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Minor W. Millwee, Justice. This is an action in forcible entry and unlawful detainer by appellants, L. F. Thacker and ~W. T. Kitchen, against appellees, Steve-Hicks and wife, Tommie Hicks. This is the second appeal of the case. On the former appeal in Thacker v. Hicks, 213 Ark. 822, 212 S. W. 2d 713, we held there was substantial evidence to support the verdict and that there was no error in the giving and refusing of instructions, but the cause was reversed on account of the admission of certain testimony prejudicial to appellants. Appellant, L. F. Thacker, originally instituted an action in forcible entry and detainer against appellees in September, 1946, alleging that he was lessee of a large acreage of farm lands, including the Frl. North % of the SE % of Sec. 29, Township 18 North, Range 8 East in Greene County, containing 44.82 acres, which appellees forcibly and unlawfully occupied and refused to vacate. In February, 1947, appellant, W. T. Kitchen, intervened and asserted that the term of Thacker’s lease had expired and that Kitchen had succeeded to Thacker’s rights by virtue of a lease from the owner, Lester Kent. On October 6,1947, Kitchen filed an amended complaint and intervention setting up unlawful detainer as an additional cause of action under an alleged oral rent agreement for the year 1946 between Thacker and appellees. In their answer appellees denied generally the allegations of the complaint and asserted title and right to possession of the lands by adverse possession. Having-been removed from the lands by the sheriff under a writ executed on February 19, 1947, appellees also asked for restitution of possession and damages. The first trial resulted in a verdict and judgment for appellees for restitution and damages in the sum of $250. A similar result followed the trial from which comes this appeal, except that the amount of damages was fixed at $300. The evidence at both trials was substantially the same and tended to show that appellees moved on the lands in controversy in 1931; that they erected improvements thereon and cultivated a part of the lands under claim of absolute ownership until 1941. In December, 1941, Charles Davidson, an employee of a lessee of the record owner of the lands, filed an affidavit in the probate court that appellees were insane. After examination, appellees were adjudged insane and committed to the State Hospital where they remained for approximately four months. Immediately after execution of the commitment, Davidson moved on the property in controversy, and tenants of lessees of the record owner remained in possession until the latter part of 1945 or the early part of 1946, when appellees, finding the property vacant, moved back on the land where they resided until evicted in February, 1947. On the second trial appellants introduced a complaint, summons, writ of possession and default judgment in ejectment rendered against appellee, Steve Hicks, on March 4, 1941, in favor of the purported record owners of the lands in controversy. There is no evidence of service of the writ of possession and, as heretofore stated, appellees were removed from the lands under the insanity proceedings in December, 1941. After remand of the case on the first appeal, Lester Kent, the alleged record owner, filed an ejectment suit against appellees on October 2, 1948. When the instant suit came on for trial October 13, 1948, service had not ripened in this ejectment action and appellees had not pleaded thereto. Appellants filed a “Plea in Bar” alleging that a determination of the new ejectment suit by the purported record owner would determine the issues in the instant case, because appellees’ defense herein was based on a claim of title by adverse possession and a denial of title in appellants’ lessor. The pendency of the ejectment suit was pleaded as a bar of appellees’ right to maintain their cross-complaint in the present action, and it was prayed that the instant case be continued until the ejectment suit could be tried. The action of the trial court in overruling the plea in abatement and proceeding with the trial of the forcible entry and unlawful detainer action is the first ground urged by appellants for reversal of the judgment. It is insisted that appellees’ claim of adverse possession and denial of title in appellants’ lessor could only be finally determined in the ejectment suit. It will be noted that appellants are not claiming title to the lands in controversy and chose forcible entry and unlawful detainer as the proper form of action. The alleged record owner has not seen fit to intervene in the instant suit nor have appellants requested a consolidation of this action with the ejectment suit. If the record owner had intervened in this suit, the actions of forcible entry and unlawful detainer and ejectment could have been properly consolidated. DeClerk v. Spikes, 206 Ark. 1004, 178 S. W. 2d 70. Section 34-1519, Ark. Stats. (1947), provides that in actions of forcible entry and unlawful detainer the title to the lands shall not be adjudicated, nor proved, except to show the right to possession and the extent thereof. Section 34-1520 provides that a judgment in a forcible entry or unlawful detainer action shall not bar a suit in ejectment. Under § 34-1522, an ejectment action may be instituted and prosecuted during the pendency of an action in forcible entry and unlawful detainer. In Necklace v. West, 33 Ark. 682, appellant contended that his action in unlawful detainer should be treated as one in ejectment and, in construing the above sections of the statute, the court said: “Counsel for appellant submits that the complaint contains all the material allegations requisite in a complaint in ejectment, and that under the code practice he ought not to fail in the suit because of a mistake in the proper form of action. ‘ ‘ This may be true as a general rule, but it would be an unjust application of the rule to allow a plaintiff to bring the statutory action of unlawful detainer, deprive defendant of possession of the premises in advance of a trial, fail upon a trial to prove his right to maintain the action, and then avoid the consequences of the mistake, and defeat the defendants claim to damages under the statute for having been wrongfully dispossessed in a summary mode, by taking judgment in ejectment. “That the statute did not intend to substitute unlawful detainer for ejectment, is manifest from its provisions that a judgment in the former action shall be no bar to the latter, and that ejectment may be brought during the pendency of unlawful detainer. . . .” The setting of the docket and granting or refusing a continuance is a matter within the sound discretion of the trial court. We find no abuse of that discretion in requiring appellants to retry the instant suit which they instituted more than two years before. It is next insisted that the court erred in the admission of testimony by various witnesses to the effect that appellees had been claiming the lands in controversy as their own since 1931. It is conceded by appellants that declarations by one in possession of real property, although self-serving, may be admissible as a part of the res gestae, but it is now insisted that such testimony is inadmissible unless the party offering it lays the proper foundation therefor by first showing the time, place and circumstances of the making thereof. Appellants did not object to the testimony on this ground at the trial. They rely on the case of Strickland v. Strickland, 103 Ark. 183, 146 S. W. 501. That case involved an ejectment action in which one of the parties attempted to attack the deed of the other as a forgery by self-serving declarations of one who was not in possession of the land at the time the declarations were made. The court held that such declarations were not admissible to destroy the record title, but said: “Such declarations made by a person in possession are competent simply to explain the character and extent of the possession in a given, case.” The question of title is not involved in the case at bar except to show the right and extent of possession. It is held generally that declarations of a person in possession of land showing that he held in his own right and not as the agent of another are admissible on the principle of res gestae. 36 C. J. S., Forcible Entry and Detainer, § 55 b (1); 31 C. J. S. Evidence, § 248. In 2 C. J. S., Adverse Possession, p. 828, it is said: “Declarations of a person in possession of land which show his claim of ownership are admissible as evidence of the hostility of his possession.” This court has frequently held that the declarations of a person in possession of a tract of land are admissible to show the character and extent of his possession. Seawell v. Young, 77 Ark. 309, 91 S. W. 544; Waldrop v. Ruddell, 96 Ark. 171, 131 S. W. 670. Moreover, if error was committed in this connection in the instant case, it was invited by appellants. In response to questions by his counsel, appellant Thacker testified that appellees were claiming lands south of a certain line they had staked, which included the lands in controversy. The trial court, in Instruction No. 8, limited the jury’s consideration to those statements made while appellees were in actual possession of the lands and there was no error in the admission of this evidence. The trial court sustained appellees’ objection to the introduction of title records from the government to appellants’ lessor, Lester Kent. Appellants insist that this was error, since appellees in their answer alleged that appellants’ lessor was without title to the property. The principal issue before the jury was whether appellees entered upon and held the lands under a just claim of title or ownership and the testimony was directed to these issues. Appellees made no claim of record title to the property and their right of possession was based entirely on adverse possession, which, if established, would give them the right to possession regardless of the status of the record title. As previously stated, evidence of title is admissible only for the purpose of proving the right and extent of possession and is otherwise inadmissible under the statute. Where evidence is competent for a specific purpose and otherwise incompetent, it is the duty of the party offering the same to request the court to admit the testimony for the purpose for which it is competent. Kansas City Southern Ry. Co. v. Leslie, 112 Ark. 305, 167 S. W. 83, Ann. Cas. 1915B, 834. The trial court would doubtless have admitted this evidence, if appellants had specified the purpose for which it was offered, but it. did not amount to prejudicial error to exclude it in the absence of such request. It is- next argued that error was committed in the giving of the court’s instructions Nos. 3, 4, and 5. The principal objection to these instructions now, as on the former appeal, is that there was no competent evidence to support the giving thereof. These instructions were given at the first trial under evidence which is substantially the same as that produced on the second trial. We held on the former appeal that there was no error in the refusing or giving of instructions and that holding is binding as the law of the case on this appeal insofar as these instructions are concerned. Stortz v. Fullerton, 185 Ark. 634, 48 S. W. 2d 560, and cases there cited. In addition to the instructions given at the first trial the court, at appellees’ request, instructed the jury as follows: “You are instructed that the expression, ‘Claim of title’, should be construed to mean a claim having some appearance of legality, and not a mere claim without the appearance or pretense of anything to base it upon.” Appellants offered other instructions defining the phrase “just claim of ownership” as used in other instructions and it is argued that the instruction given at the request of appellees was not sufficiently full and complete. The law as stated in the instruction given was approved by this court in Towell v. Etter, 69 Ark. 34, 59 S. W. 1096, 63 S. W. 53. The court is not required to give multiple instructions on one issue. The gist of the instructions offered is that a “just claim of ownership” is equivalent to a “just title”. While the court might well have given one of the requested instructions, we hold that a refusal to do so did not constitute reversible error. Appellants also insist that the court erred in refusing to instruct the jury that it could not consider any evi dence of appellees’ claim of adverse possession prior to March 3, 1941, the date of the default ejectment judgment against Steve Hicks. It is noted that the writ of ejectment issued upon this judgment was never served and that appellees were within a few months adjudged insane by the probate court and thereby removed from the lands. Since only the right to possession based on a just claim of ownership, and not title to the property, is involved here; and since the circumstances in the record before us indicate the possibility of appellees’ insanity at the time of the default judgment against Steve Hicks, we conclude that the trial court did not err in refusing to give the requested instruction, which would have amounted to a peremptory finding for appellants on the whole case. As heretofore indicated, the judgment here is not res judicata to an action in ejectment. It is finally insisted that the verdict of the jury was so indefinite and uncertain that a judgment could not be rendered thereon; and that the court invaded the province of the jury by determining, the description of the property in the judgment. Appellants duly objected to the following form of verdict submitted to the jury in the event of a finding for appellees: “We, the Jury, find for the defendants for restitution of the property claimed by them and assessed their damages at........................ Dollars.” Appellants requested and the court refused to submit in lieu of the form above, the following: “We, the Jury, find for the defendants for the restitution of the following property:.....................and assess their damages at........................Dollars.” The jury used the form submitted in returning their verdict. Appellants earnestly insist that the boundaries of the land claimed by appellees cannot be ascertained from the evidence and they point to the different estimates made by witnesses as to the acreage claimed and possessed by appellees. The burden was upon appellants as plaintiffs to prove their cause of action. In the discharge of this burden it was shown-by appellant Thacker and another witness that appellees were holding and claiming lands which included the Frl. N % of SE % of Sec. 29, Township 18 North, Range 8 East, which is the description used in the judgment. It is true that witnesses for appellees gave different estimates of the acreage claimed by appellees. These estimates varied from 40 to 120 acres. Appellee, Tommie Hicks, testified that they were claiming “about 40 acres”. Appellants rely on the case of Russell v. Webb, 96 Ark. 190, 131 S. W. 456. That case involved the sufficiency of a verdict in an ejectment suit. The court said: “A verdict should be definite and certain and free from obscurity, but it is not necessary that there should be any absolute precision in the wording of the verdict. If the meaning of the jury can be clearly collected from the verdict, it ought not to be set aside. It is the settled rule that the verdict should be construed liberally, with the view of ascertaining the meaning of the jury and supporting their verdict. And if the issue presented by the pleadings has been substantially decided by the jury, and their meaning can be satisfactorily collected from their verdict, then it is the duty of the court to mould it into proper form by its judgment . . . “A verdict should show sufficiently what has been awarded to the party in whose favor it has been rendered; and where land is awarded, it should not be so uncertain that a writ of possession could not be issued on it and executed. But the description is sufficient where it is reasonably certain, or where it can be made certain, so that the land can be identified. This certainty may be established by reference to monuments upon the ground or to some recorded map or by some well known and understood manner of location.” When the testimony is considered in the light most favorable to appellees and the rules as above stated, we think it sufficiently definite to show that appellees occupied, claimed and exercised dominion over the lands described in the judgment, which correctly reflects the meaning of the jury. • We find no prejudicial error and the judgment is affirmed. This case was reversed by the U. S. Supreme Court on another point in Kansas City Southern Ry. Co. v. Leslie, 238 U. S. 599, 35 S. Ct. 844, 59 L. Ed. 1478.

Frank G. Smith, J. Appellee recovered judgment for $25,000 to compensate an injury which he sustained in a collision between one of the passenger trains of appellant railroad company and a taxicab he was driving in the City of Little Rock. A motion was filed to dismiss the case upon the ground that the Clark County Circuit Court, where the suit was brought and tried, was without jurisdiction thereof, inasmuch as appellee was not a resident of that county and the injury occurred in another. The motion was overruled and the trial resulted in the judgment which this appeal seeks to reverse. The venue of this and similar litigation is controlled by Act 314 of the Acts of 1939, which provides that all actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred -which caused the injury or death, or in the county where the person injured or killed resided at the time of the injury. The answer to the question of venue posed depends upon the answer to these two questions. (1) Is residence synonymous with domicile? (2) If not, was appellee a resident of Pulaski county at the time of his injury? If the words “Residence” and “Domicile” are synonymous, then the Clark County circuit court had jurisdiction, as we think the testimony was sufficient to support a finding that appellee’s domicile was in Clark County at the time of his injury. In our opinion the words are not synonymous and cannot properly be used interchangeably. Cases without number have pointed out the difference in meaning which the words import, and our own early case of Krone v. Cooper, 43 Ark. 547, is one of these. A headnote in that case reads as follows: “ ‘Domicile is of broader meaning than residence.’ It includes residence: but actual residence is not indispensable to retain a domicile after it is once acquired. It is retained by the mere intention not to change it.” In the body of that opinion Chief Justice Cockrill said: “The appellant’s testimony, taken alone, would establish, not only an actual residence, but a domicile in this state. His honor, the circuit Judge, who determined the facts upon the testimony, might well have concluded, as he doubtless did, that appellant’s acts and previous statements about his domicile, contradicted his testimony in that behalf. Admitting, however, that the testimony clearly shows that appellant’s domicile was in St. Louis, we find nothing sufficient to show that his actual residence was not in Arkansas. The burden of showing this was upon the appellees. It was not shown that appellant’s regular place of abode, bis dwelling place, was in St. Lonis. If it had-been, the bare fact that he spent a great part of his time in Arkansas attending to business interests there, would not have been a sufficient answer.” We cannot assume that the General Assembly was unaware of this difference in the meaning of the two words, but on the contrary, we must assume that it was-aware of the fact that a person might have a residence in one place and his domicile in another. The venue act does not provide that the plaintiff may sue in the county of his domicile, but provides that if the suit is not brought in the county where he was injured it must be brought in the county where he “ resided at the time of injury.” The question is not in what county did appellee reside for the longest period of time, but at the time he was injured. In our opinion the undisputed testimony admits of no other reasonable construction than that appellee was a resident of Pulaski County at the time of his injury. The following testimony was offered by appellee, or his wife, or her mother, and was undisputed by them or any one of them. Appellee was born in Clark County, and enlisted as a soldier in World War II as a resident of that county, and upon receiving an honorable medical discharge from the army, returned to that county and registered his discharge there. His wife was also a native of Clark County and for some time after their marriage they resided in Gurdon, Clark County, and kept house there. Their only child was born in that county and both testified that that county was their home and that it was their present intention, and had always been, to return to that county. Appellee has had a very peripatetic career which he detailed as follows. He entered the army in 1941 and was discharged Nov. 3, 1943, and after his discharge he worked in Gurdon until April, 1944, when he came to Little Rock and secured employment from the Missouri Pacific Railroad Co. in which employment he continued for a period not disclosed by the record. He returned to Gurdon, for' two weeks or longer, after which he was employed by Swift & Co. in Little Rock for some two to five months. He quit that job and went to the State of Indiana, where he remained a month and then returned to Gurdon. He was again unable to secure employment there at a satisfactory wage, and he returned to Little Rock where he secured employment from the Terminal Van & Storage Company, in which he continued from July to January 1, 1946. He quit that employment and went to Arkadelphia where his wife’s father and mother lived, and after a short visit there went to Gurdon. But this too was a mere visit as he had no home in Gurdon at that time. He went to Texas and while there obtained a driver’s license to operate a truck and gave as his place of residence the city in which he was employed. He testified that it was his practice always to give as his place of residence the place of his employment. He soon left Texas and returned to Little Rock where he was given employment by the Olmstead Mfg. Co., which he soon quit and went to St. Louis where he remained from July to October, 1946. He returned to Little Rock and went to work for Swift & Co. in Little Rock for three or four weeks, where he continued to work until November 21st or 22nd, when he was employed by the Yellow Cab Co. of Little Rock, in which service he was engaged when he received the injury to compensate which this suit was brought. Appellee left Gurdon in 1944 and has not resided there since. He testified that when he left Gurdon he stored his household effects in a house which his mother had rented, which was not rented ás a residence, but for storage purposes only. He visited Gurdon frequently since leaving there, but his trips were mere visits as he had no home there. He stated that the purpose of these trips was to see after his things and to see about his dog which he had left there. His effects which he did not take to Little Rock remained in storage until February, 1947, when they were brought to Little Rock by his father. In his attempt to show that he did have a residence in Gurdon he was interrogated as follows: Q. “Where do you live now in Gurdon?” A. “I can live with my aunt and uncle. ” Q. “You can live with your aunt and uncle?” A. “That’s right.” Q. “You consider your home with your aunt at Gurdon ?’ ’ A. “At the present time if I would go there it would be.” This is the nearest approach to showing that appellee had a home in Gurdon and that testimony shows only that there ivas a home to which he might have gone, but did not go. Appellee testified that before seeking employment with the taxicab Co. he went to Gurdon to secure assistance in establishing a long distance hauling business, and had he secured that assistance Gurdon would have •been his home, but he did not secure this assistance and did not establish this business and he returned again to Little Rock and entered the employment in which he was engaged when injured. There appears to be no doubt that appellee ceased to be a resident of Gurdon in 1944 although he may have retained his domicile at that place. In his various applications for employment in Little Rock appellee gave as his place of residence a Little Rock address, first one and then another. He obtained a chauffer’s license for the years 1945, 1946 and 1948 and in each application he gave a Little Rock address. While employed from and after 1944 at intermittent periods in Little Rock his wife visited occasionally in Gurdon, but more often in Arkadelphia where she was called on account of the illness of her mother. When appellee came to Little Rock in 1944 his wife secured employment in December of that year with the Little Rock Laundry where she worked for about two years. This work was not continuous, but was interrupted by visits which she made to Arkadelphia to attend her mother. But they kept house in Little Rock, living in a furnished apartment, or rather in several different ones. They put their child in school in Little Rock as soon as he was able to enter, and they changed to another school in that city when they changed their residence. Appellee’s wife was asked, “Where was your, home in 1946,” and she answered, “Arkadelphia.” The attorney then asked, “Arkadelphia and Gurdon?” and she answered, “Yes, Arkadelphia and Gurdon.” When attending her mother she stated that her son was with her and that appellee himself was with her while she was attending her mother, but the son never attended any school except in Little Rock. Had appellee brought this suit in Little Rock no one would have thought of questioning his right to do so as a resident of that city, apart from that being the place of his injury. At any rate that right clearly existed as appellee' and his wife and child were residing in Little Rock when appellee was injured. It is true they were living in a furnished apartment, which was their place of residence, although they had household effects in storage at Gurdon where they had been stored since 1944. The injury occurred Nov. 30, 1946, and the suit was not filed until Sept. 16, 1948. The case was tried in Arkadelphia and the judgment rendered Nov. 3, 1948. During this nearly two year interval appellee continued to reside in Little Rock with his wife and child, making visits both to Gurdon and Arkadelphia. He was confined in the hospital for a week after his injury and later secured employment with the Ark. Motor Freight Lines Inc. in which employment he sustained another injury Sept. 26, 1947, for which he received compensation checks in payment thereof, all of which were sent to him at his Little Rock address. Appellee insists that as the animus manendi, or the intention of remaining in Little Rock, was not shown, no residence was acquired in that city and in support of that contention the recent cases construing our 90 day divorce law, which was Act 71 of the Acts of 1931, p. 301, are cited. In the first opinion construing that Act the case of Squire v. Squire, 186 Ark. 511, 54 S. W. 2d 281, decided Nov. 21, 1932, it was held that under this act, authorizing the granting of a divorce upon a residence in this state for 90 days, there was no requirement that the plaintiff seeking a divorce must have had a permanent intention of making this state his home. That opinion was followed in a number of. subsequent cases, and remained the law until April 28, 1947, when it was overruled in the case of Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585. Under the authority of the Squire case many persons came into the state and obtained divorces here, who were in fact mere sojourners, and returned to their homes from whence they had come as soon as they had obtained the decree of divorce. The policy of the law in granting divorces was reviewed in the Cassen case, and it was held that the doors of our courts in granting divorces should be opened only to persons who were bona fide residents of this state, not only when the decree of divorce was rendered, but also at the time when the suit was filed,- and that- one was not a bona fide resident of this state whose domicile was elsewhere. It was there said that “by bona fide residence, we mean the same as domicile”. In other words, a.domicile in this state was essential to maintain a suit for divorce. Be it so, we do not think the Cassen case is applicable here which is not a divorce case. The case which we think does apply and is controlling here is that of Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765, which turned upon and was controlled by Act 314 of the Acts of 1939. In that case the Cleveland Circuit Court had assumed jurisdiction of a personal injury suit when the injury had occurred in another county. Jurisdiction was defended upon the ground that the plaintiff was in fact a resident of Cleveland county where the suit was pending. It was held, under the facts there cited, that plaintiff was not a resident of Cleveland county and prohibition was granted. Hudson, the plaintiff, testified that he was born and reared in Cleveland county and that his home was in that county and that he farmed there from 1937 through 1939. He was injured January 14,1939. It was shown however, that Hudson had secured employment in Ouachita county, where he was injured. That he had rented a house in Ouachita county, in which he was living at the time of his injury, and that his child had been enrolled in a school in Ouachita county, although some of the household effects were in Cleveland county in a house which he had rented. The facts stated parallel this case, except that here appellee has no home in Clark county, his household effects being stored in a house which had not been rented for residential purposes, but for storage purposes. He had rented a furnished apartment in Pulaski . county, where he was living when injured, with his wife and his child who was later placed in school in Pulaski county. The opinion in the Norton case, supra, recites that: “He (the circuit judge) held as a matter of law that ‘resided’, as used in act 314, contemplates the place of one’s permanent abode, and further held that Hudson’s permanent abode and residence was Cleveland County.” The opinion further states: “We cannot agree with the construction which the circuit judge placed upon the word ‘resided’ in act 314. We do not think that ‘resided’, as used in this act, necessarily means one’s permanent abode or legal residence dr domicile.” The opinion then quoted the language used by Chief-Justice Cockrill in the Krone v. Cooper case, herein above copied, thereby reaffirming what Justice Cock-rill had said. The opinion proceeds: ‘ ‘ This court further said in the case of Smith v. Union County, 178 Ark. 540, 11 S. W. 2d 455: ‘Residence, as used in § 9890, Crawford & Moses’ Digest, means the place of actual abode, and not an established domicile or home to which one expects to return and to occupy at some future date. ’ “In the case of Shelton v. Shelton, 180 Ark. 959, 23 S. W. 2d 629, this court, in referring to the case of Smith v. Union County, supra, and other cases, said: ‘It will be seen from these cases that residence and domicile are not to be held synonymous; that a man may have a residence in one state or county, and he may be a nonresident of the state of his domicile in the sense that the place of his actual residence is not.there’.” This case has not been overruled. On the contrary, it was cited with approval in the case of Twin City Coach Co. v. Stewart, 209 Ark. 310, 190 S. W. 2d 629. The opinion in the case of Twin City Coach Co. v. Stewart did not recite the facts as to residence, but did say that a petition for prohibition in that case had been overruled for the reason that a question of fact as to residence was involved and it would not be presumed that there would be an incorrect determination of that question when the case was tried. The point was reserved and was re-presented when the case was tried in the circuit court. In the dissenting opinion by Justice McFaddin, in the Twin City Coach Co. case the following facts were recited. “Here are the facts: Miss Valeta Stewart became 18 years of age on March 7, 1944, and was killed in Fort Smith, Arkansas, on April 22, 1944. Her parents lived in Booneville, in Logan county; and she lived in the home with them until April 19, 1943, when she began working as a waitress at a cafe in Fort Smith, in Sebastian county. Miss Stewart and other girls had an apartment in Fort Smith, and paid the rent monthly. She kept her clothes in Fort Smith. She worked six days a week in the cafe and went to Booneville on her rest day ‘nearly every week,’ and took her soiled clothes to Booneville where she and her mother laundered them. During three weeks in early 1944 the cafe was closed for repairs; and Miss Stewart spent this time with her parents in Booneville. There is no record of any voting or payment of taxes.” There was thus a question of fact as to whether the injured party was a resident of Ft. Smith where she worked 6 days a week, or of Booneville where she rested on the seventh day and had her laundry done, and for that reason prohibition had been denied. It was thought by the dissenting Justice that the opinion in the Norton case, supra, had been weakened if not by implication overruled, which action met with his approval, as he thought too narrow a view of residence had been taken in the Norton case. However, the Norton case was not overruled, certainly not expressly, nor by implication, as it was cited with approval in the majority opinion in the Twin City case. In its last analysis the controlling question is whether residence and domicile are synonymous words, meaning the same thing. To hold that they are would overrule the Norton v. Purkins case, and the cases there cited, and numerous other cases to the contrary. Norton v. Purkins has not been overruled by implication or otherwise; on the contrary, it was quoted with approval and followed in the case of Burbridge v. Redman, 211 Ark. 236, 200 S. W. 2d 492, an opinion subsequent to the Twin City case, supra. The opinion in the Burbridge case makes it definitely clear that the Norton v. Purkins case was not overruled. We copy from the opinion in the Burbridge case the following statement: “The case affords an excellent example of the Court’s determination that a plaintiff’s contentions in respect of residence must be considered in connection with his conduct, from which an intent will he deduced. “In the Norton-Purkins case Hudson had some household effects in Cleveland County, and had a temporarily rented residence; hut by actions he had very definitely shown a purpose to reside elsewhere.” The opinion continues: “Another case in point is Twin City Coach Co. v. Stewart, Adm’r., 209 Ark. 310, 190 S. W. 2d 629. There was no disagreement as to the majority opinion that venue was in Logan County; but, since this opinion held that an instructed verdict for the defendant should have been given, facts connected with the decedent’s actions affecting the contention that she had chosen Port Smith as her residence were not detailed. The dissenting opinion, while expressing the majority’s view that venue was in Logan County, elaborated upon evidence touching venue, and disagreed with the general result. (Shephard v. Hopson, 191 Ark. 284, 86 S. W. 2d 30.)” Here appellee was injured in Pulaski county, which unquestionably was at the time of his injury his place' of abode, and that of Ms family, and Pulaski county was therefore the county in which he was residing at the time of his injury, within the meaning of Act 319. The Clark County Circuit Court was therefore without jurisdiction and the judgment must therefore be reversed and the cause dismissed without prejudice to the right to sue in Pulaski county. Leflar, J., not participating.

Holt, J. Appellee, Erma Lee Piles, a minor, by ber mother, sued appellant, Sinclair Refining Company, and Jim Andas to compensate personal injuries alleged to have been sustained by appellant’s negligence when Erma’s mother, Mrs. Young, attempted to light a fire in a heating stove by using what was thought to be kerosene, and a violent explosion occurred. The defendants below answered separately with general denials and appellant here, Sinclair, specifically denied liability on the grounds that appellee and her mother were guilty of contributory negligence which would bar recovery and that it was not responsible for the acts of the persons who caused the explosion. When the cause came on for trial, a non-suit was taken as to Audas. The trial jury awarded appellee $2,500 damages against appellant, Sinclair. This appeal followed. Appellee, a minor, lived with her mother at Hon, Arkansas. In the early morning of February 25, 1947, Mr. Young, her step-father, brought to the home four gallons of a liquid purchased as kerosene from Claud Stewart’s store, a short distance away. Mrs; Young, after placing a small quantity of this liquid in a glass, poured it over some wood in a cold wood stove, applied a match, and an explosion immediately followed, severely burning and injuring appellee, who was standing near making candy on an oil stove. Appellant, in January and early February, 1947, bought two tank cars of kerosene from Atlas Refining Company, a manufacturer and refiner of petroleum products, in Shreveport, La. The cars were shipped to appellant at Waldron, Arkansas, and there received by its agent, Harris, who was, by the terms of a written agreement, in charge of its storage tanks and bulk sales station there. An employee of Harris, Jim Audas, removed the liquid from the tank cars to the storage tanks of Sinclair. Under the terms of the elaborate and lengthy agreement, Harris assumed charge of appellant’s storage tanks and property and made sales and deliveries of appellant’s kerosene and gasoline on a commission basis. These products at all times, until sold and delivered, and also tanks and oil containers, were the property of Sinclair. Section 24 of the agreement provides: “Either party may terminate this agreement at any time with or without cause; and upon the termination thereof the Agent shall forthwith deliver to the Company or its rep resentatives all equipment, property, products, monies, credits, books of account, and station records of whatsoever form entrusted to Agent or coming under Agent’s control. ’ ’ Throughout the agreement, Harris is referred to as Sinclair’s agent, and the agreement is signed by him as Agent. Harris was given an exclusive territory. The proceeds from all sales were the property of Sinclair, duplicate sales slips or forms were furnished by Sinclair for its agent’s use in making sales and deliveries, all proceeds collected from sales were deposited to Sinclair’s credit in the Bank of Waldron and its agent, Harris, was paid his commissions every two weeks. All checks received by Harris or Audas were made payable to Sinclair. The name of Sinclair Refining Company was on Harris’ truck. The duties of its agent, Harris, required him to take proper care of appellant’s products, storage tanks, warehouse, and other equipment as well as to solicit, carry on appellant’s business at its direction, make deliveries, collect accounts and make reports as indicated. The authority of agent, Plarris, to extend credit to customers was controlled by appellant. Appellant furnished all forms used in the business. Sinclair furnished all containers for its kerosene and gasoline. Harris furnished his own truck and a driver, Audas, whom he paid, to make deliveries. Sinclair required Harris to furnish to it the name of his designated agent, Audas, and under the agreement, Harris could only make a change by giving written notice to Sinclair. Sinclair fixed the prices on its products. Prior to the morning when the explosion occurred and injured appellee, Harris’ driver, Audas, delivered thirty gallons of what was thought to be kerosene to a store keeper, Claud Stewart, which Stewart placed in a metal container furnished by Sinclair with its name printed on it. Stewart had an agreement with Sinclair to sell its products which were to be delivered to him through its agent, Harris. Appellee’s step-father, Young, purchased four gallons of the liquid taken from this tank, thought to be kerosene, and sold to him as such, carried it to Ms home, and, as noted, the expMsion occurred when Mrs. Young poured a small amount of the liquid from the four gallon can over wood in a cold heating stove and applied a lighted match. There ivas evidence that this liquid sold as kerosene was tested and shown to contain 15 °/o gasoline and that any liquid containing as much as % of 1% gasoline is unsafe for use as kerosene. There was evidence that a sample of kerosene taken from one of the cars in question flashed at 136° Fahrenheit and that from the other car at 134°. Our statute (Ark. Stat. (1947), § 53-604) requires, that “no oils or fluids — which ignite or burn (Called Fire Test) at any temperature less than 140 degrees Fahrenheit — shall be offered for sale or used for illuminating or heating purposes Avithin the State, etc. ’ ’ It is also required that “when any person, firm or corporation shall receive within this- State any of the petroleum oils mentioned in this act for the different purposes mentioned in this act, he shall at once notify the Commissioner of Revenues, or one of his deputies or inspectors, of the quantity of said oils received, and request the inspection of same.” (Ark. Stat. (1947), § 53-608). There was evidence that appellant received the two tank cars of kerosene in this State and failed to notify the Commissioner of Revenue, or to comply with the statute. We do not attempt to detail the testimony. The record is voluminous. It suffices to say that after a careful review of the evidence, Ave have concluded that the relationship between appellant, Sinclair, and Harris Avas that of principal and agent and that in the circumstances Harris was not an independent contractor and Audas his servant. As we read the agreement between Sinclair and Harris, and interpret it in the light of the actions and conduct of the parties to it, Aye think that it was the purpose of Sinclair to retain complete control of all that was . done in connection with the sale and delivery of its kerosene, gasoline and products, and that Avhen we give to the testimony its strongest aspect in favor of appellee, as we must, it warranted a finding that Harris and Audas, Harris’ driver, were servants of the company and under its control and supervision. The agreement, in addition to providing that agent, Harris, should furnish his own truck, provided that he should furnish (subject to appellant’s approval) and pay out of his own funds a driver, and be responsible for, and hold appellant blameless for, any negligent acts of such driver (Audas here). Appellant contends that for this court to hold, in the circumstances, that Harris was not an independent contractor and Audas his servant for whose acts Harris would be responsible, would be contrary to our holding in Magnolia Petroleum Company v. Griych, 206 Ark. 352, 176 S. W. 2d 435. We cannot agree. That case is distinguishable on the facts. While the written agreement in that case was similar to that in the instant case, such agreement would not altogether control the relationship between the parties. Their acts and conduct, and what they did under the agreement may be taken into account in determining that relationship. Here, there is evidence (absent in the Griych case) that would warrant an inference that Sinclair intended or consented that Audas (as well as Harris) was to be its servant or agent, when the agreement is interpreted in the light of appellant’s conduct, supervision and control over Harris and Audas. The principles of law announced in Magnolia Petroleum Co. v. Johnson, 149 Ark. 553, 233 S. W. 680, a case in which the facts are strikingly similar, in effect, to the instant case, apply with equal force here. There this court said: “The insistence is that the undisputed evidence shows that Smith was an independent contractor, and that the drivers of the wagons were the servants- of Smith. “The majority of the court are of the opinion that the facts stated made a case for the jury, and that the contract between the company and Smith created the relation of principal and agent, and that the company had reserved the right to control and direct the manner of making deliveries of oil, and that, while no directions were given in the particular instance as to the manner of delivering the oil to appellee, which caused the fire that destroyed the barn, the company had reserved the right of direction; and, in the discharge of all duties, whether performed by Smith himself or by men employed by him, in selling and delivering the oil, the work done was that of the 'company. “We recognize, of course, that the designation of Smith as ‘ agent ’ in 'the contract is not conclusive of the relation. J. R. Watkins Medical Co. v. Williams, 124 Ark. 545, 187 S. W. 653. The test is, not whether the company actually directed the manner of the delivery of the oil, but is whether the company had the right to control the delivery. 14 R. C. L., § 67, of the article on Independent Contractors. And the majority are of the opinion that the contract between the company and Smith, as interpreted by the conduct of the parties under it, shows that it was the purpose of the compány to retain complete control of everything done in connection with the sale and delivery of the oil, and that the testimony, in its entirety, warranted the finding that the drivers of the wagon were themselves the servants of the company. ’ ’ In Monk v. Jones, 190 Ark. 1117, 83 S. W. 2d 526, we said: “The mere fact G. P. Scarborough was working for his co-appellees on a commission basis, and that he furnished the conveyances in which the merchandise was transported and also hired and fired the employees retained by him, is not conclusive that he was an independent contractor. We so expressly decided in Magnolia Petroleum Co. v. Johnson, supra,” and in Houston Oil Company v. McGuire, 187 Ark. 293, 59 S. W. 2d 593, we said: “The test of the fluid as analyzed by Dr. Rose showed it contained 96 per cent, of gasoline and ignited at a temperature of 88 degrees, when the statute (§ 5903, Crawford & Moses’ Digest, as amended by Act 277 of 1923) provides that, if the fluid ignités at a temperature of less than 140 degrees, it shall not be offered for sale for illuminating and heating purposes. * * * “It certainly was not kerosene of tlie grade required by the statute for heating purposes, and it makes no difference where the mistake was made, since it was made by appellant or its agents.” We are also of the opinion that the jury was warranted in finding that there was no negligence, in the circumstances, on the part of either appellee or her mother, Mrs. Young. We are unable to find any negligence at all on the part of either. As indicated, there was evidence that the oil which Avas purchased by Mr. Young for kerosene, as he had a right to assume, was a mixture of kerosene and gasoline, Avhick would burn or flash at a point below 140° Fahrenheit, and chemical tests showed that it contained 15% gasoline, and Avas not safe for use in making a fire as aauis attempted here. As was said in Goode v. Pierce Oil Corporation, 171 Ark. 863, 286 S. W. 1009, “it is a matter of common knowledge that refined kerosene is used to furnish light and as fuel for oil stoves. It is also commonly used in kindling fires. Hence in the absence of contributory negligence by the plaintiff, the evidence for the plaintiff was sufficient to allow a recovery by her. ’ ’ We cannot agree that the jury’s verdict was based upon speculation or conjecture. There was substantial testimony, both direct and circumstantial, sufficient to take the case to the jury on the question of appellant’s negligence, in the circumstances. Appellant complains because the court gave instruction No. 1, on its oavu motion, because said instruction was given in the language of the Arkansas Inspection Statutes, (Ark. Stat. (1947), §§ 53-604 and 53-608), and concluded with: “So, in this case if you find from the evidence that the defendant did not comply with the statute, then you may take such fact, together with all the other facts or circumstances in evidence into consideration in determining whether the defendant was negligent or not.” There was no error in this instruction. The language used in the two sections of the statute is unambiguous, clear and understandable from the layman’s viewpoint. We have many times held that it was not error to give an instruction in the words of a statute when they are simple declarations of law which no person of reasonable intelligence could misunderstand. (Missouri Pacific Transportation Company v. Parker, Admr., 200 Ark. 620, 140 S. W. 2d 997). Other assignments of error by appellant relate to the giving, and refusal to give, certain instructions. In this connection, it suffices to say that we have examined all of the instructions, including those complained of and find that they correctly declared the law as applied to the facts. Finding no error, the judgment is affirmed.

George Rose Smith, J. Upon the first appeal in this cause we affirmed the granting of a divorce to appellee but awarded alimony to appellant in the amount of $30 a month. Warren v. Warren, 214 Ark. 379, 216 S. W. 2d 398. Appellee’s failure to pay the first three installments resulted in a citation for contempt of court. The chancellor ordered payment of the amount past due but reduced the allowance for the future to $15 a month. This appeal questions the modification. Of course the chancellor may modify an award of alimony from time to time, but the power is to be exercised to meet changes in the relative circumstances of the parties. After studying the record made at each hearing we are unable to say that there has been any change necessitating a reduction of the award. Appellee’s monthly income at the time of the first trial consisted of earnings averaging from $75 to $100 and a pension of $27.60. At the second hearing he estimated his income at about $100 a month in addition to the pension. Appellee intends to enter a hospital for treatment of the injury for which he receives a pension, but until lie does so his earning capacity is not more adversely affected by the injury than it was at the time of the first trial. There was also some additional testimony as to the extent of appellant’s property ownership. Even if it were held that a more detailed presentation of proof originally available is sufficient to support a modification in the amount of alimony, here the difference is so slight that it would not have affected the award first made. We conclude that a reduction of the award is not at present warranted by the' evidence. Appellant asks us to allow an attorney’s fee, as authorized by Ark. Stats. (1947), § 34-1210. This request is addressed to the court’s discretion. The proof shows that appellant is able to pay her attorney, while the appellee will have difficulty in paying for the services of his own counsel. Upon this showing we do not feel that the allowance should be made. See Zeddy v. Zeddy, 180 Ark. 235, 21 S. W. 2d 157. Reversed. Griffin Smith, C. J., not participating.

Ed. F. McFaddin, Justice. The Beaver Bayou Drainage District was created by Act 92 of the Acts of the Legislature of 1907; and the Act was amended by Act 379 of 1911 and also by Act 154 of 1913. Then the Legislature, by Act 370 of 1920, confirmed the assessment of benefits in the District, and authorized the commissioners to continue to collect assessments for maintenance of the drainage system after the bonds had been paid that were to be issued for construction. The improvements contemplated by the said legislative enactments were made about 1921. The bonds issued to pay for the improvements were finally retired in 1947; and slightly less than $200,000 of the original assessed benefits, not having been used for retiring the bonds, remained as potentially susceptible of use for maintenance. In December, 1947, the commissioners of the District, directed that a levy of 2y2% be collected on the assessed benefits, the proceeds of such collection to be used for maintenance work which had been neglected for many years, while current collections were being used to retire the outstanding bonds. In March, 1948, appellants, Campbell and other landowners as plaintiffs, filed suit in the Chancery Court, seeking to prevent the District (defendant below and appellee here) from collecting any further assessments. The plaintiffs also made other attacks on the District, and on the procedure pursued by the Commissioners. After hearing the evidence the Chancery Court dismissed the complaint, and this appeal challenges the chancery decree. In the complaint filed in the Chancery Court multiple attacks were made on the Act creating the District, as well as on the actions of the commissioners; but on appeal to this Court only two main points are argued. Under our well-established holdings, in a civil case all assignments not argued in the briefs are considered to be waived; so we proceed to discuss the points contained in appellants’ brief. I. Constitutionality of Act 370 of 1920. Appellants say: “Under the powers undertaken to be granted by that Act, the Directors of the appellee district have undertaken to manage the affairs of the district since February 26, 1920, and are at this time undertaking to exercise the powers given under that Act. ‘ ‘ The Act in question was unconstitutional and void from its beginning, for the following reasons: “1. It created a Board of Commissioners of the District and named the members and provided that they should perpetuate themselves in office indefinitely. “2. It authorized them to levy assessments against the lands embraced in the district at their pleasure, and for any purpose (for) which they might desire to use the proceeds of same. “3. It authorized the directors without approval of any court to enlarge and deepen existing canals, and to construct new lateral canals at their pleasure, without consulting the owners of the property, or without procuring any authority from any court.” As to appellants’ first ground of attack (i. e., the Legislature naming the commissioners and allowing them to fill vacancies in certain cases) we need only point ont that in Reitzammer v. Desha Road Imp. Dist., 139 Ark. 168, 213 S. W. 773 we stated that it was within the power of the Legislature, in creating special improvement districts, to name the commissioners and to allow them to fill vacancies on the Board of Commissioners. As to the appellants ’ second ground of attack (i. e., levy of assessment of benefits), the Legislature confirmed the assessment of benefits, and empowered the commissioners to collect such portions of the assessed benefits as might he required from time to time to satisfy the obligations of the District and maintain the improvement. Similar legislative enactments have been upheld in the cases of North Ark. Highway Imp. Dist. v. Rowland, 170 Ark. 1168, 282 S. W. 990 and House v. Road Imp. Dist., 158 Ark. 330, 251 S. W. 12. As to the appellants’ third ground of attack (i.e., empowering the commissioners to construct new lateral canals), it is sufficient to say that this litigation does not present a situation in which the commissioners are attempting to construct any new improvement. All that the commissioners in this case now propose to do is to clean out existing ditches, and certainly it was within the power of the Legislature to authorize the maintenance in good condition of the ditches which were constructed for the benefit of the property in the District, and which property the Legislature — within its power as shown by the cases previously cited — determined to be benefited by the improvements. « To summarize: we hold that Act 370 of 1920 is valid as against the attacks here made on it. II. Effect of Act 227 of 1927 on Act 370 of 1920. Appellant says: “It is rather remarkable that a hoard of commissioners, undertaking to manage as large an operation as that of financing a district that has 50,000 acres of land, should, for a period of twenty years, ignore or disregard Act 227 of the Acts of 1927, as construed by this court in the case of Berry v. Cousart Bayou Drainage District, 181 Ark., at page 974, 28 S. W. 2d 1060. Not the slightest attempt has been made to comply with the general statute of the State of 'Arkansas, passed for the purpose of regulating the operation of drainage districts, and of fixing the powers and obligations of the persons undertaking to discharge the duties as managers.” The above-quoted language poses the question listed in this topic heading. Act 227 of 1927 is entitled, “An Act in Aid of Drainage Districts Formed under Special Laws. ’ ’ The Act contains a preamble, which reads: “Whereas, there are in this State many drainage districts created by Special Laws, which need amendment, but which cannot be amended under the present constitutional restrictions; and “Whereas, the general drainage law, which appears as Act number 279 of the year 1909, furnishes an adequate uniform system for the operation of drainage districts: ’’ The Act then provides: “Section 1. All drainage districts created by special acts are hereby made drainage districts under the term of Act Number 279 of the Acts of the General Assembly of the State of Arkansas of the year 1909, as amended, said Act being entitled, ‘An Act to provide for the creation of drainage districts in this State’, approved May 27, 1909, with all the powers conferred by said Act No. 279, and with all the liabilities and restrictions thereby imposed. Provided, nothing in this Act shall be construed as taking away from any improvement district created by special acts any powers which are thereby conferred upon it, nor shall it displace any commissioners or directors of such districts now in office. ’ ’ Appellee Beaver Bayou Drainage District is a “special district ” in that it was created and empowered by special acts of the Legislature. Special acts were common .practice until the adoption by the People of Constitutional Amendment 14 at the General Election in 1926. Prior to that Amendment the Legislature had from time to time amended and enlarged the special acts, just as in the case at bar by the Acts first mentioned in this opinion, and affecting this District. But after the adoption of Amendment 14 in 1926 the Legislature was powerless to amend special laws; nevertheless, the Legislature desired that various improvement districts created by special acts should enjoy enlarged powers, so Act 227 of 1927 was adopted. The proviso of section 1 of that Act, as previously quoted, says: “Provided, nothing in this Act shall be construed as taking away from any improvement district created by special acts any powers which are thereby conferred upon it, nor shall it displace any commissioners or directors of such districts now in office.” It is clear that the legislative intent was — and we so hold — that any special district created prior to 1926 continues to enjoy and exercise all the powers that such district had under its organic law. And, in addition, every special district also enjoys and may exercise all the powers allowed to districts created under the general law (that is, Act 279 of 1909 and amendments, and known as the Alternative Drainage District Law); but in the enjoyment of the enlarged powers allowed by the provisions of the general law, the special district must exercise such enlarged powers in the manner provided by the general law. In the case at bar all the powers that the appellee district is seeking to exercise at this time are the powers that the district enjoyed under its special law, since the applicable portion of section 7 of Act 370 of 1920 reads: “ . . . the directors are authorized and directed to constantly maintain such improvements by keeping the canals and ditches cleaned out and open and to pay therefor from the assessment of benefits, . . .” So we hold that Act 227 of 1927 does not restrict the appellee district and its commissioners in what is now being undertaken in the case at bar. Appellants cite and strongly rely on the case of Berry v. Cousart Bayou Drainage Dist., 181 Ark. 974, 28 S. W. 2d 1060 as being applicable to the case at bar; but a careful study of the ease shows that it is distinguishable on the facts, and that its holding was not directed to a situation similar to the one which now confronts us. In all instances courts should be guided by the real holding — i. e., the essential — rather than by the dicta — i. e., the incidental, in previous cases. In the Berry-Cousart case the District had been created by a special act (Act 283 of 1907), and its powers had been enlarged by a subsequent special act (No. 677 of 1923). The opinion of this Court recites: “The system is inadequate, and does not properly drain the lands within the district. The work provided for by the plans has been completed.” With that situation confronting it, the Cousart Bayou District then undertook to add certain territory and assess the benefits against some of the land in the added territory, and then to pledge all old unused benefits and all new beenfits for a new bond issue, the proceeds of which were to be used to perform work not contemplated originally. It is clear that, in starting a new improvement, the District was putting itself within the purview of the general law (the Alternative Drainage District Law), rather than continuing to proceed exclusively as a special district for its original purpose. While the organic acts of the Cousart Drainage District contained language which might have allowed some latitude in construction; yet when a new enterprise was attempted, such new endeavor was beyond the legislative contemplation when the district was empowered by the special legislative acts. So the holding of this Court in the Berry-Cousart case required that a special district, if it undertakes a new project, should do so under the general law. We do not impair that holding. On the contrary, we emphasize that if a Special District, even in routine matters of its continued existence, should proceed under the general law, all such actions would be valid because they would possess not only the affirmative actions of the commissioners (as required under the special law), but also the action of the County-Court (required under the general law). In the case at bar the appellee district is not undertaking a new project, but is merely cleaning out its drainage ditches as originally constructed. We hold that the case at bar is distinguished on its facts from the Berry-Cousart case. We hold that the appellee district, under its powers in its special acts, may collect any unused assessments for cleaning out the ditches originally constructed. The cases of Indian Bayou Drainage Dist. v. Dickie, 177 Ark. 728, 7 S. W. 2d 794; Cox v. Drainage Dist., 208 Ark. 775, 187 S. W. 2d 887; and Walker v. Roland Drainage Dist., 212 Ark. 633, 207 S. W. 2d 319 are not in point here, because in each of those cases the District had been organized under the general law. The decree of the Chancery Court is in all things affirmed. Justices Holt and George Bose Smith dissent. Plunkett-Jarrell Grocer Co. v. Freeman, 192 Ark. 380, 92 S. W. 2d 849, and see cases collected in West’s Arkansas Digest, “Appeal and Error,” § 1078. In McLeod V. Dilworth, 205 Ark. 780, 171 S. W. 2d 62, we said: “We point this out so that the dicta, in one decision will not be seized upon as the ratio decidendi in the next decision; . .

Minor W. Millwee, Justice. Appellant, Silas Harp, homesteaded an 80 acre tract of land about 1907 which he still occupies as a farm. The land is described as the W y2 of the SW % of section 15, township 17 north, range 21 west. He included within his fences about 30 acres that was not a part of his homestead, but was instead a part of the adjoining section 16 and was commonly referred to as “School Lands.” The record title to section 16 has been held as a unit by successive owners, the last of whom is the appellee, C. R. Christian, who purchased the land from Mamie M. Pratt in 1946. After purchasing the property, appellee made claim to the 30 acre tract in controversy, whereupon appellant filed his petition in chancery court to quiet his title based on a claim of adverse possession. Appellee intervened in the suit denying the allegations of the petition and asking that his own title to the lands be quieted. Trial resulted in a decree dismissing appellant’s complaint and confirmation of' title in appellee as against appellant. The only question for determination is whether the chancellor’s finding that appellant’s possession of the lands in controversy was permissive, and not adverse, is against the preponderance of the evidence. It is admitted that appellant has had the 30 acre tract under fence and been in actual possession of it for more than seven years. He has paid no taxes on the land and taxes on the whole of section 16 have been paid by appellee and his predecessors in title. Several witnesses testified on behalf of appellee that appellant had told them over the years that he was not claiming the land in controversy as his own, but was merely holding and using it for the benefit of the owners and looking after it for what he could get out of it. There was also evidence that appellant had offered to purchase the property from the record owners on different occasions. Appellant admitted that he tried to buy it from appellee to clear his title and avoid a law suit, but denied that he offered to purchase from others. Previous record owners of section 16 from 1930 to 1946 testified that appellant made no claim of ownership of the lands in question, hut was using it by permission of said owners. Mrs. Mamie Pratt, who owned the 16th section from 1939 to 1946, testified that appellant recognized her ownership at all times and offered to trade another piece of property for the land in controversy and witness advised him that he could use the land until she was ready to transfer it or use it herself. Appellee testified that in buying the land he relied upon appellant’s statement that he was looking after the land for the use of it and did not own it. Appellant denied the statements attributed to him by witnesses for appellee and stated that some of them were mad at him. He further testified that he always claimed and used the lands as his own without recognition of the rights of others and thought it was a part of the lands he homesteaded. Several witnesses for. appellant testified that they had never heard anyone question his ownership or possession during the long period of years that he held and used the lands. At the time appellant took possession, the land was school property and if the testimony of appellee’s wit nesses is to be credited, appellant acknowledged it as sncb and bis use thereof was permissive. It is well settled that where entry upon land is permissive, the statute will not begin to run against the legal owner until an adverse holding is declared and notice of such change is brought to the knowledge of the owner. Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645; Gibbs v. Pace, 207 Ark. 199, 179 S. W. 2d 690. It is true that an' offer to purchase will not divest a title that has already become vested in the adverse claimant, but such testimony may be considered in determining the character of the possession during the statutory period. Baughman v. Foresee, 211 Ark. 149, 199 S. W. 2d 596. While the evidence is sharply conflicting, we cannot say that the preponderance thereof does not support the conclusion of the chancellor that the possession of appellant was permissive and not adverse. The decree is accordingly affirmed.

Ed. F. McFaddin, Justice! This appeal stems from the effort by appellees, as heirs of the original property owner, to have their title declared superior to that of appellant, Ed Pinkert, who holds by mesne conveyances from the improvement district which purchased the prop-, erty at the commissioner’s sale for the foreclosure of the delinquent assessments. The three vacant lots here involved were situated in Sewer Improvement District No. 94 of Little Rock (hereinafter called district). In June, 1927, the district filed suit in the Pulaski Chancery Court to foreclose the district’s lien for the delinquent assessments due on the three lots. Other properties (over 340 tracts in all) were included in the same suit, and the foreclosure decree was not rendered until November, 1937, being more than ten years after the suit had been filed. The said foreclosure decree recites, as regards service: “And it appearing to the court that due service of process has been had upon each of the defendants, for the time and in the manner prescribed by law, . . . and that a list of all delinquent property in plaintiff improvement district, for the assessments levied for the various years from 1924 to 1934, inclusive, by warning order of notice of the pendency of this suit, has been given by publication for four consecutive weeks, listing the names of the last known owners, the lots, blocks, parcels and land and other property in said district, and the amounts due thereon, for the years against which said property is delinquent.” From the above recital it appears that there was not only (a) service on the delinquent property owners as required by the law when the suit was filed in 1927, hut also (b) service by publication as required by the law when the decree was rendered; so no question is posed in this case as to the sufficiency of the service in the foreclosure suit. The benefits on these three lots were unpaid from 1924 to 1934, inclusive; the delinquent assessments totaled $130.20 and the penalty was $26.04. In the foreclosure sale conducted by the commissioner in chancery, the district bid for the three lots the said amount of the delinquent assessments, penalty and costs; and a certificate of purchase was issued to the district. In 1943, this certificate of purchase — with the approval of the chancery court — was sold to James New-some for $5.50. This sale and the circumstances surrounding it will be discussed in topic II, infra. During the period allowed by law for redemption, the said certificate of purchase was transferred by Newsome to Jack Barry, and by Barry to W. I. Stout, trustee. On October 12, 1943, the commissioner in chancery executed to W. I. Stout, trustee, the deed which described the three ■ lots here involved; and that deed was on the same day acknowledged in open court and approved by the chancery court, and delivered to W. I. Stout, trustee. In 1944, for a valuable consideration, Stout conveyed the three lots to Ed Pinkert, one of the appellants in this court. The other appellant, here, is Manie Schuman, who claimed under a tax title now conceded to be void, so Pinkert is the real appellant and the only one with an interest. We will hereinafter refer to him as “the appellant.” On April 10, 1948, the appellees herein filed the present suit, and alleged (a) that the three lots were sold for a wholly inadequaté price at the foreclosure sale; and (b) that the assignment of the certificate of purchase from the district to Newsome for $5.50 was wholly void, not only because of price, but also because of the intervention of a receiver appointed by the chancery court. The case was heard on oral and documentary evidence, and a decree was rendered on September 23, 1948, adjudging the title to the three lots to be in the appellees, free of all claims of appellant. This appeal challenges that decree. From the foregoing recitals it appears that there was a long-delayed foreclosure suit by a municipal improvement district; a sale of the three lots to the district for the delinquent assessments, penalty and costs; a transfer of the certificate of purchase during the period of redemption; the expiration of the period of redemption; a deed by the commissioner in chancery to the holder of the certificate of purchase; the approval of said deed by the court; and the delivery to the grantee. The burden was on the appellees as plaintiffs in the trial court to show fatal-defects in the proceedings of foreclosure. We therefore consider the contentions relied on by the appellees. I. Amount for Which the Property was Sold at the Foreclosure Sale. The three vacant lots here involved were worth at least $1,800 at the time that they were sold to the district at the foreclosure sale for $156.24. Appellees claim that the sale was void because of this inadequacy of price; but we find this contention to be without merit. In Nash v. Delinquent Lands, 111 Ark. 158, 163 S. W. 1147 it was claimed that an improvement district foreclosure sale was void because the land was sold for an inadequate price. In denying that contention, we said: “The law authorized the lands to be proceeded against ‘for the collection of such assessments, installments, interest and fee and costs due thereon.’ There was no evidence tending to show that the lands were offered for sale or sold for less than the amount owing and due thereon, as declared by the court in its decree. Where the law authorizes land to be sold for taxes, penalty, interest and costs as determined by the court in its decree to be due against the lands, if the lands, when offered at public sale upon open and free competitive bidding, bring no more than that amount, it cannot be said that the purchaser who offers such amount for the lands, and whose offer has been accepted, has paid an inadequate price. ’ ’ Furthermore, section 5 of Act 207 of 1937 (as found in § 7317, Pope’s Digest) says of improvement district foreclosure sales: ‘ ‘ At such sale if there be no purchaser offering as much as the total tax or assessment, plus penalty, interest and all costs and attorney fees allowed, then said property shall be struck off to the plaintiff.” The holding in the foregoing case, as well as the plain wording of the quoted statute, shows that all that a district is required to bid at a foreclosure sale is the amount of the delinquent assessment, penalty and cost. Such was the bid of the district in this case; and no fraud or collusion is alleged, so the appellees cannot now be heard to claim that the property was sold for an inadequate price at the foreclosure sale. II. Appellees’ Claim Regarding the Receivership. After the purchase of the three lots at the foreclosure sale, and pending the period of redemption, the district filed a petition in the foreclosure suit praying that the chancery court appoint a receiver to take charge of the properties sold (there were over 340 tracts involved in the sale), and to collect the rents thereon. The chancery court did appoint such a receiver, and the order of appointment (on June 1,1938) directed the receiver: “. . . after he shall have taken the oath required by law, and shall have executed a bond in the sum of $2,000, to take, in charge and into his custody the property described in the order of confirmation entered in this case, together with all improvements thereon; . . . ” For some reason not explained in this case, the commissioners of the district delivered to the receiver the certificates of purchase received by the district at the foreclosure sale; and when the court approved the sale of the said certificates of purchase to James Newsome, it was done on the petition of the receiver. The said court order of August 20, 1943, reads: “On this day is presented to the court the petition of the receiver, in which it is stated that he has been offered the sum of five and 50/100 ($5.50) dollars for each and every certificate of purchase outstanding in this suit and owned by the district. And the court, being well and sufficiently advised as to all matters of fact and law arising herein, doth hereby authorize the receiver to accept said bid from one James Newsome, to receive the money therefor, and to turn said money over to this court until further orders.” Appellees claim that the order appointing the receiver was void, and that such invalidity tainted all the proceedings in this case, and rendered null and void not only the sale of the certificates to Newsome, but also the deed executed by the commissioner in chancery to Stout, trustee. Appellees cite and strongly rely on Act 79 of 1933 (found in §§ 6540 and 7336, Pope’s Digest, and § 20-1120, Ark. Stats. of 1947), which Act forbids the appointment of a receiver to collect the taxes due municipal improvement districts. The Act was fully discussed by this Court in Rogers Paving Dist. v. Swofford, 193 Ark. 260, 99 S.W. 577, which also is a case strongly relied on by appellees. Even if — for the sake of argument and without deciding the question — we treat as void the appointment of the receiver in this case, nevertheless, the chancery court could have approved the sale of the certificates of purchase to Newsome without any receivership. The petition requesting such sale might just as well have been made by the commissioners of the district, or someone other than the receiver. The appointment of a receiver did not in any wise affect or render void either the foreclosure decree or the purchase of the property by the improvement district. Appellants gain nothing by their present contention, because the title to the lots would be in the district even if we should ignore the receivership, the sale of the certificates and* the deed to Stout; and with the title in the district, appellants conld not now redeem. In the case of Hopkins v. Fields, 202 Ark. 890, 154 S.W. 2d 22 we held that the time allowed a property owner to redeem, from a municipal improvement district foreclosure sale, was five years from the date of the sale. Appellees did not offer to redeem or file the present suit until nearly ten years from the date of the foreclosure sale. We therefore hold that the appellees’ argument about the appointment of a receiver is without effective application to this case. III. The Sale Price of the Certificates. Appellees contend that the sale of the certificates (totalling $156.24) to Newsome for $5.50 was so grossly inadequate as to constitute fraud; and appellees cite and rely on the cases of Eddy v. Schuman, 206 Ark. 849, 177 S.W. 2d 918 and Schuman v. Eddy, 207 Ark. 925, 184 S.W. 2d 57. These cases give the appellees no comfort. There, a property owner in the district claimed that the action of the commissioners had prejudiced the rights of all the property holders, and the prime purpose of the litigation was to protect the interests of the district and the property holders. In the present suit, the district and the commissioners are not parties: so the Schuman-Eddy cases are not in point. Appellee’s purpose is not to protect the rights of the district and property holders, but to obtain a title for the appellees. Again — for the sake of argument and without deciding the question — if we concede that the sale of the certificates to Newsome should be set aside, still that holding would return the certificates to the district and would not benefit the appellees, because — ■ as heretofore stated — they had only five years from the foreclosure sale in which to redeem. See Hopkins v. Fields, 202 Ark. 890, 154 S.W. 2d 22. The time for redemption has long since expired, so appellees are not benefited, whether the title to the three lots be in the appellant or in the district. What was said in Shinault v. Wells, 208 Ark. 198, 186 S.W. 2d 26 is apropos here. In that case an attack was made on a deed executed by an improvement district. We said: “We conclude, therefore, that Mrs. Mitchell did not have title when she filed her intervention, having lost it through the foreclosure proceedings above referred to, and her daughter, in whose name the proceedings were revived, acquired no greater title or interest by inheritance from her mother than the mother herself possessed. The decree must, therefore, be reversed, and the cause will be remanded, with directions to dismiss the intervention as having been filed by a person who had no title to or interest in the lots at the time the intervention was filed. ’ ’ Appellees in the case at bar failed to redeem within the time allowed by law, and so they have no title to or interest in the lots. The decree of the chancery court is reversed, and the cause is remanded with directions to dismiss the complaint of appellees, and to adjudge all costs against them. Section 5673, et seq., Crawford & Moses’ Digest, prescribed the type and manner of service in municipal improvement district foreclosures in 1927. Act 207 of 1937 (now found in § 7311, et seq., Pope’s Digest) was in effect when the decree was rendered in November, 1937. The district in this ease was a municipal improvement district, and the period for redemption of such district when organized under the general statute, is five years from the date of sale, as explained in Hopkins v. Fields, 202 Ark. 890, 154 S. W. 2d 22. This will be discussed in topics II and III, infra. Section 9479, Pope’s Digest, has not been overlooked. Even if it be valid and in force at the present time, it relates only to mortgage foreclosures, and does not affect sales by an improvement district, as is the situation here.

Griffin Smith, Chief Justice. Dan Burks died intestate February 27, 1947, owning real and personal property. Helen Scott, representing herself to be a daughter, was granted letters of administration March 4. Jesse Burks, residing in Detroit, was named in the application as the only other heir. On April 3d Lucile Giles petitioned for removal of the administratrix, and asked that the Peoples National Bank of Stuttgart be re strained from disbursing any part of $809 tbe intestate had on deposit. Lucile alleged that Helen was not Dan’s daughter, but that she (Lucile) was Dan’s only living child. Probate Court enjoined the Bank from disbursing the cash fund; whereupon Helen, by petition with exhibits, asked that certain directions Dan gave shortly before he died be construed as an assignment of the bank balance with joint interest and survivorship. A great deal of testimony relates to the personal affairs and various marriages of Dan, and like conduct by Helen and Lucile — a summary of which is not important iii reaching a decision. Probate Court refused to resolve the conflict between Lucile and Helen respecting their true relationship to Dan, but “decreed” that Dan had entered into a contract with Helen to leave his property to her. This agreement, said the Court, was based on a valuable consideration, hence Helen was “justly, equitably, and legally” entitled to the net estate. Effect of this order was to decree specific performance of the contract Helen claimed her father made with her; and, while there was evidence sustaining the contention, the matter was not within Probate jurisdiction.Rights contended for by Helen were essentially equitable, and as such should have been presented to a court of Chancery. Probate Court determines “questions of inheritance” when making orders for distributive interests. Brackville v. Holt, 153 Ark. 248, 239 S. W. 1059, 241 S. W. 32. That part of the order dismissing Lucile’s attack on appointment of the administratrix and directing payment of a $30 claim will be affirmed, as will the restraining order directed to the Bank. In other respects the judgment is reversed.

Griffin Smith, Chief Justice. The appellant, Bickford, through inheritance, claims an interest in Polk County lands owned by Bota Carden when he died intestate in December 1946. The. appellee, Grady Carden, has acquired title of all the heirs except Joe Carden Bickford, who says his father was Julius Carden, and that Julius was Bota Carden’s brother. The Special Chancellor found that appellant’s claim should be denied for want of proof that his father and mother were competent to contract a common law marriage, each, at the time their relationship began, having a living spouse. Oklahoma is one of eighteen states where recognition is given common law marriages, hence appellant’s status must be determined by the laws of that forum. In this State, 5 Ark. Stats. (1947) 55-110, all marriages contracted in another jurisdiction which would be valid Avhere made, and where the parties then actually resided, “shall be valid in the courts of this State”. See Feigenbaum v. Feigenbaum, 210 Ark. 186, 194 S. W. 2d 1012. We have held that the children of a marriage void because the husband and father had a former wife living, are legitimate and entitled to share in their father’s estate. Evatt v. Miller, 114 Ark. 84, 169 S. W. 817, L. R. A. 1916C, 759; Cooper v. McCoy, 116 Ark. 501, 173 S. W. 412. Appellant’s claim that Julius Carden was his father, and his contention that Julius and Eva Bickford contracted a common law marriage, are referable to transactions on a farm near Shawnee, Oklahoma, between 1904 and 1908. Julius Carden was suspected of bank robbery, in Arkansas, and he was evading officers. After arrest and conviction he was killed while attempting to escape. Montgomery County records show that Julius Car-den and Naomie Reeves were married at Mt. Ida October 6, 1904, and were divorced February 5, 1908. Appellant was probably born in 1907. Ann Herndon had a daughter named Eva, who married Harry Bickford in Kansas. Mrs. Herndon testified that Eva’s marriage to Bickford occurred in June, but she did not remember the year. Before Julius Carden appeared as a temporary cotton picker on the Littleton farm near Shawnee — close to where the Herndons then lived — Eva had given birth to three children, conceded to have been Bickford’s. During Bickford’s frequent periods away from home, Julius began keeping company with Eva. Bickford wrote Mrs. Herndon, or some member of the family, that he had divorced Eva “and had married another woman”. Julius frequently lived with Eva in her mother’s home, contributed to her upkeep, and, according to Mrs. Herndon g,nd one or two other witnesses, introduced her as his wife. After Joe was born Julius left the community, but sometimes came back and always mentioned Joe as Ms son and Eva as Ms wife. The cMld, however, was never called Carden. The grandmother explained this by saying that when she and Eva and other members of the family found that Julius was wanted as a criminal, “she couldn’t get rid of him. It was all in the papers, here and everywhere ’ ’. Eva’s fifth child, Bobby, was younger than appellant. It is conceded that Bickford was Bobby’s father; hence, if Bickford’s alleged letters regarding a divorce from Eva and his marriage to another spoke the truth, he later returned to Oklahoma and cohabited with his ex-wife, whom his former mother-in-law claims was then Carden’s common-law life. A birth certificate shows that Bobby was born November 6, 1910, and his parents were listed as Harry and Eva Bickford. We think the record amply supports the Special Chancellor’s finding that appellant was “not more” than the product of an illicit relationship between Julius Car-den and Eva Bickford, conceived at a time when neither was capable of contracting marriage under the common law prescripts of Oklahoma. A discussion of common law marriages in Oklahoma is to be found in the opinion of Judge Alfred P. Murrah, of the Tenth Court of Appeals. See Jones v. Kemp, 144 Fed. 2d 478. Such marriages are valid if based upon a good faith intention to enter into a lawful relationship. A West Publishing Company headnote to the Jones-Kemp case reads: “Where at time man and woman commenced living together in Oklahoma the woman had a living undivorced husband, there was no valid ‘common law marriage’, and the relationship between parties did not, without more, ripen into a legal marriage upon death of undivorced husband two years thereafter ’ ’. The Oklahoma cases make use of the words “competent parties” in determining whether at the inception of a common law relationship the foundation for marriage existed. Since a civil contract is involved, each participant must be without legal impediment. If restrained by obligations to another the purpose cannot be consummated. Appellant argues, in the alternative, that if the common law marriage failed, still he is protected by Tit. 10, § 55, Okla. Stats. 1941. It provides that “the father of an illegitimate child by publicly acknowledging it as his own, receiving it as such, with the consent of his wife, if he is married, into his family, and otherwise treating it as if it were a legitimate child, thereby adopts it as such, and such child is thereupon deemed for all purposes legitimate from the time of its birth”. Construing the foregoing section, a per curiam opinion in Thompson v. Thompson, 177 Okla. 437, 60 Pac. 2d 615, held that Mamie and George Thompson, to establish their claim of legitimation, were required to -prove (1) illegitimacy, (2) paternity, (3) public acknowledgment by the father, (4) reception into family with wife’s consent, and, (5) treatment as legitimate. See Orsburn v. Graves, 213 Ark. 727, 210 S. W. 2d 496. An annotation in 73 A. L. R., p. 942, dealing with the law of the situs of property, as such, as determining legitimacy, contains this comment. . . The question whether a child born out of wedlock is or is not legitimate, though arising in connection with his right to inherit property, relates not to the descent or distribution of property, but to his status, and as such is to be governed not by the law of the situs as such, but by the law of the state creating the status”. Chief Justice Gray, in Ross v. Ross, 129 Mass. 243, 37 Am. Rep. 321, said: “It is a general principle that a status or condition of a person, the relation in which he stands to another person, and by which he is qualified or made capable to take certain rights in that other’s property, is fixed by the law of the domicile,, and that this status and capacity are to be recognized and upheld in every other state, so far as they are not inconsistent with its own laws and policy”. It is urged by appellant that consideration should be given the presumption that if Harry Bickford had ever been the husband of Eva Herndon, he had obtained a' divorce before Eva began her associations with Car-den — -“even though it involves the proving of a negative”. But if this should be conceded, there remains the further fact — testified to by Eva’s mother, and by appellant — that after appellant was born, and while what is claimed to have been a common law marriage continued, Bickford’s cohabitation with Eva was responsible for her fifth child. Appellant’s entire proof was directed to the single effort of proving legitimacy. We think the Special Chancellor correctly found that incapacity to contract prevented the relationship between Julius and Eva from attaining the status contemplated by the standards of conduct and ability mentioned in numerous decisions of the Oklahoma Supreme Court. Nor can appellant prevail on the theory that while his'position as a valid common law child has failed, the proof preponderated to establish confirmed illegitimate fatherhood. Most of the testimony tending to show recognition of Eva’s fourth child by the putative father was given by interested parties, and is too sketchy to be of ‘actual value in a case where the point to be proved involved opposing facts. Affirmed. Judge Murrah’s opinion is cited because the author is a native Oklahoman. He was born in Johnston County in 1908, graduated from a Tulsa high school, was appointed U. S. District Judge in 1937, and promoted to the Cburt of Appeals in 1940. The so-called “right” as fixed by domiciliary laws, is a matter of comity, not controlled by the constitutional provision relating to full faith and credit. Olmstead v. Olmstead, 216 U. S. 386, 30 S. Ct. 292, 54 L. Ed. 530, 25 L. R. A., N. S., 1292.

George Rose Smith, J. Appellant, Oina Fisher Ellis, brought this action against tbe personal representative and heirs of Mary E. Lawson to enforce an alleged oral contract by which Mrs. Lawson agreed to leave part of her estate to appellant. The contract is said to have been made in December, 1911, between Mrs. Lawson and Hamp Fisher, appellant’s father. Appellant was then a thirteen-year-old girl. Fisher testified that Mrs. Lawson asked him to let Oina live in her home and work for her until the child was grown and married. Fisher assented to the arrangement upon the understanding that Mrs. Lawson would devise to Oina an heir’s share in her estate. As Fisher put it, Mrs. Lawson agreed that Oina would receive a share equal to that of Mrs. Lawson’s brother, who was then living, or to that of any of her nieces. It is conceded that Oina did move to Mrs. Lawson’s home and worked there until her marriage about five years later. Mrs. Lawson died in 1947 without having made a will, and this action was brought to enforce the contract against her five surviving nieces. The chancellor correctly held that the agreement was not proved by clear and convincing evidence. Even Fisher’s version of the arrangement is somewhat indefinite, for the interest of Mrs. Lawson’s brother would not have been the same as that of any of her nieces. Fisher’s testimony is contradicted by a disinterested witness, Moody, who was present when the transaction occurred and says that it was Fisher who asked Mrs. Lawson to take Oina into her home. According to Moody, Mrs. Lawson was actuated by sympathy for the girl, whose own home is shown not to have been a good environment for a young child. Several other witnessed ascribed the same motive to Mrs. Lawson’s action, and none of them had heard any mention of an agreement making Oina an heir. Moreover, it was proved that Mrs. Lawson later befriended two other young girls in the same manner. Neither of these recipients of her generosity has come forward with a claim like that advanced by appellant. In view of all the circumstances we are not convinced that the asserted contract was ever made. Affirmed.

