: “The purpose for which the government permitted itself to be sued was compensation, not punishment. In issuing General Order No. 50, the Director General was careful to confine the order to the limits set by the act, by concluding the first paragraph of the order, 'provided, however, that this order' shall not apply to actions, suits, or proceedings for the recovery of fines, penalties and forfeitures.’ ” The judgment is therefore reversed, and the cause dismissed.

Hart, J. J. A. Gooch prosecutes this appeal to reverse a judgment of conviction against him for the crime of grand larceny charged to have been committed by stealing a Ford touring car in the city of Ft. Smith, Arkansas. The first assignment of error is, that the trial court erred in refusing to grant the defendant’s motion for a. continuance. Tlie court did not abuse its discretion in overruling tlie motion for a continuance. One ground of the motion is that it was necessary for the defendant to secure depositions from witnesses residing in Tulsa, Oklahoma. The application failed to disclose the names of the witnesses whose testimony was desired, or what their testimony would be. There was nothing in the motion showing that the expected evidence was material. Another ground of the motion was that an agreement had been reached between the attorney for the State and the attorney for the defendant to continue the case until the October, 1921, term of the court. The motion was not sworn to as required by the statute, and no proof was offered to show that the prosecuting attorney had agreed to continue the case for the term. Motions for a continuance are largely in the discretion of the trial court, and this court will not overrule the discretion of the trial court unless there is in the record an application coming substantially within the statute. O. & M. Dig. §1270; State Life Ins. Co. v. Ford, 101 Ark. 513; and Richie v. State, 85 Ark. 413. It is next earnestly insisted that the evidence is not sufficient to warrant the verdict. According to the evidence for the State, a Ford touring car, worth something over $500, was stolen from O. B. Ray, about the 20th of April, 1921, in Ft. Smith, Sebastian County, Ark. Ray had parked the car in the business district of Ft. Smith, and when he came for it sometime afterwards he found that it had been stolen. He went to Ft. Worth, Texas, and identified a car which had-been taken from the possession of the defendant about the 18th day of May, 1921, as his car. The number which had originally been on the car had been chiseled off since it had been stolen, and another number had been substituted. Ray asked the defendant where he had gotten the car, and the defendant replied that he had swapped for it. Ray was not sure at first that the car .belonged to him, and told tbe defendant that he would give him some days to prove his innocence in the matter. "When Ray returned to Ft. Smith, his wife asked him if he saw a certain mark on the wheel. Ray told her that he had not thought about the mark when he examined the car. He then remembered about the mark and then went back to Ft. Worth to examine the car again. He found the mark on the wheel, and identified the car by that and by its general appearance. The officer, who arrested the defendant, said that the latter told him that he had bought the car on the streets of Ft. Worth from a party unknown to him. The officer examined the car and found that the Ford engine number had been removed and another number had been put in its place. The officer had had about nine years’ experience in matters of this kind, and knew that the number on the car had been tampered with. The Ford factory put figures on its engines that any one can tell are its figures if one studies them. The number on the car in question had been filed off and replaced by another number. The defendant said that he had paid $400 for the car. He was searched when arrested and twenty-five or thirty-five cents were found on him. The defendant exhibited a bill of sale for the car and the consideration recited in it was $475. The date of the transfer was the 16th day of May, 1921. Another witness for the State testified that he saw a young man, who looked very much like the defendant, drive off a Ford roadster from the streets of Ft. Smith on the night that Ray’s car was stolen. He saw the young man drive, the car away from the place where it was parked on North Tenth Street in the city of Ft. Smith, on the night of the 20th of April, 1921. The witness stated further that he believed that he would be willing to go far enough to say that it was the defendant who drove the Ford roadster off on the occasion in question. The defendant denied that he had stolen the oar, and said that he was in jail at Tnlsa, Oklahoma, on the night the car is charged to have been stolen. He testified that, as soon as he got out of jail, he went to Ft. Worth, Texas, and bought the car from an unknown man there. He denied that he had anything whatever to do with stealing the car. The testimony on the part of the State was sufficient to warrant the jury in returning a verdict of guilty. According to the testimony of Ray, a Ford car belonging to him was stolen on the night of the 20th of April, 1921, from a street in Ft. Smith where he had parked it. About the 18th day of May, 1921, the car was found in the possession of the defendant at Ft. Worth, Texas. Ray identified the car by its general appearance and by a peculiar mark on the wheel. The defendant told Ray that he had swapped for the car. He told the officer, who arrested him, that he had bought it. He denied that he was in Ft. Smith at any time during the month of April, 1921. Other evidence showed that the engine number placed on the car by the manufacturer had been chiseled off and replaced by another. Another witness testified that he saw him get into a Ford car in the city of Ft. Smith on the night of the 20th of April, 1921, and drive off. This evidence, if believed by the jury, warranted a verdict of guilty. Another assignment of error is that the trial court erred in refusing to grant the defendant a new trial on account of newly discovered evidence. In support of his motion, the defendant filed what purports to be the deposition of the city jailer of Tulsa, Oklahoma, to the effect that E. W. Herring was placed in jail by him on April 10, 1921, and kept there until he was released on May 1, 1921. He also filed with it the deposition of Mrs. Alice Herring to the effect that she had a son by the name of E. W. Herring, twenty-two years of age, and that his left leg was shorter and smaller than his right leg, and that his foot was deformed; and that this son "was in jail in the city of Tulsa from April 10, 1921, to May 1, 1921. The court did.not abuse its discretion in refusing to grant a new trial on account of the evidence referred to. The defendant was a witness for himself, and testified that his name was J. A. Gooch. When arrested, he had what purported to be a bill of sale to the Ford car in question to himself, and in that he was named as J. A. Gooch. It is true that he had a deformed foot, and testified that he had been in jail in Tulsa, Oklahoma, in April 1921. This did not, however, identify him as being the E. W. Herring testified to by Mrs. Alice Herring and the jailer at Tulsa as being in the jail there. The defendant knew whether or not he and E. W. Herring were the same person. If so, he should have informed the court of that fact in order to show the materiality of the newly discovered evidence. If the defendant and E. W. Herring were not the same person, the offered evidence had no bearing whatever on the case. If E. W. Herring and J. A. Gooch were different persons, the fact that E. W. Herring was in jail in Tulsa,- Oklahoma, during the month of April, 1921, would shed no light on the question of whether J. A. Gooch was.also there at that time. It is true the record shows that E. W. Herring had a deformed foot in like manner as the defendant; but, as above stated, the defendant knew whether or not E. W. Herring and himself were the same person, and should have informed the court of that fact, in order to show the materiality of the admitted evidence. Not having done so, the presumption is that they were not the same person, and the court did not abuse its discretion in refusing to grant the defendant a new trial on .the ground of newly discovered evidence. It is also insisted that the judgment should be reversed because the court refused to permit the prosecuting attorney to testify that he had made an agreement with counsel for the defendant to take depositions in the case in the city of Tulsa, Oklahoma. An objection to this question was sustained. In the first place, it may be said that the record does not show what the answer of the witness would have been, and the question whether the court erred in such a case will not be considered on appeal, where it does not appear that any prejudice to the defendant resulted- from the refusal to allow the witness to answer the questions. Jackson v. State, 101 Ark. 473, and Jones v. State, 101 Ark. 439. Moreover, the action of. the court in this respect was not made one of the grounds of the defendant’s motion for a new trial. An exception to the admission of the testimony which is not brought forward in the motion for a new trial will not be considered on appeal. Ince v. State, 77 Ark. 418, and Eno v. State, 91 Ark. 441, and cases cited. Finally, it is insisted that the court erred in not giving a certain instruction asked by the defendant. The action of the court in refusing to give the instruction was not made one of the defendant’s grounds for a new trial. Alleged error in refusing to give an instruction is not before the court on appeal, if not brought in the motion for a new trial. Stallings v. Bradshaw, 137 Ark. 34. After a careful examination of the record, we find no reversible error in it, and the judgment will be affirmed.

Hart, J. This is the second appeal in this case. On the former appeal the defendant was convicted of murder in the second degree,, and his punishment was fixed by the jury at twenty years in the State penitentiary. The judgment of conviction was reversed because the court erred in instructing the jury. Woodall v. State, 159 Ark. 33. On the 28th day of July, 1921, the defendant was again tried, and the jury returned a verdict of murder in the second degree, but fixed his punishment at eight years in the State penitentiary. To reverse that judgment, the defendant has duly prosecuted an appeal to this court. The evidence for the State, briefly stated, is that early in the morning’ on the 18th day of September, 1920, the defendant, Lee Woodall, drove a wagon very rapidlv to the home of a neighbor, S. P. Rudisill. Mr. Rudisill was feeding his stock and, immediately after the uarties had snoken to each other, Woodall commenced shooting at Rudisill, and shot at him about twelve times. Several of the bullets struck Rudisill, and he died from the effects of his wounds several hours later on the same day. The defendant pleaded insanity. The evidence advanced in his favor tends to show that he thought Rudisill was trying to poison his stock and to injure his family in various ways; that he brooded over these imaginary wrongs until he became temporarily insane, and while in that condition killed Rudisill. The first assignment of error is that the judgment should be reversed because the court gave instruction No. 5 over the objection of counsel for the defendant. The instruction is as follows: “In deciding the question as to whether the defendant was insane or sane at the time of the killing in this case, you ara instructed that the burden to show 'insanity is upon the defendant, and unless this has been done by a preponderance of the evidence then this defense must fail, and you may also consider all his acts at the time, before and since the killing, as such acts and conduct may -have been shown by the testimony, and you also have the right to consider the defendant’s appearance and actions during the trial as a circumstance in determining his sanity at the time of the killing.” It is first insisted that the instruction is erroneous because the latter part of it tells the jury that it might consider the defendant’s appearance and conduct during the trial as a circumstance in determining his insanity at the time of, the killing. Counsel for the defendant contends that, inasmuch as it was not claimed that the defendant was permanently insane, his acts and conduct at the time of the trial could not be considered by the jury in determining whether he was temporarily insane at the time of the killing.. We cannot agree with counsel in this contention. A similar instruction was approved in the case of Diggs v. State, 126 Ark. 455. In that case instructions were given, on the question of temporary insanity, or insanity at the time of the killing. The court specifically told the jury that, in determining whether or not the defendant was of sound or unsound mind at the time of the killing, they might consider his mental capacity up to the present time. This testimony was introduced, not for the purpose of showing that the defendant was sane or insane at the time of the trial, "but as shedding light on the question of whether he was insane at the time the killing occurred. His conduct and bearing at the trial might shed much or little light, or none at all, as to the mental condition of the defendant at the time of the killing. However, his conduct and bearing at the trial were proper matters for the jury to consider in determining the defendant’s mental condition at the time of the killing. His mental attitude at the trial might tend to show whether or not he was easily excited or likely to brood over imaginary wrongs to the extent of becoming temporarily insane. Underhill on Criminal Evidence, (2 Ed.) § 160, and Reed v. State, 102 Ark. 525. Again the instruction tells the jury that the burden of showing insanity is upon the defendant, and that, unless this has been done by a preponderance of the evidence, the defense must fail. This part of the instruction is not subject to the vice of an instruction on the question of alibi in Hashins v. State, 148 Ark. 351. In that case the court told the jury that if, after a careful consideration of all oij the testimony in support of the alibi, the whereabouts of the defendant were unexplained at the time the crime was committed, then it - should not consider any testimony in support of the alibi. We held that the instruction as given' invaded the province of the jury. The court erred in telling the jury that it could not consider the testimony on the question of the alibi if the defendant failed to establish that defense. The defendant had only to raise in the minds of the jury a reasonable doubt of his guilt from nil the evidence in the case, and in determining his guilt or innocence the jury might consider the evidence on the question of ah alibi, although such evidence was not sufficient to maintain that defense.. The instruction in the present case, however, does not go to that extent. It correctly tells the jury that the burden of proof was upon the defendant to show insanity, and that, unless he established that defense by a preponderance of the evidence, it must fail. By this was meant that the defense of insanity must fail if insanity was not established by a preponderance of the evidence. The instruction, however, did not tell the jury that the evidence could not be considered if the defense of insanity was not established. The burden is on the State to prove beyond a reasonable doubt that the defendant committed the crime for which he is charged, and the law presumes every man to be sane. The reason for the latter presumption is, that sanity is the normal condition of mankind. Casat v. State, 40 Ark. 511; Scruggs v. State, 131 Ark. 320, and Bell v. State, 120 Ark. 530. Therefore the court did not err in giving instruction No. 5 at the request of the State. Objections are made to other instructions given by the court, but we do not deem it necessary to set them out. > We have carefully exafnined them, and, while the form of some of them might be improved, yet the instructions, as a whole, fully and fairly presented to the jury the respective theories of the State and of the defendant. The defendant relied for an acquittal upon his plea of temporary insanity or insanity at the time of the .killing. The court gave full instructions on this phase of the case and upon the question of reasonable doubt. We find no prejudicial error in the record, and the judgment will therefore be affirmed.

Humphreys, J. This case is before us on a second appeal. The appellees were appellants in the former appeal. This court ruled on that appeal that the trial court had erred in peremptorily instructing a verdict in behalf of the Model Window Glass Company, and remanded the cause for a new trial. The case was quite fully stated in the former opinion, and the statement there found is adopted as the statement in this case, in so far as the facts in the two cases are alike. For the statement, see Moody v. Model Window Glass Co., 145 Ark. 197. The additional evidence introduced on the new trial was to the effect that the wage scale in effect up to December 8,1918, expired on that date, by reason of the inability of appellant and the union, of which appellees were members, to agree upon a wage scale for the en,suing year. The witnesses introduced testified that the failure to agree upon a wage scale on that date for the ensuing year rendered the old contract nugatory, and that none of the provisions in the old contract were binding upon the parties after that time and until a new wage scale was agreed upon by and between the representative of the union and the appellant, or its representative. At the conclusion of the evidence, the court peremptorily instructed a verdict for appellees, and rendered judgment in accordance therewith, from which judgment is this appeal. Appellant contends that the additional evidence adduced -made an entirely different case from what it was when here before. In rendering the opinion on the former appeal, after reciting the facts, this court said: “The facts stated constituted an implied contract, if not an express contract, to settle with appellants according to the terms of the national agreement. The correspondence set out above' warranted appellants in believing, under the circumstances of the case, that they would be given employment, or be paid in accordance with the provisions of the national agreement, with reference to which the parties must be held to have contracted.” Appellees had worked for appellant during the preceding year under the provisions of the contract denominated the “national agreement. ’ ’ Article 5 of the agreement reads as follows : “Any company hiring a member and said member, upon arriving and reporting for duty, finding no vacancy existing or plant not ready to operate, as per notification, shall pay said member at the rate of $20 per week until place is vacant or plant in operation, or, at the option of the member, said company shall defray all expenses incurred by said member from the time he. left his home or place of starting until his return to destination.” Both parties were familiar with this clause in the contract. The invitation of appellant to appellees to return to Fort Smith and go to work was an offer to give them their positions under the terms of the old contract. The letter of September 6, 1918, urging appellees to work for appellant the coming season, contains the following statement: “Will say I am depending on you and Moody in your old places this coming season. Please advise me by return mail if you will he on hand.” The subsequent letter of November 19, 1918, notifying appellees to be at Fort Smith on December 9 and asking whether the company could depend on them being ready to work on that date, was tantamount to saying to appellees that the new wage scale, which must under the evidence he a basis for the contract for the ensuing year, had been, or would he, settled and agreed upon by that time. The offer and acceptance of employment had reference to employment under the terms of the old contract. Therefore, the new evidence offered, to the effect that no wage scale had been fixed for the ensuing year, was immaterial. Being immaterial, it was not incumbent upon appellees to inquire before leaving California, as argued and contended by appellant, concerning the new wage scale. No error appearing, the judgment is affirmed.

McCulloci-i, C. J. The plaintiff, H. H. Orton, shipped 75 bales of cotton from Ashdown to Texarkana over the line of the Kansas City Southern Railway Company, then operated under government control. The cotton was delivered to the agent at Ashdown by plaintiff in separate lots on .January 3 and January 5, 1920, and bills of lading were issued to plaintiff by the agent on those days. The first lot of cotton reached Texarkana and was delivered to the consignee on January 8, 1920, in undamaged condition, but the remainder of the cotton did not reach Texarkana until January 17 and 19, respectively, and, according to the evidence adduced in the case, it was, when delivered to the consignee, in damaged condition. It is alleged in the complaint, and the testimony tends to show, that the cotton was in good condition when delivered to the carrier, and that the condition was so noted on the bills of lading, but that when it reached destination it was wet, partly rotted and had to be “reconditioned,” according .to the terms used by the witnesses, which means that the damaged portion had to be picked off and the cotton re-baled. According to the evidence of plaintiff, there was a total loss of 4247 pounds, of the market value of 26 1-2 cents per pound, making a total damage.of $1125.45. The answer of defendant contains a denial of all the allegations of the complaint with respect to negligence on the part of those operating the railroad, and also with respect to the damaged condition of the cotton, and alleges that the damage was due entirely to the condition the cotton was in at the time it was delivered to the carrier. The trial resulted in a verdict in favor of plaintiff for the sum above named, as shown by plaintiff’s testimony. It is earnestly contended that the evidence is insufficient to sustain the verdict. There is a conflict in the evidence, but it is sufficient to sustain the verdict either way as to the extent of the damage to the cotton and the cause of the.damage, whether resulting entirely from the condition it was in when delivered to the carrier or from the delay in transportation. The plaintiff himself and other witnesses testified that the cotton was not wet nor in bad condition otherwise when delivered to the carrier, but that when received at Texarkana it was wet at the ends and rotten, and that a considerable quantity, aggregating 4247 pounds, had to be picked off and the remainder re-baled. There was also testimony showing that the cotton was shipped in open cars and was exposed to rain and snow which fell in unusual quantities and continuously during the period of delay in transportation. On the other hand, witnesses introduced by defendant testified that the cotton was very wet and in damaged condition when it was delivered to the carrier. There being a conflict in the testimony on all of the issues, we are not at liberty to disturb the findings of the jury. The court gave instructions requested by plaintiff, and also gave a number of instructions requested by defendant, but refused to give three of the instructions requested by defendant, one of which was a peremptory instruction. The court also modified some of the instructions requested by defendant. Assignments of error are made in regard to each of the rulings of the court in giving, refusing or modifying instructions. The second instruction requested by plaintiff reads as follows : “You are instructed that the defendant is in effect an insurer of all goods received for immediate shipment against all losses, or damage, except those which arise from an act of God, of the public enemy, of public authority,, of the shipper, or from the inherent nature of the goods shipped, and the burden of proving that the loss or damage arose from any of these excepted acts rests upon the defendant, and said defendant is still liable for any loss or damage arising from any of said excepted acts if the loss or damage would not have occurred if there had been no negligence on the part of the defendant or his employees.” The criticism now made of this instruction is that it should have defined the term “public authority” or omitted the term from the instruction, and that likewise the reference to “the public enemy” should have been omitted for the reason that there was no evidence tending to show that the damage resulted from that cause. It is not possible that prejudice resulted to defendant from the inclusion of these terms in the instruction or in the failure of the court to give a definition of what constituted “public authority.” It is true that there is no evidence at all that the damage resulted either by the act of the public enemy or any public or governmental authority, but, inasmuch as these conditions would only have operated as an exoneration of defendant from liability, there was no error in referring to them in the instruction, even though there was no evidence to justify it. These conditions were stated as exemptions or exonerations from liability, and, if the terms had any controlling influence with the jury, they could only have been for the benefit of the defendant in submitting to the jury a defense about which there was no testimony. Again, it is urged that this instruction is erroneous in placing on defendant the burden of proof as to the exemptions from liability. It is a correct statement of law to say that the burden of proving exemptions from liability as an insurer rests upon the carrier claiming such exemptions. St. L. I. M. & S. Ry. Co. v. Pape, 100 Ark. 269; J. L. C. & E. R. R. Co. v. Dunavant, 117 Ark. 455. But the contention is that the instruction placed the burden on defendant to prove that the cotton was in undamaged condition at the time it was delivered to'the carrier. Such is not, however, the effect of the instruction, for it deals with the question of loss or damage occurring while the cotton was in the possession of the carrier for transportation, and correctly states the law to be that the burden is upon the carrier to prove that such damage resulted from some of the causes mentioned which exempted it from liability. Instruction No. 3, given at the request of plaintiff, told the jury that the notation on the bill of lading-showing that the cotton was received in apparent good order made out a prima facie case, and this was correct. The court gave instruction No. 4, requested by defendant, after modifying it by inserting the italicized word “sole,” and the same reads as follows: “If the cotton in question at the time of its delivery to the carrier was damp or ptherwise in bad condition, and if that bad or wet condition, if it existed at the time, was due 'to excessive rains or moisture, or other causes, or to exposure before same was delivered to the carrier, and -if that bad condition of the cotton, if it existed, was the sole cause of the damaged condition of the cotton when it arrived at Texarkana, if it was then in a bad condition, then the jury must find for the defendant.” A similar modification was made in another instruction requested by defendant on the sanie subject. It is contended that the modification was erroneous, but we are of the opinion that it brought the instruction into line with decisions of this court in regard td the liability of a carrier in case of concurring causes of damage; that is to say, where the damage results from negligence of the carrier concurring with the act of G-od or some other cause, it makes the carrier liable. C. R. I. & P. Ry. Co. v. Miles, 92 Ark. 573; St. L. I. M. & S. Ry. Co. v. Hudgins Produce Co., 118 Ark. 398. Finally, it is urged that the court erred in refusing to give instruction No. 5, which reads as follows: “If the cotton was in a damp, wet or bad condition, as suggested in the last instruction, at the time of its delivery to the carrier, and if that bad or damp or wet condition, if it existed, in part caused the damage to the cotton, and if the carrier failed to transport said cotton to Texarkana within a reasonable time, and if such failure also in part caused damage to said cotton, and if the carrier at the time of receiving thte cotton did not have knowledge of the wet or damaged condition of the cotton, if it existed, then it will be the duty, of the jury to ascertain the amount of damage, if any, due to the wet or damaged condition of the cotton at the time of its delivery to the carrier, and also the amount of damages, if any, due to the failure of the carrier properly to transport and deliver the cotton. If the jury find that the total damage is, therefore, due in part to the nature and condition of the cotton, and if the same was wet or damaged at the time of its delivery, and if that wet or damaged condition was unknown to the carrier, and if, in addition to that damag°e, if such existed, the carrier by failure to transport also caused damage, the jury will ascertain the amount of damage due to each cause, and in that event will find for the plaintiff only the damage done to the cotton arising from the fault of the carrier, if said fault existed.” This instruction,, it is argued here, has the effect of expressing the view that the carrier was not liable for damage resulting prior to its acceptance of the cotton for shipment. Such, however, is not the necessary meaning of the ■ instruction, and the court was correct in refusing to give it. The instruction was in line with No. 4, requested by defendant, and they were both erroneous as requested. The court corrected the error in No. 4 by a modification, but did not attempt to correct No. 5. It was manifestly too long and involved in its statement to be corrected merely by the insertion of a word, as was done in No. 4. The instruction is open to the objection that it could be, and doubtless would have been, understood to mean that if the damage was caused by the negligence of the defendant' concurring with the condition the cotton was in at that time, there would be no liability on the part of the carrier. As we have already seen from the authorities cited, such is not the law. If the defendant had asked an instruction telling the jury that the carrier was not liable for damage to the cotton occurring before delivery to the carrier, but was only liable for damage which resulted after delivery, such instruction should have been given, but that is not the effect of instruction No. 5; at least it was susceptible to another interpretation, and the court properly refused to give it. It is also contended that the court erred in refusing to permit defendant to prove that unusual -conditions existed which made it impossible to procure cars for more expeditious transportation of cotton. The pleadings raised no such issue, even if it be held that a carrier can, after accepting a commodity for immediate transportation °and issuing a bill of lading, excuse itself on such a plea. There are other assignments of error which we do not deem to be of sufficient importance'to discuss. The judgment is affirmed.