Minor W. Millwee, Justice. This is a contest of the last will of Maurice P. Welsh who was a resident of Jonesboro, Arkansas, for 45 years prior to his death October 4, 1946. Decedent was survived by a daughter, Elizabeth Welsh Knollton of Phoenix, Arizona, and the following nieces and nephews: Margaret Welsh Fair-head of Jonesboro and William Welsh of Indianapolis, Indiana, children of decedent’s brother, Michael Welsh; Ann Walsh, Lillian Walsh and Julia Walsh McNutt of Kokomo, Indiana, daughters of decedent’s brother, Patrick Walsh; Thomas Kane of San Francisco, California, son of decedent’s sister, Nellie Welsh Kane. Margaret Walsh-Fair head has a son, Maurice J. Fair-head who is a grandnephew of decedent and also a resident of Jonesboro. All of decedent’s brothers and sisters predeceased him. The will in question was executed on August 22, 1946, and admitted to probate- in common form on October 9, 1946. Appellants, Ann Walsh and William Welsh, filed this action in the probate court against appellee, Margaret Welsh Fairhead as executrix and trustee under the will. The contest is based on allegations of mental incapacity of the testator and undue influence exercised by “persons who would benefit directly or indirectly” by the alleged will. Appellants also alleged that in 1937 decedent contracted with Patrick Walsh to make testamentary bequests aggregating $10,000 to the latter’s three daughters. Appellee moved to dismiss the petition of appellants asserting that if the 1946 will was held invalid, the estate would go to decedent’s daughter and appellants were, therefore, without interest. In response to this motion appellants filed an amendment to their petition alleging that a will, executed by decedent on January 4, 1944, under which appellants would inherit, was the true will and should be produced by said executrix. The response of the executrix denied the allegations of the petition and exhibited an attorney’s office copy of the 1944 will. After an extensive hearing, the probate court found: “That the testator, Maurice P. Welsh, had sufficient mental capacity on August. 22, 1946, to make a valid will; that the will being contested was executed on said date; that the evidence does not indicate that there was any fraud or undue influence on the part of anyone in connection with the execution of said will, and petition of petitioners should be dismissed with costs.” Maurice P. Welsh was a native of Indiana. He came to Jonesboro about 1900 and engaged in the operation of a handle factory. He and his wife were sepa-, rated and their daughter Elizabeth made her home with her mother in Kentucky and Arizona, but frequently spent her vacations with her father at Jonesboro. Decedent lived at a hotel at Jonesboro until 1925 when he built a home. At his request appellee, Margaret Welsh Fairhead, who was divorced, moved with her fifteen year old son from Indiana to Jonesboro to take care of the new home. Mrs. Fairhead was' housekeeper for her uncle until his death. Maurice J. Fairhead, her son, also resided in the home and decedent provided liberally for his support and education. Decedent was a man of superior business ability and had acquired an estate valued at approximately $180,000 at the time of his death at the age of 76. In 1937, he conveyed the home to Mrs. Fairhead. He also gave her savings bonds of several thousand dollars over a period of years and conveyed certain real estate to her shortly before the execution of the 1946 will. After he moved to Jonesboro, decedent made annual visits to Indiana and his Indiana relatives occasionally visited him at Jonesboro. The expenses of these visits were paid by decedent who also assisted his relatives in medical and other expenses. The will of August 22, 1946, provided for special bequests as follows: $10,000 to Convent Maria Stein and St. Bernard’s Hospital of Jonesboro; $5,000 to Jonesboro Public Library; $100 each to Thomas Kane and the three daughters of Patrick Walsh, deceased; and all decedent’s interest in the American Handle Company to his grandnephew, Maurice J. Fairhead. The residue of the estate was placed in trust with decedent’s niece, Margaret Fairhead, as trustee at a salary of $150 a month; and the annual net income of said trust was divided three-fourths to appellee, Margaret - Fair-head and one-fourth to decedent’s daughter, Elizabeth, with certain limitations and exceptions as to the daughter’s share. The corpus of the trust estate after the death of the two beneficiaries was given to Convent Maria Stein and St. Bernard’s Hospital, unless decedent’s daughter left bodily heirs, in which event one-fourth of said corpus passed to such heirs. The will of January 7, 1944, contained special bequests as follows: “St. Bernard’s Hospital, $1,000; William Welsh, $lj000; Thomas Kane, $500. The balance of the estate was given five-eights in fee to appellee, Margaret Fairhead; one-eighth to the three daughters of Patrick Walsh, deceased, and the remainder in trust for the benefit of decedent’s daughter, Elizabeth. Both wills contained an in terrorem clause which nullified any gift to a beneficiary who contested the will. Decedent became afflicted with prostatic cancer about 1938 and underwent several operations from 1938 to 1943. Although his condition grew slowly worse, he remained active in the operation of his various enterprises until a few weeks prior to his death in October, 1946. He was hospitalized at different times for the treatment of his affliction and was in the Jonesboro hospital on August 22, 1946, when he executed the will in question. He was discharged from the hospital the last time on August 24, 1946. In attempting to meet the burden of showing mental incapacity and undue influence appellants offered the testimony of themselves, Lillian Walsh, Margaret Fair-head and Dr. Charles W. Miller, Jr., a psychiatrist. Appellee offered the testimony of decedent’s family physician, minister, the attorney for the handle factory, and two of the three witnesses who attested both wills and also a will executed by decedent in 1935. Appellee also offered the evidence of several friends and business associates of decedent. Appellant, William Welsh, visited his uncle for two weeks in the first part of July, 1946. He stated that he and decedent went on walks and had several conversations during the visit; that decedent would start a conversation while 'they were in the yard and become seized with pain, go into the house and upon his return, would talk about a different subject. He thought decedent’s occasional inability to connect statements was attributable to pain and failing memory. Witness stated that he would sometimes get “half-crocked” when they drank together and forget what decedent told him. He also admitted that decedent’s mind was clear when he arranged for. the purchase of a set of false teeth and suit for witness and also gave him some cash on this visit. Appellant, Ann Walsh, testified that she visited decedent from August 28 to September 10, 1946; that decedent was nervous and suffered much pain, but slept most of the time and did not talk much; that she brought a toy playing piano which played a familiar Irish tune which he failed to recognize. She also testified that Maurice J. Fairhead went into decedent’s room on one occasion, lay across tlie bed and pleaded with decedent about some promise that he had made, and that a few days later the secretary of the handle company and Maurice Fairhead went into decedent’s room when presumably decedent transferred a part of the stock of the handle company to Maurice. She also stated that her father used the name “Walsh” because it was more Irish than “Welsh.” Lillian Walsh testified about an alleged dispute between her father, Patrick Walsh, and decedent growing out of the settlement of the estate of their mother who died in Indiana in 1916. She only knew what her father had told her about the dispute. She stated that she visited decedent with her father in 1937 and heard a conversation between her father and decedent in which the latter persuaded the former to undergo an eye operation at Memphis, Tennessee, at decedent’s expense; that her father refused to have the operation performed unless decedent also agreed to pay or make a testamentary bequest of $10,000 to Patrick’s three daughters in satisfaction of the 1916 dispute; and that the operation was performed after decedent agreed to do so. Decedent had made two loans of $500 each to witness which had not been repaid. Dr. Charles Miller, Jr., the psychiatrist, explained in detail the hospital records of the decedent. In answer to hypothetical questions based primarily on said records, it was his opinion that decedent was suffering from delirium and did not have the mental capacity to make a will on August 22, 1946. Witness had never seen decedent and did not usually diagnose cases from hospital records only. He admitted that such diagnosis is less satisfactory than actual acquaintance with and observation of the patient. The evidence on behalf of appellee tended to show that decedent was mentally capable of making the 1946 will and that there was no undue influence exercised upon .him. Dr. W. H. Willet, decedent’s family physician for 33 years testified that he saw decedent almost daily during the last six months of his life and that his mind did not become affected until 24 to 48 hours before his death. He stated that decedent’s ability to transact business was “very good” on August 22, 1946; that decedent ■ subsequently told him of the charitable bequests he had made in the will, and that his mind was exceptionally clear at that time. The testimony on behalf of appellee also shows that early in 1946 decedent told his attorney and business associate, who had drafted the 1935 and 1944 wills, that he wanted to change his will; that decedent in June and July, 1946, took an active part in several conferences involving negotiations of a union contract growing out of a labor dispute at the handle factory; that late in July, 1946, his attorney furnished decedent with an office copy of the 1944 will upon which decedent made pencil notations of the changes he desired to make. After this was done the attorney redrafted the will and took it to the hospital where it was read to and approved by decedent on August 21, 1946. At decedent’s direction, the attorney returned to the hospital-about 8:00 a. m., August 22, 1946, with the three witnesses who had witnessed the former wills, and the will in question was duly executed. The witnesses to the will stated that decedent’s mind was clear and that he apologized for inconveniencing them with his affairs. There was no one present except decedent, his attornej?' and the witnesses. Several other friends and business associates of long standing, including decedent’s boyhood friend from Indiana, testified to the mental soundness of the decedent both immediately prior to and after the date of the execution of the 1946 will. The evidence further discloses that early in 1946 decedent transferred a part of his stock in the handle company to his grandnephew, Maurice J.- Fairhead, and made him manager of the factory and that decedent continued to give advice and exercise general supervision over operation of the plant until shortly before his death. It was also shown that decedent and his niece, Margaret Fairhead, were devout members of the Catholic Church while Patrick Walsh had withdrawn there from and liis daughters were not members of that church. . The recent case of Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433, involved facts somewhat similar to those in the instant case. We there said: “We have often defined mental capacity such as must be possessed by a testator in order for him to make a valid will. The rule has been generally expressed that sound mind and disposing memory, constituting testamentary capacity, is (a) the ability on the part of the testator to retain in memory without prompting the extent and condition of property to be disposed of; (b) to comprehend to whom he is giving it; and (c) to realize the deserts and relations to him-of those whom he excludes from his will. Taylor v. McClintock, 87 Ark. 243, 112 S. W. 405; Boone v. Boone, 114 Ark. 69, 169 S. W. 779; Mason v. Bowen, 122 Ark. 407, 183 S. W. 973, Ann. Cas. 1917D, 713; Griffin v. Union Trust Company, 166 Ark. 347, 266 S. W. 289; Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695; Petree v. Petree, 211 Ark. 654, 201 S. W. 2d 1009. And the burden of proof, in cases of this kind, is on the contestant, who asserts the mental incapacity of the testator. McWilliams v. Neill, 202 Ark. 1087, 155 S. W. 2d 344; Parette v. Ivey, 209 Ark. 364, 190 S. W. 2d 441. . . "Considering the question of undue influence such as invalidates a will, we said in the case of McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590: 'The influence which the law condemns is not the legitimate influence which springs from natural affection, but the malign influence which results from fear, coercion, or any other cause that deprives the testator of his free agency in the disposition of his property.’ ’’ In the famous case of Taylor v. McClintock, supra, it was held (Headnote 4'): "Testators are not required to mete out equal and exact justice to all expectant relations, and the motives of partiality, affection or resentment by which they may be influenced are not reviewable ; and if one have the capacity to make a will, he may make it as eccentric, injudicious and unjust as caprice, frivolity or revenge can dictate.” We also adhere to the rule that the questions of testamentary capacity and undue influence are so interwoven in any case where raised that such questions should he considered together. As the court said in Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352: “Where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age. It is clear that feeble intellect will not be of itself sufficient to establish lack of testamentary capacity, for that condition must be so great as to render the testator incapable of appreciating the nature and consequences of his act; but this feebleness may be inferred when, from the facts in proof, it-is apparent that he was incapable of appreciating the deserts and relations of those whom he excludes from participating in his estate, although he might have had the ability to retain in memory, without prompting, the extent and condition of his property, and to comprehend to whom he was giving it.” See, also, Brown v. Emerson, 205 Ark. 785, 170 S. W. 2d 1019. Appellants rely very strongly on the Phillips and Brown cases, supra, and also on Boyland v. Boyland, 211 Ark. 925, 203 S. W. 2d 192. It would unduly extend this opinion to recite the difference between the facts of these cases and those in the instant case as pointed out in appellee’s brief. This is another case where the trial court, who heard and observed the witnesses testify, is in a much more advantageous position than this court in evaluating evidence. When we apply our well established rules to the evidence here adduced, we conclude that the trial court correctly held that appellants did not discharge the burden resting upon them of showing by a preponderance of the evidence either mental incapacity or undue influence which the law requires before a solemn will may he declared a nullity. The trial court sustained appellee’s objection to the opinion of appellants to the effect that decedent was mentally incapable to make the will in question. We have frequently held that a non-expert witness may testify as to his opinion after stating the facts upon which the opinion is based so that the court may determine the weight to be given such testimony. In Griffin v. Union Trust Company, 166 Ark. 347, 266 S. W. 289, the rule was restated as announced in the early case of Kelly’s Heirs v. McGuire, 15 Ark. 555, where the court said: “The value and force of the opinion depends on the general intelligence of the witness, the grounds on which it is based, the opportunities he had for accurate and full observation, and his entire freedom from interest and bias.” If such opinion rests upon facts which do not justify it, then it is worthless. Puryear v. Puryear, supra. We agree that the trial court erred in refusing to permit appellants to state their opinion that the testator was mentally incompetent, but it does not necessarily .follow that the cause should for that reason be reversed. We try the case here de novo and will only consider the competent testimony regardless of the ruling of the trial court on the challenged evidence. Harrell v. Southwest Mortgage Co., 180 Ark. 620, 22 S. W. 2d 167; Brittian, Adm. v. McKim, 204 Ark. 647, 164 S. W. 435. The same ruling is applicable to the trial court’s admission in evidence of a letter from decedent’s daughter, Elizabeth, to Ann Walsh admitted upon the latter’s cross-examination. The letter had no bearing upon the issues involved and we disregard it entirely in passing on the weight of the evidence. Although we have considered, here, the excluded opinion evidence and have disregarded the contents of the letter, we hold that the judgment of the probate court was, nevertheless, correct. Appellants also invoke the following rule stated in Smith v. Wheat, 183 Ark. 169, 35 S. W. 2d 335: “Where parties have it in their power to explain suspicious circumstances connected with a transaction, the court trying the case may regard the failure to do so as a proper subject for comment and may regard their fail ure to produce evidence within their power as a circumstance against them.” The case cited involved a fraudulent conveyance by an embarrassed debtor to a near relative under very suspicious circumstances. Appellants argue that they are non-residents while appellee and other beneficiaries under the will were in Jonesboro, which made it difficult, if not impossible, for appellants to obtain the testimony of local physicians and lay witnesses. Appellants also point out certain inconsistencies in the testimony of witnesses for appellee which they assert could have been cleared up by a more thorough examination of said witnesses or the calling of others by appellee. As previously stated, the burden in the instant case was upon appellants to prove the invalidity of the will. If there were physicians and other witnesses in Jonesboro who were conversant with the facts, they have not been identified by appellants. Nor has it been shown that any such witnesses were less available to appellants than to appellee. Moreover, we do not agree with appellants’ contention that the circumstances in the instant case are such as to call for application of the rule relied upon. The judgment of the probate court is supported by the preponderance of the competent evidence and is, therefore, affirmed.

Ed. F. McFaddin, Justice. This is an appeal by the City of Rector and its officials from a chancery decree holding void ordinance No. 223 of said city. The ordinance reads: “AN ORDINANCE FOR THE REGULATION AND INSPECTION OF ELECTRIC LIGHT, POWER, TELEPHONE AND TELEGRAPH POLES WITHIN THE CITY OF RECTOR, ARKANSAS, AND PROVIDING A LICENSE FEE THEREFOR, FOR THE PURPOSE OF RAISING REVENUE TO DEFRAY THE EXPENSE OF SUCH REGULATION AND INSPECTION: FIXING THE TIME OF THE PAYMENT OF SAME AND PROVIDING PENALTIES FOR THE VIOLATION THEREOF: “Whereas, the City of Rector, Arkansas, finds it necessary to regulate and inspect electric light, power telephone and telegraph poles located in streets, alleys or public grounds, and finds it necessary that a small license be charged for such regulation inspection; “THEREFORE, BE IT ORDAINED BY THE COUNCIL OF THE CITY OF RECTOR, ARKANSAS : “SECTION ONE: That from and after the passage, and approval and publication of this ordinance there is hereby levied for the pui’pose of regulation and inspection, a license fee of ten cents per month on each pole kept, maintained or used in place on the streets, alleys or other public place (except poles specified in litigation) in said city, and each person, firm, partnership or corporation using or maintaining electric light, power, telegraph or telephone poles, as aforesaid, shall pay monthly into the treasury of said city ten cents for each pole maintained, kept or used, and all money arising from said payments shall be used to defray the expenses of inspection and regulation of such poles and for no other purpose, provided the license fee for remainder of the month shall be prorated. “SECTION TWO: That the license fee herein levied shall be due and payable on the first day of each month hereafter, and any person, firm, partnership or corporation, their agent, representative or manager who shall fail or refuse to 'pay the license fee herein levied, within ten days after the due date thereof, shall be deemed guilty of a misdemeanor, and upon conviction shall be fined in any sum not to exceed $25.00, and each day that any such person, firm, partnership or corporation, their agent, representative or manager, shall fail to pay such license fee shall constitute a separate offense, and moreover, the amount of such license fee may be recovered in a civil action in any court having competent jurisdiction. “SECTION THREE: It is hereby made the duty of the City Marshal to make inspection as often as deemed necessary, of all poles, wires and conduits (except poles specified in litigation) and ascertain whether their condition is dangerous to the lives, limbs, health, comfort or quiet of the public, or dangerous to the safety of property, and report the result of such inspection to the Mayor of said City. “SECTION FOUR: That all ordinances, or parts of ordinances in conflict herewith are hereby repealed, and it being necessary for the public health and safety of said city that this ordinance take effect and be in force at once, an emergency is hereby declared and this ordinance shall take effect and be in full force from and after its passage, approval and publication. ’ ’ The appellee, Arkansas-Missouri Power Company, is a public utility serving the City of Rector; and brought this suit in equity against the appellants (defendants below), being the City of Rector and its mayor and other officials, to enjoin the enforcement of the ordinance No. 223. The complaint alleged, inter alia: “That said ordinance is void and unenforceable because it undertakes to evade the law and provides a li cense fee for the inspection of certain poles, and that the same is unfair, unjust and arbitrarily fixed, and is not for the purpose of inspection of the poles of plaintiff, but is for the purpose as stated in the preamble of said ordinance, ‘for the purpose of raising revenue’ only. Said ordinance is void for the reason that the fee charged is exorbitant, and it is apparent from'the face of the ordinance that the same was passed for the purpose of producing revenue, which purpose is without authority of law, and for which reason the ordinance is-void. ’ ’ The appellees (defendants) by answer admitted the passage of the ordinance, but denied all other allegations of the complaint. Without requiring the introduction of any evidence, the Chancery Court held the ordinance to be void, and perpetually enjoined its enforcement. The decree of the Chancery Court should be reversed. We have repeatedly held that under its police powers a municipality may levy a tax on poles, with the proceeds of the tax to defray the expense incurred by the city in inspecting the poles and wires for the safety of the public. See Fort Smith v. Hunt, 72 Ark. 556, 82 S. W. 163, 66 L. R. A. 238, 105 Am. St. Rep. 51, and Ark. Public Utilities Co. v. Heber Springs, 151 Ark. 249, 235 S. W. 999. The ordinance here under attack proposes to act within such police power. Of course, under the guise of an inspection fee, a municipality cannot camouflage a revenue measure. In City of Fayetteville v. Carter, 52 Ark. 301, 12 S. W. 573, 6 L. R. A. 509, Mr. Justice Battle stated the rule in this language: “The power to license and regulate granted by the statute was conferred solely for police purposes; and municipal corporations have no right to use it as a means of increasing their revenues. They can require a reasonable fee to be paid for such a license. The amount they have a right to demand for such fee depends upon the extent and expense of the municipal supervision made necessary by the business in the city or town where it is licensed. A fee sufficient to cover the expense of issuing the license, and to pay the expenses which may be incurred in tbe enforcement of sucb police inspection or superintendence as may be lawfully exercised over tbe business, may be required. It is obvious that tbe actual amount necessary to meet sucb expenses cannot, in all cases, be ascertained in advance, and that ‘it would be futile to require anything of tbe kind.’ Tbe result is, if tbe fee required is not plainly unreasonable, tbe courts ought not to interfere with tbe discretion exercised by tbe council in fixing it; and unless tbe contrary appears on tbe face of tbe ordinance requiring it, or is established by proper evidence, they should presume it to be reasonable.” In tbe case at bar there was no testimony offered, so there is no evidence to support tbe chancery decree which found tbe ordinance to be void. It is not void on its face, since — as heretofore stated — tbe city possesses tbe power to enact sucb an ordinance, and there was no showing that tbe ordinance was other than a police measure. We reverse tbe decree and remand tbe cause to tbe Chancery Court, with directions to dissolve tbe injunction; and also to dismiss tbe complaint, unless plaintiff elects to offer proof, in which event the defendants will of course be allowed to offer sucb evidence as they desire, and a decree may then be rendered in regular course.

ROBERT L. BROWN, Justice. Appellant Katie Zimmerebner Stehle (“Katie”) appealed the order of the circuit judge denying her motion for change of custody of her daughter, KZ, to the court of appeals. That court reversed the circuit judge’s decision and held that Katie should have primary custody of KZ based on a material change of circumstances. The appellee, KZ’s father, Ernest William (“Billy”) Zimmerebner, petitioned this court for review, and we granted his petition. We affirm the circuit judge’s order, and we reverse the decision of the court of appeals. On October 4, 2001, Katie and Billy divorced, and Katie was awarded primary custody of KZ. On August 27, 2003, the circuit judge held a hearing on Billy’s motion to change custody of KZ to him. That motion was granted by an order entered on November 10, 2003, which gave Billy primary custody of KZ, subject to visitation by Katie. On July 25, 2006, Katie moved to change custody back to her and asserted that there had been a material change of circumstances. Those circumstances, she contended, were based on these alleged facts: (1) Billy and his then-wife, now Amber Robertson (“Amber”), had been in a physical altercation, and Amber had filed for divorce; (2) KZ and her stepbrother had to “lay on top of’ Amber to “get [Billy] to stop attacking her”; (3) Billy and KZ had been living in Billy’s parents’ home since March 2006, and the sleeping arrangements were inadequate because KZ and Billy shared a room; (4) Billy did not have his own transportation, but used his employer’s vehicle to transport KZ; (5) KZ had been in four different schools since 2003; and (6) on July 2, 2006, Billy dropped KZ at Katie’s house for summer visitation with insufficient asthma medication and failed to respond to Katie’s calls regarding the matter. The circuit judge heard Katie’s motion on March 20, 2007, and, on March 23, 2007, he issued a letter opinion, giving his reasons for denying it. On April 16, 2007, an order was entered to the same effect. Katie appealed, and on May 21, 2008, a three-judge panel of the court of appeals, in three separate opinions, reversed the circuit judge’s order and held that Katie should have primary custody of KZ. The following facts in the instant case are undisputed. When Billy and Katie divorced in 2001, KZ was age three and under school age. After custody was awarded to Katie, KZ lived with her in Conway. When Billy was awarded custody of KZ in 2003, he enrolled KZ in school in Greenbrier. Toward the end of the school year in 2004, Billy enrolled KZ in a magnet school in Maumelle, where she completed kindergarten and first grade. Shortly after she started the second grade, Billy and Amber moved to Cabot, and KZ attended public school there for the remainder of her second-grade year. KZ returned with her father to Maumelle, after Billy and Amber’s marriage dissolved in 2006. KZ was enrolled in the third grade at Academics Plus Charter School in Maumelle, the school she attended at the time of the hearing on the change-of-custody petition. At the hearing before the circuit judge on March 20, 2007, regarding her motion to change custody, Katie testified to the following: • Despite her many efforts, she was unable to communicate with Billy about KZ because he would not answer her telephone calls or share information with her regarding KZ’s educational or medical issues. • She attended KZ’s parent-teacher conferences, class parties, and field trips when she was able and regularly visited KZ at school during lunchtime; Billy did not attend KZ’s school functions; rather, Amber had handled those matters. • KZ was on the honor roll and got As and Bs at school. • She had often been delinquent in paying Billy court-ordered child support but had paid her arrearages and was current at the time of the hearing. • On one occasion, Billy dropped KZ off for visitation with inadequate medication, and she had to pay to have it refilled because KZ was no longer receiving medical insurance through the state-funded AR Kids program. • When she filed the motion, Billy only had one vehicle, insured for work purposes, and, therefore, lacked adequate means to transport KZ. • After Billy and Amber separated, KZ remained with Amber for six weeks, and Katie was not notified. • She had remarried and had another child since custody was awarded to Billy. • She and her husband had recently purchased a newly-constructed house in Vilonia, where KZ had her own room. • KZ had bonded with her younger half-sister. • If granted custody, Katie would allow KZ to finish the current school year at the charter school in Maumelle and would consider transferring her to public schools in Vilonia the following year. • She worked two blocks from the Mau-melle charter school, and it would be convenient for KZ to remain enrolled there. • KZ would attend daycare after school and would return with Katie to Vilonia when she finished work. • If granted custody, she would keep Billy updated regarding KZ’s school and health information. Amber testified at the same hearing as follows: • When she and Billy were married, she provided the day-to-day care for KZ and her other children. • She went to KZ’s parent-teacher conferences and other school events without Billy. • She was responsible for communicating with Katie. • Billy and his parents, but especially his mother, said bad things about Katie in KZ’s presence. • During the marriage, Billy was abusive to her, and KZ witnessed these acts of violence. • KZ would sometimes “throw a fit” before going to Katie’s house, and once returned “with a large part of her hair missing.” • She had previously testified against Katie and had since changed her mind about Katie’s fitness as a mother. Billy also took the stand and testified as follows: • He worked as a plumbing contractor and lived with his parents in their three-bedroom house, in which KZ had her own room. • His mother took KZ to school each morning, and his father picked her up from school every afternoon. • He returned most evenings about 30 minutes after KZ got home from school, and then the two of them worked on her homework and read together. • KZ had always been an honor roll student. • After finishing her school work, KZ had chores and then often played with her best friend who lived across the street. • He played on the trampoline with KZ and was teaching her to ride a bike. • He often did not answer the phone when Katie called because she would call as many as “30 times” in a row and would “threaten” him when he answered. • He had not said bad things about Katie in KZ’s presence and had admonished Amber when she had done so. • KZ returned many times from Katie’s house without having brushed her teeth. • KZ had “resisted” going to Katie’s house and had acted unhappy when she returned from visitation. • Amber “gets pretty crazy when she gets mad,” and he was never violent toward Amber except as necessary to defend himself. • He owned a vehicle in addition to his work truck and was insured to use both for personal use. • When he told Amber he would request custody of their two children, she told him she would testify on Katie’s behalf in the instant custody proceeding. Billy’s mother, Debbie Zimmerebner, testified that: • Billy was very active with KZ and his other two children; KZ and Billy read together every night, played on the trampoline together, and went bike riding. • Billy made sure KZ was clean and that she had brushed her teeth. • She had never heard Billy make negative remarks about Katie in front of KZ and he had stopped Amber from doing so. • Katie called her house “non-stop,” after Amber and Billy separated. • On one occasion, she met Katie in a parking lot to retrieve something KZ needed, and Katie screamed foul language at her. • Sometimes she referred to Katie as “the witch” but never in KZ’s presence. • KZ had her own bedroom at their house, decorated in “all pink cause that’s [KZ’s] favorite color.” Finally, Billy’s father, David Zimmereb-ner, told the court under oath that: • He picked KZ up after work each day, and she would change her clothes, get a snack, and start working on her homework. • He would help her occasionally with her assignments, but sometimes she would “save[] it” for when Billy returned from work because “she wanted him to work with her.” • Billy provided the day-to-day necessities for KZ. • Billy tucked KZ in at night. After hearing all the testimony, the circuit judge observed from the bench that he was concerned about the lack of stability in KZ’s life. He said that it bothered him that Billy had moved with KZ so often and “always seems to find his way back to his mamma and daddy’s.” He also expressed concern that Katie only paid her child support when she “decided to bring somebody back to court.” He concluded the hearing by telling the parties that he was going to “weigh some of this credibility and some of the testimony” and would then make a decision regarding the motion for change of custody. On March 23, 2007, the circuit judge filed his letter order, outlining his decision to deny Katie’s motion. The judge said that he “had an opportunity to review [his] notes, the exhibits, and to reflect” about the best interest of the child in the instant case. He noted his concern that, despite the fact that there are times when Billy does engage and assist with the care of KZ, “if there is somebody else who will do it he is more than willing to turn that task over.” The judge commented on Billy’s tendency to “abdicate his responsibility as a parent.” He made it clear that “there is no question that while the child has been in his custody she has continued to thrive, is a good student, and in spite of the conflicts that have arisen not only between her mother and father but her extended family she has continued to do well.” With respect to Katie, the judge said that she “has stepped up to the plate” and paid the court-ordered child support “when she was in a position to seek relief from the Court.” He found that Katie is engaged in KZ’s life, attends school functions when she knows of them, and meets KZ for lunch on a frequent and consistent basis. The judge also noted that he was “proud to see that she has since our last hearing taken on a regular job.” He found that Katie and her husband had improved their financial situation, bought a house, and made “a home for themselves and” their other child. The circuit judge next addressed each of the issues Katie raised in her motion for change of custody. With respect to the allegations of violence between Billy and Amber, he said that, while it was “absolutely not” a good situation at the time, there was no testimony that any violence was directed toward KZ, and the “situation has been diffused in that the ex-wife [Amber] is no longer involved.” He found that KZ’s sleeping arrangements were adequate at Billy’s parents’ house, and the only concern he had regarding Billy and KZ’s living situation was Billy’s “tendency to disengage.” The judge found Katie’s complaint regarding Billy’s automobile to be a “nonissue” and was similarly unconcerned with Katie’s allegations that Billy brought KZ to her house with inadequate medicine. The judge noted that “another significant issue in [his] mind” was how many times KZ had moved with Billy since the last order. He observed that when he awarded custody to Billy, “the motivating factor in [his] decision to change custody was the stability Billy seemed to show over Katie.” He then said that Billy’s “advantage” had “disappeared” due to the fre quent moves. Nevertheless, he concluded that “the child seems to have adjusted and is currently doing well in the Academic’s Plus charter school in Maumelle,” and that “her grades seem to speak well of her family’s commitment to her education.” The judge also noted that the school was close to where KZ was living and to where Katie was working. After laying out his findings, the judge concluded that while he was “not terribly impressed with the parenting skills of either party,” it was his “determination that [Katie] has failed to prove that a change of circumstances exists which would justify changing custody of the minor child at this point.” Following that, the judge filed an order to that effect on April 16, 2007. When this court grants a petition for review of a court of appeals decision, we review the case as though it had originally been filed with this court. See, e.g., Hamilton v. Barrett, 3B7 Ark. 460, 462, 989 S.W.2d 520, 521 (1999). It is well settled in Arkansas that a judicial award of custody will not be modified unless it is shown that the circumstances have changed such that a modification of the decree would be in the best interest of the child. See, e.g., Campbell v. Campbell, 336 Ark. 379, 383, 985 S.W.2d 724, 727 (1999). In order to avoid the relitigation of factual issues already decided, the courts will restrict evidence on a custodial change to facts arising since the issuance of the prior order. Id. at 384, 985 S.W.2d at 727. This court has stated that courts generally impose more stringent standards for modification in custody than for initial determinations of custody in order to promote stability and continuity in the life of the child. See Alphin v. Alphin, 364 Ark. 332, 340, 219 S.W.3d 160, 165 (2005). The party seeking modification of the custody order has the burden of showing a material change in circumstances. Id. We have summarized our standard of review for equity cases, and specifically child custody cases, with regard to de novo review and the clearly erroneous standard: We review chancery cases de novo, but will only reverse if the chancellor’s findings were clearly erroneous or clearly against the preponderance of the evidence. A finding is clearly erroneous when the reviewing court, on the entire evidence, is left with the definite and firm conviction that a mistake has been committed. We give due deference to the chancellor’s superior position to determine the credibility of the witnesses and the weight to be given their testimony. In cases involving child custody, great deference is given to the findings of the chancellor. This court has held that there is no other case in which the superior position, ability, and opportunity of the chancellor to observe the parties carries a greater weight than one involving the custody of minor children. The best interest of the child is the polestar in every child custody case; all other considerations are secondary. See Ford v. Ford, 347 Ark. 485, 491, 65 S.W.3d 432, 436 (2002) (citations omitted). We take this opportunity to clarify further our standard of review for child custody cases, as well as other equity cases, and to dispel any confusion that may exist concerning de novo review and our clearly erroneous standard. Equity cases are reviewed de novo. See ConAgra, Inc. v. Tyson Foods, Inc., 342 Ark. 672, 30 S.W.3d 725 (2000). This means the whole case is open for review. Id. This does not mean, however, and we emphasize this point, that findings of fact by the circuit judge in equity cases are simply dismissed. They are not. The clearly erroneous standard, cited above and set out in our rules of civil procedure, governs if the circuit judge has made findings of fact. As Rule 52(a) states: Findings of fact, whether based on oral or documentary evidence, shall not be set aside unless clearly erroneous (clearly against the preponderance of the evidence), and due regard shall be given to the opportunity of the circuit court to judge the credibility of witnesses. Ark. R. Civ. P. 52(a) (2008). In determining whether the circuit judge clearly erred in a finding, the appellate court may look to the whole record to reach that decision. See ConAgra, 342 Ark. at 674, 30 S.W.3d at 727 (on de novo review of record, court held chancery court clearly erred in finding information at issue qualified as a trade secret); Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979) (chancery court reached erroneous conclusion based on de novo review of entire record). But, to reiterate, to reverse a finding of fact by a circuit judge, that judge must have clearly erred in making that finding of fact, which means the reviewing court, based on the entire evidence, is left with the definite and firm conviction that a mistake has been made. Ford, 347 Ark. at 491, 65 S.W.3d at 436. To summarize, de novo review does not mean that the findings of fact of the circuit judge are dismissed out of hand and that the appellate court becomes the surrogate trial judge. What it does mean is that a complete review of the evidence and record may take place as part of the appellate review to determine whether the trial court clearly erred in either making a finding of fact or in failing to do so. In the instant case, it is abundantly clear to this court that the circuit judge’s findings, supporting his denial of Katie’s motion for change of custody, were not clearly erroneous. We acknowledge, and it is beyond dispute, that some circumstances have changed since Billy was awarded custody. Billy moved frequently with KZ, he and Amber divorced following alleged physical conflict in their marriage, and Katie remarried and improved her financial situation. Despite these facts, the circuit judge found that they did not constitute a material change in circumstances so as to militate a grant of physical custody of KZ to Katie. To repeat, the judge specifically found that, while the parenting skills of both Katie and Billy needed improvement, KZ “has continued to thrive” in Billy’s custody and was “adjusted and is currently doing well” in school. He also observed that the school is “close to where the child is living and is also close to where the child’s mother works.” What is particularly meaningful to this court is that the circuit judge has had these parties before him for many years, going back to Katie and Billy’s divorce in 2001. He has heard from the various witnesses on multiple occasions and was in a much better position than this court to observe their demeanor and assess their credibility. See Ford, 347 Ark. at 491, 65 S.W.3d at 436 (in custody cases it is especially important to give great weight to the trial court’s superior position to observe the parties). In the instant case, the judge dutifully took the matter under advisement in order to review his notes, the exhibits, and to reflect on the testimony in order to determine whether the motion should be granted. The resulting letter order specifically responded to each of Katie’s concerns and directed the parties to take various actions to “improve the situation.” In sum, we hold that the circuit judge did not clearly err in finding that Katie failed to prove a material change of circumstances so as to justify a change of custody for KZ. We are particularly swayed by the circuit judge’s finding that KZ has continued to thrive in Billy’s custody and is a good student despite conflicts between Billy and Katie. We affirm the order of the circuit judge and reverse the court of appeals. Affirmed. Court of appeals reversed. . KZ was bom on September 9, 1998, and was eight-and-a-half years old when the judge’s order was entered. . Billy married Amber on October 19, 2001, and they divorced on December 20, 2006. Billy and Amber separated in March 2006. . Two of KZ's previous teachers testified that Katie was involved with them in KZ's education, and that Billy was not. . Katie initially said that KZ's grades were "mediocre” and then acknowledged during cross-examination that she had made honor roll. . On cross-examination, Katie testified that she lacked personal knowledge that Billy’s work vehicle was insured only for work purposes. . Amber recounted one specific incident in which Billy allegedly threw her against the wall, after which KZ and her step brother "threw themselves over” her, and KZ said "don’t hurt my mamma anymore.” . He testified that he responded to her by saying, “After all the times you've bad mouthed [Katie] in court and bad mouthed her to teachers?” According to Billy, her response was, “You’re right. The gloves are off.” . The judge specifically found that it was an "isolated event” and it was not "threatening to the child, so long as Katie took action and spent money.” . In addition to denying Katie’s motion, the judge ordered that both Billy and Katie enroll in and complete a parenting class within six months. He also directed them to attend an anger management class within six months and ordered that a mutual retraining order, prohibiting the parties from calling each other names and degrading each other, be continued. The judge ordered that the parties must "communicate regarding the needs of this child in writing, preferably by email” and the emails should be "short and to the point.”

RITA W. GRUBER, Judge. By criminal information filed in the Benton County Circuit Court, the State charged Uris Magana-Galdamez with the offenses of being an accomplice to capital murder and being an accomplice to aggravated robbery. The crimes were committed on December 30, 2006, when both Magana-Galdamez and the victim were seventeen years old. Magana-Galdamez’s sole point in this interlocutory appeal is that the circuit court’s denial of his motion and amended motion to transfer his case to juvenile court, entered by order of February 5, 2008, was clearly erroneous. Finding no clear error, we affirm. The case was decided under our juvenile-transfer statute. Before being amended, Ark.Code Ann. § 9-27-318(h) (Repl.2002) stated: “Upon a finding by clear and convincing evidence that a juvenile should be tried as an adult, the judge shall enter an order to that effect.” The subsection was changed by 2003 Ark. Acts No. 1116 § 10, as reflected in the statutory language that controls the present case: (h)(1) The court shall make written findings on all of the factors set forth in subsection (g) of this section. (2) Upon a finding by clear and convincing evidence that a case should be transferred to another division of circuit court, the judge shall enter an order to that effect. Ark.Code Ann. § 9-27-318 (Supp.2005). The State asserts that the effect of the changed language is that clear and convincing evidence now pertains to transferring jurisdiction rather than to retaining it. Directing our attention to Otis v. State, 355 Ark. 590, 605, 142 S.W.3d 615, 623 (2004), and Williams v. State, 96 Ark.App. 160, 162, 239 S.W.3d 44, 46 (2006), the State complains that courts have ignored this distinction. The State’s position is well taken. We note that the standard of review for juvenile-transfer cases remains the same after enactment of Act 1116. See R.M.W. v. State, 375 Ark. 1, 289 S.W.3d 46 (2008) (citing Otis, supra, for its holding that the reviewing court will not reverse the circuit court’s decision unless it was clearly erroneous). R.M.W. and the present case were decided under identical statutory language, and in each the circuit court denied the appellant’s motion to transfer his case to juvenile court. The supreme court’s decision in R.M.W. included the following discussion of clear and convincing evidence and the movant’s burden of proof: To decide whether transfer to the juvenile court was appropriate, the circuit court had to decide whether the clear and convincing evidence supported R.M.W.’s story that he was a manipulated or an unwilling participant in the robbery.... R.M.W. has not borne his burden of proving that the circuit court was clearly erroneous. 375 Ark. 1, 7-8, 289 S.W.3d 46, 51 (emphasis added, citations omitted). Under these standards, we turn to the appeal now before us. On January 10, 2008, the circuit court conducted a hearing on Magana-Galda-mez’s motions to transfer. Dr. Robin Ross, a forensic examiner for the State, was accepted as an expert in psychiatry and testified as follows regarding her forensic evaluation of Magana-Galdamez on March 28, 2007. Magana-Galdamez, an El Salvadoran of slight build and stature, was cooperative, sat quietly, made good eye contact, was never tearful, and had normal speech. His thought processes were logical, his answers relevant, and his conduct socially appropriate. He was aware of why he was there, aware of the charges against him, and able to participate fully in his assessment. He did not appear confused and was not observed to have trouble communicating with Ross, or the interpreter who was present. Maga-na-Galdamez disclosed that his birth date was September 12, 1989, rather than one indicated on records Ross had been given. Magana-Galdamez said that, after coming as a pre-teen or teenager to the United States, he lived with his parents in Spring-dale, Arkansas. He had finished the sixth grade in El Salvador, was placed in the ninth grade in Springdale, and did well in school. He dropped out because of difficulty learning the language and because he wanted to work and make money so that he could move back to his country. Dr. Ross also considered Magana-Gal-damez’s social activities, relationships at home, eight-month history of working at a flour mill, and ability to go through the interview without being confused or upset. On the basis of this and other information, Dr. Ross opined that Magana-Galdamez “had adaptive capacities that would not indicate a mental defect.” Magana-Galdamez told Dr. Ross that he began to drink alcohol at approximately age sixteen, rarely drank hard liquor, drank two to three beers at a time, used to drink about twice a month, and was “drunk” on a little glass of tequila the night of the crimes. He said that he had begun to smoke marijuana about a month before his arrest but did not smoke it daily because he did not want his parents to know, and he did not use other drugs. The forensic evaluation included assessments of cognitive functioning, the criminal justice system, and Magana-Galdamez’s understanding of the system. Dr. Ross administered the Folstein Mini Mental State Examination, which she described as a screening tool with excellent validity and reliability: scoring twenty-three out of thirty would indicate a need for further assessment on cognitive functioning, but Magana-Galdamez’s score of twenty-seven was above average for his age and level of education. He also had a passing score of eighty out of one hundred on the Georgia Court Competency Test, which Ross described as a structured interview to assess a defendant’s understanding of the trial process and issues related to his defense. At this point in the examination, Dr. Ross formed the opinion that Magana-Galdamez had no psychiatric diagnosis, mental disease, or mental defect. Additionally, it was Dr. Ross’s opinion that Magana-Gal-damez had the capacity to appreciate the criminality of his conduct at the time of committing the crimes, the capacity to conform his conduct to the requirements of the law, and the capacity for the culpable mental state that was an element of the offense with which he was charged. Dr. Ross acknowledged that anti-social personality traits were possible because Magana-Galdamez had been doing things that were illegal, but said that nothing else indicated a diagnosis of a personality disorder and that the diagnosis had not been made. Dr. Ross reiterated that there had been no cognitive or clinical reasons to perform an IQ test. Dr. Ross testified that, after being read the felony information, Magana-Galdamez talked about events on the night of the crimes. Magana-Galdamez recounted being in a duplex with others, finding two girls, and going to a friend’s house with them. He said that he had been drinking, drugs were present but he did not use them, and a “guy” came over. Magana-Galdamez said that this person, whom he had seen before but did not know, was the one who “did this case.” Magana-Galda-mez said that he knew it was wrong to rob and kill someone: he did not do it, did not know what was going to happen, and did not know he was going to be breaking the law. Dr. Ross said that he did not perform the Test of Memory Malingering because Magana-Galdamez did not lack memory of what had happened. Ross stated that the Folstein Mini Test would have indicated the presence of mental retardation; in his opinion, no mental retardation existed and Magna-Galdamez did not suffer from mental disease or defect at the time of the examination or the crime. She testified that it was possible for someone to have a low IQ and still understand the criminality of his conduct and be able to conform conduct to the requirements of the law. Investigator Greg Hines of the Benton County Sheriffs Office testified that the victim, Derrick Jefferson, died from a single gunshot to the head at close range. Detective Alvaro Barrios of the Springdale Police Department testified that he interviewed Magana-Galdamez and his co-defendant, Erickson Dimas-Martinez. Ma-gana-Galdamez did not speak English well but had no trouble communicating with Barrios, a bilingual speaker of Spanish and English. Magana-Galdamez admitted his involvement in the robbery and homicide by being with Dimas-Martinez and two females when Dimas-Martinez shot Jefferson. Magana-Galdamez said that he shouted at the girls to be quiet, wielding a screwdriver in his hand, and drove the car away from the scene after Dimas-Martinez gave him the keys. Dimas-Martinez gave Magana-Galdamez the firearm used in the shooting and asked him to clean it and the bullets still in it: Magana-Galdamez did so, using his shirt to clean the pistol, and cleaning the bullets individually after removing them from the magazine. Maga-na-Galdamez did not indicate in the inter view that he had been forced to participate in the crimes or that he attempted to prevent them or to help Jefferson. Two eyewitnesses, sisters Candie Drain and Keri McConnell, identified Magana-Galdamez and Dimas-Martinez as the individuals who committed the crimes. McConnell testified that the sisters were at a party when Dimas-Martinez and Ma-gana-Galdamez offered Jefferson a ride after learning that he had money to pay for gas. McConnell testified that Dimas-Martinez and Magana-Galdamez initially discouraged the sisters from coming along but finally agreed. Dimas-Martinez had Jefferson drive the car, instructing him to make several stops until they got to an old house where Dimas-Martinez and Maga-na-Galdamez got out and talked. Dimas-Martinez, with Magana-Galdamez standing behind him, came to the driver’s side and asked Jefferson and the girls if they had cell phones. After determining that no one had a phone that worked, Dimas-Martinez pulled out a gun, pointed it through the window at Derrick’s face, and ordered him out of the car. McConnell stated that Magana-Galdamez did not look surprised and did not ask Dimas-Martinez to stop, and that they both told Jefferson to take off his shirt and give them his money, hat, earrings, and jacket. She testified, “Both of them were doing this to him.” McConnell further testified that Maga-na-Galdamez put a knife to the throat of her sister, who was crying and screaming hysterically, and told her to be quiet unless she wanted to die. He picked up Jefferson’s clothes and belongings from the ground, put them in the car, and got into the driver’s seat. Dimas-Martinez walked to the front of the car with Jefferson following him, Dimas-Martinez tried to open the passenger door, and Magana-Galdamez reached over to unlock it for him. Dimas-Martinez turned around, shot Jefferson, and got into the car. Looking neither surprised nor upset, Magana-Gal-damez drove back to the duplex where the party had been. He said it was not “that big of a deal” and told the girls to calm down. He told them they were staying with him overnight, and he took them to his parents’ home. In his bedroom, the sisters watched him clean the gun and the bullets from the clip. When they noticed blood on his jacket and became afraid, he again said “it was no big deal” and did not seem to be upset or remorseful. The State’s last witness was Drew Sho-ver, a juvenile intake officer for Benton County. Shover testified that he could not think of anything the juvenile system could offer Magana-Galdamez that the adult system could not offer. Candie Drain testified for the defense that Magana-Galdamez was in the car and had started the engine at the time of the shooting. She admitted on cross-examination that he held a knife to her throat and told her to be quiet, and that she was afraid of him. Dr. Ronald Melnroe, a clinical psychologist, clinical neuropsychologist, and licensed social worker, testified as an expert in psychological testing. His evaluation of Magana-Galdamez through the Comprehensive Test of Non-Verbal Intelligence produced an intelligence quotient of sixty-four, “in the mild range of mental retardation.” Dr. Melnroe also diagnosed mild mental retardation under DSM-IV criteria. Scott Tanner, the ombudsman coordinator for the public defender commission, testified about corrections options available for youthful offenders and about the facility at Dermott, Arkansas, where individuals under extended juvenile jurisdiction can be provided housing until age twenty-one, before possible transfer to adult facilities. Motion to Transfer A prosecuting attorney has the discretion to charge a juvenile sixteen years of age or older in the juvenile or criminal division of circuit court if the juvenile has allegedly engaged in conduct that, if committed by an adult, would be a felony. Ark.Code Ann. § 9-27-318(c)(l) (Supp. 2005). On the motion of the court or any party, the court in which the criminal charges have been filed shall conduct a hearing to determine whether to transfer the case to another division of circuit court. Ark.Code Ann. § 9-27-318(e). A circuit court is required by this statute to consider all of the following factors at a transfer hearing: (1) The seriousness of the alleged offense and whether the protection of society requires prosecution in the criminal division of circuit court; (2) Whether the alleged offense was committed in an aggressive, violent, premeditated, or willful manner; (3) Whether the offense was against a person or property, with greater weight being given to offenses against persons, especially if personal injury resulted; (4) The culpability of the juvenile, including the level of planning and participation in the alleged offense; (5) The previous history of the juvenile, including whether the juvenile had been adjudicated a juvenile offender and, if so, whether the offenses were against persons or property, and any other previous history of antisocial behavior or patterns of physical violence; (6) The sophistication or maturity of the juvenile as determined by consideration of the juvenile’s home, environment, emotional attitude, pattern of living, or desire to be treated as an adult; (7) Whether there are facilities or programs available to the judge of the juvenile division of circuit court that are likely to rehabilitate the juvenile before the expiration of the juvenile’s twenty-first birthday; (8) Whether the juvenile acted alone or was part of a group in the commission of the alleged offense; (9) Written reports and other materials relating to the juvenile’s mental, physical, educational, and social history; and (10) Any other factors deemed relevant by the judge. Ark.Code Ann. § 9-27-318(g) (Supp.2005). The court must make written findings on all ten enumerated factors in deciding whether or not to transfer the case, Ark. Code Ann. § 9-27-318(g) and (h)(1) (Supp. 2005), but proof need not be introduced against the juvenile on each factor, and the circuit court is not required to give equal weight to each of the statutory factors in arriving at its decision. E.g., Richardson v. State, 97 Ark.App. 52, 244 S.W.3d 736 (2006). “Upon a finding by clear and convincing evidence that a case should be transferred to another division of circuit court, the judge shall enter an order to that effect.” Ark.Code Ann. § 9-27-318(h)(2) (Supp. 2005). Clear and convincing evidence is the degree of proof that will produce in the trier of fact a firm conviction as to the allegation. sought to be established. McClure v. State, 328 Ark. 35, 942 S.W.2d 243 (1997). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. R.M.W., supra. In the present case, the circuit court’s written order stated that its decision to deny Magana-Galdamez’s transfer motion was based upon the following con siderations of the factors enumerated by Ark.Code Ann. § 9-27-318: (a) That there can be no doubt as to the most serious nature of the offenses charged; (b) That the offenses were violent in nature and execution; (c) That the offenses were committed against a person and as such are given greater weight; (d) That the evidence and testimony presented showed the Defendant was highly culpable in the offenses committed; (e) That although the Defendant had not been previously adjudicated as a juvenile, by his own admissions he regularly used drugs and alcohol; (f) That the Defendant’s lifestyle was that of an adult and not a juvenile as evidenced by the fact that the Defendant quit school to work full-time, that he was not restricted to curfews or his parents’ rules, and that he was treated as an adult by his parents; (g) That neither the Juvenile Court nor Extended Juvenile Jurisdiction are realistic options for this Defendant given his age and the nature of the offenses charged; (h) That the Defendant acted with another in the commission of the offenses; (i) That the opinions of both the State and Defense experts were reviewed. The circuit court concluded, upon consideration of these factors, that there was “clear and convincing evidence that the circuit court should retain jurisdiction over this matter.” Magana-Galdamez presents two primary arguments on appeal: that “the State has failed the evidentiary standard of clear and convincing that the juvenile ... met the criteria” of Ark.Code Ann. § 9-27-318, and that his admissions in a police interview should not have been used as evidence. We do not address the second argument because it was not raised to the trial court. See Raymond v. State, 354 Ark. 157, 162, 118 S.W.3d 567, 571 (2003) (stating that an argument not raised and made below is not preserved and will not be reached on appeal). As the moving party, Magana-Galdamez had the burden of proving by clear and convincing evidence that the case should be transferred to the juvenile division of circuit court. See Ark.Code Ann. § 9-27-318(h)(2) (Supp.2005). Although his testimony differed from that of other witnesses regarding his culpability in the robbery and murder, and there was conflicting testimony from the two experts on whether he suffered from mental retardation, the assessment of credibility and the weight of competing testimony were matters for the circuit court rather than for the reviewing court to decide. Taking the evidence as a whole, the circuit court retained jurisdiction, making written findings on the enumerated factors of section 9-27-318(g) as to why juvenile jurisdiction was inappropriate. We find no clear error in that decision. Affirmed. VAUGHT, C.J., and ROBBINS, J., agree. . Although in 'Williams we misquoted Ark. Code Ann. § 9-27-318(h) (Supp.2005), our holding remains sound: that the circuit court’s decision to refuse transfer was not clearly erroneous. . Cf. Otis, 355 Ark. at 605, 142 S.W.3d at 623 n. 2 (positing the issue of whether the juvenile or prosecutor had the burden of proof in juvenile-transfer cases under previous statute). . Although the circuit court’s language does not reflect the current version of § 9-27-318(h), this does not affect our holding that the court’s decision was not clearly erroneous.

PER CURIAM. On November 27, 2007, a jury found petitioner Lee Mark Harris guilty of possession of cocaine with intent to deliver and sentenced him to 960 months’ imprisonment in the Arkansas Department of Correction. The judgment was entered on December 14, 2007, and on December 10, 2007, trial counsel representing petitioner, Mr. Don Warren, filed a notice of appeal. The appeal was not perfected and petitioner filed a pro se motion for belated appeal. We treated the motion for belated appeal as a motion for rule on clerk to lodge the record and granted it. In our per curiam on October 2, 2008, we directed petitioner’s retained counsel to file a petition for writ of certiorari' to call up the entire record, as only a partial record had been filed. Harris v. State, CR08-762 (Ark. Oct. 2, 2008). Mr. Warren filed the petition as directed, and we granted petitioner thirty (30) days to complete the record. Harris v. State, 374 Ark. 529, 288 S.W.3d 645 (2008). Thus, the record was to be completed and lodged with this court by November 29, 2008. On January 7, 2009, Mr. Warren filed a “motion to accept belated brief on writ of certiorari,” which we will treat as a motion to file a belated return of writ. In the motion, Mr. Warren states that he did not receive the record until January 6, 2009. The affidavit attached to the motion, however, states that the transcript was delivered to the Warren Law Firm on “December 6, 2009.” In any case, although Mr. Warren states that “the delay was in no part attributable to the defendant,” and it is clear that he is attempting to place blame on the court reporter who prepared the transcript, this court has specifically held that it is not the responsibility of the circuit clerk, circuit court, or anyone other than the appellant to perfect an appeal. Branning v. State, 363 Ark. 369, 214 S.W.3d 237 (2005). Because there is presumption of prejudice arising from the failure of counsel to perfect an appeal if counsel’s deficient performance led to the forfeiture of the convicted defendant’s right to pursue a direct appeal, see Langston v. State, 341 Ark. 739, 19 S.W.3d 619 (2000), we grant the motion. A copy of this opinion will be forwarded to the Committee on Professional Conduct. Motion granted.

JIM GUNTER, Justice. This appeal arises from a decision of the Conway County Circuit Court denying Appellant Linda Stokes’s motion to suppress. We reverse and remand. On July 31, 2007, Appellant and a passenger, Amy Howard, were traveling along Interstate 40 when Officer Eric Lee noticed that the vehicle was traveling below the speed limit at 60 miles per hour. Officer Lee testified that once he got behind the vehicle, it made a hasty exit off of the interstate into Plumerville. Officer Lee could see Appellant and the passenger watching him out of the mirrors. According to Lee, “the vehicle turned left and went North on Highway 92 to Plumer-ville.” He followed the vehicle and it eventually came to a complete stop in the road. He testified that it seemed like they were looking for a place to turn, which piqued his interest. The vehicle continued on Highway 92 and turned left on Ballpark Road. Lee’s interest was piqued again because Ballpark Road is an all-black neighborhood with a dead-end street and the occupants of the vehicle were two white females. He ran the vehicle’s tag, and discovered that it was registered in Arizona. He continued down Highway 92 past Ballpark Road and observed in his mirror that the vehicle was backing down Ballpark Road. He turned around and the vehicle began driving down the road again. Lee then got behind the vehicle and initiated a traffic stop. Lee testified that he stopped Appellant’s vehicle for careless driving because the vehicle had backed down a city street. When Lee approached the vehicle, he observed that Appellant was “visibly shaking” and did not have identification on her. She told Lee that she did not have identifi cation because her license was suspended. Lee returned to his vehicle and discovered that Appellant had a suspended driver’s license out of Arizona and an expired license out of California. Lee then approached the vehicle again and asked Appellant to step out of the vehicle. He began asking her questions about where they were going and what they were doing in the area. He also asked Howard questions and testified that “the stories they were giving me were not matching up and I didn’t feel comfortable with both of them out there at that point.” He placed Appellant under arrest for driving on a suspended license. As he was placing her in the back of his car, he asked her if they were transporting anything illegal. He testified that Appellant would not make eye contact with him and looked away when he asked her if there were any drugs in the car. He then began speaking to Howard, who had the same reaction as Appellant. Lee called a tow truck to tow the vehicle because neither Appellant nor Howard had driver’s licenses. Another officer arrived and contacted the rental company about the vehicle. According to the rental company, the vehicle was not supposed to be taken out of Arizona, and neither Appellant nor Howard was listed as the actual renter of the vehicle. Lee then conducted an inventory of the vehicle and found marijuana in the trunk. Lee did not issue a citation for careless driving. Appellant was charged with possession of marijuana with intent to deliver. On September 13, 2007, Appellant filed a motion to suppress the evidence found in the rental vehicle. The circuit court denied the motion to suppress. Appellant entered a guilty plea conditioned on the appeal of the motion to suppress. Appellant now brings this appeal. This case was certified to us from the Arkansas Court of Appeals because it involves a perceived inconsistency in the decisions of the Arkansas Supreme Court, issues needing clarification or development of the law or overruling of precedent, and issues of substantial public interest pursuant to Arkansas Supreme Court Rule 1-2(b)(2), (4), and (5) (2008). For her sole point on appeal, Appellant asserts that the circuit court erred in denying Appellant’s motion to suppress. Specifically, Appellant contends that (1) the evidence was obtained during an unlawful stop of Appellant’s vehicle and (2) even if there was probable cause to initiate the traffic stop, “the evidence obtained as a result of Appellant’s arrest for a misdemeanor, rather than the issuance of a summons, was in direct violation of Arkansas Rules of Criminal Procedure 7.1 and should be deemed fruit of the poisonous tree.” The State responds, asserting that Appellant lacks standing to challenge the suppression of the evidence. In the alternative, the State contends that (1) there was probable cause to initiate the traffic stop; (2) Appellant did not obtain a ruling regarding her argument that a summons was not issued for her arrest; (3) even if there were a ruling, Rule 7.1(b) has no application here; and (4) the circuit court correctly refused to suppress the evidence seized from the car because the marijuana would have inevitably been discovered through the inventory search even if there were no arrest. In her reply brief, Appellant asserts that the State cannot raise its standing argument for the first time on appeal. In the alternative, Appellant contends that she does have standing, citing Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007). In reviewing the denial of a motion to suppress evidence, this court con ducts a de novo review based upon the totality of the circumstances, reversing only if the circuit court’s ruling is clearly against the preponderance of the evidence. Roster v. State, 374 Ark. 74, 286 S.W.3d 152 (2008). Issues regarding the credibility of witnesses testifying at a suppression hearing are within the province of the circuit court. Id. Any conflicts in the testimony are for the circuit court to resolve, as it is in a superior position to determine the credibility of the witnesses. Id. I. Standing We must first address whether the State’s standing argument can be raised for the first time on appeal. We have held that the issue of standing to challenge the legality of a search and seizure is not a jurisdictional issue that can be raised for the first time on appeal. See State v. Houpt, 302 Ark. 188, 788 S.W.2d 239 (1990). In Houpt, however, the State, as appellant, raised the issue of the appellee’s standing to challenge the legality of a search and seizure in order to obtain a reversal. We have never held that an appellee cannot raise an issue for the first time on appeal in an effort to obtain an affirmance. See Ramage v. State, 61 Ark. App. 174, 966 S.W.2d 267 (1998). We have a long-standing rule that we may affirm the result reached by the trial court, if correct, even though the reason given by the trial court may have been wrong. See Mamo Transp., Inc. v. Williams, 375 Ark. 97, 289 S.W.3d 79 (2008). Here, the State is asking us to affirm the circuit court’s denial of Appellant’s motion to suppress, therefore, we hold that the State can raise the issue of standing for the first time on appeal. We now turn to the issue of whether Appellant has standing to contest the legality of the search and seizure. We have held that an appellant must have standing to assert Fourth Amendment rights because those rights are personal in nature. State v. Bowers, 334 Ark. 447, 976 S.W.2d 379 (1998); Dixon v. State, 327 Ark. 105, 937 S.W.2d 642 (1997); Littlepage v. State, 314 Ark. 361, 863 S.W.2d 276 (1993). Whether an appellant has standing depends upon whether he manifested a subjective expectation of privacy in the area searched and whether society is prepared to recognized that expectation as reasonable. Littlepage, supra. In Little-page, the appellant was driving a rental vehicle when he was stopped by police. We said that in order for the appellant to assert his Fourth Amendment rights, he must show that he gained possession from the owner or someone with authority to grant possession. Id. According to the rental agreement, the vehicle was rented to a third party, and neither Littlepage nor his passenger was authorized to use the vehicle. We held that the appellant had no standing to challenge the officer’s search as unconstitutional because he had no expectation of privacy in the car. Id. In Bowers, we held that the appellant who was a passenger in a vehicle had standing to contest the search of the vehicle after an illegal stop. None of the parties contested the fact that the initial stop was illegal. We distinguished Bowers from Littlepage and our other previous cases in that Bowers involved an illegal stop, and the search for and seizure of the drugs directly followed the stop. We said that the search on the heels of an illegal stop presents a different issue with respect to occupants of a vehicle. Id. (citing Dixon v. State, supra). “Similarly, the occupants of a vehicle have standing to assert their own Fourth Amendment rights, independent of the owner’s, such as a challenge to the initial stop, or the seizure of their person.” Id. (quoting Dixon). Appellant relies on Brendlin v. California, 551 U.S. 249, 127 S.Ct. 2400, 168 L.Ed.2d 132 (2007), for her assertion that she has standing to challenge the legality of the stop. In Brendlin, officers stopped a car to check its registration without reason to believe that it was being operated unlawfully. The United States Supreme Court held that a passenger, like the driver, of an automobile that was pulled over by a police officer for a traffic stop was “seized” under the Fourth Amendment from the moment the automobile came to a halt on the roadside and, therefore, was entitled to challenge the constitutionality of the traffic stop. Id. Here, in determining whether Appellant was seized, the relevant inquiry is whether a reasonable person in Appellant’s position when the car stopped would have believed herself free to “terminate the encounter” between the police and herself. Brendlin, 551 U.S. at 249, 127 S.Ct. 2400. Under the facts in this case, a reasonable person in Appellant’s position would not have believed that she was free to terminate the encounter between Officer Lee and herself. Because Appellant was seized for Fourth Amendment purposes, she has standing to challenge the stop’s constitutionality. This case was certified to us because of a perceived inconsistency between our holding in Littlepage and the holdings in Bowers and Brendlin. There is no conflict between the decisions because the issue of standing as it relates to the seizure of a person was not an issue in Littlepage. Rather, the issue in Littlepage was whether the appellant had standing to challenge the search of a vehicle, which involved the seizure of property and the expectation of privacy. Because the issues related to standing in Littlepage and the issues related to standing in Bowers and Brendlin were different, we find no inconsistency in the decisions. II. Traffic Stop Appellant asserts that the evidence obtained was the result of an illegal and unconstitutional traffic stop and should be deemed fruit of the poisonous tree. In order for a police officer to make a traffic stop, he must have probable cause to believe that the vehicle has violated a traffic law. Sims v. State, 356 Ark. 507, 157 S.W.3d 530 (2004); Laime v. State, 347 Ark. 142, 60 S.W.3d 464 (2001); Travis v. State, 331 Ark. 7, 959 S.W.2d 32 (1998). Probable cause is defined as “facts or circumstances within a police officer’s knowledge that are sufficient to permit a person of reasonable caution to believe that an offense has been committed by the person suspected.” Burks v. State, 362 Ark. 558, 210 S.W.3d 62 (2005). In assessing the existence of probable cause, our review is liberal rather than strict. Laime, supra. Whether a police officer has probable cause to make a traffic stop does not depend on whether the driver was actually guilty of the violation which the officer believed to have occurred. Id. Here, Officer Lee testified that the vehicle driven by Appellant was driving 60 miles an hour, which was below the posted speed limit. The vehicle then made a “hasty exit” off the 112 off-ramp into Plu-merville. Lee could see both Appellant and the passenger watching him though their mirrors. Lee said it looked like they were trying to decide which way to turn. After the vehicle turned, Lee followed the vehicle and it “almost made a complete stop in the road and again it looked like they were looking for a place to turn.” The vehicle turned left on Ballpark Road. Lee said this piqued his interest because it was an all-black neighborhood and the occupants of the vehicle were two white women. Lee ran the tag on the vehicle and discovered it was from Arizona. He continued past Ballpark Road and ob served in his mirror that the vehicle was backing down Ballpark Road. When Lee turned his car around, the vehicle began driving back down the road. Lee then pulled the vehicle over. Lee testified that he pulled the car over for careless driving. Arkansas Code Annotated § 27-51-104 (Supp.2007) covers careless and prohibited driving, stating in pertinent part: (a) It shall be unlawful for any person to drive or operate any vehicle in such a careless manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or otherwise, or in such a manner as to evidence a failure to maintain proper control on the public thoroughfares or private property in the State of Arkansas. The State contends that Appellant violated subsection (a) because she operated the vehicle “in such a careless manner as to evidence a failure to keep a proper lookout for other traffic, vehicular or otherwise” by driving her car in reverse down the street. With regard to whether backing down a street was careless, Officer Lee testified, “I don’t believe any cai's were coming. There were no cars behind me. There is always a danger. In the absence of any other vehicles around I wouldn’t say there necessarily was a danger.” Based on Officer Lee’s testimony that there were no other vehicles around, and there was not “necessarily a danger,” we cannot say that the facts or circumstances within the officer’s knowledge were sufficient to permit a person of reasonable caution to believe that Appellant failed to keep a proper lookout for other traffic by backing down the road. The State contends that, even if Lee did not have probable cause to stop Appellant for careless driving, he did have probable cause to stop her for violating Ark.Code Ann. § 27-51-1309(a) (Supp. 2007), which provides that “[t]he driver of a vehicle shall not back a vehicle upon any roadway, unless the movement can be made with reasonable safety and without interfering with traffic.” Once again, we cannot say that the facts within the officer’s knowledge were sufficient to permit a person of reasonable caution to believe that the vehicle could not be backed down the road “with reasonable safety and without interfering with traffic.” Accordingly, we hold that there was no probable cause to believe that Appellant was committing a traffic violation and that the circuit court therefore clearly erred in denying the motion to suppress. We therefore reverse and remand. In view of our holding that there was no probable cause to make the stop, we need not address Appellant’s remaining arguments. Reversed and remanded.

PAUL E. DANIELSON, Justice. Appellant Tony Bernard Johnson appeals from his conviction for attempted capital murder and his sentence to life imprisonment plus fifteen years, which includes an enhancement for use of a firearm. His sole point on appeal is that the circuit court erred in denying his directed-verdict motion in which he claimed that the State failed to introduce substantial evidence that he acted with premeditation and deliberation. We affirm his judgment and conviction. A review of the testimony of Mary Rose Johnson reveals the following. On April 27, 2007, Mary Rose, who at the time was married to Johnson, went to see an attorney about obtaining a divorce from him. Later that day, Mary Rose received a call from Johnson, inquiring of her whereabouts. Mary Rose told Johnson that she had just left her attorney’s office, to which he responded that he hoped “it wasn’t what [he thought] it was about.” Mary Rose told him that there was no other reason for her to see an attorney, and the call soon terminated. Upon arriving home approximately fifteen to twenty minutes later, Mary Rose changed clothes and began walking on her treadmill, which was located in the garage of her home. While walking, she looked up to see Johnson standing in the doorway, and Johnson told her that they needed to talk, “God Damn it!” Mary Rose then asked for ten minutes to finish walking. Johnson repeated his statement, then walked over to the wall, and unplugged a cd player to which Mary Rose had been listening. At that time, Mary Rose told Johnson to plug the cd player back in and to give her ten minutes. After asking three times, Johnson did plug the player back in and turned, as if he was leaving. Mary Rose then heard a loud noise, felt a burning, and began to hold her stomach. After that, Mary Rose fell to her knees on the treadmill, which was still going. Johnson told Mary Rose that she had “throwed [him] away God Damn it!,” and she responded that no one did so and asked Johnson to call 911. Mary Rose began to crawl toward the door, when Johnson looked at her and said, “bitch, don’t make another move, just lay there and die! ... I ought to shoot you in the head.” She again asked him to call 911 four different times, which he finally did. After emergency crews and the police arrived, Johnson was arrested. While Johnson was initially charged with criminal attempt to commit murder in the first degree and possession of a firearm by certain persons, the prosecutor later filed an amended information, charging Johnson with criminal attempt to commit capital murder and possession of a firearm by certain persons. He was subsequently tried, and as already set forth, convicted. He now appeals. Johnson contends that the State failed to introduce substantial evidence that he acted with premeditation and deliberation in committing attempted capital murder. While he concedes that substantial evidence was presented that he fired a .357 revolver at his then — wife, Mary Rose, striking her in the stomach, he maintains that the State failed to prove that he shot her with the culpable mental state required to prove attempted capital murder — premeditated and deliberated purpose to cause death. The State responds that substantial evidence supporting premeditation and deliberation was presented. Specifically, the State points to the testimony of Mary Rose, as well as to the testimony of Johnson’s co-worker, regarding threatening statements made to him by Johnson relating to Mary Rose. The State avers that the evidence showed that Johnson thought about killing his wife long before he fired the shot, that he attempted to cause her death by firing the shot, and that, by firing the shot, he took a substantial step toward capital murder in a premeditated and deliberated manner. It urges that the jury reasonably inferred, from the deadly nature of the weapon and from the location and extent of Mary Rose’s injury, that Johnson possessed the culpable mental state for attempted capital murder. On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See Hoyle v. State, 371 Ark. 495, 268 S.W.3d 313 (2007). We will affirm the circuit court’s denial of a motion for directed verdict if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. See id. This court has repeatedly defined substantial evidence as “evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture.” Id. at 501, 268 S.W.3d at 318 (quoting Young v. State, 370 Ark. 147, 151, 257 S.W.3d 870, 875 (2007)). Furthermore, this court views the evidence in the light most favorable to the verdict, and only evidence supporting the verdict will be considered. See id. We hold that substantial evidence exists to support the jury’s verdict, convicting Johnson of attempted capital murder. A person commits capital murder if “[w]ith the premeditated and deliberated purpose of causing the death of another person, the person causes the death of any person.” Ark.Code Ann. § 5-10-101(a)(4) (Repl. 2006). A person attempts to commit an offense if he or she purposely engages in conduct that “[ejonstitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be.” Ark.Code Ann. § 5-3-201(a)(2) (Repl.2006). We have held that premeditation and deliberation constitute the necessary mental state for the commission of attempted capital murder. See Salley v. State, 303 Ark. 278, 796 S.W.2d 335 (1990). Deliberation has been defined as “a weighing in the mind of the consequences of a course of conduct, as distinguished from acting upon a sudden impulse without the exercise of reasoning powers.” Ford v. State, 334 Ark. 385, 389, 976 S.W.2d 915, 917 (1998) (quoting Davis v. State, 251 Ark. 771, 773, 475 S.W.2d 155, 156 (1972)). Premeditation means to think of beforehand, and it is well established that it is immaterial as to just how long premeditation and deliberation exist, so long as they exist for a period of time prior to the homicide. See id. Premeditation and deliberation may occur on the spur of the moment and may be inferred by the jury from the type of weapon used, the manner of its use, and the nature, extent, and location of the wounds inflicted. See id. In this case, substantial evidence was presented to support the jury’s finding of premeditation and deliberation. In addition to the testimony of Mary Rose already set forth above, Terry Hines, who worked with Johnson at Hines’s father’s detail shop, testified that on the afternoon in question while at the shop, Johnson was upset that his wife might have wanted a divorce. He stated that Johnson told him that “he was going to go home and just handle his business the way he know how [sic].” He further testified that Johnson told him that “he was going to shoot [Mary Rose] if she had some divorce papers” and that “he was going to kill the bitch.” Mr. Hines then testified that while driving Johnson home from work, Johnson repeated that he was going to shoot Mary Rose if she had any divorce papers. Mr. Hines stated that on that day, Johnson had a serious look on his face. And as already noted, Mary Rose testified that Johnson came into her garage demanding to talk to her, shot her, and commented that she should die. Here, there was substantial evidence to support Johnson’s conviction for attempted capital murder, and we, therefore, affirm Johnson’s conviction and sentence. Pursuant to Arkansas Supreme Court Rule 4 — 3(h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to Johnson, and no prejudicial error has been found. Affirmed. . Johnson does not challenge the firearm enhancement on appeal.

DONALD L. CORBIN, Justice. Appellant Howard H. Neal, Jr., appeals his conviction for capital murder and kidnapping in the Pulaski County Circuit Court. Appellant’s sole point on appeal is that the trial court abused its discretion in refusing to allow a witness to testify on the basis that Appellant failed to disclose in a timely manner to the State that the witness would be testifying. As Appellant was sentenced to a term of life imprisonment, our jurisdiction is pursuant to Ark. Sup.Ct. R. 1 — 2(a)(1). We affirm. As Appellant does not challenge the sufficiency of the evidence supporting his conviction, a brief recitation of the facts will suffice. On October 23, 2005, Jacquelyn Polk left her five-year-old daughter, Jasmine Peoples, at the home of Polk’s friend, Shavonda Perry. Polk was taking Perry to visit a relative in a nursing home, while Ronald Redden and others stayed with Jasmine and another child. While Jasmine was asleep in the front room, and the second child was asleep in a bedroom, Appellant walked in the front door of the apartment and exited out the back door, where he spent about fifteen minutes wandering around the backyard, talking to himself. Appellant then reentered the apartment stating, “ ‘I want all you M-F-ers to get out of my house.’” He then told Redden, “ ‘I’m going to kill every last one of y’all, and I’m going to start with your ass.’ ” Appellant then attacked Redden, stabbing him in the neck. Redden and the others fled the apartment, inadvertently leaving behind the two children. The Jacksonville Police Department was called to the scene, and by the time officers arrived, Appellant had barricaded himself in the apartment. Sergeant Chris Burrough attempted to make contact with Appellant. He tried to convince Appellant to release the two children, but Appellant refused to do so. Because the apartment’s front door was blocked by furniture, the department’s entry team, a group of officers specifically trained in making entry into high-risk situations, was called. The entry team ultimately accessed the apartment through the back door and took Appellant into custody. Captain Kenny Boyd, a member of the entry team, began searching for the two children. After moving an overturned couch and television set, Captain Boyd discovered a child’s body lying face down underneath the furniture. The child, who also had an extension cord around her neck, was later identified as Jasmine. The second child was found unharmed. An autopsy of Jasmine revealed numerous blunt-force and sharp-force injuries, but the ultimate cause of her death was compressional asphyxia, which was consistent with a heavy object or objects being placed on top of her chest. Appellant was charged with capital murder and kidnapping. He was tried before a jury, convicted and sentenced to life imprisonment without the possibility of parole on the charge of capital murder and twenty-two years’ imprisonment on the charge of kidnapping, with the sentences to be served concurrently. This appeal followed. As his sole point on appeal, Appellant argues that the trial court abused its discretion in refusing to allow a witness, Melody Perry, to testify on behalf of the defense at trial. Appellant concedes that he violated Ark. R.Crim. P. 18.3, in that Ms. Perry’s name was not provided to the State in a timely manner. He argues, however, that the sanction for such a violation is left to the discretion of the trial court, and here the trial court abused that discretion by denying Appellant’s request that Ms. Perry be allowed to testify. In support of this contention, Appellant avers that there was no evidence that he deliberately violated Rule 18.3, as he learned of Ms. Perry’s testimony the morning of trial. Moreover, Appellant argues it was an abuse of discretion because (1) Ms. Perry was the only known witness who could cast doubt on the State’s theory of the case; (2) the State would not have been surprised by Ms. Perry’s testimony as they cross-examined her during the defense proffer of her as a witness; (3) the State could have easily rebutted Ms. Perry’s causation testimony; and (4) it was for the jury, not the judge, to decide if Ms. Perry’s testimony was credible. The State counters that no mention was ever made of Rule 18.3 at trial. The State objected to Ms. Perry testifying on the basis that she was not named as a witness during voir dire and that the State had not subpoenaed witnesses who could rebut Ms. Perry’s testimony, as there was no indication that the entry into the apartment would be an issue at trial. The State contends therefore that it was within the trial court’s discretion to preclude Ms. Perry from testifying. As to Appellant’s contention that the trial court abused its discretion in judging Ms. Perry’s credibility, the State argues that this court can affirm the trial court’s ruling for any reason. Finally, the State avers that Appellant cannot demonstrate prejudice resulting from the trial court’s ruling, as he all but concedes that Ms. Perry’s testimony was not to be believed. Matters pertaining to the admissibility of evidence are left to the sound discretion of the trial court, and we will not reverse such a ruling absent an abuse of that discretion. Springs v. State, 368 Ark. 256, 244 S.W.3d 683 (2006); McEwing v. State, 366 Ark. 456, 237 S.W.3d 43 (2006). Furthermore, this court will not reverse absent a showing of prejudice, as prejudice is not presumed. Id. In the present case, after the jury was selected, but prior to any opening statements, Appellant’s counsel notified the trial court and the State that it had just learned of a witness with potentially exculpatory information. Specifically, Melody Perry, who had originally been approached by an investigator for the defense regarding any knowledge she might have of the location of another potential witness, came forward and notified Appellant’s counsel that she was present at the time that officers from the Jacksonville Police Department entered the apartment through the front door, pushing over the furniture that had been piled against the front door. Appellant requested that he be allowed to call Perry as a defense witness. The State objected, arguing that the jury had already been seated and those members were selected based on whether they knew anyone involved with the case and that it had based its witness list on the announced witnesses. The trial court announced that it was taking the matter under advisement. At the end of the first day of trial, Appellant was allowed to proffer Perry as a witness. Perry stated that she approached defense counsel and stated that she was standing in front of the apartment during the standoff and could see inside through a slit in the curtain. Inside she saw furniture barricading the front door. Perry stated that after about an hour or an hour-and-a-half, police “started barging in the front door and the back door.” Upon cross-examination, Perry admitted that Appellant was her first cousin. At the conclusion of Perry’s proffered testimony, the trial court ruled that it was not going to allow her to testify at trial since she had come forward at the last minute and had no credibility. Under Rule 18.3, [sjubject to constitutional limitations, the prosecuting attorney shall, upon request, be informed as soon as practicable before trial of the nature of any defense which defense counsel intends to use .at trial and the names and addresses of persons whom defense counsel intends to call as witnesses in support thereof. Discovery in criminal cases, within constitutional limitations, must be a two-way street. See McEwing, 366 Ark. 456, 237 S.W.3d 43. This interpretation promotes fairness by allowing both sides the opportunity for full pretrial preparation, preventing surprise at trial, and avoiding unnecessary delays at trial. Id. In McEwing, this court held that a trial court did not abuse its discretion in prohibiting an alibi witness from testifying on behalf of the appellant when the appellant attempted to call the witness the morning of trial. In so ruling, this court stated that the trial court’s decision to exclude the witness was based on a determination that it would be unfair to the State to allow the witness when the appellant sought to call her the morning of trial. Id. While McEwing is distinguishable on the basis that there was a blatant violation of Rule 18.3 involved there, the underlying principle that it would be unfair to the State under Rule 18.3 to allow a witness who comes forward the morning of trial to testify is the same in both cases. Even though in the present case it is clear that Appellant was unaware of Ms. Perry and her potential testimony, we still cannot say that the trial court abused its discre tion in excluding her as a witness. While the trial court improperly ruled on Ms. Perry’s credibility, as credibility matters are within the province of the jury, see, e.g., Brown v. State, 374 Ark. 341, 288 S.W.3d 226 (2008), this court can affirm the trial court if it reached the right result even for the wrong reason. See Jarrett v. State, 371 Ark. 100, 263 S.W.3d 538 (2007). Accordingly, there is no merit to Appellant’s argument on appeal. Affirmed. . Appellant was also charged with battery in the first degree relating to his attack on Redden, but this charge was later dismissed upon motion by the State.

PAUL E. DANIELSON, Justice. The instant case is a no-merit appeal from an order of long-term protective custody filed by counsel for appellant Rufus Homer Adams. The order awarded long-term custody of Mr. Adams to appellee Arkansas Department of Health and Human Services (DHS). Mr. Adams’s brief presents this court with an issue of first impression, that is, whether a court-appointed attorney for an alleged endangered, indigent adult can file an Anders no-merit appeal from an order of long-term custody in an adult-protective case. Assuming that an Anders no-merit appeal is possible, counsel for Mr. Adams asserts that the circuit court did not err when it awarded custody of Mr. Adams to DHS. We adopt herein the Anders no-merit procedures for appeals by indigent adults subject to orders of long-term custody, and we affirm the circuit court’s order and grant counsel’s motion to withdraw. On February 22, 2008, DHS filed a petition for emergency custody, asserting that it should be granted custody of Mr. Adams because the circumstances or conditions of [Mr. Adams] are such that returning to or continuing at [his] place of residence or in the care and custody of a parent, guardian, or other person responsible for [his] care presents imminent danger to [his] health or safety. [Mr. Adams] lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents imminent danger to [his] health or safety. Attached to the petition was an affidavit from Adult Protective Services, stating, in part, that Mr. Adams had been evaluated and was found to be incapable “of managing his medications or his finances and was not capable of independent living.” The affidavit stated that Mr. Adams suffered from Type 2 Diabetes, coronary artery disease, and hypertension, and that Mr. Adams admitted difficulty with his memory, due to a stroke a few years prior. It further provided that Mr. Adams continued to “be confused and have memory problems” and appeared “to have little understanding of the consequences of his actions.” As a result of the petition, the circuit court issued an ex parte order of emergency custody. On March 3, 2008, the circuit court filed a probable-cause order, in which the circuit court declared Mr. Adams indigent, appointed counsel, and set a hearing on long-term custody for March 24. Following that hearing, the circuit court filed an order for long-term protective custody, awarding DHS custody of Mr. Adams. In its order, the circuit court found that [respondent lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents an imminent danger to his health or safety. More specifically: Mr. Adams has been diagnosed with Type 2 Diabetes, coronary artery disease, and hypertension. Dr. Jim Pang states that in his opinion Mr. Adams is not capable of managing his medications or his finances and not capable of independent living. Mr. Adams does not have any family willing or able to assist him with independent living nor does he believe he needs assistance. Mr. Adams claims to have an apartment in Osceola ready to move in but has been unable to tell anyone the address. 4. Respondent is unable to provide for his own protection from abuse, neglect, or exploitation. 5. That the Respondent did not have a caregiver, responsible for his protection, care, or custody. The circuit court then found by clear and convincing evidence that Mr. Adams was in need of placement and awarded long-term custody of Mr. Adams to DHS. On April 22, 2008, Mr. Adams filed his notice of appeal, and counsel for Mr. Adams has presented this court with the instant no-merit brief and a motion to withdraw. Mr. Adams was given thirty days to respond to his counsel’s no-merit brief, and various documents from Mr. Adams were received September 19, 2008. We turn now to the instant appeal. I. Adoption of No-Merit Procedures For the first point on appeal, counsel for Mr. Adams, citing to this court’s recent adoption of a no-merit procedure for dependency-neglect cases, urges this court to adopt a no-merit procedure for appeals from orders of long-term custody under the Arkansas Adult Maltreatment Act, Arkansas Code Annotated §§ 9-20-101-9-20-121 (Repl.2008). Specifically, counsel requests that “the Court adopt a No Merit procedure, accept this No Merit brief as compliant with a No Merit procedure, [r]ule on the merits of the case and allow him to withdraw.” DHS responds, requesting that counsel’s motion to withdraw be granted and the appeal be dismissed. In Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), the United States Supreme Court, in an effort to protect an indigent defendant’s right to counsel on appeal, adopted the following procedure for counsel’s withdrawal, where counsel has conscientiously determined that the appeal contains no meritorious issues: [Counsel’s] role as advocate requires that he support his client’s appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court — not counsel — then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel’s request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal. 386 U.S. at 744, 87 S.Ct. 1396. The question presented in the instant appeal is whether the no-merit Anders procedures should be applied to appeals from orders of long-term custody pursuant to the Adult Maltreatment Custody Act. The purpose of the Adult Maltreatment Custody Act is to: (1) Protect a maltreated adult or long-term care facility resident who is in imminent danger; and (2) Encourage the cooperation of state agencies and private providers in the service delivery system for maltreated adults. Ark.Code Ann. § 9-20-102 (Repl.2008). To that extent, the Act gives jurisdiction to the probate division of the circuit court over proceedings for custody, temporary custody for purposes of evaluation, court-ordered protective services, or an order of investigation pursuant to the Act. See Ark. Code Ann. § 9-20-108(a)(l) (Repl.2008). The Act further sets forth the procedures to be followed under the Act. In Linker-Flores v. Arkansas Department of Human Services, 359 Ark. 131, 194 S.W.3d 739 (2004), this court adopted the Anders no-merit procedures for appeals by indigent parents, which stem from termination-of-parental-rights proceedings. In Linker-Flores, we observed that, pursuant to statute and relevant case law, indigent parents in Arkansas had a right to counsel on appeal. Given that right, we then examined the “extent of counsel’s obligations when counsel believes the appeal is frivolous.” 359 Ark. at 138, 194 S.W.3d at 745. After reviewing a variety of jurisdictions that had addressed both sides of the issue, we concluded that “[because ..-. the benefits from the Anders protections to the indigent parent’s right to counsel outweigh the additional time such procedures require, the Anders procedures shall apply in cases of indigent parent appeals from orders terminating parental rights.” Id. at 141, 194 S.W.3d at 747. In the same vein, we must initially determine whether an indigent adult subject to an order of long-term custody has a right to counsel on appeal. Indeed, such an adult is entitled to counsel during the proceedings against him in the probate court, pursuant to the Act itself. Under the Adult Maltreatment Custody Act, the adult subject to custody shall be served a copy of the petition for custody, as well as notice of the hearing to be held on the petition. See Ark.Code Ann. § 9-20-lll(a), (b)(1) (Repl.2008). In addition, the pleadings served on the adult shall “include a statement of the right to: (1) Effective assistance of counsel; (2) Be present at the hearing; (3) Present evidence on the respondent’s own behalf; (4) Cross-examine witnesses who testify against him or her; (5) Present witnesses in the respondent’s own behalf; (6) Remain silent; and (7) View and copy all petitions, reports, and documents retained in the court file.” Ark.Code Ann. § 9-20-lll(c). Further evidence regarding the adult’s right to counsel is found in Ark.Code Ann. § 9-20-116(b)(1) (Repl.2008), which directs the probate court, at the probable-cause hearing, to make certain inquiries of the adult regarding counsel, including: (A) Whether the maltreated adult has the financial ability to retain counsel; and (B) If the maltreated adult does not have the financial ability to retain counsel, whether the maltreated adult is indigent. In addition, the court shall inform the adult of the right to effective assistance of counsel and, if the adult is indigent, appoint counsel for the adult. See Ark.Code Ann. § 9-20-116(b)(2). The Act, thus, makes clear that an adult, subject to a petition for custody pursuant to the Act, is entitled to effective assistance of counsel during the probate-court proceedings. While it is clear that the adult subject to the Act is entitled to counsel in the proceedings before the probate court, no mention is made in the Act regarding the adult’s entitlement to counsel on appeal, which was the guiding principle for our decision in Linker-Flores. Nonetheless, it would defy logic were we to hold that such adults ordered into long-term custody under the Act, who were entitled to counsel during the probate-court proceedings, were not entitled to counsel on appeal. Here, Mr. Adams was entitled to counsel during the proceedings before the probate court, he was entitled to appeal the order of the probate court, and, therefore, we hold, he is entitled to counsel on appeal. Because an indigent adult subject to the Act is entitled to counsel on appeal, it is evident to this court that the Anders no-merit procedures would best protect Mr. Adams’s interests, or those of any indigent adult subject to the Act, when counsel believes there is no issue of arguable merit for appeal. Accordingly, we hold that the Anders no-merit procedures apply to appeals by indigent adults from long-term custody orders under the Adult Maltreatment Custody Act. In doing so, we further hold that appointed counsel for an indigent adult, subject to the Adult Maltreatment Custody Act, on a first appeal from an order of long-term custody may petition this court to withdraw as counsel if, after a conscientious review of the record, counsel can find no issue of arguable merit for appeal. Counsel’s petition must be accompanied by a brief discussing any arguably meritorious issue for appeal. The indigent adult must be provided with a copy of the brief and notified of his or her right to file points for reversal within thirty days. If this court determines, after a full examination of the record, that the appeal is frivolous, the court may grant counsel’s motion and dismiss the appeal. If, however, we find any of the legal points arguable on their merits, we will appoint new counsel to argue the appeal. Because Mr. Adams’s counsel has filed a no-merit Anders brief and a motion to withdraw in accordance with the procedures set forth above, we will consider the instant no-merit appeal. II. Order of Long-Term Custody Mr. Adams’s counsel next asserts that the probate court did not err in granting DHS’s petition for custody. Stating that the case is one of first impression, counsel urges this court to adopt the same standard of review used in termination-of-parental-rights cases, that of clear and convincing evidence. He further contends that the evidence presented supports the circuit court’s order of long-term custody. Our standard of review for probate orders is well established. This court reviews probate proceedings de novo, and the decision of the probate court will not be disturbed unless clearly erroneous, giving due regard to the opportunity and superior position of the probate court to determine the credibility of witnesses. See Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999) (reviewing an order of involuntary commitment). See also Campbell v. State, 51 Ark.App. 147, 912 S.W.2d 446 (1995) (observing, in review of an involuntary-commitment order, that when the burden of proof in the trial court was by clear and convincing evidence, the standard of review was whether the trial court’s finding is clearly erroneous). After reviewing the evidence in the instant case, we cannot say that the circuit court clearly erred in granting the petition for long-term custody. Pursuant to the Act, the probate court may order long-term custody with DHS if the court determines that: (1) The adult lacks the capacity to comprehend the nature and consequences of remaining in a situation that presents an imminent danger to his or her health or safety; (2) The adult is unable to provide for his or her own protection from maltreatment; and (3) The court finds clear and convincing evidence that the adult to be placed is in need of placement as provided in this chapter. Ark.Code Ann. § 9-20-117(c) (Repl.2008). Here, the circuit court made the requisite findings. Thus, the question presented is whether the circuit court’s findings were clearly erroneous. They were not. A review of the hearing before the circuit court reveals the following testimony. Sunny Rutledge, an Adult Protective Services case worker, testified that on February 13, 2008, DHS was contacted and informed by a senior-care facility in Forrest City that Mr. Adams was ready to leave the facility, “and that they didn’t believe that he was able to leave on his own.” Ms. Rutledge stated that while Mr. Adams did not want to be discharged to a nursing home, the facility did not think him able to take care of himself, and, further, he had no family willing to take care of him. Ms. Rutledge testified that prior to that, Mr. Adams had been in a nursing home in Harrisburg, and that, upon leaving against medical advice, Mr. Adams went to Cross County, where he was incarcerated for writing hot checks. She stated that while in jail, Mr. Adams went off all of his medications, and upon being concerned when Mr. Adams’s legs began to turn black, the jail sent Mr. Adams to the senior-care facility. Ms. Rutledge testified that, while at the senior-care facility, Mr. Adams was evaluated by Dr. Jerry Pang. In a letter by Dr. Pang, which was submitted to the circuit court as an exhibit, he stated that [ajfter evaluating Mr. Adams, it is my opinion that Mr. Adams lacks capacity to fully comprehend the consequences of his behavior. Mr. Adams is an insulin dependent diabetic and also has coronary artery disease and hypertension. He requires close supervision to ensure that he takes medications as they are prescribed and that he receives proper nutrition for his diabetes. Furthermore, he lacks the capacity to manage financial matters as has already been demonstrated by his writing the checks with insufficient funds. Ms. Rutledge further testified that Mr. Adams had admitted to having problems with his short-term memory, and that in an evaluation, also submitted to the circuit court, he was diagnosed with dementia. Ms. Rutledge stated that, while in a Manila nursing home, Mr. Adams struck a nurse and was asked to leave. She said that no such problems had occurred at Mr. Adams’s current facility, but that he had called her before the hearing, sounding delusional and stating that he did not want to go to court in Mississippi County because “his ex-wife was having sex with the Judge.” Ms. Rutledge testified that some of the consequences posed to Mr. Adams by not taking his medications as needed were a very high risk of having another stroke and the possibility of losing his legs due to severe complications from his diabetes. Ms. Rutledge recommended that Mr. Adams remain in nursing-home care. She further testified that she did not feel that he was able to protect himself from abuse or neglect; that if he was on his own, he did not have the capacity to understand that he was putting himself in a situation that would be putting him in imminent danger; that she believed that he should remain in his current facility and that it was the least restrictive alternative for him; and that his son and daughter would still be able to visit Mr. Adams at that facility. Ms. Janice Woods, an Adult Protective Services nursing consultant and a registered nurse, testified that she had conducted a two-hour assessment of Mr. Adams’s mental status and performed a mini-mental status examination. She stated that while he was aware of the type of medications that he was taking, she did not think he fully grasped the concept of what would happen if he did not take his medication. Specifically, she stated that upon not taking his medications for two months and being admitted to the hospital, his blood sugar was 264 and a normal value would be anywhere from 80 to 110 depending on the machine that you were using to calibrate it. His urine creatine level was 1.9, which with high blood sugars sometimes you can wind up with renal failure. He had a white count of 11.17 indicating that he had an infectious process going on. And his blood pressure was 173 over 83. He had a three plus pitting edema in his legs. They were very swollen and he also had cellu-litis and was placed on antibiotics for that. She commented that in those circumstances, renal failure, amputations due to the cellulitis, or another stroke due to heart dysrhythmias could result. She further related to the court the following: Anytime he’s been out of the nursing home and even in the nursing home he’s had either legal issues or issues with combative behavior. I believe one of the nursing homes he struck a residen[t] there. At the Manila nursing home he argued with the nurse, according to the records, because he was insistent that he was not taking his furosemide, which is Lasix and when the nurse tried to explain it to him, he argued that he wasn’t taking it and the nurse turned around to leave and he grabbed the nurse in a head-lock and started hitting the nurse in the back of the head multiple times. Finally, she testified that she believed that it was in Mr. Adams’s best interest to remain where he was currently placed, and that based on her evaluations of him, she did not think that he had “the capacity to understand that he would be placed in a situation that might cause eminent danger to himselfi.]” Mr. Adams then testified in his own behalf and disputed the testimony of the prior witnesses. He testified that he did not try to write a check for a house and that he was going to borrow money from “the nursing home,” who “had a plot” for him and “also a monument and it was eleven hundred and something dollars.” He later clarified his statement, based on a certificate from Roller Funeral Home, saying that he believed the funeral home was going to give him money to cover his check. He further admitted that there were pending hot-check charges against him. After reviewing the evidence before the circuit court, we cannot say that the circuit court clearly erred in awarding long-term custody of Mr. Adams to DHS. Accordingly, we affirm the circuit court’s order. We further grant, pursuant to the Anders no-merit procedures adopted in this opinion, counsel’s motion to withdraw. Affirmed; Motion to withdraw granted. . We recently declined to consider whether the no-merit Anders procedures should apply to appeals from civil-commitment orders, finding that the appeal at issue was moot. See Dickinson v. State, 372 Ark. 62, 270 S.W.3d 863 (2008). . The pertinent statute provided: In all proceedings to remove custody from a parent or guardian or to terminate parental rights, the parent or guardian shall be advised in the dependency-neglect petition or the ex parte emergency order and the first appearance before the court of the right to be represented by counsel at all stages of the court proceedings and the right to be appointed counsel if indigent. Ark.Code Ann. § 9-27-316(h)(1) (Supp.2003) (emphasis added). . There is no question that an adult subject to the Act can appeal the order of the probate court, as Ark.Code Ann. § 28-1-116 (Repl. 2004) specifically permits an appeal of probate orders, except an order removing a fiduciary for failure to give a new bond or to render an account as required by the court or an order appointing a special administrator. . As already noted, in compliance with the Anders no-merit procedures, Mr. Adams was notified of his right to file points for reversal. Mr. Adams did file some documents for our review, but no actual points for reversal were filed. . The hot-check charges stemmed from Mr. Adams's attempts to purchase both a truck and a house, using checks from accounts that had been closed for approximately two years.

Ed. F. McFaddin, Justice. In this suit on a promissory note, the primary question is whether the Chancery Court correctly evaluated the evidence on the issue of payment; and the secondary question is the rate of interest. On May 23, 1947, Miss Jean Mullen, for value received, executed to James Akers (plaintiff below and appellee here) her promissory note for $2,000, payable $350 on'May 27th, and $200 on the 27th day of every month thereafter until paid in full; and as á part of the transaction, and to secure the payment of the note, Jean Mullen executed to James Akers a chattel mortgage on all the fixtures and other equipment of the Monarch Cafe, then owned and operated by her in Springdale, Arkansas. She made the payments due in May and June, and then sold the cafe to Mrs. Edith Tisdale (defendant below and appellant here), who assumed the balance due on the Akers note, and made one payment of $200. On January 30, 1948, Akers filed this suit, seeking judgment for the alleged balance of $1,250 due on the note, and for foreclosure of the chattel mortgage. Mrs. Tisdale resisted the suit, and claimed that she had paid the note in full. After extended hearings,’the Chancery Court rendered judgment for Akers for the $1,250, together with interest at 8% thereon, and for foreclosure of the chattel mortgage. To reverse that decree, Mrs. Tisdale brings this appeal in which she argues (1) the issue of payment and (2) the rate of interest. We consider these points. I. Payment. The burden of proving payment is on the person alleging it. To meet that burden, Mrs. Tisdale — among other things — not only (a) exhibited the Mullen note in her possession (which makes a prima facie case for payment), but also (b) testified that sbe personally paid Akers by delivering to Mm one $1,000 bill, two $100 bills and one $50 bill, which currency she testified she had in her safe deposit box in a bank in Fayetteville. To rebut the presumption of payment, and to prove that the note had not been paid, Akers and his agent, Mitchell, testified: that Mrs. Tisdale wanted to make a new note to Akers for $1,250 payable at $100 per month, instead of $200 per month; that Akers (whose place of business was in Harrison) prepared the new note and sent it along with the old note to Mitchell in Springdale, with instructions to deliver the old note to Mrs, Tisdale when she signed the new note; that Mrs. Tisdale insisted on seeing the old note; that Mitchell,' in violation of Akers’ instructions, left the old note with Mrs. Tisdale without getting the new note; that Mrs. Tisdale thereafter refused to return either note; and that she never paid the balance of $1,250 due on the old note. Each side offered supporting witnesses. The testimoney is-in irreconcilable conflict; and it would serve no useful purpose to summarize the testimony of each witness. After reviewing the entire record, we cannot reach the conclusion that the finding of the Chancellor is against the preponderance of the evidence. All of the witnesses testified in open court, with the exception of Jean Mullen, who testified by deposition. What we said in Murphy v. Osborn, 211 Ark. 319, 200 S. W. 2d 517 is especially applicable to this case: “The chancellor observed the demeanor on the witness stand, the inflection in the voice and the hesitancy or rapidity of the words flowing from the mouth of the witness. The chancellor thus had an opportunity to see more than the mere words on the printed page which, alone, come to this court. With the testimony in this case in hopeless conflict, we cannot say that the Chancery Court decided against the preponderance of the evidence. ’ ’ We affirm that portion of the decree relating to the issue of payment. II. The Rate of Interest. The note executed by Jean Mullen to Akers said, regarding interest: “With interest at..............................percent, per annum from date until paid”; and the mortgage also failed to state the interest rate. Notwithstanding the fact that the rate of interest was left blank in the note, Akers testified that the contract rate of interest was 8%; and the court allowed recovery at that rate. We hold that the legal rate of interest is all that can be recovered in this case. The cases as to the authority to fill in the blanks in a negotiable instrument are not applicable here, because the blank was never completed in the case at bar. This is a case in which oral testimony was relied on to prove a contract rate of interest to have been more than 6%; and we have many times held that an agreement to pay interest at a rate exceeding 6% will not be enforced unless such agreement be in writing. It follows therefore that the interest must be computed at 6% from the date of the note. Conclusion: The decree of the chancery court is affirmed in all things, except as to the rate of interest. The cause is remanded for further proceedings, and all costs of this appeal are taxed against the appellant. Smith v. Taylor, 144 Ark. 569, 222 S. W. 1062; Blass v. Lawhorn, 64 Ark. 466, 42 S. W. 1068; and see cases collected in West’s Arkansas Digest, “Bills and Notes”, § 499, and “Payment”, § 65(6). Rose v. Rose, 184 Ark. 430, 42 S. W. 2d 567; Continental Gin Co. v. Benton, 104 Ark. 367, 149 S. W. 528; Hollenberg v. Lane, 47 Ark. 394, 1 S. W. 687. For the provisions of the Negotiable Instruments Law, see § 68-114 Ark. Stats, of 1947 and § 10172 Pope’s Digest. See, also, Brannan’s Negotiable Instruments Law, 4th Ed., § 14. See Johnson v. Hull, 57 Ark. 550, 22 S. W. 176; Temple v. Hamilton, 178 Ark. 355, 11 S. W. 2d 465; Hamner v. Starling, 185 Ark. 948, 50 S. W. 2d 615.

Minor W. Millwee, Justice. Appellant, Freddie James, sued appellee, Claude James, for divorce alleging as grounds therefor general indignities and cruelty. In' his answer and cross-complaint appellee denied the allegations of the complaint and charged that appellant had been living in adultery since December 25, 1947. Appellee further alleged in his- cross-complaint that when the parties commenced living together in Jufy, 1934, appellant had contracted to purchase Lot 11, Block 65 in the City of West Helena, Arkansas; that he paid a balance still due on the purchase price of the vacant lot and constructed a dwelling house thereon at a cost to him of $1,200 with the understanding and agreement that they would hold said lot as their joint property; that the parties still occupied the property as a homestead although they lived separate and apart; and that after the parties married in 1940, they purchased adjoining Lot 12 as an estate by the entirety. The prayer of appellee’s cross-complaint was that he be granted a divorce and adjudged to be the owner of a one-half interest in Lot 12 and that a lien on Lot 11 be adjudged in his favor to the extent of the monies expended by him in the construction of the house; and that said property be ordered sold and the proceeds divided between the parties. Appellant filed an answer to the cross-complaint in which she denied that appellee had contributed anything toward the purchase price of the lot or the cost of the residence, except a small amount of labor for which he had been duly compensated by occupying the home for several years. The decree awarded appellant a divorce on the grounds alleged in her complaint and dismissed appellee’s cross-complaint for divorce. The court further found that the balance of the. purchase price and the construction of the residence on Lot. 11 had been paid for by the joint efforts of the parties under an agreement that title would be placed in them jointly; that appellant failed and refused to carry out the agreement and appellee should be vested with one-half interest in said lot; and that said property should be sold and the net proceeds of the sale divided equally between the parties. Appellant has appealed from that portion of the decree which vests title in appellee to a one-half interest in Lot 11 and orders its sale. Appellee has cross-appealed from that part of the decree which granted a divorce to appellant and denied appellee’s cross-complaint for divorce on the ground of adultery. We first consider the cross-appeal of appellee. The evidence discloses that when the parties commenced living together in July, 1934, appellant had not obtained a divorce from a former husband. Appellant secured the divorce in 1940 and the parties were then married. They continued to live as husband and wife until December 25, 1947, when their marital relations ceased and appellant and her mother have since resided in one part of the house and appellee in another. Appellee testified that he saw his wife visit the home of Anderson Brown on the night of December 25, 1947, under circumstances tending to substantiate his charge of adultery. Appellant vigorously denied this testimony and a woman who subsequently married Brown testified that she, and not the appellant, was at Brown’s home on the night in question; and that she so informed appellee the next day when he came to her home and told witness that lie and appellant had separated over the incident. The evidence is also insufficient to show that appellant committed adultery with one Moses Riley. Appellant testified that she was doing laundry work for Riley and her visits to his home were explained as being for the purpose of picking up the clothes and collecting the money for her services. A witness for appellee stated he “just happened to be passing by” when he saw appellant in Riley’s house about 9:00 p. m. and saw her leave the house about five o’clock the next morning. Appellant testified that a few months prior to December, 1947, appellee began staying away from home at nights and to drink to excess; that he cursed and abused her and threatened her life with a pistol. The testimony of appellant was corroborated by that of her mother who had resided with the parties since 1935. She testified that she was fond of her son-in-law and that the parties seemed very happy until appellee started staying out at nights; that appellee’s representation to appellant that he was working on these occasions was found to be untrue; that appellee would chase appellant with a pistol and witness advised her daughter to stay away from home “to stop him from fussing and worrying my heart to death.” Witness had been nearly blind for two years and stated that appellant had tried hard to please her husband, but they had reached the point where neither could “stand each other.” There was other testimony that in October, 1947, appellee spent evenings in the home and company of a certain woman. Appellee did not deny these visits, but stated that he merely procured whiskey for his friend and a woman who lived with her, and that nothing improper took place. While the evidence discloses that neither of the parties is without fault, appellee was the first and chief offender in their domestic strife. His accusations of infidelity against appellant appear to have been unjus tified and Ills habitual neglect and cruel treatment of her while devoting his time and attention to other women afford sufficient evidence to support that part of the decree which granted her a divorce. On the direct appeal appellant insists that the testimony is insufficient to sustain the chancellor’s finding that appellee had become vested with a one-half interest in Lot 11, which was ordered sold and the proceeds of the sale divided equally between the parties. On this issue appellee testified that appellant still owed a balance of about $60 on the purchase price of the lot in July, 1934, when the parties commenced living together. He stated that he paid this balance under an oral agreement that appellant would have the property deeded to them jointly when she obtained her divorce and the parties were legally married. A home was constructed on the lot through the joint efforts and funds of appellee, appellant and her mother together with the assistance of neighbors. Construction of the house was begun in 1938 and completed in the latter part of 1940. Appellant denied that appellee paid any of the purchase price of the lot and her testimony is supported by her deed to the property which was executed March 16, 1934, and recites a consideration of $40 fully paid in cash. She also denied the agreement to transfer the title to 'the parties jointly. It was also shown that the mother of appellant furnished funds which she received from her deceased husband and also money earned from chopping and picking cotton as her contribution toward the erection of the house. Appellee and appellant were both regularly employed and each contributed money and labor to the project. In support of the'trial court’s finding appellee insists that Act 340 of 1947 authorized the dissolution of the estate by the entirety which he asserts was created by the oral agreement between the parties. Since we have concluded that the evidence is insufficient to support the court’s finding that appellee became vested with title to a one-half interest in Lot 11, we find it unnecessary to pass on the applicability of said act to an en tirety estate alleged to have been created prior to passage of the statute. In the recent case of Simpson v. Thayer, 214 Ark. 566, 217 S. W. 2d 354, we reaffirmed the rule announced in Harbour v. Harbour, 103 Ark. 273, 146 S. W. 867, where the court said: “It has been frequently held that where the husband purchased and paid for lands, taking the deeds therefor in the name of his wife, the presumption is that his money, thus used, was intended as a gift to her, and the law does not imply a promise or obligation on her part to refund the money or to divide the property purchased or to hold the same in trust for him. His conduct is referable to his affection for her and his duty to protect her against want, and it will be presumed to be a gift and, so far as he is concerned, becomes absolutely her property. Wood v. Wood, 100 Ark. 370, 140 S. W. 275; Womack v. Womack, 73 Ark. 281, 83 S. W. 937, 1136; O’Hair v. O’Hair, 76 Ark. 389, 88 S. W. 945." The proof to overcome this presumption of gift should be clear and convincing. Simpson v. Thayer, supra. It is also well settled that in order to constitute a resulting trust by reason of the payment of purchase money, the payment must be made at the same time or previous to the purchase and must be a part of the transaction. The oral evidence relied on to establish such trust must be full, free and convincing. Brady v. Timms, 162 Ark. 247, 258 S. W. 338; and McKindley v. Humphrey, 204 Ark. 333, 161 S. W. 2d 962. The husband’s subsequent improvements, payment of taxes and insurance are all referable to his “natural desire to manage and care for his wife’s property” in the absence of clear and convincing evidence to the contrary. Parks v. Parks, 207 Ark. 720, 182 S. W. 2d 470. Appellee insists that his contention as to the agreement is supported by the fact that title to Lot 12 was taken jointly after marriage of the parties and construction of the house on Lot 11. There is no evidence of any specific demand by appellee that the alleged 1934 oral agreement be carried out when they purchased Lot 22 or at any other time. Appellee gave the following testimony as to the alleged agreement: “A. The agreement was when we got the lot paid for, she had to get a divorce to marry me and said she would change-it and have it in our names . . . Q. Now then did she carry out that agreement"? A. She didn’t change the deed.” Appellant denied the agreement and the evidence refutes appellee’s statement that the purchase price had not been paid when they commenced living together. We conclude that the evidence was insufficient to establish the alleged agreement and that the trial court, therefore, erred in vesting title to a one-half interest in Lot 11 in appellee and ordering its sale and division of the proceeds between the parties. The decree is accordingly reversed on direct appeal and the cause remanded with directions to dismiss the cross-complaint of appellee in so far as it affects the title to said lot 11. In all other respects the decree is affirmed.

Ed. P. McFaddin, Justice. This is an action brought by the owner to recover damages alleged to have been caused to his airplane by the negligence of the bailee. Stover (plaintiff below and appellee here) was engaged in renting airplanes to licensed pilots. Hall (defendant below and appellant here) was a licensed pilot, and rented an airplane from Stover and flew it for about an hour, and damaged the plane in landing it. Stover claimed that Hall was negligent in landing the plane, in that he landed (1) cross wind, (2) cross traffic and (3) in a forward slip. Hall claimed that he was an experienced pilot, and that the damage to the plane was through no fault of his. The case was tried to a jury, and resulted in a verdict for $750 in favor of Stover. Hall has appealed, and urges here the two points now to be discussed. I. Sufficiency of the Evidence as to Hall’s Negligence. The parties concede that Hall was a bailee for hire, and that the rights and liabilities of the parties are to be determined by the ordinary rules in such bailment eases. Thus, the burden was on Stover to prove that Hall’s negligence was the cause of the damage to the plane. There was sufficient competent evidence from which the jury could have found — and its verdict reflects that it did find — that the airplane was duly inspected and tested before the trial flight; that Stover had an experienced pilot take Hall on a trial flight; that Hall, having owned and operated a similar airplane, accepted the rented plane as in good condition; that Hall flew for nearly an hour; and that the damage to the plane occurred through Hall’s negligence in landing it. On the issue of Hall’s negligence, the testimony was directed (a) as to how Hall landed the plane; and (b) as to whether such landing was negligence. We discuss some of.this testimony. (a) On the first point, William Benson testified that he was flying over the field and observed Hall’s landing. Using a small plane to demonstrate before the jury, Benson testified of Hall’s landing.- “Q. Assuming this is the runway which he was coming in on, explain and show to the jury what you mean by him going into a slip, and how he landed. A. He slipped to the right and the plane was in this position, and he came in and struck the ground this way, which would make it do that. He was coining in a slip instead of straight ahead. He slipped the plane, and kept it in that position until he- hit the ground. Q. Then what happened? A. He bounced then on the ground until it came to a stand-still, and turned after it stopped — not after it stopped: that was the way it finally came to a standstill. Q. Were you flying above him at this time when you were observing him A. Yes. I was six hundred feet high in the traffic pattern.. Q. About six hundred feet high? A. Yes. Q. Did he land in the proper runway: that is, the line where the lane of traffic was going? A. No, he was landing on the cross-runway. Q. From what direction was the wind coming at that time? A. Approximately northwest. Q. Then the landing should have been in the southeast-northwest runway? A. That is right. Q. And what runway did he land on? A. He landed northeast. Q. Northeast-southwest? A. Yes. Headed northeast.” Again, Benson testified: “Q. Can you tell the jury just what happened when he approached this northeast-southwest runway? A. It looked like he was too high to make the landing, so as he approached the field he put the plane in a slip — that kills your speed and you lose altitude — to bring him down closer to the field so he would be able to land down on this strip. Q. 'Did he ever straighten the plane out of the slip before his wheels touched the runway? A. Not that I could tell at all. It looked as though the plane remained in the slip until it touched the ground. Q. I believe you stated the plane kept bumping sideways. Yes. Q. Did you observe that? A. Yes, it bounced along on the runway, or along on the ground, until it came to a .stop,” (b) On the second point — i. e., as to whether such lauding was negligence — Paul Angelí, who qualified as an expert, testified: “Q. Now, Mr. Angelí, you heard the testimony of Mr. Benson as to how the defendant landed the plane on that particular day, did you not? A. Yes. Q. I will ask you, also, would a prudent pilot, who has had experience in flying and who is licensed to fly a plane, in taking off and landing, continue to land his plane on into the runway in a forward slip? A. The answer to that will be, definitely no. Q. What would happen if he continued on into the runway? A. He would hit the runway in a side motion. His wheels would be pointed in one direction, his flight path would be in another direction, and would cause what is commonly known as a ground loop, unless otherwise checked. ’ ’ Hall insisted that the witness Benson could not possibly have seen the occurrences as to which he testified. That, of course, was a matter for the jury to decide in passing on Benson’s credibilit}L Hall also insisted that even though the witness Angelí qualified as an expert, nevertheless, he should not have been permitted to testify as he did. But whether the described operations were ordinarily prudent was a question for the jury; and the Court' — without objection — instructed the jury: “You are instructed that negligence is the doing of something that a man of ordinary prudence would not do under the same or similar circumstances, or the failure to do something that a man of ordinary prudence would have done under the same or similar circumstances.” It would unduly prolong this opinion to summarize the testimony of all the witnesses, and to explain the terminology used by them. The fact remains that there was sufficient competent evidence to take the ease to the jury on the issue of Hall’s negligence, and under our judicial system — in a case such as this- — it is for the jury to determine the factual questions. II. Instructions. The trial Court gave six instructions on its own motion, and four others on motion of the defendant; but refused to give eight other instructions requested by the defendant. The appellant has set out in his abstract the complete and exact wording of only one instruction that was given, i. e., the Court’s instruction No. 3. All other given instructions are merely summarized. The instruction No. 3 is not inherently erroneous. On page 146 of C. R. Stevenson’s 1948 revision of Arkansas Supreme Court Procedure, the following appears as a fair summary of our holdings on the matter of setting out the instructions in the abstract: “All instructions must be set out in the abstract and when not set out, errors will not be considered unless the instructions are so inherently defective that they could not be cured by others. Morris v. Raymond, 132 Ark. 449, 201 S. W. 116; Harrelson v. Eureka Springs Elec. Co., 121 Ark. 269, 181 S. W. 922; Barnett Bros. v. Western Assurance Co., 126 Ark. 562, 191 S. W. 226; Forrest City Box Co. v. Latham, 144 Ark. 451, 222 S. W. 706; Crosby v. Lucas, 180 Ark. 277, 20 S. W. 2d 861; Commercial Credit Co. v. Childs, 199 Ark. 1073, 137 S. W. 2d 260, 128 A. L. R. 726; Peoples Loan & Inv. Co., v. Whittle, 205 Ark. 35, 166 S. W. 2d 390; Baker v. Boone, 206 Ark. 823, 177 S. W. 2d 756; Sloan v. Ayres, 209 Ark. 119, 189 S. W. 2d 653. ‘ ‘ Error of the court in refusing an instruction asked will not be considered where appellants abstract fails to set out the other instructions given by the court. St. L. I. M. & S. R. Co. v. Boyles, 78 Ark. 374, 95 S. W. 783; Keller v. Sawyer, 104 Ark. 375, 149 S. W. 334; DeQueen & East. Ry. Co. v. Thornton, 98 Ark. 61, 135 S. W. 822; Met. Life Ins. Co. v. Shane, 98 Ark. 132, 135 S. W. 836.” Since the only given instruction set out in the abstract (that is, court’s instruction No. 3) is not inherently erroneous, and since all the other instructions as given, are not set out in the abstract, we must consider that the appellant has waived his argument as to the instructions. Affirmed. In 6 Am. Juris. 25, in discussing bailment of aircraft, this appears: “The general rules of bailment apply to aircraft.” James v. Orrell, 68 Ark. 284, 57 S. W. 931, 82 A. S. R. 293; Bertig v. Norman, 101 Ark. 75, 141 S. W. 201, Ann. Cas. 1913D, 943; Scott v. Columbia Compress Co., 157 Ark. 521, 249 S. W. 13.

Griffin Smith, Chief Justice. In ■ his complaint Horace C. Roark alleged that unless an equitable lien should be declared in his favor on designated property in Fort Smith, Lewis W. and Georgia Schneider as owners would be unjustly enriched by money the plaintiff spent on improvements. The Chancellor found that the claim was without equity. In November 1947 Roark married Alice Puckett, a widow. Mrs. Puckett was then living in a home owned by the Schneiders, who resided in Oklahoma at Muskogee. Mrs. Schneider is Mrs. Puckett’s daughter. According to the plaintiff’s testimony, he expected the bride to go with him to a home he owned three miles from Van Burén, in Crawford County, where he lived with his mother. This did not appeal to Mrs. Roark, who assured him she owned a house in Fort Smith, and that his mother would be welcome as a member of the family group. Without making any investigation regarding title, Roark began a reconditioning program, and says he spent $2,910.48 in betterments. There is testimony that on several occasions Schneider and his wife went to Fort Smith, and knew the improvements were being made. There is a sharp conflict between Roark and the Schneiders regarding what was said. Lewis Schneider testified he told Roark that he and Georgia bought the place as a home for Mrs. Puckett. Roark had just said he intended to install a septic tank, and he (Schneider) made the comment, “You can put the sink in the front room if that is where [Mrs. Puckett] wants it”. While Schneider did not contend that he told Roark in so many words title to the property was not in Mrs. Puckett, “I took it for granted that he knew when he asked me about making changes. I told him it was all right with me, because I bought the place as a home for her Mrs. Puckett testified that before any improvements were made she told Roark he would have to make other arrangements to care for his mother, and Roark said, in effect, that it would be all right, • and he would go ahead with the work; whereupon the mother was sent to Texas to live with a sister. There appears to have been a period of matrimonial transition, for Roark moved back to his Crawford County home and filed suit for divorce. The cause was dismissed when the Chancellor found the evidence insufficient. Within a short time Mrs. Puckett sued for divorce. A paragraph in her complaint reads: “Plaintiff further alleges that there are no property rights outstanding between the respective parties; that she has a home and means of separate maintenance in her own right, and is asking no support from said defendant”. In the decree (Roark having entered his appearance) the Court found that there were no property rights to be settled. Roark had borrowed $150 from Lewis Schneider for use in paying construction costs, promising repayment when his crop of strawberries was marketed. Before domestic difficulties occurred, Roark had caused his Crawford County property to become an estate by the entirety. Roark says that Mrs. Puckett had borrowed the item of $150 from her son-in-law, but he admitted that “we” used the proceeds on the Fort Smith house. At his wife’s suggestion he paid $150 to her, the consideration being that Mrs. Puckett would sign papers releasing the Crawford County property. Roark further testified that when he entered an appearance in the divorce suit, he did not know the Schneiders claimed an interest in the Fort Smith property. The Chancellor thought a preponderance of the evidence did not show that either of the Schneiders acted fraudulently. We agree that Roark’s own carelessness caused his trouble. The slightest investigation would have put him on notice that Mrs. Puckett did not have title. Perhaps he was overconfident in assuming that tranquillity would continue. Be this as it may, he was not justified in thinking that anything the Schneiders did or said was an implied promise to protect him other than as the husband of Mrs. Schneider’s mother while the two were in harmonious occupancy of the home. We are also of the opinion that a duty rested upon Roark, when the divorce suit was filed, to assert his prop erty rights; for, as he testified, he did'not then know that the Schneiders claimed the residence. Affirmed. Mrs. Puckett, after marrying and divorcing Roark, married a man named Kersh, and bore that name when this suit was tried.

Griffin Smith, Chief Justice. Determination of issues raised by this appeal centers on whether annexation proceedings involving school districts embracing territory in more than one county are governed by Act 327 of 1947 or Act 387 of 1939. On January 22, 1949, an election was held in three school districts in Independence County, including District 48, to determine whether they should consolidate into a single district or join District 33 in Independence County. The results, on January 25, favored consolidation. Concurrently a petition executed by a majority of the qualified electors of District 48 was filed with the Independence County Board of Education seeking annexation of the northern part of District 48 to Strawberry District 22, Lawrence County, which was approved by the Independence County Board and order entered. Strawberry District 22 is located principally in Lawrence County, though a portion extends into Independence County. On February 12, the Lawrence County Board passed a motion approving the action of the Independence County Board. Written Consent of the directors of each district was filed with the annexation petition. The directors of Independence District 6, the newly created district from which a portion of District 48 was ordered detached, after an unsuccessful attempt to appeal to circuit. court, filed a petition for certiorari with the circuit court alleging that the annexation order of the Independence County Board was void because notice was not properly given and because the former directors of Districts 48 were without authority to consent to annexation. The circuit court granted certiorari and quashed the order of annexation, finding that Act 327 of 1947 was applicable and that the jurisdictional requirement of notice had not been.complied with. Appellants, for reversal, urge that (1) appellees were not proper parties to attack the order because they were not parties to the record at the time the order was entered, (2) Act 327 of 1947 does not apply to changes in boundaries between existing districts, hut only to formation or dissolution of districts involving territory in more than one county. Appellees, as directors of the district from which territory had been detached by the annexation order, were proper parties to seek redress. Appellants’ argument that appellees are simply directors of an adjacent School district which was not in existence at the time the order of annexation was entered does not take into consideration that the order is other than valid. If it were void, a duty rested on appellees to supervise the territory the order sought to remove from their jurisdiction, and they could question the legality of any order purporting to deprive them of property ostensibly subject to their supervision. The applicable statute is Act 327 of 1947, rather than Act 387 of 1939. While neither specifically covers the present situation, the ’47 Act- concerns districts in two or more counties, while the ’39 Act fails to take into consideration anything hut a change of boundary. An express term in Act 327 of 1947 is “changes of boundaries of school districts in such situations.” While it may he argued that this phrase is restricted to new-district cases, the subject matter of the 1947 Act clearly involves multi-county districts, while Act 387 of 1939 does not mention them. The ’47 Act sets up machinery for action by more than one county board, while the ’39 Act envisions action by only one. The General Assembly must have recognized the fact that one county hoard could not appropriately administer annexation of territory in more than one county, and since no provision is made in the ’39 Act for joint action in the sense that it is permitted by the ’47 Act, the' ’47 Act can be better applied where multi-county territory is involved. It is stipulated that Act 327 of 1947 was not followed by appellants, though it is argued that only substantial compliance was necessary and that such compliance was shown. In view of the fact that appellants admittedly were proceeding under Act 387 of 1939, there does not appear to be sound basis for this argument. Nor can appellees be held to have waived objection by attending the January 25 meeting of the Independence County Board when the annexation order was entered. Notice is not the only requirement of Act 327 of 1947, and whether other provisions could be waived is a matter not necessary to now decide. Affirmed.

Grieein Smith, Chief Justice. Joseph Leo, Jr., left Gloucester, Mass., in 1948, arriving in Fort Smith July 4th. His suit for divorce was filed 62 days later, alleging cruelty, and separation for three jmars. The complaint was dismissed December 21 because the plaintiff was not a bona fide resident of Arkansas, either when the suit was brought or when the decree was rendered. An order was entered directing Joseph to pay his wife, Annie Belle, $50 per month, less conditional credits. The appeal questions correctness of each order. The Chancellor believed that reasonable inferences arising from the evidence disclosed an intent by the plaintiff to utilize the State’s quick-divorce machinery and then return East. It is urged, however, that there was no testimony affirmatively disclosing such a purpose. In this respect the appellant is correct. However, intent, purpose, or design may be reflected by conduct more convincing than the spoken word. Before determining that the plaintiff was not a resident of Arkansas, the Chancellor considered oral testimony, and a number of depositions. On the question of cruel treatment the pattern characteristic of such cases was followed — one side affirming, the other denying, and making counter accusations. Here is an example: Witness for Joseph: “Mrs. Leo was cruel. She called him ‘fool’, ‘crazy’, a ‘jerk’, a ‘dope’, and ‘one damned fool’. She swore at and cursed him, constantly belittled him, and as a result he suffered a nervous breakdown in 1943, for which he is still under medical treatment”. Witness for. Annie Belle: “They used to visit me about once a week, both before and after they were married, and appeared to be sweethearts, and fondly attached to each other until Joseph ran away, leaving her ‘flat’ in 1945”. Other testimony was equally contradictory. A plaintiff’s veracity may be judged by depositions procured and used on his behalf, as well as by testimony given in open Court. In determining what credit should be given Joseph’s claim that he came to Arkansas on a doctor’s order, and intended to make Ft. Smith his home, the Chancellor weighed all of the testimony and reached an appraisement balance against the plaintiff. Joseph, being before the Court, and the Chancellor having found from what he said, the way he said it, and from the record as a whole, that Joseph did not intend to become a resident, the burden then passed to appellant to show, on appeal, that a preponderance of the evidence established a result contrary to the decree; and this he has not done. Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585. Appellant’s final contention is that if the trial Court lacked jurisdiction to grant the divorce, it was without power to award maintenance. The contrary rule has been followed. Mohr v. Mohr, 206 Ark. 1094, 178 S. W. 2d 502. Affirmed. Mr. Justice Holt did not participate in the consideration or determination of this case. A Massachusetts physician testified by deposition that Joseph Leo suffered from catarrh and earache, and that a warmer climate would be beneficial; hence, Arkansas was suggested.

Leflar, J. The City Council of Clarksville on May 31, 1949, adopted an ordinance authorizing the issuance, subject to favorable vote at a special municipal election, of $100,000 in bonds, the proceeds of which were to be used to contribute “to the cost of a factory building for the purpose of securing a new manufacturing enterprise for the City.” The bonds were “to mature serially at the rate of $20,000 per year” for five years, and were “to be payable solely from the net revenues . . . derived by the City from the ownership and operation of its electric light and power plant.” This ordinance was adopted under authority of the Arkansas General Assembly’s Act 463 of 1949. Act 463, after defining the term “municipality” to mean “a city of the second class,” provided that any such municipality should have the power to issue bonds for any public purpose, with the following proviso: “Section 5. Bonds issued under the provisions of this Act shall be payable solely from the net revenues derived by the municipality from the operation of one or more public utility plants, which net revenues may be pledged for the payment of these bonds, and the revenue bonds shall not in any event constitute an indebtedness of such municipality within the meaning of the constitutional provisions or limitations, and it shall be plainly stated on the face of each bond that the same has been issued under the provisions of this Act and that it does not constitute an indebtedness of such municipality within any constitutional or statutory limitation. ’ ’ A complaint in equity brought by Williams as a citizen and taxpayer of Clarksville against the mayor, recorder, and aldermen of the City sets up the facts just indicated, asserts that the $100,000 amount of the proposed bond issue is greater than the total revenues of the City of Clarksville from all sources for the current fiscal year, and alleges the unconstitutionality of the ordinance and of Act 463. The defendants filed a general demurrer. This demurrer was sustained by the Chancellor. Plaintiff appeals. The relevant constitutional provisions are. portions of Amendment 10 and Amendment 13 of the Constitution of Arkansas. Amendment 10 provides that: “The fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, . . . nor shall any city council, board of aider-men, board of public affairs, or commissioners of any city of the first or second class, or any incorporated town, enter into any contract or make any allowance for any purpose whatsoever or authorize the issuance of any contract or warrants, scrip, or other evidences of indebtedness in excess of the revenue for such city or town for the current fiscal year; nor shall any mayor, city clerk or recorder, or any other officer or officers, however designated, of any city of the first or second class or incorporated town sign or issue any scrip, warrant or other certificate of indebtedness in excess of the revenue from all sources for the current fiscal year.” The Amendment contains a similar limitation upon county indebtedness. Amendment 13, among other things, limits the purposes for which cities of the first and second class may incur bonded indebtedness. The permissible purposes are set out in the third paragraph of the Amendment, and do not include the erection of factory buildings designed to aid in securing new manufacturing enterprises for a city, nor any equivalent purpose. Bonds for the permitted purposes may be issued only after the bond issue is approved by the electors at a municipal election. The seventh paragraph adds that “No municipality shall ever grant financial aid toward the construction of railroads or other private enterprises operated by any person, firm or corporation ...” In McCutchen v. Siloam Springs, 185 Ark. 846, 49 S.W. 2d 1037, this Court held that a city might, without violation of Amendment 10, incur indebtedness greater than its annual revenues for the purchase of new facilities for its municipal water, light and power plant, where the contract of indebtedness provided that the city was not obligated to pay the debt out of any fund except the net earnings from the plant. The Court said: “The consideration for this contract or the purchase price must and can only be paid under its terms as maintenance charges out of the gross receipts derived from the operation of the system after operating expenses have been paid, and not out of funds belonging to the city; hence the amendment referred to is not applicable to the instant contract, and not inhibited by it . . .” The case also held that Amendment 13 was not violated. McCutchen v. Siloam Springs has been followed in several subsequent decisions, all holding that Amendment 10 does not prohibit the incurring of a debt larger than the current annual revenues of a municipality if the debt is secured and payable solely out of income or assets of the special and separable activity for which the debt is incurred. In such situations the indebtedness is not deemed to be that of the city within the sense of Amendment 10. Jernigan v. Harris, 187 Ark. 705, 62 S.W. 2d 5 (waterworks and sewage systems combined); McGehee v. Williams, 191 Ark. 643, 87 S.W. 2d 46 (waterworks distribution system). And see Mississippi Valley Power Co. v. Board of Improvement, 185 Ark. 76, 46 S.W. 2d 32. Amendment 13 has received a similar interpretation. In Snodgrass v. Pocahontas, 189 Ark. 819, 75 S.W. 2d 223, one question was whether the city could lawfully issue bonds for the improvement of its waterworks system, the bonds to be payable altogether from waterworks revenues, without first bolding the municipal election prescribed by Amendment 13. This Court held that the election was unnecessary, saying: “It was not the intention to prohibit cities and towns from making improvements and pledging the revenue from the improvements so made alone to the payment of the indebtedness. . . . where the debt is to be paid out of the receipts derived from the operation of the system, and not out of funds belonging to the city, the indebtedness is valid and not prohibited by Amendment 13.” In the cases so far mentioned, the indebtedness was to be paid from the proceeds of the identical activity for which the indebtedness was incurred, and that fact was relied upon by this Court in each case in sustaining the transaction. In two other cases in Arkansas the incurring of indebtedness has been sustained where the debt was to be paid from the income of a municipal activity different from the one for which the expenditure was to be made. The first of these two cases is Johnson v. Dermott, 189 Ark. 830, 75 S.W. 2d 243, 103 A.L.R. 581. The city of Dermott, contracted to pledge the revenues of the municipal waterworks system to secure a loan from the proceeds of which it was proposed to construct a city hospital. It was not shown that the amount of the loan was in excess of the city’s annual revenues, and it was clear that hospital construction was one of the purposes for which issuance of bonds was permissible under Amendment 13. In sustaining the hospital bond issue this Court said: “We conclude, therefore, that it is not beyond the power of the city to enter into a contract to erect a hospital and to segregate the revenues arising from the water and light systems and to pledge these excess revenues £or that purpose. But this power may not be exercised in violation of Amendment No. 10 to the Constitution. Any contract which the city makes in regard to uncollected revenues from any source must be construed with reference to this amendment. Parties cannot, by pleadings or stipulations of any kind, abrogate this amendment which will be read into any contract which the city may make. This amendment provides that the fiscal affairs of counties, cities and incorporated towns shall be conducted on a sound financial basis, and that no allowance shall be made ‘for any purpose whatsoever in excess of the revenues from all sources for the fiscal year in which said contract or allowance is made.’ Beyond this inhibition there is a lack of power to contract.” The other case, is City of Harrison v. Braswell, 209 Ark. 1094, 194 S.W. 2d 12, 165 A.L.R. 845. It involved a city ordinance authorizing issuance of bonds for improvement of the city’s water and sewer systems. Though the two systems were of course closely related they were technically separate, and the bonds were to be separate for each. The bonds of each were primarily payable from revenues derived from its own system, but in addition the ordinance provided that any surplus in one system might be applied to retirement of the bonds of the other. The validity of this plan was upheld. A careful reading of the record filed in City of Harrison v. Braswell, as well as of the opinion therein, reveals no definite assertion that the amount of the bond issue was greater than the total revenues of the city for the current year, therefore it may be assumed that the facts involved no violation of the portion of Amendment 10 quoted above. Besides, the maintenance of water and sewer systems constitutes so nearly one operation, so much of an inter-related activity (as contrasted with the light and power plant and the unrelated erection of a factory building proposed in the present case) that it would not be wholly unreasonable to regard them as a single activity within the constitutional concepts developed in Arkansas under Amendments 10 and 13. It is apparent from the preceding analysis of our earlier cases that we are asked in this case to go further than this Court has yet been willing to go. We are asked to uphold a municipal bond issue for a purpose not authorized by Amendment 13, in an amount above the limit set by Amendment 10, to be repaid from the funds of a municipal activity other than that for which the expenditure is to be made. No municipal bond issue heretofore approved by this Court has- involved that combination or one like it. A comparable situation had developed when the case of Luter v. Pulaski County Hospital Assn., 182 Ark. 1099, 34 S.W. 2d 770, came before the Court. The case involved a debt of $600,000, a sum larger than a single year’s revenue of Pulaski County, to be undertaken by the County for the construction of a new hospital. The transaction was held to be unconstitutional, under the portion of Amendment 10 which sets up the same limits on indebtedness for counties as apply in the present case to cities. The Court' pointed out that in earlier decisions it had been constrained, in view of the expensive and essential character of courthouses and jails, to permit counties to go in debt for them beyond the limits prescribed by Amendment 10, but that Amendment 17 had in 1929 eliminated that exception to Amendment 10, and no further exceptions should be engrafted upon it. The Luter case has been approved in a number of cases, including Stanfield v. Friddle, 185 Ark. 873, 50 S.W. 2d 237; and Ozark v. Ozark Water Co., 190 Ark. 872, 81 S.W. 2d 920. Its holding is as applicable to that part of Amendment 10 which deals with cities as to that part, similarly worded, which deals with counties. A clear purpose of Amendments 10 and 13 was the assurance of financial stability for cities in Arkansas. It was the deliberate intent of the people to make it difficult for cities,' in periods of local enthusiasm, to undertake large debts which would bind the citizens and the municipalities’ assets in years to come. Whether this purpose was good or bad, it is a part of the Constitution. SelNsupporting municipal activities may in a sense borrow on their own credit, independently of the city’s credit. They may even lend their credit for the benefit of other municipal activities when the constitutional debt limit will not thereby be exceeded and the benefited activity is one for which the city has constitutional authority to issue bonds. The present case would go further, however, and free municipal borrowing-altogether from the fetters fixed by these amendments in any case where the debt was to be paid from particular income-producing municipal property rather than from taxation. If this were permitted, a city would by indirec- • tion be enabled to saddle upon legitimate municipal en7 terprises the burden of interest-bearing certificates of indebtedness in amounts forbidden by the Constitution, for purposes-not authorized by the Constitution. This we hold the Constitution does not permit. The independent prohibition in the seventh paragraph of Amendment 13, that “no municipality shall ever grant financial aid toward the construction of railroads or other private enterprises operated by any person, firm or corporation” is also applicable to the facts here. The complaint alleges that the bond issue is “for the purpose of contributing to the cost of a factory building to be built in the city of Clarksville for the purpose of securing the location of a new manufacturing- enterprise in said City” (italics ours). This wording differs slightly from that which appears in the ordinance, but from the .words used it could be inferred that some manufacturer, rather than the City itself, might be or become the owner of the factory when built. If that should ensue, this paragraph of Amendment 13 would also be violated. We hold that Act 463 of the Acts of the General Assembly of 1949, insofar as it authorizes the adoption of Clarksville City Ordinance No. 388, is unconstitutional. The decree of the Chancery Court is therefore reversed and the cause is remanded with directions that the defendant’s demurrer be overruled. George Rose Smith, J., concurring. Also see Robinson v. DeValls Bluff, 197 Ark. 391, 122 S. W. 2d 552, sustaining an issue of bonds for construction of a barge terminal, the bonds being secured by and payable from the assets and income of the barge terminal alone. Mathers V. Moss, 202 Ark. 554, 151 S. W. 2d 660, which held invalid a city ordinance permitting payment of the City of Dumas sewer bonds from waterworks revenues, was distinguished on the ground that its basis for decision was the absence of statutory author ity therefor, whereas a subsequently enacted statute was deemed to authorize the Harrison bond issue in the form prescribed by the ordinance.

Frank G. Smith, J. Appellants filed in the Circuit Court for the Eastern District of Clay County a petition for certiorari to quash an alleged order of the Board of Education of that County, dissolving School District No. 76 and attaching its territory to School District No. 11. In the judgment from which is this appeal it was found that “the order of the Clay County Board of Education dissolving School District No. 76 and attaching said dis trict to School District No. 11 in Clay County was made according to law”. The petition was dismissed and from that order is this appeal. The question of fact in this case is whether the order calling for an election abolishing District No. 76 and annexing its territory to District No. 11 was made by the County Board or by the County Supervisor of Schools. It may be said that the order complained of is valid on its face as the court found, and contains the recitals of all the facts essential to confer jurisdiction on the County Board to make the order in question. If this finding was untrue or unsupported by the testimony the remedy of protestant was to appeal from that order. That the right of appeal exists in such cases is established by the opinions of this court in the following cases: Austin School Dist. v. Young, 212 Ark. 75, 204 S. W. 2d 902; Acklin v. Jackson County Board of Ed., 212 Ark. 422, 206 S. W. 2d 745; Hale v. Hope School Dist. No. 1-A, 212 Ark. 915, 208 S. W. 2d 431. It is not contended that the order complained of is void on its face, or that the right of appeal was lost without fault. Having an adequate remedy by appeal certiorari did not lie. The ruling of the State Board of Education is that orders abolishing school districts and attaching their territory to other districts can be made only by the County Board of Education, and not by the County Supervisor of Education, and we think this ruling is correct. It does appear that the notice of the special election on dissolving District No. 76 and attaching its territory to District No. 11 was given by the County Supervisor of' Education. But this power was conferred and this duty imposed on that officer by Act 202 of the Acts of 1947, § 1 of which reads in part as follows: “The County Supervisor shall give notice of each annual school election and all special school elections called for any purpose * * *”. Under the authority of this Act the notice was properly given by the Supervisor. No error appears and the judgment must be affirmed and it is so ordered.

Per Curiam. By petition for certiorari C. E. Carnes, J. S. Kreitzer, J. M. Thorns berry, Jack Winters, Jesse Barnes, and Robert Eaton have asked this Court to set aside their conviction on contempt charges. The controversy grows out of a complaint filed May 4, 1949, by Carl Tune. He alleged a contract with Ozarks Rural Electri fication Cooperative to build a warehouse in Fayetteville for use of Cooperative. The original complaint charged that C. E. Carnes, personally, and in his capacity as representative of International Hod Carriers’ Building and Common Laborers Union, and Melvin Han, as president of Local No. 107, American Federation of Labor, and Local per se, caused a strike to be called April 19, in consequence of which unlawful picketing was being carried on. It was further alleged that these activities, as practiced, were in violation of Act No. 193 of 1943. A temporary restraining order was sought. The record before us shows that the parties appeared in person and by their attorney, and after testimony had been heard, “and with consent of the defendants”, they, their agents and employees were temporarily restrained from interfering with progress of the work “by threats, intimidation, or otherwise”. They were also forbidden to picket until their legal right to do so in the circumstances should be determined. When Carnes and the five other defendants concerned with this proceeding disobeyed the Court’s order, they were cited to show cause why judgments as for contempt should not be pronounced. They entered pleas of not guilty and on May 9th the cause was continued until May 17th, bond for $500 in each case being required. The decree of May 17th recites that “ . . . by agreement of the parties, the hearing on contempt comes on for further evidence to be introduced”. Following the hearing fines of $50 and ten days in jail were assessed against each. Execution of the judgments was stayed until a review by this Court could be had. Petitioners insist that the Court was without jurisdiction because an injunction bond was not executed. Wo think a complete answer is that the order of May 4th was by consent. It is clearly shown that when the defendants were brought into Court they were not certain respecting their rights, and required time to confer with counsel, and an opportunity to employ additional counsel, hence the delay was for their advantage and they had a right to consent to be bound by a temporary order. It is now insisted that the Court could not prohibit peaceful pick eting. Where a Court has jurisdiction of the subject matter and the person, it may exercise its apparent power, even though error is committed in doing so, a matter not reached for consideration here. The principle upon which the trial Court in this case proceeded was that facts in support of the plaintiff’s allegations were yet to be developed, and the defendants likewise were entitled to be heard in opposition to the plaintiff’s charges of illegal picketing. But during the interim allowed for the benefit of each side, the defendants arbitrarily concluded that the Court was wrong in issuing the injunction, hence it could be disobeyed without penalty. The law is otherwise. The proper procedure would have been to obey the order until a higher Court passed upon its validity. On review it is urged that the injunction was not a consent order and that its presentation as such is erroneous. If so, this could have been shown through a bystanders ’ bill of exception. Our statutes protect litigants against such mistakes and give preferential consideration to the bill. The situation narrows down to the simple proposition that the defendants chose to follow advice of persons who were mistaken regarding legal effect of what they proposed to do. In taking this course they assumed the responsibility for that mistake, and their misfortune must be left to the sound discretion of the trial court. The relief prayed for in the petition is denied.

Leflar, J. Appellant William M. Pollock, Jr., owned an undivided one-half interest in the oil, gas and other minerals on a certain 20-acre tract in Ouachita County, Arkansas. The owner of the other un divided one-half interest had leased it to appellee Mc-Alester Fuel Company, and the Company was desirous of leasing Pollock’s half also, so that it could drill on the whole tract as a unit. After considerable negotiations between the parties and their representatives, an instrument called an “Oil and Gras Lease” was executed by them under date of July 21, 1947, covering “an undivided one-half (%) interest in and to [lands described] containing 20 acres, more or less, and 10 acres if divided.” Actually this instrument was not executed until about .November 1, 1947, though the earlier date was used because the parties had reached their agreement some months earlier and the final lease as executed was a replacement for others which had previously been executed with inaccurate language. In fact, a well had already been drilled and oil discovered on the land before the final execution of the lease. A single paragraph in the lease gives rise to the present controversy. That paragraph is typewritten near the end of the printed form, and reads as follows: • “The lessors herein expressly reserve unto themselves, their heirs or assigns, an undivided 1/16 of 7/8 of the total oil and gas and other minerals produced, saved and marketed under the terms of this lease, to be delivered to the lessors free of cost in tanks or pipelines to which lessee, their heirs, successors, or assigns, may connect wells, said interest being what is commonly known as ‘ over-riding royalty interest. ’ ’ ’ The lessor Pollock claimed that he was entitled under this paragraph to 1/16 of 7/8 of all the oil produced from the entire 20 acres, whereas the Company claimed that he was entitled only to 1/16 of 7/8 of the oil produced from the undivided one-half thereof conveyed by his lease. The present bill in equity was brought by the Company and certain others identified in interest with it against Pollock and his wife for the purpose of quieting in the plaintiff lessee the interests in the oil claimed by the lessee. The Pollocks answered and cross-complained, asking for comparable relief. After hearing evidence as to what the parties did and said and wrote to each other prior to execution of the final lease, and as to the oil field meaning of the terms contained in the lease itself, the Chancellor found in accordance with plaintiff lessee’s contentions, holding that the lessor Pollock was entitled to receive under the “over-riding royalty” clause only 1/16 of 7/8 of the oil produced from his half interest in the land, and quieting the lessee Company’s title to the balance of the oil accordingly. From this decree the Pollocks appeal. The best guide to interpretation of terms used in any instrument is the ordinary meaning of the words themselves, in their own context. Sometimes there is no standard meaning, and sometimes special usages may be shown to prove that the terms are not used in the usual sense in which they' are ordinarily employed in the English language as locally spoken and written. But it is useful in any event to ascertain the ordinary meaning of the words themselves, in the proper context of the whole instrument of which they are a part. Here, the lease by its express terms conveyed “an undivided one-half (y2) interest in and to” the oil on a described piece of land “containing 20 acres more or less, and 10 acres if divided.” Then the clause in question reserved to the lessors 1/16 of 7/8 of the oil produced “under the terms of this lease.” It did not reserve that fraction of all the oil produced “on the land to which this lease relates” or “on the premises described by this lease, ’ ’ but only ‘‘ under the terms of this lease.” And “this lease” by its express terms was a lease of a half interest in the 20 acres, not a lease of the whole of the 20 acres. It could not have been a lease on the whole 20 acres, because the lessor owned and made it clear that he owned only a half interest. It did not purport to be a lease of anything except the lessor’s half interest. Another paragraph in the same lease, as far as its wording is concerned, might equally support the lessor’s contention. This is the regular royalty clause, which reads: “FIRST: To deliver to the credit of lessor, free of cost in tanks or pipe line to which lessee may connect his wells, the equal one-eighth (1/8) part of all oil produced and saved from the leased premises.” This clause must be read in the light of and along with another clause which appears in the same lease. This is the so-called ‘ ‘ reduction clause ’ ’: “If said lessor owns a less interest in the above described land than the entire and undivided fee simple mineral estate therein, then the royalties and rentals herein provided shall be paid the lessor only in proportion which lessor’s fee simple mineral interests therein bears to the whole and undivided fee simple mineral estate in the lands. ’ ’ When these two clauses appear together in a lease, no one would contend that the regular royalty clause gives the lessor more than 1/8 of the oil produced from the half interest which he leased to the Company. This is standard language regularly used in oil leases to give the lessor a 1/8 interest in the oil produced under the interest conveyed by his lease, and it is so understood in the industry and by the courts. See Summers, The Law of Oil and Gas (1938) § 590; Thornton, The Law of Oil and Gas (Willis Ed., 1932) § 366. Yet if the reasoning employed by the lessor in this case were applied to the standard royalty clause it would give the lessor a regular royalty of 1/8 of all the oil produced on the whole 20 acres. He does not claim this, as of course he could not. If it were necessary here to go beyond the plain meaning of the terms used in the “over-riding royalty” clause itself, this “reduction clause” would afford an indication of the sense in which the terms were used. It is enough to say now, without determining how far it might or might not be controlling, that as a key to interpretation it leads to the same conclusion that we reach from reading the words themselves. No Arkansas case has ever passed on the question of interpretation raised by the present case. The lessor relies principally upon Texas decisions to sustain Ms position. The oldest and best known of the Texas cases, among those dealing with problems substantially comparable, is Hooks v. Neill, 21 S.W. 2d 532 (Tex. Civ. App.), which involved a conveyance of a half interest in certain land, with reservation to the grantors of “a one thirty-second part of all oil on and under the said land and premises herein described and conveyed.” The holding was that this reserved to the grantor only 1/32 of the oil produced from his half interest, since the half interest constituted the “premises herein described ancl conveyed” by the deed. The lessor in his argument denies that Hooks v. Neill is similar to the present case, and points out that it has been distinguished in later Texas cases. The first of these later cases is King v. First National Bank, 144 Tex. 583, 192 S.W. 2d 260, 163 A.L.R. 1128. In this case Duncan and King were the joint owners in fee simple of certain land. Duncan conveyed his half interest therein to King, reserving however a certain fraction of the royalty interest in oil and gas that should be produced “from the hereinabove described land.” The Texas court held that King’s reservation was of the designated fraction of the oil produced “from the described land,” and not just from the half interest conveyed by King. That was what the deed said in so many words, and the court pointed out that there was no conflict between the two cases. In each case the reservation clause in the deed was given effect according to its terms. The terms were different. The most recent Texas case is R. Lacy, Inc., v. Jarrell, 214 S.W. 2d 692 (Tex. Civ. App.), in which Hooks v. Neill was again distinguished, but not overruled. In this latest ease the reservation, by a grantor owning only a part interest in the land, was of a certain fraction of the oil “produced from the land described in this lease,” and the court held that the reservation entitled him to the designated fraction of the oil produced from all the land which the lease described, and not just from his part interest in it. Here again the court did no more than discover and apply the plain meaning of the words used in the lease. We feel that the Texas decisions are in accord with the interpretation which the Chancellor gave to the Pollock lease. Reservations, if made, may be worded as the parties please. If they provide that the grantor shall have a named fraction of the oil produced on all of the described land, that is one thing; if they provide that he shall have a fraction of what is produced from the interest conveyed by the particular lease, it is another thing. The courts will enforce either agreement as made. For other cases which have dealt with similar problems of interpretation in a similar manner, see Mitchell v. Brown, 43 Calif. App. 2d 217, 110 Pac. 2d 456; Reynaud v. Bullock, 195 La. 86, 196 So. 29. Apart from the language of the lease itself, appellant bases his interpretation of the “over-riding royalty” clause upon parol evidence which was admitted by the Chancellor in the trial below. This evidence consisted of a series of letters and conversations which preceded the execution of the lease in its final form. In part it explained the preparation and rejection of earlier drafts of the.lease. Appellant contends that this evidence tends to show an understanding by the parties, or at least by the appellant Pollock, that the clause was to be so written as to give him 1/16 of 7/8 of the oil produced on all the land, and not just 1/16 of 7/8 of that produced under his lease of a half interest. The basic principles applicable to the relevancy and use of such extrinsic evidence are well established. Williston, speaking of evidence as to previous negotiations between the parties; says: " Such negotiations, however, may be logically relevant for two purposes, the second of which is legally permissible, though the first is not: (1) to prove an actual intent of the parties at variance with the words of the writing when those words are given their appropriate local meaning; and, (2) to prove the meaning of the written words not by showing that the parties intended them to mean something different from what other persons at the same time and place and dealing with the same subject matter would attach to them, but to prove that the parties were dealing in regard to a matter or to secure an ob ject, or under circumstances where local usage would give a particular meaning to the language; or in case the local meaning is ambiguous, to show that the parties attached one appropriate meaning to their words, rather than another equally appropriate meaning. ’ ’ 3 Williston on Contracts (1936) § 630. And in Magness v. Madden, 212 Ark. 646, 207 S.W. 2d 714, this Court, quoting from the early case of Haney v. Caldwell, 35 Ark. 156, said: “As a general rule, oral evidence is not admissible to contradict or vary the terms of a valid written contract. . . . But if a contract is not certainly intelligible by itself, extrinsic testimony is admissible to show the intention of the parties, ... In all such cases the extrinsic testimony is not admitted to prove what the parties to the instrument may have secretly intended; or to add to, take from, change, vary, contradict, or modify; but to find out what is the meaning of the written words they have used, and the true sense thereof as they used them.” We have examined all the extrinsic evidence offered, and are unable to discover wherein it sustains appellant’s contention. The most revealing part of this evidence is that which came from the period when the parties were actually arriving at their agreement, as distinguished from that which described their jockeying over words to be included in the writing after they had already reached an agreement for a lease, commenced drilling and finally produced oil on the land. Under the date of June 27, 1947, Pollock wrote the following letter to appellee’s representative: “Dear Sir: “On April 28th and May 17th, I wrote you advising that I would not accept your offer for my undivided 20 acre interest in [land described] and advised you that if you were not interested in buying my 10 acre interest for $100 an acre and l/16th override, I could make a deal with another firm, whereby I could get the override and the $100 an acre. “Please let me hear from you as to whether or not your company is interested and, if not, I would like to affect and' make a partition with you, permitting and allowing you to take your choice of the 10 acre tract. . “Yours very truly, “W.M. Pollock, Jr.” Substantially the same language appeared in an earlier letter from Pollock to appellee’s same representative, under date of May 17, 1947. Previously, and at about this time, appellee had been offering Pollock only $50 an acre for his 10 acres, and no overriding royalty whatever, but only the regular 1/8 royalty. The letter just quoted indicated quite clearly that Pollock wanted a 1/16 overriding royalty on “my 10 acre interest,” which of course was the same for his purposes as an undivided half interest in the 20 acres. It was in the nature of an offer for a contract. Apparently some conversation followed after this. At any rate, Pollock a few days later received a reply dated July 7, 1947, from appellee’s representative. The significant portions of it are quoted: “Dear Mr. Pollock: “I am enclosing herewith lease with the 1/16 override and also draft in the sum of $1,000 covering lease interest owned by you . . . [this lease form did not correctly describe the land, and was apparently destroyed. It was not offered in evidence.] “After talking with you the other day I took the matter up with Mr. Lawton and he advised me to. proceed with meeting your requirements in getting the outstanding interests. . . . “Yours very truly, “W.A.G-. Woodward.” There is ample reason to believe that the “requirements” which the Company’s representative was to “proceed with meeting” were those set out in Pollock’s letters of June 27 and May 17, 1947. So understood, the extrinsic evidence supports rather than negatives the interpretation which derives from the language of the lease read by itself. The decree of the Chancellor is affirmed.