Per Curiam. This is a petition for a writ of certiorari to bring up for review a judgment for the recovery of money, rendered against petitioners by the circuit court of Prairie County on September 10, 1920, in favor of the resDondeA s, who were the plaintiffs in the action below. It is alleged in the petition that a motion for a new trial was filed and overruled by the -court; that an appeal to this court was granted by the trial court; and that time was allowed (120 days) within which to prepare and file a bill of exceptions. The sole ground urged for the issuance of the writ of certiorari is that the court stenographer failed, without fault of petitioners, to prepare the transcript of the oral proceeding's within the time allowed by .the court, and that petitioners were thus prevented, without fault on their part, to prepare the record so that an appeal was available for a review of the record in this court. The 'jurisdiction of this court is, under the Constitution, merely appellate and supervisory, except in the single instance of the exercise of original jurisdiction in the issuance of writs of quo warranto. Constitution of 1874, article 7, sections 4 and 5. The various writs authorized to be issued by this court'are merely in aid of such appellate or supervisory jurisdiction. Ex parte Jackson, 45 Ark. 158; State v. Neel, 48 Ark. 283. And a review by this court for errors of inferior tribunals is confined to the record made below. This court has no authority to inquire beyond the record made by those courts. Such further inquiry would constitute the exercise of original jurisdiction. It is not claimed that there is any error appearing in the record made in the court below. Ini other words, it is not claimed that there is any error on the face of the proceeding, but the claim is that the petitioners were prevented, without their fault, from making a record by bill of exceptions, which would have disclosed errors in the proceedings; and the contention is that they are entitled to relief under the remedy afforded by the writ of certiorari. Counsel for petitioners rely upon decisions of this court, holding that the rQmedy under the writ of certiorari is available where the right of appeal has been unavoidably lost. Burgett v. Apperson, 52 Ark. 213; Lamb & Rhodes v. Howton, 131 Ark. 211. Those were cases where relief was sought in the circuit- court from judgments of inferior courts over which that court had supervisory control, and under and pursuant to the statute which authorizes, "a, review of proceedings in inferior courts for relief against either erroneous or void judgments. Crawford & Moses’ Digest, section 2237. Those cases, therefore, have no application to the question of the authority of this court, for this court has no original jurisdiction, and such original jurisdiction for relief against fraud, accident or mistake is cognizable in courts of chancery, and in that court alone must petitioners seek relief for the alleged unavoidable loss of the right of appeal. Kansas & Arkansas Valley Rd. Co. v. Fitzhugh, 61 Ark. 341; Little Rock & Fort Smith Ry. Co. v. Wells, 61 Ark. 354. The writ is therefore denied.

Wood, J. This action was instituted by the appellees against the appellants in the Pike Circuit. Court April 20, 1920, to recover the possession of certain lands alleged to contain diamonds. The appellees alleged in substance that the appellee Bettie L. Mauney is the widow, and that the other appellants are the children and sole heirs at law of M. M. Mauney, deceased, who leased the lands in controversy in 1912 to the appellants; that the lease was for a period of fifty years, beginning January 1, 1912. There was a condition in the lease that the lessee, his associates and assigns, undertake “to diligently and faithfully” prosecute the work of development of the property as outlined in the lease in a scientific and practical manner * '* * by taking such preliminary steps toward the preparation of plans and purchases of machinery necesary to carry on the work in contemplation, and to erect and install a modern washing and concentrating plant of African type within one year from April 10, 1912, and in good faith and with diligence to treat and wash for the recovery of diamonds and other precious stones a minimum of 10,000 loads of material from the first-described tract of land known as the Mauney diamond property during each and every year of this lease, and as much more as can reasonably be done, a load being a unit of measure and sixteen cubic feet. The lease also provided that the lessor should have one-fourth of all diamonds and other precious stones and valuable minerals recovered from the land. The lessees were to have the management and sale of the diamonds, and every three months the lessees should fix a price for the product of the mine, and the lessor was given the right to buy the diamonds by paying to the lessees three-fourths of the price thus fixed. If no price was fixed, the output was to be sold to the lessee, and one-fourth of the proceeds of the sale was to be paid to the lessor.. The complaint further alleged that the lessees “covenanted and agreed with the lessor that the operation Undertaken shall be prosecuted and carried on in good faith and with loyalty and fidelity to all the parties to the lease, and agreed to furnish the lessor an accurate statement of the number, character, quality and weight of all diamonds and other valuable minerals taken from said mine, together with quarterly statements of sales made, with payment in full for all royalties due to the lessors under the lease contract;” that since the 27th of April, 1918, no reports of the recovery of diamonds had been made nor an opportunity given the lessors to purchase the output, nor had the lessees washed and treated as much as 10,000 loads of material; that the property had been in possession and under the control of the appellants before and since April 27, 1918; that appellants were holding the same under and by virtue of the lease mentioned, and upon no other ground whatever. The concluding portion of the complaint is as follows: “That the defendants have not substantially complied with said contract; that they have, on the contrary, refused to even attempt to carry out the terms thereof in good faith as required thereby; that they have lain idle and ceased operations ever since April 27, 1918 to the time of filing this complaint (April 1920); that they have not recovered any diamonds in that time,' although during the year 1914 they reported the recovery of several hundred diamonds, and hundreds in other years prior to April 27, 1918. That the plant on the site at Kimberly was burned on or about January 13, 1919. since which time, as well as before, there has been no effort on the part of the defendants to operate in good faith under said contract; that they have abandoned all work under said contract, and are arbitrarily and •rnali ciously holding possession of said land mentioned in said lease contract without right and in violation of the rights of the plaintiffs to the full enjoyment thereof, and to any benefit they may have by reason of operating or controlling said mine themselves, or having others to do so who will be faithful to such contracts as the plaintiffs might enter into. “The defendants have done no work in the said Mauney mine since April 27, 1918, and have not attempted to do any since said time. On the contrary, they'have abandoned the said mine and the operation and development thereof completely and in every way since April 27, 1918, since which date they have failed, neglected and refused to substantially comply with and conform to the requirements of said lease, and by reason of the abandonment thereof as herein set'forth, they have ever since April 27, 1918, lost and forfeited all right of possession of said land mentioned in said lease and supplement thereto. That the plaintiffs are owners of all of said land and entitled to the possession thereof.” The lease was made an exhibit to the complaint. The appellants answered and set up that, subsequent to the lease, there was an agreement by which the written reports required in the lease were dispensed with and it was agreed that the diamonds should be divided in kind. They allege that the diamonds already recovered had, by order of the chancery court in a former suit, been brought into court and held there until May, 1920, when they were delivered back to the appellants, and that appellants had been trying to divide the diamonds ever since, and' had tendered them in a suit pending between the parties in federal court. The answer alleged that, under the terms of the supplemental lease, the parties were authorized, when it became necessary to make a change to underground system in mining, to have such time as was necessary for so doing without forfeiting the lease; that in 1917 appellants determined that it was necessary to resort to underground mining, but that by reason of the war with Germany they could not secure the necessary labor for doing tbe necessary excavation and running the washing machine until the 13th of January, 1919, when the plant was destroyed by fire of incendiary origin. They admitted that since April, 1918, they had not washed as much as 10,000 loads of dirt, and alleged that they were not required to do so. They alleged that, ever since the making of the lease, the appellees had persistently and without right constantly engaged them.in litigation, having filed against them more than thirty separate suits, all of which have been decided adversely to the appellees; that, notwithstanding the annoyance and harassments, appellants had expended more than $150,000 in undertaking to develop the mine; that the product of the mine for the last three years has been tied up by the court at the instance of appellees, who had refused to fix a price upon them or to divide them as provided by the verbal agreement made in 1916; that it will cost a quarter of a million dollars to reconstruct the plant, and that, by reason of the annoyance and harassments caused by the appellees, the appellants had been hampered in making their necessary financial arrangements ; that tlieir labor had been disorganized, and that one of the appellees sought to assassinate two of the appellants on the public highway; that diamond-bearing dirt had been uncovered on about five acres of the mine, and that appellees had wrongfully engaged the appellants in litigation for the purpose of fraudulently undertaking to secure a cancellation of the lease for the purpose of appropriating to the use of the appellees the labor and expenditures of appellants; that appellants during the last seven years had not had as much as three months free from litigation iir which to undertake the development of the mine; that the mine is in the shape of a V with the point extending toward the south, and the northern part of the mine is covered by non-diamond bearing rock, the extent of which is not known, and cannot be known, until the appellants are permitted to sink a shaft to determine how far down this rock extends. The answer concluded with a prayer that it be taken as a cross-bill, and that'the court fix a reasonable time within which the appellants may peacefully pursue the prosecution of the work, and that until that time expires appellees be restrained from further proceedings. Embodied in the answer was a general demurrer which challenged the sufficiency of the complaint to state a cause of action, and also the jurisdiction of the court. There was also a motion to transfer the cause to the chancery court. The demurrer and motion to transfer were overruled, and the cause was sent to the jury to be beard on the evidence and the instructions. Such other facts ns may be necessary will be stated as we proceed. The trial resulted in a verdict and judgment in favor of the appellees, which judgment appellants are seeking to reverse on the following grounds: That the complaint did not state a cause of action giving the trial court jurisdiction, and that the court therefore erred in overruling the demurrer. The contract set up in the complaint does not create the ordinary relation of landlord and tenant. It is not a contract by which the lessees are to occupy the property for residence, mercantile, manufacturing or agricultural purposes, and in which the lessor, landlord, receives a certain stipulated sum for one month or one year for the use of the premises leased. But it is a contract for the exploration and development of the leased lands “for diamonds and other precious stones and valuable minerals.” As compensation for the use of his lands for such purposes, the lessor receives by way of rental or royalty a certain percentage of the output from the development of the leased property. In other words, this is strictly a lease for “mining purposes,” such as was under consideration by this court in the case of Mansfield Gas Co. v. Alexander, 97 Ark. 167. In that case we said: “In the construction of mineral leases such as is involved in this case, the authorities uniformly hold that there is an implied obligation on the part of the lessee to procceed with the search and also with the development of the land with reasonable diligence according to the usual course of such business, and that a failure to do" so amounts in effect to an abandonment and works a forfeiture of the lease.” And further: “According to the uniform holding of the authorities, the law will read into this lease a covenant on the part of the lessee that it will with due and proper diligence search the land described in the lease for minerals and with due and proper diligence develop the same. This implied covenant is in effect a condition upon which the lease was made; a failure or refusal to perform that condition results in a forfeiture of the lease.” In the above case many authorities are cue! to support the rule announced therein. The same doctrine is announced in an action in equity brought by the Mauneys to cancel the lease involved herein. Mauney v. Millar, 134 Ark. 15-21, and also in Millar v. Mauney, 142 Ark. 486-490. See also Mansfield Gas Co. v. Parkhill, 114 Ark. 419. Although the above doctrine was enunciated in suits in chancery to cancel the lease, it is. equally applicable in actions at law to recover the possession of the property if there has been such a failure on the part of the lessees, still in possession, to observe the covenants by which they are bound as to be tantamount to an abandonment of those covenants and a consequent forfeiture of all their rights under the contract. If the conduct of the lessees in contracts of this nature is such as to show that they do not intend in good faith to perform the covenants by which they are bound, then they have, in legal effect, rescinded those covenants and released the lessors from the obligations of the contract, and the latter are justified likewise in treating the contract as rescinded. As was said in Huggins v. Daley, 99 Fed. 606-613: ‘ ‘ Such leases vest no present title in the lessee, and if, at any time, the lessee has the option to suspend operations, the lease is no longer binding on the lessor because of want of mutuality; and, where the only consideration is prospective royalty to come from exploration and development, failure to explore and develop renders the agreement a mere nudum pactum, and works a forfeiture of the lease, for it is of the very essence of the contract chat work should be done.” The reason for the rule is that where the lessor receives as royalty or rental a certain percentage of the output of the lands as his only compensation for their use by the lessee for exploration and development, when such work ceases, his compensation ends, and the consideration for the lease fails. In such contracts the lessee usually expressly undertakes, as was the case here, to “diligently and faithfully prosecute the work of development, ’ ’ and, if there is no express covenant to that effect, as we have seen, such a covenant will be implied from the very nature of the contract. Unless it is otherwise provided in the lease, it is always in the contemplation of the parties to such a contract that the lessee is able, financially and in every other way, to perform his undertakings in the time and manner specified in the contract. If, after a reasonable time, he fails to begin and to continue the work of development and exploration provided in the contract, but nevertheless holds possession and exercises control over the leased lands for promotion purposes or financial exploitations, he has by such conduct worked a forfeiture ol his rights under the lease and may thereafter be treated as having abandoned his contract and as holding the land as a trespasser adversely to the lessor. In other words, the lessee under such a contract will not be allowed to speculate upon the chance of being able at some indefinite and unreasonable time in the future to begin and to continue the work of exploration and development required of him under the covenants of his contract. When the contract has been thus virtually rescinded and abandoned by the lessees, the lessors have three remedies, either of which they may pursue. They may go into a court, of equity to cancel the contract and recover any incidental damages; they may in a separate action at law sue for damages for breach of the 'contract; or they may treat the contract as rescinded and sue to recover possession of the property. 1 Pomeroy’s Equity Juris prudence, § 110. That an action at law by the lessor to recover possession of the property leased is an appropriate remedy in such cases is well sustained by the authorities. Aye v. Philadelphia Co., 193 Pa. St. Rep. 451; Paine v. Griffiths, 86 Fed. 452, 38 Atl. Rep. (N. J. Law) 813. See also Acme Oil & Mining Co. v. Williams, 74 Pa. 296 and cases there cited. 1 Pomeroy’s iniquity Jurisprudence, supra; White, Mines & Mining, § 425. We conclude, therefore, that the appellees had the right to institute this action at law to recover the possession of the lands in controversy. The allegations of the complaint are sufficient to state a cause of action, provided they state facts showing an abandonment of the lease contract by the appellants. We will not repeat here all the allegations of the complaint. Among othei' allegations are the following: “That at no time since April 10, 1918, have the defendants washed and treated for the recovery of diamonds as much as 10,000 loads of material from the said Mauney mine, and they have done no work in the said Mauney mine since April 27, 1918, and have not attempted to do any since said time; that at no time since April 27, 1918, have the defendants, or any of them, reported to these plaintiffs, or any of them, the recovery of any diamonds or other precious stones; neither have the defendants, or any of them, given these plaintiffs, or any of them, an opportunity to buy the output of said mine at any time since April 27,1918. ’ ’ These and other allegations in the complaint were sufficient, if true and undenied by the. appellants, to constitute a cause of action at law against the appellants for the abandonment of the contract. On demurrer we must treat all the allegations, properly pleaded, as true and admitted. The court was correct therefore, in overruling the demurrer to the complaint. The answer of the appellants contained allegations which, in effect, denied or completely explained all material allegations of the complaint and showed that there had been no abandonment by them of the property. They admitted that they had not since April, 1919, washed as much as 10,000 loads of dirt, and alleged that by the terms of the supplemental lease they were not required to do so. They alleged that their washing machinery was destroyed by fire of incendiary origin on January 13, 1913; that the product of the mine had been tied up in the courts on account of litigation at the instance of the appellees, who had refused to fix the price of the product or to divide them; that appellants had not made reports and divisions of the output of the mine as provided in the contract because there was a subsequent verbal agreement entered into in 1916 which made the same unnecessary. They alleged generally that in a litigation of more than thirty separate suits filed by the appellees against the appellants, all of which had been decided adversely to the appellees, the appellants had been subjected to annoyance and harassment of various kinds, including intimidation of their labor, and an attempt by the appellee to assassinate two of the appellants, all of which was for tha purpose of fraudulently undertaking to secure a cancellation of the lease and requiring the labor expended in undertaking to develop the mine with a view of appropriating it to their own use and benefit; that during the last seven years appellants had not had as much as three months free from litigation in which to undertake the development of the mine. They set up that, notwithstanding the litigations, they had made large expenditures in undertaking to perform the contract on their part. In short, they denied that there had been an abandonment of their contract, and alleged on the other hand that they in good faith had performed and intended to perform all of their covenants under said contract. They made their answer a cross-complaint and asked, by way of affirmative relief, that they be allowed to peacefully prosecute their work under the contract for at least one year, and that the appellees be restrained from proceeding against them during such time. It is unnecessary to discuss in detail all of the allegations in appellants’ answer. Such of them as were relevant were sufficient to. raise the issue as to whether or not the appellants had abandoned their contract, but they were not sufficient to entitle appellants to have the cause transferred to the chancery court, and to entitle them tc the injunctive relief which they prayed. The appellants do not allege any specific facts in their answer to show in what manner the various suits instituted by the appellees against them had operated to interfere with, the performance of their covenants under said contracts since April 27,' 1918. The allegations of the answer show that all suits prior to April 27, 1918, as well as the suits instituted on that day, had been determined in appellee’s favor, and they do not allege specific facts showing how the suit of April 27, 1918, which was decided in their favor by this court on March 8,1920, had prevented the appellants in the meantime from carrying out their contract. Such facts properly pleaded, if proved, would be a complete defense on the issue of abandonment. Moreover, a court of equity has no power to restrain the appellees from seeking re’dress in a court of law for an alleged abandonment by the appellants of the contract under review and the resultant forfeiture of their alleged rights thereunder. Counsel for appellants have not cited us to any authority, and we do not know of any, which holds that a court of equity has such power. Such of these matters as were pertinent appellants could allege and prove in their defense of the action at law on the issue as to whether there had been an abandonment by them of the contract. But appellants could not by such allegations lift the action at law out of the jurisdiction of the law court and have the same transferred to the chancery court. The court was therefore correct in overruling the motion to transfer. Appellants complain because the trial court refused to permit them to.prove that, beginning with April 1913, about a year after the lease contract in controversy was executed, the appellees instituted a suit against them to cancel the lease, and since that time to the time of the present action had 'been in litigation with the appellants aggregating more than thirty-five suits, all of which, be fore this action was instituted, had been decided adversely to the appellees; that the effect of these suits had been to disorganize their labor and make it impossible for them to secure financial assistance, and that but for these suits the testing’ of the mine would have been completed; that these suits had cast a cloud upon appellants’ title and had deterred parties who had promised them financial assistance from rendering such assistance, and that all this testimony was competent as tending to prove that the appellants in g’ood faith had endeavored to carry out their lease contract and had not before or since April 27, 1918, abandoned the same. The appellants alleged in their answer that all litigation prior to the present action had been decided in their favor. In the case of Mauney v. Millar, 134 Ark. supra, we said: ‘ ‘ Eight of action in this case, if there is one, extends back no further than the last of the adjudications thereof, and must be tested solely by testimony tending to show a breach of the contract since that time. ’ ’ That case was decided April 22, 1918, and on April 27, 1918, the last suit, the one just prior to the present action, was instituted and disposed of on March 8,1920. A little more than a month thereafter, April 20,1920, the present' suit was instituted. In the present action the appellees do not claim that there had been any abandonment of the contract prior to April 27, 1918, and only assert that appellants since that time had “lain idle and ceased operations,” and thus had completely abandoned the mine and the performance of their covenants under the lease contract. In one of its instructions the court told the jury that “the burden is on the defendants to show by a preponderance of the evidence that the shooting of Walter Mauney, or the pend-ency of suits during the period from April, 1918, to April, 1920, actually hindered or delayed the lessees in the performance of the contract, and, unless you find that they did delay or hinder the lessees in perf orming the contract, you should disregard the testimony as to such shooting and such suits.” . The court allowed the appellants in their testimony to cover all the time between the 27th of April, 1918, and April 20,1920. That embraces the period of the alleged abandonment of the contract by the appellants. The court gave the appellants the privilege of proving by competent testimony what had been the effect, if any, of the suits instituted by the appellees against appellants, since April 27,1918, in the matter of interfering with-, or putting obstacles in the way of appellants’ performance of their contract. For instance, the court ruled that defendants (appellants) “may prove any injury to their credit by the bringing of the libel suits since April, 1918, up to the bringing of this suit, the effect they had upon their labor, and upon capital or borrowing of money. ’ ’ Since the appellees, by the present action, have not challenged the loyalty and fidelity of appellants to their contract obligations prior, to April 27, 1918, it occurs to us that it would not be germane to the issues in this case to prove that appellees had not fulfilled their covenants, nor that appellants, in good faith, had kept theirs to April 27, 1918. Such matters were beyond the scope of the issue in the present action, and the court correctly so ruled. The court likewise did not err in admitting testimony tending to prove what might have been accomplished by appellants in testing the extent of the “hardibank” by a diamond drill, instead of by shaft. -This testimony was relevant on the issues of the diligence and good faith of ■appellants. We find no error in-any of the rulings of the court in admitting or excluding testimony. As to the law of the case, but little need be added to. what we have already said in passing on the demurrer and motion to transfer. Since the instrument herein did not convey or grant to appellants any legal title or estate in the land itself, but only the privilege or right of possession for the purpose of mining, the appellants could abandon such right or privilege by a failure to perform their covenants for exploration and development as specified in the lease. See 1 Cor. Jur. p. 10, § 14. Good faith is required of both parties in the observance of their cov enants. If the appellees, by their conduct in instituting lawsuits or in any other manner, put obstacles in the way of appellants which caused them to fail to perform their covenants, then the appellees would be estopped from setting up an abandonment or forfeiture by the appellants. The good intentions of the lessee in such contracts to perform the same will not avail him unless he also has the ability to perform, and actually does perform, the covenants of his contract within a reasonable time. To abandon means to quit; usually the voluntary relinquishment of a right or privilege which one enjoys. But in cases like this the lessee will be held to have abandoned his right or privilege if he, without fault on the part of the lessor, is unable after a reasonable time \o perform the covenants of his lease. Abandonment is ordinarily a mixed question of law and fact. White, Mines and Mining, p. 561, § 423. It was so here. It cannot be said that the undisputed evidence showed that appellants had not abandoned, nor can it be said as a matter of law that they had abandoned and forfeited, their rights under the lease. The issue of fact in this case was therefore one peculiarly for the jury to determine from all the facts and circumstances adduced in evidence under the guide of appropriate instructions from the trial court. The instructions of the court show that it understood and correctly interpreted the contract. Its charge, as a whole, fully and fairly covered every phase of the evidence. These instructions but declared elementary and familiar principles of law applicable to the particular facts which the testimony adduced tended to prove in support of the contentions of the respective parties. There is no error in the rulings of the circuit court, and its judgment must therefore be affirmed. Smith, J., dissenting.