Griffin Smith, Chief Justice. Stanley Jewel Johnson, 21 years of age, died July 5, 1948, from the effect of knife cuts and stabs found by the jury to have been inflicted by Robert Walker. The defendant has appealed from a judgment that he serve 21 years in the penitentiary for second degree murder. The motion for a new trial lists 31 alleged errors, and six are argued. Primaria, appellant rests his defense upon want of identification. He denies using a knife, although admitting participation in what is spoken of as a “gang fight.” Essential facts were these: Stanley Jewel and his brother Albert, with Dorsey Williams, had started to Mahoney’s Ferry on Saline river where they planned to fish. Seven miles north of Rison the highway forms a Y, one branch leading to Pine Bluff, the other to Sheridan. Selman’s dance hall, beer joint, and combination grocery faces Highway 79 at the Y. The Johnson brothers and Williams had procured provisions at Pine Bluff, but when tl^ reached the Y one of the three remembered they had neglected to buy bread. For this reason they stopped at Selman’s store. There was evidence from which the jury could have found that none had recently touched intoxicants of any kind. Appellant Walker, 27 years of age, was employed in Pine Bluff, but resided six miles north of Rison. Accom panied by Roy Wilson, be drove to Pine Blnff and received a wage payment. The two then drank beer and liquor, and were joined by Carroll West, who is Walker’s brother-in-law. They spent some time at West’s home, partaking liberally of beer and whiskey, then started the drive that took them to the Y, where Wilson lived. Estelle West, appellant’s sister, had joined them. When the four arrived at the Y, John Dúgan and his wife, and Charles Reynolds, were in the beer joint and dance hall. Although some of the testimony is conflicting, and there is an absence of certainty, Dugan, Albert Johnson, Williams, and Appellant Walker were identified as having been in the building. By this time it was getting dark — “good dusk,” as one witness said. Wilson procured bottled beer and returned to the car, and was talking with West. Jewell Johnson was in front of West’s car when appellant came up. Jewell had just asked how far it was to the river, and whether fishing was good. While Wilson was shaking hands with Jewell, appellant walked close enough to overhear Jewell say his name was Johnson; whereupon, according to Wilson’s version of the transaction, appellant turned to Jewell and said, “What did you say your name was?” When Jewell replied, “Johnson”, appellant said, “We don’t give a damn about the Johnsons”, and at the same time struck Jewell with his fist, knocking him down. When Jewell got up appellant knocked him down again, and got on top of him. Williams then went to Jewell’s relief, and assisted by Dugan, pulled the assailant off of the prostrate man. Jewell called to his brother and said, “Albert, come here: Walker has cut me”. Wilson saw a knife in appellant’s hand, and saw him chasing Williams. Williams had testified that he had been in the building a minute or two when he heard a commotion on the outside. A fight appeared to be in progress. Walker had Jewell down, with his left hand on Jewell’s throat. With the aid of “another fellow” (whom he later identified as Dugan) Jewell was relieved. When Walker got to his feet he struck at Williams, but missed; then Williams struck Walker and “staggered” him. When Walker “came up” he had a knife in his hand. When this testimony was being given, the trial judge said to the witness, “Tell the jury just what you heard and saw”. After indicating where he stood and where Jewell and Walker were, Williams replied: “Walker walked up [to Jewell] and struck him with an overhead lick like this — indicating. When he struck Jewell it went just like sticking a knife in a watermelon. If you have ever stuck a knife in an overripe watermelon [you will understand], that is what it went like. I saw the knife in Walker’s hand as he came down [with it] and struck Jewell”. Wilson, after describing the fight, testified that he went home with Walker and saw him cleaning blood from a knife. Walker put the knife on the ground and “rolled it” with his foot. Charles Reynolds, 17 years of age, was cut on an arm and in the back and elsewhere, but did not know who did it. Dugan and Albert Johnson were slightly cut. Jewell was taken to a hospital, where a physician treated him. Medical testimony was that a knife wound about ten inches in length extended from the upper part of the chest downward. There was also a stab through the chest wall through which a portion of one lung protruded, “and every time he would breathe, both air and blood would escape”. Another slash 12 or 13 inches long began under a shoulder and extended to the abdominal wall. There was other testimony supporting the jury’s finding that the assault was made by Walker, hence the plea in respect of identification must be determined against appellant. The second point argued is that Bertram Wilson was improperly accepted as a juror. The record shows that Wilson had heard discussions regarding the encounter, and on the basis of statements made in these circumstances he had formed an opinion. He could, however, disregard any preconceived beliefs, and would be guided entirely by the evidence. This was sufficient. Buchanan v. State, 214 Ark. 835, 218 S. W. 2d 700. Neither was it shown that the appellant had exhausted his peremptory challenges. Washington v. State, 213 Ark. 218, 210 S. W. 2d 307. When nine jurors had been selected and an additional venire was ordered, the Court directed State Policeman J. V. Rudy to take charge of those selected, after the requisite instructions as to deportment had been given. Rudy was sworn as a special deputy, and served for approximately fifteen minutes. The defense then challenged regularity of the proceedings, took proof of what had been done, and asked for a mistrial. The point was urged that Rudy was a resident of Jefferson County, hence incompetent to serve as an officer in Cleveland County. Section 243 of the Criminal Code, Ark. Stats. (1947) § 43-2121, vests in the trial court a discretion, before a cause is submitted, to allow jurors to separate, “or be kept together in charge of a proper officer.” Since the Court had a right to allow the nine jurors to separate, it can hardly be said that discretion was abused when an officer was' placed in charge of them and the right to separate was denied. See Hendrix v. State, 200 Ark. 973, 141 S. W. 2d 852; Hyde v. State, 212 Ark. 612, 206 S. W. 2d 739. In Albright v. Karston, 206 Ark. 307, 176 S. W. 2d 421, it was held that in respect of certain duties a State Policeman possesses the power of a Sheriff and may act anywhere in the State. In the case at bar it was not shown that any prejudice attended. The fourth point argued is that’ prejudice resulted when the Court- permitted Sheriff Morgan to testify regarding the location of lights when he reached Selman’s place less than an hour after the cutting occurred. Appellant thinks a proper foundation should have been laid by showing actual conditions when Walker acted. A second objection is that some of the witnesses had testified that the area near the building was too dark to admit of identification. There had, however, been testimony that light came through windows. A complete answer to appellant’s objection is that the Sheriff did not undertake to say what the conditions were when the cutting occurred. He only testified to things observed approximately forty- five minutes after Jewell had been cut. See Pinson v. State, 210 Ark. 56, 194 S. W. 2d 190, where it was held that no prejudice resulted to the defendant because witnesses were allowed to testify from rough drawings and photographs, there being no contention that the drawings were accurate, or that they were actual reproductions of the homicide or the area where the shooting was alleged to have occurred. So, here, no one was led to believe that the Sheriff intended to testify that physical conditions he observed were those actually existing when Walker and Jewell clashed. Allen Templeton, State Policeman with the rank of Lieutenant, had testified that he was in charge of the laboratory at Little Rock, and that “they” brought to him a knife with blood on it, and that “Trooper Rudy” told him it was supposed to belong to Carroll West. West had also been charged with killing Johnson. Templeton said “they” told him it was West’s knife, but the blood sample was not sufficient for technicians to determine that it came from a human being. No knife purporting to have been taken from Walker was brought to Templeton., The Court instructed the jury to disregard this testimony, saying: " [This testimony] has nothing to do with the innocence or guilt of the defendant, Walker. In arriving at your verdict you will only consider the evidence that goes to the one question: whether, under the evidence and instructions of the Court, the defendant is guilty.” Defendant’s counsel remarked, “Note our exceptions. I want you to declare a mistrial.” The motion was overruled. The knife, as an exhibit, was properly excluded for want of identification. What Rudy or someone else may have told Templeton regarding the West knife, or whether in fact it was West’s, was not pertinent to Walker’s defense. Even if the knife had belonged to West, and the defendant’s purpose was to create an inference the particular weapon was used on Jewell, it must be remembered that others were cut the same night. It is insisted that defendant’s requested Instruction No. 3 should have been given. It would have told the jury that if it entertained a reasonable doubt the defendant was guilty of murder in the first degree, it could convict him of second degree murder, and if doubtful regarding second degree murder, there could be a conviction “for that degree of homicide as to which you entertain no reasonable doubt.” An examination of given instructions shows that the subject was fully covered. Complaint is made of the Court’s refusal to give the defendant’s requested Instruction No. 5. It would have told the jury that if it “believed from the evidence that more than one person stabbed or cut or wounded the deceased, . . . and you have a reasonable doubt . . . as to whether the defendant cut or stabbed or wounded the deceased, . . . then you are instructed that you cannot convict the defendant of any degree of homicide.” Again, the answer is that proper instructions were given, of which complaint is not made. The Court was not required to duplicate its instructions. Affirmed.

Holt, J. This cause is here on a second appeal. For a more complete statement of the facts, reference is made to our opinion in the former appeal, (Vanndale Special School District No. 6 v. Feltner, 210 Ark. 743, 197 S. W. 2d 731) wherein the judgment was reversed for error in giving a certain instruction and the cause remanded for further proceedings consistent with that opinion. After certain amendments to appellee’s answer and appellant had ‘ ‘ set up an additional title by reason of a deed dated June 27, 1947, from Mary Lee Mann to Vanndale Special School District No. 6,” the case was, by agreement, submitted to the court, sitting as a jury, on the following stipulated facts: “Mary Lee Mann was the owner of the following lands in Cross County, Arkansas, to-wit: The west half (W%) of the northeast quarter (NE1/^) and the northeast quarter (NE]4=) of the northeast quarter (NE%) of section thirty-one (31) in township nine (9) north and range three (3) east. “That both the plaintiff and the defendants claim title to the lands and the improvements located thereon here in dispute from the above common grantor. “That Arthur Mann and Mary Lee Mann conveyed to W. B. Williams, B. G-. Isom, W. Harden, School Directors of School District Number 3 in Cross County, Arkansas, on December 18, 1914, certain lands as set forth in said deed, * * * Exhibit ‘A’ to this stipulation.” (Deed recorded March 31, 1917). The land conveyed in the deed was described: ‘ ‘ The following lands lying in the County of Cross and State of Arkansas, to-wit: So long as said land is used for school purposes and no longer. Beginning at a stake on the old Memphis & Batesville Military Boad at the northwest corner of the northeast % of the northeast y¿ of section 31, township (9) nine, range (3) three east and running parallel with section line east 70 yards thence south 70 yards; thence west 70 yards to Memphis & Batesville Military Road; thence north 70 yards with said road to place of beginning containing one acre more or less.” “That said School District at no time since the execution and delivery of said deed to it ever went into possession of said acre of ground above described, or that it at any time.ever used said acre of land for school purposes, or for any other' purpose. “That said school district did shortly after the execution of said deed take possession of a diamond shaped piece of ground containing about one-half an acre and located in the northwest quarter (NW^l) of the northeast quarter (NE%) of section thirty-one (31) in township nine (9) north, range three (3) east, which was located about a quarter of a mile from the land actually deeded and as described in said Exhibit ‘A’, and erected thereon the school house there which is now in dispute, and actually maintained and operated a school thereon for about thirty years, when said School District Number 3 was consolidated with Vanndale School District Number 6; that the Plaintiff District, or District Number 3 at no time had a deed from anyone to said diamond shaped tract of land where said school was located. * * * “On September 20th, 1917, Mary Lee Mann and Husband, Arthur Mann, by their warranty deed conveyed to Jo L. Hutton the following lands, to-wit: The northeast quarter (NE%) of section thirty-one (31) in township nine (9) north, range three (3) east in Cross County, Arkansas. (Deed recorded). And that the chain of title from the said Jo L. Hutton passed by mesne conveyances to T. E. Lines. “On January 20th, 1945, T. E. Lines and wife, by their deed, conveyed the said lands to this Deféndant, W. D. Feltner, which deed is duly recorded. * * * “On June 27, 1947, Mary Lee Mann by a quitclaim deed conveyed to Vanndale School District Number 6 the following: ‘All my right, title and interest that I may have in and to the property that was used by School District Number 3 and Vanndale School District Number 6 for school purposes, and located in the northwest quarter of the northeast quarter of section 31 in township 9 north, and in range 3 east.’ (Deed recorded July 5,1947). “That T. E. Lines is not an heir of Mary Lee Mann. “That the mandate of the Supreme Court in this cause reversing said case and directing the Court to proceed further is hereby incorporated as a part of. the record and a part of the stipulation. “It is agreed by and between counsel that this cause may now be submitted to the Court upon this stipulation. ’ ’ The trial court found that M. D. Feltner was the owner and entitled to the possession of the property. The judgment contained this recital: “The plaintiff, Vanndale Special School District No. 6, took the property involved (either oral or written) by the terms of which the title was to revert to the grantor when no longer used for school purposes; that said reversionary right was such an interest in property as could be conveyed under the statutes of the state though not at common law. Mary Lee Mann and her husband by their deed of September 20, 1917, conveyed whatever interest they had in the land in question to Jo L. Hutton and by mesne . conveyances the same passed to defendant’s grantor, T. E. Lines. The question of the abandonment of the property by the School District was settled at the first trial; that the defendant, W. D. Feltner, is the owner and entitled to the possession of said property.” The effect of our former opinion was to remand the case for further proceedings and to allow Feltner the opportunity to show that he was not a trespasser, but derived title to the school property from his grantor, Lines, and that Lines was either an heir or a grantee of Mary Lee Mann. The court did not err in permitting him to make this showing. On the stipulated facts, Mary Lee Mann held possession and title to the land in question until she conveyed it, by warranty deed, to Jo Hutton September 20, 1917. Thereafter, by mesne conveyances, the interest and title of Jo Hutton passed to T. E. Lines, and thence from him to appellee, Feltner. Mary Lee Mann by deed dated December 19, 1914, conveyed the acre tract to School District No. 3 (appellant’s predecessors in title) “so long as said land is used for school purposes and no longer.” The effect of this deed was to create a determinable fee in appellant, district. This acre tract has never been used for school purposes by appellant, but a half acre diamond shaped tract, about a quarter of a mile from the one acre tract, was so used. We said in the very recent case of Taylor v. School District No. 45 of Searcy County, 214 Ark. 434, 216 S. W. 2d 789, wherein the land had been conveyed to a school district “so long as used for school purposes:” “The effect of the deed was to vest a determinable fee in the district, which would terminate automatically and without the necessity of re-entry if the grantee abandoned its use of the property for school purposes.” The title, therefore, to this one acre tract reverted to Mary Lee Mann, and appellee, Feltner, by mesne conveyances, as indicated, acquired title and should have possession. As to the one-half acre diamond shaped tract, supra, ■ — appellant has no enforcible interest in this one-half acre tract whatever, according to this record. The District’s claim of title by adverse possession was settled against appellant on the former appeal. Appellant now says that: “After the decision of this case on April 14, 1947, Mary Lee Mann, the common title holder to both complaining parties, and the person who reserved the reverter in the deed to School District No. 3, and after the jury in the lower Court had found that there was an abandonment for school purposes, quit-claimed her interest in said property-to the Vann dale School District, the appellants here.” (June 27, 1947). This deed, however, did not affect appellee’s title since Mary Lee Mann and her husband on September 20, 1917, conveyed all title and interest in all this land to Jo L. Hutton and by mesne conveyances title had passed to appellee, Feltner, and as indicated, he became the rightful owner and in no sense a trespasser. In short, Mary Lee Mann has nothing to convey and the district acquired nothing by this quitclaim deed. On the whole case, finding no error, the judgment is affirmed.

Frank G. Smith, J. Mrs. Virginia C. Wilson owns a farm in Jefferson County, -which, she rented in the year 1947 to G. E. Taylor for an agreed share of the crops grown on the land, the principal crop being cotton. She and her tenant filed this suit against Elms Planting Co., a corporation, to recover damages to their crop occasioned by the use of a chemical dust by the Elms Co. called 2-4-D, in spraying a rice crop on land owned by the Elms Co. which was three-fourths of a mile from plaintiffs ’ crop. The testimony shows that within very recent years there has been developed a powerful chemical referred to as 2-4-D, which is very damaging to any broad leaved plant with which it has contact, but which does no harm to grasses'and plants which are not broad .leaved. The Elms Co. used this chemical in spraying its rice crop and particles thereof drifted and settled on plaintiffs’ cotton crop, greatly reducing the yield thereof and this suit was brought to recover compensation for this damage. The Elms Co. filed an answer in which liability was denied. In addition it filed a cross-complaint against Chapman Chemical Co. and others who have passed out of the case. Service on the Chemical Co., an Illinois corporation, was had under the provisions of Act 347 of the Acts of 1947, which were fully complied with. It was alleged in its answer that if the Elms Co. was in fact liable in any amount, the Chemical Co:, if not primarily and solely liable, was at least a joint tortfeasor and the provisions of Act 315 of the Acts of the General Assembly of 1941, known as the Uniform Contribution Among Tortfeasor's Act were invoked. •The Chemical Co. was not made a party defendant to the original suit of the plaintiffs who filed a motion praying that the suit against the Chemical Co. be dismissed. This motion was overruled. Numerous other pleadings were filed. The Chemical Co. appeared for the purpose only of moving to quash the service against it. The testimony on the hearing of this motion will be later discussed. The motion was overruled and exceptions saved. The Chemical Co. moved to dismiss also upon the ground that Act 315, supra, has no application inasmuch as there is no liability on the part of the Chemical Co. to the plaintiffs. This motion, which vjill later be discussed was also overruled. The case proceeded to a trial where numerous exceptions were saved to various actions and rulings of the court and resulted in a verdict in favor of the plaintiffs against the Chemical Co. and in favor of the Elms Co. From the' judgments rendered upon this verdict the Chemical Co. has appealed and so also have the plaintiffs. The first question properly to be considered is that of the sufficiency of the service on the Chemical Co. which, as we have said, was had under the provisions of Act 347 of the Acts of 1947, the relevant provisions of which are as follows: " Section 2. Any non-resident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution and Laws of this State as to doing-business herein, who shall do any business or perform any character of work or service in this State shall, by the doing of such business or the performing of such work, or service, be deemed to have appointed the Secretary of State, or his successor or successors in office, to be the true and lawful attorney or agent of such nonresident, upon whom process may be served in any action accrued or accruing from the doing of such business, or the performing of such work, or service, or as an incident thereto by any such non-resident, or his, its or their 'agent, servant or employee. Service of such process shall be made by serving a copy of the process on the said Secretary of State, and such service shall be sufficient service upon the said non-resident of the State of Arkansas, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff, or his attorney, to the defendant at his last known address, and the defendant’s written return receipt, or the affidavit of the plaintiff, or his attorney, of compliance herewith are appended to the writ of process and entered in the office of the Clerk of the court wherein said cause is brought. The court in which the action is pending may order such continuance as may be necessary to afford the defendant, or defendants, reasonable opportunity to defend the action. ’ ’ This act was upheld as valid legislation in the case of Gillioz v. Kincannon, Judge, 213 Ark. 1010, 214 S. W. 2d, 212, except the retroactive feature thereof. Here all relevant facts accrued after the act was in full force and effect. The insistence is, however, that the Chemical Co. has done no business in this State sufficient to bring it within the provisions of the act. Upon this issue of fact the following testimony was offered. There are three separate corporations, each doing business as the Chapman Chemical Co. One of these is located in the State of Louisiana, another in the State of Illinois, and the third in the State of Tennessee. The Tennessee corporation is engaged in manufacturing chemicals solely for sale by the Illinois Co. and the Louisiana Co. All the stock in all three corporations is owned by Dale Chapman except a single share in each, which is otherwise owned for qualifying purposes. Or-, ders are sent to and filled by the Illinois corporation, the only one of the three companies here sued. The Illinois corporation has no office or warehouse in this state, has no bank account here, and has no agent in this State. Orders for the products of the Tennessee corporation are received in Illinois and filled from that state from the Tennessee office by shipments in interstate commerce at the direction of the Illinois company, which has the exclusive power to receive and fill orders. In this connection it may be said that no attempt was made to show that the Illinois corporation was doing business in the sense that it would he subject to penalties for failure to secure authorization from the state for admittance to the state. It was shown, however, that for the 12 or 15 years last past, the Illinois company had sold throughout the State certain wood preservatives. Sales made in Arkansas comprised a substantial part of the company’s business and its traveling salesmen had for many years operated in this State. Its principal customers were operators of lumber mills and wholesale lumber dealers, who act as distributors for the wood preservatives. Representatives of the Chemical Co. consulted and advised with the agricultural and forestry agents of this State as to the manner in which the products it was selling should be used, and as to additional uses thereof which might be made, and in otherwise building up a good will valuable to its business. Specifically as to the use of 2-4-D the testimony is to the effect that the Chemical Co. sought to introduce its use in the rice growing area of the State, and to that end its representatives came into the State and conferred with officers of the Rice Growers Assn, as to its use. It was agreed that a test should be made and one was made in this State, the purpose of which was to determine whether the 2-4-D dust could be distributed from an airplane, as could other chemical dusts of various kinds for various purposes by farmers. The test was made and it was shown that it could be so used. Chapman, the Company’s president, testified that he knew it could be so used before the test was made, but the purpose of the test was to demonstrate that fact to prospective customers. No test was made as to the floating quality of the dust, that is the .distance it would carry in the air after it was released from a plane. Chapman brought with him in his automobile from Memphis to Stuttgart in this State a quantity of the powder or dust, for the purpose of making the test, and he paid the aviator for his services in making it. Chapman had cooperated with state experimental stations -in this State in working out projects for the development of uses for the products sold by the Chemical Co. That Company provided literature containing instructions for the use of 2-4-D to local distributors in this State, to he given to prospective users of the Chemical Co. products. It joined Arkansas local distributors in advertising Chemical Co. products in this State, and arranged for the advertisement thereof in. a local paper, one half of the costs of which it paid and finally it brought a suit, now pending against the Elms Co. for the purchase price of the dust the distribution of which by plane gave rise to this law suit. The case of Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129, 134 F. 2d 511, 146 A. L. R. 926, deals at length and reviews many authorities on the concept of doing business by a foreign corporation. The opinion was written by Justice Rutledge then an Associate Justice of the U. S. Court of Appeals for the District of Columbia, now a member of tlie Supreme Court of the United States. It was there said that the mere solicitation of business whether on a casual or occasional or regular, continuous and long continued basis does not constitute doing business in a foreign state, and it may be added that filling orders thus obtained by shipping goods in interstate commerce would not constitute doing business. But it was said in addition, “Consequently it is (not) clear that if, in addition to a regular course of solicitation, other business activities are carried on, such as maintaining a warehouse, making deliveries, etc., the corporation is ‘present’ for jurisdictional purposes. And very little more than ‘mere solicitation’ is required to bring about this result.” The facts herein recited constitute something more than the creation of good will or solicitation of business, and while it was shown that none of the Chapman products were stored for delivery in this State, it was shown that a portion thereof was actually brought into and delivered in this State by the company’s authorized representatives, in fact, its President, himself, and this was done for the purpose of making the test which was made in this State which induced the sale of the very product, the use of which, for the purpose intended, resulted in the damage for the compensation of which this suit was brought. This federal case, supra, is extensively annotated in 146 A. L. R. 926, where the leading cases are cited, a review of which would protract this opinion to an interminable length. A more recent case on the subject of service on a foreign corporation is that of State v. Ford Motor Co., 38 S. E. 2d, 242, in which many authorities are reviewed and the conclusions announced conform to the views here expressed. We conclude that the trial court did not err in holding that Act 347 of the Acts of 1947 applied in this case and in refusing to quash the service had under that Act. The Chemical Co. insists however, that even though it was properly brought before the court by the service had upon it, it was nevertheless error to join it in the suit against the Elms Co. inasmuch as it was not named as defendant by the plaintiff in that case, and no relief was prayed against it. It is insisted that our joint tortfeasor aet does not authorize this action. As has been said this is Act 315 of 1941 and the controlling portions thereof read as follows: “Before answering,' a defendant seeking contribution in a tort action may move ex parte or, after answering, on notice to the plaintiff, for. leave as a third-party plaintiff to serve a summons and complaint upon a person not a party to the action who is or may be liable as a joint tortfeasor to him or to the plaintiff for all or part of the plaintiff’s claim against him.” The case of Baltimore Transit Co. v. State, 183 Md. 674, 39 Atl. 2d 858, annotated in 156 A. L. R. 460, cites numerous cases which have construed this or similar legislation. A headnote of that case reads as follows: “A statute authorizing a defendant in a tort action to implead as a third-party defendant one alleged to be liable as a joint tortfeasor applies only where there is a common liability to an injured person in tort, and is inapplicable where the injured person has no right of action against the third party..” Here the injured parties, the original plaintiffs, do not concede that they have no cause of action against the third party defendant., the Chemical Co. On the contrary, it is asserted that the plaintiffs did have and now have a cause of action against the third party defendant. Plaintiff’s contention is that they had a cause of action against the Elms Co. on which they were content to rely, and they did not elect to complicate that case by making the Chemical Co. a party. But it is said in cross appellant’s brief, that now that the Chemical Co. has been made a party, although not on their motion, the judgment aganist the Chemical Co. should be affirmed. Indeed the position of the cross appellants, the original plaintiffs, is that not only should the judgment against the Chemical Co. be affirmed, but that the judgment against the Elms Co. should be reversed for the reason that under the undisputed testimony its liability as well as that of the Chemical Co. was established. The Chemical Co. contends that it is not liable in any event and that the judgment against it should be reversed and the cause dismissed, or if not the judgment should be reversed because of certain erroneous instructions given over its objections and exceptions. These contentions of the Elms Co. and of the Chemical Co. bring us to a consideration of the case on its merits, and we shall treat the two contentions together, as they are inseparably connected. The record upon the issues joined (consisting of exactly 1,000 pages) is so voluminous that we shall summarize it without detailing it. It is undisputed that 2-4-D powder will answer the purpose for which it was designed, that is of killing plants with large leaves which appear in fields of rice. The most noxious of those weeds is the coffee bean plant which matures about the same time the rice does, and if allowed to mature its seed will mix with the rice when threshed and will destroy or greatly lessen the market ability of the rice, unless separated from the rice at great expense and trouble, usually by hand. The chief objection to the use of the powder is that it is very dangerous to such plants as cotton, potatoes, vegetables, etc., when it comes in contact with them. This characteristic of the powder was well known, in fact the literature which the Chemical Co. published and circulated gave warning of that fact. The plaintiffs, or cross-appellants, insist therefore that both the Chemical Co. and the Elms Co. are liable to them for the damage to their cotton crop caused by the use of this powder. It is undisputed that the use of the powder caused the damage for which plaintiffs sued. It was shown by testimony, which is undisputed, that the practice of dusting agricultural crops, as well as truck farms, etc., has prevailed for a number of years and is becoming a common practice. Some of these chemicals are dangerous to livestock and others to plants of certain kinds and they are used for various purposes. Extensive and experienced planters who have used chemical dust for a number of years for different purposes, testified that when the areas to be treated are sufficiently large, aeroplanes are used in scattering the dust or chemical, and that if properly applied even by planes, the dust does not float or extend more than fifty or one hundred fifty feet beyond the area intended to be treated, and that no damage results beyond that distance to plants which would be damaged if touched by the dust. The testimony developed the fact of which the Elms Co. was unaware and it was not shown that the Chemical Co. was aware, and that is that the 2-4-D dust possessed the quality of floating for great distances when cast in the air, even for miles. None of the experienced farmers who dusted their crops for various purposes had ever known any other dust, when properly applied, to float for a greater distance than from fifty to one hundred fifty feet. As has been said, cross appellants’ cotton crop was three-fourths of a mile from the Elms Co. rice field at the nearest point. The testimony shows that the Elms Co. used the dust on a morning when no wind was blowing and that it was distributed over the rice field by an aviator whose regular business it was to dust crops with the use of his plane, and who testified that but little of the dust was cast upon any land except the rice crop as he was careful to shut off the distribution of the dust when making the necessary turns of his plane. The operator supervising the dusting process testified that he had been engaged in the crop dusting business for 22 years, operating from California to Florida and from Mexico to Canada and that when properly distributed the dust did not extend more than 40 to 50 feet beyond the area treated, but this testimony did not relate . to 2-4-D. The question of foreseeability of probable injury from the use of 2-4-D was submitted to the jury in instructions given at the request of cross appellants over the objections of both Elms Co. and the Chemical Co. The jury might well have found, and evidently did find, that there was no previous experience in the use of agricultural chemicals which gave any indication of the danger of using 2-4-D to a crop three-fourths of a mile away, or that its use was “A cause from which a person of ordinary experience and sagacity could foresee the result that might probably ensue”. Alaska Lumber Co. v. Spurlin, 183 Ark. 576, 37 S. W. 2d, 82. The testimony shows that before buying or applying the 2-4-D chemical the manager of the Elms Co. consulted one L. C. Carter of Ark. Rice Growers Assn, regarding the use of 2-4-D. Carter had been and was a manager of the Rice Experimental Station near Stuttgart, 7 or 8 years, and was at that time manager of the Rice Growers Coop. Assn, and the Elms Co. manager was informed by Carter that he, Carter, thought its use would be all right. In other words, there is no evidence upon which to predicate liability against the Elms Co. except the fact alone that the Elms Co: did use a dangerous chemical, and we conclude that the verdict of the jury in favor of the Elms Co. was not unsupported by the testimony and should be affirmed. As to the Chemical Co. a different test as to liability must be applied. The three chemical companies operated under a single officer, Chapman being the president of all three and the owner of practically all of the stock of all the corporations. The Illinois company did not manufacture the 2-4-D chemical dust, but its Memphis affiliate did. Appellant Chemical Co. was the distributor and sole agent for the Tennessee company in this State, and the testimony shows that it was selling an extremely hazardous product and was selling it as its own product. Indeed the testimony shows that the Tennessee Co. was in effect and in fact the agent of the Chemical Co. in manufacturing the dust, as all sales thereof here involved were made by the appellant Chemical Co. The testimony shows that the Chemical Co. was selling the dust as its own product. It controlled and distributed all advertising material which recommended its use and gave directions therefor. At § 400 of the Chapter on Torts, Restatement of the Law, it is said that one who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.' It is said there was no privity of contract between the Chemical Co. and cross appellants. This showing was at one time, and for some time considered necessary to occasion liability, the line of decisions to that effect going-back to the early English case of Winterbottom v Wright, 10 Mees & W. 109, 152 Eng. Reprint 402, decided in 1842. But the courts have been getting away from that doctrine and many have entirely repudiated it and discarded it. The opinion of Justice Cardozo, then a member of the Court of Appeals of New York, and later an Associate Justice of the United States Supreme Court in the case of MacPherson v. Buick Motor Co., 217 N. Y. 382, 111 N. E. 1050, L. R. A. 1916F, 696, Ann. Cas. 1916C, 446, is credited with the inception of the modern doctrine of manufacturer’s liability based upon foreseeability rather than privity of contract. The Supreme Court of Mass, in the case of Carter v. Yardley, 64 N. E. 2d, 693, annotated in 164 A. L. R. 559, expressly repudiates the privity contract rule and stated that the MacPherson case, supra, was now generally accepted and the summary of the Mass, case and others there cited in that ‘ ‘ The question in each case was whether the danger was sufficient to require the manufacturer to guard against it. ’ ’ In other words, that foreseeability and not privity was the proper test. See, also, § 824, Chapter on Sales, 46 Am. Jur. p. 946. Now this 2-4-D powder is hightly efficient for its intended purposes, that is to kill broad leaved plants, but its very efficiency for that purpose makes its use extremely hazardous to other plant life. An article appeared in the Ark. State Plant Board News in July, 1948, which began, “Effective June 24th the U. S. Civil Aeronautics Administration prohibits the use of 2-4-D dust by airplanes. This action was taken at the request of the U. S. Dept, of Agriculture following many complaints that drifting dust had injured cotton and other broad leaved crops.” This was subsequent to the spraying of the Elms rice crop which damaged appellant’s cotton crop and in the law of negligence it is generally true that foresight and not retrospect is the standard of negligence. But here we are dealing with an extra hazardous chemical known to be highly dangerous. The essence of this case is contained in instruction number 10-A given over the objection of the Chemical Co., which reads as follows: “It was the duty of the defendant Chapman Cliem ical Company before putting an inherently dangerous product on tlie market to make tests to determine whether or not it would damage crops of others; if you believe from a preponderance of the evidence in this case that the 2-4-D dust applied on July 1, 1947, by the Elms Planting Company was an inherently dangerous prodhct liable to damage the property of others, and that such tests were not made, then you are told that the defendant Chapman Chemical Company is negligent. ’ ’ If this instruction is correct, the judgment against the Chemical Co. should be affirmed; if it is not, it should be reversed. Now a test was made but its purpose was to ascertain whether or not 2-4-D could be distributed by airplane as other dusts could be. It was found that it could be, but no test was made as to the floating quality of the dust, and it is this characteristic or quality of 2-4-D which makes its use extra hazardous. In other words, was the Chemical Co. under the duty of testing and knowing that 2-4-D dust, unlike other chemical dusts, would float for great distances. The undisputed testimony is that this 2-4-D, unlike other dusts, does not immediately or soon settle, but on the contrary floats, in the air for long periods of time and for great distances, as much as 10, 15 or 20 miles, and one witness placed the distance at 35 miles. That peril attended the use of the dust is undisputed. Indeed the literature circulated by the Chemical Co. contained this caution, “Chapman 2-4-D weed killer should be applied in such a manner as to avoid contacting crop plants such as cotton, sweet potatoes, vegetables, orna mental trees, etc.” With this knowledge the Chemical Co. sold the dust, knowing that it would in its ordinary-use be distributed from an aeroplane and it did this without making any test to determine what the effect thereof would be. Its literature referred to the dust as a proved weed killer and recommended the application of it by means of an airplane. The undisputed testimony is that the Elms Co. bought the dust from the Chemical Co. and applied it in the manner directed for the known purpose for which it was sold and that this use thereof resulted in serious damage to cross-appellants. We think this testimony presents the question whether absolute or strict liability should apply. In the case of Luthringer v. Moore, 31 Cal 2d, 489, 190 P. 2d, 1, it was said by the Supreme Court of California that, “It appears to be settled that the question whether the case is a proper one for imposing absolute or strict liability is one of law for the court.” Among other authorities cited to support this statement is the restatement of the Law of Torts, § 520, Com. H. If'one casts into the air a substance which he knows may do damage to others, and in some circumstances will certainly do so, principles of elementary justice, as well as the best public policy require that he know how far the substance will carry or be conveyed through the air and what damage it will do in the path of its journey, and if ho releases such a substance either from ignorance of, or in indifference to the damage that may be done, the rule of strict liability should he applied. Such was the holding of the California case above cited. There a defendant engaged in pest eradication fumigated the basement of an office building above whicu there was a pharmacy. A preparation of hydrocyanic acid -was used in the basement, which penetrated the floor and on the morning after its use an employee .of the pharmacy was asphyxiated by the fumes of the acid. In holding the fumigator liable the opinion quoted the following statement from §§ 519, 523 of the Restatement of Torts: “One who carries on an ultra hazardous ac tivity is liable to another whose person, land, or chattels the actor should recognize as likely to be harmed by the unpreventable miscarriage of the activity for harm resulting thereto from that which makes the activity ultra hazardous, although the utmost care is exercised to prevent the harm. — -An activity is ultra hazardous if it (a) necessarily involves a risk of serious harm to the person, land, or chattels of others which cannot be eliminated by the exercise of the utmost care, and (b) is not a matter of common usage. ’ ’ This opinion quoted from a prior opinion of the Supreme Court of California in the case of Green v. Gen. Pet. Corp., 205 Cal. 328, 270 P. 952, 60 A. L. R. 475, which collects other similar cases. The opinion in the case of Spencer v. Madsen, 142 F. 2d, 820, deals with the question of liability of a manufacturer to a third party who had no contract relations with him. It was there said: “Liability here is not predicated on the fact that the thing, when properly constructed, is inherently dangerous. Rather, it rests upon the principle that where the thing, when put to the uses for which it is intended by the manufacturer, by reason of defects which were known or could have been known by the exercise of reasonable care by the manufacturer, is dangerous to life and limb, the manufacturer is liable to third persons.” We do not think the Chemical Company excused itself from liability by the mere showing that it was unaware of the peculiar carrying quality of the dust it was selling. Ordinary care required that it should know in view of the dangerous nature of the product it was selling, and it was charged with the knowledge which tests would haye revealed. The case is therefore one in which the rule of strict liability should be applied. Numerous instructions were asked, to the giving of which, or refusal to give, exceptions were saved. We do not review these for the reason that the instructions given fully covered every aspect of the case and conformed to the views herein expressed. Justices Holt and McFaddin are of the opinion that the judgment for the Elms Co. should be reversed. Other members of the court are of the opinion that the judgment in favor of that Company should be affirmed. Justice George Rose Smith is of the opinion that Instruction No. 10-A above copied, which we said was of the essence of the case was erroneous and that the judgment against the Chemical Co. should be reversed for that reason. The result of these views is that the judgment for the Elms Co. should be affirmed and that the judgment against the Chemical Co. should also be affirmed. It is therefore so ordered.

Frank G. Smith, J. This is a suit to recover on a policy of insurance against upsets and other hazards. A premium of $67.47 was paid for the insurance, the return of which was tendered in the answer which denied liability, upon the ground that the insured, Hendrix, was not the sole owner of the car as stated in the policy, and that the car had been stolen. It was stipulated that the automobile was destroyed in an upset collision, while being driven by Hendrix, and that its value at that time was $1,000. The car appears to have had a salvage value notwithstanding this stipulation. Hendrix purchased the car from the F & F Motor Company of Nashville, Arkansas, and received a duplicate of the contract of sale which recited that the purchase price was $995.05, of which $400 was paid in cash, and a note for the balance was given. The note and the contract of sale reserved the title until the purchase money was fully paid. The note and contract were assigned by the F & F Motor Company to the Motor Finance Company, Inc., which latter company required Hendrix to insure the automobile and the policy here sued on was issued to Hendrix and the Motor Finance Company, Inc., as their respective interests might appear. The claim for insurance was delivered to J. C. Morneau, an insurance adjuster, for settlement, who discovered on investigation that the motor number of the car did not correspond with the motor number stated -in the policy. Morneau told Hendrix he would proceed with the settlement subject to the approval of the insurance company as to the difference in motor numbers. Morneau took the wrecked car to the J. W. Finley Garage at Texarkana for its salvage value. This was done by agreement between Morneau and Hendrix, or at least without objection. Several days later a representative of Agricultural Ins. Company of Joplin, Missouri, appeared and was given possession of the car, and removed it. It was not shown that anyone objected to this action. Morneau did not know where the car was taken, but the Agricultural Ins. Company carried it away. Max Tackett testified that he was an investigator for the State Police, and that it was his duty to search for stolen automobiles, and in the discharge of this duty he investigated ears in the possession of second-hand dealers. He inspected and checked 126 cars in the possession of the F & F Motor Company, and when he found that the motor number of the car in question was not that stated in the policy, he communicated with the Automobile Underwriters Bureau of Atlanta, Georgia. This is an agency that assists in locating stolen cars. This agency discovered from its records that the car in question had been stolen in Joplin, Missouri. Tackett testified that there was no bulletin on the car. It was ascertained that the owner had insured this car against theft with the Agricultural Ins. Co. of Joplin, Missouri, and that insurance company paid the insured the amount of his policy, and upon this claim of title took the car from the possession of the Finley Garage. The car had been driven from Joplin to Lockesburg, Arkansas, and sold to one Welch, a store keeper, and he sold it to Fletcher Webb, who operated a garage at Glenwood, and Webb sold the car to F & F Motor Com pany. It was not claimed that Welch, Webb or the F & F Motor Company were aware that the car had been stolen, and it was expressly conceded that their purchases “were on the level,” that is, without knowledge that the car had been stolen. This suit was brought by Hendrix and the Motor Finance Company, Inc., as assignee of the contract of purchase, and as has been said, was defended upon the ground that Hendrix was not the sole owned of the car, as the policy of insurance stated him to be. The instructions in the case cannot be reconciled. Those on the part of the plaintiffs were to the following effect. It was essential only that Hendrix have an insurable interest in the car, and he had that interest if he would be benefited by the continued existence of the car and would suffer a direct pecuniary loss by its destruction. The jury was instructed that the statement as to the ownership of the car contained in the policy was a mere representation and that its falsity, if false, would not defeat the recovery unless Hendrix knew it was false or was chargeable with such knowledge. This instruction in effect directed a verdict for the plaintiffs as no contention was made that Hendrix was aware that the car had been stolen. Oh the other hand the jury was instructed that if the automobile was a stolen car and not the property of Hendrix, a verdict should be returned in favor of the insurance company. The jury was further instructed that all property obtained by larceny shall be restored to the owner, and that no sale, whether in good faith on the part of the purchaser or not, shall divest the owner of his right to such property. This last instruction is a copy of § 1292 of Pope’s Digest, and the court gave as an instruction the following section of Pope’s Digest, No. 1293, which reads as follows: “Any person losing property or any valuable thing by larceny, robbery or burglary may maintain his action, not only against such felon, but against any person whatsoever in whose hands or possession the same may be found.” One of the leading cases on the subject of insurance issued upon a stolen car is that of Hessen v. Iowa Auto mobile Ins. Co., 195 Ia. 141, 190 N. W. 150, 30 A. L. R. 657. This case contains a review of the leading cases on the subject and is extensively annotated in 30 A. L. R. 657. Supplements to this annotation appear in 38 A. L. R. 1123 and 46 A. L. R. 657. This case held upon a review of many other cases that an insurable interest was essential to the validity of a policy of insurance and that a title or interest to a car acquired through theft did not constitute an insurable interest although the car had been purchased by the insured in entire good faith without knowledge that it had been stolen. It was said in Blashfield’s Cyclopedia of Automobile Law and Practice, Vol. 6, § 3503: “While it has been held on the one hand' that the bona fide possession of a stolen vehicle does not give the holder any sort of title' such as will measure up to the requirements for an insurable interest, elsewhere a purchaser in good faith of an automobile for a valuable consideration, who is in undisputed possession of it, has an interest therein sufficient to enable him to recover on a policy insuring it, issued to him while in such possession, despite its having been stolen from the original rightful owner. ’ ’ The case of Barnett v. London Assurance Corp., 245 Pac. 3, 138 Wash. 673, 46 A. L. R. 526, is cited as authority for the text last quoted. This is one of the cases cited in the supplemental annotation on the subject in 46 A. L. R. 526. In this Barnett case, supra, the Supreme Court of Washington said: “Even thought the automobile may have been originally stolen from the rightful owner, the respondent had the title and the right to possession of it as against all the world, except the rightful owner, assuming that the car had been stolen from him. In Norris v. Alliance Ins. Co., 1 N. J. Misc. 315, 123 Atl. 762, it was held that, where the insured was the bona fide purchaser of an automobile on which the policy of insurance against theft was issued, his title was good against every one but the original owner, and that in an action upon the policy the insured had a right to recover for the theft of the car from him, even though originally it had been stolen from the rightful owner.” The New Jersey case above cited is relied upon by appellee for the affirmance of the judgment in the insured’s favor, but the Washington court further quoted from the New Jersey case as follows: “It was there said: 'The defendant’s difficulty is that there is no proof that the insured machine was stolen from its original owner, but, if this be granted, plaintiff’s title was good against every one but the true owner, and he is unknown and makes no claim of ownership, and plaintiff has never been evicted. He owned it against all the world but a supposed owner, from whom we are to infer it was stolen. None but he can assert ownership against the plaintiff, which he does not do, and defendant has no right to do it for him. The plaintiff did not, knowingly, make any false representation to defendant as to his ownership; he supposed he was the unconditional and sole owner without any fact known to him to the contrary, and so far as this record shows, was, and is, the only person claiming ownership. So far as defendant is concerned, it is the same as if the automobile had been lost and found by plaintiff, who is the true owner, until evicted by one holding better title. The possession of property is prima facie proof of title.’ ” Here there is proof, largely hearsay, that the car in suit had been stolen from the original owner who is known, and who not only made a claim of ownership but actually recovered possession of the stolen car, and so far as the record discloses this was done without objection. It is true that the original owner is not a party to this litigation, but there was no occasion for him to intervene and assert his title, for the reason that his insurer, who had paid him the value of the car, asserted title thereto by way of subrogation and took possession of the car, apparently, as has been said, without objection. There was no occasion for the original owner, or the insurer, to intervene as the insurer by subrogation has the possession of the car and this right to possession is not called into question. The New Jersey case, which the Washington case followed, is therefore not applicable, because the true owner’s title was asserted and is not questioned in this lawsuit. In the chapter on Automobiles, 5 Am. Jur., § 514, p. 794, it is said: “Automobile insurance policies frequently contain provisions to the effect that the policies shall be void if the interest of the assured is other than that of an unconditional and sole owner. A purchaser of a stolen car does not have sole and unconditional ownership. The question whether the ownership of a chattel mortgagor or mortgagee, or conditional buyer or seller, is sole and unconditional is discussed at another point.” If the undisputed testimony showed that the car had been stolen from and recovered by the original owner we would reverse the case and dismiss it, but the evidence of that fact is largely hearsay and was incompetent for that reason. Nor do we know that the jury found that the car had not been stolen. Under the instructions of the court the-jury could have found, in fact would have been required to find, in favor of appellees, although the car had been stolen, as it is undisputed that Hendrix was an innocent purchaser. The judgment will therefore be reversed and the cause remanded for a new trial, and the jury directed to determine whether, according to a preponderance of the testimony, the car had in fact been stolen from the original owner and surrendered to his possession, and if so, to return a verdict for the defendant. Justices McFaddin and Millwee dissent.

Holt, J. A jury convicted appellant, Hadaway, of aggravated assault (Ark. Stat. 1947, § 41-605) and assessed Ms punishment at twenty days Imprisonment in the County Jail and a fine of $100.' From the judgment is this appeal. For reversal, appellant argues: (1) that the evidence was insufficient to support the verdict, and (2) that the court erred in giving, over his objections, State’s Instruction No. 2. (1) December 24, 1948, Doug Kimmey and a companion by the name of Eowe, while traveling in an automobile driven by Eowe, collided with another car in the outskirts of Lockesburg. Both (Kimmey and Eowe) were intoxicated. A police officer came on the scene. While he, Kimmey, Eowe and the driver of the other automobile were discussing the incident, Kimmey walked away and entered a pool hall nearby, where the officer found him talking to appellant, operator of the pool hall. For some reason, not made clear, appellant and Kimmey became involved in a fight. Kimmey knocked appellant down. Appellant got up and advanced on Kimmey with a knife, struck him several times, cutting him on his arm and wrist. At this point, a bystander knocked Kimmey down and while he lay on the floor, appellant evaded the officer and kicked Kimmey twice in the face, before the officer succeeded in subduing Mm. A witness testified: “What was Doug (Kimmey) doing at the time he was struck with the knife? A. Tt appeared to me like he might back up. * * * Q. What did the defendant (Hadaway) say shortly after he struck Doug with the knife? A. I tried my best to cut the s. of a b. all to pieces.” Without attempting to detail all the testimony, the above evidence was substantial and sufficient, when considered in the light most favorable to the State,. as we must, to show that appellant “without considerable provocation,” with “an abandoned and malignant disposition,” assaulted Kimmey with a deadly weapon with the intent to inflict bodily injury, and warranted the jury’s verdict. Allgood v. State, 206 Ark. 699, 177 S. W. 2d 928; Bennett and Holiman v. State, 201 Ark. 237, 144 S. W. 2d 476, 131 A. L. R. 908; and Holland v. State, 198 Ark. 933, 132 S. W. 2d 190. (2) There was no error in giving State’s instruction No. 2, in the circumstances. This instruction provided: “No one is allowed to exercise the right of self-defense if he willingly enters into the fight or combat; and, if you find and believe from the evidence that the defendant willingly entered into the combat with Doug Kimmey, he cannot avail himself of the plea of necessary self-defense to justify an assault with a knife or other deadly weapon. ’ ’ No specific objection was made to this instruction. Appellant objected “generally to each and every given State’s instruction.” The record reflects that, along with correct instructions given by the court, at appellant’s request, the court properly told the jury: “You are instructed that the defendant was entitled to act upon appearance and if the language and conduct of Doug Kimmey was such as to induce in the mind of a reasonable man without fault or carelessness upon his part, under all the facts and circumstances' then existing, and viewing them from the standpoint of the defendant, a fear that great bodily harm was, at the time of the assault, about to be inflicted by Doug Kimmey on the defendant, it does not matter if such danger was real or only apparent if the defendant acted in his necessary .self-defense from real and honest conviction as to the character of the danger, if any, your verdict should be for the defendant.” Instruction No. 2 was not inherently wrong. Appellant made no request, as noted, for clarification. An instruction similar, in effect, was approved by this court in Lomax v. State, 165 Ark. 386, 264 S. W. 823. The following from that opinion applies with equal force here: “The instruction, when considered as a whole, does not assume any fact, but it leaves it to the jury to find whether the defendant voluntarily entered into the difficulty, and also whether or not he killed the deceased. The instruction simply tells the jury that, if he voluntarily entered into the difficulty and killed the deceased, he cannot avail himself of the plea of self-defense, and cannot take advantage of the necessity brought about by his own unlawful act. In other words, it tells the jury that, if the killing resulted from a voluntary quarrel and mutual combat entered into by the parties, this would be a wrongful act, and the defendant could not avail himself of the plea of self-defense. ’ ’ So here, Instruction No. 2, in effect, told the jury that if appellant willingly, or voluntarily, entered into combat with Kimmey this would be a wrongful act and, in the circumstances, appellant would not be permitted to exercise the right of self-defense. No error appearing, the judgment is affirmed.

Frank G. Smith, J. The Commissioner of Revenues for the State", after a hearing had been accorded appellant, ordered that delinquent sales tax be collected from appellant with the statutory penalty of 10% and interest, all totaling $887.75. This order was affirmed on appeal to the Pulaski Chancery Court, from which decree is this appeal. The cause was heard on stipulations as to what appellant’s testimony and that of his bookkeeper would be, and that of the Supervisor of Gross Receipts Tax Division of the State Revenue Department would be if called as witnesses, and upon a stipulation of facts derived from this testimony. The stipulation as to facts reads as follows: “It is stipulated and agreed that R. P. Ferguson, owner and operator of Ferguson Monument Works, Morrilton, Arkansas, manufactures and sells monuments for erection at graves, and that in keeping his accounts with each individual customer he enters the total sales price of a monument, including all labor services as part of the sale price thereof and enters the same on his leger, and that the only other entry or entries on such account is the entry or entries of payments for the amount; that each account is handled in the same way and that at the close of the month the total amount of sales as above indicated is entered and one-half of which is specified as labor, and that in the computation of his sales tax on such sales he computes the 2 per cent tax on one-half of the total amount thereof, that in making his monthly returns to the commissioner of Revenues he does not disclose the total amount of his sales for the month, but that instead he reports only the one-half of the total sales for the month; that he makes no explanation in his return about the deduction of one-half or any portion for labor or services. It is further stipulated and agreed that for the purpose of determining the facts in this case that one-half of the total contract price of the monument in place is represented as labor and that the other half is the valué of monument as a material or property value. ’ ’ This stipulation involves primarily the question whether when a monument dealer sells and erects a monument at a grave for a specified sum of money, the sales tax shall be assessed for the full price paid for the monument and incidentally whether a penalty should be imposed for the nonpayment of this tax in the time and manner provided by law. It appears from the stipulation that appellant made reports showing not all, but only one-half of the price he collected on each monument erected, his contention being that one-half of the price charged for the monument was deductible for the service and labor of the erection of the monument, which it was stipulated equaled one-half of the cost of the monument. The answer to the question presented for decision depends upon the interpretation of Act 386 of the Acts of 1941, p. 1056, the title of which is An Act to provide for raising revenues for certain purposes “by Prescribing and Levying Specific Taxes Upon Gross Receipts Derived From Sales.” There has been much legislation imposing sales taxes with an innumerable number.of cases construing this legislation, much of which is reviewed in the annotation to the case of Acorn Iron Works v. State Board of Tax Administration, 139 A.L.R., 368 et seq. This annotation supplements annotations on the subject appearing in 98 A.L.R. 387, 111 A.L.R. 943 and 115 A.L.R. 491. The annotations recognize the great differences in the legislation imposing this tax, and point out that almost invariably they contain their own definition of sales at retail and of clauses which have the effect of defining them, and that the effect of such definitions is to render immaterial the question whether the transaction on which the tax is levied meets the technical requirements of a sale at common law, and that the definition employed will prevail over definitions that may be found in dictionaries. Only one case is cited which involved the question whether the cost of erecting a monument is subject to the sales tax, where the price charged for the monument included its erection, which is the case of S. Goldstein Monument Wks. v. Graves, 254 App. Div. 798, 4 N.Y.S. 2d, 241, cited in the annotators note in 139 A.L.R., 384, which held that the tax should be computed upon the price which included labor and service in addition to materials. Appellant insists that the New York case is not authority in this on account of the differences in the statutes of the two states. A reading of the New York statutes shows, however, that the statutes of that state are very similar to our own in the respects here considered. The New York statute, Chapter 281, Laws of N.Y. 1933, § 390, Article 17, p. 765 defines the terms used in the sales tax law of that state. And paragraph (b) thereof reads in part as follows: “The term ‘receipts’ means the total amount of the sale price of tangible personal property sold at retail in this state, valued in money, whether received in money or otherwise, including all receipts, cash, credits and property of any kind or nature, and also any amount for which credit is allowed by the seller to the purchaser, without any deduction therefrom on account of the cost of the property sold, the cost of materials used, labor or service cost, interest or discount paid, or any other expense whatsoever, from the sale of tangible personal property at retail in this state,” with certain exceptions not relevant here. Paragraph (b) of § 2 of our Act 386 of 1941 defines the terms there employed and sub-paragraph (c) of that section provides: ' The term sale ’ shall not include the furnishing or rendering of service or services, except as is herein otherwise provided. ’ ’ But immediately following in sub-paragraph (d) appears this definition: “Gross Receipts-Gross Proceeds: The term 'gross receipts’ or ‘gross proceeds’ means the total amount of consideration for the sale of tangible personal property and such services as are herein specifically provided for, whether the consideration is in money or otherwise, without any deduction therefrom on account of the cost of the property sold, labor service performed, interest paid, losses or any expenses whatsoever.” The principal difference between the New York statute and our own is that the New York statute includes, while our statute omits the word “discount”. This language appears to mean, and we so construe it, that whfere one sells an article in the preparation of which for sale he has expended labor, which adds to its value and was necessary to make it salable, he must pay the sales tax on the price received, without deduction for the value of the labor performed. It is insisted that although the tax should be charged no penalty for its delayed payment should be imposed, and the case of State v. New York Life Ins. Co. 198 Ark. 820, 131 S.W. 2d, 639, is cited to support that contention. That case involved the failure of the Life Ins. Co. to report its annuity premiums, while the company had made report of all premiums upon which a report was required, and the testimony showed that over a period of many years the administrative officers of the state were of the opinion that annuity premiums were non-taxable, and the opinion recites that certain members of the court were even then of that opinion, as evidenced by a concurring opinion filed in that case. Tlie stipulation as to wliat appellant’s testimony would be if called as a witness was that he had never reported the full price received upon the sale of a monument, hut had always deducted one-half thereof to cover labor and services rendered in its erection, and that upon inspection of his books, which was usually made annually, the fact stated was so disclosed. The Supervisor of the Gross Receipts Tax Division would have testified, according to the stipulation as to his testimony, that no reports had ever been made to his department showing that a tax was collected on only fifty percent of the sales price, and that the first knowledge of that fact came when an audit of appellant’s books was made. The stipulation above copied is corroborative of this testimony and we think the court was warranted in finding that a tax was due which had not been reported although appellant did not collect the tax on the total amount of the sales. In the New York Life Ins. Co. case, supra^ report was made of all the taxes, which was required, while here there was a report of only one-half that amount. Superior Bath House v. McCarroll, 200 Ark. 233, 139 S.W. 2d, 378. The penalty was therefore properly imposed and the decree imposing it is therefore affirmed.

Robins, J. The only question presented is whether the evidence adduced before the Workmen’s Compensation Commission was sufficient to justify the award of compensation made by the commission, affirmed by the circuit court on appeal, in favor of the widow and estate of Hfenry Chism, deceased. On July 2, 1945, Henry Chism, a healthy negro man 50 years old, working for Dundee Woolen Mills at its store in Little Rock, while attempting to raise a window at the store, sustained an injury to his back. A short time thereafter, in an effort to lower a window at the "tore, he fell and again injured his back. He suffered considerable pain at the time and was taken home by an acquaintance. While the injury was not then regarded by him as serious, he immediately notified his employer. His injury continued to cause him pain, and, under the proof, he was unable to work regularly thereafter. An X-ray examination on December 20, 1945, revealed that there had been a collapse of the 10th thoracic vertebra. On March 15, 1946, an operation was performed to relieve pressure on his spinal cord, which had partially paralyzed him. The operation disclosed a malignant tumor at the location of the damaged vertebra. Other complications ensued and Chism died April 18, 1946. There was much medical testimony adduced, that of the appellants being directed toward establishment of their contention that the cancer found was metastatic in nature, had its origin in some other part of Chism’s body, and that the trauma suffered by him had nothing to do with the malignant condition disclosed by the operation. The testimony on behalf of'appellee tended to establish that the injury suffered by Chism originated or aggravated the pathological condition of Chism’s spine, in either of which situations liability for compensation arose. Owen v. Dix, 210 Ark. 562, 196 S. W. 2d 913. It was also shown that at the time he received the injury Chism was an able-bodied man, but that after the injury until Ms death he suffered more or less pain and disability. We deem it unnecessary to rehearse and discuss the evidence in detail. It is sufficient to say that there was testimony, of a substantial nature, to authorize the finding of the commission, and of the circuit court, that Chism died from an accidental injury received in the course of his employment. Since this is so, we may not disturb the finding or the judgment. J. L. Williams & Sons, Inc. v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Kloss v. Ford, Bacon & Davis, Inc., 207 Ark. 115, 179 S. W. 2d 172; Simmons National Bank v. Brown, 210 Ark. 311, 195 S. W. 2d 539. Affirmed.

Minor W. Millwee, Justice. This cause was begun by appellant, Ed Pinkert, as an action in ejectment in Pulaski Circuit Court to establish title and right to possession to the west % of lots 1 to 6, inclusive, block 8, Adams Addition to the City of Little Eock. Appellant claimed title through mesne conveyances from Sewer Improvement District No. 94 of Little Eock which purchased the lots at the commissioner’s sale pursuant to a decree of the Pulaski Chancery Court rendered November 23, 1937, condemning said property to be sold for delinquent assessments. Although the complaint alleges that appellee, John Lamb, was in possession of the lots as tenant of James H. Stith, it was stipulated that appellee, Ella Stith, widow of James H. Stith, was the record title owner prior to sale of the lots to the improvement district and held possession through the tenant, Lamb. In their answer appellees attacked the foreclosure decree and sale of the property thereunder as being void for various reasons, and charged that the decree, the deed from the commissioner thereunder and the deed to appellant constituted a cloud upon appellees’ title and should be earn celed. The cause was transferred to the chancery court where trial resulted in a decree finding all the issues in favor of appellees; finding that the sale of the property under the 1937 foreclosure decree was void and that the deeds executed pursuant thereto, including the deed to appellant, should he cancelled and that title to the property should he quieted and confirmed in appellee, Ella Stith. This appeal follows. The property in controversy is. situated in Sewer Improvement District No. 94. In 1927, the district filed suit in chancery court to foreclose its lien for delinquent assessments, but the record does not reflect that the lots here involved were included in the original proceeding. There was evidence of personal service on James H. Stith in 1931, bnt any delinquencies against the lots in controversy prior to 1931 were presumably paid and the lands redeemed. Later the pleadings were amended to foreclose for delinquencies for subsequent years and the decree of November 23, 1937, was entered condemning the lands herein to be sold for the delinquent assessment for the year 1934-. Pursuant to the 1937 decree the lots were sold to the district on March 16, 1938, and the sale confirmed April 12, 1938. On August 20, 1943, the chancery court, on petition of a receiver of the district, authorized the latter to sell to James Newsome 340 certificates of purchase at $5.50 each, which included the certificate of purchase covering the lots herein. Thereafter Newsome assigned the certificates of purchase to Jack Barry who in turn assigned the certificates to W. I. Stout, Trustee. After expiration of the time for redemption the commissioner of the court, upon the petition of W. I. Stout, Trustee, and order of the court pursuant thereto, executed and delivered to W. I. Stout, Trustee, a deed to the property on October 12, 1943, and same was approved by the court on the same date. Prior to execution of this deed Mary Kimbrough filed an intervention for herself and others similarly situated, attacking the sales of the certificates of purchase and asking that same be canceled and that all owners be permitted to redeem from the commissioner’s sale-. A consent decree was rendered on September 30, 1943, as a result of this intervention which gave owners of the delinquent lands involved 120 days to redeem from the sale by payment of all delinquencies. The decree further provided that the title to all property not redeemed within the 120 day period should vest unconditionally in the said W. I. Stout, Trustee. The lots here involved not having been redeemed, W. I. Stout and wife conveyed the property by quit claim deed to appellant for a valuable consideration May 26, 1944. It was further stipulated that benefit assessments were made and taxes levied against the west half of lots 1 to 6, inclusive, block 8, Adams Addition to the City of Little Rock, as a single tract rather than against each separate lot or parcel, and that same was sold by the commissioner under the 1937 decree under the same description and as a single tract. This is a collateral attack by appellees on the 1937 foreclosure decree and sale made pursuant thereto, and the burden was on them to prove such defects therein as would render the sale and decree void. Since the trial court found in appellees’ favor as to all issues, we proceed to a consideration of the alleged defects upon which appellees rely to sustain the decree. I. Collusion and Inadequacy of Consideration in Sale of Certificates of Purchase. The case of Schuman v. Cherry, ante, p. 342, 220 S. W. 2d 817, involved the validity of the proceedings now under attack. The appellees there, as here, relied upon the cases of Eddy v. Schuman, 206 Ark. 849, 177 S. W. 2d 918, and Schuman v. Eddy, 207 Ark. 925, 184 S. W. 2d 57 to sustain their charge of inadequacy of consideration and collusion in sale of the certificates of purchase. These cases involved a class suit brought by a property owner in an improvement district for protection of the interests of the landowners and the district. In Schuman v. Cherry, supra, we said: “In the present suit, the district and the commissioners are not parties; so the Schuman-Eddy cases are not in point. Appellees ’ purpose is not to protect the rights of the district and property holders, but to obtain a title for the appellees. Again — for the sake of argument and without deciding the question — if we concede that the sale of the certificates to Newsome should be set aside, still that holding would return the certificates to the district and would not benefit the appellees, because — as heretofore stated — they had only five years from the foreclosure sale in which to redeem. See Hopkins v. Fields, 202 Ark. 890, 154 S. W. 2d 22. The time for redemption has long since expired, so appellees are not benefited, whether the title to the three lots be in the appellant or in the district.” While appellees alleged in their answer that there was collusion on the part of the commissioners and the purchaser in the sale of the certificates of purchase, they introduced no evidence to sustain this allegation. We are asked to overrule Schuman v. Cherry, supra, but we decline to do so. What we said in that case applies here, and the sale of the certificates of purchase, though invalid, would not affect the jurisdiction of the court to render the decree and would not render the sale of the property made thereunder void on collateral attack. II. Insufficient Description. The property involved was assessed and sold as “West y2 of Lots 1-6, inch, Block 8, Adams Addition to the City of Little Rock. ” It is insisted that this is an invalid and indefinite description which renders the sale void. Appellees cite a number of cases, but none of them involve a description similar to the one here employed. It cannot reasonably be contended that superior or technical knowledge would be required to locate the west half of named lots in a given block in a platted addition such as is involved here. We hold the description valid and sufficient. III. Property Not Assessed Nor Sold According to Law, and Sold E'n Masse for Only Part of Indebtedness. Appellees say that a sale of property en masse is void even when the property is assessed en masse as a single tract. It is also insisted that it is mandatory under our statutes that each parcel of land be assessed separately. The case of Board of Commissioners, Paving Improvement District No. 13 v. Freeman, 201 Ark. 1061, 148 S. W. 2d 1076, involved a foreclosure for delinquent assessments in a municipal improvement district where the as- . sessment was against lots 2, 3, 6 and north half of lot 7 in a given block. In construing the statute now appearing as Ark. Stats. (1947), § 20-404, which prescribes the method of making assessments, the court said: “We think a fair construction of the act is that where one person owns several lots, blocks or parcels of land in an improvement district the benefits to them may be assessed together. It certainly was not the intention of the Legislature where a person owned a large number of lots in an improvement district that benefits to each of his lots, blocks or parcels of land, in order to be valid, must be assessed to each lot, block or parcel of land owned by him. This construction would certainly entail a lot of unnecessary labor on the part of the assessors where one assessment would answer the purpose. A majority of this court in construing a statute similar to this relating to drainage districts, in the case of Curtsinger v. Burkeen, 126 Ark. 94, 189 S. W. 673, ruled that an assessment of benefits en masse was not void.” In Hires v. Douglas, 198 Ark. 559, 129 S. W. 2d 959, relied on by appellees, the sale was for a gross sum of several lots separately assessed which was held to be void. Here the property was assessed as a single tract and the foreclosure and sale were in solido and were not thereby rendered invalid. Appellees also urge that the property sold at the foreclosure sale for only the delinquent tax and penalty, without interest and costs, which amounted to a fatal defect. It is true that Hires v. Douglas, supra, formerly was authority for appellees’ contention that the lands must be sold for the taxes, interest, penalty and costs, and that if all of these elements are not included in the sale, it is void. However, that case was overruled on this point in the recent case of London v. Montgomery, 211 Ark. 434, 201 S. W. 2d 760, where, in reference to the Hires case, we said: “We think that part of the decision holding that the Court was without power to order a sale for less than the total obligation, including interest, was wrong. It was error not to require all of the debt elements to be adjudicated, but this did not deprive the Court of jurisdiction as to the foreclosure.” IV. Appointment of Receiver Void and Title to Property Could Not Be Transferred by Assignment of Certificates of Purchase. The record discloses that after sale of the lots to the district, the court appointed a receiver to take charge of the properties and collect the rents. Subsequently the court authorized the sale and assignment of the certificates to Newsome. Appellees contend that the appointment of a receiver and assignment of certificates were unauthorized and void. We held against this contention in Schuman v. Cherry, supra, and there said: “Appellants gain nothing by their present contention, because the title to the lots would be in the district even if we should ignore the receivership, the sale of the certificates and the deed to Stout; and with the title in the district, appellants could not now redeem. . . .” Appellees here are in the same position as the appellees in that case and an irregularity in the appointment of the receiver and transfer of the certificates of purchase would not void the foreclosure sale of the property on collateral attack in a suit in which the commissioners of the district are not parties. Y. The Warning Order or Notice of Pendency of Suit Listed the Names of the Supposed Owners as James E. Smith and Wife, Ella, Instead of James E. Stith and Wife, Ella. Act 207 of 1937 prescribed the type and manner of service when the foreclosure decree was rendered November 23, 1937. This act provides for service on all delinquent defendants by publication of a warning order or notice of the pendency of suit weekly for four weeks. Section 2 of the Act (Ark. Stats. 1947, § 20-441) provides: “On receipt of such delinquent list the board of commissioners shall enforce the collection of such past due assessments by proceedings in the Chancery Court of the County in which said improvement district is situated; and said court shall give judgment against said lands, lots, blocks, or parcels of land, railroad tracks and right-of-way, for the amount of such taxes or assessments, together with the penalty and interest on same, attorneys fees and costs of the proceedings. Such judgment shall provide for the sale of said delinquent lands for cash by a commissioner'of the court, after advertisement hereinafter set out. Said proceedings and judgment shall be in the nature of proceedings in rem, and it shall be immaterial that the ownership of the said lands, lots, blocks, or parcels of land, railroad tracks and right-of-way be incorrectly alleged in said proceedings, and such judgment shall be enforced wholly against such property, and not against any other property or estate of said defendant. In listing said lots, blocks, or parcels of land, railroad tracks and right-of-way, the property may be shown as a single improvement; that is, if a building occupies more than one lot or tract of land, the property may be listed together on one line. ’ ’ Section 3 of the Act provides for publication of the notice, prescribes the form to be used and then provides: “Then shall follow a list of supposed owners, with a description of each separate property that is delinquent, and amount due thereon respectively as aforesaid.” The proof of publication of the notice or warning order lists the west half of lots 1, 2, 3, 4, 5 and 6 of block 8, Adams Addition in the name of James H. Smith and wife, Ella, as owners instead of James H. Stith and wife, Ella. Appellees contend this notice was void as being in violation of the due process clauses of the Constitution of the United States. Act 207, supra, and other acts with similar or identical provisions as to service have been before us in numerous cases. The case of Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252, involved the validity of service against a nonresident owner of lands in a levee district who was not named as a party defendant. In construing an act with identical provisions insofar as service on nonresidents is concerned, Justice Battle, speaking for the court, said: ‘ ‘ The fact that the lands in controversy were the property of Mrs. Josephine Ballard, and that she was not made a party defendant to the suit instituted to enforce the collection of the taxes thereon, does not affect the decree therein and the sale thereunder. The act provides that such suit and decree shall be in the nature of proceedings in rem, and that ‘it shall be immaterial that the ownership of the lands may be incorrectly alleged in said proceedings.’ Acts of 1895, p. 89.” On appeal the U. S. Supreme Court, in Ballard v. Hunter, 204 U. S. 241, 27 S. Ct. 261, 51 L. Ed. 461, affirmed and said: “The complaint showed that Ballard was the owner of the lands and that he was a nonresident of the county. It was said, however, that Josephine Ballard was not made a defendant in the suit, though the records of the county showed that she was an owner thereof. But the statute provided against such an omission. It provided that the proceedings and judgment should be in the nature of proceedings in rem, and that it should be immaterial that the ownership of the lands might-be incorrectly alleged in the proceedings. We see no want of due process in that requirement, or what was done under it. It is manifest that any criticism of either is answered by the cases we have cited. The proceedings were appropriate to the nature of the case.” It is the rule generally that the states have more control over the form of service upon their residents than upon nonresidents. 12 Am. Jur., Constitutional Law, § 595. One of the grounds of invalidity urged against a special act creating a road improvement district in Vietz v. Road Imp. Dist., 139 Ark. 567, 214 S. W. 50, was that it authorized the commissioners to advertise and sell delinquent lands without bringing a proceeding against the owner, but by description of the land only. In disposing of this contention the court said: “The fourth ground of attack seems to be that the Legislature has no authority to authorize a foreclosure of a tax lien by proceedings in rem, or by proceedings in the nature of proceedings in rem, but we have upheld such authority in cases dealing with a similar provision in other special statutes creating improvement districts, as well as- general statutes authorizing organization of improvement districts in municipalities. McCarter v. Neil, 50 Ark. 188, 6 S. W. 731; Greenstreet v. Thornton, 60 Ark. 369, 30 S. W. 347, 27 L. R. A. 735; Ballard v. Hunter, 74 Ark. 174, 85 S. W. 252.” The holding in the Vietz case, supra, was reaffirmed in the recent case of Wood v. Gordon, 207 Ark. 932, 183 S. W. 2d 517. That case involved the validity of Ark. Stats. (1947), § 21-546, which provides the same method of procedure and service in drainage districts as is prescribed for municipal improvement districts in Act 207, supra. The court in that case rejected the resident appellant’s contention that the method of service by pub lication was unconstitutional and cited numerous cases to support its holding. The case of Simpson v. Reinman, 146 Ark. 417, 227 S. W. 15, lends support to appellees’ contention as to validity of the publication notice under attack. That case has been distinguished on the facts in later cases which have upheld the validity of notice by publication under identical statutes. See, Security Mtg. Co. v. Herron, 174 Ark. 698, 296 S. W. 363; Deaner v. Gwaltney, 194 Ark. 332, 108 S. W. 2d 600. In Taylor v. Heinemann, 199 Ark. 1101, 137 S. W. 2d 742, the court had under consideration the same provision as to service in a levee district statute and said: “This statute is in all essential respects identical with the statute construed in Simpson v. Reinman, supra. That case was decided by a divided court, and without expressing any opinion as to the correctness of the reasoning of the majority, we decline to overrule it. However, we decline to extend the holding there announced, which we feel we would be compelled to do, in order to affirm the decree here in question. The facts in that case were that one Adams was listed as the ‘supposed owner’ of the tract of land there delinquent for road improvement assessments. As to him the opinion recites: ‘It is not shown that he ever had any title to the property or that he was in possession of it, or made any claim thereto at the time the foreclosure proceedings were had.’ . . . In the opinion on rehearing in Simpson v. Reinman, supra, the late Judge Hart, said: ‘As we have already seen, while the statute requires them to designate the supposed owners, it relieves them of the consequences of mistakes on their part by providing that a mistake in the allegations of ownership of the land shall not be material. In other words, it does away with the rule that giving of the name of the owner incorrectly invalidates the sale; but the Legislature did not intend to bind the owner where the commissioners named a person as the “supposed owner” who they knew had no interest whatever in the land, or when they acted with gross carelessness in the matter.. ’ ’ ’ In the case at bar there is nothing in the record to indicate that there were such persons as James H. Smith and wife, Ella, or that the inclusion of their names .was anything more than a typographical mistake of one letter in incorrectly stating the name of Stith. Nor can we say that the commissioners acted with gross carelessness in the matter. To so hold would extend the doctrine of Simpson v. Reinman to the point of rendering the statute absolutely meaningless insofar as a mere incorrect statement of the supposed owners’ name is concerned. "We conclude that the holding in that case is not controlling here and that there was a substantial compliance with the statute relating to publication of the notice which was valid and binding on appellees. YI. Appellant Barred by the Seven Year Statute of Limitations. Appellees have been in possession of the lands in controversy since the 1938 foreclosure sale and interposed the plea of the seven year statute of limitations (Ark. Stats. 1947, § 37-101) as a bar to appellant’s cause of action. The sale to the improvement district was on March 16, 1938, and was confirmed on April 12, 1938, and this action was begun on April 12, 1945. Appellees say the statute begins to run from the date of ■ sale while Ark. Stats. (1947), § 20-1143, upon which they rely, provides that the tax purchaser shall have the right to possession upon confirmation of the sale. Appellant insists that mere possession of the original owner after a judicial sale would not become adverse to the purchaser until expiration of the period of redemption. It is unnecessary to determine which, if either, contention is correct in this case in view of a provision of Act 82 of 1945 which now appears as the last proviso in § 37-101, supra, and reads: “Provided, however, that this section shall not apply to lands which have been sold to any improvement district of any kind or character for taxes due such districts.” The 1945 act became effective February 21, 1945. If it be conceded that the statute of limitations started running April 12, 1938, when the sale was confirmed, the statute was repealed as to an action to recover lands sold to an improvement district prior to the running of the seven year statutory period. In Paragould v. Lawson, 88 Ark. 478, 115 S. W. 379, property owners contended that the City of Paragould had lost its rights by adverse possession under a dedication of certain streets to the city. Before expiration of the statute bar the Legislature enacted Ark. Stats. (1947), § 19-2305, which had the effect of denying the defense of adverse possession to the property owners. The court said: “Even if adverse possession began before the passage of the statute referred to above exempting cities of the second class from the operation of the statute of limitation on this subject, the possession had not continued for sufficient length of time for the statute bar to attach, and it was within the power of the Legislature to repeal the statute of limitations as to cities or to exempt cities from the operation thereof. There is no such thing as a vested right in a statute of limitation, and the Legislature can repeal the statute or suspend its operation before a cause of action is barred under it. Dyer v. Gill, 32 Ark. 410; Pearsall v. Kenan, 79 N. C. 472, 28 Am. Rep. 336; Hill v. Boyland, 40 Miss. 618; Smith v. Tucker, 17 N. J. L. 82; 8 Cyc. 921; 25 Id. 988.” So here, the possession had not continued for a sufficient period of time for the statute bar to attach when the 1945 Act became effective and appellees have no vested right in the statute. We conclude that the trial court erred in dismissing appellant’s complaint and cancelling the sale to the improvement district and conveyances based thereon. The decree is accordingly reversed and the cause remanded for further proceedings not inconsistent with this opinion. This Act was amended by. Act 130 of 1939 and Act 195 of 1949, which are inapplicable here.