McCulloch, C. J. Appellees constitute the members of the board of improvement of an improvement district created under the general statutes in the town of Hazen for the purpose of improving certain streets and sidewalks, and this action was instituted in the chancery court of the county to enforce the payment of assessments and penalties thereon. The complaint contains allegations in general terms setting forth the creation of the district, the assesment of benefits, etc., and the nonpayment of the assessments by the defendants. A list of the unpaid assessments was exhibited with the complaint. Appellants, who were defendants below and are the owners of property in the district, filed a joint answer, in which they denied all the allegations of the complaint with respect to the creation of the district, and the levy of assessments, and the non-payment thereof. They also incorporated in the answer a cross-complaint attacking the validity of the district and the assessment of benefits on numerous grounds, alleging failure to comply with the statute with respect to the original petition for the ■creation of the district, the second petition, the publication of notice, the enactment of the ordinances, and various other things required by the statute. Crawford & Moses’ Digest, §§ 5647 et seq. The prayer of the answer and cross-complaint is that the ordinances in regard to the district be declared invalid, and that the commissioners be restrained from attempting to collect assessments and from further proceedings under the ordinances. The cause was heard by the chancellor in vacation on stipulation of counsel, and a decree was rendered in favor of appellees for the collection of the unpaid assessments and for the sale of the property of appellants if the assessments be not paid, and also dismissing the cross-complaint for want of equity. An appeal was prayed and granted by the chancellor; but the transcript was not filed in this court within twenty days. There is a motion to dismiss the appeal on the ground that the transcript was not filed within the time required by statute. The statute in regard to improvement districts situated wholly within municipalities provides that, if the assessments on the property be not paid within the time required, the board of improvement •shall “straightway cause complaint in equity to be filed in the court having jurisdiction of suits for the enforce-' ment of liens upon real property for the condemnation and sale of such delinquent property;” that the courts shall always be open for the purpose of taking every necessary step in such suits; that in the decree of condemnation the court “shall direct that if the sum adjudged shall not be paid within ten days the property shall be sold by a commissioner appointed for that purpose;” that no appeal shall be prosecuted from such decree “after the expiration of twenty days herein granted for filing the transcript in the clerk’s office of the Supreme Court;” and that the transcript “shall be filed in the office of the clerk of the Supreme Court within twenty days after the rendering of the decree appealed from.” Crawford & Moses’ Digest, §§ 5673 et seq. We have held that this statute is mandatory with respect to the time for obtaining the appeal and for filing the transcript. Crandell v. Harrison, 105 Ark. 110; Miller v. White, 108 Ark. 253. This is a suit for the collection of delinquent assessments, as provided in the statute; but the contention is that the cross-complaint of appellants, attacking the validity of the district and the assessment of benefits, takes the case out of the operation of the statute with respect to the limitation of time for taking an appeal and filing the transcript. The majority of the court are of the opinion that this contention of counsel is not well founded. The manifest purpose of the statute is to expedite the final disposition of suits to enforce collection of assessments in improvement districts of this kind (Miller v. White, supra); and when a suit is instituted for that purpose, it still retains its character, notwithstanding an effort, by way of cross-complaint, to adjudicate invalidity of the district. The statute prescribes the form of the decree in such cases and fixes a limitation upon appeals “from any such decree.” The decree in the present case falls squarely within the terms of the statute, and the effect of this limitation is not avoided by the fact that appellants, in presenting a defense against the enforcement of the assessments, pleaded new matter by way of cross-complaint. It is further .contended by counsel that, since the statute provides that the chancery court shall always be open for the purpose of taking necessary steps in suits to enforce the collection of assessments (Crawford & Moses’ Digest, § 5681, the statute authorizing vacation decrees on stipulation of counsel (Crawford & Moses’ Digest, § 2190) has no application* and that, if the vacation decree in this case be valid, the suit must be treated as one not falling within the statute in regard to suits for the enforcement of assessments. The two statutes are not at all inconsistent with each other, and are both, applicable to suits of this character. The fact that under the statute the court is open at all times for the hearing* of such cases does not affect the application of the other statute providing for vacation decrees on stipulation. The transcript not having been filed within the time specified in the statute, it follows that the appeal must be dismissed. It is so ordered.

Wood, J. The appellee instituted this' action against the appellants. He alleged, in substance, that the appellant, Arkansas Central Railroad Company, at the time of the filing of the complaint, was under the direction of the agent of railroads for the United States; that the Fort Smith, Subiaco & Eastern Railroad Company was operated in connection with the Arkansas Central Railroad Company; that it was the practice of those roads for shippers of live-stock to order stock cars for destination out of this State from the Arkansas Central through the agent of the Fort Smith, Subiaco & Eastern Railroad Company at its station of Scranton, Arkansas; that on the 18th day of August, 1919, the appellee so ordered two stock cars; one in which to ship cattle and the other to ship hogs. . The shipments were to be made to Kansas City, Missouri; that the agent at Scranton placed the order for the cars with the agent of the Arkansas Central Railroad at Paris and was assured by the agent at Paris that the cars would be ordered immediately; that on the 22nd day of August, 1919, the appellee was notified by the agent of the Fort Smith, Subiaco & Eastern Railroad at Scranton that one of the' cars in which to ship the hogs had arrived at Scranton, and that the other had arrived at Paris; that the appellee had notified the agent at Scranton to notify the agent at Paris that appellee desired to ship both the car of cattle and the car of hogs at the same time and on the same train. The appellee was assured by the agent at Scranton that the cars were ready for appellee’s use. That, relying upon this assurance, on the morning of the 23rd of August, 1919, appellee loaded liis hogs into the car at Scranton to be shipped out in the afternoon and drove his cattle to Paris to be shipped out by the same train on which the hogs were being shipped; that, on arriving at Paris with his cattle, he was informed by the agent there that no car had been ordered for him for his cattle; that appellee immediately placed another order for a cattle car and when his car of hogs reached Paris he was' compelled to unload same and await the arrival of the cattle car; that the delay caused damage to the appellee by shrinkage in value of his cattle and hogs and by the loss of part of his hogs and one cow in the sum of $689.25, for which he asked judgment. The appellant answered, denving all the allegations oi the complaint as to the liability of the appellants. The trial resulted in a verdict in appellee’s favor in the sum of $400 against the appellants. Judgment was rendered for that sum in favor of the appellee against appellants, from which is this appeal. The complaint alleged, and the court will take judicial knowledge, that at .the time of the accrual of the appellee’s cause of action the appellant railroad was being operated by the United States Government through its agent, John Barton Payne, Director General of Railroads. Marshall v. Bush, 167 N. W. 59; Commercial Club v. C., M. & St. P. R. Co., 170 N. W. 149. Therefore, no cause of action is alleged or proved against the appellant company under the provisions of the acts of Congress August 29, 1916, and February 28, 1920, as construed by tile Supreme Court of the United States in Missouri Pacific Railway Co. v. Ault, 41 Sup. Ct. Rep. 593. The court, therefore, should have instruct ed the jury to return a- verdict in favor of the appellant company, and should have entered a judgment dismissing the cause of action as to it. The allegations of the appellee’s complaint show that his cause of action was grounded upon the alleged neglect of the agents of the Director General of Railroads having charge of the operation of the Arkansas Central Railroad at Paris, Arkansas, to have a car ready for the shipment of appellee’s cattle when the car of hogs to he shipped over the same train reached Paris from Scranton. On the issue as to the liability of the appellant, Director General of Railroads, there was testimony tending to sustain the allegations of appellee’s complaint. There was testimony tending to prove that it was the custom of shippers of live-stock who desired to ship same from Scranton to foreign markets to order cars from the agent of the appellant company at Paris. When shippers at Scranton desired cars, they would make requisition orally for same of the agent there, and he would in turn make requisition of the agent of the appellant company at Paris. This custom was pursued in the present case, and there was testimony tending to prove that the station agent at Paris was notified by the appellee that he desired a car for the shipment of cattle and also a car for the shipment of hogs on the 23rd of August, 1919; that he desired to ship this stock through on the same train; that he prepared to make the shipment in this way, giving the reason why it was necessary for him to do so in order to conserve his interests, and that the agent at Paris promised to furnish the cars; that he drove his cattle to Paris for the purpose of making shipment on the same train that the hogs were on, and when he demanded the car for his cattle at Paris he was informed by the agent-that no car had been ordered for him, and the agent told the appellee to let the hogs go forward and to pasture the cattle until he could order and get a car for them. The appellee then enters into detail giving tbe circumstances as to the loss of his stock and the resultant damages caused by his failure to get the .car for the shipment of his cattle. It could serve no useful purpose as a precedent to set out at length and discuss this testimony. It suffices to say that on this issue there was substantial testimony to sustain the allegations of appellee’s complaint and to warrant a verdict for the sum returned by the jury in his favor. The issue as to the liability of the appellant, Director General of Railroads, for a failure to furnish cars yras submitted to the jury under' correct instructions. The judgment as to the Director General is therefore affirmed. As to the railroad company, the judgment is reversed and the cause dismissed.

Wood, J. The appellant appeals from a judgment of conviction for carnal abuse. ITe presents two questions for our consideration. Gibbons King, while being examined as to his qualifications to sit as a juror, in response to questions asked him by counsel for appellant, stated: That he was related to Doctor King, one of the witnesses in the case, and that his relationship might affect him in reaching a verdict. He further stated, in response to questions by the court and counsel, that he would not give any more credence to the testimony of Doctor King than he would give to any other credible witness. He stated that his personal knowledge of Doctor King and relationship to him might determine him to be a credible witness as compared with any other witnesses and cause him to give greater credibility to his testimony. The court held that the juror was qualified, to which counsel for appellant objected, and appellant excused the juror. The appellant afterward exhausted all his peremptory challenges. The appellant duly excepted to the ruling of the court in holding the juror, King, qualified. The court did not err in its ruling. The testimony of Doctor King only tended to prove that he made a vaginal examination of the prosecuting witness and found that her hymen had been ruptured, but there was nothing to indicate whether she had had sexual intercotirse three or four days before. His testimony did not tend to prove any fact connecting the appellant with the commission of the offense charged against him, and the appellant did not attempt in any manner to controvert his testimony. Besides, the answers of the juror to the questions propounded by the court and counsel showed that he was an impartial juror and would not, on account of his relationship to Doctor King,’be biased against the appellant in the consideration of his case; that he would not give any greater credence to the testimony of Doctor King on account of his relationship to him than he would that of any other credible witness. The record shows that, after deliberating for some time, the jury returned to the courtroom, and, upon being asked if they had reached a verdict, the foreman responded: “"We could arrive at a verdict, but, on account of this defendant having a wife and child, we do not feel like, under the circumstances, inflicting the penalty, but we could arrive at a verdict if what we recommend to the court would be given any consideration as to suspending sentence or making it so that his wife and child wouldn’t suffer while he was taken away from them. ’ ’ To this the court responded: “Well, the court wouldn’t feel like making any agreement about it, gentlemen; you will just have to do your duty regardless of that. You haven’t-a right really to consider those things. The question is just one of guilt and innocence. ’ ’ To this the foreman responded: “ Of course, we understand that, but we didn’t know whether you could enter into that kind of an agreement with us or not.” The court replied : “ I do not feel like the court ought to enter into an agreement of that kind. On a question as to the amount of punishment, you could consider that, of course, but the law fixes the minimum punishment; you have a right to fix that at anything within the range which the law prescribes. If you find the defendant guilty, then as a matter of course a punishment ranging in between one and twenty-one years follows. You can now retire. It is your duty to come to a verdict if -the evidence convinces you beyond a reasonable doubt of his guilt.” The appellant objected and excepted to the rulings of the court. The jury retired to further consider their verdict, and later returned into court and rendered the following verdict: “We, the jury, find the defendant euilty as charged, and fix the punishment at one year in the penitentiary.” ■ Afterward the appellant filed his motion for a new trial, and assigned as one of the grounds of his motion “that the court erred in .giving its instruction to the jury when they returned to the courtroom after having deliberated for a considerable length of time, and which proceeding was had in the following manner: ” (Setting forth the proceedings as above.) To sustain this ground of his motion the appellant introduced as witnesses before the court several of the trial jurors, who testified substantially to the effect that the jury had not agreed upon a verdict of guilty at the time they sought information from the court as to whether or not the court could suspend sentence before the jury returned a verdict of guilty. One juror said: “We took the points of the ease into consideration and decided that we could come to a verdict and petition or ask the judge to stay the sentence.” Before that they had not come to a verdict. Some of the jurors- in the consideration of their verdict offered that as an inducement to finally agree on a verdict of conviction. One of the jurors further stated that, after taking the evidence of the case into consideration, they agreed to come to a verdict and then petition for a stay of the sentence. The agreement to petition the court for a stay of the sentence and to return a verdict of guilty “all came in together and was discussed at the same time.” The purpose of the agreement to petition the judge for a stay of the sentence was “to bring about an agreement on the verdict of conviction.” This juror further testified that the court informed the jury, when they sought the information, that “the verdict would have to be reached before anything could be done.” They went back to the jury room and afterward returned their verdict. The juror further stated: “My understanding of it was that, by reaching a verdict and coming to a verdict, that the judge should be petitioned afterward to stay the sentence.” He further stated, in response to a question by the court: “The jurors were all agreed on the; facts of the case, and thought from the evidence that the defendant had carnal knowledge of this prosecuting witness according to the testimony. Up to the time the agreement was entered into to seek information from the court, some of the jurors had voted on all votes taken on the question of guilt, or innocence 'not guilty.’ ” Another one of the jurors stated that, after the jurors couldn’t get together, they went into an agreement to petition the judge. “They thought the punishment was too severe, and the fellows that were not for 'guilty’ wouldn’t agree to anything, and that agreement to petition the judge brought the jurors who prior to that time were voting for ‘not guilty’ to vote for a verdict of ‘guilty.’ ” It was the information of this juror that the verdict of “guilty” would uot have been agreed to by all of the.jurors but’ for the agreement by all of them to petition for a stay of the sentence. The ruling of the court was correct. At the time the verdict was rendered the appellant did not ask to have the jury polled, which he had the right to do. If he had done so, and any of the jurors had answered that the verdict returned was not their verdict, then the verdict could not have been received. Section 3216, C. & M. Digest. The proceedings, to which the appellant objects, were brought to the attention of the court after the verdict had been received and the jury discharged. The only testimony by which appellant sought to impeach the verdict was by the jurors themselves. “A juror can not be examined to establish 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.” Section 3220, C. &. M. Digest; Pleasants v. Heard, 15 Ark. 403; Fain v. Goodwin, 35 Ark. 109; Smith v. State, 59 Ark. 132; Griffith v. Moore, 70 Ark. 244; Wilder v. State, 29 Ark. 293; Williams v. State, 66 Ark. 264; Hampton v. State, 67 Ark. 266; Osborne v. State, 96 Ark. 400. See, also, Capps v. State, 100 Ark. 109; Jenkins v. State, 131 Ark. 312; Kindrix v. State, 138 Ark. 594; Speer v. State, 130 Ark. 457-464. The appellant does not contend, and indeed it could not be contended, that the testimony of any of the jurors proved that the verdict was arrived at by lot. There was no element of chance, hazard, or fortune in the method by which the verdict was decided, as shown by the testimony of the jurors. “Lot” is defined to be “a contrivance to determine a question by chance or without the action of man’s choice or will.” Webster’s Dict.; Chavannah v. State, 49 Ala. 396; Loiseau v. State, 22 So. 138; Johnson v. State, 34 So. 1019. See also Lynch v. Rosenthal, 144 Ind. 86; 42 N. E. 1103, 31 L. R. A. 835. In Speer v. State, supra, at page 464, we said: ‘ ‘ Lot involves an element of chance.” To allow a verdict to be impeached, in the manner herein attempted would contravene the statute and be subversive of a sound public policy which the statute was intended to conserve. The judgment is correct, and it is therefore affirmed.

McCulloch, C. J. Appellee owned a small tract of land at or near the village of Menifee in Conway County, and on July 17, 1919, he entered into a written contract with one McCray for the sale of the land at the price of $325, of which $60 was paid in cash, and the balance was to be payable in installments. Appellant was engaged in the business of selling lumber and other building material, and he sold to McCray material at the price of $609 to use in building a house on the land which he had contracted to purchase from appellee. This material was hauled from appellant’s place of business in Morrilton, and was used in constructing a house on the land purchased by McCray from appellee. Appellee did the hauling for McCray for a price agreed upon between those parties. Nothing was paid on appellant’s account for the building material, nor did McCray make any further payments on his contract witli appellee for the purchase of the land. Appellant did not file his lien as -prescribed by statute, but on December 20, 1919, McCray and his wife executed a mortgage on the land to appellant to secure the debt. Subsequently appellee instituted an action in the chancery court of Conway County against McCray and his wife to declare a forfeiture under the contract and to divest all interest of McCray out of the property and quiet the title of appellee. Appellant was not a party to that suit. The chancery court rendered a final decree on September 20, 1920, in accordance with the prayer of the complaint, quieting appellee’s title, neither of the defendants having made appearance in the action. Subsequently appellant instituted. this action in the chancery court of Conway County against McCray and wife to foreclose his mortgage. In some way not disclosed by the record now before us, appellee got to be a party to that -suit. He was so treated, and filed an answer, no question being raised here as to appellee having been properly brought into the case. The relief sought by appellant against appellee is that the latter’s lien on, or title to, the land be subordinated to his (appellant’s) mortgage debt on the alleged ground that appellee, by reason of having stood by and permitted appellant to furnish the material for building a house, is estopped to assert any claim or title. The case was heard on depositions of the witnesses and documentary evidence introduced, and the court found that McCray and wife were indebted to appellant in the sum of $609 with interest from December 20, 1919, and decreed recovery of that amount as against said McCray and wife, but decreed that appellee’s right and title to the property was superior to appellant’s claim, and that appellant was only. entitled to a foreclosure by paying to appellee the amount of the original indebtedness of McCray and wife to him, which was found by the court to amount to the sum of $260 with interest from July 17, 1919, and appellant was decreed the right to redeem by payment to appellee of the neces sary sum on or before January 1, 1922. The decree provided that, if said sum 'be paid to.appellee on or before the day mentioned, appellee’s title be divested, and that appellant’s mortgage be’ fox-eclosed by sale to be made by the court’s commissioner. The contexition of appellant is that appellee is estopped by reason of the fact that in hauling the material for McCray he lent his assistaxxce to the procurement of the building material and led appellant to believe that McCray had a clear title to the property on which the house was to be built. Appellant also testified that appellee told him that McCray was the absolute owner of the laxxd. This, however, was dexiied by appellee, who testified that he made no such statemexxt to appellant, nor axxy other statemexxt which was calculated to induce appellaxit to believe that McCray had absolute title to the property, or that he (appellee) did not 'have any lien on it. Appellee testified that, 'after making the sale to McCray, the latter employed him at so much per load to haul the buildixig matexial, and that McCray claimed that he had the money with which to pay for the material. McCray’s wife also testified as a witness in the case, and she stated that she had $450 in money and gave it to her husband to use in paying for the building material and thought that the material was paid for. There is a conflict of testimoxiy, but our conclusion is that the findixig of the chaxxcellor to the effect that appellee was xiot guilty of any conduct which would work an estoppel oxi his part is not against the preponderance of the testimoxiy. That being true, appellee’s rights are superior to appellant’s mortgage lien. Appellaxit was not, however, a party to the suit against McCray and wife in which their rights in the property were divested, and he is not bound by that decree. Appellant was a junior lienor and a necessary party to any proceedings to divest the title. Having been omitted from that decree, the. only remaining question which arises in the present litigation is, what are his rights now? There was no appeal by McCray or wife from the former de cree, and that has become finah'as against them. The effect of the decree was to divest the title out of McCray, and, since it is found that appellee’s lien was superior to that of appellant, the latter’s only remedy is to redeem from that lien by payment of appellee’s original debt with interest. Dickinson v. Duckworth, 74 Ark. 138; Longino v. Ball & Warren Commission Co., 81 Ark. 521. It is unimportant to inquire whether the decree was correct in appellee’s suit against McCray and wife in divesting the title, instead of directing a foreclosure of the lien. The decree being unappealed from, it is a final adjudication of the rights of the parties to it, and, as before stated, appellant’s only remedy is to redeem from the prior lien. The rule would not be altered by the fact that under the former decree the relief granted was improper. Under the authorities just cited, appellant was not entitled to have another foreclosure of the lien, for, in order to preserve his own equities, he is compelled to do equity by discharging the superior lien. The court has given him ample opportunity to do this, and the time allowed has not yet expired. We find no error, therefore, in the proceedings, and the decree is affirmed.

McCulloch, C. J. This is an action instituted in the Pnlaski Circuit Court by appellant against appellee to recover possession of a Ford automobile, the ownership of which is asserted by appellant. Upon a trial of the issues before a jury it resulted in a verdict in appellee’s favor. Appellant resides in the city of San Antonio, Texas, and claimed that he was the owner of the automobile there and lent it to one Green, who brought it to Little Rock and, without appellant’s knowledge or consent, sold it to R. L. Bibb, who in turn sold it to appellee. It is undisnuted that Bibb purchased the car from Green in good faith and without any information concerning appellant’s claim of ownership, and that Benson likewise was innocent of any information concerning an adverse claim when he purchased the car from Bibb. The car was originally purchased by Green from a factory agency in San Antonio, and Green executed a mortgage on the car to secure the purchase price. According to appellant’s testimony he made payments on the car for Green, and finally paid off the mortgage and caused the same to be assigned to him, and that Green thereupon sold and delivered the car to him. This occurred in the summer of 1918. In February or March, 1919, Green left San Antonio with the car in company with one Staehle, and made a tour of several States engaged in some kind of an advertising business. They went to New Orleans and spent a few days, and thence to Baton Rouge, Natchez, Vicksburg, Monroe, Shreveport and Texarkana, and on August 17, 1919, they arrived in Little Rock, and placed the car in a garage with which Bibb was connected in some capacity. Green stopped at one of the hotels in Little Rock and-became indebted in a considerable amount for a board bill and pledged the garage claim check or ticket to the hotel management as security for the board bill. On August 23 appellant came to Little Rock in response to a telegram from Staehle, stating that Green had been injured in a fight, and after appellant’s arrival here he advanced money to Green with which to pay his board bill. Appellant immediately returned to Texas, and on September 4 Green sold the car to Bibb, and about a week later Bibb sold - it to appellee. Appellant testified that he owned the car, that he acquired it in the manner stated above, and that he merely lent the car to Green without giving the latter any interest in it -or any authority to sell it. He testified that when he left Little Rock his agreement with Green was that the latter should immediately drive the car back to Texas. According to the testimony, the Texas license for the operation of the car was taken out in Green’s name on February 8, 1918, and was renewed in his name on February 8, 1919. Tlie court refused to give any of the instructions requested by appellant, but submitted the issues to the jury on the following instruction: “The owner of property which he had not transferred. title to may be replevined by him wherever found, unless by his own actions he has permitted the property to be disposed of to an innocent purchaser under such circumstances as would lead an ordinarily prudent person to believe that the property was rightfully sold. Therefore, if you find from the evidence in this case that Forrest was the owner of the automobile in question at the time of the institution of this suit, and was entitled to the immediate possession of same, plaintiff would be entitled to recover, unless you find from the evidence that by his own voluntary acts and conduct he permitted Green to so use and exercise ownership over it as to cause defendant to honestly believe that Green had a right to dispose of it, in which event your verdict will be for the defendant.” The principal contention of counsel for appellant as ground for reversal is that the evidence is not sufficient to support the verdict. We are of the opinion, however, that, the burden being upon appellant as the plaintiff in the case to establish his right to recover the property, there was evidence legally sufficient to justify the submission of the question as to whether or not he was the owner. The only direct testimony as to appellant’s ownership of the car was that given by himself, and all of the other testimony adduced by him was merely in corroboration of his statements. In view, of the circumstances in the case which have already narrated, we think it was a question for the jury to determine whether or not appellant was stating the truth when he testified that he acquired the title and possession from Green, and that in returning the car to Green he merely lent it to him. But we have reached the conclusion that, if appellant was really the owner of the car, there was no testi mony that he “permitted the property to be disposed of to an innocent purchaser under such circumstances as would lead an ordinarily prudent person to believe that the property was rightfully sold,” and that the court erred in submitting that question to the jury. It has long been ruled by this court that possession of a chattel is not conclusive evidence of ownership and of the right of disposal. In McIntosh v. Hill, 47 Ark 364, Chief Justice Cookrill, speaking for the court, said: “Possession of personal property is only prima facie evidence of title, and the doctrine of caveat emptor prevails, notwithstanding the possession. The prima facie title must yield to the actual title when it is asserted, and the buyer who trusts to appearances must suffer the loss if they prove delusive.” All of the circumstances proved in the ease, except the one that appellant, after he claimed to have purchased the car, permitted the Texas license to be issued in the name of Green, merely tend to establish the fact that appellant voluntarily entrusted the possession of the car to Green; but, as we have already said, the law on this subject is that this does not amount to indicia of absolute ownership so as to protect an innocent purchaser. There is no evidence that either Bibb or appellee was apprised of the fact that the Texas license had been issued in the name of Green, or that they acted on the faith of apparent ownership of Green on account of the license issued to him. Unless they knew of this fact and purchased the car on the faith of this fact as an evidence of ownership, it does not afford a ground for submitting the question whether or not appellant held out Green as the owner of the car. In the present state of the proof there is therefore no issue to submit to a trial jury except the single one as to appellant’s asserted ownership of the car. For the error in giving the instruction referred to the judgment is reversed, and the cause remanded for a new triál.

Wood, J. This is an action by the appellee against the appellant as administrator of the estate of R. W. Friend, deceased, on the following order: “Pecan. Point, Ark. “April 23,1914. “I hereby direct the executor of my will to pay to Mollie Patterson one thousand dollars after my death for her faithful servitude and kindness to me during my sickness. (Signed “R. W. Friend.” To the order was attached the affidavit of the appellee authenticating the claim. The order was presented to the probate court for allowance, and the cause was appealed to. the circuit court. The circuit court rendered a judgment in favor of the appellee against the appellant, from which is this appeal. Several interesting questions are presented by this appeal; but 'it is only necessary to consider one. The appellee does not prove that the original order, which is the foundation of the action, was ever exhibited to the administrator, C. W. Friend. She does show that a copy of the order, with the attached affidavit duly authenticating the same, were enclosed in a letter addressed to C. "VY. Friend, the administrator, at Pecan Point, Arkansas, which letter was duly stamped and mailed on March 15, 1919. The appellant denies receiving this letter, but it was a question of fact as to whether be did receive it, and the court would not disturb the finding of the trial court -on that issue. However, the failure of the appellee to exhibit the original order to the administrator of the estate of R. W. Friend, deceased, bars her right to recover thereon. Sec. 100, C. & M. Digest, provides: “Any person may exhibit his claim against any estate as follows: If the demand be founded on a judgment, note or written contract, by delivering to the executor or administrator a copy of such instrument with the assignment and credits thereon, if any, exhibiting the original, and if the demand be founded on an account, by delivering a copy thereof, setting forth each item distinctly and the credits thereof, if any.” This provision of the statute requiring the original to be exhibited to the administrator is mandatory. If a non-resident claimant, or a non-resident lawyer of such claimant, wishes to present a claim, he- must enclose the original along with the copy of the instrument in the letter to the administrator or executor, or he must exhibit the same to the administrator in person or by some one whom he has duly authorized to do so. The statute conserves a wise purpose, inasmuch as it was intended to prevent possible mistakes, frauds, or forgeries, by giving to the executor or administrator the opportunity to examine the original instrument which is the basis of claim before approving or rejecting it. As we have said, it must be complied with before the claimant can have judgment in his favor allowing the claim against an estate in the probate court. The judgment of the circuit court is therefore reversed, and the cause will be dismissed.

Humphreys, J. About two acres of land belonging to appellant was condemned for road purposes in the Searcy County Court, in which proceeding appellant was awarded damages in the sum of $300. An appeal was prosecuted to the circuit court, where, upon a trial de novo, appellant was awarded damages in the sum of $350, from which is this appeal. Reversal of the judgment awarding damages in the sum of $350 only is sought xipon the alleged ground that the least amount which could have been assessed under the evidence was $700. The basis for this contention is that, according to the testimony of any witness testifying upon the point, the lowest value of the land actually taken was placed at $200 and the lowest estimate of damages made on account of taking it was $500. The opinions of the several witnesses, both as to the value of the land taken and the damages resulting to appellant by reason of taking it, varied widely.. In valuing the land actually taken, the testimony ranged from one hundred to four hundred dollars an acre; and in estimating the damages accruing to appellant by reason of taking the land the testimony ranged from five hundred to a thousand dollars. The record, however, contains other evidence than the opinions of the several witnesses as to the value of the' land taken and the amount of damages sustained by appellant on account of taking it. The record reflects the amount, character, and shape of the land taken, the condition in which it left the remaining land belonging to appellant, and the inconvenience resulting to him on account of taking it. The fact was developed that the strip taken was adjoining and parallel to a railroad right-of-way already traversing appellant’s lands, so that the taking of the land did not divide the main body of land differently from the way it was di-’ vided by the railroad right-of-way; that the railroad right-of-way separated appellant’s residence from the main body of land in cultivation, so the taking of the land for road purposes did not cut off appellant’s farm lands from his improvements; that the only expense entailed upon appellant by reason of taking the land for the road was the cost of constructing a crossing over it. In the assessment of damages for injury to real estate juries must necessarily be governed by the testimony of the witnesses in the case, but, in reaching a result, may consider all the evidence in the case, and are not restricted to values of, and estimates of damage to, real estate fixed by the opinion of one or more witnesses. Jurors are accorded great latitude in the consideration of testimony, and in testing the sufficiency of the evidence necessary to support a verdict, this court “will view it in the light most favorable to the appellee.” Bennett v. Snyder, 147 Ark. 206. Applying this rule to the facts in the instant case, the jury may have concluded that the only damage sustained by appellant was the value of the land actually taken and the cost of the construction of a crossing over the road. This, on account of the fact that the road paralleled the right-of-way of the railroad already there and did not cut the land in parts different from the parts into which it had been cut by the railroad right-of-way. The evidence would have sustained a much larger verdict than that rendered by the jury, but the evidence is legally sufficient, when accorded its strongest probative force, to sustain the verdict rendered. No error appearing, the judgment is affirmed.

Hart, J. (after stating the facts). The defendant signed a note for $900 dated January 7, 1916, payable to the order of F. B. Collins on the 1st day of January, 1923. The note bore 6 per cent, interest per annum, and the defendant signed fourteen interest notes payable semi-annually. Cox and Tompkins received $252 as commission. Counsel for the plaintiff concedes that the commission paid Cox and Tompkins added to the principal and interest of the notes exceeds in amount the legal rate of interest and renders the contract usurious, provided Cox and Tompkins were the agents of Collins. In Vahlberg v. Keaton, 51 Ark. 534, the court, in discussing whether or not a bonus paid to the agent of the lender constitutes usury, said: ‘‘The lender may receive for the forbearance of money ten per cent, per annum and no more. In'excess of that his agent can receive no bonus from the borrower. If the agent do receive from the borrower a bonus in excess of the highest lawful interest, either with his knowledge or under circumstances from which the law will presume he had knowledge, then the transaction is usurious; while, if the agent received the excessive bonus without his knowledge, and under circumstances from which his knowledge could not be reasonably presumed, the transaction would not be usurious. "What circumstances will raise the presumption of knowledge must be determined in each case in accordance with the principle by which knowledge is imputed to persons, in controversies generally. We will add now, that where a lender places money with an agent to be loaned, with the understanding that he must receive the highest lawful interest, and that the agent must look to the borrower for his commissions, the circumstances necessarily impute knowledge to the lender, of an usurious bonus received by the agent upon each loan.” This rule has been steadily adhered to by the court ever since. Habach v. Johnson, 132 Ark. 374. In Jones v. Phillippe, 135 Ark. 578, the court held that, where a loan of money was made at the highest rate of interest, and the lender, contemporaneously with the contract and as part consideration of it, received part of a bonus paid by the borrower to a broker for procurring the loan, the loan is usurious. Here the lender did not receive the highest rate of interest, but it is conceded that the commission received when added to the interest amounted to more ■I han ten per cent, per annum on the amount received by the borrower. The question then is, were the commissions paid to Cox and Tompkins a part of -the interest? As we have just seen, to render a loan usurious on account of a commission paid to a broker or intermediary, it must appear that he was the agent of the lender and took the commission under authority, express or implied, from his principal. • In the present case the borrowers agreed to pay Cox $252 as commission. Although Cox and Collins deny that Cox and Tompkins were the agents of Collins, the attending circumstances contradict them. Collins furnished the money directly to the borrowers. He was engaged in the farm loan business and paid all his loans to the borrower through the F. B. Collins Investment Company. Tompkins was treasurer of that company. Neither Cox nor Tompkins prepared or had anything to do with the note and mortgage in question. The note and mortgage'were prepared by T. M. Miller, the agent of F. B. Collins, who was sent to inspect the farm. At the same time he prepared the loan contract in which it was agreed to pay Cox $252 commission. Miller had never seen Cox, and did not have any instructions from him as to preparing this loan contract. If Tompkins and Cox were not the agents of Collins, neither Collins nor Miller were interested in securing the signature of the Vaughts to the loan contract to Cox. This contract was executed simultaneously with the execution of the notes and mortgage. Tompkins was the treasurer of the company through which the payment to the Vaughts was made, and, as such treasurer, it was his duty to keep the account of Collins as to farm loans. When the relationship of Tompkins and Collins is considered in connection with the attending circumstances, we are of the opinion that the transaction was a cloak for usury, and that the chancellor did not err in finding for the defendants. 1 Tompkins took a second mortgage on the land in question to secure his commission in the sum of $126. He brought suit to foreclose his mortgage, and the testimony was practically the same as in the present case. The chancery court held that the contract was usurious and void. Upon'appeal to this court the decree of the chancery 'court was affirmed. Tompkins v. Vaught, 138 Ark. 262. It is true, as pointed out in that opinion, that neither Collins nor his assignee was party to the suit, and the decree in that case did not affect their rights. However, the substance of the transaction is the same. In that case the court said that the evidence justified the conclusion that the notes in controversy were executed purely as a bonus to the lender, or his agent, for making the loan, and that the contract was usurious. No reason has been given for making a different holding here, and we can perceive none. Therefore, the decree will be affirmed.