Ed. F. McFaddin, Justice. This is an appeal from a Chancery decree which (a) allowed appellant no relief and (b) sustained the cross-complaint of the appellee, D. C. Davis, for reformation of his deed to appellant. In 1929 D. C. Davis executed notes to Peoples Bank totalling $10,181.77, and secured by a deed of trust on 537 acres of land. Included in the deed of trust was the 80-acre tract involved in the present suit and hereinafter referred to as the “80-acre tract.” The Peoples Bank knew that D. C. Davis owned only a life estate in this 80-acre tract, and that the remainder was owned by the Davis children, who joined in the execution of the deed of'trust, but without becoming personally liable for the indebtedness. (For brevity, we will continue to refer to them as the “Davis children,” although they were and .are adults.) The said notes of D. C. Davis to the Peoples Bank were acquired by the Security Bank some time prior to 1939 with all the notice and knowledge possessed by the Peoples Bank. In 1939 D. -C. Davis, being unable to pay the balance due on the notes, on demand of the Security Bank (hereinafter called “Bank”) executed to it a general warranty deed for 388 acres of the land in full settlement of all the balance due on the notes. Included in the 388 acres there was the 80-acre tract in which, as aforesaid, D. O. Davis owned only a life estate. The Davis children did not join in the deed. The Bank surrendered all the notes and other security to D. C. Davis, and entered into possession of the 388 acres described in the warranty deed. In 1947 the Bank filed the present suit against D. C. Davis and the Davis children, seeking inter alia, to have the Bank’s title quieted and confirmed to the 80-acre tract. The Davis children by answer and cross-complaint (1) alleged that the,Bank held only the life estate of D. C. Davis and (2) prayed that their title- be quieted except as to the said life estate. The Bank then by amended complaint prayed (1) that as to the Davis children the Bank be held to be a mortgagee in possession of the 80-acre tract, or (2) that as against D. C. Davis the Bank recover damages for the breach of his covenant of general warranty as to the 80-acre tract in the 1939 deed. D. C. Davis by proper pleading alleged (1) that the Bank knew he had only a life estate in the 80-acre tract, and (2) that a mutual mistake had occurred in the preparation and execution of the 1939 deed. He prayed that the deed be reformed to show that he conveyed and warranted only a life estate in the 80-acre tract. Upon the trial of the issues the Chancery Court (1) dismissed the Bank’s complaint and amended complaint, and (2) found for D. C. Davis on his cross-complaint and decreed a reformation of the 1939 deed to show that D. C. Davis conveyed and warranted only a life estate to the 80-acre tract. The Bank has appealed. I. Reformation. We hold that the learned Trial Court erred in decreeing the said reformation of the 1939 deed. The cases hold that a court of equity will not reform a written instrument on account of mutual mistake, unless the proof of such mistake be clear, unequivocal and decisive. See McGuigan v. Gaines, 71 Ark. 614, 77 S. W. 52. The evidence in the case at bar does not measure up to the standard required by our holdings. D. C. Davis testified: ‘ ‘ Q. What did you think you were conveying on the eighty — your full title? A. To be fair, I didn’t know whether it had the eighty acres; I just signed these papers and I turned it over to him, and he said it ought to have been done ten years ago. Q. You say you don’t know the difference between a warranty deed and a quitclaim deed? A. Yes, sure, it reads on the back of it. Q. It reads on the back and tells you what it is ? A. Yes. Q. When you signed that, you knew it was a warranty deed, didn’t you? A. Sure, I knew it was a warranty deed. Q. And you signed that deed knowing it was a warranty deed, and conveying that property to the hank to get the thing settled? A. They simply fixed that up. Q. Did you read that deed? A. No, I didn’t read it. Q. You had a chance to read it? A. No, he said, ‘I have all the papers here; just sign it and I will give you your notes ’; and he gave me the ten thousand dollars worth of notes. Q. Did you read the deed? A. No, sir, I didn’t read it? Q. You can read, can’t you? A. Yes, sir. Q. And you knew it was a warranty deed? • A. I knew it was a deed to turn that stuff loose; I supposed it was a warranty deed.” The person who represented the Bank in the 1939 transaction is now deceased, and no other witness gave any stronger testimony for reformation than what has been quoted above. In short, the evidence as to any mutual mistake fails to be “clear, unequivocal and decisive”; so the decree awarding D. C. Davis a reformation is reversed. II. The Bank’s Claim Against the Davis Children. The Bank is not entitled to have its title quieted as against the Davis children. They were remaindermen after the life estate of D. C. Davis; they were not personally obligated on the debt; and there is no evidence that they authorized D. C. Davis to convey their interest to the Bank by the 1939 deed. The Bank’s possession of the land under the 1939 deed was not adverse to the Davis children, and the statute of limitations does not begin to run against the remaindermen during the continued life of the life tenant. LeSieur v. Spikes, 117 Ark. 366, 175 S. W. 413; Kennedy v. Burns, 140 Ark. 367, 215 S. W. 618. III. The Bank’s Claim to Be Mortgagee in Possession. The Bank is not entitled to any relief, as regards the remaindermen, on its claim that it became a mortgagee in possession when it took the deed from D. C. Davis in 1939 and entered into possession of the 80-acre tract. One sufficient reason for this holding is that the Bank did not take possession of the land under its mortgage, but as a purchaser under the general warranty deed, and has stoutly maintained that there was no mistake in the said deed. In Williams v. Wallace, 111 Ark. 509, 164 S. W. 301, we held that the relation of mortgagee in possession would not arise unless the taking of possession was done as mortgagee. Such is not shown to exist here. Neither was there a void or defective foreclosure as in Lesser v. Reeves, 142 Ark. 320, 219 S. W. 15. TV. Damages for Breach of Warranty. The Bank claims that it is entitled to recover damages from D. C. Davis for breach of the covenant of warranty as contained in the 1939 deed; and with this contention we agree. The Bank’s claim for damages is not premature. The ease at bar is not so similar to the cases of Deupree v. Steed, Belleville Land & Lbr. Co. v. Griffith, or Hamilton v. Farmer as to be ruled by them. Here, the Bank made the remaindermen (the Davis children) parties to the suit; and when they set up their title as remaindermen and prayed that it be quieted, then the Bank sought damages from D. C. Davis for breach of warranty ; and the decree of the court in effect found for the remaindermen. These facts differentiate this case from those just cited,- and constitute sufficient constructive eviction to prevent the action from being premature. Equity, having taken jurisdiction in the cross-complaints of the various parties, should retain jurisdiction for all purposes and do complete justice between the parties. So, the Bank is entitled to recover damages from D. C. Davis for breach of the covenant of warranty. V. Amount of Damages. The Bank failed to prove any damages. There was no proof as to the value of the land, the life estate, the remainder, or the value of this 80-acre tract as compared with the other lands in the deed. In short, there was an entire absence of any proof of damages. In Seldon v. Dudley E. Jones Co., 89 Ark. 234, 116 S. W. 217, we held that if the covenantee failed to prove any actual damages; then he could recover only nominal damages; and the rule of that case applies to the case at bar. Furthermore, in Bass v. Starnes, 108 Ark. 357, 158 S. W. 136, and Dilley v. Thomas, 106 Ark. 274, 153 S. W. 110, we held that when the plaintiff is entitled to nominal damages only, judgment will be rendered in this Court for such nominal damages and costs. Therefore the judgment of the Chancery Court is reversed and the judgment is rendered here for appellant and against appellee, D. C. Davis, for nominal damages of one dollar for breach of the covenant of warranty; and this judgment carries with it all the costs of this case in both courts. Other eases so holding are collected in West’s Arkansas Digest, Reformation of Instruments, § 45. The “him” referred to is the representative of the Bank who handled the transaction with Davis. Other cases concerning mortgagee in possession are collected in West’s Arkansas Digest, Mortgages, § 199. See also 41 C. J. 612. 298 S. W. 494, 174 Ark. 1179. 177 Ark. 170, 6 S. W. 2d 36. 173 Ark. 341, 292 S. W. 683. For a collection of cases recognizing and enunciating this well-known rule of equity, see West’s Arkansas Digest, Equity, § 39.

Holt, J. January 22, 1946, appellant, H. S. Rag-land, sued appellee, R. S. Rhoads, and Ray Allen Rhoads, in the Northern District of Arkansas county, to recover $1,263.65 for work and labor performed under an alleged oral contract for drilling a well, and pulling, and installing a pump from an old well. February 1, 1946, separate summonses were issued for appellee and Ray Allen Rhoads. The sheriff’s re turns show service on R. S. Rhoads February 1, 1946, and on Ray Allen Rhoads, a non-resident, by delivering a copy to R. S. Rhoads, father of Ray Allen. The returns did not show the district or county in which the alleged service was had. Thereafter, February 26, 1946, appellee not having answered, or appeared, judgment by default was taken against R. S. Rhoads for the amount claimed. The complaint against Ray Allen Rhoads was dismissed. December 19, 1947, R. S. Rhoads appeared specially, and without waiver of any rights or entry of appearance, filed motion to set aside the default judgment on the grounds that he had never been served with process, knew nothing of the filing of the suit against him, or its pendency, until in December, 1947, and that he had a good and valid defense, alleging that appellant contracted with him to construct, for appellee, a rice irrigation well, to produce, and warranted to produce, 600 to 700 gallons of water per minute; that appellant drilled well on land of appellee but it did not, and never would, produce 600 gallons of water per minute; that it never produced more than 300 gallons per minute, at irregular intervals, which was not practical; and that appellee was forced to abandon the well and make other provisions for irrigating his rice after appellant refused to comply with his contract. Appellee further alleged that he was, at the time the suit was filed, and is now, a resident of the Southern District of Arkansas county. Appellee’s motion was presented to the trial court April 30, 1948, and after- the hearing on the issues presented, the court found, in effect: 1. That R. S. Rhoads had alleged and proved a prima facie defense. 2. That R. S. Rhoads had not been served with summons. 3. That R. S. Rhoads had no knowledge of the filing of ■ the suit, prior to issuance of execution under default judgment sought to be set aside. 4. That R. S. Rhoads was a resident and citizen of the Southern District óf Arkansas County on pertinent dates,' and not a resident of Northern District at such times. Accordingly, a decree was entered setting aside the judgment, quashing the service, dismissing appellant’s suit “for want of jursidiction without prejudice,” and that the appellant take nothing thereby. This appeal followed. Appellee successfully sought to vacate and set aside the default judgment against him under the provisions of Ark. Stats., (1947), § 29-506, sub-division 7; Hunton v. Euper, 63 Ark. 323, 38 S. W. 517. He was required to prove not only that he had not been served with summons, but also to produce sufficient evidence to make a prima facie showing of the truth, or existence, of a valid defense, and further that he did not have knowledge of the existence of the suit against him in time to make a defense. We have many times announced the rules governing in cases such as the one now presented. We said in C. A. Blanton Co. v. First National Bank of Marked Tree, 175 Ark. 1107, 1 S. W. 2d 558: “This court is committed to the rule that ‘one who is aggrieved by a judgment rendered in his absence must show not only that he was not summoned, but also that he did not know of the proceedings in time to make a defense, in order to obtain relief.’ Fore v. Chenault, 168 Ark. 747, 271 S. W. 704; State v. Hill, 50 Ark. 458, 8 S. W. 401; Moore v. Price, 101 Ark. 142, 141 S. W. 501; Quigley v. Hammond, 104 Ark. 449, 148 S. W. 275; First National Bank v. Dalsheimer, 157 Ark. 464, 248 S. W. 575. “A party against whom a judgment is rendered must show a meritorious defense in order to get the judgment set aside. King v. Dickinson-Reed-Randerson Co., 168 Ark. 112, 269 S. W. 365; Moreland v. Youngblood, 157 Ark. 86, 247 S. W. 385; Minick v. Ramey, 168 Ark. 180, 269 S. W. 565,” and in Knights of Maccabees of the World v. Gordon, 83 Ark. 17, 102 S. W. 711, we said: “It would necessarily follow that, if the judgment could not be set aside upon motion or complaint, evidence must be heard by the court before it could adjudge that there is a valid defense. But, as the truth of the defenses are not finally tried in the proceedings to vacate the judgment, enough evidence to make a prima facie showing of the truth or existence of the defenses would he sufficient to authorize the court to vacate the judgment.” See, also, O’Neal v. B. F. Goodrich Rubber Company, 204 Ark. 371, 161 S. W. 2d 52. Appellee testified positively that he had never been served with summons and knew nothing about the suit until some time in December, 1947. There was other evidence tending to corroborate appellee, and we think, when all the facts are considered, they were sufficient to support the court’s finding that appellee had not been served and knew nothing about the suit in time to make his defense. The evidence in support of appellee’s alleged meritorious defense, which we do not detail, was, we think, sufficiently substantial to- support the court’s finding that a prima facie showing was made by appellee on this issue. On the whole case, we conclude that the judgment should be and is affirmed.

Frank G. Smith, J. Appellee sued appellant, her husband, for a divorce and as grounds for that relief alleged that he had, by his course of conduct long pursued, rendered her condition as his wife intolerable. A decree was rendered upon the grounds alleged, from which is this appeal. The parties were married June 22, 1920, and for a number of years lived together without unusual discord. They have occupied since their marriage a home owned by appellee. The inception of the discord was the appellant’s practice of frequently absenting himself from the home, spending the night away from there, and when appellee would inquire about his absence he would tell her that it was none of her business. At the time of the trial, from which is this appeal, appellant was between 57 and 60 years old, and appellee admitted that she was 87. Both admitted that they had ceased to live together harmoniously and appellant attributed this fact to the interference of appellee’s daughters, both being about as old as appellant. In addition to her home, the parties owned two other lots, one as tenants by the entirety and the other was owned by appellant individually. The disposition of this property made in the decree is not questioned. Appellant brought his father, who was an old man of the same age as appellee, to the home, and he resided there for twelve years or more. His presence became objectionable to appellee, as she and her father-in-law did not get along well together, and on one occasion he snatched the dish rag out of her hand while she was engaged in the kitchen. Appellee complained of this and of other officiousness of her father-in-law, but appellant told her that his father was an old man and she would have to endure his conduct as he came first with him. On the other hand, appellant objected to the visits of his wife’s two daughters, and one of them ceased to visit her at her home because of appellant’s conduct. The other daughter testified that she continued to visit her mother notwithstanding appellant’s conduct. This daughter had married and moved to Columbus, Ohio, but had returned home at her mother’s request. Appellee gave this daughter a deed to the home, which was duly delivered. Evidently this deed was intended to operate in the nature of and as a substitute for a will, as possession of the deeded property was not taken. The daughter testified that it was her intention to take care of her mother, and that she was there for that purpose. Relations between appellant and appellee became more strained after he learned of this deed and he continually fussed with and quarreled at appellee, who was in feeble health and who, after the most severe of these quarrels, would have nervous spells which would confine her to her bed, and the testimony of relatives, including a nephew, was to the effect that appellant was indifferent to his wife when she was ill and unsympathetic with her. Appellee was a fortune teller, and called herself a consultant, from which employment she earned money, which she contributed in part tó the support of the household, and acquired the town lots above referred to. The discord culminated when someone took from appellee $1,400 in cash which she had concealed in hex-room. She called officers of the law, who made investigation, and although she suspected appellant of having taken her money, she refused to have him arrested, saying to the officers that she and her husband would talk the matter over. She testified that she and appellant did talk the matter over and that he returned $300 of the money axxd promised to repay the balance in monthly installments, but that after makixxg a few payments as agreed, appellant refused to continue the payments. All of this appellant denied. The money was never recovered except the payments made as above stated. At any rate, the relations of the parties became more strained and according to appellee, appellant became more acrimonious in his dealings with her, and her testimony, corroborated by members of her family, was to the effect that after -these quarrels appellee would have nervous spells which confined her to her bed. All of this appellant denied, his testimony being to the effect that he was not only considerate, but was an indulgent husband, and that he contributed his earnings to the upkeep of his household and that his quarrels with his wife were precipitated by the interference of hex-children and members of her family, and that he and his wife got along harmoniously when they were not around. There are coxiflicts in the testimony in regard to matters stated which cannot be reconciled, but the recitals of the decree indicate the finding that appellee’s vex-sion of their relationship was accepted as true, and that because of appellant’s conduct appellee’s coxidition as appellant’s wife had become intolerable. Appellee’s right to the divorce is the only question raised in appellant’s brief, and we think the preponderance of the testimony' supports the findings of the decree which is accordingly affirmed.

George Rose Smith, J. The jury found the appellant guilty of rape and imposed the death penalty. This appeal is from a judgment entered upon the verdict. The crime'occurred several hours after midnight on April 10, 1949. The prosecutrix, an eight-year-old girl, had been put to bed at home. She testified that when she awoke she was in a car with a man. He stopped the car in a deserted street and put her in the back seat. He then removed her panties, opened his trousers and got on top of her. The child did not specifically describe the act of penetration but did say that the man was hurting her and that she was crying and asking to-be taken home. Eventually she was put out of the car and told to walk home. The child’s mother, whom she awakened upon her return at five o’clock in the morning, testified that her daughter was covered with blood from her throat down to her toes. A physician who treated the child found the membrane of the vaginal canal so severely torn that three fingers could be inserted, although the opening would normally have been about half the size of a man’s little finger. Fifteen stitches, were required to close the wound. The prosecutrix was able to identify the car as an ABC taxicab. Investigation at the cab company’s place of business revealed a cab having dark stains on the front and rear seat covers. It was learned that appellant had been assigned to drive the vehicle during the night and that after turning in his cab he had left for Hattiesburg, Mississippi. The authorities there were notified and took appellant into custody at about eight o’clock that night. When arrested he was wearing a pair of trousers having reddish stains around the fly, and in his room at a tourist court was found a pair of shorts similarly stained. Both garments bore the appellant’s laundry mark. Appellant was returned to Blytheville the next day and questioned about the crime by the sheriff. This officer testified that appellant seemed cool and unconcerned, displaying a “smartish attitude.” He stated that the accused voluntarily confessed his guilt, after having been warned that any statement he might make could be used as evidence against him. In his confession appellant said that his passion had been aroused during a trip with a man and two women as passengers. He tried to go up to the women’s hotel room, but the desk clerk refused permission. Appellant had formerly been in the habit of spending the night with a woman of his acquaintance, and he decided to go to the house where she had lived, not knowing whether it was still her residence. Finding the door unlocked he entered the house and saw the prosecutrix lying asleep. He picked up the sleeping child and carried her to his taxicab. From this point his confession is in substance the same as the prosecutrix’ testimony, except that he explicitly admits penetration and the act of intercourse. There was a great deal of additional testimony, which we need not summarize except as it touches appellant’s contentions. I. The first contention, in the order of events at the trial below, is that a copy of the information was not served upon the accused at least forty-eight hours before the arraignment. Ark. Stats. (1947), § 43-1204. This contention is based on a deputy sheriff’s testimony that he served the bench warrant but could not say whether a copy of the information was attached. This uncertainty was eliminated, however, by the testimony of the prosecuting attorney, who stated that he watched the clerk make out the bench warrant, attach the information, and hand the documents to the deputy sheriff. The accused was in the courtroom at the time, and the prosecuting attorney saw him receive both instruments. This occurred on Wednesday morning; the arraignment took place on Friday afternoon. This testimony sustains the finding that the information was properly served. II. During the selection of the jury the prosecuting attorney was permitted to ask each juror if he had any conscientious scruples against the imposition of the death penalty. The statute defines implied bias as including such conscientious opinions as would preclude the juror from finding the defendant guilty, of an offense punishable by death. Ark. Stats. (1947), § 43-1920. It is ar gued that the State should have been allowed to inquire only whether the juror’s conscience would preclude his finding the defendant guilty, thereby permitting the service of jurors who would vote for a verdict of guilty but approve only the alternative penalty of life imprisonment. The history of our statutes rebuts this suggestion. When the statute defining implied bias was enacted the death penalty was mandatory; so it was then sufficient for the legislature to refer merely to a finding of guilt, the punishment following as a matter of course. Not until 1915 did the legislature give the jury the option of imposing life sentences in capital cases. Ibid., § 43-2153. The legislature evidently meant for the jury to exercise its discretion in selecting the punishment, but it is obvious that a juror can exercise no discretion if his conscience does not permit him to vote for the death penalty in any case. The statutory history in Idaho has been identical with our own, and there it is held proper for the State to inquire whether a juror has scruples against capital punishment. State v. Wilson, 41 Idaho 616, 243 P. 359. Among many other cases approving this inquiry when the jury in its discretion may impose a life sentence are: Shank v. People, 79 Colo. 576, 247 P. 559; State v. Leuch, 198 Wash. 331, 88 P. 2d 440; State v. Favorito, 115 N.J.L. 197, 178 A. 765. III. The defense counsel sought to ask a prospective juror if he would feel obligated to impose the death penalty rather than life imprisonment upon a finding of guilty. There was no prejudicial error in the trial court’s refusal to allow this inquiry. Appellant argues that his question was merely the converse of the State’s inquiry as to conscientious scruples, but we are unable to agree. The trial court has no discretion in permitting the State’s inquiry, for the statute expressly recognizes sueh scruples as a cause for challenge. There is no corresponding statutory recognition of implied bias in favor of capital punishment; so the matter rests within the trial court’s discretion. We have pointed out that the possible causes of bias are infinite. Pierce v. Sicard, 176 Ark. 511, 3 S.W. 2d 337. It is for this reason that the trial court is necessarily given a broad discretion in con trolling the examination of veniremen. Here the trial court stated that he did not think the juror could give a definite answer to. the question without knowing all the evidence to be presented. In the absence of anything in the juror’s earlier interrogation to indicate that he had a marked predilection for capital punishment we have no basis for finding an abuse of discretion. IV. It is argued that the prosecutrix, at the age of eight, is not shown to have been a competent witness.’ This too is a matter that is primarily for the trial court to decide, since he is best able to judge the child’s intelligence and understanding of the necessity for telling the truth. Wigmore on Evidence, § 507. In criminal cases we have approved the trial court’s action in allowing children as young as this prosecutrix to testify. DeVoe v. State, 193 Ark. 3, 97 S.W. 2d 75; Hudson v. State, 207 Ark. 18, 179 S.W. 2d 165. V. Several contentions stem from the State’s introduction of appellant’s confession. It is first argued that the corpus delicti had not been established, as the prosecutrix did not describe the act of penetration. If it were necessary that this element of rape be proved in every case by an eye-witness, the accused could not ordinarily be convicted if the prosecutrix’ vision had been obscured by darkness, unconsciousness or any other cause. But that is not the law; penetration, like other facts, may be proved by means other than an account based on visual observation. Here the prosecutrix stated that the accused removed her panties, opened his trousers, got on top of her and caused her to suffer pain. In addition to this testimony the record shows her physical .condition immediately after the assault, a physician’s opinion that she had been entered, and the state of appellant’s clothing when he was arrested. In view of this uncontradicted testimony the jury could hardly have reached any conclusion except that penetration had occurred, even if the confession had not been introduced. VI. As we have seen, the appellant first confessed his guilt to the sheriff on the evening of his return to Arkansas. Other witnesses then came into the room, aucl the story was repeated in their presence. The next morning the accused was put under oath and interrogated by the prosecuting attorney, a stenographic record of this proceeding being made. At the trial the sheriff was first examined in the judge’s chambers; the court, over the appellant’s objection, ruled that the confession was voluntarily made. The witness was then permitted to detail the confession in the jury’s presence. The' State then offered the transcript of the later interrogation, the reporter having verified its accuracy. The defense objected on the ground that since the transcript had not been signed it amounted merely to an oral confession, so that the reporter could use the transcript only to refresh his recollection of what was said. In effect the court sustained this objection, as a ruling was reserved and the transcript was not later admitted in evidence. It is now urged that it was error to permit the prosecuting attorney to refer to the third version of the confession in his opening statement to the jury, since the written transcript was not introduced. We have held, however, that a narration of a confession in the opening statement is reversible error only if the confession is not later introduced in evidence. Smith v. State, 205 Ark. 1075, 172 S.W. 2d 248. Here the prosecuting attorney, in opening the case, detailed the contents of the first oral confession only; all he said about the third version was that the accused repeated the statements already made. In any event, a complete answer to appellant’s contention is that before the State rested it had introduced witnesses who narrated each of the three versions of the confession — which in substance were all alike. Thus it cannot be said that the opening statement contained any version of the confession that was not later brought before the jury. An allied contention is that the court erred in per- ■ mitting oral proof of a confession later reduced to writing. It will be remembered, however, that the written transcript was excluded upon appellant’s insistence that it could be used only to refresh the reporter’s recollection of an oral confession. Appellant cannot be permitted to have the transcript excluded, in the trial court upon the theory that the confession was oral and then urge reversal here upon the theory that the confession was written. VII. Appellant complains of the court’s failure to instruct the jury not to consider the confession unless it was voluntarily made. The testimony that the. confession was voluntary is undisputed. Several witnesses described the attendant circumstances; the accused did not take the stand to contradict their statements. Under our practice the question whether the confession was voluntary goes to the jury only if the evidence raises a doubt as to this issue. Nelson v. State, 190 Ark. 1078, 83 S.W. 2d 539. Here the State’s uncontradicted evidence, if believed by the jury, did not raise a doubt; so the trial court was not required to submit the issue on its own motion. We have held, however, that since the jury need not credit the officer’s statement that no force or threats were used in obtaining a confession, the accused is entitled to an instruction if he asks for it, even though the State’s proof is not contradicted. Henry v. State, 151 Ark. 620, 237 S.W. 454. Thus this issue narrows down to the question of whether the appellant requested a correct instruction on the subject. The record shows that he did not. When the instructions were being discussed in chambers the trial court submitted a proposed instruction that would have told the jury they were not to consider the confession unless they found, among other things, that it was.voluntarily made. Appellant objected to the instruction as offered and asked that there be added a statement that the confession must have been made ‘ ‘without duress, fear, intimidation, hope of reward, or without any inquisitorial methods.” The court refused the modification and later withdrew its own proposed instruction, without objection by the accused. There was no error in the court’s action, as these facts do not show a request for a correct instruction. If we assume that the court’s instruction was correct, it certainly was not requested by appellant. On the contrary, he objected to it when it was offered and did not object when it was withdrawn. What he did request was an instruction more favorable to him than the law requires : namely, that the confession must have been made “without inquisitorial methods.” The first definition of “inquisitorial” is: “After the manner of an inquisitor. ’ ’ An inquisitor is defined as :■ “ One who makes inquiry or investigation; specif., an officer of the law whose duty it is to investigate, as a sheriff or coroner.” Funk & Wagnalls New Standard Dictionary. Thus the jury could properly have taken the instruction as modified to mean that the confession could not be considered if it was obtained by the sheriff in the course of an investigation or inquiry. As this is not a correct declaration of law, the instruction as modified was properly refused. VIII. It is argued that the trial court erroneously refused to instruct the jury as to the lesser offense of assault with intent to commit rape. Such an instruction is unnecessary when the facts establishing the principal offense cannot be interpreted as proving the lesser offense instead. Whittaker v. State, 171 Ark. 762, 286 S.W. 937. Our recital of the facts shows that if rape was intended it was undoubtedly consummated. It was stated by a physician on cross-examination, however, that the prosecutrix’ injuries could have been caused by the use of a man’s hands. The argument now is that the accused may be a sexual pervert (he was so characterized by one witness for the defense) who did not either intend or accomplish an act of intercourse. The patent answer to this suggestion is that the proof still does not show the possibility of an assault with intent to rape; for one can intend to commit rape only if he intends to have sexual intercourse with his victim. There are many other assignments of error. We have painstakingly examined them all, as well as the other objections appearing in the transcript. They pertain to matters of criminal law and procedure that are firmly established in the State’s favor by statutes and decisions of long standing. It would add nothing to this opinion to include a discussion of all the errors assigned. Our summation of the evidence, winnowed from four hundred pages of testimony, demonstrates the seriousness of the offense and the want of mitigating circumstances. We are convinced that appellant was fairly tried under law and that the evidence fully sustains the verdict and judgment. Affirmed.

Frank G. Smith, J. Two indictments for misdemeanors were returned against appellant for the illegal sale of intoxicating liquors. In one, No. 363, the illegal sale was alleged to have been made to one J. E. Hudson, and in the other indictment No. 365, the sale was alleged to have been made to one Harry Golden. He was tried upon both indictments at the same time. He was found, guilty by the jury of making a sale to Hudson and not guilty of making the alleged sale to Golden, and he has prosecuted this appeal to reverse the judgment rendered on the verdict finding him guilty. For the reversal of this judgment appellant alleges the insufficiency of the testimony to support it, and that it was error to put him on trial on both indictments at the same time. As to the sufficiency of the testimony, it may be said that a discriminating verdict was returned. There was not sufficient testimony to support a finding that a sale had been made to Golden and appellant was acquitted on that charge, but there was positive testimony, although disputed, of a sale to Hudson. As to the consolidation of the cases, it may be said that under Initiated Act No. 3 of 1936, § 20, Par. 5, appearing as § 43-1010, Ark. Stats. (1947) these sales might have been charged in a single indictment without appellant’s consent. It was not error therefore to do subsequently what might have been done originally. This is especially true here as the record, which is somewhat ambiguous, but is no doubt as definite as appellant wished it to be, appears to reflect the fact that while appellant did not consent to the consolidation, that order was made without objection. Halley v. State, 108 Ark. 224, 158 S. W. 121; Silvie v. State, 117 Ark. 108, 173 S. W. 857; Drifoos v. State, 117 Ark. 491, 175 S. W. 1169; Davis v. State, 118 Ark. 31, 175 S. W. 1168. Finding no error the judgment is affirmed.

Ed. F. McFaddin, Justice. The State Commissioner of Revenues (hereinafter referred to as “State Commissioner”) filed a suit for discovery. From a decree refusing the prayed relief, there is this appeal. From October 1, 1943, to February 12, 1948, H. W. Pranger owned and operated a service station in Benton, Arkansas, and in the station he sold various items of merchandise as a retailer. lie failed to comply with any of the provisions of the Arkansas Cross Receipts Act (Act 386 of 1941); that is, he failed, entirely, to obtain a permit or make a report or pay the State the tax due on the retail sales. On February 12, 1948, Pranger sold his service station and entire stock of merchandise to J. D. Flournoy and J. C. Heath for approximately $6,000, and made disposition of the money as hereinafter detailed. In March, 1948, the State Commissioner determined a tax liability of $1,272 against Pranger, because of said retail sales and the delinquencies as above mentioned. A certificate of indebtedness was filed in Saline county as provided by § 11 of said Act 386. After execution and attachment had each been returned nulla bona, the State Commissioner on April 30, 1948, filed petition for discovery in the Saline Chancery Court. The defendants were H. W. Pranger, Mrs. H. W. Pranger, J. D. Fournoy, j. C. Heath and the Benton State Bank. In the petition the State Commissioner set out the facts as heretofore stated, and made other allegations, and sought to obtain certain money and property, claimed to lie- long to H. W. Pranger and in the possession of the other defendants, in an amount sufficient to satisfy the State’s claim against H. W. Pranger. In addition to the facts as previously stated, the following matters were developed in the trial in the Chancery Court. 1. Flournoy and Heath admitted owing Pranger a balance of $228.10 for the service station and merchandise. They were ordered to pay that balance into the court. 2. Flournoy and Heath had paid Pranger $5,832.46 on February 14, 1948, and he had deposited that amount to his credit in the Benton State Bank. From such money he had paid his debts to the bank and his supplying oil company; and on March 16, 1948-, had deposited $1,558.31 to the individual account of Mrs. H. W. Pranger, his wife. There was left only $30 in Pranger’s account in the bank, which was held to await the outcome of this suit. 3. From the said $1,558.31, Mrs. Pranger had left in her. said bank .account at the time of the trial, only $569.70; and she claimed this to be her separate property. In addition, Mrs. Pranger claimed two automobiles (a 1940 Buick sedan and a 1936 Ford pick-up truck) to be her separate property, even though she had registered both of these vehicles in her husband’s name. It was testified that Mrs. Pranger’s father gave her the money used by Mr. Pranger in the original purchase of the service station and the two automobiles; and it was claimed- that Mrs. Pranger had allowed Mr. Pranger to use her money and the vehicles. The Chancery Court held that the bank account and the vehicles were the individual property of Mrs. Pranger, and denied the State’s claim. To reverse that decree, the State has appealed. In Bunch v. Empire Cotton Oil Co., 158 Ark. 462, 250 S. W. 530, the wife had allowed her husband to use her separate property for many years as his own, and, when the husband became financially embarrassed, the wife attempted to assert her separate property claim against the creditors of the husband. Chief Justice McCukloch, speaking for this Court, said-. “We are of the opinion that Mrs. Bunch is estopped to claim a beneficial interest in the property, by reason of the fact that she has permitted the same to be held ostensibly by her husband to form a basis of his own credit. The case falls within the rule often announced by this court that ‘where a married woman permits her husband to use her separate estate as his own, and to obtain credit on the faith that the estate so used is his own, she will not be allowed afterwards to as.sert her claim to the property as against her husband’s creditors.’ Driggs & Co’s Bank v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78; Geo. Taylor Com. Co. v. Bell, 62 Ark. 26, 34 S. W. 80; Davis v. Yonge, 74 Ark. 161, 85 S. W. 90; Sharp v. Fitzhugh, 75 Ark. 562, 88 S. W. 929; Roberts v. Bodman-Pettit Lbr. Co., 84 Ark. 227, 105 S. W. 258; Latham v. First National Bank of Fort Smith, 92 Ark. 315, 122 S. W. 992; Goodrich v. Bagnell Timber Co., 105 Ark. 90, 150 S. W. 406.” The quoted holding in the Bunch case is ruling here. The State, in its claim for retail sales tax, is certainly in as strong a position as any other creditor. Mrs. Pranger, by her leniency with hex husband, put it within his power to become indebted to the State for the retail sales tax. If she had not let him use her money to purchase and operate the service station, then he would never have become indebted to the State for the tax, the amount of which is not here contested. The vehicles were also used in the business of the service station. Prom 1943 to 1948, H. W. Pranger was listed as the sole owner of the service station and the vehicles. The State is entitled to the balance in Mrs. Pranger’s bank account and a lien on the two vehicles. The judgment of the chancery court is reversed, and the cause is remanded with directions to enter a decree in accordance with this opinion. It appears that the State has pending an action against J. D. Flournoy and J. C. Heath, seeking to hold them liable for the amount due the State by Pranger; but that action is not before us in the present appeal, and nothing herein is in determination of that case.

George Rose Smith, J. The circuit court affirmed a Workmen’s Compensation Commission order awarding compensation to the appellee as the widow of Robert H. Scott. The Commission found that Scott’s exertions in carrying a heavy tool kit and welding torch to the second floor of his employer’s place of. business had caused hemorrhages that led to his death on May 20, 1947. The appellants — Scott’s employer and insurance carrier — contend that there was not sufficient competent evidence to sustain the award. We think the finding that Scott did carry the tools upstairs is supported by substantial evidence. Scott was a refrigerator repairman whose duties included working at the plant and the making of outside service calls. On the morning of April 28 Scott’s immediate superior, B. J. Roberts, told him which work was urgent. Scott replied that he would have to get his tools and went downstairs. The weight of the tool kit and welding unit is about one hundred pounds. Ordinarily Scott would have used the elevator, but it was not in operation that morning. Roberts did not actually see Scott ascend the stairs, but he testified that he heard the tool kit rattling as .Scott made the ascent. There was also evidence that the tools were customarily kept in the truck assigned to Scott and that they were found at his place of work on the second floor shortly after his seizure. This testimony was corroborated by appellee’s statement that her husband later told her about carrying the tools upstairs. See Ark. Stats. (1947), § 81-1327. This evidence is sufficient to support the Commission’s conclusion on this disputed point. About ten minutes after Scott returned to the second story Roberts heard a noise and discovered Scott lying on the floor in a semi-conscious condition. He was taken to the hospital and remained there two days, his malady being diagnosed as a subarachnoid hemorrhage. After his discharge from the hospital Scott remained at home until he suffered a second attack on May 14. He was returned to the hospital and died there on May 20. An autopsy revealed a small subarachnoid hemorrhage, two or three weeks old, and a massive cerebral hemorrhage to which death was attributed. It was not possible to tell if the hemorrhage of May .14 had continued until Scott’s death or if there had been a third hemorrhage on May 20. It cannot be said that there is no substantial evidence to show that the hemorrhages were caused in part by Scott’s activity in carrying the tools. The three doctors who testified agreed that Scott had a congenital weakness in certain blood vessels and that a hemorrhage would have occurred eventually in any event. In view of the congenital defects it might have happened spontaneously, even while the patient was lying in bed asleep. But all three physicians stated that the effort expended in climbing the steps with the tools could have precipitated the series of hemorrhages, and one of them was of the opinion that this exertion did in fact cause the hemorrhages. 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. McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210. Affirmed.

Minor W. Millwee, J. T. A. Blankenship was a resident of Greene County, Arkansas, at the time of his death on June 10, 1948, at the age of 65. He left surviving him three children as his sole heirs at law. They are C. W. Blankenship, a son, and Floice Blankenship Toombs, a daughter, who are thé appellants here, and a son, Loice Blankenship, the appellee. At the time of his death, decedent owned his farm which was worth approximately $12,000 and personal property of the value of approximately $8,000. On June 16, 1948, appellee applied for an order admitting to probate an instrument dated February 14, 1948, purporting to be the last will of his father. On the same date there was filed the affidavits of the two attesting witnesses to the will. Under the terms of the will decedent devised and bequeathed all his property to appellee who was also appointed executor to serve without bond. The will mentions appellants and provides that they shall receive nothing “for the reason that they are already amply provided for and I feel I have done my part by each of them”. Appellants filed their protest and objections to probate of the will on the grounds of lack of mental capacity and undue influence. After a three day hearing at which some 550 pages of testimony were taken, the trial court entered an order finding that decedent had testamentary capacity and was not subjected to undue influence at the time of the execution, of the will, which was ordered admitted to probate. The principal contention for reversal of the judgment is that the trial court’s, finding as to testamentary capacity and undue influence is against the preponderance of the evidence. We shall not attempt a detailed discussion of the highly conflicting evidence on these issues. A majority of the witnesses are relatives of the parties and their testimony is in hopeless conflict as to the extent and nature of decedent’s physical and mental condition before and after- the execution of the will on February 14, 1948. This testimony is characteristic of the extravagance of statement, bias and partisanship that often result when brother is arrayed against brother in legal combat. T. A. Blankenship resided in Missouri where he engaged in farming for many years prior to 1947. Early in 1947, he sold his farm and moved to one that he purchased in Greene County, Arkansas. Each of the appel lants lived with their father on the Missouri farm until about 1932 when they both married and moved to homes of their own. After appellee married he remained with his father and moved to the Arkansas farm with his wife and seven children in 1947. Although appellee was lame from childhood, he was not disabled and assisted his father in farming operations, taking whatever the latter chose to pay him for his services until 1948 when he received the customary one-third and one-fourth crop rent. Neither decedent nor his children ever attended school. Appellant, C. W. Blankenship owned his 114-acre farm at the time of his father’s death. Appellant, Floice Toombs, and her husband were not so successful at farming and decedent made a loan of $1,000 to them in May, 1947, under an agreement that the Toombs would sell their place and repay the loan. Mrs. Toombs testified that they had a crop failure in 1948 and were unable to make payment. In February, 1947, decedent suffered what his physician, Dr. E. J. Haley, designated a mild stroke. Dr. Haley treated decedent at intervals from the time of his first illness until his death. He testified that decedent was suffering from arteriosclerosis, high blood pressure, and, at times, a kidney condition; that while his illness affected him mentally, his condition never became psychopathic or reached the stage where confinement in an institution was necessary; that decedent’s mind would come and go and he experienced lucid intervals when his “mental qualities” appeared normal from February, 1947, until the date of his death. In response to a hypothetical question based on facts testified to by witnesses for appellants, Dr. Haley stated that decedent would not, in his opinion, have been mentally capable of executing a will on February 14, 1948. In answer to a similar question based on a state of facts as related by witnesses for appellee, he stated that decedent would have had sufficient mental capacity to execute the will in question. Decedent consulted Dr. Haley at his office on the day the will was executed, but the doctor would not undertake to say what his mental condition was at that time. Tlie testimony on belialf of appellees discloses that on the morning of February 14, 1948, decedent got the deed to his farm from his daughter-in-law and came to Paragould with appellee and some of his children. The children went to a show and decedent and appellee went to the courthouse where decedent paid his taxes and procured a poll tax receipt. Decedent and appellee then separated and decedent went to his bank and cashed a check for $50 and made a visit to the office of Dr. Haley. He also went alone to the office of his attorney where he remained for some time and executed his will between 2:00 p. m. and 3:00 p. m. The will was witnessed by the attorney and Lester J. Johnson. Decedent explained to his attorney that appellant, C. "W. Blankenship, was “pretty well fixed” and did not need help; that he had given or made a loan of $1,000 to Mrs. Toombs and that she was fixed so she could take care of herself; that appellee had stayed with him and had received nothing for his labors, but a bare living, and decedent felt that everything he had was due to appellee’s efforts. After the will was dictated to the stenographer, it was read back to decedent and he stated that that was the way he wanted it. Decedent furnished his deed for land descriptions written in the will. Although he spoke distinctly, he misspelled the names of his children. The will was left with the attorney and placed in the office safe. Mrs. Joe Bynum, a teller at the Security Bank, testified that decedent usually came to her window and during the last several months of his life had witness to sign and witness his mark to checks. She stated that decedent was able to transact banking business without assistance from others who might accompany him; that he made his own deposits without making mistakes; and that he cashed a check for $50 on the date of the execution of the will. It was her opinion that decedent had sufficient mental capacity to make a will at that time. E. R. Browning, cashier of the bank, testified that he had known decedent since the early thirties and visited with him when he transacted business at the bank, and that he noticed no change in decedent’s mental condition during tlie time lie knew Mm. Decedent changed his hank account to a joint account with appellee sometime between April, .1947, and March, 1948. There was other evidence that decedent suffered from failing eyesight, was forgetful, and would at times become lost.- Most of the instances of loss of memory occurred after the execution of the will in question. There was also evidence that decedent became seriously ill on the evening of February 14, 1948, following Ms trip to Paragould. In the recent ease of Blake v. Simpson, 214 Ark. 263, 215 S. W. 2d 287, we reaffirmed the rule stated in Griffin v. Union Trust Co., 166 Ark. 347, 266 S. W. 289, as follows: “Old age, physical incapacity, and partial eclipse of the mind will not invalidate a will, if the testator has sufficient capacity to remember the extent and condition of his property without prompting, to comprehend to whom he is giving it, and be capable of appreciating the deserts and relations to him of others whom he excluded from participating in his estate. He is not required to do all those things, but should have capacity to do them.” We further said in the Blake case: “The principle is well established that it is not within the province of courts and juries to make wills for persons by decrees and verdicts rendered in will cases. Testamentary power inheres alone in the testator. Subject to restrictions and limitations fixed by statute, or by recognized rules of law and public policy, an owner may dispose of his property by will as he pleases. Within certain limits ‘he is permitted to project his individuality, his grasp and his desires, beyond the grave, and make them effective through his last Will and Testament’. The fact that his will is unjust, unnatural, or unreasonable does not affect its validity. No relative or next of kin, no matter how near they may be, or how deserving of the testator’s bounty, has any legal or natural right to the estate which can be asserted against the legally executed will of the testator. Thompson on Wills, Second Edition, § 18, p. 31.” See, also, Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695; Pernot v. King, 194 Ark. 896, 110 S. W. 2d 539; Shippen v. Shippen, 213 Ark. 517, 211 S. W. 2d 433; Scott v. Dodson et al., 214 Ark. 1, 214 S. W. 2d 357. We have also repeatedly held that the questions of testamentary capacity and undue influence are so interwoven in any ease that the court necessarily considers them together. In Phillips v. Jones, 179 Ark. 877, 18 S. W. 2d 352, the court said: “Where the mind of the testator is strong and alert the facts constituting the undue influence would be required to be far stronger in their tendency to influence the mind unduly than in another, where the mind of the testator was impaired, either by some inherent defect or by the consequences of disease or advancing age. It is clear that feeble intellect will not be of itself sufficient to establish lack of testamentary capacity, for that condition must be so great as to render the testator incapable of appreciating the nature and consequences of his act; but this feebleness may be inferred when, from the facts in proof, it is apparent that he was incapable of appreciating the deserts and relations of those whom he excludes from participating in his estate, although he might have had the ability to retain in memory, without prompting, the extent and condition of his property, and to comprehend to whom he was giving it.” It was also held in Brown v. Emerson, 205 Ark. 735, 170 S. W. 2d 1019, that, where a testator’s disposition of his property is unaccountably unnatural, less evidence is required to establish undue influence. On the question of undue influence we have many times reaffirmed the following statement of the court in McCulloch v. Campbell, 49 Ark. 367, 5 S. W. 590: “As we understand the rule, the fraud or undue influence, which is required to avoid a will, must be directly connected with its execution. The influence which the law condemns is not the legitimate influence which springs from natural affection, but tiie malign influence which results from fear, coercion or any other cause that deprives the testator of his free agency in the disposition of his property. And the influence must be specially directed toward the object of procuring a will in favor of particular parties. It is not sufficient that the testator was influenced by the beneficiaries in the ordinary affairs of life, or that he was surrounded by them and in confidential relations with them at the time of its execution. ’ ’ This is not a case where the testator has designated a remote kinsman or acquaintance outside the family circle as beneficiary to the exclusion of his own flesh and blood. While it may appear that decedent’s act in disinheriting two of his children was unjust and unnatural in the circumstances here, neither the probate court nor this court is authorized to strike down the will and to make what we might consider a more equitable disposition of decedent’s property unless the greater weight of the evidence shows that he did not have the mental capacity to realize the respective deserts and relationship of his children or that the disposition he chose to make was induced by undue influence. There is a paucity of evidence of undue influence. While decedent was on good terms with all of his children, there was doubtless a strong bond of affection and attachment between decedent and the son and grandchildren with whom he spent his last years. It is undisputed that appellee was a loyal and dutiful son whose industry and efforts contributed in a large measure to the accumulation of the estate left by his father. This close relationship may have influenced decedent in making his will, but the evidence is insufficient to show that it was corruptly exercised and exerted for that purpose. The issue of mental capacity presents a closer question and the testimony is in hopeless conflict. The trial court saw and heard the witnesses and we cannot say that his finding on the whole case is against’ the preponderance of the evidence. Appellants also contend that error was committed in the court’s refusal to permit the introduction of a written statement made by Dr. Haley to counsel for appellants prior to the trial. The writing contained some hearsay statements and it is not clear from fbo record for what purpose it was offered. The doctor was present and gave his testimony and counsel for appel lants declined to say that the written statement was offered for the purpose of impeaching him as a witness. The writing might have been admissible for this purpose since it stated that decedent was not, in the doctor’s opinion, capable of understanding ordinary business transactions during the last six months of his life. Doctor Haley had previously testified that he would not undertake to say whether decedent-was mentally capable of executing a will on Feb. 14, 1948. We find no error in excluding the written statement. We agree with appellants’ contention that Dr. Haley should have been permitted to give his opinion, based on his own personal knowledge, as to decedent’s mental capacity. Since he had treated decedent for over a year he was qualified to give his opinion based on either hypothetical facts as an expert or facts within his own knowledge, or both. 20 Am. Jur., Evidence, § 793. Again it is not clear from the record that the court refused to permit Dr. Haley to state his opinion from his personal knowledge. The court first sustained appellee’s objection to the testimony on the ground that it was merely a repetition of previous testimony given by the doctor. ■ After an extended colloquy, the court changed his ruling and overruled appellee’s objection. Instead of restating the question or asking for an answer, counsel for appellant again offered the written statement with Dr. Haley still on the witness stand. Even if we treat the court’s-rejection of the written statement as a refusal to permit Dr. Haley to give an opinion based on personal knowledge, we still conclude that the judgment of the trial court is not against the preponderance of the evidence. Affirmed.

Holt, J. April 13, 1948, by proper court order, School District No. 53 of Independence County was con solidatecl with appellee, School District No. 81 of that comity. June 10, 1907, C. H. Gunther and wife conveyed by warranty deed to School District No. 53 approximately one acre of land out of a 140 acre tract which they owned. This deed provided: “Said School District is to have and to hold said lands as long as they use it for school purposes and when it is not so used it is to revert back to the above described land'of which it is a part, and it is further agreed that said district shall allow all denominations to preach in there as long as one may use it.” The original 140 acre tract was later conveyed by the Gunthers to H. F. Caterlin who afterwards conveyed to appellant, Winkle, and wife. In neither of these deeds was there any mention of the prior conveyance of the one acre tract to the School District, but both deeds undertook to convey the entire 140 acre tract. Following the consolidation of the two districts, and at the end of the school term then in progress, appellee removed the seats and school furnishings from the school house in former district No. 53, and immediately appellant took possession of the one acre tract and the building and claimed and asserted title and ownership. August 28, 1948, appellee District, filed the present-suit in equity, in which it alleged, in effect, that appellant, Winkle, was in possession of the one acre tract and building in question, that it (appellee) was the owner, held title and was entitled to possession, that appellant was holding possession without right, and prayed that he be restrained from interfering with appellee’s right to said premises, that he be required to restore the property to its former condition, for damages, and other equitable relief. Appellant answered with a general denial, alleged that he held possession, title and ownership, that equity was without jurisdiction, thát the action was one solely in ejectment, and petitioned the court to transfer the cause to the Circuit Court for trial. Upon a hearing, the trial court denied appellant’s petition to transfer the cause to the Circuit Court and proceeded to determine the issues. This was error. This action was in ejectment and appellee had a full and complete remedy at law. Both parties were claiming title to the one acre tract and building in question, and the right to possession. It is undisputed that appellant was in actual possession and control when the suit was brought. He, therefore, had- the constitutional right to demand that the issues be tried in a court of law. No equitable issue was involved. The question of title was purely a legal one. “The equity jurisdiction to quiet title, independent of statute, can only be invoked by a plaintiff in possession, unless his title be merely an equitable one. The reason is that where the title is a purely legal one and some one else is in possession, the remedy at law is plain, adequate and complete, and an action of ejectment can not be maintained under the guise of a bill in chancery. In such case the adverse party has a constitutional right to a trial by a jury.” Pearman v. Pearman, 144 Ark. 528, 222 S. W. 1064. These principles of law have been carried through our decisions and reaffirmed in Fisk v. Magness, 193 Ark. 231, 98 S. W. 2d 958; Patterson v. McKay, 202 Ark. 241, 150 S. W. 2d 196; Rice v. Rice, 206 Ark. 937, 175 S. W. 2d 201, and Lowe v. Cox, 210 Ark. 169, 194 S. W. 2d 892. The latter case appears to be the last expression of this court on these principles. For the error indicated, the.decree is reversed and the cause remanded with directions to sustain appellant’s petition to transfer the cause to the Circuit Court for trial.

Holt, J. July 9, 1946, Juanita Yates sued Edward W. Yates for divorce and alimony. Constructive service was had on Edward W. Yates, he being a non-resident. November 30, 1946, on order of general attachment, an attachment was levied on certain real proper^ of Yates. December 27th following, Juanita Yates amended her complaint, asking for full value of property converted by her husband, Yates, and there was a decree ■January 2, 1947, granting her a divorce and a personal judgment, without personal'service, against Yates for $5,000. The attachments were sustained and it was ordered that all interests of defendant, Yates, he sold for the satisfaction of this decree. In accordance with the decree, the property was sold, purchased by Juanita Tates and confirmed April 12, 1947. Edward W. Yates appealed from that part of the decree awarding Juanita Yates personal judgment against him for $5,000. He remarried and died before the cause was heard by this court. Thereafter, the case Avas revived in the.name of the present administrator. This court (Lowrey, Administrator v. Yates, 212 Ark. 399, 206 S. W. 2d 1) reversed the decree holding: (Headnote 1) “Where appellee sued for divorce and after default on- the part of her husband she filed an amendment to her complaint praying for a division of property and recovery of judgment to compensate her for money belonging to her which he had converted to his own use, a neAv cause of action was set up rendering service of process on him necessary and in the absence of which the court was without jurisdiction to proceed. ’ ’ In remanding the case, Ave said: “For the error indicated, the decree is reversed and the cause remanded with directions to set aside the sale of the property involved, cancel the certificates of purchase to appellee, and for further proceedings consistent with this opinion. ’ ’ January 15, 1949, the administrator, Lowery, filed in this court an original proceeding in which he now seeks, by his petition, a Writ of Prohibition against the Hon. A. P. Steel, Chancellor of the Little River Chancery Court, to prohibit “respondent from granting and holding a new trial in said cause.” He alleged in his petition, among other things, “that portion of the decree, having to do with the judgment for Five Thousand Dollars ($5,000), was appealed to this court and reversed in the case of Lowery, Administrator vs. Yates and appears in 212 Ark., 399, 206 S. W. 2d 1,” and that the opinion contained the directive, supra. He further alleged that respondent lacked jurisdiction and “on the state of the record, petitioner earnestly insists that the mandate of this court, reversing the LoAvery case, supra, and remanding with directions to set aside sale of the property involved, cancel the certificates of purchase to appellee and for further proceedings consistent with the opinion meant nothing more than to render a decree in accordance with the record; because when new trials upon an old case, or any part thereof, or intent, it has become the established practice of this court, in equity cases to give special directions to that effect; and that the Writ of Prohibition should be granted.” We cannot agree. “The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Order of Railway Conductors of America v. Bandy, Judge, 177 Ark. 694, 8 S. W. 2d 448, and cases cited.” Merchants & Planters’ Bank v. Hammock, 178 Ark. 746, 12 S. W. 2d 421, and “The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction.” Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13. We hold that the Chancery Court has jurisdiction under the opinion, supra, and our directive therein, and is not, on the record presented, threatening to act in excess thereof. Whether the respondent’s future actions relating to this case may be right or wrong, are questions .which cannot be corrected by prohibition, but only by appeal. The petition for Writ of Prohibition is therefore denied.

Frank G. Smith, J. Appellant Ptak and appellee Jameson were opposing candidates for the nomination of the Democratic party for the office of Municipal Judge for the City of Fayetteville in the primary election held in that city February 24, 1948. The returns of the election as canvassed by the party committee, gave Jameson 975 votes, and Ptak 910 and Jameson was certified as the party nominee. Thereafter Ptak filed an election contest alleging that many illegal votes had been cast for Jameson, and that he, Ptak, had received a majority of the legal votes cast. Numerous motions were filed during the progress of the trial and these, with the answer filed by Jameson, raised the issues herein discussed. The validity and verity of the official list of persons who had paid poll taxes were questioned, but the court held that while there were some irregularities in its prep aration and publication, it had been prepared and published in substantial compliance with the law. The accuracy of the list was not questioned and it became the basis of this contest. We approve the holding of the court in this respect. One of the motions filed was to dismiss the Ptak contest on the ground that he had violated the law by opening the box containing the ballots and returns from Ward No. 4 of the city. There were four wards in which elections were held. The testimony in this respect appears to be that the chairman of the Democratic Committee under whose auspices the election had been ordered and held, had opened the ballot boxes and extracted the poll books and delivered these books to Ptak, who was near, but not actually present when the box was opened. The contention is that this action rendered Ptak ineligible to contest the election under § 4743, Pope’s Digest, as being a violation of the law which destroyed the presumption of the integrity of the returns of that box. The court overruled this contention upon the ground that Ptak .was not present, and did not participate in the opening of the box, but it was evidently done at his request and for his benefit. This action was highly improper, indeed was unlawful, § 4822,- Pope’s Digest, and prima facie would destroy the integrity of the returns from that box. Dodd v. Gower, 187 Ark. 717, 62 S.W. 2d, 1. However, it was affirmatively shown that the only thing done was to extract the poll books and the ballots themselves were not disturbed, nor was it contended that there had been any mutilation or alteration of the poll books. We therefore affirm the ruling of the court in this respect. After much testimony had been heard, Ptak filed an amendment to his complaint alleging that a number of electors whose right to vote had been challenged on other grounds, had failed to properly assess and were not qualified electors for that reason. This motion.to amend the complaint to contain this additional allegation was filed April 14th, and was overruled a.s stating a ground of contest not alleged in the original complaint. We affirm this action. We have held that in an election contest the' contestant cannot, after the expiration of the time for filing the contest, amend his complaint so as to set np a new cause of action, but that he may amend his complaint to make it more definite and certain as to any charge in the original complaint, and .that the refusal to allow contestant to file an amendment setting up a new ground of contest was proper when the time for filing an amendment had expired. Winton v. Irby 189 Ark. 906, 75 S.W. 2d, 656; Nelson v. Gray 190 Ark. 179, 77 S.W. 2d, 968. A large number of students of the University, located in Fayetteville, voted at the election and the great majority of these voted for Jameson. Ptak challenged 170 votes on the ground of non residence of the voters, most of which votes were cast by students at the University. Of the 170 thus challenged 104 were challenged on the additional ground that they were not on the certified list of voters and did not present the “other evidence” required by § 4745, Pope’s Digest, of their right to vote. The names of the 104 persons referred to appear on what was made as Exhibit “N” to the testimony offered in Ptak’s behalf. Defendant Jameson began the examination of persons whose names were on this Exhibit “N” and examined 18 of these and had 20 others present for examination when the parties entered into a stipulation reading as follows: “It is understood and agreed by and between counsel for the plaintiff and for the defendant that all witnesses appearing on Plaintiff’s Exhibit “N” would testify to the same statement of facts as the eighteen witnesses put on by the defense this morning.” The 18 witnesses examined before this stipulation was filed testified that they did not file poll tax receipts or certified copies thereof with their ballots. They were also examined as to their legal residence and the court found that 4 of the 18 examined were legal residents and counted their votes which were cast for Jameson, to which action Ptak duly excepted. Later in the trial Ptak proposed to examine others on this. Exhibit “N” as to their qualifications and right to vote in addition to the manner in which they had voted. There was evidently a misunderstanding as to the purpose and effect of this stipulation and the court held that further inquiry into the competency of persons whose names appeared on Exhibit “N” and had not been examined was concluded by the stipulation. This ruling is defended upon the ground that the court construed the stipulation as covering all questions of eligibility, except that of substantial compliance with § 4745, Pope’s Digest. This section deals with the subject of “Evidence of right to vote.” It provides that: “No person shall be allowed to vote at any primary election held under the laws of this State, who shall not exhibit a poll tax receipt, or other evidence that he has paid his poll tax within the time prescribed by law to entitle him to vote at the succeeding general State election. Such other evidence shall be: (a) A copy of such receipt duly certified by the clerk of the county court of the county where such tax was paid; Or (b) such person’s name shall appear upon the list required to be certified to the judges of election by § 4696. Or, if any person offering to vote shall have attained the age of twenty-one years since the time of assessing taxes next preceding such election * * * and possesses the other necessary qualifications, and shall submit evidence by written affidavit, satisfactory to the judges of election, establishing that fact, he shall be permitted to vote. All such original and certified copies of poll tax receipts and written affidavits shall be filed with the judges of election and returned by them with their other returns of election, and the said judges of election shall, in addition to their regular list of voters, make an additional list upon their poll books of all such persons permitted by them to vote, whose names do not appear upon the certified list of poll tax payers, and such poll books shall have a separate page for the purpose of recording names of such persons. ’ ’ The certified list of persons who.have paid poll taxes is prima facie evidence of their right to vote, but there are other qualified electors whose names do not appear on this certified -list, and the section just referred to and quoted from is intended to provide the manner and conditions under which such persons may vote and a substantial compliance with the statutes is essential to authorize such persons to vote whose names are not on the official list. The testimony in regard to such voters is to the following effect. A number of persons who had attained their majority since the regular assessing time had expired voted at the election. The statutes permit such persons to vote, but requires that an affidavit showing that eligibility to vote should be prepared and attached to their ballot. This was done, but a separate list of such voters and all others whose names were not on the official list was not prepared as the statute requires. However, the names of such voters were entered on the poll books or register of voters, and opposite each name was written the words “baby voter.” The purpose of the statute was thus accomplished though not in the manner prescribed by the- statute. It plainly appeared who these first voters were and nothing more would have been accomplished had a separate list thereof been made. A number of persons voted on poll tax receipts issued the voters in other counties, and a strict compliance with the statute would have required that their names be also entered upon this separate list. This was not done, but the poll books show the names of all such persons who had voted. This was done by requiring them to exhibit their poll tax receipts and opposite their names there was written the number of their poll tax receipts and the name of the county where issued, so that the regular poll book did in fact contain the information which the special list was intended to supply. This is a practice not to be approved as the statute should be literally complied with, and the names of all persons voting, which do not appear on the certified list, should have been shown on a separate list. There is no intimation that any fraud was intended or that any resulted, as the separate list would have furnished no information not disclosed on the regular poll book. We think the court therefore not in error in holding that the statute had been substantially complied with and that the votes of these electors should not be rejected on account of this irregularity. The big and controlling question in the case is that of the eligibility of many students whose homes had not been in Fayetteville before enrolling as students at the University. A number of these admitted that they were in Fayetteville for the sole purpose of attending the University, and that they did not intend to become residents of the City. All of' these votes were properly rejected. But there were others whose right to vote presented close questions of fact. The court heard the testimony relating to challenging votes, with great patience and passed upon the eligibility of each voter separately. A large number of young students had served in the Army and upon their discharge had entered the University under the Gr.I. Bill of Bights. This fact did not render them residents within the meaning of our election laws and the court so properly held. In passing upon the eligibility of these student voters the court applied the rule to test their eligibility announced in the case of Wilson v. Luck, 203 Ark. 377, 156 S.W. 2d, 795, which is to the effect that a person removing from his old home did not acquire a new domicile until he had abandoned his old one. In other words, for the purpose of voting a person does not have two domiciles with a right to choose between them. His domicile is either at one place or the other. The court announced the rule to be applied in passing upon the eligibility of the student that “A student who comes to Fayetteville for the sole purpose of securing an education does so without making a change of residence. It is necessary to have a tona fide intention to make Fayetteville his home permanently or for an in definite period and not to limit it to the time necessary to get an education. ’ ’ This appears to conform with the weight of authority as shown in the annotation to the case of Anderson v. Pifer, 37 A. L. R. 134. We have before us a record of enormous size, as many of the students were examined touching the permanency of their residence in Fayetteville, but we think the court correctly applied the rule above stated in all cases except as herein stated. The city passed an ordinance providing for assessing and collecting a license fee for the privilege of operating motor vehicles upon the streets and alleys of the City of Fayetteville, ‘ ‘ specifying the rates and ‘terms; Defining certain words, and for other purposes.” The ordinance provided that the words ‘ ‘ resident of the City of Fayetteville, Arkansas, for the purpose of the ordinance, means any person whose place of abode is within the limits of the said City,” with the proviso that the words above quoted should not be construed to include bona fide students of the University of Arkansas or the Fayetteville Business College. The City Clerk testified that at first free licenses were issued to all students at either of the above named institutions, but that later the exemptions in the ordinance were construed as applying only to non-resident students and after 1946 stickers were issued only to- non-resident students who applied therefor as non-resident students. The City Clerk furnished a list containing 20 names of students who had been issued current automobile stickers as non-residents. No charge was made against these students who otherwise would have been required to pay the $5.00 license fee charged all others. In other words, these 20 students had by their apparent representation that they were non-resident students obtained exemption from paying the license fee required of all others, yet they had voted at the election as residents of the city. The case of Williams v. Dent, 207 Ark. 440, 181 S. W. 2d, 29, turned upon the question of the residence of one Williams in the City of Little Eock, his right to serve as a member of the city’s waterworks commission being de pendent upon that fact. It was there said: “Whether Williams had moved from the City was a matter for the Council to determine. The holding in Hillman v. Hill-man, 200 Ark. 340, 138 8.W. 2d, 1051, was that in considering evidence relating to one’s intentions to become a citizen of a particular place, and in weighing its sufficiency, it was necessary to look behind mere physical action and to appraise human behavior. In other words, evidence of intent is largely controlling, but circumstances may belie protestations of purpose; and the ex-aming body is not required to believe claims of intent when circumstances point to a contrary conclusion.” The circumstances under which the students obtained this exemption from paying the license fee are not detailed. Ordinarily this action in obtaining this exemption which was granted only to non-resident students implies a representation as to their place of residence and unless explanation is made the court should declare them prima facie ineligible to vote as residents of the city. We think the court was in error in the interpretation and application given to the stipulation regarding Exhibit “N” above copied. The parties differ very radically as to its purpose and effect. The court was justified in holding that it was anticipated that the witnesses not called to testify would testify as had those who had been examined, but the insistence is that this related only to the manner in which they had voted, and the record made thereof and that it was not intended to stipulate that they were otherwise qualified electors. This Exhibit “N” above referred to embraced the names of voters challenged as above stated on the grounds, among others, that the proper return of the names as electors was not made. The defendant began an examination of persons whose names appeared on this Exhibit “N” as the burden was upon him to prove the persons' were qualified as their names did not appear on the certified list of voters. Appellant undertook and offered to show after the stipulation above copied had been filed that the persons whose names appeared on Exhibit “N” were not qualified to vote although they had voted in a manner conforming to law in respect to making a list of such names. In view of the misunderstanding of the purpose and effect of the stipulation we think the court should have permitted appellant to have axamined those persons appellee had not examined whose names appeared on Exhibit “N,” including the name of R. L. Tipton whose name had inadvertantly been omitted from the list. The judgment will, therefore, be reversed and the cause remanded, but upon the new trial it will not be necessary to try again the numerous questions relating to the eligibility of the voters, as we find no error except in two respects. First, the students who had obtained free licenses should be held ineligible in the absence of a showing that no fraud had been practiced by them in obtaining their exemption from the payment of the license fee and: Second, Appellant should be permitted to continue the examination of the persons whose names did appear on Exhibit “N.” The judgment will be reversed for the purpose only of passing upon the two last questions just stated.

Minor W. Millwee, Justice. Appellants and appellees own and reside on adjoining residential lots in the City of Fayetteville. Appellants’ lot lies immediately north of the lot of appellee and each of the lots is described in the respective deeds of the parties as being 50 feet wide and 194 feet long facing west on Hill Street. In July, 1948, appellants, without notice to appellee, caused a survey to he made of their property. According to the survey a driveway used by appellee to enter his garage from Hill Street encroached about 4% or 5 feet upon appellants’ lot. Appellant began construction of a rock wall along the west end of the line established by the survey and appellee instituted this suit to enjoin construction of the wall and to quiet title to the driveway which he alleged had been acquired by adverse possession and by an agreed boundary through recognition by the parties and their predecessors in title for a period much longer than seven years. Appellants’ answer denied the allegations of the complaint and asserted that appellee’s use of the driveway was permissive. The answer also prayed that a temporary restraining order issued by the court be dissolved and for damages in the sum of $500. Trial resulted in a decree for appellee, and the temporary restraining order was made permanent. The court found that a fence between appellee’s lot and the adjacent owner on the south had been recognized for many years as the true line between the two properties and that appellee and his predecessor in title had held adverse possession of a parcel extending 50 feet north from said fence and including the driveway in question for more than seven years; that adjoining owners for a long number of years had acquiesced in a boundary line between the lots of appellants and appellee marked by the north line of appellee’s driveway; and that appellee was entitled to the free and unobstructed use of said driveway. Appellants question the sufficiency of the evidence to sustain the decree and contend that appellee failed to meet the burden of proof required to establish either an easement by adverse possession or an agreed boundary line between the properties. The parties purchased their lots in 1945. Prior to that time the houses on said lots had been occupied for many years by tenants of the respective owners. The evidence on behalf of appellee discloses that there is a garage and driveway on the north side of appellee’s lot and also on the north side of appellants’ lot used by each owner of the respective lots or their tenants for more than seven years. W. M. Armstrong owned the lot now owned by appellee for at least 15 years prior to 1936. His widow testified that those residing on the property had used the driveway for the past 26 years and that she and her husband claimed ownership of the driveway. Other neighbors testified to the continued use of the driveway by tenants residing on the lot prior to appellee’s purchase in 1945. Appellee and his wife lived on the lot now owned by appellants from 1942 until the purchase of their lot in 1945, during which time they used the garage and driveway north of the house now owned by appellants while tenants residing on the lot now owned by appellee used the driveway in controversy in this suit. Entrances to the driveways on both lots were cut in the Hill Street concrete pavement or curb about 18 or 20 years ago. The surveyor who ran the lines for appellants stated that the driveway leading to appellee’s garage encroached on appellants’ property about 4% or 5 feet according to the survey. On cross-examination he stated that he checked the true line with reference to two or three old fences in the block and found that the true line would run about five feet south of each fence. One of these is a rock fence which has been recognized as the division line between appellee’s lot and the adjacent lot to the south for 30 or 40 years. The effect of his testimony is that, if property lines are adjusted according to the survey, each of the property owners on the west side of the block would be obliged to establish a new line five feet south of the line that has been recognized by the several owners for a long number of years. The real estate dealer who handled the sale of the lot to appellants stated that he pointed out the lines substantially as established by the survey on information from a former tenant. Appellants testified that they had maintained joint use of the driveway in question since they purchased their lot and that appellee had made statements acknowledging their ownership of the driveway. Appellee denied making such statements and also denied joint use of the driveway. Appellant Joe Batson testified that he did not claim the driveway north of his house because the survey showed that it belonged to the adjacent owner on the north. He relied on representations made by the real estaje agent and did not inquire of the owners or their tenants as to location of the division line. Appellee and two neighbors made measurements from the old fence dividing appellee’s lot and the adjacent lot on the south. According to these measurements all property owners in the west half of the block have the proper amount of land under the court’s decree except appellants, who are short about eight inches. The evidence as to these measurements is corroborated by the testimony of the surveyor who ran the lines for appellants. We have held in a number of cases that where the defendant establishes record title to land in controversy, the burden rests on the plaintiff to sustain his claim of adverse possession by a preponderance of the evidence. Assuming that the survey made in the instant case established record title to a part of the disputed driveway in appellants, we think appellee has met the burden by showing adverse possession and use of the driveway by him and his predecessors in title for more than seven years. The greater weight of the evidence also supports the conclusion that the owners of the two lots and their tenants have established the division line as claimed by appellee by acquiescence and occupation according to such line for many years. An agreement to establish such line may be inferred from such long-continued occupation and acquiescence. Deidrich v. Simmons, 75 Ark. 400, 87 S. W. 649; Gregory, et al. v. Jones, 212 Ark. 443, 206 S. W. 2d 18. Appellants insist that possession and use of the driveway by appellee and his predecessors in title were permissive under the rule announced in Boullioun v. Constantine, 186 Ark. 625, 54 S. W. 2d 986, where it was held that use of a way over a stranger’s vacant and unenclosed lot was permissive. The lot over which the driveway runs in the instant case is not vacant, but has been occupied and partly enclosed during the years it has been used by the owners and occupants of appellee’s lot. A careful consideration of the testimony leads us to the conclusion that the finding of the chancellor is supported by the preponderance of the evidence. The decree is, therefore, affirmed.

Robins, J. Appellant asks us to reverse judgment against him, in favor of appellee, based on jury verdict for $10,000, for damage sustained by appellee as a result of crash of one of appellant’s airplanes in which appellee was riding on December 14, 1947. There is very little dispute as to the fact situation. Appellant for some time had been operating at Benton an airport under the trade name of “Benton Flying Service.” Here he rented out airplanes and gave instructions in flying. Among other students were ex-soldiers learning to operate a plane as a part of the veterans training program. For these the government provided the use of one of appellant’s planes and paid appellant tuition for the flight instructions. One of the veterans receiving such training was Vernon Fulcher, a young man who was working for the Reynolds Manufacturing Company at its nearby plant. Fulcher had been taking such training for several months and had about 75 hours flying time. He had received a private pilot’s license and was legally authorized to take up passengers, but was not allowed to do so on the flying time paid for by the government. On the day of the crash Fulcher came to the flying field with appellee, his friend and neighbor, and asked for a plane in which to take up appellee. Appellant told him he could rent a plane, but that he, Fulcher, would be required to pay for it, as the government had issued an order refusing to pay for the use of a plane under such circumstances. To this Fulcher agreed after some hesitation. Thereupon appellant sent one of his instructors out to crank up the plane, which had already been flown four or five hours that morning. Appellee embarked in the plane with Fulcher and they flew over Benton twice at an altitude of about 2,000 feet, then flew toward their own neighborhood nearby, where the plane was brought down very low so they could identify their homes. According to appellee’s account the motor “went dead” and the plane “nosed over” and crashed into a house. Fulcher was killed in the crash and appellee suffered severe injuries. When the suit was originally brought, liability on the part of appellant was asserted by appellee on the ground that Fulcher was a student of and under instruction and supervision of appellant, and that Fulcher flew the plane in a negligent manner. While the court submitted this theory to the jury it is frankly admitted here by appellee that there was no evidence on which this theory of liability could be based. By an amendment made a short time before the trial appellee predicated liability of appellant on the ground that appellant was negligent in that the motor of the plane which appellant furnished Fulcher was defective and would not operate normally, and that because thereof the plane fell. And this ground — that appellant was bailor of the plane and as such was negligent in hiring to Fulcher a plane not in good flying.order is solely relied on here by appellee to sustain the judgment. Now there is no evidence whatever, save the bare statement .of appellee that the motor failed as Fulcher was turning at a very low altitude, from which an inference of bad condition of the motor could be drawn. It had already been flown successfully four or five hours on the same day. An examination of the motor some time after the crash failed to disclose any defect. Appellee testified that he knew nothing about the construction or operation of an airplane. Now talcing appellee’s testimony at full value, as we must in a case of this kind, we have, as a basis for the verdict,' only the fact that the motor stopped. Appellee’s statement does not exclude the possibility of the motor stopping on account of improper acceleration or slowing down, or other improper handling of the motor by Fulcher. In fact, in his complaint filed a short time after the crash he asserted that the negligent handling of the plane by Fulcher caused the accident. Conceding, for the sake of argument, that there was some defective condition in the motor, what such condition was, and whether it was one such as appellant would have been responsible for, was not shown. While we must accord much latitude to juries in solving questions of fact, we have always held that their findings must be based on substantial evidence— not on conjecture and speculation. Magnolia Petroleum Company v. Bell, 186 Ark. 723, 55 S. W. 2d 782; Missouri Pacific Railroad Company v. Shores, 209 Ark. 539, 191 S. W. 2d 580. We conclude that there is no substantial evidence in this case to establish such negligence of the appellant as would authorize a finding that any wrongful act or omission on his part caused or contributed to appellee’s injury. Accordingly, the judgment appealed from is reversed and the cause of action having been fully developed is dismissed.

George Rose Smith, J. This case involves the validity of occupation taxes levied hy Ordinance No. 7573 of the City of Little Rock. The appellees, a partnership owning radio station KGHI and a corporation owning station KARK, brought suit to enjoin the City Collector from enforcing the ordinance, upon the theory that the taxes are an unconstitutional burden on interstate commerce. The chancellor sustained this contention. A second contention, that the ordinance infringes the guaranty of free speech, has been abandoned. The ordinance levies an annual occupation tax of $250 upon persons who either (a) cany on the business of producing or generating electro-magnetic waves for the purpose of broadcasting by radio transmission or (b) engage in the business of intrastate radio broadcasting. The law recites that it shall not apply to that portion of the business that may be in interstate or foreign commerce, or to business done for the government of the United States. There is levied also an annual tax of $50 upon the business of soliciting radio advertising within the city, with the same exemption of interstate, foreign and Government business. The appellees’ basic argument is that all radio broadcasting is essentially interstate commerce. The proof shows that radio, waves continue to travel indefinitely, that even a comparatively weak transmitter sends its signals far beyond the borders of, its ow-n State— though with a natural diminution in strength as the impulses are diffused over a widening circle. Station KARK has been heard in every State and in countries as-distant as Australia and New Zealand. Of course such facts as these underlie the various decisions holding that radio broadcasting is at least partly interstate commerce and that in its interstate aspects it may not be burdened by State privilege taxes. See, for example, Fisher’s Blend Station, Inc., v. State Tax Com’n, 297 U. S. 650, 56 S. Ct. 608, 80 L. Ed. 956, in which the court struck down a privilege tax upon gross receipts from interstate broadcasting. The question here, however, is whether radio broadcasting also involves intrastate activity which may be subjected to local taxation. It is shown that the appellees broadcast not only national network programs, originating elsewhere and relayed to Little Rock by telephone wire, but also local programs arising in the appellees’ studios. About a fourth of the appellees’ income is derived from local advertisers; the rest comes-from the sponsors of programs originating outside the State. We think the appellees’ business is intrastate as well as interstate. Suppose, for instance, that a candidate for mayor broadcasts an address to the city’s electors or a small bakery advertises a sale of its bread. Not only do such programs originate in Little Rock, but both their intended appeal and actual effect are wholly local. Only citizens of Little Rock can vote in her elections; only neighborhood customers will act on the invitation to buy a loaf of bread. It is immaterial equally to the appellees and to their advertisers that a handful of nonresidents may listen momentarily to the broadcast before turning to a program of greater interest. Such transient eavesdropping is merely an adventitious consequence of the uncontrollable carrying power of radio waves. This, ordinance taxes only the local transaction, expressly exempting these fortuitous interstate aspects. . In this respect the opinion in Postal Tel. Cable Co. v. Charleston, 153 U. S. 692, 14 S. Ct. 1094, 38 L. Ed. 871, is enlightening. The city levied an animal privilege tax of $500 upon telegraph companies “for business done exclusively within the city of Charleston, and not including any business done to or from points without the State.” The company argued that the tax was really upon its entire business, but the court answered this contention by pointing to the language of the ordinance. It was also urged that great injury might result to the company if various cities were allowed to tax it, but the court replied: “But this'is a hardship, if such exists, that it is not within our province to redress. If business done wholly within a State is within the taxing power of the State, the courts of the United States cannot review or correct the action of the State in the exercise of that power.” In the latter respect this case is even stronger, for the possibility of multiple taxes does not exist. Little Rock alone is in a position to exact a license fee for the intrastate business done by these radio stations. This consideration was stressed in Western Live Stock v. Bureau of Revenue, 303 U. S. 250, 58 S. Ct. 546, 82 L. Ed. 823, 115 A. L. R. 944, wherein the court sustained a tax upon gross receipts from a trade journal that carried out-of-state advertising and went to many nonresident subscribers. From the opinion: “But there is an added reason why we think the tax is not subject to the objection which has been leveled at taxes laid upon gross receipts derived from interstate communication or transportation of goods. So far as the value contributed to appellants’ New Mexico business by circulation of the magazine interstate is taxed, it cannot again be taxed elsewhere any more than the value of railroad property taxed locally. The tax is not one which in form or substance can be repeated by other states in such manner as to lay an added burden on the interstate distribution of the magazine.” Nevertheless, appellees insist that the interstate and intrastate elements of broadcasting are inseparable, so that a tax upon one is inevitably a tax upon the other. As a physical matter it is true that the electric waves cannot be divided into separate classes, bnt that fact is not conclusive. In Pacific Tel. & Tel. Co. v. Tax Com’n of Washington, 297 U. S. 403, 56 S. Ct. 522, 80 L. Ed. 760, 105 A. L. R. 1, the court summarized its earlier cases by saying: “No decision of this Court lends support to the proposition that an occupation tax upon local business, otherwise valid, must be held void merely because the local and interstate branches are for some reason inseparable.” Furthermore, it is only the emanations of the radio waves that are inseparable. Those are not what this ordinance endeavors to tax; instead, the tax is laid upon a course of conduct that constitutes engaging in intrastate business. A substantial part of the appellees’ programs originate locally and are of purely local interest. To that extent the appellees are engaged in a local enterprise readily separable from their interstate activity. Should they confine their broadcasts to programs brought in from other states there might be force to their suggestion that interstate commerce is being taxed. But as long as they conduct an essentially intrastate business as well, we see no reason why they should not bear their share of the cost of municipal advantages admittedly received. It is shown that daily newspapers pay an annual tax of $1,000, although some of their papers go beyond the State boundaries. The telephone company’s tax is $45,000, though its business is interstate as well as intrastate. By comparison the appellees’ tax is moderate in amount. It is not even suggested that the sum exceeds the profits derived from local business, so that interstate receipts are to some extent affected. Whether such a showing would invalidate the tax is at least doubtful, in view of the language in Postal Tel.-Cable Co. v. Richmond, 249 U. S. 252, 39 S. Ct. 265, 63 L. Ed. 590, and Pacific Tel. & Tel. Co. v. Tax Com’n, supra. As an alternative the ordinance taxes the generation of electro-magnetic waves within the city. To the extent that this is a step in the process of broadcasting the same considerations that we have discussed are applicable. Moreover, the production of these waves is even more local in its nature. It is shown that broadcasting involves a number of distinct processes. Initially, the impact of sound waves upon magnets within' the microphone so affects an alternating electric current as to create electromagnetic waves. Those who are engaged in the production of such waves are subjected to the tax. The current is next amplified and sent by wire from the studio to the transmitting station. According to one of appellees’ witnesses, at that point “it is not radio.” At the transmission station the electric impulses are again amplified, modulated, and sent forth into the atmosphere, the process then becoming radio. When the impulses are picked ,up by a receiving set the process is reversed and they are changed back to sound waves. The tax may be likened to that upheld in Utah Power & Light Co. v. Pfost, 286 U. S. 165, 52 S. Ct. 548, 76 L. Ed. 1038. There the excise was levied in Idaho upon the generation of electricity that was immediately transmitted to Utah. No energy was kept in storage, so that when a Utah consumer turned a switch to use electricity the effect was to set in operation the generators in Idaho, which at once transformed water power into the required electrical energy. Even though generation and transmission were elements of a continuous process, the court held that they were distinct operations. The tax upon the generation of the current was accordingly upheld, in spite of its instantaneous transmission into interstate commerce. In the case of Fisher’s Blend Station, Inc., v. State Tax Com’n, supra, strongly urged by the appellees, the court was careful not to say that a tax upon the generation of radio impulses would be invalid. This point was reserved by the following language in the opinion: “Whether the state could tax the generation of such energy, or other local activity of appellant, as distinguished from the gross income derived from its busi ness, it is unnecessary to decide.” In this case the city is venturing only into the area kept open by that decision. What we have said disposes also of the attack upon the tax levied upon the business of soliciting radio advertising. This activity is even more distantly removed from the interstate aspects of broadcasting, and thus its liability to local taxation is even more clearly apparent. Reversed and dismissed.