Ed. F. McFaddin, Justice. Appellants prosecute this appeal from a decree (1) awarding appellee Hardy $3,000 for breach of warranty; (2) refusing- appellants a judgment against appellee Little; and (3) refusing to allow appellants a foreclosure. In July, 1945, appellants, T. II. Van Bibber and Velma Louise Van Bibber, his wife, through the efforts of Tom Little, a real estate broker, agreed in writing to sell Alvin Hardy certain real property in the City of Blytheville. There was a two-story building on the property. The ground floor was leased to George Stilwell at a rental of $100 per month; and the second floor was used as a hotel by Mrs. Van Bibber. The sales contract stated, inter alia: “All rents to go to the purchaser after August 1, 1945. “It (is) understood by both parties that the ground floor of this buliding is now leased till September 1st, 1946. And (at) which time the purchaser can get possession. The seller agrees to vacate her personal and household goods in thirty days from date.” The total contract price was $20,000, of which amount $7,000 was evidenced by a lien note executed by Hardy to the Van Bibbers, due in installments of $100 each month, and with the option given Hardy to pay the entire, balance at any time. On July 19, 1945, in keeping with the sales contract, the Van Bibbers executed to Hardy a general warranty deed, but in which the covenant of warranty made no mention of Stilwell’s possession or contractual rights concerning the ground floor of the building. After delivery of the deed, Stilwell regularly paid his rent to Hardy for several months, and then demanded an extension of his lease of the store building for three additional years, exhibiting to Hardy thé original 1943 lease contract between Stilwell and the Van Bibbers, which read in part: “This lease is for a period of three years from September 1, 1943, and the rental price is $1,200.00 per year, payable in monthly installments of $100.00, payable in advance, and second party is given the privilege of renewal of said lease for from one to three years, at the same rental and upon the same general terms.” Hardy paid Stilwell $3,000 in order to obtain possession of the ground floor store building on September _ 1, 1946; and then Hardy filed this action against the Van Bibbers for breach of warranty, claiming that it had been represented to him that he would get possession of the ground floor on September 1, 1946, and that the Van Bibbers had contracted with Stilwell that he might have an extension, and that the $3,000 was the amount of the damages for the possession of the store building from September 1, 1946, through the period of the contractual extension held by Stilwell. In defending the action, the Van Bibbers claimed that Hardy had known, all the time, that Stilwell had the right to a three-year extension, and that Hardy made monthly payments to the Van Bibbers after knowing of the Stilwell contract, and after having paid Stilwell the $3,000, thereby creating an estoppel against Hardy. The Van Bibbers also alleged that Hardy was in default in his monthly payments on the note, and prayed a fore- ■ closure of their lien. The Van Bibbers made Tom Little a cross-defendant, alleging that they had informed him, as their real estate agent, all about the Stilwell contract, and that Little had failed to put the correct provisions in the Hardy sales contract and the general warranty deed. Little’s defense was a general denial. The respective parties testified in accordance with their pleadings; and the Chancery Court found and decreed: 1. That Hardy was entitled to judgment against the Van Bibbers for $3,000 for breach of warranty; 2. that the Van Bibbers were entitled to no relief against Little; and 3. that the Van Bibbers were not entitled to foreclose their lien on the property for the balance of the $7,000 purchase note. To reverse that decree, the Van Bibbers bring this appeal. We discuss the issues under the following topic headings. ; . • I. Breach of Warranty. The possession by Stilwell of a portion of the premises described in the deed from the appellants to Hardy was a breach of the covenant of warranty. Crawford v. McDonald, 84 Ark. 415, 106 S. W. 206; Kahn v. Cherry, 131 Ark. 49, 198 S. W. 266; see, also, O’Bar v. Hight, 169 Ark. 1008, 277 S. W. 533 and Arkansas Trust Co. v. Bates, 187 Ark. 331, 59 S. W. 2d 1025. But under the general rules of estoppel, Hardy could not be heard to claim any damages arising from such breach until after September 1, 1946, because of the provisions in the sales contract, to which Hardy had agreed, and which stated: “The ground floor of this building is leased till September 1st, 1946.” However, the same paragraph in the sales contract continued in this language: “. . . (at) which time the purchaser can get possession.” The written provision in the sales contract, when considered with the general warranty deed, makes clear that, if the appellants granted Stilwell any lease rights effective after September 1, 1946, then such grant was not only a breach of the covenant of warranty in the deed, but was also actionable by Hardy, unless he be prevented from asserting his cause of action because of estoppel or waiver. By way of defénse, appellants claim that Stilwell’s possession at the time of the delivery of the deed was notice to Hardy of the full extent of Stilwell’s rights to the premises, even including the right of renewal of the lease; and appellants cite Thalheimer v. Lockert, 76 Ark. 25, 88 S. W. 591 and Prince v. Alford, 173 Ark. 633, 293 S. W. 36 to support their contention. To these cases may well be added First National Bank v. Gray, 168 Ark. 12, 268 S. W. 616, wherein we said: “. . . the possession of a tenant or lessee is not only notice of all of his rights and interests connected with or growing out of the tenancy itself or the lease, but is also notice of all interests acquired by collateral or subsequent agreements.” From these cited eases appellants argue that, since Hardy had constructive notice of all of Stilwell’s rights, therefore Hardy is now barred from claiming a breach of warranty. But in this argument appellants are confusing Stilwell’s rights under his possession with Hardy’s rights under the covenant of warranty. Stilwell could claim that his possession was notice to Hardy of the lease extension rights; but that claim by Stilwell does not protect the appellants, because it is definitely stated in their contract (as previously quoted) with Hardy, that on September 1, 1946, full possession of all of the premises would be delivered to him. In effect, the appellants — by their representation — lulled Hardy into a feeling of security that could well have caused him to forego any inquiry of Stilwell as to the duration of possession or right of extension. Such is the effect of Hardy’s testimony. Our holding in the recent case of Thackston v. Farm Bureau Lumber Corp., 212 Ark. 47, 204 S. W. 2d 897 is apposite to the point now under discussion. In the reported case Rinehart had executed a timber deed to the Lumber Corporation which, with an extension, allowed until March, 1946, for the timber to be cut and removed. In September, 1945, Rinehart sold the land to Thackston, representing that all rights of the Lumber Corporation expired in December, 1945. We held that the Lumber Corporation’s right to remove the timber continued until March, 1946, even against the rights of Thackston. But we also held that Rinehart was liable to Thackston on the warranty in the deed for all damages accruing after December, 1945, because Thackston ivas not informed that the Lumber Corporation had any rights to cut and remove the timber after December, 1945. Likewise, in the case at bar: Stilwell’s right to an extension of his lease is superior to Hardy’s claim; but Hardy can recover from appellants on the warranty for all damages accruing after September 1, 1946. Appellants further contended — in their efforts to defeat Hardy’s action on his warranty — that Hardy actually knew, before he received the deed, of Stilwell’s right to extend the lease. We need not discuss the questions (a) whether one who contracts to purchase property with knowledge of a title defect thereby waives the right to a perfect title, and (b) whether knowledge by a grantee of an outstanding easement or claim is an estoppel' against an action for warranty, because the evidence in the case at bar preponderates to the effect that Hardy did not actually know — until long subsequent to the receipt of the deed by him — -that Stilwell had any rights to possession after September 1, 1946. Furthermore, Hardy’s acceptance of the monthly rental money from Stilwell up to September 1,1946, could not work an estoppel against Hardy, because the appellants in the contract of sale had assigned all such rent money to Hardy. Neither did Hardy’s acts, in making his monthly payments to appellants after September 1, 1946, estop Hardy from maintaining an action of breach of warranty. The making of such payments by Hardy did not mislead the appellants in any way. They were benefited, rather than prejudiced, in receiving such payments. See Schlumpf v. Shofner, 210 Ark. 452, 196 S. W. 2d 747, wherein we said: “The party invoking estoppel must ordinarily show that on account of the action or conduct of the party against whom it is asked he has been put in a more disadvantageous position than he would otherwise have occupied. Nothing in the testimony indicates that anything done by appellee caused appellants or their predecessor in title to assume a different position in the matter than either of them would otherwise have occupied. ’ ’ So we hold that Hardy had an action for breach of the covenant of warranty, and that he cannot be defeated by either estoppel or waiver. II. Action as Premature. Appellants urge that Hardy’s action for alleged breach of warranty was prematurely filed, their contention being that a covenant of general warranty is broken only by eviction, and that Hardy was never evicted and his title did not completely fail. To support this contention, appellants cite, inter alia, these cases: Gibbons v. Moore, 98 Ark. 501, 136 S. W. 937; Carpenter v. Carpenter, 88 Ark. 169, 113 S. W. 1032; Quinn v. Lee Wilson & Co., 137 Ark. 69, 207 S. W. 211. It is true that a covenant of general warranty is broken by eviction (actual or constructive) by the outstanding superior title, just as these cited cases hold; but it is also true that a convenantee may settle an adverse and superior title claim, prior to actual eviction, and then maintain action against the covenantor for breach of warranty, without having been actually evicted. In such a case, the covenantor may put in issue the question of whether the adverse title was superior. In the case at bar the right of Stilwell to an extension of his lease was superior to the right of Hardy to possession after September 1, 1946. This was discussed in topic I, supra. Stilwell’s continued possession after September 1, 1946, constituted continued eviction of Hardy. The facts and holdings in Scoggin v. Hudgins, 78 Ark. 531, 94 S. W. 684 support the above statements. Hudgins, in order to protect his possession, satisfied a judgment held against the deeded property by a superior adverse title; and then Hudgins — without being evicted ■ — brought action to recover on his warranty. Mr. 'Justice Battle, speaking for this Court, said: “Hudgins’ cause of action accrued on the tenth day of December, 1900, when he paid the judgment recovered by Bowman, as receiver. He was not bound to wait, until he was actually disseized. If he had done so, his right of redemption would have expired, and he would have lost the land, with the right to recover on the covenant of his grantor only a small part of its value. Why submit to such loss? Why wait for the inevitable? Equity does not require such sacrifice. Collier v. Cowger, 52 Ark. 322, 12 S. W. 702, 6 L. R. A. 107; Dillahunty v. Railway Co., 59 Ark. 629, 634; 8 Am. & Eng. Enc. Law (2 Ed.), p. 203, and cases cited.” So we hold that Hardy’s action for breach of the covenant of warranty was not prematurely filed. III. Damages. No question was raised by the Van Bibbers as to the extension being otherwise than definite and for three years. Hardy paid Stilwell $3,000 in order to cancel Stilwell’s right to further possession under the right of lease extension, and to obtain possession of the ground floor of the building on September 1, 1946. It was-shown by a witness, unrelated to the parties, that the value of Stilwell’s lease for the ad ditional 36 months after September 1, 1946, would have been $7,200, or $3,600 more than the contract rent; so the $3,000 paid by Hardy to Stilwell was not excessive. In Collier v. Cowger, 52 Ark. 322, 12 S. W. 702, 6 L. R. A. 107, we said: “Where the covenantee buys in the outstanding encumbrance to protect his estate, he is entitled to recover the sum expended in so doing, provided such sum does not exceed the amount paid to the warrantor for the property, with the legal interest on such sum from the date of extinguishment of such encumbrance. Boyd v. Whitfield, 19 Ark. 447; Rawle, Cov. Tit., sections 143-6.” Other cases which state this right, and announce the measure of recovery, are: Brawley v. Copelin, 106 Ark. 256, 153 S. W. 101; Scoggin v. Hudgins, 78 Ark. 531, 94 S. W. 684, 115 Am. St. Rep. 60; Dillahunty v. Railway, 59 Ark. 629, 27 S. W. 1002, 28 S. W. 657; Alexander v. Bridgford, 59 Ark. 195, 27 S. W. 69; Barnett v. Hughey, 54 Ark. 195, 15 S. W. 464; Mayo v. Maxwell, 140 Ark. 84, 215 S. W. 678; and Fox v. Pinson, 182 Ark. 939, 34 S. W. 2d 549, 74 A. L. R. 583. IV. Appellants’ Complaint Against Tom Little. The gist of the appellants’ complaint and evidence against Little was: that Little was a real estate broker; that as their agent he assured appellants that he would take care of all details and protect them in the sale to Hardy; that appellants explained to Little all about the rights of Stilwell to an extension of his lease; that Little negligently failed to place in the Hardy contract or deed anything about Stilwell’s rights to extension of the lease; and that appellants should have judgment against Little for whatever amount the Court might award Hardy in his breach of warranty action. Little testified that at no time prior to the delivery of the deed did he ever receive any information from the appellants, or anyone else, intimating that there was, or might be, any provision in the Stilwell lease by which the lease could be extended beyond September 1, 1946. In other words, Little denied categorically all that part of the appellants’ testimony wherein they said they had explained to Little about Stilwell’s rights to an extension of the lease. Little was supported in Ms testimony by the witness, Eddie B. David, who had been an employee of Little in 1945, but, at the time of testifying in this case, was no longer connected with Little, and was in fact a competitor to him. David testified that he personally handled all of the transactions with the appellants, and that the appellants never at any time informed him or Little that Stilwell had any right to extend the lease beyond September 1, 1946. David was positive on this point, and we are convinced that his testimony supplies that preponderance of the evidence required to support the Chancery finding. In short, the appellants did not inform Little or David about the lease extension rights of Stilwell, so Little was guilty of no actionable negligence; and we affirm the decree of the Chancery Court in denying appellants a judgment against Little. V. Appellants’ Right of Foreclosure. At the inception of the litigation the appellants insisted that Hardy had practiced trickery on them in order to obtain the proper service of process; but they abandoned that claim when they filed their cross-complaint seeking to foreclose their mortgage (deed of trust) for the balance due thereon. The Chancery Court denied the appellants such right of foreclosure; and to that extent we hold that the decree of the Chancery Court was in error. ' ' As a part of the purchase price for the property, Hardy executed a note to appellants for $7,000 payable at the rate of $100 per month. The note gave Hardy the right to pay off the entire balance at any time in advance of the due date, and also provided that failure to make any monthly payments promptly when due would mature the entire note at the option of the holder. In December, 1946, Hardy wrote appellants that, under the right given him, he declared the entire note to be due, and asked that it be sent to the bank at Blytheville for payment. When the note reached Blytheville Hardy filed his action for breach of warranty, and attached the note, since the appellants were nonresidents. Thus, Hardy elected to declare the entire amount due, and by this suit obtained a credit on the note for the amount adjudged to be his damages for breach of warranty. But certainly Hardy owes the balance on the note; and the appellants are entitled to a foreclosure of their deed of trust for the balance due on Hardy’s note, after crediting the judgment for breach of warranty. It follows that the decree of the Chancery Court is affirmed on all points except as to appellants’ right of foreclosure. On that single issue the decree is reversed, and the cause is remanded with directions to allow appellants a foreclosure unless the balance due them be promptly paid. The costs of this appeal are adjudged to be paid one-half by appellants and one-half by appellee Hardy. The parties to this litigation have treated this language as _ definitely giving Stilwell the right to an extension for three years, so we forego anv discussion as to whether such was the enforcible meaning of the language. See Walker v. Towns, 23 Ark. 147, and subsequent cases. See Geren v. Caldarera, 99 Ark. 260, 138 S. W. 335 and Kahn v. Cherry, 131 Ark. 49, 198 S. W. 266.

Ed. F. McFaddin, Justice. The wife has appealed from a divorce decree granted her husband. On March 26, 1948, Stanley Price filed suit for divorce against Vernie Price on the ground of indignities. Even though Mrs. Price lived in Portland, Oregon, she came to Arkansas to personally testify at the trial on September 15, 1948. The decree rendered for the plaintiff does not specify the ground on which the divorce was granted; but appellee (plaintiff) maintains the decree was correct, either because of (a) indignities1 or (b) three years separation. We test the correctness of the decree on both grounds. I. Indignities. The parties were married in 1934 and continued to live together as husband and wife until August 15, 1945. Mr. Price was an officer in the Armed Forces in World War II; and while overseas he wrote his wife most endearing love letters. After he returned to the United States and visited his wife, and while awaiting military discharge, he wrote her a letter, dated August 15, 1945, reading in part: “I had a grand time on my short visit with you and Tony. Now a little word of advice. You should not love anjmne as much as I know you love me. It is too tough when you get hurt. You have been the finest wife in the world, but I know as well as anything in the world that you are destined to be hurt again. You should really despise me, then you would be much better off.” The next day (August 16, 1945) he wrote her another-letter, which reads in part: ‘ ‘'First, I want to say that I am a coward and very unfair to handle this by mail. It is a rotten way to do it and not at all fair to you, but it seems it is the only way I have guts enough to do it. “There is no use beating around the bush any longer. I am not coming back to live with you after the war. I want to assure you that it is nothing you have done or said to cause me to make this move. You have always treated me fair and done everything in your power to make me happy. I won’t lay it on the war either, even though it has done strange things to a lot of people. “I presume and hope you will hate me for this. It will be much easier for all, that way.” In testifying, Mr. Price claimed that Mrs. Price had been guilty of indignities towards him, in that she had been a poor housekeeper, had appeared in public with disheveled hair and wearing a soiled dress, and had refused to go with him to Humboldt, Tennessee, to live. This testimony by him is uncorroborated in the main, and is entirely belied by his own letters to her — parts of two having been previously copied — which show that on August 16, 1945, he advised her that he had separated from her for reasons best known to himself. He did not then consider her as being at fault in any way. Without lengthening this opinion by detailing and commenting on all of the testimony, we conclude that the evidence offered on behalf of Mr. Price is entirely insufficient to support a decree on the ground of indignities. II. Three Tears Separation. This is the seventh ground for divorce as listed in § 34-1202 Ark. Stats, of 1947. The evidence shows that Mr. Price separated himself from Mrs. Price on August 16, 1945. At the time of the trial in the Chancery Court on September 15, 1948, Mr. Price probably had a matured cause of action based on this ground; but he did not have such a cause of action when he filed his complaint on March 26, 1948, and no pleading was ever filed alleging three years separation. In the course of the tidal there were several references to a desire by the plaintiff that the court treat the complaint as amended to allege three years separation; but such references are insufficient in this case to support a divorce decree based on three years separation. We reach this conclusion for either of the two reasons now to be discussed. (A) We have held that before a trial starts, the plaintiff may file an amendment alleging a cause of action which matured after the filing of the original complaint; but no such amendment was filed prior to the commencement of the trial in this case. We have also held that if a new cause of action be alleged in the course of the trial, then the defendant may waive the right to object to such new cause of action. There was no such waiver here. We have in this case a situation in which the plaintiff, after the commencement of the trial and over the objections of the defendant, sought to allege a new and different cause of action for divorce' — i. e., the three years separation. Even under our liberal rules for amendment of pleadings, we have held that, over the objection of the defendant, a new cause of action should not be permitted in the course of the trial. In Patrick y. Whitley, Mr. Justice Battle, after referring to section 6145, Kirby’s Digest, said: “Under statutes like this it has been uniformly held that -no amendment can be allowed after the commencement of a trial which introduces into the case a new cause of action.” We therefore hold that after the trial commenced, the court should not have permitted the plaintiff to file an amendment alleging three years separation as a ground for divorce, since the defendant objected to such amendment. (B) AVe point out that the learned trial court did not permit such amendment to he filed; and we give two excerpts from the record. In the course of the trial this occurred: “THE COURT: According to your statement, he did have three years separation. ATTORNEY FOR DEFENDANT: He didn’t have at the time this suit was filed. THE COURT: He can dismiss this and file .another one. ATTORNEY FOR DEFENDANT: If he wants to do that, that is all right.” Then, later, when the attorney for the plaintiff sought to have the three-year separation considered by the court, the following occurred: “ATTORNEY FOR PLAINTIFF: This is a new cause of action. The cases say where you have a new cause of action and you bring in testimony and it isn’t objected to by the defendant, and you ask that the complaint conform to the proof; you can bring that new cause of action; and I will show you cases. THE COURT: You will have to have that separation, I think, outside of the time the case was pending. In other words, it has to be three years and start all over. ’ ’ The excerpt last quoted contains the final remark made by the trial court on the point; and from the tenor of that remark it is clear that the trial court correctly refused to consider the three years separation as a ground for divorce in this case. Conclusion: 1. AVe reverse the decree granting the plaintiff a divorce and dismiss his present suit, but without prejudice to his right to file a new suit under the three-year separation statute. 2. AVe affirm the award of alimony to the defendant, and allow her an attorney fee of $100 in addition to all attorney fees previously allowed, and we adjudge all costs against the plaintiff. Section 34-1202 Ark. Stats, of 1947 lists the grounds for divorce and “indignities” is listed as a part of the fifth ground. Three years separation is the seventh ground for divorce as listed in § 34-1202 Ark. Stats, of 1947. Pettigrew v. Pettigrew, 172 Ark. 647, 291 S. W. 90. Ferguson v. Carr, 85 Ark. 246, 107 S. W. 1177. Patrick v. Whitley, 75 Ark. 465, 87 S. W. 1179, 5 Am. Cas. 672; Midland Valley Rd. Co. v. Ennis, 109 Ark. 206, 159 S. W. 214; Austin v. Dermott Canning Co., 182 Ark. 1128, 34 S. W. 2d 773. Now § 1463, Pope’s Digest, and a part of § 27-1160 Ark. Stats. of 1947. See Trimble v. Trimble, 65 Ark. 87, 44 S. W. 1040. See Gabler v. Gabler, 209 Ark. 459, 190 S. W. 2d 975.

Leflar, J. In March, 1942, the defendant Edward P. Mahaffy applied for and was issued $20,000 of life insurance, in eight policies for $2,500 each, by plaintiff Aetna Life Insurance Company. The policies contained identical clauses providing for double indemnity in event of death by accidental means and for waiver of premiums in event of total disability before age sixty. A two-year incontestability clause applied only to tbe principal life insurance obligation, and not to tbe double indemnity and waiver of premium on total disability provisions. On or about March 1, 1946, Mabaffy made claim for Avaiver of premiums under tbe total disability clauses, asserting blindness as a ground, this being one of tbe forms of total disability listed in tbe policies. After some investigation of tbe circumstances connected with tbe inception of tbe policies, tbe Company in May, 1946, notified Mabaffy that it would cancel tbe contestable portions of tbe policies on account of alleged “material misrepresentations ’ ’ connected with bis application for tbe insurance in 1942. Tbe effect of tbe Company’s allegations was that Mabaffy bad concealed bis approaching blindness when be applied for tbe insurance. Mabaffy refused tbe Company’s request that be deliver up tbe policies for rewriting. The Company then filed this bill in equity praying that the contestable portions of tbe policies bé cancelled, and Mabaffy cross-complained asking that the clauses providing for waiver of premiums be declared operative as of tbe date when total disability was claimed. Tbe Chancellor after bearing evidence found all issues for tbe defendant, both on tbe original bill and tbe cross-complaint, and decreed that tbe policies were effective according to their terms. This included a determination that Mabaffy should receive back from tbe Company tbe amount of certain premiums (which be bad paid in order to be sure tbe policies were kept alive, after claiming rights under tbe waiver of premium clauses) plus interest, damages, costs and a $1,000 attorneys ’ fee. From this decree the Company appealed. Tbe evidence indicates that Mabaffy bad started wearing glasses during tbe year' before March, 1942, when be applied for these policies and that on December 11, 1941, be made a short call on Doctor E. J. Calcóte, a Little Eock physician specializing in eye diseases. Mabaffy testified that tbe purpose of tbe visit was “to see about new glasses. ’ ’ Doctor Calcóte in bis private notes on tbe .visit indicated that Mabaffy’s trouble was “prob ably retinitis pigmentosa.” This is an incurable disease normally leading to blindness, and is in fact tbe disease from which it was later ascertained that Mahaffy suffers. The doctor, however, did not tell Mahaffy what his diagnosis was, except that he had “gun barrel vision” which he explained as being a narrowing of the field of vision comparable to that which occurs when one looks down the barrel of a gun. The width of the area of Mahaffy’s vision was then about one-third of the normal field. He warned Mahaffy that he ought not to drive a car, at least in heavy traffic, but apparently did not say anything that would warn a layman such as Mahaffy that he was going blind. He did not prescribe new glasses. Mahaffy had no further contact with Doctor Calcóte until 1946 because the doctor went into the Army shortly after the December, 1941, consultation. Within a few months after the policies were issued, Mahaffy consulted three other doctors about his eyes. These included a specialist at Memphis whose diagnosis was inconclusive, his family physician at Little Rock who undertook no diagnosis, and Mayo’s Clinic at Rochester, Minn., where on August 26, 1942, his condition was definitely diagnosed as retinitis pigmentosa. At Mayo’s he was told that he had this disease and that by reason of it the range of his vision would become narrower and narrower until he was blind. No hope for cure was held out to him. The “history” given by Mahaffy to each of the physicians consulted by him indicated an awareness on his part for some time past that there was something wrong with his eyesight. There were sharp differences in the testimony as to how far this awareness went. After the consultation at Mayo’s, Mahaffy returned to Jefferson county where he continued his normal and numerous activities at his store, gin, and plantation, though his failing eyesight made it increasingly difficult for him to do many of the things that he had done freely- before. Late in 1943 his son was discharged from the Army so that he might begin to take over the management of the farm, and by 1945 or 1946 Mahaffy’s activities were limited largely to an advisory character. This was the situation when he made his claim for waiver of premiums under the total disability clauses. The insurance application form which Mahaffy filled out. in March, 1942, which was made a part of the policy, included the following questions and answers: “j. Have you had regular or occasional health examinations? Yes. Date of last? Nov. - 41. By Doctor Lowe. Address Pine Bluff, Arkansas. “k. Name of any impairments ever found. None. “1. When and for what reason did you last consult a physician? Nov. -1941 - check up. “m. May any of these physicians be conferred with and disclose facts known to them? (Yes or No) Yes.” The form also included inquiries concerning several specific parts or areas of the body, not including the eyes or eyesight. There was evidence that a separate series of questions was orally propounded to Mahaffy by the Company’s medical examiner, though not made part of the policy, including the question: “Is there any impairment of eyesight?” to which the reply was “No.” As to this, Mahaffy testified that he did not remember being asked the question, but “I imagine I said that . . . because I didn’t think it was anything that glasses wouldn’t cure.” Defendant’s examiner testified that he and the Company were not interested in such ordinary impairments of vision as might be corrected by wearing glasses, and that he would “probably not” have made any note of the fact that there was an impairment of vision corrected by wearing glasses. Mahaffy explained his failure to mention the visit to Doctor Calcóte, in his answer to the inquiry concerning “health examinations,” by testifying that he went to Calcóte principally “to see if he could improve on” his glasses, that he attached no particular importance to the reference to “gun barrel vision,” and that no information he had received up to that time indicated to him that there was anything really serious the matter with his eyes. The problem here is primarily one of fact. Appellant and appellee are agreed that this is true, and they are also substantially agreed on how this problem must be stated, in view of the Chancellor’s finding for the insured below.' The question is whether a preponderance of the evidence in the record shows a knowing misrepresentation, or a knowing concealment, by Mahaffy, of the fact of incipient blindness. ‘ ‘ If the applicant states what he honestly believes to be true regarding his physical condition, the fact that it turns out to be not true does not avoid the policy, as it is a representation merely. Of course, if his statements are false and known to him to be false, and are made fraudulently, they have the same effect as warranties. . . . The question will be then were his statements made in good faith, if untrue, or were they made knowing them to be false and for the purpose of defrauding. . . .” Harper v. Bankers Reserve Life Co., 185 Ark. 1082, 1085, 51 S. W. 2d 526, 528. “The questions propounded in the application . . . call for answers founded on the knowledge or belief of the applicant, and in such cases a misrepresentation or omission to answer will not avoid the policy unless willfully or knowingly made with an (intent) to deceive.” Metropolitan Life Insurance Co. v. Johnson, 105 Ark. 101, 106, 150 S. W. 393, 395. ‘ ‘ This court has often held that questions propounded to applicants for insurance with respect to consultation with and treatment by physicians do not contemplate answers with respect to trivial ailments. . . .” Southern National Insurance Co. v. Pillow, 206 Ark. 769, 778, 177 S. W. 2d 763, 767. “The burden is upon (the insurer) to establish the fraud by proving affirmatively the falsity, materiality and bad faith in the representations made by the insured in the application regarding his health.” Old Colony Life Insurance Co. v. Julian, 175 Ark. 359, 365, 299 S. W. 366, 368. We have analyzed the evidence in this record with great care. Our conclusion is that we are unable to say that the finding of the Chancellor, in favor of the insured, on the question properly before him, was contrary to a preponderance of the evidence. Appellant Company raises a further question under the policy clause which provides: ‘ ‘ That no such policy shall become effective until the first premium upon it is paid during the good health of the insured. . . . ” The contention is that, since insured was in fact suffering from retinitis pigmentosa, whether he knew it or not, the first premium actually was not paid “during the good health of the insured.” This provision does not constitute a warranty of good health at the time specified, but only amounts to a stipulation for apparent good health and good faith in the applicant. Further, the clause is directed primarily to diseases or injuries, seriously affecting the risk, which develop or are discovered by the insured after the application and examination are completed. as distinguished from conditions which are presumably checked on by the insurer’s earlier examination. See Lincoln Reserve Life Insurance Co. v. Smith, 134 Ark. 245, 203 S. W. 698; Appleman, Insurance Law and Practice (1941), § 154; Cooley, Briefs on Insurance (1927) 648. The statement in National Life & Accident Insurance Co. v. Matthews, 198 Ark. 277, 128 S. W. 2d 695, that a somewhat similar clause constituted a warranty is not relevant here, since that case, unlike this one, involved a so-called “non-medical policy,” issued without physical examination by the insurer. See National Life & Accident Insurance Co. v. Young, 200 Ark. 955, 141 S. W. 2d 838. Appellee has asked this Court to allow a further attorneys ’ fee, in addition to that allowed by the Chancery Court. This we decline to do. The decree of the Chancery Court is affirmed.

Holt, J. Appellee, Buster Johnson, sued appellant, United Transports, Inc., to compensate personal injuries and property damage alleged to have been received when appellee’s automobile truck was, by appellant’s negligence, forced off the highway, upset and burned. He specifically alleged $1,500 damages to his truck, which he claimed was a total loss, and claimed $3,000 as total damages to his truck and to his person. Appellant interposed a general denial and specifically pleaded contributory negligence of appellee as a bar to recovery. A jury trial resulted in a verdict for appellee in the amount of $3,000. For reversal, appellant contends that (1) the evidence was insufficient to support the verdict and judgment, (2) the court erred in giving appellee’s instruction No. 2, (3) “the court erred in giving appellee’s instruction No. 5 on the measure of damages and value of the destroyed truck,” and (4) that the verdict was excessive. —(1)— The mishap occurred at about 3:30 a. m., July 6, 1948, on U. S. paved Highway 67, a few miles north of Arkadelphia. Shortly before this mishap, and near the point where it occurred, another truck and a passenger automobile had collided, partially obstructing the highway, and following on the heels' of this collision some of appellant’s trucks, carrying and transporting automobiles, came upon the scene and parked, some partly on the west side, and others partly on the east side of the highway pavement. Appellant’s drivers placed a flare in front and one in the rear of their trucks to' warn or signal approaching traffic. A short time thereafter, appellee came upon the scene, driving a truck south, en~ route to Texarkana. The evidence tends to show that in endeavoring to stop his truck, appellee went off the highway, and turned over, resulting not only in personal injuries to himself, hut in the complete destruction of his truck by fire. Appellee testified that he did not see the signal flare until too late to stop for the reason that some of appellant’s drivers were sitting on the highway in a position that concealed the flare. The testimony of Charles Fowler, riding with him at the time, tended to corroborate appellee’s version. Fowler testified: “A. Well, we were coming along the road there, and I guess — I don’t know— we ran right up on them before they tried to stop us or give us any warning, and there were some men sitting there in the road in front of a flare and I guess we got up to about forty feet of them, and they jumped up and started trying to stop us and we didn’t have time to stop.” There was evidence that appellant failed to park its trucks on the highway in the manner required by Arkansas Statute (1947), § 75-647, which provides: “In every event a clear and unobstructed width of at least 20 feet of such part of the highway opposite such standing vehicle shall be left for the free passage of other vehicles and a clear view of such stopped vehicle be available from a distance of 300 feet in each direction upon such highway.” On all the evidence presented, appellant insists that it was entitled to a peremptory instruction. We cannot agree. In viewing all the testimony, we must consider it in its most favorable aspect to appellee, it being the province of the jury to pass upon its weight. (Aluminum Co. of North America v. Ramsey, 89 Ark. 522, 117 S. W. 568.) When so considered, we are unable to say as a matter of law that there was no substantial evidence that warranted a verdict in appellee’s favor. --(2)- Tliere was no error in giving appellee’s, instruction No. 2, which reads: “You are instructed that in this case, if you find from a preponderance of the evidence that the plaintiff, while in the exercise of due care for his own safety, was forced to bring his truck to a sudden stop and in so doing overturned his truck and damaged it, and suffered personal injuries as alleged in his complaint, because of the negligence of the defendant in stopping its truck at the time and place where it was stopped, when it was practical to stop off said highway, and its negligent failure to keep at least twenty feet of such part of the highway opposite such standing vehicle for the passage of plaintiff’s truck and without making a clear view of such stopped vehicle available from a distance of three hundred feet to the north of said truck, you will find for the plaintiff. ’ ’ Appellant objected generally and specifically “for the reason that it failed to take into consideration the question of contributory negligence of the plaintiff. The instruction ends with the phrase, ‘you will find for the plaintiff,’ without specifically telling the jury they must consider the contributory negligence of the plaintiff.” We do not agree that this instruction failed to take into consideration appellant’s defense of contributory negligence for the reason that such negligence is clearly covered by that part of the instruction which required that appellee, at the time of the injuries complained of, be “in the exercise of due care for his own safety.” Obviously, appellee could not have been guilty of contributory negligence if he were exercising, at the time, due care for his own safety. (Aluminum Co. of N. A. v. Ramsey, supra.) -(3)- Appellant’s third contention is meritorious and must be sustained. It appears that the court in its instruction No. 5 correctly told the jury, on the measure of damage to appellee’s truck, “that the damage to his truck, if any, would be the difference between a fair and reasonable market value of the truck immediately prior to the accident and a fair and reasonable market value of the truck immediately after the accident.” Appellant specifically, objected to this instruction “for the reason that there is no testimony to support this instruction, except that of the plaintiff as to an offer to buy his vehicle.” The only testimony in the record on the damages to the truck appears to be that of appellee alone, which is as follows: “Q. Now, Mr. Johnson, did you know the value of your truck before it burned? A. Well, 1 cannot buy one back for less than fifteen hundred dollars. Q. What kind of truck was it? A. 1942 Chevrolet truck. Q. A ton and a half truck? A. Yes, sir, bob truck. Q. What is the value of the truck since the fire? A. It hasn’t any value to it. It burned up. Q. It completely burned up? A. Yes, sir. Q. It was a total loss? A. Yes, sir. Q. I would like for you to be definite, if you know, about the value of the truck just before it caught on fire and burned up — if you can, state wdiat the value of it was? A. About $1,400,” and upon cross-examination, appellee testified: “Q. How did you arrive at the value of the truck you stated while ago? A. I had been trying to sell it. Before that I was Avorking with Harding College, and they gave me a five year job with them, and I decided to sell it. Q. How did you arrive at the value of the truck? A. Because a man offered me $1,400 for it.” The effect of this testimony is that appellee based ■the value of the truck in question at $1,400 solely “because a man offered me $1,400 for it.” This evidence of an isolated offer, however, standing alone as it does is not sufficient to establish market value. Such was the effect of our holding in the recent case of Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593. We there said: ‘ ‘ The measure of damages — in a case such as this one — is the difference between the market value of the car immediately prior to the injury and the market value immediately after the injury. See Kane v. Carper-Dover Merc. Co., 206 Ark. 674, 177 S. W. 2d 41, and cases there cited. The plaintiff testified that she had been offered $1,500 for the car prior to the collision, and that $800 was the best offer she received after the collision. But this evidence of isolated offers cannot in itself — and it stands alone in this case — be used by the plaintiff to establish market value. Jonesboro Etc. R. Co. v. Ashabranner, 117 Ark. 317, 174 S. W. 548. In 20 Am. Juris. 341 it is stated: ‘As a general rule, proof of mere offers to buy or sell * * * is not competent to show the value of such property.’ ” See, also, Southern Bus Co. v. Simpson, 214 Ark. 323, 215 S. W. 2d 699. -(40- In view of our conclusions, it becomes unnecessary to determine whether the verdict was excessive. For the error indicated, the judgment is reversed and the cause remanded for a new trial.

Holt, J. January 9, 1948, appellant, a Negro, using a .32 caliber pistol, shot and killed William Irvine, a Negro boy about 18 years of age. Thereafter, appellant was charged with first degree murder and a trial resulted in his conviction of murder in the second degree, and his punishment fixed at 7 years in the State Penitentiary. From the judgment is this appeal. For reversal, appellant contends that there was no substantial evidence to support the verdict. He admitted the killing, but argues that it was done in the necessary defense of his person “or his hábitation,” and that in any event he could be guilty of no greater crime than manslaughter since there was no evidence of malice, expressed or implied. The instructions are not questioned. The only question presented is one of fact and when we consider the evidence in the light most favorable to the State, as we must under our rules, it was substantial and ample to support the jury’s verdict. On the night in question, a party was in progress in appellant’s restaurant and “beer joint’’ in the town of Madison. The victim, William Irvine, and two other boys came to the cafe where they remained for a short time drinking beer. For some undisclosed reason, William Irvine and appellant became engaged in an argument and Irvine and his two companions were ordered by appellant from the cafe. Following their departure, the appellant summoned an officer who came immediately and found the boys in another cafe nearby. The officer placed the boys in his automobile and started to take them to their homes, but upon learning that their truck was parked near the cafe, the officer brought them back to tbe vicipity of the cafe and let them ont of hi car. During this time he had searched the deceased an( found that he carried no weapon. Immediately after the boys left appellant’s cafe appellant armed' himself with a .32 caliber pistol which he placed in his pocket. When the boys left the officer the appellant was standing just outside the door of his restaurant. The deceased spoke to him saying, “Roy, I will see you.” Appellant answered: “You can see me now, you black s — of—a—b” and at the same instant drew his pistol and shot the deceased inflicting a wound from which he died several days thereafter. At the time William Irvine was shot he was standing on the edge of a ditch which separated him from appellant. The deceased fell forward into this ditch. Irvine made no threats toward appellant. Immediately following the shooting, appellant ran from his cafó through a rear door and escaped to Memphis, Tennessee, where he remained several days before returning to Arkansas. The killing here was done with a deadly weapon and the jury was warranted in finding that there was no justification or excuse, in the circumstances, for the appellant’s act. .Therefore, malice will be implied. In the case of Townsend v. State, 174 Ark. 1180, 298 S. W. 3, this court said: “Whether an offense is murder in the second degree or manslaughter depends upon the presence or absence of malice which may be expressed or implied. The law implies malice where there is a killing with a deadly weapon and no circumstances of mitigation, justification, or excuse appear at the time of the killing. Inasmuch as no one can look into the mind of another, much latitude is allowed in the introduction of testimony on the question of motive, and the only way to decide upon the mental condition of the accused at the time of the killing is to judge it from the attendant circumstances. ’ ’ See, also, Bly v. State, 213 Ark. 859, 214 S. W. 2d 77, which reaffirmed the above rule. We said in Reynolds v. State, 211 Ark. 383, 200 S. W. 2d 806: “Whether the death of Ashley resulted from the unlawful acts of appellant, as charged in the information, or whether it was justified, as appellant insists, on the ground of self-defense, was clearly a question for the jury to determine.” It appears to be undisputed that appellant fled from the scene of the killing immediately thereafter. In Herren v. State, 169 Ark. 636, 276 S. W. 365, this court said: ‘‘The flight of a person charged with the commission of a crime has some evidentiary value on the question of his probable guilt. Stevens v. State, 143 Ark. 618, 221 S. W. 186.” See, also, Ford v. State, 205 Ark. 706, 170 S. W. 2d 671. .No error eppearing, the judgment is affirmed.