Ed. F. McFaddin, Justice. John Powell sued Monticello Cotton Mills (hereinafter called Monticello) for damages and also for specific performance of a contract of employment. From the decree allowing damages, Monticello has appealed; and from the decree refusing specific performance, Powell has appealed. FACTS ■ Monticello (defendant below and appellant here) is a corporation, and, in the operation of its cotton mill, it employs a large number of people. John Powell (plaintiff below and appellee here) was an employee of Monticello, being a doffer, as that term is known in cotton mill parlance. In order to provide a lunch and cold drink concession for the convenience of its employees, Monticello constructed a lunch counter in the mill; and the operator thereof also had a wheel cart to be used in carrying the lunch stand commodities through the mill for sale to the employees. On November 6,1946, Monticello and Powell entered into a written contráct, the portions of which material to this case are as follows: “1. John Powell agrees to rent from Monticello Cotton Mills, Inc. a certain portion of the main bnild7 ing to be used for a means of supplying the emploj^ees of the Monticello Cotton Mills food, drinks, candy and other things to eat. “2. This agreement shall run for one year from date of signing. “3. The rent shall be $25 per month payable at the end of each month. “4. The Monticello Cotton Mills, Inc., agrees to • allow John Powell to use the equipment now located in its plant as listed without any charge. “9. There shall be no sub-leasing by John Powell unless permission is obtained in writing from the Monticello Cotton Mills, Inc. “10. John Powell shall be subject to any rules and regulations the Monticello Cotton Mills, Inc. shall prescribe for the satisfactory dealings between employees and John Powell. “11.. In case John Powell does not carry out any of the terms of this agreement, he agrees to allow the Monticello Cotton Mills to cancel this agreement by giving him 30 days notice in writing without any recourse on them. “12. In case John Powell wishes to terminate this agreement for any cause, he shall give the Monticello Cotton Mills, Inc. 30 days notice in writing of Ms intention. “13. It is agreed that John Powell will be given a job as a doffer in the event he terminates this agreement. In case the Monticello Cotton Mills decides he has been guilty of misconduct during the term of this agreement which necessitates the termination of the agreement by the company, then it will be optional with them to give him work.” We will hereinafter refer to the lunch and cold drink stand and the wheel cart, etc., as “the concession.” On Monday morning, December 2, 1946, Powell was unable to operate the concession because of his intoxication. He was an alcoholic, and at regular intervals would go on a drinking spree of several weeks’ duration. As to his condition the first week in December, 1946, Powell testified that he had been drinking over the weekend; that when he reported at the concession Monday morning Mr. Taylor, the general superintendent of Monticello, told him: “It was reported that you were drunk last night, and are drinking this morning. Let your wife or some of the help run the joint.” Powell’s testimony continues: “I was used to taking orders, and I said, ‘If you think it is best, I will.’ So, I told my cook to take over and take care of the receipts. My wife comes in at eleven or twelve. Well, then I kinder got tight that evening. Q. That was Monday? A. Yes, sir. Q. Did you go back to work on Tuesday? A. I was back there Tuesday morning. ' Q. Did you start to work? A. I loaded my box, moved it to the same position and Mr. Taylor came in three minutes to eight and said, ‘Come into my office.’ I followed him in and he said, ‘You were drinking again last night and this morning.’ I said, ‘I was last night, but I was off the job.’ He said, ‘You better lay off again today.’ I said, ‘I am not drunk.’ And he said, ‘I think it best.’ So, I pushed the box back toward the door and told my cook they laid me off and asked, ‘Where are the receipts from yesterday? She said, I don’t know.’ Q. Did you go back to work Wednesday? A. Yes, sir. Q. What time? A. Six-thirty or fifteen to seven. Q. What preparation did you make for that day? A. Same thing, loaded my box and moved to the same spot. Q. What happened? A. I met Mr. Taylor, and he said, ‘You are drinking and you will have to lay off.’ I protested a little. I said, ‘Somebody is breaking me. I have no receipts from yesterday.’ He said, ‘Lay off until dinner, I can smell it on you’, and I said, ‘You can drink at night and the next morning you can smell it.’ I was about half mad then and did drink some more.” By other witnesses it was shown that Mrs. Powell locked him in his room at the hotel one night because of his intoxicated condition; that he spent Tuesday night, December 3rd in jail, and that he was fined in the mayor’s court Wednesday morning for drunkenness; and that he remained intoxicated for some time thereafter. Appellant has a long standing rule against intoxication of employees, which rule appears to have been regularly enforced; any employee coming into the mill in an intoxicated condition is summarily discharged and is not entitled to be re-employed. In keeping with this rule, on Wednesday or Thursday (December 4th or 5th), Mr. Taylor, the superintendent of Monticello told Powell that he would not longer he allowed to come to the mill. So, on Friday, December 6th,'Powell and his wife, at the suggestion of Mr. Thomas, the general manager of Monticello, sold the concession to Will Lane for $194. Powell and his wife were involved in domestic difficulties due to Powell’s alcoholism, and each was represented by an attorney. Powell and his wife and their attorneys met at the office of Mrs. Powell’s attorney on December 6th, and divided the proceeds received from the sale of the concession. Mrs. Powell filed suit for divorce on the grounds of indignities and habitual drunkenness; and obtained a divorce on January 20, 1947. The exact whereabouts and conduct of Powell from December 6, 1946, to January 20, 1947, are not clearly shown; bnt on the last-mentioned date Powell made formal application to Monticello for employment. This application was by a letter of that date, reading in part: “On or abont November, 1946, I made and entered into an agreement in writing with the Monticello Cotton Mills, Inc. by O. S. Thomas, wherein it was agreed that I was to rent from the Monticello Cotton Mills, Inc. a certain portion of the main building to be used for a means of supplying the employees of the Monticello Cotton Mills food, drinks, candy and other things to eat. Under this agreement I began on or about November 6, 1946, to conduct the business above mentioned under the name of 'Monticello Cotton Mills Sandwich Shop.’ On or about December 6, 1946, I was forced to discontinue said operations. This agreement above referred to was terminated. Under section 13 of this contract above mentioned it states, 'It is agreed that John Powell will be given a job as a doffer in event he terminates this agreement.’ There follow certain statements that are immaterial to this phase of the matter. “Please consider this written request as evidence of my desire to carry out the terms of the Section of the contract heretofore referred to. You will recall that on December 16,1946, and December 18,1946,1 made request to be returned to work. In view of the provision above referred to, I am also making formal demand for wages that would have been received by me during this period had the contract been carried out. I am now ready and willing to carry out the terms of the contract by reporting to work as a doffer at the Monticello Cotton Mills, when you call me. You may call me at 308, Monticello, Arkansas, by telephone, or by letter to Bast College Avenue, Monticello, Arkansas. “If nothing is heard from you within seven days it will be considered that you do not care to comply with the terms of the agreement above referred to and proper action will be taken to require a specific performance thereof........” When Monticello refused to re-employ Powell, he filed this suit on April 30, 1947, praying: “Wherefore premises considered plaintiff prays that the Court make and enter an order requiring the defendant to carry out the terms and provisions of section thirteen of the contract herein and return this plaintiff to work as a doffer in said cotton mill and to pay him the sum of $516.80 for loss of wages......” A trial resulted in the decree awarding Powell damages in the sum of $489.60 for net loss of employment from December 28, 1946, to July 26, 1947, but denying Powell’s prayer for specific performance of the contract of employment. Monticello has appealed from the money judgment against it, and Powell has appealed from the decree refusing him specific performance of the contract of employment. OPINION Able' briefs have been filed, arguing many questions, but we find it necessary to consider only Powell’s claim for damages. Powell insists that he — and not Monticello — terminated the concession contract; that both sides waived the 30-day notice of termination as contained in sections 11 and 12; and that when he terminated the concession contract he was entitled to be re-employed as a doffer under section 13 of the contract. Monticello contends, inter alia: that, regardless of who terminated the contract, the intoxication of Powell was cause for discharge; that Monticello, under section 13 of the contract, decided that Powell was guilty of misconduct, and that, since he was not entitled to re-employment, he was not entitled to recover damages. Assuming — but not deciding — that section 13 of the contract was sufficiently definite to constitute an enforceable contract of employment; and again assumbeing in the mill intoxicated or under the influence of ing — but not deciding — that the damages could be assessed without such judgment being contrary to our holdings in similar cases, neverthless, we agree with Monticello that under the facts in this case Powell’s intoxication defeats his recovery. This conclusion renders moot all of Powell’s claim for specific performance of the alleged contract of employment. J. II. Scogin testified that in 1946 he was president of the Local Labor Union, with which Monticello bargained' collectively, and that the Union approved the rule of Monticello concerning intoxication. This is his testimony: “Q. Do you know what the rules of the Monticello Cotton Mills, Inc. are in regard to people being in the mill in an intoxicated condition? A. Yes, sir. Q. What are they? A. Give them their time. Q. What do you mean? A. Fire them, lay them off, get them out of the mill. Q. Does that apply to people not employed in the mill, as well as employees, to get them out of the mill? A. Yes, sir, that is a dangerous thing. Q. But if a man is an employee of the mill and intoxicated in the mill, what is the rule? A. They discharge him. Take him out of the mill......” F. W. Stone testified that he was a mechanic at Monticello’s mill: “Q. Mr. Stone, are you familiar with the rules of the Monticello Cotton Mills, Inc. in regard to persons being in the mills intoxicated or under the influence of liquor? A. Yes, sir. Q. What are those rules? A. Discharge. Q. Will you amplify that? I know what you mean, and I guess the Court will know. What do you mean by that? A. They are fired. They don’t work there any more. Q. If they come into the mill that way? A. Yes. Q. Is that rule well understood among the employees, or not? A. Yes, sir.” The necessity for this rule is shown in the testimony of T. P. Taylor, the superintendent of the mill and next in authority to A. S. Thomas, vice-president and resident manager. Here is Taylor’s testimony: “Q. What effect, if any, does it have on the safety of persons in the mill when a person is in the mill in an intoxicated condition? A. It is dangerous. He is liable to fall in a machine and get badly hurt or liable to get in an argument with any of the employees, and we do not have them in the mill when we know it. Q. Is there, or is there not a great deal of rapidly moving machinery in a cotton mill of this kind, particularly the Monticello Cotton Mills? A. Yes, sir, lots of it. Q. Are the passag - ways between these rapidly moving machines broad c rather narrow? A. Well, they are broad enough for a sober man to walk in, but' not for a man under the influence of liquor. Q. What, then, is the rule of the Monticello Cotton Mills, Inc.' in regard to persons being in the mill in an intoxicated condition? A. The rule for that is that any man drinking in the mill or under the inflence of whiskey in the mill is to be discharged. Q. Please state whether or not that rule is Avell known to the employees of your mill and persons associated with the mill from day to day? A. Yes.” Powell recognized that this rule against intoxication was binding on him as the operator of the' concession, because, on each of the mornings as heretofore mentioned (i. e., Monday, Tuesday and Wednesday) when he reported at the concession showing the effects of intoxication, he obeyed the order to leave the premises. Furthermore, he sold the concession after Taylor informed him that he could not operate it any longer. It is clear that Powell’s intoxication caused the termination of the contract, even though Powell never paid the $25 monthly rental for November. Powell insists that Monticello did not terminate the contract, and that he must be re-employed under that part of section 13 of the contract which reads: “It is agreed that John Powell avíII be given a job as a doffer in the event he terminates this agreement.” But, in urging, that sentence, Powell overlooks the remainder of section 13, which reads: “In case the Monticello Cotton Mill decides he has been guilty of misconduct during the term of this agreement which necessitates the termination of the agreement by the company, then it will be ojitional with them to give him work.” The preponderance of the evidence shows that Monticello, on Wednesday, December 4th, did decide that Powell had been guilty of misconduct, and did so notify him. Monticello’s act, in informing Powell, that due to his intoxication he would no longer be tolerated on the premises, was certainly tantamount to a termination of the agreement by Monticello. After such notice, Powell sold the concession to Lane, with the consent of Monticello ; and in making that sale both Powell and Monticello waived the 30-day notice of termination, as contained in sections 11 and 12 of the contract. But the factor that caused the sale of the concession by Powell was Monticello ’s notice to him that he would not be tolerated on the premises, which was certainly a “termination” of his right to operate the concession. Powell made no request for re-employment when he sold the concession on December 6th. In fact, he fixes his first request for re-employment as being on December 16, when he claims he had a conversation with Thomas. But Thomas says that on the occasion when he met him in a cafe, Powell was then partially intoxicated and so admitted to Thomas. Thus, Powell’s intoxication continuing after December 6th would have been cause in itself to discharge him had he been reemployed, and was cause to refuse to re-employ him. There is nothing in the record indicating that Monticello has been arbitrary in exercising its right under section 13 of the contract to refuse to re-employ Powell. On the contrary, we are convinced that Powell’s alcoholic affliction caused him to be guilty of such misconduct that Monticello has reasonably exercised its option as contained in section 13. CONCLUSION The judgment in favor of Powell for damages is reversed, and the entire cause of action is dismissed. For cases holding contracts of employment to be indefinite, and therefore unenforceable, see St. L. I. M. & S. Ry. v. Matthews, 64 Ark. 398, 42 S. W. 902, 39 L. R. A. 467; Fulkerson v. Western Union Tel. Co., 110 Ark. 144, 161 S. W. 168, Am. Cas. 1915 D, 221; Ashley Ry Co. v. Baggott, et al., 125 Ark. 1, 187 S. W. 649. For a case in which we refused to assess damages in a contract for personal service, see Petty v. Mo. & Ark. Ry. Co., 205 Ark. 990, 167 S. W. 2d 895, in which certiorari was denied by the U. S. Supreme Court, 320 U. S. 738, 64 S. Ct. 37, 88 Law Ed. 437. Also, on the same point, see 12 Am. Juris. 860 and annotation in 35 A. L. R. 1432.

Griffin Smith, Chief Justice. The appeal results from a disagreement between adjoining landowners regarding the use of a well, but in determining relative rights the Chancellor established a true line. Effect was to quiet title in appellees to a strip thirteen feet wide on the west side of Lot 10, and to create in the disputants a common tenancy in respect of the well as such. Prior to 1944 J. P. and Hazel Turner owned Lot 10. By deed of August 28th of that year they conveyed to Harold Sandlin the west thirteen feet. A description note of explanation was: “This thirteen-ft. [strip] is supposed to run a line in the center of the well now located on Lot No. 10.” The deed was filed for record December 7. By deed of December 7, 1944, the Turners sold to Robert and Lucy Wilkinson “Lots 10, 11, and 12,” of Block 7. This deed was- recorded December 15th. On March 13, 1945, the Sandlins delivered to Beuna Garrett their deed conveying “. . . the west thirteen feet of Lot 10.” Following the description, within parentheses, this notation appears: “The thirteen-ft. [strip] is supposed to run in a line in the center of the well now located on said Lot 10.” It will be seen that when Turner sold to Sandlin, and when Sandlin sold to appellant, the center of the well was thought to be the boundary. Emphasizing this supposition, Robert and Lucy Wilkinson sold to appellees only thirty-seven feet of Lot 10 when on November 17th they transferred Lots 11 and 12 to her. Litigation began in December, 1948, when Mrs. Garrett procured from Polk County Court an injunction restraining the Musgraves from using the well. The de fendants there were also directed to remove copper piping that had been installed in connection with the proposed mechanical pumping. In dissolving the injunction and awarding to appellant that part of Lot 10 “from the center of the well west,” and to appellees “that part from the well’s center east,” each was given the right of use without interference from the other. There was an express finding that the installation had in no sense contaminated the water, and that its use would not interfere with appellant’s requirements. The Chancellor was warranted in finding that appellant knew of the deed presumptions or suppositions when she acquired the thirteen-ft. strip. Effect of Mrs. Garrett’s testimony relating to the rights of others is that, after the deed had been prepared and a check in payment written, hut before it was cashed, she ascertained the material facts. In her testimony Mrs. Garrett said, “I had paid over the money [before the information was received”], hut she immediately added, “I had written the check.” Sandlin, she explained, told her the well was being jointly used. This mutuality continued until appellees undertook to install the pump. There was testimony that the well had .been in use for approximately forty years, and without exception adjoining proprietors had drawn water under a claim of right, each conceding to the other a like privilege. One of the appellees testified that when ditch-digging was under way preparatory to putting in the pump, Mrs. Garrett objected, hut readily agreed that the dividing line was “through the well.” This, she said, was reflected hv the deed. For the purpose of determining how long the well, as an established boundary monument, had been looked to, the Court permitted Sandlin to testify that he had owned the Garrett place, and that Turner had owned the Musgrave property. Turner, said Sandlin was going to sell, “. . . so I propositioned him about buying half of the well. There had been a partition fence between the places”. An early discussion of the extent to which descriptions by metes and bounds will be considered when in conflict with natural monuments or landmarks, is to be found in the opinion of Chief Justice Watkins, Phelps v. Henry & Cunningham, 15 Ark. 297. The principle he expressed, and one generally accepted, is that quantity must yield to course and distance in surveys, and that course and distance shall yield to natural objects or artificial monuments where quantity is not material; but where land is laid off into compact town lots, then quantity is an object of prime importance, and when the survey is according to a regular plan, it is expected that purchasers will buy with reference to it. See Cooper v. Woods, 194 Ark. 1155,110 S. W. 2d 701; Davis v. Strong, 208 Ark. 254, 186 S. W. 2d 776. The controlling consideration is that if buyer and seller, who are familiar with real property, deal with reference to particular things and places they have seen, it must be presumed that these natural objects were of paramount importance, otherwise they would not have contracted with reference to them. Although in the case at bar town lots and parts are involved, the testimony of all of the interested witnesses shows that the well was an essential. It was the principal objective to which all turned, hence the conclusion is inescapable that no one had in mind the value of a few feet of land other than as a means of reaching the well. Affirmed. The true description is Lot 10, Block 7, of the Original Town of Hatfield, Arkansas. Constitution, art. 7, § 37; 3 Ark. Stats. (1947), §§ 22-435, 32-104. Further testimony by Sandlin in regard to the line was: “When Turner and I got out there we found a ‘place’ as close as we could to what we thought was the old fence between the two places. We ‘took off’ thirteen feet, and that was supposed to be the old line between — ■ the center of the well. I put up a corner post. I believe Mrs. Garrett has a hedge that grows up to the well. In other words, the fence comes right to the center of the well. When I sold [Mrs. Garrett] the place Clyde Farmer came down and asked what I wanted for it, and I told him what I would take. When I went out to the car to go home, they said they would buy, and I told them that afternoon that half of the well belonged to her. I bought the extra strip. I first had a lot and a half, then I bought that to get the well.”

George Rose Smith, J. In the trial court the appellee recovered judgment in her action upon a $5,000 life insurance policy issued to her husband. Appellant defended on the ground that the insured committed suicide, a risk not covered by the policy. It is now urged that the jury’s verdict is not supported by substantial evidence. The plaintiff rested her case after proving that the policy was issued on November 13, 1947, and that the insured died about a month later, on December 11. No effort was made by the appellee to show how her husband met his death. The insurer’s proof was so detailed that we have a substantially-complete narrative of the events leading up to Sturdivant’s death. The insured was employed by a monument dealer in Fort Smith. He was trebly obligated to his employer, in that he was short in his accounts, had drawn part of his salary in advance, and had obtained his employer’s endorsement upon a note which the latter had to pay after his employee’s death. Sturdivant was indebted to several other people as well. Among his debts was a $1,300 note to a Booneville bank, the loan having been procured by Sturdivant’s false representation that he owned a car which was mortgaged as security. He had opened a small bank account and written a number of worthless checks, some of which did not reach the bank until after his death. Within the last few weeks of his life Sturdivant made several unsuccessful attempts to borrow additional funds. The insured’s health was impaired. He was subject to severe sinus headaches, for which his physician had prescribed a narcotic. The patient had also' suffered .hemorrhages of the lungs, suggesting the possibility of tuberculosis. A week before December 13 Sturdivant made an appointment for a chest x-ray on that date, but he did not live to keep the appointment. Financial difficulties and bad health doubtless caused the periods of despondency that are reflected by the testimony. Sturdivant’s mother, called as a witness by the insurer, testified that her son, a man of thirty-four, cried several times and read the Bible frequently during the last two weeks of his life. He told his mother that he was going to kill himself, and as a result his gun was taken from him as a precautionary measure. Sturdivant’s brother corroborated the existence of these crying spells and despondency. On the afternoon preceding his death Sturdivant bought a pistol, saying that there were prowlers in the vicinity of his home. He gave a bad check in payment for the gun. While in his brother-in-law’s company he started to load the pistol and wept when he was forbidden to do so. At about dusk the insured drove his employer’s truck to a filling station and bought gasoline. He showed the pistol to the attendant, an acquaintance, and said, “You may not see me any more, so remember how I looked the last time you saw me.” This occurred in Paris, Arkansas, where the insured had lived until March of 1947. In the early evening a Paris policeman saw Sturdivant driving the truck around the town square. About eight minutes later this officer, accompanied by a State trooper, was driving on the highway outside of town and noticed the truck on the side of the road. Sturdivant was found in a dying condition, slumped over the steering wheel. He had been shot just above the right ear, the ball passing through his head and emerging slightly higher above his left ear. The bullet was embedded in the side of the cab, to the left of the driver’s seat and from three to ten inches above the level where Sturdivant’s head would normally have been. On the floor of the truck, a few inches from Sturdivant’s right hand, lay the pistol, fully loaded except that one shell had been fired. There were powder burns, made at close range, on the insured’s head around the wound and on both his hands. The officers investigated the possibility of a third person’s having been on the scene but found no indication of any one' else’s presence. In cases of this kind we have held that a verdict must be directed for the insurer if the evidence pointing to suicide is so conclusive that fair-minded men can reach no other conclusion. Fidelity Mut. Life Ins. Co. v. Wilson, 175 Ark. 1094, 2 S. W. 2d 80; New York Life Ins. Co. v. Watters, 154 Ark. 569, 243 S. W. 831. Here the only suggestion of accidental death is based on testimony that the insured’s pistol was of a type that could have discharged if it were dropped and if the hammer struck the steering wheel or floor. But even if the jury were permitted to disregard arbitrarily the undisputed evidence of Sturdivant’s financial straits, his bad health and expressed intention to take his own life, there is still no tenable hypothesis by which the physical facts can be reconciled with the notion of accidental death. If the insured held the pistol to his head with both hands and pulled the trigger, the position of the powder burns and the nearly horizontal trajectory of the bullet are readily explained. Appellee suggests that the same results might follow if the pistol had been dropped accidentally against the steering wheel. A manifest flaw in this theory is that if Sturdivant had been attempting to catch the falling weapon with both hands, his head would not have been so turned that the ball could have entered above his right ear and have followed the path it actually took. To reach such a position the insured would have had to lean forward and look upward over his left shoulder in the instant of grasping for an object that could have been falling for only a small fraction of a second. We can only conclude that the verdict was based upon sympathy for the appellee rather than upon the evidence submitted to the jury. Reversed and dismissed.

Frank G. Smith, J. This case originated before the Arkansas Workmen’s Compensation Commission by the filing of the claim by Emily Campbell, as widow and sole dependent of John Campbell, deceased. At the time of his death Campbell was employed as production foreman or maintenance manager of the Athletic Mining & Smelting Company. His duties, among others, required that he assemble materials used at the Smelter. The Brickey’s Auto Salvage Yard had in stock some insulators, brackets and other like material needed by the Smelter Company and on April 12,1945, after the close of the regular working day, Campbell, at the direction of his employer, accompanied by Paul Sidler, another employee, went to the Briekey’s Yard for the purpose of getting material, and after loading it, he drove Sidler to the latters home and returned to his own. He arrived there about 5:00 p. m. and told his wife and the nurse who was attending her, Mrs. Campbell being ill, that he had been bitten or stung by a spider. He told his wifé that at the time he was bitten.it felt like he had stuck a splinter in his leg, and he exhibited a red area on his thigh as large as the palm of her hand, in the center of which there were two small puncture marks about one-fourth of an inch apart. Mr.' Campbell informed the nurse attending his wife, who immediately attempted to locate and call Dr. Chamberlain, the family physician, but she was unable to locate the doctor that night and he did not see Mr. Campbell until the following morning. Campbell had a high fever during the night and the next morning a rash covered his body. The doctor treated Campbell by administering sulfanilamide drugs and making applications of hot compresses to the swollen area. On April 16th Campbell’s temperature dropped and the rash began to fade and the sulfa drug was discontinued. Campbell’s thigh continued to swell and he appeared to be toxic, according to the testimony of Dr. Chamberlain, and on the 21st Campbell was sent to the hospital where his blood count revealed the presence of severe anemia; his red cell count being 1,690,000 compared with the normal count of 5,000,000. He was given blood transfusions of more than three pints of blood, with little improvement in his red cell count. He sustained a severe generalized convulsion. On account of the fulminating poison or toxemia present his heart began to show signs of failure and oxygen therapy was given. But despite these supportive measures Campbell died about 4:00 p. m. on April 24th. Such was the testimony of the doctor in attendance. Campbell told his brothers-in-law that he had been bitten by a spider and they testified that they saw puncture marks at the place of swelling. The death certificate prepared by the doctor gave the cause of death as acute hemolytic anemia, secondary to toxins of unknown origin. The hearing on the claim was first had before a single member of the Workmen’s Compensation Commission, who disallowed it. Thereafter the matter was brought before the full Commission for review, where it was again disallowed. An appeal was prosecuted to the Circuit Court where a judgment was entered affirming the order of the full Commission denying compensation, from which judgment is this app'eal. For the reversal of the Circuit Court judgment appellant contends that the testimony of Dr. Chamberlain and other witnesses indisputably reflects that the deceased was bitten by an insect of some type and from this bite some sort of toxin was introduced into Campbell’s system, along with a streptococcal infection; or that the toxin injected by the insect rendered the deceased more susceptible to a harbored streptococcal infection; and that his death was the result of the susceptibility to the toxin injected by the insect bite or a sensitivity to the sulfa drug which was administered on account of the insect bite, or a combination of these toxins, and that one or the other of such toxins produced a condition which led to the acute hemolytic anemia. It appears to be undisputed that Campbell was infected with a streptococcus germ and Dr. Baerg, Prof, of entomology at the State University, who was not a medical doctor testified that a person who is infected with streptococcus germs would be affected by toxins from the bite of an insect otherwise calculated to be harmless. Dr. Chamberlain testified that “In my mind as to the part the streptococcus played in the man’s death, which would have been allayed by a post mortem examination (which was not held) is whether or not the toxin that entered his body upon the bite of the insect was causing the susceptibility of the sulfa drug administered or a combination of the two, to such an extent that his resistance to streptococcus infection either harbored in his system or introduced at the time of the bite became apparent in twenty-four hours. In my opinion one or the other combinations of toxins caused the man’s death.” If it be said that the testimony recited would support the finding that the spider bite contributed to, if it did not cause Campbell’s death, we are confronted with the express finding of the Commission that Campbell’s death was not caused by the spider bite and that there was therefore no industrial injury compensable under the law. The question is therefore not whether the testimony would have supported a finding contrary to the one made, but rather whether it supports the finding which was made. The recent case of Green v. Lion Oil Co., ante p. 305, 220 S. W. 2d 409, it was said: “It is also well settled that the circuit court on appeal from the commission and this court on appeal from the circuit court must give to the findings of fact by the commission the same force and effect as the verdict of a jury or of the circuit court sitting as a jury. Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; Sturgis Brothers v. Mays, 208 Ark. 1017, 188 S. W. 2d 629. In determining whether there is sufficient evidence to support the award, both the circuit court and this court on appeal must weigh the testimony-in the strongest light in favor of the commission’s findings. Hughes v. Tapley, Admrx., 206 Ark. 739, 177 S. W. 2d 429.” There was testimony to the following effect. No one saw the spider and there was testimony that the Brickey’s place of business was cleanly kept and no one had ever seen any spiders there. Campbell was wearing at the time of the supposed bite, a pair of khaki trousers, and there was no testimony that a spider had crawled up inside of the leg thereof. Campbell made no comment or complaint to Sidler that he had been stung at the time of the alleged occurrence, and he made no effort to catch or kill the insect which had stung him. He drove Sidler home without mentioning the fact that he had been stung or bitten. The redness or rash was visible when he arrived at home and he ran a high temperature that night. In addition to Dr. Chamberlain, three other physicians of equal eminence in their profession, testified and were of the unanimous opinion that even though Campbell had been stung by a spider, the symptoms which developed would not have developed from that fact under from twenty-four to seventy-two hours. In their opinion the streptococcal infection which caused Campbell’s death existed for at least twenty-four hours or probably longer, prior to 4:30 p. m. April 12th. The undisputed testimony shows that a pricking or stinging sensation is the common signal of the onset of streptococcus infection. Dr. Chamberlain as well as the other doctors, testified that this infection might exist for some time and not be noticed until the patient feels a stinging sensation in the infected • area, and that the person stung will observe for the first time the inflamed, swollen condition and that “That represents the common mode of onset of streptococci skin infection.” The expert testimony on appellees’ behalf was to the effect that if Campbell sustained an insect bite between 4:15 and 4:45 on April 12th, and streptococcal germs were thereby inserted into his body, fever would not develop by midnight, or the rash appear by the following morning from that cause. The doctors had never seen or heard of a case where streptococcal germs were introduced by the bite of an insect, but the infection sometimes results from scratching mosquito or chigger bites, but it is secondary to the scratching. The testimony is to the further effect that the bite of a spider, wasp, bee, or other small insects does not produce streptococcal infection, unless that germ is on the skin of the person bitten or on the proboscis of the stinging animal. The venom of the insect does not itself produce streptococcal infection, although it may immediately cause pain, redness, rash and swelling and the testimony of the expert witnesses is to the further effect that streptococci germs introduced by insect bites have to lie in the tissues and multiply to a certain number and elaborate their toxins and poisons before the tissues can react with local symptoms and the body with general symptoms. One of the doctors illustrated by saying that if he had a streptococci germ in his throat and coughed so that it gets into another’s throat, that person will continue to be well for from three to ten days, or a minimum of three days when there would suddenly develop a sore throat, and temperature and in from twenty-four to forty-eight hours to develop a skin rash, that this is the clinical incubation period for the development of the rash. The case presents a question of fact about which experts may differ and might be mistaken, but which is nevertheless a question of fact and the testimony is sufficient to support the finding that the streptococcal infection from which Campbell suffered and died was not caused by the bite of a spider or other insect, for the reason that a sufficient period of time had not elapsed after the supposed bite for the incubation of germs to cause fever and a rash. If it be said that the testimony is almost undisputed that Campbell died from a streptococcal infection, it is by no means undisputed, or at all certain, that the in fection was caused by an insect’s sting. It is agreed that the administration of a sulfa drug was the proper treatment for the infection, and it is also clearly shown that the administration of this drug tends to the production of an anemic condition, its effect being more pronounced in some cases than in others depending on the sensitivity or susceptibility of the patient to the drug, and the testimony warrants the finding that it was the administration of the drug which so greatly reduced Campbell’s blood count. The Commission’s finding being supported by evidence sufficient to support that finding must be affirmed and it is so ordered. Millwee, J., dissents.

George Rose Smith, J. James Sheppard owned Sheppard Island plantation, in Jefferson County, when he died in 1870. His will directed his two executors to sell the property and divide the proceeds equally among his widow and children. This direction was not followed; instead, in 1876 one of the executors conveyed the property to the widow and children. The validity of the deed was not questioned for more than sixty years. The land has since been devised by various subsequent wills to its present owners. In 1937 Lisa Shinberger, owning an undivided one-third interest, and the personal representatives of two decedents who were alleged to have been cotenants, brought this suit for partition of the plantation. Lisa Shinberger later withdrew as a plaintiff and aligned herself as a defendant, filing a cross complaint in which she renewed her prayer for partition. Among the other defendants were the appellants, Adam E. and James S. Potts, and their brother, appellee Joseph S. Potts, Jr. By a decree entered September 2, 1947, the chancellor found the ownership to be a third in Lisa Shinberger, a ninth in each of the three Potts brothers, and the remaining third in three charitable organizations, their interest having been determined upon- the first appeal herein. Sheltering Arms Hosp. v. Shineberger, 201 Ark. 780, 146 S. W. 2d 921. Finding that a partition in kind was not warranted, the trial court ordered a sale. The appeal is from that decree and from a later order refusing to vacate the decree. Appellants’ first contention is that the Potts brothers, as the only surviving descendants of James Sheppard, are the sole owners of the plantation. This argument is based on the theory that the executor’s deed of 1876 was ineffective and that James Sheppard’s will showed an intent to keep this property in his own family.The contention is without merit. Far from wanting to keep the property in the family, Sheppard directed by his will that it be sold. Although this direction was disregarded, appellants are not in a position to complain. The will did not purport to create a spendthrift trust; it merely instructed the executors to sell the property and divide the proceeds among the testator’s immediate family. Only the beneficiaries of the will could complain of the executors’ failure to carry out instructions, but they accepted the deed and recognized its validity, as has the whole family for over sixty years. Any merit that may ever have been in the appellants ’ contention has been defeated by laches and acquiescence. Too, throughout this litigation both appellants have asserted an interest in the property under their mother’s will. She was a grantee in the executor’s deed and derived her title from it. The appellants cannot claim title to part of the land in reliance upon the deed and at the same time claim the rest upon the theory of its invalidity. Wood v. Haye, 206 Ark. 892, 175 S. W. 2d 189. Appellants insist that a court of equity should not entertain a partition suit when title to the land is in dispute. Even if we consider the Potts claim of sole ownership as having enough merit to make this title a disputed one, the rule does not apply when there is another clear ground of equitable jurisdiction. Hankins v. Layne, 48 Ark. 544, 3 S. W. 821. Appellants invoked the aid of equity by joining in the plaintiffs’ request for the appointment of a receiver, and having done so they cannot now question that jurisdiction. State, Use Arkansas County v. Pollard, 171 Ark. 607, 286 S. W. 811. "We need not pass upon the question of whether the chancellor should have ordered a division in kind instead of partition by sale. Most of the evidence on that, issue was taken before the entry of the order of November 1, 1947, by which the chancellor refused to vacate his earlier decree. The transcript of that testimony was not filed here until October 20, 1948 — long after the time allowed by our Rule 5. We therefore sustain the motion to strike this testimony from the record, and without it we must assume that the evidence supported the chancellor’s action. Finally, appellant Adam E. Potts complains of the chancellor’s refusal to grant a stay under the Soldiers’ & Sailors’ Civil Relief Act. That statute requires such a stay unless in the opinion of the trial court the defend ant’s ability to conduct- his defense is not materially affected by his military service. 50 U. S. C. A. App. § 521. In each instance the application is addressed to the trial court’s discretion. Boone v. Lightner, 319 U. S. 561, 63 S. Ct. 1223, 87 L. Ed. 1587. Colonel Potts had been in the Regular Army for many years before this suit was filed. By his own admission he relied upon his brother James to attend to matters pertaining to this plantation. In 1939 he joined in a verified motion for a continuance upon the ground that James alone was informed as to the details of this case and was too ill to appear as a witness. In that motion Colonel Potts’ lack of familiarity with the issues was stressed. Thus it does not appear that as a witness he would be of value in the defense of this suit. If there were any showing that appellant’s military service has impaired his ability to defend, we should indulge every presumption in his favor. But here there is a complete absence of such a showing. It is alleged only that Colonel Potts has in storage at some undisclosed place certain letters and records which he has been unable to assemble in the preparation of his defense. No attempt has been made to state the substance of these documents or their relevance in what is basically a simple partition suit. The pendency of this case for more than four years before Pearl Harbor allowed ample time for the preparation of the defense. Although Colonel Potts served overseas in the early part of the war, he has since had extended tours of duty in this country. He has had numerous opportunities to produce these documents, but there is no evidence that he has shown the slightest inclination to do so. The record justifies the conclusion that the appeal to the federal statute is made for the purpose of delay, as it was in the Boone case, supra. Appellant James Potts is an attorney who has been actively connected with this suit since it was filed in 1937. His interest in the plantation is identical with that of Adam Potts, and they are on good terms with one another. The third brother, Joseph S. Potts, Jr., also assisted in the defense of the case; in this court he has filed a brief in support of the appellants ’ contentions, although he did not appeal from the decree and has no standing to question it. Adam and James Potts have been in constant correspondence with each other. Colonel Potts has not been in the situation of an isolated soldier with no friend or attorney to appear in his behalf; he has had both, as well as local counsel of unquestioned ability. The principal reason for the long course of this litigation lies in the efforts of the Potts brothers to delay its submission for adjudication. At first it was James’ illness and Adam’s unfamiliarity with the case that were advanced as reasons for delay; later the documents in storage assumed an importance that was overlooked until the federal statute was enacted. At one time a postponement was suggested because there was pending in Virginia certain litigation that would have a bearing upon this case. The Virginia trial court dismissed at least part of that litigation upon a finding that the progress of the case was being intentionally delayed, and its action was affirmed. Potts v. Flippen, 171 Va. 52, 197 S. E. 422. There are other instances which we need not mention. We conclude that the record is wholly lacking in evidence to indicate that the chancellor abused his discretion in refusing to stay the proceedings. Affirmed.

Minor W. Millwee, Justice. This appeal involves venue of a suit in the nature of a bill of interpleader filed by appellants, Roy A. Drum and William K. Ward, trustee, against appellees, Charles E. McDaniel, M. B. Morgan and Ava Morgan, in the Pulaski Chancery Court. The pleading's and exhibits reflect that the Morgans owned and operated the M. B. Morgan Ice Co. at Clarksville, Johnson county, Arkansas, on July 24, 1948, when they entered into a written contract with appellant, R. A. Drum, or his nominee, for sale of the business which included a lease contract held by the Morgans on the land and improvements thereon and certain personal property used in the business. The contract provided for a sale price of $27,500 with $22,500 payable upon the buyer’s approval of title and execution by the seller of an assignment of said lease and a hill of sale covering the personal property. The contract further provided that the balance of the purchase price of $5,000 should be held by appellants until October 1, 1948, when it should be paid to the Morgans unless lien claims were then pending against the property in which event appellants should continue to hold said sum until all such claims were settled, or otherwise disposed of. Pursuant to the provisions of the contract, the lease on the real property was assigned to appellant "Ward, trustee, on July 28, 1948, and on the same date the Morgans by hill of sale delivered to Ward all the. personal property described in the contract, and all of the purchase price was paid except the $5,000 which was withheld for the purpose above mentioned. On September 21, 1948, appellee, Charles E. McDaniel, a Clarksville building contractor, filed a mechanic’s lien in the office of the circuit clerk of Johnson county in the sum of $4,026.92 for labor and materials used in the construction of the building housing the ice business. The complaint further alleges: “ Plaintiffs further state that the said defendants, M. B. Morgan and Ava Morgan, dispute and deny the validity and legality of said lien claim and the indebtedness asserted against them by the said defendant, McDaniel, and have demanded that plaintiffs forthwith pay the balance of said purchase price, amounting to the sum of $5,000, as aforesaid, and are threatening to institute legal proceedings against plaintiffs for recovery thereof. Plaintiffs state that the said McDaniel has not commenced suit to fore close Ms alleged lien and that they are unable to determine the validity and legality of the said disputed claims; that while they are indebted to the said defendants, M. B. Morgan and Ava Morgan for the said sum of $5,000, as balance of. the purchase price of said property, they cannot pay the same voluntarily without being subject to litigation, costs and expenses and to risk and liability of having said lien claim adjudged to be a valid, -subsisting and legal lien against said described property, and they cannot safely refuse to pay the same as demanded, without risk, liability and judgment against them if the said asserted mechanic’s lien claim is in fact and law invalid, illegal or unenforceable. . “The said defendants are adverse claimants to the said sum of money .or said property, and plaintiffs are entitled by this bill of interpleader to deposit said sum of $5,000 in the registry of this Court, to he disbursed to the lawful owners by order of this court, and when this is done an order should be entered herein releasing and discharging the plaintiffs, and their said property, of all liability to said defendants, and that the said McDaniels should be permanently enjoined and restrained from commencing and prosecuting suit on said lien claim in the court or courts of Johnson county to foreclose said lien. ” Appellants prayed in their complaint that they be directed to deposit the $5,000 into the registry of the court and thereupon released from all liability to appellees and that appellee McDaniel he permanently enjoined from asserting a lien on the property or prosecuting suit in the courts of Johnson county for foreclosure of his lien or otherwise subjecting said property to payment of his lien claim. Summons was served on the Morgans in Pulaski county where they resided on October 25, 1948, and on McDaniel in Johnson county on November 5,1948. On November 26, 1948, appellee McDaniel filed separate motion to dismiss as to him on the ground of improper venue asserting that the complaint shows on its face that venue of the action is in Johnson county. On December 1, 1948, appellees Morgan filed their separate answer and cross-complaint in which they admitted generally the allegations of the complaint and adopted same .as their own pleading, but specifically denied the validity of the lien claim filed by McDaniel and asserted that he had been paid in full for construction of the building. They asked for judgment against appellants for the $5,000 balance of the purchase money and prayed that a lien be declared for'this amount on any funds deposited in court by appellants. On March 15, 1949, the trial court sustained the motion of appellee McDaniel to dismiss for improper venue and denied the prayer of appellees Morgan for judgment against appellants. Appellants have appealed from the action of the court in dismissing the suit as to McDaniel and appellees Morgan have cross-appealed from that part of the decree denying judgment in their favor against appellants. ■ Appellants insist that venue of the suit was properly laid in Pulaski county under Ark. Stats. (1947), § 27-816 (§ 1 of Act 141 of 1943) which provides: “Where there are two or more adverse claimants to money or property, the person, firm or corporation or association having custody thereof may file a bill of interpleader in the chancery court of any county in which one of the claimants resides or may be served with summons and upon depositing the money or property in the registry of the court, the court shall enter an order releasing and discharging the plaintiff from all liability; and the plaintiff shall recover all of his or its costs and a reasonable attorney’s fee to be fixed by the court and taxed as costs in.such suit.” Appellants say this statute superseded any former venue statute applying to an interpleader suit and, therefore, authorized the instant proceeding to be brought in Pulaski* county where the Morgans reside. . Ark. Stats. (1947), § 51-615, provides that all liens created by virtue of the Mechanics’ and Materialmen’s Lien Act shall be enforced in the circuit court of the county wherein the property on which the lien is attached is situated. This court has repeatedly held that chancery court has jurisdiction to foreclose such liens. Kizer Lumber Co. v. Mosely, 56 Ark. 516, 20 S. W. 409; Martin v. Blytheville Water Co., 115 Ark. 230, 170 S. W. 1019. A leasehold interest or estate is made subject to a mechanic’s lien by § 51-606 of the statute. The first and third sub-divisions of Ark. Stats. (1947), § 27-601, provide that suits “for the recovery of real property” or “for the sale of real property under a mortgage, lien or other encumbrance or charge” must be brought in the county where the subject of the action or some part thereof is situated. In Harris v. Smith, 133 Ark. 250, 202 S. W. 244, the court said in reference to this statute: “It seems to be well settled that if the purpose of the bill and the effect of the decree are to reach and operate upon the land itself, then it is regarded as a proceeding in rem, and, under the statute in question, is a local action and must be brought in the county where the land is situated. Jones, McDowell & Co. v. Fletcher, 42 Ark. 422; McLaughlin v. McCrory, 55 Ark. 442, 18 S. W. 762, 29 Am. St. Rep. 56.” In Jones v. Fletcher, supra, the court in discussing § 27-601, supra, said: “It is very clear that the Legislature intended, in the adoption of § 4532, Gantt’s Digest, as a part of our code procedure, to make all actions, whether at law or in equity, where the judgment or decree is to operate directly upon the estate or title, local, and to restrict the remedy to the proper tribunal of the county where the subject of the action, or some part of it, is situated. All such actions, whether by name foreclosure, partition, ejectment, or without any special designation as to title, whether expressly mentioned in the statute or not, are local, within the meaning of this section. The courts will look to the effect of such judgments and decrees, and endeavor to give full force to the statute, and carry out the defined policy of the legislative department in limiting the remedy to the proper courts of the county where the land lies.” See, also, Dowdle v. Byrd, Guardian, 201 Ark. 775, 147 S. W. 2d 343. In White v. Millbourne, 31 Ark. 486, the court’ held that a justice of the peace court was without jurisdiction in an action to enforce a mechanic’s lien because it involved an interest in, or lien on, land. The same conclusion was reached in Cotton v. Penzel, 44 Ark. 484. In Clark v. Dennis, 172 Ark. 1096, 291 S. W. 807, it was held that a suit to impose a lien on an oil and gas lease is a local, and not a transitory, cause of action and is properly brought where the land is located under the provisions of § 27-601, supra. We have also held that a general statute does not apply where there is a specific statute covering a particular subject-matter, irrespective of the dates of their passage. Lawyer v. Carpenter, 80 Ark. 411, 97 S. W. 662; Abbott v. Butler, 211 Ark. 681, 201 S. W. 2d 1001. In the recent case of Moncus v. Raines, 210 Ark. 30, 194 S. W. 2d 1, we approved the rule stated in 50 Am. Jur., p. 542, as follows: “Repeals by implication are not favored, and there are many instances in which particular statutes are held not to be repealed by implication. As a general rule, the legislature, when it intends to repeal a statute, may be expected to do so in express terms or by the use of words which are equivalent to an express repeal, and an intent to repeal by implication, to be effective, must appear clearly, manifestly, and with cogent force. The implication of a repeal, in order to be operative must be necessary, or necessarily follow from.the language used. * * * The courts will not hold to a repeal if they can find reasonable ground to hold the contrary. * * *.” It is noted that § 27-816, supra, is general in its application to interpleader suits while § 51-615 applies specifically to enforcement of mechanics’ liens. One of the objects of the instant suit is to force appellee McDaniel to litigate his claim and assert his right to a lien in the Pulaski Chancery Court when the courts of Johnson county alone have jurisdiction of the subject-matter of such an action. It should be further observed that appellants are more than mere innocent stakeholders. They took title to the property involved with full knowl edge of the possibility of its being subjected to lien claims and made provision for this eventuality in their contract of purchase. They have a vital interest in the subject-matter of the litigation in that they have succeeded to the rights of the Morgans in property which may be charged with a lien for labor and materials. We conclude that § 27-816, supra, did not supersede or repeal by implication § 51-615, supra, and that appellee McDaniel has the right to litigate his claim and seek enforcement of his lien in the courts of Johnson county which have exclusive jurisdiction of the subject-matter insofar as his rights are concerned. Appellants also contend that the provisions of § 27-816, supra, were held applicable prior to adoption of the statute in Chi. R. I. & P. R. Co. v. Moore, 92 Ark. 446, 123 S. W. 233, and that this decision is controlling here. There appellee brought suit in St. Francis county against the railway company and others to recover judgment for work done in building the railroad. While this suit was pending the railway company filed an interpleader suit in Pulaski Chancery Court against appellee and other labor claimants asking that the defendants be restrained from further prosecution of the St. Francis county suit. In holding that the Pulaski Court had jurisdiction of -the interpleader suit, the court was careful to point out that no liens were involved, saying: “It is shown by the allegations contained in the bill that there could be no statutory lien, inasmuch as the contract under which the work was done was let by the railway company prior to the passage of the lien act of 1899.” The court also recognized the convenience of conducting litigation as a controlling factor in determining- the proper forum vnd said: “We know of no rule of law or practice that would compel the plaintiff in a bill of interpleader to seek the one forum rather than the other, both having concurrent jurisdiction. It must be assumed, in the absence of evidence to the contrary, that the party bringing his bill of interpleader under such circumstances will select the forum most convenient for the conduct of the litigation. ’ ’ ■ In the Moore case, supra, the labor claimants could have pursued their claims against the railway company in either St. Francis or Pulaski counties while in the instant case McDaniel’s suit to enforce his lien is localized in Johnson county. It is also clear from the pleadings in the case at bar that appellants have not selected “the forum most convenient for the conduct of the litigation.” Although appellants are residents of Sebastian county, they now own and operate the ice company in Johnson county where the property and court records are located and the lien claimant resides. Litigation of a claim for labor and materials would also doubtless involve the testimony of witnesses residing in that county. The effect of requiring laborers and materialmen to litigate their claims in counties other than the situs of the property might in many cases depriv.e said claimants of the right of compensation which the statute (§ 51-615) was designed to protect. The trial court also correctly denied judgment in favor of appellees, M. B. Morgan- and Ava Morgan, on their cross-complaint against appellants for $5,000. The contract of purchase provides that appellants shall continue to hold the $5,000 balance of the purchase price until all pending lien claims “have been settled and dismissed or otherwise disposed of.” Appellants are, therefore, not required to pay over the $5,000 until the lien claims are discharged. The decree is affirmed on both direct and cross-appeal.

Griffin Smith, Chief Justice. J. W. Pharr executed his last will September 2, 1926, and died April 1, 1928. A son, F. E. Pharr, was named executor, with power to close the estate “without being required to execute bond, and without [the necessity] of accounting to the Probate Court, or having any probate proceedings other than proving up this will. ’ ’ After providing for payment of debts the estate, both real and personal, was devised and bequeathed “absolutely and in fee simple” to F. E. Pharr, with the right to manage, invest, reinvest, sell, etc. This power, however, was in the nature of a trust to continue for the lifetime of the testator’s wife, Cary Ann Pharr; and during that period the executor or trustee was to pay Mrs. Pharr the net income arising from the estate, . . . “when and as the. same may be needed by my said wife.” Cary Ann Pharr died August 7, 1947, and F. E. Pharr died September 1, 1939. State National Bank of Texarkana was appointed to succeed F. E. Pharr as executor, or trustee. State National, treating itself as trustee accountable to a court of equity, filed its final settlement December 18, 1947, and in a chancery proceeding asked to be discharged. Lessie Surgeon Pharr was named as a defendant; and, with the Bank, is an appellee here. She is the widow and sole devisee of B. C. Pharr, a son mentioned in the second subdivision of Item III of the will, who died November 26, 1947 — a little less than four months after his mother. If B. C.’s portion of his father’s estate vested without affirmative action by the trustee Bank, when Cary Ann Pharr died, the decree respecting that interest is correct, requiring only a determination of what the interest was.' Appellants, some of the defendants below, are the surviving heirs of Elizabeth Pharr Cross, who is mentioned in the will, but who predeceased her father. By testamentary expressions Elizabeth’s heirs were to stand in her stead. The appealing defendants contend that the interest apportionable to B. O. Pharr, if he had lived, lapsed when the trustee failed during B. C.’s lifetime to terminate the trust by an actual distribution of the property. The appellants also think the Bank’s action in making-certain payments to Cary Ann Pharr was unauthorized, and that the Bank should be charged with $15,649.22 representing a joint checking account used by J. W. and Cary Ann Pharr. We deal with the subjects in reverse order. For many years F. E. Pharr was chairman of the Bank’s board of directors, and as such was active in the institution’s affairs until'shortly before his death. W. B. Oglesby was vice-president and trust officer, and testified. Ledger sheets and signature cards were identified, showing that on July 1, 1927, J. W. Pharr had a credit balance of $3,842.38, designated as account numbered 13,680. Mrs. “O. A. P. Pharr” — identified as Mrs. Cary Ann Pharr — had a separate account, No. 8021. It showed a balance of $3,782.80. On the sixth of July, 1927, new account No. 16,696 was opened in the names of “ J. W. or Mrs. C. A. P. Pharr.” To this account there was first credited $3,842.38, then $11,500. A credit indorsement of January 1, 1928, was ‘‘interest, $306.84.” [Seemingly 4% for six months on the two items aggregating $15,342.38]. With this entry the account showed a balance of $15,649.22. When J. W. Pharr died he had a checking account with a balance of $1,430. The money Avas used to pay expenses not questioned here. More than nineteen years — -April 1, 1928, to August 7, 1947 — elapsed between the death of J. W. Pharr and the death of his wife. During that period the trustees collected income on property owned by the decedent, of Avhich slightly more than $10,000 came from commercial stocks. As a result, Cary Ann Pharr’s credit balance October 29, 1936, was $28,415.47. Appellants say there was more than $15,000 of unused funds after withdrawals of $13,000 in 1944- ’45- ’46. The balance was $24,617.95 when Mrs. Pharr died. The Bank’s records fully sustain appellees’ contention that it was J. W. Pharr’s intention, when the joint account was opened, to establish a relationship whereby Cary Ann Pharr would, if the testator predeceased her, take by tlie entirety. The writing was that “. . . each [agrees] with the other, and with the . . . Bank” that the funds were jointly owned, “with the right of survivorship.” We held in Black v. Black, 199 Ark. 609, 135 S. W. 2d 837, that an estate by the entirety could be created in personal property, and that when B, having a bank account, changed the status in a way making his wife joint owner, the surviving tenant took by the entirety. In that case a distinction was made between the bank deposit and money kept in a lock box. The case is con- - elusive of the survivorship rights contended for in the appeal here. The transactions clearly show J. W. Pharr’s intention that ownership of the balance at the time he died would pass, thus saving Mrs. Pharr the cost and inconvenience of administration and eliminating claims to distributive shares. Appellants complain that records identified by the witness Oglesby were not sufficient to establish J. W. Pharr’s purpose to maintain the joint bank account with right of survivorship, and point to the fact that while serving in the dual capacity of executor of his father’s estate,'and chairman of the Bank’s board of directors, erasures and substitutions were made in respect of the ledger pages. Where the original caption of the account was “J. W. or Mrs. C. A. P. Pharr,” a pass book held bjr C. A. P. Pharr showed that on March 21, 1934, four lines were drawn through “J. W.” and “F. E.” was written. It is also urged that testimony given by Oglesby and records he introduced were inadmissible under § 2, Schedule, Constitution of 1874. The constitutional objection, in principle, was decided against appellants’ contention in Mosely v. Mohawk Lumber Co., 122 Ark. 227, 183 S. W. 187. It was there said that the intent was to prevent a party to the suit from testifying, . . . “and the manager of [the lumber corporation] was not a party to the suit, within the meaning of the [restriction], which does not provide that persons interested in the result of the litigation shall be excluded from testifying. ’ ’ But even if it should be conceded that Oglesby, acting as tbe Bank’s agent, testified to transactions tbe Bank had bad witb J. W. Pbarr, most of tbe records objected to were made at a time when tbe Bank was not officially serving tbe administration; and furthermore, Mrs. Pbarr bad a joint interest in these transactions, and she is not a party to tbe suit. Appellants complain of F. E. Pharr’s action, and of action of tbe Bank as Pharr’s successor, in permitting Cary Ann Pbarr to remain in the family residence rent-free. They also emphasize what is spoken of as improvident administration in paying to tbe testator’s widow all income from investments. Particular stress is laid upon tbe Bank’s action in retaining large deposits at insignificant interest rates. Good judgment, they think, required reinvestment of earnings under Court direction. It is not urged that estate earnings were greater than tbe widow’s necessities. Bather, it is insisted that private means were sufficient, and that tbe will discloses tbe testator’s intent. It is true that tbe will directs payment of tbe net income “when and as tbe same may be needed”; and should we construe J. W. Pharr’s plan as one reserving tbe income to actual necessities arising after Mrs. Pbarr bad exhausted her own funds, appellants would be correct. This, however, is not sufficiently shown to have been tbe testator’s. desire. It is pointed out that tbe income, when apportioned to tbe entire period affected, amounted to but $525 a year. Unless something appears in tbe will indicating a different purpose, it is ordinarily presumed that tbe trustor intended tbe beneficiary to be supported and maintained from ' estate income, or as is sometimes tbe case, from sale of a part of tbe corpus. See 101 A. L. R., 1461 et seq.; Be-statement of tbe Law of Trusts, § 128, Comment “e”; Scott on Trusts, p. 672. Tbe final assignment of error has to do witb tbe Court’s action in bolding that B. C. Pharr’s interest vested when bis mother died, and that inaction of tbe trustee did not affect bis rights. ' The will empowered the executor, “in the event he sees fit to- do so” [after the widow’s death] to divide the estate among those entitled to take, or to reduce it to cash. In either event distribution was to be made “as soon after the death of my said wife as is reasonably consistent with good management and good business.” We agree with the Chancellor that with the death of Cary Ann Pharr, B. C. Pharr acquired an immediate estate. Primarily, but only for life, the testator’s concern was forhis widow. But secondarily those standing in the relation of child and grandchild were the objects of solicitude. The widow’s needs, and these alone, prompted the testator to create the trust. The law favors early vesting of estates. If in circumstances such as we have here there should be read into a testator’s will a purpose to postpone investiture until the trustee had acted, it would be possible for all of the beneficiaries to die, and results wholly at variance with the ancestor’s wishes could easily follow. The Supreme Court of Connecticut, in commenting on the rule applicable to early vesting of estates, added: “Another rule of frequent and here of particular application is that if a future time or event is involved, the nature of the interest depends upon whether, such future event or time concerns the gift itself or merely the payment of it; when futurity is annexed to the substance of the gift, the vesting is postponed, but if annexed to the time or payment only, the legacy vests immediately.” First National Bank v. Somers, 106 Conn. 267, 137 Atl. 739. The Chancellor correctly determined the controverted issues, hence the decree must be affirmed. It is so ordered.

Ed. E. McFaddin, Justice. The questions presented on this appeal are whether appellees may recover for their improvements, and, if so, in what amounts. Two vacant parcels of real estate in Kensett, Arkansas, were forfeitéd to the State for the nonpayment of the 1932 taxes. Title remained in the State until 1940, when appellant by purchase obtained a de'ed from the State, and has paid all subsequent taxes. By mistake, the parcels were again shown as forfeited to the State for the 1935 taxes, and in 1946 the State conveyed one parcel — hereinafter referred to as parcel 13 — -to L. W. Hodges, and the other parcel — hereinafter referred to as parcel 14 — to Troy Neal, who thereafter conveyed to Scott Lewis. Hodges and Lewis are the appellees here. Shortly after receiving their deeds, Hodges entered into possession of parcel 13 and made improvements, and Lewis entered into possession of parcel 14 and made improvements, as will be hereinafter discussed. In 1947, appellant filed this suit in the chancery court to cancel the deeds from the State to Hodges and Neal, and the deed from Neal to Lewis. Hodges and Lewis claimed that they were entitled to recover the value of the improvements which they had made; and the evidence was directed to such value. A decree was entered finding and adjudicating: (1) that appellant’s title was superior to that of appellees; (2) that Hodges was entitled to recover $75 for the improvements on parcel 13; and (3) that Lewis was entitled to recover $650 for the improvements on parcel 14. Appellant has appealed from so much of the decree as allowed appellees any recovery for improvements; and Lewis has cross appealed from the allowance to him of only $650. We discuss and dispose of the issues in the following topic headings. I. Appellant’s Argument Concerning the Time Appellees Made the Improvements. Appellees acquired their deeds from the State in 1946 and this suit was filed in 1947; so appellees ’ improvements were made within two years from the sale of the land by the State to Hodges and Neal. Based on that fact, appellant cites and relies on § 13884, Pope’s Digest, which reads; “No purchaser of any land, town or city lot, nor any person claiming under him, shall be entitled to any compensation for any improvements which he shall make on such land, town- or city lot, within two years from and after the sale thereof; for improvements made after two years from the date of sale the purchaser shall be allowed the full cash value of such improvements, and the same shall be a charge upon said land. ’ ’ Appellant insists that appellees cannot recover for any improvements made within two years from the sale by the State to Hodges and Neal. But in this argument appellant is in error, because the “sale” referred to in the above-quoted statute means the sale to the State for taxes and not the sale by the State to the purchasers. In the recent case of Gulley v. Blake, 214 Ark. 578, 217 S. W. 2d 257 we decided this same question, saying: “It is insisted by appellants that most . of thé im: provements claimed by appellee were made by him within two years after the date of his purchase from the State; and appellants argue that under the provisions of § 13884, Pope’s Digest, appellee could recover only for improvements made by him more than two years after he obtained deed from the State...... “We think the ‘sale’ referred to in this section is the original sale (whether to State or to an individual) for non-payment of taxes. “Under § 13860, Pope’s Digest, every landowner is given the right to redeem his property from a sale for nonpayment of taxes, if application for such redemption be made within two years after such sale. The evident purpose of the Legislature, in providing in § 13884, supra, that a purchaser of lands sold for non-payment of taxes might recover only for improvements made after two years from the sale, was to prevent the owner from being compelled to pay for improvements made within the period allowed for redemption.” Since the parcels here involved forfeited to the State in 1933 for the taxes in 1932, and since the improvements were made in 1946 and 1947, it is clear that the improvements were made more than two years after the “sale.” II. Appellant’s Ar cjument Concerning Innocent Purchasers. Appellant’s deed from the State was placed of record in 1941 and constituted constructive notice as provided in § 1846, Pope’s Digest. Because of this, appellant insists that appellees purchased witli constructive notice of appellant’s title, and therefore are not innocent purchasers in their efforts to recover for the improvements. There are at least two answers to appellant’s argument. In the first place, § 13884, Pope’s Digest, in allowing the tax title purchaser to recover “the full cash value of such improvements” made after two'years from the tax sale — makes no requirement that such improver of the property be an “innocent purchaser.” See Wilkins v. Maggard, 190 Ark. 532, 79 S. W. 2d 1003. In the second place, even under our betterment statute —in which the person improving the property must be “believing himself to be the owner” — the notice of paramount title must be actual and not merely constructive. See Beard v. Dansby, 48 Ark. 183, 2 S. W. 701; Shepherd v. Jernigan, 51 Ark. 275, 10 S. W. 765, 14 Am. St. Rep. 50; and Riddle v. Williams, 204 Ark. 1047, 66 S. W. 2d 893. It is not claimed that appellees had anything more than “constructive notice” in the case at bar. • III. Amounts Alloivecl Appellees for the Improvements. The Chancery Court allowed Hodges $75 for the improvements on parcel 13, and there is no argument that this amount is excessive, so we affirm such award. As to parcel 14, each side feels aggrieved at the Chancellor’s award of $650 to Lewis. Appellees’ witnesses testified that the improvements consisted of a house, well and orchard; and the itemized cost of making these improvements was shown to be in excess of $1,000. Wit nesses stated that the “full cash value of such improvements” was $900. On the other hand, appellant’s witnesses stated that the house was poorly constructed, of inferior materials, and that the “full cash value of such improvements”4 was only $500. After reviewing the entire record, we conclude that the learned Chancellor .correctly valued the improvements. We affirm the decree on both direct appeal and cross appeal. This is § 84-1121 Ark. Stats. of 1947. This may be found in § 84-1121, Ark. Stats. of 1947. Section 4758, Pope’s Digest, and § 34-1423, Ark. Stats. of 1947. The quoted words are from § 13884, Pope’s Digest, and § 84-1121 Ark. Stats. of 1947.

Frank G. Smith, J. This is a continuation of the case of Smith v. Smith, reported in 213 Ark. 636, 212 S. W. 2d, 10, and reference is made to that case for certain relevant and essential facts, which will not he here repeated. The opinion in that case was delivered June 14, 1948. The question there involved was that of the custody of the two children of the parties litigant, one a boy, then three years old, the other a girl, then five years old. It was the opinion of the court in that case that neither parent was the proper custodian of the children, and their custody was awarded to Mrs. Dan Beavers, the foster mother of the mother of the children. Mrs. Beavers had no children of her own, but she took into her home a little girl, and reared her. This girl became Mrs. Smith, and is the mother of the children involved. It appears that when she was only sixteen years of age, she married Mr. Smith, who was then only seventeen. They went to Benton, where they were married February 14, 1942, without consulting Mrs. Beavers. The testimony shows that Smith, as a boy, was frequently before the Juvenile Court, and his conduct did not improve after his first marriage, and he and that wife separated July 4, 1946, and on July 25th there after Smith obtained a divorce. In the decree the children were placed in the custody of Mrs. Beavers,: who was referred to as their grandmother, and appellant was directed to pay Mrs. Beavers $60 per month for the maintenance of the children. No part of this allowance was ever paid, and Mrs. Beavers made no effort to enforce its collection. • The chronology of events is not quite clear, but it appears Smith and his wife went to Texas where both were arrested and confined in jail. The charge against them is not stated. When Mrs. Beavers was advised of the situation she went to Texas and found Mrs. Smith in jail, and the boy in a hospital and the girl at Grayton, Texas, in the custody of a lady whose connection with the children was not shown. The local Juvenile Court took cognizance of the case. Mrs. Beavers asked Smith if he did not want her to have charge of the children, and he said that he preferred that a Miss Ramsey have the custody of the boy. Miss Ramsey’s identity and connection with the case is not shown. As we understand the record, the court ordered that the children be delivered to Mrs. Beavers and she returned with the children to her home in Little Rock. Smith enlisted in the Army and for more than a year Mrs. Beavers heard nothing from him, and during that time he made no contribution to the support of the children. Apparently he had abandoned them. Smith does not have and never had a home of his own. Mrs. Beavers testified that except for a total period of three or four months, the children had lived in her home. After his discharge from the Army Smith obtained a divorce as above stated, and thereafter married Edna Mae, the daughter of a Mrs. Gisler, with whom they have since made their home. Mrs. Gisler owns a hundred acre farm near Port Allen, Louisiana, but Smith and his wife are both employed in Baton Rouge, Louisiana, which city is four miles from the farm. Smith made no contribution whatever towards the support of the children. The Juvenile Court officers in that state finally located Smith and reported his whereabouts to the Prosecuting Attorney, who wrote him about the children. Evidently a prosecution for child abandonment was in the offing and Smith came to Little Rock. He was not prosecuted, but was directed to pay Mrs. Beavers $10 per- week for the maintenance of the children, and he has since made those payments regularly. Thereafter, he instituted the suit which eventuated in the decree herein referred to in Smith v. Smith, supra. The court declined to award the custody of the children to either the father or the mother, but awarded the custody to Mrs. Beavers, the foster grandmother, with directions to Smith to pay Mrs. Beavers $60 per month for the maintenance of the children. Thirty-two days after the delivery of the opinion in that case Smith filed the present suit in which he asked the custody of the children. If that relief is granted him, he will be relieved of the necessity of making the payments to Mrs. Beavers which the court directed, but which Mrs. Beavers has never attempted to enforce. In the answer filed by Mrs. Beavers she “denied that there had been such a material change in the status of the parties since the date of the decree as would justify the change of the custody of said children.” This second suit following so soon after the decree in the first one, partakes of the nature of a petition for a rehearing, although the second suit is predicated upon the allegation that there has since the first decree been such a change in the situation of the parties as to make it advisable and proper that the custody of the children be changed. The court refused to. order that change, but decreed that Smith be given the right of visitation at all reasonable times, and this appeal is from that order. The practice in eases like this, which has been frequently announced, was reaffirmed in the first decree of Smith v. Smith, supra, where it was said: “According to our long established rule in cases of this nature: ‘In determining the custody of a minor child, the welfare of the child is the supreme and controlling consideration. In the comparatively recent case of Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817, we said: ‘It is the well-established doctrine in this state that the chancellor, in awarding the custody of an infant child or in modifying such award thereafter, must keep in view primarily the welfare of the child, and should confide its custody to the parent most suitable therefor, the right of each parent to its custody being of equal dignity. Act 257 of 1921 (now §§ 6203-6207, Pope’s Digest) . . . A decree fixing the custody of a child is, however, final on the conditions then existing and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.’ See, also, Phelps v. Phelps, 209 Ark. 44, 189 S. W. 2d 617. The party seeking a modification of a divorce decree awarding custody of a minor child assumes the burden of showing such a change in conditions as to justify such modification. (Citing Cases) ’ ” As hás been said, Smith has never had a home of his own and the children have lived with Mrs. Beavers since they were born, except for a total period of three or four, months. He proposes to place these children in the home of Mrs. Grisler, his current mother-in-law, who testified that she would like to have the children in her home, and that she could and would give them all advantages suitable to their station. She gets $250 per year rent on her farm, and drilling for oil is now in progress with fair promise of success. Smith has joined the carpenter’s union and gets $14 per day when he works, in Baton Rouge, and his present wife has employment in that city. They are now buying household furniture and intend finally to acquire a home of their own, but they have not yet acquired it. Smith’s persistence manifests the intensity of his desire to have the custody of his children, and his wife testified that he was very anxious to have that custody awarded to him. But of much significance is the fact that she did not testify that she wanted the children or would welcome them into the home. As a matter of fact, the real controversy appears to be, whether Smith shall take the children into the home of Mrs. G-isler, who has never seen them, bnt who testified she would be glad to have them, or whether their custody shall remain unchanged with Mrs. Beavers, their foster grandmother, who has had the care and custody of the children all their lives except a few months, and who call her Mama. The testimony of the then Attorney General, now one of the Chancellors of the State, is that Mrs. Beavers is a woman of excellent character, and other testimony is to the effect that she has a good home, and that the children while living with her will have the proper environment. Mrs. Beavers testified that the mother of the children wanted them in her home, and with the consent of the Juvenile Court officers and the Chancellor, she allowed their mother, who is now Mrs. Spray, to have them for a short time, but she concluded that home was not a proper place for the children, and she carried them back to her own home where they now are and have since been. We do not think the testimony shows any change in the situation since the former decree except that Smith now has a larger income, nor do we think the testimony shows that the best interests of the children require a change of custody. Smith complains that he was only allowed to see the children in Mrs. Beavers’ home, which she admits, but explains by saying that Smith said if he could not have the children he would kill them and their mother too. Smith did not remember making this statement, but admitted saying that if he could not have the custody of the children he did not know what would happen. The decree denying the change of custody of the children, from which is this appeal, but allowing the right of visitation, is affirmed, but this right of visitation is not to permit the father to remove the children from this State.