Frank G. Smith, J. This is an appeal from a judgment of the Sebastian Circuit Court, Greenwood District, affirming an order of the Arkansas Workmen’s compensation Commission, awarding maximum compensation to Mrs. Alice Maestri, widow of Fermino Earnest Maestri, who died September -29, 1947, while working for the Quality Excelsior Coal Company, appellant herein. The findings of fact made' by the Commission, which are supported by the preponderance of the evidence, if not by the undisputed evidence, are as follows. “The evidence before us establishes that in all probability this deceased had a pre-existing diseased heart condition of which he had complained for some time, but had particularly complained in the last few days of his life and for which he had seen his family physician just two days before his death. The evidence also establishes the fact that on the morning of September 29, 1947, between the hours of about 8:30 to 10:00, the deceased had engaged in work as a coal breaker which is testified to as being hard manual labor and the work was performed in a place which placed the deceased in a cramped and confined position. The evidence is that he complained of this labor and the effect it had on him and was unable to finish the work because of his physical condition. There is evidence that upon leaving this work, he traversed an entry where the air was bad before collapsing and dying in the arms of George Quillman at 10:30 a. m. according to some witnesses and 10:00 a. m. by others. ‘ * The evidence is clear and undisputed, however, that immediately after he complained he was unable to continue breaking coal, he proceeded, down the entry to the point where he died, only a few minutes elapsing between his stopping work and liis death. “We are of the opinion tlvat the'decided weight of the medical evidence is that labor such as was performed by the deceased between approximately 8:30 a. m. and 10:00 a. m. put a greater strain upon his already diseased and weakened heart than it could stand, thereby aggravating the pre-existing diseased condition of his heart and hastening death. The claimant is not required to establish proof of the cause of the death to a mathematical certainty, but when the probable cause of death is established to a reasonable certainty, the burden of proof has been discharged. “We are of the opinion that the claimant has reasonably established the probable cause of the death of Fermino Earnest Maestri on September 29, 1947, to have been an aggravation of a pre-existing diseased heart condition arising out of and in the course of his employment with the respondent employer.” Upon these findings the Commission made the award which was affirmed on appeal to the Circuit Court, and from the judgment of the Circuit Court is this appeal. For the reversal of this judgment it is stated in appellant’s brief that the evidence upon which the Com mission awarded maximum compensation was virtually undisputed, but that the Commission, and later the Circuit Court, based their findings and award upon conclusions which cannot properly be drawn from the undisputed evidence. It is undisputed that for an indefinate time, but for a long period of time, the deceased was-affected with a heart ailment, which according to the testimony of the physician testifying in the case, would eventually have caused his death, if he had not previously died from some other cause. His family physician had advised him to discontinue his work, and to remain at home, but he disregarded this advice. Deceased was the foreman at the mine where he was employed, and when he reported there for duty on the morning of the day of his death, he found that they were short a necessary man, and he undertook to fill the place of the man who had failed to report to work. The work which the deceased undertook to do was performed while he was in a cramped position, breaking and loading coal, and after working for about an hour and a half he became exhausted and quit this heavy labor. He told the man with whom he was working, called his Buddy, that he just could not go on any further, and he started to another part of the mine to give orders there, but on his way he fell and became unconscious and died in about fifteen minutes. The Commission announced conclusions of law conforming to numerous decisions of this court, the most recent of which is the ease of Frank Lyon Co. v. Scott, ante, p. 274, 220 S. W. 2d 128. There Scott, the employee, had a congenital weakness in certain blood vessels, and it was established that a hemorrhage would have occurred eventually in any event, even while he was in bed asleep. Scott, the employee, was carrying a heavy kit of tools up a flight of stairs when he collapsed on account of the weakened condition of his blood vessels. We there said: “This testimony brings the case within our holding that compensation is payable when the employee’s work so affects an existing condition that injury or death occurs sooner than would otherwise have been the case.” The case of McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d, 210, which had announced the same holding, was cited. So here, Maestri’s death was precipitated and immediately caused by work which he had just performed in the pursuit of his employment and a compensable case was made. Judgment affirmed.

Griffin Smith, Chief Justice. John W. Heller, a resident of Searcy County, died June 23, 1947. A writing dated September 9, 1946, with a modification dated June 21, 1947, was offered for probate at Marshall June 30, 1947. By order of “N. J. Henley, Referee in Probate,” it was found that the document was Heller’s last will and testament, that the addition or modification was a properly executed codicil, and that “all necessary parties at interest are duly before the Court.” A direction was that the will be admitted to probate, and that letters testamentary be issued to Wm. T. Mills, who would serve without bond. Mills, in a Chancery action, brought to that Court’s attention certain alleged contradictions or inconsistencies, and concluded with a prayer that the will be construed, and that the Court “specifically determine who are the beneficiaries” and the amount of property to which each would be entitled. Methodist Orphans Home Association of St. Louis, by answer and a pleading in the nature of an intervention, asked the Court to declare it was the testator’s intention that the Association should receive “all money in the estate.” From a decree construing the alleged will, Mills has appealed. There is an affirmative record-showing that admission of the will to probate was on order of a Referee, and there is no contention that the Court, functioning as such, has acted. In principle, the transaction is not distinguishable from Jansen v. Blissenbach, 214 Ark. 755, 217 S. W. 2d 849. Recognizing, however, that evidence of Court approval may have.been inadvertently omitted from the transcript, the cause is remanded, although the judgment must be reversed. It is appropriate to mention that Amendment No. 24 to §§ 19, 34, and 35 of Art. 7 of the Constitution did not, ipso facto, consolidate Chancery and Probate Courts, hence original jurisdiction of Probate was not affected. Lewis v. Smith, 198 Ark. 244, 129 S. W. 2d 229; Wooten v. Penuel, 200 Ark. 353, 140 S. W. 2d 108; Gray v. Fulton, 205 Ark. 675, 170 S. W. 2d 384. Probate jurisdiction was discussed by Mr. Justice Butler in Huff v. Hot Springs Savings, Trust, and Guaranty Co., 185 Ark. 20, 45 S. W. 2d 508, and in Jesseph v. Leveridge, 205 Ark. 665, 170 S. W. 2d 71. We do not in this proceeding draw the jurisdictional line. Reversed.

Griffin Smith, Chief Justice. Harris and those associated with him in this appeal own land in White River Drainage District of Phillips and Desha Counties. Blackburn is one of the District’s three Commissioners. All were made defendants in a suit by landowners who claimed assessments were rendered invalid when original plans .were changed;- that reassessments were necessary, and that refunds should be made. There were charges, including a failure to publish financial statements. The Districts as organized in May 1919, under Act 279 of May 27, 1909, as amended, proposed to reclaim more than 169,000 acres, principally in Phillips County in the White River Backwater Area. Intention was to build levees, flood gates, pumping stations, dig drainage ditches, and, generally to make the lands available for cultivation. An example of the impaired condition of some tracts is found in the testimony of Lee Clements who said that in 1933 he bought from the owner 3,600 acres for $240. However, he had an option on A survey by consulting engineers was filed in October, 1921. The estimated cost was $4,627,265, about $28 per acre. The Commissioners and landowners thought the investment was too great, a view shared by the consultants, who recommended that ah attempt be made to procure Federal assistance. In the meantime substantial obligations had been incurred for preliminary work, including the survey. Upon representa-, tion to Phillips Circuit Court that $25,000 in certificates of indebtedness were outstanding, and that orderly procedure required additional funds, — some to repay landowners for approximately $100,000 they had advanced, — an assessment of benefits filed in May 1922 was confirmed in August. With approval of assessments the Commissioners reported on negotiations for Federal aid, but said it would be necessary to levy taxes for 1923 and 1924 to pay commitments. These representations resulted in a levy of three-fourths of one percent of the assessed benefits, collectible in 1923 and 1924. Up to this time there was no suggestion of discontent by any landowner. A seven-page stipulation shows virtual unanimity of purpose; and seemingly the delay now complained of was by common consent, based upon hope that Government grants, or independent levee work for which the District would not be bound, might lift enough of the burden to justify the project. In this situation the Commissioners appealed to Maj. Donald H. Connolly, District Engineer at Memphis, who in April 1925 reported to the Mississippi River Commission, and to the Chief of Engineers of the U. S. Army. The Overton Flood Control Act under which partial relief was finally procured became a law in 1936. Title 33, § 702 J-2, U.S.C.A., specifically refers to the Tributary Levee Location Survey, White River Levee District. Under this plan levee construction was authorized, with express limitations like those mentioned in Lessenberry v. Little Rock-Pulaski Drainage District No. 2, 211 Ark. 1046, 204 S. W. 2d 554, second footnote. Appellants say that “after the project was abandoned” the Government constructed a levee along the left bank of White River — western boundary of the District; but neither the evidence nor the agreed statement justifies a finding that abandonment had occurred. After mentioning the indebtedness with which the District was faced in 1922, a stipulation is that “. . . for a period of fourteen years — from 1922 to 1936 — the Commissioners, engineers, and attorneys [waged] a concerted and continuous effort to obtain Government assistance to carry - out the proposed improvements ? ? A further agreement is that in complying -with the Overton Act, “. . . it became necessary for each landowner to execute an agreement with the District in the nature of an easement across each tract, to the end that the District could be in a position to comply with the terms of the Act of Congress.” As a result, “from time to time” during 1937 and 1938, contracts were executed “by each and all of said landowners, including the plaintiffs herein and their predecessors in title.” All conveyances made subsequent to the execution of these papers were subject to terms of the grants, deeds having been duly recorded. Large sums of money were spent by the District to meet Government requirements; and, according to the stipulation, more than 37 miles of drainage canals and diversion channels were constructed under agreement with the Government and in compliance with the Overton Act pertaining to “interior” drainage. In August of 1942 Circuit Court approved a bond issue of $150,000 against assessed benefits of $7,500,000. The order contained a recital that “. . . when additional work can be carried-on, (weather and war conditions permitting) the District will be authorized . . . to borrow additional funds.” Jurisdiction was retained “. . . to make other orders ... as funds may be needed ... to carry on the drainage and flood control for which the District was organized.” November 21, 1942, Blackburn, as Chairman of the Board, addressed a communication to landowners in which he said that in dealing with the comprehensive problems involved “. . . your Commissioners feel that they should have the advice and suggestions of the property owners who are vitally affected, and to this end we have called a meeting so these questions may be discussed.” The meeting was held November 25th. Those who attended were informed that they were to consider policies to be adopted by the Board “. . . in carrying out the over-all drainage program which has been designed, and for which the District has been organized.” E. G. Green, the District’s engineer, in estimating that “something ip the neighborhood” of $200,000 would be required to complete the program, exhibited maps showing drainage canals that were to be constructed. He mentioned that dirt work was costing-eight cents a cubic yard, and grubbing- three cents' — a total of eleven cents per cubic yard. The current tax. rate of one-half of one percent yeilded $35,000 annually, an amount “wholly insufficient to carry out the program.” However, if with approval of landowners the levy were increased by 25 per cent, “. . . then the work could easily be carried out over a period of years on short-term paper, with borrowings from local banks at very reasonable rates of interest.” The minutes show that in response to these proposals Warfield Rogers, while stressing- “the dire need of an adequate drainage system,” expressed the view that “this is not the time to carry on the work.” The eight-cent price for excavation, he said, was too high. He thought that “after the war” dirt could be removed for not more than four cents, and others agreed with the estimate. Result of the discussions was that, with two exceptions, all voted to discontinue the work “. . . until some future date when it can be done at a cheaper price.” The landowners have appealed from an order sustaining a defense demurrer to all allegations of the complaint except those charging material changes in the plans and the prayer for damages resulting from improvident construction, inexcusable delays, etc. They attack the decree of dismissal from four angles: ' (1) Original plans were changed in material respects, rendering the assessment of benefits invalid. (2) Benefit assessments should have been revised when the Federal Government paid the cost of constructing a main levee. .(3) “Piecemeal” construction, and taxes levied for the purpose, are illegal. (4) the complaint stated a cause of action in Chancery. First — Plans Not Substantially Changed. — Appellants are in an anomalous situation in urging that an original plan was altered to their damage when the Government stepped in with five or six million dollars to pay for an indispensable part of the undertaking they first thought would become a charge upon the lands. While admitting changes as the work progressed —some due to the Government’s determination that levees should be built at a particular place — the District insists that, in the main, the work has followed the general outline drafted by Harrington, Howard & Ash in 1921. The fourteen-year delay between 1922 and 1936 is shown to have been solicited by landowners who continued to hope during a term partly within the depression period that supplemental assistance would make it possible for the undertaking to be completed as at first conceived. It is stipulated that none of the appellants excepted to benefit assessments, nor did predecessors in title; and it is undisputed that the law was tracked when the assessments were made. On the face of the record all court orders under which the District was formed, assessments made, or taxes levied, are regular. The attack is therefore an effort to collaterally reach judgments that became final many years ago, and it must fail. Main v. Drainage District No. 2 of Monroe County, 204 Ark. 506, 162 S. W. 2d 901. In the forefront of assigned grounds justifying relief are appellants’ assertions that construction work was started in the northern or “higher” part of the District; that a borrow pit left by the Government in building the levee serves as a catch-basin; that drainage from north to south causes water to cover lands otherwise free from minor overflows, and instead of being benefited they were actually damaged. But Harris, one of the appellants, admitted on cross-examination that in respect of the land he owned, nothing could be done without a levee: “Definitely, I am more fortunate because of Government construction . . . than I would have been if compelled to pay for it myself.” If in building a levee plans are materially changed, landowners are not' without redress. It is given by statute. (Pope’s Digest, § 4476, Ark. Stats. (1947), § 21-517 — . There is no contention here that the statutory remedy was invoked. On the contrary, insistence is that appellants are mistaken when they assert that the major plans were' departed from. The remedy is mentioned merely to stress the legislative policy of permitting a departure from primary plans .and relegating injured persons to compensation as for damages. The section clearly discloses a belief by the lawmakers that a district, once created, should not have its credit impaired, or interests of non-complaining landowners adversely affected, by minority dissents, once the undertaking is definitely launched. Eights given landowners were discussed in an opinion by Judge Hart, who said that if, by reason of any change in plans of a drainage district, an assessment become inequitable, the aggrieved person may petition the county court for a reassessment; and, in the absence of fraud, this right precludes resort to equity, and is exclusive. Hudson v. Simonson, 170 Ark. 243, 279 S. W. 780. Second — Necessity for Revising Assessments. — The appealing landowners urge with considerable force that a reassessment became imperative when the Government “stepped in” and relieved-the District to the extent heretofore shown. This would be true if building the levee constituted such a radical change in plans that a materially different undertaking resulted. Answer comes from most of the witnesses, who in discussing the conceptions of 1919-21, testified that a primary levee was required. It was projected under the Connolly plan, so named because of Connolly’s cooperative work. Appellees’ engineer testified that this plan afforded better protection than the one suggested by Harrington, Howard & Ash. The witness affirmed the District’s purpose to first determine the maximum volume of water, what facilities would be required to effectively deal with it, and an intent to proceed to completion without material deviation from the original scheme. Levee construction had not been finished when the case was tried. E. G-. Green, engineer, testified that slightly more than four miles were yet to be built around the southern end of Old Town Lake, “. . . and the other 36 miles of levee still have to be enlarged from 1% to 3 feet in grade.” The District must construct 75 miles of canals. Present tax receipts yield $35,000 annually. From this income rights-of-way must be furnished, flood gates operated, the partial system maintained, and all expenses met. Third — “Piecemeal” Construction. — The Chancellor’s determination that a preponderance of the evidence did not show the work to have been done in such a disconnected way as to prejudice rights of the appellants must be sustained. Minutes of meetings held by the Board were not successfully impeached. They show that the fourteen-year delay was a groping period during which the landowners, if not actually seeking delays, impliedly consented to the inactivity. They were unwilling to abandon the project, so kept the District intact as a legal entity in the hope that Federal help would come. Speculative values of the lands were tied to drainage. Without it most of the acreage was worth little more than timber stumpage, and much was not accessible to roads. Fourth — Did the Complaint State a Cause of Actionf — It is not affinnatviely charged that the Commissioners acted fraudulently. Unless this implication necessarily arises from allegations that in spite of assurances work would be pushed as expeditiously as practicable there were mental reservations that it would be unreasonably delayed, a court of equity should not interfere. As a Board, the Commissioners acted under legal authority, and their discretion will not be infringed. It appears, however, that action on the demurrer has become unimportant. Wide range taken by the testimony touched most issues in the complaint, and brought to the trial Court’s attention the material points of controversy. If full effect be given to apparent purposes of those who attended the November meeting in 1942, two Commissioners who are appellees here were the only attending landowners not willing to delay the work. The Over-ton Flood Control Act, with its authorization for levee work, had been in effect for more than six years, and the property owners knew then that Federal money was being spent in their behalf. In 1937 and 1938 these men conveyed easements, thereby arraying themselves with the Commissioners in assuring the Government that “drainage facilities made necessary by construction of the levee” would be provided; that the District would acquire and provide without cost to the United States “all flowage and storage rights and easements over, upon, and across the lands and properties within the protected area”, etc. Certainly the Government was dealing with the District and with the landowners upon the basis of a definite improvement, to be completed according to plans. The stipulation is explicit in saying that easement contracts were executed “by each and all of said landowners, including the plaintiffs herein and their predecessors in title”. Pope’s Digest, § 4492, Ark. Stats. (1947), § 21-562, permits property owners in a drainage district to waive the right to resort to courts, and allows them to “. . . absolutely ratify and confirm what has been done by the Board of Commissioners and all other officials with reference to the district”. Thereafter they are “forever barred from testing or contesting in [any] way the validity of the proceedings up to that time, the assessments made, or the tax levied for the payment of principle and interest of bonds, or for any other purpose”. The stipulation had the effect of bringing appellants within the terms of the Act when each executed the easement contract, for the implied assurance was that the District existed as a legal entity. Affirmed. The other Commissioners were R. S. Bronaugh and E. T. Horner. The lands were charged with delinquent taxes, more than 20,000 acres at $1 per acre. Continuing, the agreed statement says: “During this period [from 1922 to 1936] the Board of Commissioners, the District’s agents and employees, attended practically every Flood Control hearing in the House of Representatives and of the Senate of the United States to urge Congress to enact the necessary legislation whereby Federal assistance could be given to carry out the proposed improvements; that the efforts of the Board of Commissioners, its agents and employees, finally successfully culminated in the passage of the Overton Flood Control Act, . . .”

Griffin Smith, Chief Justice. The trial Court was asked to reform a deed by which Alice V. Hopkins conveyed to J. L. Williams Lots 1, 2, 3, 4 and 5, 23 and 24, Block Two, Yimy Ridge. Mrs. Hopkins, (Alice Smith before her marriage) bought Lots 1 to 10, inclusive, a,nd Lots 23 and 24, in 1942. At trial she admitted that Lots 23 and 24 were properly conveyed to Williams, but in substantiation of her allegations of mutual mistake asserted that ". . . We had ten lots, and [Williams] got the east half and I got the west half.” She also stated that shortly before the deed was made she had started building a new four room house, and that when she sold she moved into the unfinished building. The lots extend east and west. "That,” said Mrs. Hopkins, " gives me the west side and [Williams] the east side. He got the seven with the building, and I got five.” The lots Mrs. Hopkins "retained” are next to the railroad. Certain improvements were made on a residential plot she used for seven or eight months. A "car barn” was constructed for accommodation of an automobile during the winter. Mrs. Hopkins’ had been told that property in Yimy Ridge "was all messed up” in respect of lot numbers, so before selling she had been warned to identify corners and agree on descriptions. Before closing the contract with Williams Mrs. Hopkins went on the property with him. As a result, “he thoroughly understood that the lots would be divided between us.” According to Mrs. Hopkins, a part of the work of designation included putting iron stakes in the ground, “. . . and we decided the middle of the road was the dividing point, and I told him so many times, —told him that ‘regardless of where it is, I get half of those ten lots, and you get half.’ ” In his brief counsel for appellant says the only controversy is whether Mrs. Hopkins, sold Lots 1, 2, 3, 4 and 5, or the east half of Lots 1 to 10, inclusive. The testimony is undisputed that in 1942 she paid <$2,500 for all of the realty. A store building was on Lots 23 and 24, but there is no issue .regarding them or the store building. In selling to Williams, Mrs. Hopkins was paid $3,500 for the real property and $500 for a stock of merchandise. She had made some improvements, including butane gas equipment, five stoves, and some store fixtures. These, she thought, had cost $1,000. Williams, while not denying that before buying he discussed in general terms what area would be included, testified that the dwelling house, built “approximately on Lot 2,” was mentioned as a part of the conveyance, for Mrs. Hopkins, in the conversations, said “the store and dwelling.” There was no reference to a division of the lots. Being anxious to get possession of the merchandise as quickly as possible, Williams, knowing that residential property was hard to procure, agreed that Mrs. Hopkins might remain in the unfinished house, and permissively she temporarily retained it. During that period she had the so-called car barn constructed. It was built of 1x6’s, with cheap paper for a siding— “just a shed, not a car barn.” Fill Sanders testified that he had known the property for many years and tried to buy what Mrs. Hopkins “had remaining” after she had dealt with Williams. He believed Mrs. Hopkins “thought she had retained one house and five lots.” When the witness went to Wil liams, the latter undertook to point out the lines, indicating that he did not then claim to have purchased that part of the property upon which the residence was situated. Much of Sanders ’ testimony was hearsay and wholly inadmissible, but the record does not show it was objected to. It is certain, however, that a plat, blueprint, or chart of some kind was before the Court, and that locations around which the testimony centered were identified. This plat has not been brought forward, and we must assume that the Chancellor understood it. With us there is unlimited uncertainty. The effect of Sanders’ testimony substantiates assertions by Mrs. Hopkins that Williams knew what land was being bought, but when he found (as a result of conversations with Sanders and by reference to plats and an abstract) that the definite descriptions contained in the deed conveyed all of the property owned by Mrs. Hopkins in that area, he concluded to keep what the deed called for. There was testimony that Williams’ son tried to buy from Mrs. Hopkins the house she occupied after selling to appellee, and that discussions concerning the property took place after the deed had been executed, and with Williams’ knowledge and participation. But Williams flatly denied the substance of Sanders’ testimony, and explained that his son was trying to buy Mrs. Hopkins’ furniture, and not the house. Insofar as descriptions, lines, boundaries, definite location of buildings, corners, iron stops, etc., are concerned, the record testimony is indefinite, although it was no doubt understood by the Chancellor. In these circumstances we defer largely to the Court’s conclusions regarding matters ambiguous in print. Smith v. Magnet Cove Barium Corporation, 212 Ark. 491, 206 S. W. 2d 442. There is no contention that Williams had anything to do with preparation of the deed. On the contrary, Mrs. Hopkins testified that ‘ ‘ I got her to make it. ’ ’ There is no identification of “her” other than Mrs. Hopkins’ reference to “the woman [who made it for me”]. The inference is quite clear that whatever was said or done regarding descriptions, the result complained of by appellant followed her own initiative in procuring a scrivener who either wrote the deed as directed, or mistakenly described the lots. The deed was not picked up by Mrs. Williams for two or three days. She says that when it was received and acknowledged, no examination was made. Mrs. Williams verified what her husband had testified to regarding the all-inclusive intent to buy what the deed called for. The rule that a written instrument will not be reformed over the objections of either party unless the ■evidence of fraud or mutual mistake is clear and convincing has been repeatedly emphasized. Corey v. The Mercantile Insurance Co. of America, 205 Ark. 546, 169 S. W. 2d 655. In the case before us the trial Court might have thought the evidence preponderated in favor of appellant, but that it was not sufficiently convincing to justify the radical changes contended for. We are of the same opinion. If the Chancellor had believed Sanders’ testimony and had rejected what Williams said regarding conversations, we would have a substantial basis for appellant’s insistence that the mistake was mutual. No disinterested testimony of a persuasive nature tends to show that Williams intended to buy divided lots. It follows that the decree must be affirmed. What is now known as Yimy Ridge was formerly the Town of Germania. An illustration of the difficulty an appellate Court has in determining place, area, and focal points from a printed record from which the plat has been omitted is shown by the following testimony, brought out on cross-examination of Sanders: Q. “You said you were familiar with that land over there?” A. “Yes, sir.” Q. “I will ask you if this is a true representation of the way those lots run?” A. “Yes, sir, that is just exactly the way they lay.” Q. “Here are Lots 23 and 24 — no question about those two lots?” A. “The store sits right in here on one of these two lots.” Q. “Now here are Lots 1, 2, 3, 4 and 5?” A. “That’s right.” Q. “You said Mr. Williams pointed out this line: didn’t he point out this line: between 5 and 6?” A. “No, sir. Here sits the store: he wasn’t out there. He was out here — this little house sits right here. ... I am positive. I came up here and drew the plat just like this. . . . The store sits right here. We walked out there. I said [to Williams] T want to find out right where you bought to, so I will know how close the line runs here.’ He said, T don’t know where the line is: I haven’t had it run.’ He pointed to an iron stob as the corner, where Mrs. Hopkins said that was the corner. He said this line conies right through here. . . .”

Minor W. Millwee, Justice. Appellees, Myrna Walthall and Addie Allen, filed separate slander suits against appellants, Gus Blass Company and Don Bra-man. The original complaints also contained a second cause of action against appellants for restraint of liberty, but the trial court sustained appellants’ motion to require appellees to elect, and the second counts were stricken as being improperly joined under § 1283 of Pope’s Digest. The original complaints also made three other employees of Gus Blass Co. party defendants, but appellees dismissed the suits as to two of these and took a non-suit as to the other. The Gus Blass Co. operates a department store in the City of Little Rock with appellant, Don Braman as its store superintendent. Appellee Walthall entered the employ of the company as cashier in the piece goods department in April, 1945, and appellee Allen was employed as saleslady in the same department in April, 1946. In their complaints appellees alleged that appellant Braman falsely and maliciously called them “liars”, “thieves”, “cheats” and “lying thieves” in the presence of each other and in the presence of other employees of the company; that said false and slanderous statements were made with the malicious intent to, and did, expose appellees to public hatred, contempt and. ridicule; that said statements were spoken by Braman in an insulting, boisterous and contemptuous manner and by use of vile, obscene and profane language; that by reason thereof appellees suffered physical illness, mental anguish, embarrassment, humiliation and damage to their reputations for which they were entitled to recover both actual and punitive damages. In their answers appellants objected to the jurisdiction of the court on the ground that the Workmen’s Compensation Commission had sole jurisdiction. The answers, as amended, also contained a general denial and alleged the truth of the alleged slanderous statements, if made; that appellees conspired with each other to steal merchandise from the company; and that said slanderous statements, if made, were privileged. The actions were consolidated for trial and resulted in verdicts and judgments for each of the appellees in the sum of $2,000 compensatory damages and $500 punitive damages. Appellants first contend that the cases should have been transferred to the Workmen’s Compensation Commission because the matters complained of arose out of and in the course of appellees’ employment by the Blass company. Appellants cite no authority to sustain this novel contention and we find it to he without merit. There is nothing in the Workmen’s Compensation Law (Initiated Act 4 of 1948) indicating a repeal of our statutes on libel and slander (Ark. Stats. 1947, §§ 41-2401 to 2412). The act provides for compensation to employees for disability or death from accidental injury arising out of and in the course of employment or from occupational disease arising therefrom. We find nothing in the language of the act which could be construed as including slander or damage to character as furnishing a basis for compensation to employees. It is also insisted that the evidence is insufficient to support the verdicts. According to the testimony of Mrs. Walthall she was called to Braman’s office about 4:30 p. m., September 25, 1947, and told that she was $25.87 short in her cash receipts for September 23, the store being closed on September 24. She gave the following testimony as abstracted in appellee’s brief: “The first thing he asked me was if I had a husband and I told him no. Then he started in. He kept me in the store' until six o’clock — thirty minutes after closing time. He told me to be back at 9:00 in the morning. I asked him if he was accusing me of taking anything, and he just told me to come back in the morning to get my money. I couldn’t get it then — it was all closed. I got in the store at quarter to nine Friday, September 26, and in about ten minutes from then I was in his office back there and he began on me. He had these tickets on his desk and I did not have anything to do with tickets. All I did was stamp tickets. I did not have a sales book. He said ‘You took this money and you made a duplicate ticket, leaving off the two dates and putting on these other two. Therefore you stole $11.29, didn’t you?’ I said, ‘No.’ He said ‘Myrna, don’t lie to me.’ I said, ‘I am telling you the truth’, and he called me everything in the world he could. He shook his finger at me and hit me so many times on the end of my nose until there is a mark there. He said I had taken material and I had stolen money from the store to the extent of $5,000. I kept telling him no. I was crying. I tried to leave. He grabbed me by the arm and pushed me down and said I wasn’t leaving. I wanted a drink. I was sick at my stomach. He ordered me not to leave the room — I was to sit there until he finished with me. My arm was black and blue. He would get right up and say ‘You little lying thief, you are going to tell me or you are going to pay the price. ’ I kept telling him I didn’t do it, I didn’t know who did. He called Miss Cox and told her to start writing. He would stand over me and dictate to Miss Cox. I don’t know what all was written. I wasn’t permitted to read it. He said I would have to pay the $5,000. He said if I didn’t sign the statement he would put me behind bars. He would ask me how I would look behind bars to my little girl to stare at. He picked up the phone to call the bonding company and I started crying harder. . . . He told me if I didn’t sign he would follow me and I would be unable to get employment. “I was afraid of him. He would grit his teeth at me. He called me everything. About 2:00 p. m. he allowed me to get a bowl of soup in the custody of Mrs. Beall. I wasn’t allowed to use the telephone. He got up and said I was going to sign that statement. He took hold of my left arm and hit me on the knee with a file board. He said the bonding company would put me in jail. He picked up- the phone and said ‘Mr. Williams, you have a good case here. I have the goods on her and I want 3mu to go the limit with her.’ He was going to have me in jail within three minutes and my daughter could see me only through bars. I did not know the bonding company was in Memphis. He. tried to make me say that I took a thousand dollars, then five hundred, and then three hundred. He shook his desk and said, ‘Will 3mu say you took anything?’ And I said, ‘No’, and that is why he got so mad. ’ ’ Mrs. Walthall testified that under these circumstances she signed the typewritten statement without being given an opportunity to read it; that Braman refused to permit her to consult an attorney or call her mother over the telephone; that he called her a thief and lying thief in the presence of three other employees; that after she signed the typewritten statement, Braman directed two other employees to take witness to her home and search for materials; that said employees took from her home two skirts, a blouse, and a few pieces of material, part of which had been purchased by her brother and presented to her as a Christmas present, and the balance of whieh she herself had purchased; that Bra-man sent down to her desk and got a box containing ; sweater and dress, which she had just paid out of layaway for her daughter, some old shoes and glasses belonging to witness, and some material that had been ordered held for customers until called for; that Braman accused her of intending to walk out of the store with the box; that when she returned with the employees to the store, appellee Allen was in Braman’s office and he called both of them lying thieves; that after dismissing Mrs. Allen, he told witness to write a statement in long hand, the contents of which he dictated and that she was forced to sign this statement after Braman used the same tactics that had been previously employed in obtaining the typewritten statement. Mrs. Walthall further testified that after she signed the statement, Braman said it was no good and that he wanted something better. She was given some paper and told to take it home with her and write out a confession and bring it back the next morning. The following morning witness returned to the store with her brother and challenged Braman to make the same statements in the brother’s presence that he had made the day before. When she asked for her check and the things that had been taken from her, Braman ordered her out of his office. We do not set out the testimony of Mrs. Allen which tended to show the same method of treatment as employed in the case of Mrs. Walthall. Certain material was also taken from Mrs.. Allen’s home and she testified that she wrote out a statement under circumstances similar to those testified to by Mrs. Walthall. Mrs. Allen’s 16 year old daughter who was employed on weekends identified part of the material taken from her mother’s home as having been purchased by her for herself and mother. Both appellees denied that they, had ever stolen anything from the store. A doctor who examined appellees on September 29, 1947, testified that he found them in a nervous, weak and upset condition and that he found two bruises on the right arm of Mrs. Walthall. Appellees testified of several instances after being discharged by appellants in which they failed to obtain employment after Blass was given as a reference, and of losing jobs obtained without such references after the employer iearned of their former employment by Blass. The testimony on behalf of appellants contradicted that on behalf of appellees on all the material issues. If the jury had believed such evidence, it would have been warranted in finding that the slanderous statements attributed to Braman, if made, were true and made in good faith and without malice; and that appellees made voluntary confessions establishing the truth of the alleged slander. Appellants point out certain discrepancies in the testimony on behalf of appellees and certain evidence offered by appellants which strongly supports their contention on the facts. This evidence does not rise to the dignity of undisputed physical facts so as to warrant this court in setting aside the verdicts. We do not try the issues de novo and under our established rule the verdicts must be upheld if, when viewed in the light most favorable to appellees, there is any substantial evidence to support the jury’s determination of factual issues. Waters-Pierce Oil Co. v. Knisel, 79 Ark. 608, 96 S. W. 342; C. R. I. & P. Ry. Co. v. Manus, 193 Ark. 397, 100 S. W. 2d 258. Appellants also contend that the evidence is insufficient to support the verdict because the statements of Braman were made while acting within the scope of his employment as manager of the store to an employee and were reasonably necessary under the circumstances and, therefore, qualifiedly privileged in the absence of express malice which, they insist, has not been shown. In the recent case of Arkansas Associated Telephone Co. v. Blankenshi p, 211 Ark. 645, 201 S. W. 2d 1019, we said: “In the case of Sinclair Refining Co. v. Fuller, 190 Ark. 426, 79 S. W. 2d 736, this court approved the following statement from Newell, Slander and Libel, (Fourth Ed.) p. 450: ‘A defamatory communication when necessary to protect one’s own interest is privileged, when made to persons who also have a duty or interest in respect to the matter. In such case, however, it must appear that he was compelled to. employ the words complained of. If he could have done all that his duty or interest demanded without libeling or slandering the plaintiff, the words are not privileged.’ In the same case this court also approved the rule stated in 36 C. J., p. 1248, as follows: ‘The protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the party making it must be careful to go no farther than his interest or his duties require. Where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.’ ” Appellants rely on the case of Bohlinger v. Germainia Life Ins. Co., 100 Ark. 477, 140 S. W. 257, which involved libel. It was there said: “If the statements are published by one in good .faith to another in order to protect his own interest or to protect the corresponding interest of the other in the matter in which both parties are concerned, then such statements are privileged when the subject-matter of the publication makes it reasonably necessary under the circumstances to accomplish the purpose desired. Newell on Defamations, Slander and Libel, (2 Ed.) p. 388; 18 A. & E. Enc. Law, 1037; King v. Patterson, 49 N. J. Law, 419; Rotholtz v. Dunkle, 53 N. J. L. 428, 20 Atl. 193, 26 Am. St. Rep. 432, 13 L. R. A. 655; Holmes v. Clisby, 121 Gr. 241, 48 S. E. 934, 104 Am. St. Rep. 103; Montgomery v. Knox, 23 Fla. 595, 3 So. 211; Allen v. R. R. Co., 100 N. C. 397, 6 S. E. 105; Briggs v. Garrett, 111 Pa. 405, 2 Atl. 513, 56 Am. Rep. 274. But the communications containing defamatory statements thus made should not, in any event, go beyond what the occasion required. If it is shown by the writing itself, or by evidence outside of the communication, that the occasion therefor was abused, or that the statements were not relevant to or went beyond the subject-matter or purpose of the agency or business, or that the statements were made from malice proved, then no protection will arise against the prosecution of an action for libel, although there may exist a common interest or duty of the parties between whom the communication passes. Such intrinsic or extrinsic evidence would show a want of good faith, and would repel the inference that there was no malice . . . ” The court further said that if, from the uncontroverted testimony, there is no malice shown, it then becomes the duty of the court to direct a verdict for the defendant. In Gaines v. Belding, 56 Ark. 100, 19 S. W. 236, the court said: “Where the words spoken are actionable per se, prima facie the law implies malice, and the jury can award compensatory damages only, but cannot award exemplary or punitive damages, without proof of express malice. Whether there was express malice, was a question of fact for the jury. Malice may be shown by the defamatory words themselves and the manner of their publication, and need not be proven by extrinsic evidence. The absence of legal excuse for publishing the slander is evidence of malice. Express malice may be inferred from all the circumstances of the case, but it is not to be inferred from the facts alone that the words are false and injurious to the plaintiff, although an implication of malice arises from these facts that will warrant compensatory damages . . . Where actual ill will or express malice is shown, the jury may give exemplary or vindictive damages, the amount of which it is their province to determine, under proper instructions from the court.” See, also, Stallings v. Whittaker, 55 Ark. 494, 18 S. W. 829; Newell, Slander & Libel (4th Ed.) § 277. When the highly controverted testimony in the case at bar is considered in the light of the rules above announced, we think the questions whether Braman was acting in good faith or was actuated by actual malice in making the statements attributed to him by appellees, and whether he went beyond what his interest or duty required, were properly for the jury. On the whole case the evidence was substantial and sufficient to support the verdicts and the trial court did not err in refusing to direct verdicts for appellants. When Mrs. Walthall testified that appellant Braman shook his finger at her and hit her on the nose so many times that a mark was left, appellants objected to the testimony on the ground that there was no allegation of physical violence in the complaint. The court limited the jury’s consideration of this testimony to the issue of malice. Mrs. Walthall later testified to further instances of Braman laying rough hands on her without any objection to such testimony. While the complaints do not allege physical violence, they do allege malice. We think this evidence was competent for the limited purpose for which it was offered and that no error was committed in so admitting it. Error is assigned in the refusal of the court to give appellants’ requested Instruction No. 6 which would have told the jury as a matter of law that appellees were not entitled to punitive damages. Since we have previously indicated that there was sufficient evidence of express malice to go to the jury, there was no error in the refusal of this instruction. It is next argued that the court erred in giving appellees’ requested Instruction No. 1 because it did not require the jury to find publication of the slander. The instruction reads: - “If you find from the preponderance of the evidence that the defendant Braman used the words set out in the complaint' to the effect that the plaintiffs were guilty of a crime or crimes, then the plaintiffs are entitled to recover compensatory damages from both defendants unless you should further find from a preponderance of the evidence that plaintiffs were guilty of the crime charged, or unless you find that the use of such words was privileged as hereinafter defined.” The complaints of appellees alleged that the slanderous statements were used in the presence of appellees and other employees who were named. We find it unnecessary to determine whether the word “used” is synonymous with “publish” and its use, therefore, sufficient to meet the objection of appellants. While Braman testified that he asked appellees “a thousand times” to tell the truth, he did not deny that he accused them of taking-property from the store or that he made statements to that effect in their presence. The evidence on behalf of appellees as to publication of the alleged slander appears to be uncontradicted and we have frequently held that it is not necessary to submit to the jury, an issue established by undisputed evidence. Pacific Life Ins. Co. v. Walker, 67 Ark. 147, 53 S. W. 675; Aetna Life Ins. Co. v. Dewberry, 187 Ark. 278, 59 S. W. 2d 607; George v. George, 191 Ark. 799, 88 S. W. 2d 71. In this connection the court gave appellees’ requested Instruction No. 8, as follows: “Publication of slander is the utterance of slanderous words whether in the presence of the person slandered and one or xnore other persons, or the utterance of such words to any other person or persons in the absence of the person slaxxdered. It is not necessary that the slaxxderous words should be made known to the public generally, or even to a coxxsiderable number of persons. It would he sufficient publication if the slaxiderous words complained of were addressed to the plaintiff, Mrs. Walthall, in the presence of the plaixxtiff, Mrs. Allen, or were addressed to the plaintiff, Mrs. Allen, in the presence of the plaintiff, Mrs. Walthall.” This instruction cox-rectly states the rule set forth in 33 Am. Jur., Libel & Slander, § 96, as follows: “It is not necessary in matters of libel or slander that the defamatioxx be made known to the public gexxerally, or even to a coxisiderable number of persons. It is sufficient if it is communicated to only one person other than the person defamed, and such a publication suffices even though such person does not believe what is said of the person defamed, at least when the words are uttered maliciously. It has been said that this is true because the injury to the reputation of the plaintiff is not the sole element of injury; the jury has a right to consider also the mental suffering of the person slandered. Another reason is that in the case of defamations which are actionable per se, injury is conclusively presumed. ’ ’ Appellants also contend that error was committed in the giving of appellees’ requested Instruction No. 5 because it omitted the defense of privilege and did not require publication. This instruction dealt with burden of proof as to the truth of the slander and the presumption of good character, reputation and innocence of crime. It was not a binding instruction and is not open to the objections made. The defense of privilege was fully covered in other instructions given by the court. It is finally insisted that the verdicts are excessive. The evidence on behalf of appellees was sufficient to show that they suffered physical illness, humiliation, mental anguish, embarrassment and loss of subsequent employment on account of the slanderous statements of appellant, Braman. It is true that the evidence in this connection is more favorable to Mrs. Walthall than to Mrs. Allen. Under our decisions we may not set aside the verdicts as being excessive unless we can say the jury was actuated by prejudice, passion or corruption in fixing the amount of damages. In the following cases verdicts were sustained for similar or greater amounts than in the instant case under facts somewhat similar to those presented here. Gaines v. Belding, supra; Safeway Stores, Inc. v. Rogers, 186 Ark. 826, 56 S. W. 2d 429; Sinclair Refining Co. v. Fuller, 190 Ark. 426, 79 S. W. 2d 736. We conclude that the verdicts are not excessive. We find no prejudicial error in the record and the judgments are accordingly affirmed. Griffin Smith, C. J., dissents. George Rose Smith, J., not participating.