KAREN R. BAKER, Associate Justice 11 This is an appeal from the Pulaski County Circuit Court’s December 16, 2013 order granting a motion to dismiss a complaint filed by appellant, Lillie McMullen, against appellee, McHughes Law Firm (“McHughes”). In her complaint, McMul-len alleged that McHughes violated the Arkansas Fair Debt Collection Practices Act (“AFDCPA”) and the federal Fan-Debt Collection Practices Act (“FDCPA”). McMullen also alleged that McHughes invaded her privacy and engaged in malicious prosecution while trying to collect a consumer debt owned by Precision Analyt-ics, Inc. (“Precision”), McHughes’s client. Our jurisdiction is proper pursuant to Arkansas Supreme Court Rule l-2(b)(l), (5), and (6) as the question of whether there is a cause of action under the AFDCPA is an issue of first impression for this court, this case involves significant issues needing clarification or development of the law, and it requires interpretation or construction of an act of the General Assembly. I. Facts and Procedure On November 16, 2012, McHughes filed a lawsuit on behalf of Precision against 12McMullen asserting that McMullen was responsible for a consumer debt incurred on a credit card issued to her ex-husband Owen McMullen. The credit card at issue was a personal revolving credit-card-debt account opened sometime in 1983. The account was used for personal, family, or household purchases between 1983 and 1987, and for some period of time after McMullen and Owen McMullen divorced on December 17, 1987. Sometime after December 17, 1987, the debt was consigned, or otherwise transferred to Precision, which hired McHughes to attempt to collect the debt from McMullen. In her answer and counterclaim filed on December 19, 2012, McMullen denied ever having made any purchases on the credit card, and asserted violations of the AFDCPA. On August 28, 2013, Pulaski County Circuit Court Judge Timothy Fox entered an order dismissing the lawsuit brought by McHughes against McMullen. After Precision’s lawsuit against her was dismissed, McMullen filed a complaint, in circuit court against McHughes on September 10, 2013. In her complaint, McMullen alleged that McHughes violated the AFDCPA, codified at Arkansas Code Annotated sections 17-24-501 through - 512, and the FDCPA, codified at 15 U.S.C. § 1692 et seq., and 28 U.S.C. § 1337. In addition, McMullen asserted claims for negligence, invasion of privacy, abuse of process, and malicious prosecution. On November 12, 2013, McMullen amended her complaint. McMullen’s second amended complaint alleged causes of action under the AFDCPA, the FDCPA, and state-law claims for invasion of privacy and malicious prosecution. laAccording to her second amended complaint, McMullen first received a notice and demand for payment in 2012, via a telephone call from an employee of McHughes. McMullen contended that McHughes filed a lawsuit as a means of collecting a debt without verification of, or conducting an adequate investigation into, the facts and circumstances surrounding the validity, correct ownership, or correct and proper amount due. McMullen alleged that McHughes’s actions of making a demand for an improper amount and filing a lawsuit against her as coercion to collect a consumer debt when she was not a signatory or an authorized user, and did not otherwise have any ownership interest in the credit card at issue, constituted an unfair and unconscionable act in violation of 15 U.S.C. § 1629f. In addition to her allegations of statutory violations, McMullen alleged in her second amended complaint that McHughes invaded her privacy by revealing private financial facts. She alleged that McHughes “repeatedly and unlawfully” disclosed information about a “baseless, false and groundless consumer debt to the general public and third parties,” and, thereby, invaded her privacy. McMullen contended that McHughes engaged in “highly offensive conduct” in the course of attempting to collect the debt. McMullen further asserted an action for malicious prosecution, alleging that McHughes “initiated civil proceedings ... without probable cause, and without making a reasonably diligent inquiry into the facts or the legal basis of instituting a lawsuit, and without any knowledge of the truth or merit of the allegations contained within the lawsuit.” According to her complaint, McHughes continued to vehemently, zealously, and fervently prosecute and pursued [sic] a course of malicious prosecution of civil proceedings ... for a period of six (6) months after ascertaining unequivocal knowledge and information that the initial debt collection lawsuit was | ¿brought without probable cause, and lacked a factual and legal basis and/or merit of allegations contained therein and against the wrong party. Finally, McMullen requested damages for physical, mental, and emotional injuries suffered as a result of McHughes’s conduct, statutory damages of $1000, and attorney’s fees of $53,650 and costs of $3,118.92. On November 18, 2013, McHughes filed an answer and a motion to dismiss McMul-len’s second amended complaint. Attached to McHughes’s motion to dismiss were the following exhibits: information regarding ownership of the credit account; first demand letter and MeHughes’s case notes documenting two conversations with McMullen; copy of the complaint filed on behalf Precision against McMullen dated November 16, 2012; billing statement dated May 17, 2008; McMullen’s answer, counterclaim, and motion to dismiss filed in the action with Precision; and a second statement of account. In its motion to dismiss, McHughes sought dismissal pursuant to Arkansas Rule of Civil Procedure 12(b)(6) (2012), contending that McMullen failed to set forth general facts upon which relief could be granted or that she failed to include specific facts pertaining to one or more elements of her claims. McHughes maintained that it did not use unfair or unconscionable means to collect a debt because the FDCPA does not impose a duty to independently investigate the validity of a certified amount of debt. McHughes contended that McMullen failed to show any violation of the FDCPA. Additionally, McHughes contended that there was probable cause to file the Precision complaint based on the affidavit of Michael Crossan, vice president of operations for Precision. In his affidavit, Cros-san swore that Owen McMullen and Lillie McMullen owed 1Bthe debt owned by Precision. With regard to the remaining stater law claims, McHughes asserted that a violation of the FDCPA does not create a cause of action for invasion of privacy. In addition, McHughes contended that under this court’s opinion in Born v. Hosto & Buchan, PLLC, 2010 Ark. 292, 372 S.W.3d 324, the attorney immunity statute protects attorneys from civil liability from those not in privity of contract for actions taken during the course of their employment. In addition, McHughes maintained that McMullen’s complaint failed to show that McHughes was “substantially certain” it lacked the legal authority to intrude upon her privacy by filing the lawsuit. McHughes further asserted that because McMullen alleged that she did not owe the debt, she could not maintain a cause of action for revelation of private facts. Finally, McHughes asserted that McMullen’s malicious-prosecution claim failed on its face because she had not alleged that McHughes acted with malice when it filed the debt-collection lawsuit. McMullen responded to the motion to dismiss on November 22, 2013. Attached to her response were to following documents: an affidavit from Owen McMullen; a copy of the circuit court order dismissing Precision’s claim against her; a copy of a letter from an attorney with McHughes regarding discovery in the debt-collection litigation; a copy of a GE Money Bank Credit Card Agreement; billing statements addressed to Owen McMullen; and a copy of the judgment in McMullen’s favor against Precision. At a hearing on McHughes’s motion to dismiss, the circuit court stated that it would not consider anything beyond the complaint. On December 16, 2013, the circuit court entered an order dismissing McMullen’s complaint. In its order, the circuit court stated that | fiit considered the motion to dismiss, the response, arguments of counsel, “and all other matters properly before it,” in granting McHughes’s motion to dismiss. McMullen filed a motion for reconsideration on December 16, 2013, to which McHughes responded on December 26, 2013. On January 9, 2014, McMullen appealed the order dismissing her complaint. For reversal, McMullen contends that the circuit court erred in dismissing her complaint because the FDCPA and the AFDCPA contemplate an action based on false statements contained in a debt-collection pleading. She contends that the fact that the underlying debt-collection lawsuit against her was dismissed is proof that McHughes’s statements in connection with filing that lawsuit were false. She also maintains that the circuit court improperly dismissed her state-law claims for invasion of privacy and malicious prosecution. II. Standard of Review We review a trial court’s decision on a motion to dismiss pursuant to Arkansas Rule of Civil Procedure 12(b)(6) by treating the facts alleged in the complaint as true and by viewing them in the light most favorable to the plaintiff. Biedenharn v. Thieksten, 361 Ark. 488, 441, 206 S.W.3d 837, 840 (2005). When matters outside the pleadings are presented and not excluded by the circuit court, a motion to dismiss will be treated as a motion for summary judgment. Travis Lumber Co. v. Deiehman, 2009 Ark. 299, at 23, 319 S.W.3d 239, 253; see also Ruth R. Remmel Revocable Trust v. Regions Fin. Corp., 369 Ark. 392, 402, 255 S.W.3d 453, 461 (2007). Upon reviewing a trial court’s decision on a summary-judgment motion, we examine the record to determine if genuine issues of material fact exist. A party 17is entitled to summary judgment if “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, shows that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law” on the issue set forth in the party’s motion. Scottsdale Ins. Co. v. Morrowland Valley Co., LLC, 2012 Ark. 247, at 8, 411 S.W.3d 184, 190 (citing Ark. R. Civ. P. 56(c)(2) (2011)). The burden of proving that there is no genuine issue of material fact is upon the moving party. Id. On appellate review, we must determine whether summary judgment was proper based on whether the evidence presented by the moving party left a material question of fact unanswered. Id. We view the proof in the light most favorable to the party resisting the motion, resolving any doubts and inferences against the moving party, to determine whether the evidence left a material question of fact unanswered. Id. at 8-9, 411 S.W.3d at 190. In addition, our rules require fact pleading, and a complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Ark. R. Civ. P. 8(a)(1). III. FDCPA and AFDCPA The FDCPA was enacted “to eliminate abusive debt collection practices,” and imposes civil liability on debt collectors for certain prohibited debt-collection practices. Jerman v. Carlisle, McNellie, Rini, Kramer & Ulrich LPA, 559 U.S. 573, 130 S.Ct. 1605, 176 L.Ed.2d 519 (2010). McMullen asserts that McHughes violated the following prohibitions set forth in 15 U.S.C. § 1692d, 1692e and 1692e(10), and 1692f: |s§. 1692d. Harassment or abuse A debt collector may not engage in any conduct the natural consequence of which is to harass, oppress, or abuse any person in connection with the collection of a debt. § 1692e. False or misleading representations A debt collector may not use any false, deceptive, or misleading representation or means in connection with the collection of any debt. Without limiting the general application of the foregoing, the following conduct is a violation of this section: (2) The false representation of (A) the character, amount, or legal status of any debt; or (B) any services rendered or compensation which may be lawfully received by any debt collector for the collection of a debt. (10) The use of any false representation or deceptive means to collect or attempt to collect any debt. § 1692f Unfair practices A debt collector may not use unfair or unconscionable means to collect or attempt to collect any debt. McMullen’s § 1692 claims are all based upon the same conduct, namely, McHughes’s drafting and filing in state court a complaint against her alleging that she owed a debt to its client. At the outset, we note that although McMullen has cited to the AFDCPA, she makes no arguments concerning the application or interpretation of that statute. On appeal, she contends that the AFDCPA is largely modeled on the FDCPA and should be interpreted similarly. Because McMullen does not make any separate arguments concerning the AFDCPA, and she concedes that it should be interpreted similarly to the FDCPA, we will apply only the FDCPA. We will not develop an issue for a party at the appellate level. Alexander v. McEwen, 367 Ark. 241, 248, 239 S.W.3d 519, 524 (2006). flTurning to McMullen’s FDCPA claims, we note that the FDCPA applies to “attorneys who ‘regularly’ engage in consumer-debt-collection activity, even when that activity consists of litigation.” Born, 2010 Ark. 292, at 15, 372 S.W.3d at 334 (citing Heintz v. Jenkins, 514 U.S. 291, 115 S.Ct. 1489, 131 L.Ed.2d 395 (1995)). McHughes does not dispute that it is a debt-collection law firm and is authorized to conduct business as a debt collector in Arkansas. Thus, McHughes does not enjoy any blanket immunity for its litigation activities as a debt collector and is subject to the provisions of the FDCPA. Despite the fact that McHughes does not enjoy any blanket immunity for its litigation practice as a debt collector in this context, that does not relieve McMul-len of her fact-pleading obligation. For instance, McMullen contends that McHughes violated §§ 1692f, 1692e(2), and 1692e(10) by attempting to collect a debt in an improper amount. However, her second amended complaint, which did not incorporate her previously filed complaint, does not state any facts concerning the amount McHughes attempted to collect, nor does it state any facts supporting her assertion that the amount was improper— aside from her blanket contention that she owed' no debt at all. Likewise, McMullen failed to allege any facts to support her claim that McHughes attempted to collect on a debt that was barred by the statute of' limitations. McMullen failed to set out any facts regarding when she contended that statute expired. On this point, the only fact McMullen alleged in her second amended complaint was that McHughes filed a lawsuit on November 16, 2012. Further, McMullen claimed that McHughes acted unfairly and unconscionably in violation of the FDCPA by “making a demand for an improper amount, and filing a lawsuit |10as coercion to collect a debt.” Again, McMullen fails to allege any specific facts regarding why the amount claimed by McHughes was improper, other than her assertion that she did not owe a debt. She also fails to provide any facts to support her contention that McHughes filed the lawsuit as coercion to collect a debt. She makes a eonclusory statement that McHughes filed the lawsuit “at a time when [she] was most vulnerable to coercion and financial intimidation ... in order to extort the maximum financial settlement.” However she offers no facts to support her contention that she was “vulnerable to coercion and financial intimidation.” We now turn to McMullen’s two remaining claims under the FDCPA: (1) that McHughes violated §§ 1692e(2) and (10) by attempting to collect a debt not owed, and (2) that McHughes violated §§ 1692f and 1692e(2) and (10) by filing a lawsuit without probable cause. In her second amended complaint, McMullen alleged the following facts: 6. At the time of the incident described herein', [McHughes] was a debt collection law firm in Little Rock, Arkansas attempting to collect a “debt” ... and was authorized to conduct business in the State of Arkansas as a “debt collector/debt buyer....” 8. [McHughes] ... caused to be filed an illegal, frivolous and meritless lawsuit against [McMullen] on November 16, 2012 in the District court of Pulaski County, Arkansas-Sherwood Division, asserting a consumer debt that lawfully owed, due, and payable; 10. After many months of contentious legal arguments ... Judge Timothy D. Fox signed and entered an Order on August 28, 2013 dismissing the original lawsuit brought by [McHughes] on behalf of Precision to recover an alleged consumer debt, in [McMullen]’s favor. 11. [McMullen]’s ex-husband Owen McMullen, incurred a financial obligation ... sometime before 1983. Said account was being used for personal, family, or household purchases during the time of his marriage to [McMullen] on July 2, 1983, and at all times after their divorce ... on December 17, 1987. [McMullen] denied ever having jointly held, owned, used or made any charges on any credit card account issued to her ex-spouse at anytime; JLu- • • 13. [McHughes] filed a lawsuit against [McMullen] on November 16, 2012, as a means of collecting a debt without verification of, or conducting an adequate investigation into the facts and circumstances surrounding the validity, correct ownership or correct and proper amount alleged due and payable as a consumer debt. Arkansas’s Rules of Civil Procedure make it clear that a pleading which sets forth a claim for relief “shall contain ... a statement in ordinary and concise language of facts showing that the ... pleader is entitled to relief[.]” Ark. R. Civ. P. 8(a). Rule 12(b)(6) provides for the dismissal of a complaint for “failure to state facts upon which relief can be granted.” These two rules must be read together in testing the sufficiency of the complaint; we have stated with equal frequency that facts, not mere conclusions, must be alleged. Arkansas Dep’t of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 403, 102 S.W.3d 458, 462-63 (2003). Additionally, an amended complaint, unless it adopts and incorporates the original complaint, supersedes the original complaint. Farmers Union Mut. Ins. Co. v. Robertson, 2010 Ark. 241, at 5, 370 S.W.3d 179, 183. Here, McMullen’s second amended complaint contained no language incorporating the original complaint. Moreover, her second amended complaint did not include the claims that McHughes violated the FDCPA by (1) refusing to validate the amount of the debt allegedly owed; (2) failing to provide copies of the original contract as requested; (3) failing to provide the address of the original creditor and information for disputing the validity of the alleged debt, and failing to include a “consumer warning” required by the FDCPA; and (4) sending written communications directly to McMul-len despite knowing that she was represented by counsel. McMullen’s second amended | ^complaint did not include her state law claims for negligence or abuse of process that were pleaded in her original complaint. Based on the lack of incorporation language and the significant differences in causes of action alleged in the original complaint and the second amended complaint, we conclude that McMullen’s second amended complaint superseded her original complaint. Here, McMullen’s second amended complaint contains only conclusory allegations that McHughes violated the FDCPA by attempting to collect a debt in an improper amount, by attempting to collect a debt that was barred by the statute of limitations, or by committing an unfair and unconscionable act by making demand for an improper amount and filing a lawsuit as coercion to collect a debt. Even assuming that a cause of action exists under the FDCPA, we must affirm the circuit court’s dismissal of McMullen’s complaint for failure to offer sufficient proof of a cause of action under the FDCPA. IV. State Law Claims In addition to her FDCPA claims, McMullen asserts that the circuit court erred in dismissing her state-law claims. According to her second amended com-. plaint, McHughes invaded her privacy by “unlawfully attempting to collect a debt and thereby invaded into [her] privacy.” Likewise she alleged that McHughes “repeatedly and unlawfully disclos[ed] information about a baseless, false and groundless consumer debt to the general public and to other third parties, and thereby invaded [her] right to financial privacy.” Finally, McMullen | isalleged that McHughes committed the tort of malicious prosecution by “initiating civil proceedings without probable cause and without making a reasonably diligent inquiry into the facts and legal basis of instituting a lawsuit, and without any knowledge of the truth or merit of allegations contained within a lawsuit, and against the wrong party.” On this point, she further asserted that McHughes continued prosecuting its claim “for a period of six months after ascertaining unequivocal knowledge and information that the initial debt lawsuit was brought without probable cause....” Arkansas Code Annotated section 16-22-310 provides, in relevant part: (a) No person licensed to practice law in Arkansas and no partnership or corporation of Arkansas licensed attorneys or any of its employees, partners, members, officers, or shareholders shall be liable to persons not in privity of contract with the person, partnership, or corporation for civil damages resulting from acts, omissions, decisions, or other conduct in connection with professional services performed by the person, partnership, or corporation, except for: (1) Acts, omissions, decisions, or conduct that constitutes fraud or intentional misrepresentations. Ark.Code Ann. § 16-22-310(a)(l). On the record before us, McMullen has failed to plead facts sufficient to support her state-law claims. Thus, we need not reach the issue of whether Arkansas Code Annotated section 16 — 22—810(a)(1) applies. In other words, the circuit court did not err in dismissing her state-law claims, regardless of whether the attorney immunity statute applies. Next, we address McMullen’s state law claims sounding in tort. In Dodrill v. Arkansas Democrat Co., 265 Ark. 628, 590 S.W.2d 840 (1979), this court adopted the approach of the Restatement (Second) of Torts, which delineates four separate torts grouped under “invasion |uof privacy.” Wal-Mart Stores, Inc. v. Lee, 348 Ark. 707, 719, 74 S.W.3d 634, 644 (2002). The Restatement defines liability for intrusion upon seclusion as follows: One who intentionally intrudes, physically or otherwise, upon the solicitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person. Id. at 720, 74 S.W.3d at 644. The privacy tort covers behavior harmful to the plaintiff even though there is no injury to his reputation. Id. Intrusion has been recognized in Arkansas as one of the four actionable forms of invasion of privacy. Id. at 720, 74 S.W.3d at 644. Intrusion is the invasion by one defendant upon the plaintiffs solitude or seclusion. Id. An intrusion occurs when an actor believes, or is substantially certain, that he lacks the necessary legal or personal permission to commit the intrusive act. Id. at 721, 74 S.W.3d at 645. McMullen’s second amended complaint does not allege any facts to show that McHughes’s intrusion was highly offensive. Instead, she makes the concluso-ry statement that the act of filing a lawsuit to collect a debt that she disputed is highly offensive. The lawsuit was filed after McHughes obtained an affidavit stating that McMullen owed the debt. Without pleading any facts to support her concluso-ry statements that McHughes did not conduct an investigation into the facts asserted in the affidavit, McMullen’s complaint fails to allege facts to show that McHughes’s conduct was highly offensive. Likewise, McMullen alleges that McHughes “repeatedly” disclosed information about a “baseless, false, and groundless consumer debt to the general public and to other third parties,” but she fails to point to any specific instance, outside the complaint filed in circuit court, in which McHughes Undisclosed any information concerning the debt. In sum, McMullen has failed to allege facts to support her conclusory statements that McHughes’s conduct was highly offensive. McMullen’s second privacy claim is that McHughes publicly disclosed private facts about her finances. Public disclosure of private facts is publicity of a highly objectionable kind, given to private information about the plaintiff, even though it is true and no action would lie for defamation. Dunlap v. McCarty, 284 Ark. 5, 9, 678 S.W.2d 361, 364 (1984) (emphasis added). Throughout the debt-collection litigation, McMullen maintained that the allegation of debt was false. In her second amended complaint, she stated that McHughes filed an action to collect a debt she did not owe. Therefore, McMul-len has failed to allege facts that would amount to public disclosure of private facts because she contends that the facts disclosed were not facts at all but were false statements. Finally, McMullen alleges that McHughes’s debt-collection suit constitut ed malicious prosecution. In order to establish a claim for malicious prosecution, a plaintiff must prove the following five elements: (1) a proceeding instituted or continued by the defendant against the plaintiff; (2) termination of the proceeding in favor of the plaintiff; (8) absence of probable cause for the proceeding; (4) malice on the part of the defendant; and (5) damages. Sundeen v. Kroger, 355 Ark. 138, 142, 133 S.W.3d 393, 395 (2003). Malice can be inferred from lack of probable cause. Id. at 147, 133 S.W.3d at 398. Malice has been defined as any improper or sinister motive for instituting the suit. Hollingsworth v. First Nat’l. Bank & Trust Co. of Rogers, 311 Ark. 637, 640, 846 S.W.2d 176, 178-79 (1993) (citing Cordes v. Outdoor Living Ctr., Inc., 301 Ark. 26, 781 S.W.2d 31 (1989)). Probable cause for prosecution must be based 11fiupon the existence of facts or credible information that would induce the person of ordinary caution to believe the accused person to be guilty of the crime for which he is charged. Id. at 640, 846 S.W.2d at 179. Ordinary caution is a standard of reasonableness, which presents an issue for the jury when the proof is in dispute or subject to different interpretations. Id. The record demonstrates that in her second amended complaint, McMullen pleaded no facts bearing on the background for McHughes to file the debt-collection action. Merely stating that McHughes’s actions were malicious and that McHughes lacked probable cause is not sufficient to meet the pleading requirements of Arkansas Rule of Civil Procedure 8(a)(1). See id. The mere act of filing suit against a third party should not give rise to attorney liability. Bom, 2010 Ark. 292, at 8-9, 372 S.W.3d at 331. In conclusion, the fact that McHughes does not enjoy any blanket immunity for its litigation practice as a debt collector does not relieve McMullen of her fact-pleading obligation under Rule 8. A complaint must state facts, not mere conclusions, in order to entitle the pleader to relief. Arkansas State Claims Comm’n v. Duit Constr. Co., 2014 Ark. 432, at 6, 445 S.W.3d 496, 501. McMullen’s complaint states mere conclusions that McHughes’s filing of the debt-collection lawsuit violated the FDCPA or the AFDCPA. The fact that the underlying debt-collection lawsuit was dismissed is not evidence that McHughes’s pursuit of Precision’s unpaid account in litigation violated statutory prohibitions targeted at abusive prelitigation practices. Moreover, McMullen failed to allege facts to establish various elements of her state-law claims. Accordingly, we hold that the circuit court did not err in dismissing McMullen’s second amended complaint. Affirmed. . The lawsuit was originally filed in the District Court of Pulaski County, Arkansas-Sherwood Division, but was later transferred to Pulaski County Circuit Court. . On January 21, 2014, the circuit court denied McMullen's motion for reconsideration. . That is not to say that we adopt McMullen's proposition that the AFDCPA and the FDCPA should always be interpreted similarly. Rather, we simply leave the question of whether the AFDCPA differs from the FDCPA for another day because neither party presents any argument on that point. . We need not answer the question of whether a cause of action exists under the FDCPA for statements made in court pleadings to conclude that McMullen has failed to allege sufficient facts under our own rules.

KENNETH S. HIXSON, Judge In this workers’ compensation case, appellant Joey Hopkins appeals the Commission’s findings that (1) denied his claim for additional medical treatment recommended by Dr. Christopher Arnold for an admittedly compensable September 16, 2010 right-knee injury, and (2) rejected his argument that the Commission is biased and its activities unconstitutional. The Commission affirmed and adopted the administrative law judge’s decision. We reverse on point one, and we affirm on point two. We first address the contention that the Commission’s decision to deny additional medical treatment is not supported by substantial evidence. Appellant, a man in his thirties, worked for Harness Roofing, Inc., for eleven years, and his last six years were served in the h capacity of foreman. It was undisputed that the appellant sustained a compensable injury to his right knee in 2007 and another compensable injury to his right knee in 2008. Both injuries were generally described as medial meniscus tears with effusion as well as a chondral injury. Dr. Terry Sites, an orthopedic surgeon, performed arthroscopic knee surgeries for both injuries. The evidence indicated that the appellant fully recovered from the 2007 and 2008 injuries (sometimes referred to herein as the “2007 injury” and the “2008 injury,” respectively.) On September 16, 2010, the appellant testified that as he was stepping to a higher elevation on the roof, he felt “a tear” and pain in his right knee (sometimes referred to herein as the “2010 injury.”) The injury was promptly reported to his employer. The following day, the appellant presented to Dr. Corey Jackson for right-knee pain. The medical record dated September 17 provides in pertinent part that the appellant presented with increased pain in the right knee with positive effusion and limited range of motion on flexion. The physician prescribed an anti-inflammatory and a knee brace. The appellant returned to Dr. Jackson ten days later for a followup appointment. The medical record dated September 27 provides in pertinent part that the appellant’s knee was about twénty-five percent back to normal but that his knee was locking up maybe twenty times a day. The physician kept the appellant on the same treatment plan. The appellant returned to Dr. Jackson again three weeks later for a followup appoint ment. The medical record dated October 18 provides in pertinent part that the right-knee pain was about the same and that the appellant could do pretty well on flat ground but that the right knee was still locking up six or seven times a day. Dr. Jackson referred the appellant to an orthopedic surgeon. D.Since the appellant was treated by Dr. Sites for both his 2007 and 2008 compensa-ble injuries, the appellant was referred to Dr. Sites for the 2010 injury. On November 3, 2010, the appellant was seen by Dr. Sites. The medical record dated November 3, 2010, provides in pertinent part that the appellant returned to the clinic after sustaining a new work injury. Dr. Sites noted that the appellant initially felt a sudden sharp pain in his right knee and then it locked and he was unable to fully extend it; that the appellant took some time off; and that Dr. Jackson had prescribed some anti-inflammatory medication, which helped. Dr. Sites noted: Over the last couple of years until his most recent injury his knee has felt essentially normal to him.... He had previous significant chondral pathology and had been doing well until his more recent event[.] After examination, Dr. Sites’s impression was right-knee pain, possible meniscal tear, loose body, progression of chondral injury or other. The surgeon prescribed conservative treatment, including continuing the NSAIDs and commencing a home-exercise program, and the appellant was advised to return in four weeks. Dr. Sites projected, “With ongoing difficulties at that time, I would recommend re-scoping his knee.” Dr. Sites wrote a report to Gallagher-Bassett, the third-party administrator for the appellee, repeating his findings and treatment plans. The appellant returned to Dr. Sites for a follow-up on December 1, 2010. Following the appointment, Dr. Sites wrote another letter to Gallagher-Bassett. The letter provides in pertinent part that the appellant returned to the clinic that day and that his right knee was notj^improved, in spite of the use of anti-inflammatory medication. He was noted to have pain, catching, and intermittent locking. Dr. Sites then indicated to Gallagher-Bassett: Given the mechanical symptoms of catching and lock, his failure to progress with rest, a home exercise program and anti-inflammatories it is medically indicated to proceed with right knee ar-throscopy. He may have sustained additional chondral inury to the knee, a meniscus tear, have loose bodies and/or others.... I will allow him to continue his current no [sic] regular work duties in anticipation of outpatient arthroscopy. The same day, Dr. Sites filled out a workers’ compensation return-to-work form indicating the stipulated injury date of September 16, 2010, the type of surgery recommended as arthroscopy, and the date of surgery as “pending approval.” At the bottom of the office note record, a handwritten notation appears: Rt knee arthroscopy at Physician’s Specialty Hospital. The appellant testified that after the December 3, 2010, office visit with Dr. Sites, he waited to receive approval for the arthroscopy from the appellee or Gallagher-Bassett. The appellant stated that he checked with his boss on three occasions for approval without obtaining any answer. Finally, around the first of the year after the holiday break, the appellant called the corporate office and spoke with Gail Zeers in Human Resources about his workers’ compensation claim and the request for approval for the surgery. Ms. Zeers placed a three-way call to Gallagher-Bassett. The participants to the call included the appellant, Ms. Zeers, and a representative of Gallagher-Bassett. At the conclusion of the three-way call, the representative of Gallagher-Bassett advised the appellant and Ms. Zeers that his request for surgery was “under review.” Jane Tiffell testified that she was the local human resources representative for the appellee and that she was aware of the injury to the appellant that occurred in September |42010. Ms. Tiffell stated that it was the practice of the appellee to report all workers’ compensation claims to Gallagher-Bassett and that after the first report of injury was transmitted, the appel-lee did not participate in the claim at all. Instead, she said, all communication should be made directly with Gallagher-Bassett. By May of 2011, the appellant still had not received an approval or refusal from the appellee or Gallagher-Bassett for the permission for the arthroscopic surgery submitted by Dr. Sites. The record is unclear if, or when, the appellee or Gallagher-Bassett actually refused the request for approval for the arthroscopic surgery. On May 27, 2011, the appellant voluntarily left the employment of the appellee to attend taxidermy school and pursue a career that was easier on his body. The appellant opened a taxidermy business in October 2011 and works on his father’s golf course during slow times. The appellant did not seek further medical treatment for his right knee until April 2013, following the March 15, 2018, approval by the Workers’ Compensation Commission of a one-time change of physician from Dr. Terry Sites to Dr. Christopher Arnold. On April 4, 2013, appellant presented to Dr. Arnold. Dr. Arnold noted the previous surgeries to his right knee and that he had not seen Dr. Sites again until the new injury, having last seen Dr. Sites in December 2010. Dr. Arnold confirmed Dr. Sites’s diagnosis and plan and stated: Dr. Sites recommended a scope and to see if he would be a candidate for autolo-gous chondrocyte harvest and later reimplantation. This was never approved. He has since requested change of physicians and presents to me for evaluation. He has mechanical signs and symptoms. His knee swells, catches, and locks. It is medial and it is anterior.... The more he uses it, the more problems he has. |BPr. Arnold noted that rest, anti-inflammatory medications, and therapy had not worked. Dr. Arnold recommended that he have the cartilage restoration procedure, but if not, he would need a knee replacement eventually. Dr. Arnold agreed with Dr. Sites’s recommended scope procedure with chondrocyte harvest and reimplantation. By May 2013, Dr. Arnold noted that the cartilage restoration procedure was never approved, although appellant’s knee hurt all the time. Although the addendum does not contain a refusal to allow the treatment by Dr. Arnold, evidently the appellee refused the request. The prehearing order dated September 3, 2013, provides the following pertinent information: • The parties stipulate that the claim was accepted as a compensable medical-only one and medical benefits were paid pursuant thereto. • The respondent contends that the surgery requested is not reasonable, necessary or related to [appellant’s] work injury. The surgery is related to [appellant’s] pre-existing condition and symptoms and not the work injury. The ALJ and the Commission denied the claim for additional medical treatment finding that the appellant failed to prove by a preponderance of the evidence that the requested medical treatment was caus ally related to the 2010 compensable injury. We review the evidence in a workers’ compensation appeal in the light most favorable to the decision of the Commission and affirm if it is supported by substantial evidence. Tucker v. Bank of Am., 2018 Ark. App. 585, 2018 WL 5745033. Substantial evidence is evidence that a reasonable mind might accept as adequate to support a conclusion. Id. The determination of credibility and the weight to be given a witness’s testimony is within the sole province of the Commission. Williams v. Brown’s Sheet Metal, 81 Ark. App. 459, 105 S.W.3d 382 (2003). On review, the 16issue is not whether we might have reached a different result or whether the evidence would have supported a contrary finding; if reasonable minds could reach the Commission’s conclusion, we must affirm its decision. Id. While the Commission’s decisions may be insulated to a certain degree, it is not so insulated as to render appellate review meaningless. Freeman v. Con-Agra Frozen Foods, 344 Ark. 296, 40 S.W.3d 760 (2001). The workers’ compensation act provides in Arkansas Code Annotated section ll-9-508(a) that the employer must promptly provide that medical care “as may be reasonably necessary in connection with the injury received by the employee.” What is reasonably necessary medical treatment, and whether it is causally connected to the compensable injury, are questions of fact for the Commission. Walker v. Fresenius Med. Care Holding, Inc., 2014 Ark. App. 322, 436 S.W.3d 164. For a work-related accidental injury, it is not necessary that the claimant prove that the injury is the major cause of the disability or need for treatment. Estridge v. Waste Mgmt., 343 Ark. 276, 33 S.W.3d 167 (2000). It is the claimant’s burden, though, to establish by a preponderance of the evidence that he is entitled to additional medical treatment. Dalton v. Allen Eng’g Co., 66 Ark. App. 201, 989 S.W.2d 543 (1999). Because employers take an employee as he finds him, employment circumstances that aggravate preexisting conditions are compensable. Ozark Natural Food v. Pierson, 2012 Ark. App. 133, 389 S.W.3d 105; Grothaus v. Vista Health, LLC, 2011 Ark. App. 130, 382 S.W.3d 1. This case does not involve conflicting medical testimony. The ALJ and the Commission accepted the medical opinions of both Drs. Sites and Arnold as sound with |7regard to reasonably necessary medical treatment. Both doctors were appellant’s approved and authorized treating physicians for the admittedly compensable knee injury. The ALJ recited: Ultimately, Dr. Sites recommended that Claimant undergo a scope of his right knee. But for months thereafter, Respondents did not approve the procedure. It is this surgery that Claimant is still seeking — although he wants Dr. Chris Arnold to perform it. The sole claim before me is one for a right knee injury that took place on September 16, 2010. The parties have stipulated, and I have agreed, that this injury was a compensable one. Claimant is asking that I award him additional treatment at Respondent’s expense— with that treatment consisting of surgery recommended by Dr. Arnold, whom he saw pursuant to his one-time change of physician. As quoted above, Arnold is recommending that Claimant undergo cartilage restoration, which consists of the harvesting of autologous chondrocytes and reimplantation of them later. Dr. Sites, with whom Claimant has an extensive history, agrees with this approach. I credit their opinions in this matter. The ALJ recited further that “[t]he fact that Claimant undoubtedly had prior problems with his right knee is not, in and of itself, problematic for his case, if the 2010 incident aggravated that condition.” (Emphasis in original.) Jim Walter Homes v. Beard, 82 Ark. App. 607, 120 S.W.3d 160 (2003). The ALJ and Commission accepted appellant’s testimony .as credible “that he was having no problems with his right knee prior to the September 16, 2010 incident at work,” finding that compatible with the history given to Dr. Sites. Appellee contended that there lacked a causal link between the September 2010 work injury and the need for this treatment, instead contending that the 2007 injury and the 2008 injury were the cause of the need for treatment. It is clear from the medical records that as early as December 1, 2010, Dr. Sites was of the medical opinion that a right-knee arthroscopy was medically necessary to determine |swhether the 2010 injury caused a meniscus tear, loose bodies, or an additional chondral injury. Reasonably necessary medical treatment may include that which is necessary to accurately diagnose the nature and extent of a compensable injury, to reduce or alleviate symptoms resulting from a compensable injury, to maintain the level of healing achieved, or to prevent further deterioration from the damage produced by the compensable injury. Hawley v. First Sec. Bancorp, 2011 Ark. App. 538, 385 S.W.3d 388. Even appellee states in its brief that the September 2010 injury was an “aggravation” of appellant’s previously injured right knee. An aggravation of a preexisting, noncompensable condition by a com-pensable injury is, itself, compensable. Williams v. L & W Janitorial, Inc., 85 Ark. App. 1, 145 S.W.3d 383 (2004). The major-cause analysis is applicable only in gradual-injury cases and when the employee is seeking permanent disability benefits. Id. Here, appellant’s asymptomatic right knee became symptomatic due to a 2010 work injury; reasonable minds could not find that the need for treatment was not causally related to the new injury. See St. Edward Mercy Med. Ctr. v. Howard, 2012 Ark. App. 673, 424 S.W.3d 881. The sole basis upon which this claim was denied was that Dr. Arnold — appellant’s approved treating physician on this claim — did not specifically mention the 2010 workplace injury in his medical records. Given that there was a stipulated September 2010 compensable workplace injury to his right knee that caused swelling, pain, and catching, the absence of the exact date of the stipulated work injury in one medical record is not fatal to appellant’s claim. The treatment sought and the condition to treat remained consistent between the doctors and consistent with the claimant’s history. The Commission’s decision to deny additional medical 19treatment in the form of uniformly recommended surgical intervention is not supported by substantial evidence. See Saline Mem’l Hosp. v. Smith, 2013 Ark. App. 29, 2013 WL 245202 (workplace injury sped up need for surgery on pre-existing arthritic knee); Williams, supra (major cause not required in specific-incident workplace injury where only medical and TTD sought; compensable knee injury was deemed a factor in claimant’s need for additional surgery on pre-existing arthritic knee). We therefore reverse and remand on this issue. Moving to the constitutionality argument, we summarily reject it. First, this issue is moot because we are reversing in appellant’s favor on the substantive issue. See Prock v. Bull Shoals Boat Landing, 2014 Ark. 93, 431 S.W.3d 858. Moreover, even if we were to address this issue, appellant’s attorney has repeatedly raised this same constitutionality argument before our court, and we have repeatedly rejected it. See, e.g., Strother v. Lacroix Optical, 2013 Ark. App. 719, 2013 WL 6277646; Sykes v. King Ready Mix, Inc., 2011 Ark. App. 271, 2011 WL 1425033; Long v. Wal-Mart Stores, Inc., 98 Ark. App. 70, 250 S.W.3d 263 (2007). Thus, point two holds no merit. We reverse and remand on the issue of additional medical treatment. Gladwin, C.J., and Virden, J., agree. . The dissenting Commissioner concurred that the Workers’ Compensation Act was constitutional but dissented as to the denial of additional medical treatment, finding that causation was proved by a preponderance of the evidence.

RHONDA K. WOOD, Associate Justice 11 Michael Feuget appeals the denial of his petition for postconviction relief under Arkansas Rule of Criminal Procedure 37. Feuget contends he received ineffective assistance of counsel during his trial because: (1) his attorneys failed to present certain witness testimony to corroborate his affirmative defense of involuntary intoxication and impeach the testimony of an adverse witness; and (2) his attorneys failed to request a jury instruction on a lesser-ineluded offense. We affirm the circuit court’s ruling. I. Relevant Facts Feuget robbed a bank on January 15, 2010. At trial, he defended on the theory that he was involuntarily intoxicated at the time of the robbery due to the combination of prescription medications he was taking. Feuget testified that in addition to taking Zoloft and Adderall, his psychiatrist, Dr. Joe Bradley, prescribed the drug Deplin approximately one week before the robbery. Feuget’s expert, Dr. Bob Gale, opined that the combination |aof Zoloft and Deplin caused Feuget to enter a toxic state in which he was unable to conform his conduct to the requirements of the law. Dr. Bradley testified extensively about Feuget’s treatment and prescription history over the three previous years. Dr. Bradley explained that he gave Feuget Deplin samples in an effort to boost the effectiveness of Feuget’s Zoloft regimen. Dr. Bradley testified that he gave Feuget a month’s worth of Deplin samples in December 2009, but that he did not remember actually writing a prescription for the drug. He readily acknowledged that it was possible he did also prescribe it. Dr. Bradley also testified that he saw Feuget a week before the robbery and that Feuget reported very minimal benefit from taking the Deplin. The conflicting testimony regarding the Deplin prescription is at the heart of the first contention on appeal. Feuget’s wife testified in rebuttal that she handled all of Feuget’s medications. She testified that Feuget received a Deplin prescription and that she had filled it a week before the robbery. Feuget’s counsel attempted to admit the prescription bottle into evidence, but it was excluded due to the State’s hearsay objection. After the jury began deliberations, Feuget obtained a copy of the written prescription and moved for a mistrial. The motion was denied, and Feuget was convicted of theft of property and two counts of aggravated robbery. Feuget subsequently requested a new trial, relying on the prescription copy and other pharmacy records corroborating the testimony that there was a prescription for Deplin in addition to the samples. At the hearing on the motion, Dr. Bradley admitted that his testimony at trial was apparently inaccurate and that he must have given Feuget the prescription. Dr. Brad ley further testified that clinical studies have shown that the |3dosage of Deplin that he prescribed is no more effective than a placebo. The court denied the motion for a new trial, and the court of appeals affirmed Feuget’s conviction. Feuget v. State, 2012 Ark. App. 182, 394 S.W.3d 310. Feuget next sought postconviction relief, alleging that he received ineffective assistance of counsel because his attorneys failed to subpoena the prescription records from the pharmacy and failed to subpoena a pharmacy employee who could authenticate the records. Feuget also claimed that he was denied effective assistance of counsel because his attorneys did not request a jury instruction on the lesser-included offense of robbery, causing Feuget to be convicted of the greater offense of aggravated robbery. The circuit court denied Feuget’s petition, and this appeal followed. II. Standard of Review We do not reverse the grant or denial of postconviction relief unless the circuit court’s findings are clearly erroneous. Sales v. State, 2014 Ark. 384, 441 S.W.3d 883. A finding is clearly erroneous when, although there is evidence to support it, the appellate court, after reviewing the entire evidence, is left with the definite and firm conviction that a mistake has been committed. Id. We assess the effectiveness of counsel under the two-prong standard set forth by the Supreme Court of the United States in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Sartin v. State, 2012 Ark. 155, 400 S.W.3d 694. Under this standard, the petitioner must first show that counsel’s performance was deficient. Id. This requires a showing that counsel made errors so serious that counsel deprived the petitioner of the counsel guaranteed to the petitioner by the Sixth Amendment. Id. Second, the deficient performance must have resulted in prejudice so pronounced as to have deprived The petitioner a fair trial whose outcome cannot be relied on as just. Wainwright v. State, 307 Ark. 569, 823 S.W.2d 449 (1992). Both showings are necessary before it can be said that the conviction resulted from a breakdown in the adversarial process that renders the result unreliable. Id. There is a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and the petitioner has the burden of overcoming that presumption by identifying the acts and omissions of counsel which, when viewed from counsel’s perspective at the time of trial, could not have been the result of reasonable professional judgment. Id. Even if counsel’s conduct is shown to be professionally unreasonable, the judgment will stand unless the petitioner demonstrates that the error had a prejudicial effect on the actual outcome of the proceeding. Henington v. State, 2012 Ark. 181, 403 S.W.3d 55. The petitioner must show that there is a reasonable probability that, but for counsel’s errors, the fact-finder would have had a reasonable doubt respecting guilt, or in other words, that the decision reached would have been different absent the errors. Id. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial. Id. In making this determination, the totality of the evidence before the fact-finder must be considered. Noel v. State, 342 Ark. 35, 26 S.W.3d 123 (2000). III. Presenting Additional Witnesses and Evidence For his first point, Feuget classifies Dr. Bradley’s testimony as false and claims that the failure to call a records custodian and subpoena pharmacy records to verify that Feuget |swas given a prescription for Deplin a week before the robbery vitiated his defense of involuntary intoxication. We disagree. Under our jurisprudence, a petitioner claiming ineffective assistance of counsel is required to state the substance of the omitted witness’s testimony and demonstrate that this omitted testimony resulted in actual prejudice to his defense. Wainwright, 307 Ark. at 579, 823 S.W.2d at 454. In this case, Feuget has demonstrated that the pharmacy witness would have authenticated his prescriptions and contradicted Dr. Bradley’s testimony; however, we are not of the opinion that counsels’ failure to call the witness was such an unreasonable lapse in professional judgment that Feuget was denied effective counsel. The decision of whether or not to call a witness is generally a matter of trial strategy that is outside the purview of Rule 37. Nelson v. State, 344 Ark. 407, 39 S.W.3d 791 (2001) (per curiam). An attorney’s decision not to call a particular witness is largely a matter of professional judgment, and the fact that there was a witness or witnesses who could have offered testimony beneficial to the defense is not, in itself, proof of ineffectiveness. Lee v. State, 2009 Ark. 255, 308 S.W.3d 596. In this case, Dr. Bradley testified at length concerning Feuget’s multiple medication changes over a three-year period, and he readily acknowledged that it was possible he had also written Feuget a prescription for Deplin in addition to providing him with samples of the drug. Feuget presented rebuttal testimony from his wife that he had received and she had filled a prescription for Deplin approximately one week before the robbery. Feuget, himself, also testified to this fact. Feuget’s expert similarly testified that Feuget had been prescribed Deplin and was taking it at the time of the robbery, as did Dr. Lisa Do-guet, who |fiperformed a court-ordered evaluation of Feuget to determine his competency to stand trial. In short, Feuget presented the same evidence to which a pharmacy witness would have testified if one had been called, and we cannot conclude that failing to call an additional witness on the topic rises to the level of ineffective assistance of counsel. Furthermore, under our standard or review, Feuget must demonstrate actual prejudice resulting from his counsel’s failure to call a witness to verify the date of his prescription. Mere allegations that the jury would have been swayed by additional testimony are conclusory. Wainwright, 307 Ark. at 579, 823 S.W.2d at 454. Feu-get has failed to show how presenting cumulative testimony regarding the date of his prescription would have created a reasonable probability that the outcome of his trial would have been different. We cannot ignore that although Dr. Bradley admitted that he was mistaken about whether he had actually written a prescription for Deplin, he also testified that studies had shown that the dosage of Deplin he prescribed would only have had a placebo effect. He also reiterated that Feuget reported that the Deplin had minimal effect. The other expert witnesses at trial did not contest that Feuget was taking prescription Deplin at the time he committed the robbery; they simply did not believe that the Deplin made a difference. For example, Dr. Kim Light, a pharmacologist, testified that the Deplin would have had no impact and that Feuget was not intoxicated on the drugs that he was taking at the time of the robbery. Dr. Do-guet accepted that Feuget was taking Deplin and that he was intoxicated, but she still testified that Feuget clearly appreciated the criminality of his actions and was capable of conforming his conduct to the law based on his behavior |7before, during, and after committing the crime. Feuget’s own expert, Dr. Gale, testified that Feuget had been given a prescription for Deplin a few days prior to the robbery; however, even Dr. Gale acknowledged that there was some dispute among the medical community as to whether Deplin would enhance the effects of the other medications that Feuget was taking. Considering the other evidence presented to the jury, Feu-get is unable to show the existence of a reasonable probability that additional testimony showing that the prescription for Deplin was filled approximately one week before the robbery would have resulted in a different outcome. IV. Requesting Jury Instructions for a Lesser-included Offense For his next point, Feuget argues that there was scant evidence to support his use of a weapon during the robbery and that defense counsel was ineffective because his attorneys did not request a jury instruction for the lesser-included offense of robbery. The circuit court’s order denying postconviction relief concedes that a jury instruction on simple robbery would have been proper given the evidence. Ultimately, this argument is to no avail. Matters of trial tactics and strategy are not grounds for postconviction relief on the basis of ineffective assistance of counsel. Rankin v. State, 365 Ark. 255, 227 S.W.3d 924 (2006). This court has long recognized that competent counsel may elect not to request an instruction on lesser-included offenses as a matter of strategy. Henderson v. State, 281 Ark. 406, 664 S.W.2d 451 (1984) (per curiam). This “all-or-nothing” approach recognizes the strategic consideration that a jury may be more likely to find in a defendant’s favor when the only options are guilty and not guilty, rather than a possible compromise verdict on a lesser offense. Id. While the trial court may err to refuse ^instructions on a lesser-included offense where the defense is not inconsistent with those instructions, counsel is not ineffective merely because an all-or-nothing strategy fails. Johnson v. State, 2009 Ark. 460, 344 S.W.3d 74 (per curiam). The record reflects that counsel discussed with Feuget the possibility of moving to reduce the charges and instructing the jury on the lesser-included offense of robbery and, in fact, recommended this strategy. Counsel even went so far as to prepare the actual instruction. However, the record reflects that Feuget intentionally chose to forego this option because he believed the jury would acquit, and he did not want to give them another option to convict him of a lesser-included offense. Feuget cannot now claim that he received ineffective assistance of counsel when he made the very decision — about which he now complains — against the advice of counsel. Feuget also argues that it was incumbent upon his attorneys to pursue the lesser-included offense even against his wishes; however, Feuget never presented this argument to the circuit court. On appeal, an appellant is limited to the scope and nature of the arguments he made below and that were considered by the circuit court in rendering its ruling. Barker v. State, 2014 Ark. 467, 448 S.W.3d 197 (per curiam). We will not consider new arguments raised for the first time on appeal. Id. Accordingly, we will not address this argument. Affirmed. Hannah, C.J., and Danielson, J., concur.

ROBIN F. WYNNE, Associate Justice li Marlin Brown appeals his convictions for three counts of rape, three counts of aggravated robbery, and one count of Class B felony kidnapping. On appeal, he argues that “the abolition by statute of the statute of limitations defense for defendants whose DNA profile is included in a DNA database violates the Equal Protection Clause of the Fourteenth Amendment” to the United States Constitution, as well as ex post facto principles as applied to him. We have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(b)(3) (2014), as the appeal involves an issue of federal constitutional interpretation. We affirm. Appellant’s convictions arose from incidents that took place on January 2, January 25, and January 30, 2001. The victims in all three were approached inside or immediately outside their homes by a man with a gun who raped them in their homes and took cash or debit and credit cards. The victims were unable to give detailed descriptions of the attacker because he threatened to kill them if they lpoked at him, he had his face partially covered' in |2at least the first two attacks, and he covered the victims’ faces with a comforter or blanket during the rapes. On August 31, 2011, the State filed a felony information charging appellant with five counts of rape, three counts of aggravated robbery, and two counts of kidnapping. The State also charged appellant under Arkansas Code Annotated section 16-90-120 with having employed a firearm while committing a felony, under Arkansas Code Annotated section 5-4-501(b) with having been previously been convicted of four or more felonies, and under Arkansas Code Annotated section 5-4-501 (c) with having been previously convicted of one or more enumerated serious felonies involving violence. On August 17, 2012, appellant filed a motion to declare Arkansas Code Annotated section 5-l-109(b)(l)(B) and (j) unconstitutional. Those subsections provide: (b) Except as otherwise provided in this section, a prosecution for another offense shall be commenced within the following periods of limitation after the offense’s commission: (1)(A) Class Y felony or Class A felony, six (6) years. (B) However, for rape, § 5-14-103, the period of limitation is eliminated if biological evidence of the alleged perpetrator is identified that is capable of producing a deoxyribonucleic acid (DNA) profile; (j) When deoxyribonucleic acid (DNA) testing implicates a person previously identified through a search of the State DNA Data Base or National DNA Index System, a statute of limitation shall not preclude prosecution of the offense. Ark.Code Ann. § 5-1-109 (Repl. 2013). In his motion, appellant noted the dates of the alleged offenses and that biological samples had been collected from each of the alleged offenses by the Little Rock Police Department for testing at the Arkansas State Crime Laboratory. Appellant argued, among other things, that section 5 — 1—109(b)(Z )(B) violated | shis right to equal protection. Appellant also filed a motion to dismiss for violation of the statute of limitations, due process, and equal protection, raising arguments similar to those raised in his motion to declare the statute unconstitutional. The State responded to both motions. The trial court held an omnibus hearing on August 23, 2012, at which time it heard testimony pertinent to appellant’s motion to suppress the evidence obtained from the collection of his DNA on November 1, 2011, and testimony of an Arkansas State Crime Lab employee, Mary Robnett, pertinent to appellant’s motion to dismiss. Robnett testified that she was a forensic biologist at the state crime lab in 2001, and in 2005 she took over as the Combined DNA Index System Administrator, overseeing the entire DNA database. She testified that the DNA profile from evidence obtained during the investigation of this case was entered into the database on February 21, 2001, and that it was automatically tested weekly against the national and state databases at least since 2005. The national database matched that profile to appellant’s DNA profile in August 2010. The court denied both the motion to dismiss and the motion to declare section 5-1-109 unconstitutional. The State filed an amended felony information on September 25, 2013, but the substantive charges remained the same. Appellant’s jury trial took place on October 8-10, 2013. On the morning of the first day, the State nolle prossed counts two (rape), three (rape), and four (kidnapping). Appellant’s counsel asked the circuit court to reconsider his previously filed motions and declare section 5-1-109(b)(1)(B) and (j) unconstitutional in light of the amendments to the felony information. The court again denied the motion. The trial proceeded, and the jury found appellant guilty of all charges and sentenced him as a habitual |4offender under Arkansas Code Annotated section 5-4-501(c) to eighty years on each of the three counts of rape and the three counts of aggravated robbery, forty years for one count of Class B felony kidnapping, and fifteen years under Arkansas Code Annotated section 16-90-120 for employing a firearm in the commission of the offense of rape. All sentences were to be served consecutively with the exception of the sentence for kidnapping, for a total term of imprisonment of 495 years. Appellant timely appealed. On appeal, appellant makes two arguments. First, appellant argues that his prosecution on the aggravated-robbery and kidnapping charges violated ex post facto principles, citing Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). Specifically, he argues that the six-year statute of limitations for Class Y felonies expired in January 2007, and the 2005 amendment to the statute set forth in section 5-1-109(j) for a person previously identified through a DNA search did not extend the statute of limitations because he was not “a person previously identified through a search of the State DNA Data Base or National DNA Index |sSystem” until September 2010. Appellant acknowledges, however, that he failed to raise this argument to the trial court. He further acknowledges that a contemporaneous objection is required in order to preserve an issue for appellate review, e.g., Ussery v. State, 308 Ark. 67, 822 S.W.2d 848 (1992), and that no recognized exception to that rule is applicable in the present case. Indeed, this court has written: [A] contemporaneous objection is generally required to preserve an issue for appeal, even a constitutional issue. Bader v. State, 344 Ark. 241, 40 S.W.3d 738 (2001); Christopher v. State, 340 Ark. 404, 10 S.W.3d 852 (2000). However, we have recognized four exceptions to the contemporaneous-objection rule, commonly referred to as the Wicks exceptions. Wicks v. State, 270 Ark. 781, 606 S.W.2d 366 (1980). The four Wicks exceptions are (1) when the trial court fails to bring to the jury’s attention a matter essential to its consideration of the death penalty itself; (2) when defense counsel has no knowledge of the error and hence no opportunity to object; (3) when the error is so flagrant and so highly prejudicial in character as to make it the duty of the court on its own motion to have instructed the jury correctly; and (4) Ark. R. Evid. 103(d) provides that the appellate court is not precluded from taking notice of errors affecting substantial rights, although they were not brought to the attention of the trial court. Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002) (citing Wicks v. State, supra). Anderson v. State, 353 Ark. 384, 395, 108 S.W.3d 592, 599 (2003). Our case law is clear that Wicks presents only narrow exceptions that are to be rarely applied. Id. at 398, 108 S.W.3d at 600. In the present case, appellant argues that this court should create a fifth exception to the contemporaneous-objection rule for arguments that (1) allege ex post facto error in that the appellant should never have been brought to trial on the criminal charges at issue; (2) are based on a United States Supreme Court case that is directly on point; and (3) are “irrefutable.” This court has repeatedly declined to expand the narrow exceptions to the contemporaneous-objection requirement set forth in Wicks. E.g., Buckley v. State, 349 Ark. 53, 76 S.W.3d 825 (2002). We are not persuaded by appellant’s argument that this court fishould create a fifth exception to the contemporaneous-objection rule specifically for these circumstances. Accordingly, we do not address appellant’s ex post facto argument because it is not preserved for appellate review. Appellant’s other argument on appeal is a challenge to the constitutionality of Arkansas Code Annotated section 5-1-109(b)(1)(B) and (j) under the Equal Protection Clause of the United States Constitution. This court reviews both the circuit court’s interpretation of the constitution as well as issues of statutory interpretation de novo, because it is for this court to determine the meaning of a statute. Arnold v. State, 2011 Ark. 395, at 4, 384 S.W.3d 488, 493. In considering the constitutionality of a statute, this court recognizes the existence of a strong presumption that every statute is constitutional. Id. The burden of rebutting a statute’s constitutionality is on the party challenging the legislation. Id. An act should be struck down only when there is a clear incompatibility between the act and the constitution. Id. We acknowledge that it is the duty of the courts to sustain a statute unless it appears to be clearly outside the scope of reasonable and legitimate regulation. Id. The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution provides that no state shall “deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const. amend. XIV, § 1. The Equal Protection Clause generally requires the government to treat similarly situated people alike. Klinger v. Dep’t of Corr., 31 F.3d 727, 731 (8th Cir.1994). The first step in an equal-protection case is to 17determine whether the plaintiff has demonstrated that he or she was treated differently than others who were similarly situated to him or her. See id. Here, the State disputes that DNA-implicated defendants and non-DNA-implicated defendants are similarly situated such that appellant can mount an equal-protection claim. “The issue of equal protection involves ‘whether people in the same situation are being treated differently....’” McDole v. State, 339 Ark. 391, 401, 6 S.W.3d 74, 81 (1999). We hold that criminal defendants facing the same or similar felony charges are similarly situated for equal-protection purposes when it comes to challenging the applicable statute of limitations. Cf. McDole, 339 Ark. at 401, 6 S.W.3d at 81 (criminal and civil defendants not similarly situated for equal protection purposes). The next step in our analysis is to determine whether the classification meets the appropriate standard, which appellant concedes in this case is rational basis. Under the rational-basis test, legislation is presumed constitutional and rationally related to achieving any legitimate governmental objective under any reasonably conceivable fact situation. Archer v. Sigma Tau Gamma Alpha Epsilon, Inc., 2010 Ark. 8, at 12, 362 S.W.3d 303, 309-10. It is not our role to discover the actual basis for the legislation. Id. We merely consider whether there is any rational basis which demonstrates the possibility of a deliberate nexus with state objectives so that the legislation is not the product of arbitrary and capricious government purposes. Id. Here, appellant argues that there is no rational basis for the General Assembly’s abolition of the statute of limitations for DNA-identified defendants but leaving the statute of limitations in place for defendants identified by other means. He states that the only difference between the two groups is the type of evidence placing the two types of ^defendants at a crime scene, and he asserts that there is no reason to “assume” that DNA-identified defendants are more dangerous to society, are more deserving of retributive punish ment, or “are guilty beyond any doubt whatsoever and, therefore, have no need of a trial, fair or unfair.” He further argues that the General Assembly’s finding that “the mission of the criminal justice system is to punish the guilty and exonerate the innocent,” does not provide a rational basis for eliminating the statute of limitations for DNA-identified defendants because the placement of the defendant at the crime scene is not the equivalent of proof of the defendant’s guilt. He points to the possibility of mistake in the preparation of a DNA profile and the fact that a DNA profile match only places a defendant at the crime scene at some point in time and does not eliminate many possible defenses. The State counters that the General Assembly could rationally have concluded that, “due to the enhanced or high reliability of DNA evidence to identify perpetrators and the fact that it does not lose its probative value over time, the elimination of the statute of limitations in cases in which DNA evidence implicates a defendant is warranted.” The State contends that the facts of the present case, in which DNA evidence revealed a wholly unsuspected rapist and robber, demonstrate why section 5-1-109 survives an equal-protection challenge. We agree with the State. DNA evidence, unlike witnesses’ memories or other types of evidence, does not degrade over time. Because DNA is different than other types of evidence, the General Assembly had a rational basis for treating it differently and eliminating the statute of limitations when DNA can provide the identity of an alleged perpetrator — even | along after the crime has been committed. Of course the State has a legitimate interest in identifying people who commit crimes and bringing them to justice. Equal protection does not require that persons be dealt with identically; it requires only that classification rest on real and not feigned differences, that the distinctions have some relevance to the purpose for which the classification is made, and that their treatment be not so disparate as to be arbitrary. Smith v. State, 354 Ark. 226, 235-36, 118 S.W.3d 542, 547 (2003). The statutory provisions eliminating the statutes of limitation for DNA-identified defendants meet this very deferential standard. Appellant has failed to demonstrate that Arkansas Code Annotated section 5-1-509(b)(1)(B) and (j) violates his right to equal protection. Therefore, we affirm. Affirmed. . Regarding his kidnapping conviction, appellant was convicted of a Class B felony because the jury found that he had proved by a preponderance of the evidence that he released the victim alive and in a safe place prior to trial. See Ark.Code Ann. § 5 — 11—102(b)(2). . Act 2250 of 2005 provided in relevant part: (j) In a case in which deoxyribonucleic acid testing implicates a person previously identified through a search of the State DNA Data Base or National DNA Index System, no statute of limitation that would otherwise preclude prosecution of the offense shall preclude the prosecution until a period of time following the implication of the person by deoxyribonucleic acid testing has elapsed that is equal to the otherwise applicable limitation period. Act of Apr. 13, 2005, No. 2250, § 1, 2205 Ark. Acts 9609, 9609. . Appellant's argument is directed to the current version of section 5 — 1—109(b)(1)(B) and (j), which was most recently amended by Act 1444 of 2009. . Act of Apr. 19, 2001, No. 1780, § 1, 2001 Ark. Acts 7736, 7737.

BRANDON J. HARRISON, Judge BThe Benton County Circuit Court granted summary judgment to Great Lakes Reinsurance (UK) PLC. It ruled that Great Lakes had no duty to defend or indemnify separate claims made against the insured (George) because no possibility of coverage existed under the insurance policy. The claims that triggered this coverage dispute were filed in a related circuit-court cas.e. The court found that the commercial general liability policy in this case was unambiguous in excluding coverage for claims arising from an assault or battery that spawned the separate case. George appeals, arguing that the insurance policy is ambiguous. We affirm the circuit court. J¿- The facts are undisputed. George, through appellant Heart & Soul, LLC, owns a facility in Columbia County that is rented out for dances, parties, and other events. At one of these events, a gunman fired into the crowd and injured several people. Two of those injured, appellants Ricotta Lambert and Ñeca Scarber, were shot and later filed suit (the underlying action) in Columbia County against George, his LLC, and several John Does, alleging that George and his LLC were negligent in failing to protect them and seeking compensatory and punitive damages. Wfiien the events leading to .the underlying action occurred, George was insured under a commercial general liability insurance policy issued by Great Lakes. Under the policy’s liability coverage, Great Lakes agreed to pay damages for bodily injuries caused by an “occurrence.” The policy defined “occurrence” as “an accident, including continuous or repeated exposure to substantially the same general harmful conditions.” There was also exclusionary language in section 1 of the policy: 2. Exclusions This insurance does not apply to: a. Expected or Intended Injury “Bodily injury” or “property damage” expected or intended from the standpoint of the Insured. This exclusion does not apply to “bodily injury” resulting from the use of reasonable force to protect persons or property. At the time of the policy’s issuance, there was also a Combination Endorsement —1. That endorsement specifically excluded coverage for bodily injuries that arise out of an Dassault or battery, or coverage for punitive damages — both of which were asserted in the underlying action. The endorsement’s “bodily injury” exclusion provides as follows: 2. EXCLUSION — EXPECTED OR INTENDED INJURY AND ASSAULT OR BATTERY Exclusion a. of Coverage A (Section I) is deleted and replaced with the following: “Bodily injury” or “property damage”: (1) expected or intended from the standpoint of any insured;' (2) arising out of assault or battery, or out of any act or omission in connection with assault or battery, or with the prevention or suppression of an assault or battery; or (3) arising out of charges or allegations of negligent hiring, training, placement or supervision with respect to (1) or (2) above. George notified Great Lakes of the underlying action, and Great Lakes notified George that it was providing a defense under a reservation of rights because the policy unambiguously excluded coverage for the claims in the underlying action. Great Lakes then filed this declaratory-judgment case, asserting that it did not have a duty to defend or indemnify George. Great Lakes moved for summary judgment and asked the court to order that George had no coverage under the policy. George also moved for summary judgment, arguing that the policy was ambiguous and should therefore be construed against the drafter to provide coverage for the underlying suit. As stated earlier, the court ruled that the policy language was not ambiguous and excluded coverage for acts or omis sions arising from an assault or battery. The court further found that the applicable exclusionary language was contained in an endorsement, that the endorsement was a part of the insurance contract, and that the endorsement |4expressly deleted and replaced the exclusionary language in the Commercial General Liability Coverage Form. Therefore, the policy did not apply to the claims asserted against George in the underlying action because those claims were excluded, and Great Lakes was not obligated to defend the action. II. Because this case comes to us from an order of summary judgment where the parties agree that there are no facts in dispute, our review focuses on the circuit court’s application of the law to the facts. Harasyn v. St. Paul Guardian Ins. Co., 349 Ark. 9, 75 S.W.3d 696 (2002); Chamberlin v. State Farm Mut. Auto. Ins. Co., 343 Ark. 392, 36 S.W.3d 281 (2001). We give the circuit court’s conclusions of law no deference on appeal. Morningstar v. Bush, 2011 Ark. 350, 383 S.W.3d 840. George argues on appeal that this endorsement is not part of the insurance contract because it was not listed on the first page of the policy, which is captioned “Common Policy Declarations.” The endorsement is, however, listed as one of the forms and endorsements in the commercial general-liability-eoverage declarations page. And George initialed and dated each page of the insurance contract, including the one containing the endorsement with the assault-or-battery exclusion. Although the endorsement was not listed on one declarations page, it was listed on a separate declarations page; it was attached to the policy when it was issued; and George dated and initialed each page. We affirm the circuit court’s decision that the assault-or-battery endorsement- was part of the insurance contract’s terms. | ¿Having settled the contract’s terms, we turn to George’s primary argument, which is that the presence of the bodily-injury exclusion in the main body of the policy is made ambiguous by the presence of an assault-or-battery endorsement. We disagree. The presence of an endorsement in and of itself does not make the insurance contract ambiguous. The endorsement expressly states: “THIS ENDORSEMENT CHANGES THE POLICY. PLEASE READ IT CAREFULLY.” (Emphasis added.) By use of the word “changes,” the endorsement clearly advised Great Lakes’ insureds, like George, that it was making the scope of coverage different than what it would have been under the original policy. The endorsement’s plain language also states that the personal-injury exclusion in the policy’s main body “is deleted and replaced,” substituting the provisions in the endorsement for those in the basic policy. Generally, exclusions in a policy or its endorsements are as much a part of the contract as other parts and must be given the same consideration in determining what coverage exists. Schultz v. Farm Bureau Mut. Ins. Co., 328 Ark. 64, 940 S.W.2d 871 (1997). George’s argument stumbles over the well-established rule of insurance law that where provisions in the body of the policy conflict with an endorsement or a rider, the provision of the endorsement governs. See, e.g., Union Elec. Co. v. AEGIS Energy Syndicate 1225, 713 F.3d 366, 368 (8th Cir.2013); Hendricks v. Curators of Univ. of Mo., 308 S.W.3d 740, 746 (Mo.Ct.App.2010); 2 Couch on Insurance §§ 21:21, 21:22 (3d ed.1996). The more specific and more limiting language of the endorsement controls the more general exclusion that it replaces, and the two are not “irreconcilably inconsistent,” as George argues. The circuit court correctly found that the policy excluded any potential insurance coverage for the events asserted in the underlying action in Columbia County. Because there is no ambiguity in the policy, we need not consider George’s second point where he argues that he is entitled to summary judgment. Affirmed. ABRAMSON and GLOVER, JJ., agree.

BART F. VIRDEN, Judge | Appellant Johnathan Albretsen was charged with first-degree murder and aggravated assault on a family or household member in the death of his stepfather, Joe Gonsalves. A Saline County jury convicted him of manslaughter, and he was sentenced to five years’ imprisonment. Al-bretsen argues on appeal that there was insufficient evidence to support his conviction and that the trial court erred in failing to instruct the jury on negligent homicide. We affirm. There was evidence that Albretsen, twenty-four years old at the time of the offense, lived with his mother, Teresa Gon-salves, the victim, and a younger half-brother, Grant Quick. There was testimony that on February 16, 2013, the director of 911 communications received a call from Teresa, who said that her son had stabbed her husband in the heart. Quick testified that he was in his bedroom when he heard loud voices coming from Albretsen’s bedroom. Albretsen was sitting on his bed, and their mother was telling him that 12he should have left some ice cream for others. According to Quick, there was a rule regarding how much ice cream they were permitted to have. Quick testified that Albretsen told their mother that he should be allowed to have as much as he wanted. Albretsen then began using foul language, at which point Joe told Albretsen that he could not speak to his mother in such a disrespectful manner. When Albretsen attempted to leave the room, Joe pushed Albretsen back down onto the bed and repeatedly told him to “calm down,” but Albretsen resisted being restrained. Quick testified that Joe had both hands on Albretsen’s shoulders, that Joe did not appear to be aggressive, and that Joe did not hit Albretsen. Quick saw Albretsen’s right hand “come around in kind of an arc toward Joe’s chest.” Al-bretsen then kicked Joe, who fell against a wall. Quick stated that when Joe stood up and ran from the room, there was blood on the wall. Quick testified that Albretsen then grabbed their mother, threw her onto the bed, and said “something about cutting her up.” Albretsen fled from the house and was sitting on the ground outside when police arrived. Aaron Washington, the patrolman with the Bauxite Police Department who arrested Albretsen, testified that he saw no wounds or injuries on Albretsen. Likewise, Lieutenant Ron Parsons with the Saline County Sheriffs Office testified that he examined Albretsen’s body for injuries but that he did not appear to be injured and had no redness or marks. Daniel W. Dye, associate medical examiner at the Arkansas State Crime Lab, testified that Joe Gonsalves died from a stab wound that punctured his lung and nicked his pulmonary artery. In describing the wound, Dye said that it was triangular shaped, indicating that the knife was turned after it was inserted into the torso. Dye concluded that only a knife with |sa single-edged blade could have caused Joe’s fatal wound. The jury was instructed on first-degree murder, second-degree murder, and manslaughter, as well as aggravated and first-degree assault on a family or household member. The jury was also instructed on the defense of justification. Although Al-bretsen requested an instruction on negligent homicide, the trial court refused to give it. The jury acquitted Albretsen on all charges except manslaughter. On appeal, Albretsen argues that the trial court erred in denying his directed-verdict motion. We treat a motion for directed verdict as a challenge to the sufficiency of the evidence. Walker v. State, 2014 Ark. App. 271, 2014 WL 1758898. In reviewing a challenge to the sufficiency of the evidence, we view the evidence in the light most favorable to the State and consider only the evidence that supports the verdict. Spight v. State, 101 Ark. App. 400, 278 S.W.3d 599 (2008). We will affirm if there is substantial evidence, either direct or circumstantial, to support the jury’s verdict. Fletcher v. State, 2014 Ark. App. 50, 2014 WL 245142. Substantial evidence is evidence of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or another. Spight, supra. There are two distinct definitions of manslaughter. A person commits manslaughter if the person causes the death of another person under circumstances that would be murder, except that he causes the death under the influence of extreme emotional disturbance for which there is reasonable excuse. Ark. Code Ann. § 5-10-104(a)(Z )(A) (Repl. 2013). The reasonableness of the excuse is determined from the viewpoint of a person in the actor’s situation under the circumstances as the actor believed them to be.' Ark. Code Ann. § 5-10-14104(a)(1)(B). A person also commits manslaughter if the person recklessly causes the death of another person. Ark. Code Ann. § 5-10-104(a)(3). A person acts recklessly with respect to attendant circumstances or a result of his conduct when the person consciously disregards a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(3)(A) (Repl. 2013). The risk must be of a nature and degree that disregard of the risk constitutes a gross deviation from the standard of care that a reasonable person would observe in the actor’s situation. Ark. Code Ann. § 5-2-202(3)(B). Because intent can seldom be proved by direct evidence, jurors are allowed to draw upon their common knowledge and experience to infer it from the circumstances. Spight, supra. Because of the obvious difficulty in ascertaining a defendant’s intent, a presumption exists that a person intends the natural and probable consequences of his actions. Id. The question of justification is largely a matter of the defendant’s intent, which must be established by circumstantial evidence, and is essentially a question of fact for the jury. Taylor v. State, 28 Ark. App. 146, 771 S.W.2d 318 (1989). A person is justified in. using deadly force upon another person if he reasonably believes that the other person is using or is about to use unlawful deadly physical force. Ark. Code Ann. § 5-2-607(a)(2) (Repl. 2013). Albretsen argues that there was not suf-fiéient evidence that he caused the death under extreme emotional distress or by acting recklessly. He maintains that the evidence established that the victim initiated the physical contact and prevented him from leaving. Albretsen contends that, although he is left-handed, he struck the victim with his right hand, and there was |sno evidence that he had a knife. Albretsen characterizes his actions as “reasonable.” As a preliminary matter, although the weapon was not found, the jury could reasonably conclude that Albretsen used a knife to stab the victim. The medical examiner testified that only a knife could have caused the victim’s fatal wound. Quick described seeing Albretsen’s hand making contact with the victim’s chest and, immediately after the victim had been kicked against a wall, Quick saw blood on the wall. Moreover, Quick testified that Albretsen threatened to “cut” their mother. At minimum, the jury could have found that Albretsen acted recklessly in causing his stepfather’s death and that Albretsen consciously disregarded a substantial and unjustifiable risk that Joe would die when he plunged a knife into the victim’s chest and twisted it. We hold that there was substantial evidence to support Albretsen’s conviction for manslaughter. To the extent that Albretsen advances his justification defense on appeal, we note that the defense, with its requirement of reasonableness, is inconsistent with the element of recklessness in the manslaughter statute. See Cobb v. State, 340 Ark. 240, 12 S.W.3d 195 (2000); Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003). Arkansas Code Annotated section 5-2-614(a) (Repl. 2013) provides that justification is not available as a defense to an offense for which recklessness or negligence suffices to establish culpability. In any event, there was evidence that Albretsen suffered no injuries as a result of the victim’s actions, while the victim sustained several injuries in addition to the fatal wound. Moreover, Quick’s testimony established that the victim was only attempting to calm Albretsen when he placed his hands on Albretsen’s shoulders. The jury was not required to believe Albretsen’s defense. Bargery v. State, 37 Ark. App. 118, 825 S.W.2d 831 (1992). Next, Albretsen argues that the trial court erred in failing to give a jury instruction on negligent homicide as a lesser-included offense of manslaughter. An instruction on a lesser-included offense is appropriate when it is supported by even the slightest evidence. Jones v. State, 2012 Ark. 38, 388 S.W.3d 411. However, we will affirm the circuit court’s decision to not give an instruction on the lesser-included offense if there is no rational basis for doing so. Id. A circuit court’s ruling on whether to submit a jury instruction will not be reversed absent an" abuse of discretion. Id. A person commits negligent homicide if he negligently causes the death of another person. Ark. Code Ann. § 5 — 10—105(b)(1) (Repl. 2013). A person acts negligently with respect to attendant circumstances or a result of his conduct when the person should be aware of a substantial and unjustifiable risk that the attendant circumstances exist or the result will occur. Ark. Code Ann. § 5-2-202(4)(A). The issue now presented is whether there was even the slightest evidence to support the requested jury instruction on negligent homicide. Albretsen argues that the evidence established that the victim initiated the physical altercation. He contends that, when he attempted to leave the room, the victim forced him onto the bed. Albretsen argues that he struck the victim only once with his non-dominant hand. Albretsen contends that this was evidence from which the jury could have found that he failed to perceive the risk. To the contrary, there was no evidence from which the jury could conclude that Albretsen was unaware that stabbing his stepfather in the chest carried with it a substantial [7and unjustifiable risk that death would occur. Further, Albretsen’s deliberate act of twisting the knife after stabbing the victim cannot be characterized as negligence. Mason v. State, 2013 Ark. App. 48, at 3, 2013 WL 361532 (holding that there was no rational basis on which to instruct the jury to consider negligent homicide where there was evidence of a stab wound to a -vital area of the victim’s body, because such action went beyond the mere failure to perceive the risk that the victim would suffer serious injury or death and “affirmatively sought one of those results”). Albretsen’s argument on this point is simply untenable. Under these circumstances, we hold that the trial court did not abuse its discretion in refusing to instruct the jury on negligent homicide. Affirmed. Gladwin, C.J., and Hixson, J., agree.

ROBERT J. GLADWIN, Chief Judge |,Appellant Louis Butler appeals the February 21, 2014 order of the Pulaski County Circuit Court awarding appellee Lover Finley $85,286.39 in actual damages and $100,000 in punitive damages. He argues that there was insufficient evidence that he committed the tort of conversion. We affirm. Dearel and Phyllis Wilbert, husband and wife, owned a home at 4127 Arapaho Trail Road, Little Rock, Arkansas, a rental property for them, upon which they had a mortgage. The Wilberts filed for bankruptcy and were- contacted by appellant regarding the purchase of the property. Appellant found a buyer for the home, and the Wilberts quitclaimed the property to Vicki Haynes. Haynes then quitclaimed her interest in the property to appellee, and appellee and her husband, Lurone Coakley, began making payments to Wells Fargo |2Home Mortgage, which held the mortgage on the property. The Wilberts never notified Wells Fargo that they were no longer making the mortgage payments. Appellee purchased an insurance policy from Farmers Insurance Company on the house when she and her husband moved into it. The policy was for approximately $160,000. Subsequently, the house burned, and Farmers sent appellee a check for $81,680.80 made payable to her and Wells Fargo. Appellee endorsed the check and sent it to Wells Fargo, which paid off the mortgage balance and returned the difference, $35,286.39, to the Wilberts, whose names were listed as páy-ees on the check. Appellee attempted to determine from Wells Fargo why her name was not on the check and contacted appellant, who arranged for appellee to meet with the Wil-berts. The parties met at a restaurant, and the Wilberts refused to endorse the check in favor of appellee. Sometime after the first check had been sent, Wells Fargo sent a second check, also made payable to the Wilberts, directly to appellant’s office. Appellant telephoned Mrs. Wilbert and asked her to sign the check; she again refused and hung up on him. The Wilberts never endorsed any check and never authorized anyone to endorse the check. Appellant’s sister then endorsed the check and deposited the check into appellant’s personal bank account. Appellee and her husband filed a lawsuit against Wells Fargo, the Wilberts, the City of Little Rock, and appellant. All defendants except appellant were dismissed from the case. Those dismissals are not appealed. A jury found appellant liable to appellee for conversion and awarded $35,286.39 actual damages and $100,000 punitive damages, which was reflected in |3the February 21, 2014 order. ■Appellant filed a motion for a new trial on March 6, 2014, which was deemed denied because the circuit court took no action on it. He then filed a notice of appeal on May 2, 2014. On appeal of a denial of a motion for directed verdict, it is not an appellate court’s place to try issues of fact; the appellate court simply reviews the record for substantial evidence to support the jury’s verdict. Ark. Realtors Ass’n v. Real Forms, LLC, 2014 Ark. 385, 442 S.W.3d 845. The Arkansas Supreme Court has held thát “[a] motion for directed verdict should be granted only when the evidence viewed is so insubstantial as to require the jury’s verdict for the party to be set aside. A motion for directed verdict should be denied when there is a conflict in the evidence, or when the evidence is such that fair-minded people might reach different conclusions.” Byme, Inc. v. Ivy, 367 Ark. 451, 456, 241 S.W.3d 229, 234 (2006) (internal citations omitted). The appellate court will defer to the jury’s resolution of the issue unless there is “no reasonable probability” for it. Unum Life Ins. Co. of Am. v. Edwards, 362 Ark. 624, 627, 210 S.W.3d 84, 87 (2005). Arkansas Code Annotated section 4-3-420 codifies the UCC definition of conversion of a negotiable instrument as follows: (a) The law applicable to conversion of personal property applies to instruments. An instrument is also converted if it is taken by transfer, other than a negotiation, from a person not entitled to enforce the instrument or a bank makes or obtains payment with respect to the instrument for a person not entitled to enforce the instrument or receive payment. An action for conversion of an instrument may not be brought by (i) the issuer or acceptor of the instrument or (ii) a payee or indorsee who did not receive delivery of the instrument either directly or through delivery to an agent or a co-payee. |4(b) In an action under subsection (a), the measure of liability is presumed to be the amount payable on the instrument, but recovery may not exceed the amount of the plaintiffs interest in the instrument. (c) A representative, other than a depositary bank, who has in good faith dealt with an instrument or its proceeds on behalf of one who was not the person entitled to enforce the instrument is not liable in conversion to that person beyond the amount of any proceeds that it has not paid out. Ark. Code Ann. § 4-3-420(a)-(c) (Repl. 2001). Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. Curlen v. Henry Mgmt., Inc., 2010 Ark. App. 855. It is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Id; see also Hatchell v. Wren, 363 Ark. 107, 211 S.W.3d 516 (2005). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the owner’s rights. Gurlen, supra. The property interest may be shown by a possession or present right to possession when the defendant cannot show a better right, since possession carries with it a presumption of ownership. Buck v. Gillham, 80 Ark. App. 375, 96 S.W.3d 750 (2003). The law applicable to conversion of personal property also applies to instruments. Ark. Code Ann. § 4-3-420(a). In the present case, appellant is accused of converting a check made payable to the Wilberts by having his signature signed to the check as an endorsement, which had previously forged endorsements on it. The signatures on the back of the check, signed as Dearel Wilbert and “Phyliss” Wilbert, which appellant deposited, were not those of either Dearel or Phyllis Wilbert. They were forged by someone. Appellant’s signature, however, was endorsed by |fihis sister with his authorization. Appellant claims that his depositing the check was no different than what the third party did with respect to the real owner of the check in Schaap v. State Nat’l Bank of Texarkana, 137 Ark. 251, 208 S.W. 309 (1918), as the check in this case belonged to the Wilberts- and no one else. He argues that no one else had a right to pos sess the check because the Wilberts had not given anyone a possessory right to it. Also, appellant notes that appellee testified that she had no oral agreements with the Wilberts in this case. He cites Southern Trust Co. v. American Bank of Commerce & Trust Co., 148 Ark. 288, 229 S.W. 1026 (1921), in which the Arkansas Supreme Court stated that “notwithstanding the fact that appellee made a mistake in giving the check to the wrong person, it paid the funds out to that person on the check, and it can not be said that the delivery of the check to another person would constitute a deposit of the funds in the name of the party to whom the original check belonged. By no process of reasoning can it be said under these circumstances that the true owner of the original check can affirm the receipt of the cashier’s check by the imposter and thereby become the owner of the deposit.” Id. at 288, 229 S.W. at 1028. Appellant submits that there was no testimony at all in the present case that appellee was the owner of the check that appellant had deposited. Appellant argues that only the Wilberts were entitled to the check or the funds from the check because the check was made payable to them, and appellee had neither an ownership interest nor a pos-sessory interest in either the check or the funds. The check that appellant deposited belonged to the Wilberts and was their property alone. lijThe elements of conversion require dominion and control over another’s property. Appellant acknowledges that the Wilberts may have had a claim for conversion against him, but he asserts that appellee did not. Accordingly, appellant maintains that there was insufficient evidence that he converted the check. We disagree and hold that, even though appellee’s name was not on the check, she was the intended beneficiary of the proceeds of the check. The Wilberts laid no claim to any of the funds of that instrument and refused to sign or endorse the instrument because they had no right to negotiate the instrument because no value had been given for it. Appellee, however, did give value for the instrument, even though the instrument had not been put in her name. We hold that appellant was a forger on the instrument — because even though he did not personally forge the instrument, he authorized his sister to forge the instrument — and thus had no defense against the claim of conversion once the instrument had been forged and negotiated in his name. Appellant’s reliance on Schaap, supra, and Southern Trust, supra, in support of his contention that appellee was not the lawful owner of the check, and thus did not have standing to sue appellant for conversion, is misplaced. The holdings in both cases actually support appellee’s right to sue appellant for conversion. In Schaap, supra, third party Slates had authority to collect checks on behalf of his principal, Schaap, but appropriated the negotiated funds for his own use rather than deliver them to the rightful owner. Even though the banks paid funds to Slates under a forged signature, the appellate court held that Schaap was entitled to recover on the instruments from the banks where they had been deposited under a forged ^endorsement. More important, the court held that it was Schaap’s interest in the proceeds collected on behalf of the instrument that gave him standing to sue the banks for recovery of the proceeds rather than his status as a payee of the instrument. Schaap, supra. In Southern Trust, supra, one bank sued another for funds paid on fraudulently endorsed checks. The funds were paid in the form of a cashier’s, check made out to an imposter holding himself out as Sam W. Smith. Again, the supreme court distinguished between the rightful owner of the check and the party to whom the check was written and held that the real Sam W. Smith was, by all accounts, entitled to the funds drawn on the bank, and so he alone could look to the forger for reimbursement. Id. Here there is no dispute that appellee was the beneficiary of the insurance policy. There is likewise no dispute that she endorsed the insurance check and forwarded it to Wells Fargo in settlement of the mortgage and that she was entitled to return of the excess proceeds. Although appellant states that he endorsed the check with the authorization of Mrs. Wilbert and that it was a gift from her, the record reflects that Mrs. Wilbert denied that assertion and stated that she specifically refused to sign the check at appellant’s request and became angry at him. The jury did not believe appellant’s testimony and found that he had converted the funds belonging to appellee. In this case, the jury found that the check from Wells Fargo was never negotiated by either of the Wilberts, as payees of the check, or by appellee, the party entitled to the proceeds of that check. The jury found that appellant’s defenses were not credible and that |8appellee was entitled to funds deposited into appellant’s bank account. Moreover, whether appel-lee met any of the criteria of section 4-3-420(a)(i) or (ii) was never argued by appellant. We find no error in the jury’s findings that (1) appellant was not authorized to have his sister endorse the check, deposit the check into his account, or use those funds for his personal use, and (2) appellee was the party entitled to those funds and that appellant’s negotiation of the instrument was a conversion of property belonging to appellee even though she was not named as a payee by the drawing bank. Affirmed. Virden and Hixson, JJ., agree.

ROBIN F. WYNNE, Associate Justice LThe Board of Directors of the City of Hot Springs (the Board) appeals from two separate orders of the Garland County Circuit Court. In the first order, the circuit court found that the Board had violated the Arkansas Freedom of Information Act. In the second order, the circuit court awarded appellees attorney’s fees in the amount of $3000 and costs in the amount of $530. Appellees have filed a motion to dismiss the appeal as moot. Our jurisdiction is pursuant to Arkansas Supreme Court Rule l-2(b)(6) (2014). We dismiss the appeal as moot in part and affirm in part. In 2011, the Board passed an ordinance allowing for a twenty-one-minute public-comment period following its regular meetings. Lance Hudnell, the city manager at the time the ordinance was passed, unilaterally decided to allow all regular meetings, including the |2publie-comment period, to be telecast. The public-comment period was televised until the Board agreed at a workshop retreat held at Brady Mountain Lodge on February 8, 2013, to cease televising the public-comment period. The Board then implemented the decision to cease the telecast of the public-comment period without further action. Appellee Robert Driggers sent a letter to the city on August 2, 2013, in which he requested that the decision to cease the telecast be suspended until it was ratified by the Board at a regular public meeting. The city attorney for Hot Springs responded to Mr. Driggers’s request in a letter stating that, because the decision to televise the public-comment period was an administrative decision, no formal action by the Board was required to cease the broadcast. The city attorney also responded to a request for information from a local newspaper regarding how the decision was made by stating that no vote would be required and that the consensus of the Board was to cease broadcasting the public-comment period. The mayor responded to an email query from Mr. Drig-gers and stated that, at the retreat, the Board had reached a six-to-one consensus regarding the issue. On October 11, 2013, appellees filed a petition for relief under the Arkansas Freedom of Information Act (FOIA). The Board responded to the petition, stating that proper and lawful notice of the workshop had been given and that no action or vote was required for the Board to cease televising the public-comment period. The parties stipulated that the matter would be submitted to the circuit court on the record and without a hearing. On December 2, 2013, the circuit court entered an order in which it found that the action by the Board on February 8, 2013, was taken in violation of FOIA and that the Board was required to vote in |3public at a regular meeting in order to cease televising' the public-comment period. Specifically, the circuit court found that, while the original decision to televise the public-comment period was a managerial decision, when the Board met on February 8, 2013, and decided to end the telecast, it became a policy decision by the Board that had to be ratified at a regular meeting. The circuit court also found that appellees were entitled to attorney’s fees. Appellees submitted a motion for costs in the amount of $530 and attorney’s fees in the amount of $5000. In an order entered on December 16, 2013, the circuit court awarded appel-lees attorney’s fees in the amount of $3000 and costs in the amount of $530. After the circuit court entered its order finding that the Board had violated FOIA, but before this appeal was filed, the Board voted at a regular public meeting to cease televising the public-comment period. This appeal followed. As stated above, appellees have filed a motion to dismiss the appeal, in which they argue that the Board’s vote at the regular meeting to cease televising the public-comment period rendered the issues presented in the appeal moot. Generally, an issue becomes moot when any judgment rendered would have no practical effect upon a then existing legal controversy. Newman v. Crawford Cnty. Cir. Ct., 2014 Ark. 308, at 4, 2014 WL 2932265. As a general rule, appellate courts of this state will not review moot issues, as doing so would be to render an advisory opinion, which this court will not do. Id. However, there are two exceptions to the mootness doctrine. The first exception involves issues that are capable of repetition, yet evade review, and the second exception concerns issues that raise considerations of substantial public interest which, if addressed, would prevent future litigation. Etherly v. Newsome, 2013 Ark. 391, at 4, 2013 WL 5595494. The Board has responded to appellees’ motion to dismiss the appeal, arguing that both exceptions to the mootness doctrine apply. After the order was entered, the Board took the action mandated by the circuit court’s order, thereby terminating the controversy between the parties on the issue. Regarding the first exception to the mootness doctrine, while the issue presented may be capable of repetition, it does not evade review. As for the second exception, the issue presented is dependent upon the unique facts of this case and raises no issue of substantial public interest that would prevent future litigation if addressed. Thus, neither exception to the mootness doctrine applies in this case. Therefore, we dismiss the Board’s challenge to the circuit court’s finding that it violated FOIA as moot. Appellant also argues that the circuit court erred by awarding appellees attorney’s fees. The attorney’s fees have yet to be paid; thus, the controversy over the awarded fees still exists. This issue is not moot. In any action to enforce FOIA, or in any appeal therefrom, the court shall assess against the defendant reasonable attorney’s fees and other litigation expenses reasonably incurred by a plaintiff who has substantially prevailed unless the court finds that the position of the defendant was substantially justified. Ark. Code Ann. § 25-19-107(d)(l) (Repl. 2014). The Board argues that it was substantially justified in believing that it had complied with FOIA. The circuit court stated in its December 2, 2013 order that appellees were entitled to a fee. Appellees subsequently submitted a petition for attorney’s fees and costs. The Board failed to respond- to the fee petition, and it never raised the argument made on appeal before the 1 ¿circuit court. Arguments not raised at trial are not considered on appeal. Parmley v. Moose, 317 Ark. 52, 57, 876 S.W.2d 243, 246 (1994). The order awarding appellees attorney’s fees and costs is affirmed. Dismissed in part; affirmed in part.

ELANA CUNNINGHAM WILLS, Justice. I,Arkansas Department of Human Services (DHS) appeals from a permanency-planning order entered by the Grant County Circuit Court. We accepted certification of this case from the court of appeals because DHS seeks an extraordinary writ as an alternative to reversal. See Ark. Sup.Ct. R. l-2(a)(3) (2009). On September 13, 2007, the Grant County Circuit Court granted emergency custody of appellee Tammy Denmon’s three children to DHS based on allegations of neglect. The circuit court entered a permanency-planning order on September 25, 2008, stating that returning the children to Denmon’s custody was contrary to their welfare, and that it was in the best interest of the children to remain in the custody of their aunt, Huida Stephenson. Additionally, the circuit court stated that reunification of the children and Denmon continued as the “goal of the case” due to Denmon’s compliance with the case plan and court orders, and because she made “significant measurable progress toward achieving the goals established in the case plan.” [>DHS submitted a February 4, 2009 report to the circuit court that recommended termination of Denmon’s parental rights and granting Stephenson permanent custody of the children, based, in part, on Den-mon’s failure to demonstrate “the mental ability to care for herself or her children” and other behavioral issues. On February 11, 2009, the circuit court held a permanency-planning hearing, rejecting DHS’s recommendation to terminate Denmon’s parental rights, stating as follows: We leave this permanency planning hearing with [DHS’s] position to terminate parental rights. The children need stability but I’m not willing to give up on the mother at this point. If I was to do that, [DHS] would cut all the services off. We’ve been over a year in this case and haven’t got to the point we need to be, I don’t think that’s all Ms. Denmon’s fault.... I want to give her the opportunity to get her children back. But I’ve got to have some permanency in these children’s lives. I’m going to permanently place custody with Ms. Stephenson. The children need to be stable. But I’m not giving up on the mother’s position to work with Timber Ridge [Ranch Neurological Center] and try to get her cognitive skills back together after the stroke to try to get her to where she can take care of the children. I want the kids to be and know they’re safe. I’m not giving up on you.... I’m going to order that she be placed in Timber Ridge. I want [DHS] to get that set up, get her placed. I want the evaluations done. I want to review this case in 60 days. The circuit court continued to state that I’m not going to do a guardianship, I’m just going to leave the children permanently with her right now with the option to go back and revisit after we get through what I deem to be the final test of whether Ms. Denmon’s cognitive skills are going to work. And I know that’s probably against the law, but that’s fine. Because I’m, sitting here and I am the law and I don’t think that you’re going to appeal it. DHS objected to the circuit court’s order for DHS to specifically place Denmon at the Timber Ridge Ranch facility for family services; however, DHS did not otherwise object to the ruling. [¡On February 26, 2009, the circuit court entered a “Fifteen Month Permanency Planning Order,” stating that [t]he juveniles are placed in the permanent custody of Huida Stephenson because the juveniles are in need of permanency. However, the Court is not willing to give up on the mother and thus, the goal of reunification shall continue. DHS filed a notice of appeal on February 27, 2009. The same day, DHS also filed separate motions to stay and modify the February 26, 2009 order. In its brief in support of the motion to stay, DHS stated that it did “not seek a stay of any child custody dispositions,” but only that portion of the order directing DHS to place Den-mon at Timber Ridge Ranch. In its motion to modify the circuit court’s order, DHS made three requests: (1) to modify the portion of the order that required DHS to specifically place Denmon at Timber Ridge Ranch because of a lack of jurisdiction; (2) to clarify “whether the goal of the case is to be permanent custody with Huida Stephenson, or reunification with family services,” because the order’s stated goals were incompatible; (3) failing modification of the order, to certify the February 26, 2009 order as final under Ark. R. Civ. P. 54(b). The circuit court did not enter an order ruling on DHS’s motions within thirty days, thus they were deemed denied. See Ark. R. Civ. P. 59(b). DHS brings two points on appeal. First, DHS argues that the circuit court’s February 26, 2009 order is clearly erroneous, because Ark.Code Ann. § 9-27-338(c) requires a court to enter only one permanency goal for a dependent-neglected juvenile, and here, the circuit court entered concurrent, conflicting goals of permanent custody and reunification. Second, DHS argues that the circuit court clearly erred as a matter of law by ordering DHS to l4specifically place Denmon at the Timber Ridge Ranch facility. However, before we can address the merits of these arguments, we must determine whether there is a final, appealable order in this case. See Gilbert v. Moore, 364 Ark. 127, 216 S.W.3d 583 (2005). Citing Ark. R.App. P.-Civ. 2(d) and our decision in West v. Arkansas Department of Human Services, 373 Ark. 100, 281 S.W.3d 733 (2008), DHS asserts that the circuit court’s February 26, 2009 order is final and appealable because it granted permanent custody to Stephenson. Civil Appellate Rule 2(d) states that “[a]ll final orders awarding custody are final appeal-able orders.” In West we accepted a certified question from the court of appeals involving the issue of whether a permanency-planning order awarding permanent custody of two of the four children involved in the case was final and appeal-able. Specifically, we addressed a potential conflict between Civil Appellate Rule 2(d) and Ark. Sup.Ct. R. 6-9, which lists orders that may be appealed from in dependency-neglect cases. Rule 6-9(a)(l)(B) provides that a “permanency planning order” is appealable in accordance with Ark. R. Civ. P. 54(b). Although Rule 6-9 does not specifically list a permanent custody order as appealable, we held that the order granting permanent custody in West was a final, appealable order because there is no direct conflict between Rule 2(d) and Rule 6-9, as Rule 6-9 does not state that permanent custody orders are not final appealable orders or that a Rule 54(b) certificate is necessary for a permanent custody order relative to one child to be appealable. Rule 2(d), on the other hand, specifically states that custody orders are final, appealable orders. West, 373 Ark. at 104, 281 S.W.3d at 733. Here, the circuit court specifically stated in its February 26, 2009 order that Denmon’s | .^children “are placed in the permanent custody of Huida Stephenson be cause the juveniles are in need of permanency.” “However,” the order stated, “the [cjourt is not willing to give up on the mother and thus, the goal of reunification shall continue.” The language in the order mirrors the circuit court’s statements from the bench at the February 11, 2009 hearing, quoted above. This court stated in Gilbert, supra, that the question of “[w]hether a custody order is final or temporary is not dependent upon the style of the order.” 864 Ark. at 129, 216 S.W.3d at 584. In that case, a mother appealed from an order granting temporary custody to her child’s biological father. We held that the order was not a final, appealable order because, in addition to the fact that the order was styled as temporary, it also stated that the ehild was to remain with the biological father “at this time.” Id. at 129, 216 S.W.3d at 585. We stated that “language coupled with the trial court’s remarks from the bench demonstrate that the issue of custody has yet to be determined on its merits and that the parties have not completed their proof on the issue.” Id. Similarly here, although the February 26, 2009 order stated that it granted permanent custody of Denmon’s children to Stephenson, the order also stated that the goal of the case — reunification — “shall continue.” Additionally, as noted above, the trial court stated at the February 11, 2009 hearing that I’m not going to do a guardianship, I’m just going to leave the children permanently with her right now with the option to go back and revisit after we get through what I deem to be the final test of whether Ms. Denmon’s cognitive skills are going to work. Statements such as these, coupled with the language in the order regarding reunification, | (¡indicate that the trial court granted temporary custody to Stephenson. Accordingly, we hold that the February 26, 2009 permanency-planning order is not a final, appealable order absent Rule 54(b) certification. Although we hold that there is not a final, appealable order in this case, DHS alternatively requests that this court treat its second point on appeal — that the circuit court erred in ordering DHS to provide family services to Denmon by placing her in the Timber Ridge Ranch facility — as a petition for extraordinary relief in the form of a writ of prohibition or writ of certiorari. A writ of prohibition is not applicable in this case. It is well settled that a writ of prohibition is an extraordinary writ that is only appropriate when the lower court is wholly without jurisdiction. Erin, Inc. v. White County Circuit Court, 369 Ark. 265, 268, 253 S.W.3d 444, 446 (2007). In addition, the writ is appropriate only when no other remedy is available, such as an appeal. Id. at 268, 253 S.W.3d at 447. Prohibition is a proper remedy when the jurisdiction of the lower court depends upon a legal rather than a factual question. Id. Moreover, prohibition is never issued to prohibit a trial court from erroneously exercising its jurisdiction. Id. Writs of prohibition are prerogative writs, extremely narrow in scope and operation; they are to be used with great caution and forbearance. Id. They should issue only in cases of extreme necessity. Id. This court has repeatedly stated that it will not issue a writ of prohibition for 17something that has already been done. Allen v. Circuit Court of Pulaski County, Ninth Div., 2009 Ark. 167, at 10, 303 S.W.3d 70, 76 (citing Holmes v. Lessenberry, 297 Ark. 23, 759 S.W.2d 37 (1988) (per curiam)). Here, the circuit court has ordered DHS to place Denmon at Timber Ridge Ranch. Further, DHS’s motions to stay and modify the circuit court’s February 26, 2009 order were deemed denied. Accordingly, relief in the form of a writ of prohibition does not lie. See id. A writ of certiorari is extraordinary relief that this court will grant only when there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or the proceedings are erroneous on the face of the record. Cato v. Craighead County Circuit Court, 2009 Ark. 334, 322 S.W.3d 484. In determining its application, the court will not look beyond the face of the record to ascertain the actual merits of a controversy, or to control discretion, or to review a finding of fact, or to reverse a trial court’s discretionary authority. Id. A writ of certiorari lies only where it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion, and there is no other adequate remedy. Id. As the court stated in Lenser v. McGowan, 368 Ark. 423, 427, 191 S.W.3d 506, 508 (2004), a writ of certiorari is a remedy used to quash irregular proceedings. Here, the circuit court’s February 26, 2009 order states that “DHS is to place Tammy Denmon at Timber Ridge.” Because we hold there is no final, appealable order in this case, no other adequate remedy exists for DHS regarding this ruling by the circuit court except the writ of certio-rari. See Jordan v. Circuit Court of Lee County, 366 Ark. 326, 332, 235 S.W.3d 487, 492 (2006). [¡Although the requirement of the lack of another adequate remedy is met, as noted above, this court will only grant a writ of certiorari if (1) there is a lack of jurisdiction, an act in excess of jurisdiction on the face of the record, or (2) it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion. This court granted writs of certiorari in cases similar to the present appeal in Arkansas Department of Human Services v. Collier, 351 Ark. 506, 95 S.W.3d 772 (2003) and Juvenile H. v. Crabtree, 310 Ark. 208, 833 S.W.2d 766 (1992). In Collier, the trial court determined that an unborn fetus was a dependent-neglected juvenile even though the Juvenile Code defined “juvenile” as a person from “birth to age 18.” Additionally, the trial court ordered that DHS take custody of the unborn fetus to ensure that the mother received prenatal care and a doctor’s examination. We granted the writ of certio-rari, holding that the trial court “exceeded [its] statutory authority and that, as a consequence, [its] order placing the fetus in the custody of DHS and requiring that department to render prenatal care constituted a plain, manifest, clear, and gross abuse of discretion.” 351 Ark. at 523, 95 S.W.3d at 782. In Crabtree, the trial court ordered that a pregnant mother be placed in DHS’s custody and barred her from terminating the pregnancy without a court order. This court granted a writ of certio-rari, holding that, because there was no legal authority to support the trial court’s order, the trial court had exceeded its jurisdiction and its order was erroneous on its face. In dependency-neglect cases, a court may order DHS to provide family services. Ark.Code Ann. § 9-27-334(a)(1). However, “the court shall not specify a particular provider for placement or family services if [DHS] is the payor or provider.” Ark. Code Ann. § 9-27-] 335(b).9 The circuit court’s February 26, 2009 order directing DHS to place Denmon at Timber Ridge Ranch clearly violates the plain language of § 9-27-335(b); therefore, the order is erroneous on its face. Further, although a court can order DHS to make family services available, its custodial jurisdiction is limited to juveniles. See Collier, supra. Accordingly, we grant the writ of certiora-ri. Writ of prohibition denied; writ of cer-tiorari granted; appeal dismissed. . DHS argues for extraordinary relief solely in reference to its second point on appeal.

Ed. F. McFaddin, Justice. The Publicity Act (Initiative Act No. 2 of 1914) is involved on this appeal, as also are questions of res judicata and Mandamus. Appellee Trevathan (plaintiff below) owns and publishes a newspaper in Independence county, known as “Batesville News Review.” Appellant Jeffery is the County Judge of Independence county, and the other appellants are all of the other members of the Quorum Court. They were the defendants in the Circuit Court. The plaintiff filed a complaint praying for a writ of mandamus to compel the defendants as the Quorum Court to make certain appropriations. The defendants stood on their demurrer, which was overruled. Thereupon the writ of mandamus was issued as prayed; and the appellants have appealed. In 1947, the County Clerk of Independence county— acting under the provisions of §§ 4 and 5 of the Initiative Act No. 2 of 1914 (§§ 8792-93, Pope’s Digest) caused to be published in the plaintiff’s newspaper a summary of the proceedings of the County Board of Equalization and also a list of the claims allowed by the County Court. The total cost for the publication of these items in 1947 amounted to $310.80; and we will refer to this amount as “the 1947 claim.” The plaintiff filed his claim with the County Court for the $316.80, and the claim was disallowed. The plaintiff appealed to the Circuit Court, which by its judgment of April 12, 1947, affirmed the disallowance made by the County Court', saying • “This claim seems to be just and legal, but there was no appropriation whatever made by the Quorum Court of this County for the purpose of taking care of this claim or claims of this nature. And under the rulings of the (Supreme) Court in that particular case, which seems to be identical with the facts here, this court will have to hold, as a matter of law, that the claim should not be allowed. There will be a judgment here for the defendant Independence County.” The plaintiff appeared before the Quorum Court at its regular meeting in November, 1948, and urged that an appropriation be made, not only for the 1947 claim, but also for the payment of claims in 1948 arising because the County Clerk continued in 1948 to have mat-' 'ters published, as required by §§ 8792-93, Pope’s Digest. The Quorum Court refused to make any such appro priation for 1947 or 1948, although ample funds were available for such purposes, and unused for any other purpose. In 1948, the Clerk of Independence County — continuing to act under § 5 of Initiated Act No. 2 of 1914— caused to be published in the plaintiff’s newspaper a list of all the claims allowed by the County Court. The total cost for the publication of these amounted to $180;' and we will refer to this amount as “the 1948 claim.” Instead of filing the 1948 claim with the County Court, the plaintiff on December 2,1948, filed the present action in the Circuit Court, alleging all the facts as heretofore recited, and further alleging: “ . . . that on the 1st day of November, 1948, there was in the treasury of Independence County, Arkansas, to the credit of the county general fund the sum of nineteen thousand fifteen and 55/100 dollars ($19,015.55) and that there is now, a surplus in the treasury of Independence County, Arkansas, over and above all outstanding warrants and allowed claims an amount in excess of ten thousand dollars. “That at the time of the publication of all of said notices, . . . and at this time, there are ample funds in the treasury of Independence County, Arkansas, to pay all of said claims . . . and this plaintiff has no adequate remedy at law unless the Quorum Court of Independence County, Arkansas, the defendants herein, appropriate funds for the payment of said claim; . . . “That it was the duty of the defendants acting as members of the Quorum Court of Independence County, Arkansas, to appropriate sufficient monies from the treasury of Independence County, Arkansas, to pay the claim . . . for the year 1948 and that they had no discretion or right to deny or refuse to make such ap-' propriation; . . . . ” The prayer of the complaint was for a writ of mandamus, requiring the Quorum Court to appropriate money from the ample funds of the county to pay, not only the 1947 claim previously disallowed, hut also the 1948 claim which the plaintiff held for presentation to the County Court as soon as an appropriation might be made. As aforesaid, the defendants filed their demurrer, and after it was overruled they elected to stand on it and suffered final judgment to be rendered, from which comes this appeal. A demurrer admits, for the purpose of a ruling thereon, all the facts that are well pleaded. Keith v. Pratt, 5 Ark. 661; Gardner v. Hill, 197 Ark. 550, 123 S. W. 2d 1071; and see cases collected in West’s Arkansas Digest, “Pleading, § 214. We have summarized the salient facts stated in the complaint. Able briefs have been presented in this Court. We copy below the five points as listed by appellants on which they rely for reversal: “First, because mandamus will not lie to control the actions of a ministerial body. That the body can be forced to act, but having once acted, its discretion cannot be controlled, if it has discretion.' “Second, because section 2527 of Pope’s Digest provides the order in which the quorum courts shall make appropriations, and this Court has held that appropriations made under the first four paragraphs of this section are mandatory, but those made under paragraphs 5, 6 and 7 of said section are directory and contractual, and over which the quorum court has discretionary powers. “Third, because claims against a county for publications under Initiated Act No. 2 of 1914 are contractual claims, they cannot be paid until an appropriation has been made by the quorum court, such appropriation must be made under authority of paragraph 7 of section 2527 of Pope’s Digest, and since it is a contractual claim, the quorum court and the county court have discretion as to whether or not appropriations are made to pay such claims. “Fourth, because Initiated Act No. 2 of 1914 is unconstitutional. “Fifth, because $316, of appellee’s claim, is res judicata. ’ ’ We proceed to dispose of the issues in the following topic headings. I. The 1947 Claim as Res Judicata. This is the appellants’ fifth point, .as above listed. We will first consider it, before coming to the real and important issues. The plaintiff is entitled to no relief for the 1947 claim. The Circuit Court disallowed this claim on April 12, 1948, and that judgment has become final, because more than six months have passed, and no appeal has been lodged in this Court. See § 2746, Pope’s Digest, and Webster v. Horton, 188 Ark. 610, 67 S. W. 2d 200, and cases collected in West’s Arkansas Digest, “Judgment”, § 564. So, in the eyes of the law, there is now no subsisting 1947 claim, and therefore the plaintiff has no standing in court to seek a mandamus to have an appropriation made to pay a claim that is barred. It is true that the Circuit Court in its order of April 12,1948, disallowing the 1947 claim expressed the thought that the judgment of disallowance would not be considered as res judicata if the Quorum Court subsequently made an appropriation. But the equitable intentions of the Circuit Court cannot alter the law that a solemn judgment of the Court disallowing the claim has become final. The main benefit the plaintiff gained by the 1947 claim was the indication as to what to expect if he presented his 1948 claim to the County Court before an appropriation had been made. Also, the plaintiff’s experience regarding Ms 1947 claim clearly indicates his belief in the necessity of a mandamus proceeding to have an appropriation made before he presents his 1948 claim. So we consider the 1947 claim of $316.80 as passing out of this litigation, and we proceed to consider the mandamus case as applying to the 1948 claim which has never been disallowed. II. The Publicity Act of 1914. In their fourth point appellants claim that this Act is unconstitutional. We will first discuss the Act and the cases involving it, and then consider the appellants’ argument. At the general election in 1914 the People adopted Initiative Act No. 2 referred to heretofore qnd herein as the “Publicity Act.” It consists of 14 sections and is found in its entirety on page 1511, et seq., of the Printed Acts of 1915. The major portions thereof are to' be found in §§ 8788-8801, inclusive, Pope’s Digest, and in §§ 15-201 to 15-212, inclusive, of Ark. Stats, of 1947. By Act 239 of 1933 § 12 of the Publicity Act was amended in particulars not here important, except to show that the 1933 Legislature recognized the efficacy of the Publicity Act. This Act has been before this Court in the following three cases, to wit: Nevada County v. News Printing Co., 139 Ark. 502, 206 S. W. 899; Smackover Journal v. News-Times Publishing Co., 185 Ark. 523, 48 S. W. 2d 219; and Pressley v. Deal, 192 Ark. 217, 90 S. W. 2d 757. We discuss the first two of these cases: 1. Nevada County v. News Publishing Co. was decided in 1918. In that case the County Clerk caused publication to be made as required by the Publicity Act; the newspaper publisher filed in the County Court a claim for the cost of publication; the County Court disallowed the claim; the Circuit Court reversed the County Court; and the case was appealed to this Court. In the opinion here, we pointed out that, under Art. XVI, § 12 of the Constitution, no money could be paid out of the treasury until there had been an appropriation; and that under § 1499, Kirby’s Digest, (now § 2527, Pope’s Digest and § 17-409 Ark. Stats, of 1947) an appropriation for publication would come under subdivision 7 thereof — i. e., “to defray such other expenses of county government as are allowed by the laws of this State. ’ ’ We held the contract by the County Clerk with the newspaper to be a valid contract requiring no previous authorization of the County Court; but we held that the claim could not be paid by the County Court until an appropriation had been made by the Quorum Court. This language is apropos: “The Legislature made it mandatory upon the county clerk to publish in a newspaper a list of all claims allowed against the county, etc. This necessarily gave the county clerk the power to make a contract for such publication. The amount so expended by him became an expense of the county government, and an appropriation made under paragraph seven of section 1499 was available to pay such claim. The record in the present case does not show that any appropriation was made by the quorum court under paragraph seven of section 1499; but, on the contrary, the agreed statement of facts shows that no such appropriation was made." 2. Smackover Journal v. News-Times Publishing Co., supra, was decided in 1932. In that case the Secretary of State had caused the synopsis of the Legislative Acts (publication of which was required by § 2 of the Publicity Act) to be published in an unauthorized newspaper. The suit was to prevent such newspaper from receiving payment for the publication. This Court held that a newspaper which failed to have the qualifications prescribed by § 12 of the Publicity Act could not receive payment from the State for the publication. Mr. Justice Kirby, speaking for this Court, said: “The People had the right to prescribe in said act for the publication of the synopsis and to determine what medium should be used for bringing it to the people’s attention; and, having done so, the officer authorized to cause the publication to be made could exercise no discretion about the selection of a newspaper other than as prescribed by the statute for publication. “Neither is the act violative of the Constitution of the State nor of the United States; and the publication, having been made contrary to the statute authorizing it, created no valid obligation against the State for its payment, and no error was committed in granting the injunction prayed for. ’ ’ So much for the germane portions of the Publicity Act and our cases construing it. We come now to appellants’ claim that the Act is unconstitutional. Appellants contend that, under Art. VII, § 28 of the Constitution, the County Court “has exclusive original jurisdiction in all matters relating to county taxes . . . the disbursement of money for county purposes, and in every other case that may be necessary to the internal improvement and local concerns of the respective counties.” Appellants argue that the publication of the claims allowed by the Independence County Court is a matter of local concern, and that the State cannot require Independence County to pay for such publication, if the Quorum Court does not so desire. As will be discussed in Topic III, infra, the net effect of this contention would be that a State law, requiring counties to publish claims at the expense of the counties, could be of no validity in any county which did not wish to comply with the State law. Appellants cite the following cases: Lyons Machinery Co. v. Pike County, 192 Ark. 531, 93 S. W. 2d 130; Watson v. Union County, 193 Ark. 559, 101 S. W. 2d 791; Rebsamen v. Van Buren County, 177 Ark. 268, 6 S. W. 2d 288; Allen v. Barnett, 186 Ark. 494, 54 S. W. 2d 399. We agree that an Initiated Act, as regards constitutionality, is to be determined just as though it were an. Act of the Legislature, because in adopting an Initiated Act the People become the Legislature, and must legislate within constitutional limits. So the cases involving the constitutionality of legislative acts are applicable here. We list four cases as typical of the many which are authority for holding that the Publicity Act is constitutional as regards the attack here made on it. (a) In Cain v. Woodruff Co., 89 Ark. 456, 117 S. W. 768 it was claimed that a legislative enactment, requiring the county to pay the sheriff seventy-five cents per day for feeding each prisoner, was void as violative of the county court’s power under said Art. VII, § 28 of the Constitution. In holding the Act valid, we said: “The Legislature, unless restricted by the Constitution, has full and plenary powers to adopt such policies and prescribe the duties which it demands of officers in carrying out such policies which it deems best for the peace and welfare of the People. Straub v. Gordon, 27 Ark. 625; Carson v. St. Francis Levee District, 59 Ark. 513, 27 S. W. 590. “Aside from the restriction of the State or Federal Constitutions, the Legislature is unfettered in the exercise of legislative power. The question as to whether the enactment is wise or expedient belongs exclusively for the General Assembly to determine. State v. Martin, 60 Ark. 353. “ ‘The Constitution regards the county courts as political and corporate bodies that are to be controlled and regulated in their discretion by the acts of the General Assembly, and not as independent of or superior to it. As political and corporate bodies, they are required to conform their action to the rule of the Legislature, and in the exercise of their jurisdiction to proceed in the mode and manner prescribed by law. County of Pulaski v. Irvin, 4 Ark. 475; Hudson v. Jefferson County Court, 28 Ark. 359. ’ ” (b) In Crawford County v. City of Van Buren, 201 Ark. 798, 146 S. W. 2d 914 it was claimed that a legislative enactment requiring the quorum courts to appropriate money for municipal court purposes was violative of the said Art. VII, § 28 of the Constitution. In holding the legislative enactment to be valid, we said, in referring to §§ 28 and 30 of Art. VII: “We do not think, however, that these sections of the Constitution operate to deprive the general assembly of the power to impose duties upon counties and to require counties to pay therefor. Our cases are to the contrary. For instance, in the case of Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002, there is an enumeration of various items of expenses imposed upon counties by legislative enactment. In the case of Burrow, County Judge v. Batchelor, 193 Ark. 229, 98 S. W. 2d 946, there was involved an act of the general assembly requiring all counties to pay salaries of circuit court and grand jury stenographers. This act was upheld, it being there said that these salaries must be paid as long as there is money in the county general fund to pay them, and that it was not discretionary with the county court to allow them, and that if it failed to do so, the circuit court might compel the county court to perform this ministerial duty.” (c) Again, in Jackson County v. Nuckolls, 102 Ark. 166, 143 S. W. 1065, there was involved a legislative enactment requiring the county to pay the costs in misdemeanor cases. In upholding that legislation, we said: “It was within the power of the Legislature to make counties liable' for costs in misdemeanor cases tried before a justice of the peace where the parties charged are convicted, and to provide for the payment of such costs out of the funds appropriated for the payment of circuit court expenses.” (d) In Adams v. Whittaker, 210 Ark. 298, 195 S. W. 2d 634 it was claimed that Act No. 107 of 1945 was unconstitutional because it required the counties to pay the cost of holding the elections required by that Act. We held that the Act was constitutional, and that the counties were liable for the expenses of the election. It would unduly extend this opinion to cite the many other cases upholding the power of the Legislature to require various items to be paid by the County Court, and to discuss and distinguish the cases cited by the appellant. It is sufficient to say that we do not impair the holding in any of the cases cited by appellants; we merely hold that such cases are inapplicable to the situation here presented. It was not urged in this case that it was beyond the power of the Legislature of 1909 to pass the Act which is now § 2527, Pope’s Digest, classifying claims which the county court must allow. That being true, it necessarily follows that it was within the power of the Legislature (that is, the People in this case, in adopting the Publicity Act of 1914) to provide, in § 9 thereof that “all acts for publication required by §§ 4, 5 and 7 shall be paid by the county in which said publications are made when the same are approved by the County Court, and the respective ‘levying courts’ are hereby authorized to make appropriations for that purpose.” Putting the spotlight of publicity on the list of claims allowed by the County Court in each county through the State was a matter that the People thought desirable. Whether the law was wise is not for the courts to decide. Our holding goes to the fact that the Publicity Act is constitutional in requiring the costs of publication to be paid by the county,' just as the Acts imposing other costs to be paid by the respective counties were held constitutional in the cases heretofore discussed. Although it is not cited in the briefs, nevertheless, we hold that Art. XIX, § 12 of the Constitution directly authorizes the passage of the Publicity Act. That constitutional provision reads: “An accurate and detailed statement of the receipts and expenditures of the public money, the several amounts paid, to whom and on what account, shall, from time to time, be published as may be prescribed by law. ’ ’ III. Mandamus. In their first, second and third points appellants make their several contentions against the granting of the writ of mandamus in this case. These contentions, summarized, are: that the quorum court is a body possessing discretion, and that claims in the seventh subdivision of § 2527, Pope’s Digest, are contractual, and that mandamus does not lie to control the discretion of the quorum court on contractual matters. Appellants cite these cases to sustain their contentions: Rolfe v. Drainage District, 101 Ark. 29, 140 S.W. 988; Hodges v. Dawdy, 104 Ark. 583, 149 S.W. 656; Collins v. Hawkins, 77 Ark. 101, 91 S.W. 26; Miller v. Tatum, 170 Ark. 152, 279 S.W. 1002; Worthen v. Roots, 34 Ark. 356; Polk County v. Mena Star Co., 175 Ark. 76, 298 S.W. 1002; Nevada County v. News Printing Co., 139 Ark. 502, 206 S.W. 899. Without attempting to distinguish these cases, (which this opinion in no respect impairs), we conclude that they do not apply to a situation such as the one existing in the case at bar. Here, the Publicity Act (which we have held to be constitutional) prescribes in §§ 4 and 5 thereof that the clerk of the county court “shall cause to be published, one time in one newspaper published in such county” the certain matters stated in the said sections; and % 13 of the Publicity Act provides “every person who shall fail to comply with the provision of this Act shall be fined in any amount not exceeding $1,000.” We held in Nevada Co. v. News Publishing Co., supra, that the county clerk could make a valid contract of publication without an order of the county court, because the Act imposed such duty on the clerk; and we held in Smackover Journal v. News Times Publishing Co., supra, that the officer charged with having the matters published could exercise no discretion contrary to the statute. In the case at bar it is admitted by the demurrer that Independence County, at all times herein involved, had ample funds to comply with the Publicity Act, but that the Quorum Court refused to make any appropriation. The result is that the law of the State (the Publicity Act) fails of observance in Independence County. Can a Quorum Court — composed of the County Judge and the Justices of the Peace, according- to Art. VII, § 30 of the Constitution — thus defy the Act of the People and render the State law nugatory in a County? The learned circuit court, in awarding- the writ of mandamus in this case, used this language in the written opinion: “If the Quorum Court is not required under the law to make the appropriation then it can simply refuse to do so and totally nullify the provisions of the law and indirectly repeal it. If the Act does what it contemplates an appropriation must be made by the Quorum Court. It is not for the court to say whether the act is a good one or a bad one, but it is the law and should be enforced until repealed by the People who enacted it, or the Legislature. Under the law, as I view it, it is the duty of the Quorum Court to do its duty and part in seeing to it that the provisions of the law are enforced under penalty provided by the act; that the statute means the Quorum Court should make the necessary-appropriation. To hold otherwise would permit said court to nullify the law so far as it applies to a county. “The clerk has performed his duty and it is the opinion of the Court that the Quorum Court should do its part- in making the appropriation. Then the claims of the petitioner can be submitted to the County Judge for his approval before same, can be paid.” We agree with the above quotation. The “discretion” which the Quorum Court had was to withhold appropriation of money to pay the costs of publication until the preferred claims of the County (that is, those in subdivisions 1 to 6, inclusive, of § 2527, Pope’s Digest) had been provided for. The complaint in this case alleges, and the demurrer admits, that after all these claims in subdivisions 1 to 6, inclusive, had been paid, there still remained ample funds to pay the publication items arising under the Publicity Act, and that these funds have never been used for any purpose. We hold that the Quorum Court, with ample funds on hand, has no discretion to refuse to comply with a valid law — i. e., the Publicity Act. We have many cases in which mandamus has been awarded in analagous situations. In Moyer v. Altheimer, 168 Ark. 271, 270 S.W. 91 we held that an order of mandamus could be issued against the County Court to compel that Court to apportion road money under the Act there involved, because under the legislation the County Court had no discretion as to the allowance of the claim. In Manhattan Rubber Mfg. Division v. Bird, Mayor, 208 Ark. 167, 185 S.W. 2d 268, 159 A. L. R. 1257, we held that mandamus would lie against the city to require it to pay a claim. It was there shown that the city had the money with which to pay the claim if it desired, and that the claim was contractual; but we directed that the writ of mandamus be awarded requiring the city to pay the claim prior to other contractual obligations subsequently in eurred. In the case at bar the claim is contractual, but. the Publicity Act required the clerk (under the penalty of heavy fine for failure to do so) to contract with a newspaper for the publication of the claim. On showing here made, that the County has ample funds to pay the claim, the case of Manhattan Rubber Mfg. Division v. Bird, Mayor, supra, is clearly ruling. In No. Ark. Hy. Impvt. Dist. v. Rowland, 160 Ark. 1168, 282 S.W. 990, we held that a writ of mandamus could issue against a county clerk to extend taxes levied by an improvement district; in Chicago Mill & Lbr. Co. v. Drainage Dist., 172 Ark. 1059, 291 S.W. 810, we said that the County Court could be compelled by mandamus to levy the tax; and in Stranahan v. Van Buren County, 175 Ark. 678, 300 S. W. 382, we held that the Quorum Court could be compelled by mandamus to meet as a court and levy a tax for the payment of outstanding bonds of the county. These cases clearly point to the conclusion that mandamus may be used to compel the quorum court and other county officials to comply with the legislative enactments ; and such is the situation in the case at bar. It follows therefore that we reverse, annul and set aside so much of the Circuit Court judgment as directed the writ of mandamus to issue for the 1947 claim of appellee, and we affirm so much of the said Circuit Court judgment as directed the writ of mandamus to issue for the 1948 claim of appellee. Art. VII, § 30 of the Arkansas Constitution. Referring to Nevada County v. News Printing Co., 139 Ark. 502, 206 S. W. 899. Polk County v. Mena Star Co., 175 Ark. 76, 298 S. W. 1002 is one of the many cases discussing this section of the statutes. The reference to the “Legislature” means the People acting as the Legislature. Reference is to § 1499, Kirby’s Digest.

Robins, J. Appellant was indicted by the grand jury for the offense of keeping a gambling house (in violation of §§ 41-2001-4, Ark. Stats. (1947). It was alleged in the indictment that appellant “on the 1st day of March, 1948, did unlawfully, wilfully, knowingly and feloniously keep, conduct, operate and have an interest in the conduct of and operation of a gambling house commonly known as “Joe Buck’s Place” on the Paragould Highway near Jonesboro, wherein gambling was conducted and gaming devices exhibited. . . .” A jury found him guilty of operating a gambling house and fixed his punishment' at imprisonment in the penitentiary for one year; and from judgment in accordance with the verdict this appeal is prosecuted. For reversal it is argued that the testimony was not sufficient to support the verdict, and that the lower court erred to. the prejudice of appellant in refusing to submit to the jury the misdemeanor charge (setting up gaming devices in violation of Ark. Stats. (1947), §§ 41-2003 and 41-2004), which offense appellant insists was •embraced in the indictment. There was abundant evidence to establish appellant’s guilt. It was shown without contradiction that the property described in the indictment was owned by appellant and Joe Buchanan; that it was fitted up as a gambling house with tables, paraphernalia, etc., ordinarily found in such a place, that it was operated as a gambling-house and that appellant assisted in the operation thereof. The utility bills for the gambling house apparently were charged to and paid by appellant. Appellant did not testify. Under the proof the jury could hardly have found other than that appellant was an active partner in the enterprise. The lower court did not err in refusing to instruct the jury on the misdemeanor charge. The record before us shows that the grand jury returned a separate indictment against appellant on the misdemeanor charge of setting up gaming devices. The two indictments had not been consolidated, but remained separate cases on the docket. Appellant went to trial, without any objection, on the felony charge. Under the circumstances the lower court did not err in making the instructions conform to the indictment and the proof. Affirmed.

Frank G. Smith, J. On June 6, 1943, Bichar u u. Stagg made application to the appellant, Metropolitan Life Insurance Company, for a life insurance policy in the initial amount of $2,046, to H. B. Ament, the agent of the insurance company. Ament had lived at DeWitt, which was insured’s home, for about 8 years and was a long time friend of the insured and his family. Ament forwarded the application for the insurauLoo to the district office of the Company and in due time received the policy from the Company. He countersigned it in the designated place, as was required by the Company, and delivered it to the insured, and each month thereafter collected the premiums and executed the Company’s receipt therefor. At the time of the delivery of the policy, and attached thereto and made a part thereof, were certain “war risks” and exemption provisions the pertinent portion of which reads as follows : “It is agreed that notwithstanding any contrary provision, the following are risks not assumed under this policy. “ (a) Death resulting from an act of wax', which act occurs while insured is in the military, naval, or air forces of any country and if outside the continental limits of the United States of America (including Alaska), the Dominion of Canada, and Newfoundland, but only if death occurs within six months after such act. “If the insured shall die as a result of a risk not assumed, referred to above, the liability of the company shall be limited to the amount, determined as of the date of death, of the reserve on this policy and on any paid-up dividend additions thereto, plus the amount of any dividend accumulations and less any ixidebtedness on this policy. ’ ’ The policy contained a double indemnity provision for the payment of an additional sum equal to the initial amount of the policy, in case of an accidental death, which is not here involved. An additional 41.‡ per month was charged for the accidental death provision and said additional premium was likewise collected each month during the life of the insured. On May 4, 1944, the insured was inducted into the military service. He took the usual training and in due time was sent over-seas and into combat. Agent Ament continued to collect the premiums, including the additional premium for accidental deatli, and as he collected the premium from month to month the wife of the insured, the beneficiary named in the policy, discussed with Ament the fact that the insured was in the military service, and that he was in the combat area. All this Ament admitted, but his testimony is not denied that in advising Mrs. Stagg to continue .payment of the premiums (and he offered to assist her in this respect, if necessary) he correctly told her that if her husband was killed-in the continental United States he was protected, that only a small percent of soldiers who went into the combat zone were killed, and if he was xxot killed he would have a cash reserve built up which he could cash if he wished to do so, but that if he were killed over-seas, or in battle, that she would be entitled only to the refund of the reserve under the policy. This reserve value was tendered and was declined. It does not appear that Anient told Mrs. Stagg, although lie might have truthfully done so, that if her husband became disabled and ineligible for other insurance, he could have the policy in full force, if he kept the premiums paid upon his discharge from the service, so that it cannot be said that Mrs. Stagg was paying for something without value, notwithstanding the provision of the policy exempting the Company from liability in case of death in combat. The insured was killed in Belgium on January 15, 1945, while in the armed service of the United States, and suit was filed on October 23, 1945, praying judgment for $2,046, with penalty, interest and attorney fees, all of which she recovered in the trial of the case and from that judgment is this appeal. For the affirmance of this judgment the following argument is made. Ament was a general agent and his action in receiving and remitting all premiums as they fell due constituted a waiver of the provision of the policy exempting the Company from liability under the circumstances here stated. We are cited to decisions of this court, of which there are many, to the effect that general agents of insurance companies may waive the performance of a condition inserted in the policy for its benefit and which, if not waived, would defeat a recovery on the policy. Conceding without deciding that Ament was a general agent, possessing all authority of a general agent, and that the law in regard to a waiver is as appellee contends, the question remains whether the waiver doctrine is applicable here. We think it is not, as the controlling question is whether the death of insured under the undisputed testimony was a risk against which the insurance had been written. The insurer may unquestionably through the knowledge of its authorized agent, waive provisions of a policy which,- if not waived, would defeat a recovery thereon, when with such knowledge, the insurer receives premiums to continue the policy in force, but it is not tlie law that through waiver a new policy can be substituted insuring against risks expressly excluded in the original policy. The opinion in the case of White v. Standard Life Ins. Co., 198 Miss. 325, 22 So 2d 353 reads in part as follows: “The company has the right to exempt itself from liability for military service and insured and beneficiary had the privilege of paying the dues and continue the policy in force while insured was in the military service, notwithstanding the exemption from liability for death while in such service. Payment of dues is not inconsistent with keeping the policy alive. He might have become disabled or his health become impaired, so he could not obtain insurance after leaving the service. * * * There was nothing inconsistent between the payment of premiums and the existence of the exemption. ’ ’ In the chapter on Insurance, 29 Am. Jur. § 903, p. 690, it is said: ‘ ‘ The doctrines of implied waiver and of estoppel, based upon the conduct or action of the insurer, are not available to bring within the coverage of a policy risks not covered by its terms, or risks expressly excluded therefrom; and the application of the doctrine in this respect is, therefore, to be distinguished from the waiver of, or estoppel to deny, grounds of forfeiture. ’ ’ This statement of the law accords with the opinion of this court in the case of Hartford Fire Ins. Co. v. Smith, 200 Ark. 508, 39 S.W. 2d, 411, where it was said: “The doctrine of waiver and estoppel cannot be asserted to extend coverage under a contract in which it was excluded by specific language. ” Among other cases cited in support of this statement is the case of Miller v. Ill. Bankers Life Ass’n., 138 Ark. 442, 212 S. W. 310, 7 A. L. R. 378, which case is very similar as to the facts of this case and which we think is controlling here. The policy sued on in the Miller case, supra, contained a clause reading: “It is expressly provided that death while in the service in the army or navy of the Government in time of war is not a risk covered at any time during the continuance or reinstatement of this policy for any greater sum than the amounts actually paid to the company thereon.” The death of the insured in that case occurred while he was in the army in time of Avar, from a natural cause. The agent Avho wrote and delivered the policy admitted that he told the insured that it was his construction of the policy that if the insured died of a natural cause, the policy would be paid, but that if he died by violence in battle it would not. The agent collected premiums, knowing that the. insured was in the armed services, and it was insisted that there had been a waiver of the clause in the policy above copied. In overruling that contention Chief Justice McCulloch for the court said: “It will be observed that the provisions of the policy now under consideration is not for a forfeiture, but is merely an exemption from liability on account of death occurring under certain circumstances. It is not a case where acceptance of premiums Avith knowledge of the forfeiture constitutes recognition of the continued valid existence of the policy; nor does the ease fall within the principle that a forfeiture is waived where an insurance company when it enters into a contract has knowledge through any of its authorized agents of facts which would work a forfeiture. (Citing cases) ” It was there further said: ‘ ‘ There was no forfeiture provided for at all, but the company had, as before stated, the right to stipulate under what circumstances it should be liable. The assured had the right' to pay the premium and continue the policy in force while he was in the military service of the Government, notwithstanding the exemption of the company from liability for death occurring during the period of that service, and the mere acceptance by the company of the premium with knoAvledge of the fact that the assured was in the military service of the Government did not constitute a waiver of the stipulation in regard to exemption.” As to the representation of the agent as to the meaning of the policy it was there said: “Scroggins (the agent) had no authority to issue policies or to alter or interpret the terms thereof. The policy had already been issued and delivered more than two years before this conversation occurred, and the agent had no duty to perform with respect to the matter, and it was entirely beyond the apparent scope of his authority to advise the assured as to the legal effect of the various clauses of the policy.” So here, any statement of Ament, the agent, to the beneficiary, who continued payment of the premiums, cannot operate to enlarge the coverage of the policy which had been written before the insured was inducted into the army. A case cited and relied upon and extensively quoted from for the affirmance of the judgment here appealed from is that of James v. Metropolitan Life Ins. Co., 331 Ill. App. 285, 73 N. E. 2d, 140. But a headnote in that case reads as follows: “General agents of insurance companies may waive any conditions providing for avoidance or forfeiture of policies by violations of their terms, and an agent collecting premiums due may waive them after knowledge by such agent that the breach of the conditions is the cause of the avoidance or forfeiture.” . This is good law as applied to the question of waiver, but as we have said, the question here involved is not one of waiving the • condition which if enforced would defeat a recovery, but is one of inclusion of a risk which the policy specifically excluded. Other cases to the effect were cited. It is alleged that the exclusion here invoked is contrary to public policy, as it tends to retard and discourage enlistment in the army of the United States. A similar argument was made in the Miller case, supra, and was answered with a statement that an insurance company has the right to select the risks against which it will insure. We conclude that the death of the insured resulted from a risk from which the Company had expressly excluded any liability, and the judgment must be reversed and as the cause has been fully developed the judgment and cause will be dismissed.

Robins, J. Appellants own land situated in appellee, -Little Bock-Pulaski Drainage District No. 2 of Pulasld County, organized for the purpose of protecting, by levee and drainage works, lowlands in the eastern part of the City of Little Bock and suburban territory adjacent. This district was created under authority of Act No. 279, approved May 27, 1909, and Acts supplemental and amendatory; and certain phases of the procedure to organize it were before us in the case of Lessenberry v. Little Rock-Pulaski Drainage District Number 2, 211 Ark. 1046, 204 S. W. 2d 554. A portion of appellants’ land being required for use as right-of-way for the levee appellee proceeded to condemn same, under the method authorized by the statute (§3, Act 177 of 1945). Appraisers • were appointed and they made a written report, awarding appellants $600 as damages for taking of the right-of-way. This award was filed in the office of the circuit clerk on October 28, 1947; and summons issued thereon was served on each of appellants on October 31, 1947. Under the above statute, any property owner, whose land is thus condemned, may, within ten days after such award is filed and service of summons thereon had, file exceptions to such award, whereupon a jury trial as to the correctness of the award may be had. Appellants did not file any timely objection to tbe report of tbe appraisers; and tbe circuit court took no action tbereon until May 26, 1948, at which time it entered a judgment of condemnation in favor of the district for the right-of-way and against the district for the sum fixed as compensation by the appraisers. This judgment was authorized by the following portion of § 3, Act 177 of 1945: “ . . . if no exception is filed ■by the owner, or owners, within ten days after service of summons, or within ten days of the last date of the publication of the warning order, or by the levee or drainage district, within ten days after award is filed, then it shall be the duty of the clerk of the circuit court to call the court’s attention to the award, and failure to file exception thereto after notice having been given as herein provided, and upon such information, the court shall proceed to enter a judgment condemning such property and land for the right of way purpose, and a judgment in favor of the owner, or owners, of such land against the levee or drainage district for the amount awarded by such appraisers; but, in case exceptions are filed by either party,' within the time herein prescribed, it shall be the duty of the clerk to docket the cause.” On July 21, 1948, but at the same term of court at which the judgment of condemnation had been entered, appellants filed a motion to vacate the judgment which had been entered. They set up in their motion that they had employed attorneys who, appellants believed, were to protect their interests in the right-of-way matter but whose work, it later developed, consisted only in attacking the assessment; and they alleged that the award made to them for their right-of-way was so grossly inadequate as to amount to confiscation of their property. The lower court sustained appellee’s contention that the attack of appellants on the award by the appraisers came too late and denied the motion to vacate. There can be no disagreement with the soundness of appellants’ argument that until lapse of the term at which an order is made the court has control of any such order. But, if the judgment of condemnation here involved should be set aside it would afford no relief to appellants, because they did not except, within the ten-day period fixed by law, to the award of the appraisers, and not having done so they cannot be heard, after that period, to protest. There are many statutes relating to public improvements* whereby the property owner is afforded a comparatively short period — -from ten days to thirty days— in which to protest against steps, taken in organization of improvement districts involving his land, such as the assessment of benefits, assessment of damages, and contest of sufficiency of petition. These statutes have been uniformly upheld by us as a valid exercise of legislative power. Summers v. Conway & Damascus Road Improvement District of Faulkner County, 139 Ark. 277, 213 S. W. 775; Sain v. Cypress Creek Drainage District, 161 Ark. 529, 257 S. W. 49, 258 S. W. 637; Dickerson v. Tri-County Drainage District, 138 Ark. 471, 212 S. W. 334; Kelleher v. Subsidiary Drainage District No. 11 of the St. Francis Drainage District, 170 Ark. 1138, 282 S. W. 988. Appellants failed to file exceptions to the allowance for right-of-way made to them by the appraisers until long after'the expiration of the time in which the law permitted them to make such objection. The judgment of the lower court denying their motion to vacate was therefore correct and is affirmed.

Griffin Smith, Chief Justice. By direct appeal C. Floyd Huff challenges as insufficient an allowance of $5,000 as attorney’s fee, while executors and others insist in their cross-appeal that $3,500 is enough. The Court’s understanding of the record, familiarity of the Judge with successive transactions and activities, his knowledge respecting the capable men who in evaluating services testified for each side, — these considerations and a review of the abstract persuade us that in exercising the discretion with which the trial Court was invested, no abuse has been shown; nor was the judgment contrary to a preponderance of the evidence. Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12; Phoenix Insurance Co. v. Fleenor, 104 Ark. 119, 148 S. W. 650. Affirmed. Mr. Justice Holt concurs. Mr. Justice George Nose Smith not participating. The decree directing payment of the fee is against Arkansas Trust Company and Q. Byrum Hurst, as co-executors of the estate of D. C. Richards, and Cooper B. Land, as Administrator [of the Richards estate] with the will annexed.

Minor W. Millwee, Justice. This is an application to this court for a writ of prohibition to prevent the judge of the Perry Probate Court from proceeding fur-there in a cause wherein petitioner, Sam H. Wilson, was adjudged to be incompetent and incapable of handling his business affairs and a guardian of his person and estate was appointed. The petition alleges that the order of the probate court was void for lack of jurisdiction for several reasons, the principal one being that petitioner was not before the court during the inquisition as to his sanity. It was also alleged that the court was proposing to appoint a guardian in succession to Baylor House, deceased, and in so doing was about to proceed without jurisdiction. The order sought to be annulled recites: “On this 12th day of January, 1949, this matter comes on for hearing before the court upon a charge of insanity filed herein by Baylor House, as Sheriff of Perry County, Arkansas, duly verified, and charging that Samuel H. Wilson is insane and that action should be taken by this Court in regard thereto and further alleging that a guardian should be appointed to look after his affairs and the same is presented to the Court on the evidence of Baylor House, S. V. G-ullett, M. H. Garreston, Dr. Stanley Gutowski and Dr. B. A. Jones, and the presence in open Court of the said Samuel H. Wilson from all of which the Court finds that said Samuel H. Wilson is incompetent and not capable of handling his business affairs and that a guardian should be appointed for that purpose.” The record reflects that the trial court proceeded with the utmost caution and good faith by requiring each step of the proceedings to be properly transcribed and preserved and this transcript has been filed with the petition. The transcript discloses that on April 28, 1949, Prank M. Wilson, a nephew of petitioner and resident of the State of Washington, filed a petition for an order to restore petitioner to the status of a sane and competent person. After an extensive hearing, the court entered an order on April 29, 1949, which found: " That the said Samuel H. Wilson, incompetent has been present in court during all of the time of this hearing and that neither he nor the attorney for Frank M. Wilson, Petitioner, has requested a jury to hear and determine the evidence; that after hearing all of the evidence, the court finds the said Samuel H. Wilson to be incompetent, that the fact of said incompetency is not doubtful and that it is not necessary to have a jury to inquire into said facts; that the said Samuel H. Wilson, incompetent, is at the time of this hearing incapable of conducting his own affairs and handling his estate, real and personal and that the petition herein should be denied.” After this unsuccessful attempt to have his sanity-ordered restored, petitioner, on May 4, 1949, filed a motion to set aside the judgment of January 12, 1949, alleging the same grounds now urged for the issuance of the writ of prohibition. This motion was heard and overruled and the instant petition was- filed May 13, 1949. It is noted that the order of January 12, 1949, states on its face that petitioner was present in court at the time the order was made. The transcirpt of the proceedings discloses that while petitioner was in attendance on the court in response to the charge, the trial court heard most of the evidence in the absence of petitioner. This was done at the court’s direction and to save petitioner from embarrassment. After most of the testimony was taken, petitioner wás brought before the court and questioned as follows: “The Court: Mr. Wilson, where do you want to make your home? A. Where do I want-to make? The Court: Yes, where do you want to live? Bo you want to stay on with Mr. and Mrs. Gullett? A. Well, I think so. The Court: All right, sir. Bo you want the sheriff here to help you look after your finance? Bo you want Sheriff House to help you look after your business affairs? A. Well, I don’t know. I have never practiced hiring a man to run my business. The Court: How old are you sir? A. 82. The Court: How is your eye sight? Bo you see all right? A. Oh, no. I couldn’t tell you from looking at you now whether you are a white man or a black man. Tbe Court: Your vision has been bad for some time? A. Well, it is kinda hard — it has been about 5 years. Do you remember where you had a — let me get it straight now. Had a — had a — . I guess I don’t know enough to tell it. The Court: Well, Mr. Wilson, do you have any relatives here in the State of Arkansas? Do you have any close relatives? A. Any kinfolks. I don’t think so. The Court: Do you have any relatives that you regularly correspond with, write to and they write back to you? A. No, sir. The Court: What is your closest relative that you know of? A. I have got a sister two years older than me and she lives in — anyway in the west somewhere. I don’t know just where it is. The Court: You don’t actually know her address yourself? A. What? The Court: You don’t actually know what her address is? A. No, I don’t. The Court: Do you ever hear from her? A. Well, through somebody else. The Court: Do you ever visit with her? A. I ain’t saw her for 65 years. The Court: You consider Perry County here to be your home? A. Well, I am going to other places right now, right away. The Court: Well, how long have you lived in Perry County? A. I don’t know. The Court: I believe that is all. Dr. Gutowski: You had started home there, where were you going? A. Oh, I have been staying over here at Mr. Gullett’s, and he stays there too and his sisters, two or three of them— two of them is there, I believe. The Court: Are you pleased to live there at Mr. Gullett’s? A. Please too? The Court: Yes, sir. Do you like to live there? A. Well, if I was making more money, I would feel better about it. The Court: Well.” The transcript of the testimony taken at the hearing on Jan. 12, 1949, also shows that petitioner was an aged bachelor and had made his home with the Gulletts in Perry County for six years; that he carelessly kept nearly $30,000 in cash in a suitcase; and that he had started on a trip by bus to Missouri with the cash and other valuables at a time when he was mentally and physically ill and was apprehended by the sheriff of Perry County on information furnished by friends and neighbors of petitioner. Petitioner insists that the proceedings in the probate court were void and that said court is attempting to proceed without jurisdiction because the statutory requirement of petitioner’s presence in court at the sanity inquisition was not complied with. Ark. Stats. (1947), § 59-101, provides: “If any person shall give information in writing to the probate court that any person in their county is an idiot, lunatic, or of unsound mind, as in the preceding section (§ 57-401) is mentioned, and pray that an inquiry thereof be had, the probate court, if satisfied that there is good cause for the exercise of its jurisdiction, shall cause the person so charged to be brought before such court, and inquire into the facts by a jury, if the facts be doubtful.” By Sub-division 3 of § 57-402 (Act 191 of 1945) it is provided that the requirement of the subject’s presence before the court may be dispensed with where he “is physically incapacitated and is unable to be brought before the court by reason of physical disability, illness, or disease.” Petitioner relies on the case of Hyde v. McNeely, 193 Ark. 1139, 104 S .W. 2d 1068, and cases there cited. It was held in that case that an order of probate court declaring appellant insane, which failed to recite that she was present at the hearing, is void. Here the order of January 12, 1949, shows on its face the presence of the petitioner before the court. The transcript of the hearing also shows that petitioner was before the court and examined by the court although it further shows that he was not present throughout the proceedings. In view of the provisions of .§ 57-402, supra, we think the trial court is clothed with some discretion in determining whether petitioner’s physical presence should be compelled at all times during the hearing. If the trial court abused its discretion in failing to enforce petitioner’s presence throughout the hearing, this is merely an error in the exercise of jurisdiction which does not appear on the face of the judgment and must be corrected, if at all,by appeal. In Sharum v. Meriwether, 156 Ark. 331, 246 S. W. 501, it was held (headnote 6): “Abuse by the probate court of its discretion in refusing a jury trial in an inquisition as to sanity does not invalidate the proceedings and render the judgment void, but is merely an error in the exercise of jurisdiction, which may be corrected only by appeal. ’ ’ The abuse pf discretion in that case appeared on the face of the judgment. See, also, Scherz v. Peoples National Bank, Guardian, 214 Ark. 796, 218 S. W. 2d 86. The probate court had jurisdiction of the subject-matter in the instant case. Ark. Stats. (1947), § 57-401. We have repeatedly held that where á court has jurisdiction of the subject-matter and the existence or nonexistence of jurisdiction of the person depends on a question of fact to be determined by the court, its decision that it has jurisdiction, if wrong, is an error which may be corrected by appeal and'prohibition is not the proper remedy. Finley v. Morse, 74 Ark. 219, 85 S. W. 238; Macon v. Lecroy, 174 Ark. 228, 295 S. W. 31; Sparkman Hardwood Lbr. Co. v. Bush, 189 Ark. 391, 72 S. W. 2d 527; Ark. Democrat v. Means, 190 Ark. 948, 82 S. W. 2d 256; Twin City Lines, Inc. v. Cummings, Judge, 212 Ark. 569, 206 S. W. 2d 438. Since we conclude that prohibition is not the proper remedy to review the alleged error in the court’s failure to require petitioner’s presence at all times during the inquisition, it is unnecessary to determine whether jurisdiction of the person was waived by the proceeding to restore sanity held on April 28, 1949. Petitioner also contends that the sheriff of Perry County was prohibited by law from serving as guardian, and that the evidence is insufficient to support the finding of insanity. These are not questions affecting jurisdiction of the court, but involve mere errors which are properly reviewable on appeal and not by the extraordinary writ of prohibition. The petition for writ of prohibition is denied. Grieein Smith, C. J., not participating.

Griffin Smith, Chief Justice. The verdict was: “We, the jury, find . . . John Bailey guilty of rape . . . and assess his punishment at life imprisonment in the penitentiary.” From a judgment responsive to the verdict the defendant’s appeal seeks reversal on four grounds: (1) The jury was misled by the Court’s reply to questions propounded regarding the right to recommend clemency. (2) A failure to instruct • on lower degrees of crime, the only affirmative evidence showing rape, was prejudicial. (3) A preliminary hearing'was denied, hence the information should have been quashed. (4) Systematic exclusion of women from jury panels was a denial of due process. The facts present a sordid picture. Appellant, a married man with one child in esse and another expectant, went with Lee Doyle to a place where beer wás sold. Doyle told Bailey he had a “date” with a girl whom he named. Doyle, presumptively at Bailey’s request, telephoned his girl friend and asked that she procure a companion for Bailey. As a result of such overtures, Bailey’s companion was virtually held prisoner for the night and repeatedly raped. After patronizing places of incidental amusement the four, in Bailey’s car, drove to Boyle Park. During a short stop Doyle and his companion got out and walked to the rear. While they were talking and smoking cigarettes Bailey suddenly drove away, and was not seen again by Doyle that night. The prosecuting witness, 20 years of age, employed by a Little Rock real estate firm, testified that it was after eleven o’clock when the Boyle Park stop was made, on a dirt or gravel road. Shortly after Doyle and his companion got out of the car, Bailey became aggressive, but discontinued the struggle when it seemed likely the encounter might attract attention. Testimony on this phase of the assault was: “I screamed and screamed so much that he got up and said, ‘I’m sorry: I didn’t know yon were a nice girl. Come on and we will find the other couple. ’ ’ ’ With this comment Bailey drove off, but the prosecuting witness did not know where they went. There were no houses in sight, no lights, or people. The witness then said: “He stopped and didn’t waste any time. He dragged me out of the car, threw me on the ground [on a blanket] and attacked me.” It is not necessary to repeat the details, which established completed rape. The witness said she kept screaming, and that a car approached; whereupon Bailey jumped up and said, ‘Come on, let’s get hack in the car.’ Instead of complying with the request, the unfortunate girl ran to the other car and begged for protection. The occupants proved to be Willie Ford and (Miss) Billy G-arrin, who explained while testifying that in driving within Boyle Park they came to a dead-end road. In making a “U” turn a girl was heard calling for help. Ford was a paroled convict who worked for a bottling company. When the girl with Bailey begged.to he taken to North Little Rock, Ford declined through fear that his parole would be revoked. The prosecuting witness got in Ford’s car and talked with Ford’s companion, revealing part of the sordid story. Ford, however, persisted in his refusal to give aid. The prosecuting witness, who in the meantime had been taken by Bailey to his own car, begged the couple to follow them to town, and this they promised to do. En route Bailey drove so rapidly that contact was lost. Ford’s companion stopped and telephoned officers, and Ford later made a report. The prosecuting witness, in explaining Ford’s refusal to assist, testified that Bailey “dragged her” from the rear seat of Ford’s car and forcibly returned her to his own conveyance. Ford told her he had taken Bailey’s license number, that he would follow them, and if anything happened he would telephone the Sheriff: — • “Then he drove awfully fast an awfully long way to where he stopped again, and pulled off the highway onto a dirt road in the woods. Before he had completely stopped I jumped out of the car and ran a distance equal to half a block before he caught me and dragged me back. ’ ’ The transaction at that time was attempt to rape, but “ . . . he kept cursing me in the filthiest language he could [think of].” Other attempts were made. In these circumstances, characterized by intermittent attempts and specific acts of penetration, the night was spent. At various times Bailey appeared to be sleeping, but when the prosecuting witness attempted to escape he would grab her. Shortly after daylight Bailey drove the girl home. She immediately reported to her mother and sister. Physical examination by a physician whose qualifications were not questioned revealed bruises and scratches on the body of the prosecuting witness, whose sex organs were bleeding. The hymen was lacerated, indicating virginity just prior to the transaction charged in the information. The Doctor testified that “from all the information I could obtain, the female organs had been entered.” The essential facts have been set out because of the contention that the jury should have been charged on attempted rape. The defendant did not testify. First — Was the Jury Misled as to Clemency Rights f —-After deliberating for approximately fifteen minutes, the jury re-entered the court room and the foreman said: “We would like to know if we can recommend clemency in this and leave it up to the Court?” Judge Fulk replied: “It is the law that the jury may recommend clemency, but it is not the law that the Court .has to grant it.” The Foreman then said: “We wondered whether we might recommend it.” Judge Fulk answered: “You have the power to make that recommendation, . . . but it is not binding on the Court, and I don’t know how the Court would take it. ’ ’ Then the Foreman remarked, “All right, we understand.” Counsel for appellant argues that the jurors were “unquestionably” led to believe that they might hope for clemency, even with a finding of guilt. But the jury could have exercised its own discretion to make the recommendation it thought proper. It is just as logical to believe that the Court’s answer did not carry an inference of possible lenience, hence the fact-finders avoided the death risk and assessed life imprisonment. This is mere speculation, devoid of factual support, as is appellant’s theory that the jury was misinformed. The Court correctly stated the law. A defendant cannot predicate. error upon the want of it. Second — Failure to Instruct on “Attempt” and Assault. — In defining rape the jury was told that “There must be a penetration of the body; there must be force; and it must have been against the will of the female.” To this instruction the Court added: “The burden of proof is upon the State to show these things to your satisfaction beyond a reasonable doubt, otherwise you would have to discharge the defendant.” Appellant insists he was entitled to his Requested Instructions 13 and 14, shown in the margin. Con versely, appellee relies in part upon Whittaker v. State, 171 Ark. 762, 286 S. W. 937, where' it was held that the defendant could not complain of an instruction that he should be convicted of rape or acquitted; the defendant having requested an instruction to the same effect; nor, says the opinion, was it error to give the instruction complained of when testimony by the prosecutrix tended to prove that the accused was guilty of rape, and the defendant’s testimony was to the effect that he was innocent of any crime. In the case at bar there was testimony of conduct constituting rape, and in addition there were repeated attempts. An assault with intent to commit rape is included in the charge of rape. Pratt v. State, 51 Ark. 167, 10 S. W. 233. Chief Justice Cockrill’s language in the Pratt case was quoted in a more recent opinion rejecting the appellant’s argument that he suffered prejudice because when tried for rape and convicted of an attempt, the jury was instructed on the lesser degree. It was the defendant’s contention on appeal that he should have been convicted of rape, or acquitted. Our statute defines rape as the carnal knowledge of a.female, forcibly and against her will. Pope’s Digest, § 3403, Ark. Stats. (1947), § 41-3401. Other statutes define accessory to rape, administration of potion to a female, carnal abuse, abduction, seduction, and specific sex crimes. All are collected in a chapter of the Digests. It was said by Chief Justice Walker in Cameron v. State, 13 Ark. 712, that upon an indictment for a felony' the accused may be convicted of a misdemeanor “where both offenses belong to the .same generic class, where the commission of the higher may involve the commission of the lower offense and the indictment for the higher offense contains all the substantive allegations necessary to let in proof of the misdemeanor,” although at common law the rule was different. Assuming, without deciding, that conviction for assault and battery can be upheld where the indictment or information charges rape, (the transactions not being generically related) still,, the broad range of proof brought into play and the possibility of capricious conduct by fact-finders in reducing a serious charge to something relatively unimportant — these considerations require that Courts carefully scrutinize instructions that ■might be seized upon by either side to emphasize inferences that at most are vague. Hence we have the rule that one who objects to an instruction not inherently wrong cannot complain of prejudice unless the particular vice is pointed to or a correct instruction is offered. Here the defendant’s Requested Instruction No. 13 would have authorized a conviction for assault and battery, “ . . . which is the unlawful striking or beating of another person with the intent to inflict an injury, and fixing his punishment at not to exceed $200. ’ ’ The statutory definition of assault and battery does not contain the word “intent.” Pope’s Digest, § 2978, Ark. Stats. (1947), § 41-603. It is the unlawful “striking or beating of the person of another” that the statute denounces, and the intent to inflict injury is judicial construction. But a proviso supplied by Act of Jan. 6, 1857, p. 48, says that the section shall not apply to assault and batteries of an aggravated character “in which the fine under existing laws could not be as low as ten dollars.” Pope’s Digest omits the reference to “fines as low as ten dollars,” and reads, “Provided, this section shall not be construed to apply to assaults and batteries of an aggravated character.” Other statutes, such as § 2960 of Pope’s Digest, dealing with assault with a deadly weapon, use the expression, “with the intent to inflict upon the person of another a bodily injury.” See Watkins v. State, 179 Ark. 776, 18 S. W. 2d 343. Mr. Justice Wood, dealing with assault and battery in Moreland v. State, 125 Ark. 24, 188 S. W. 1, L. R. A., 1917A, 140, wrote the Court’s opinion sustaining the conviction of the appellant, a family physician who kissed a married woman without her consent. He quoted with approval from Clark’s Criminal Law, that “The least or slightest wrongful and unlawful touching of the person of another is an assault”; and, while an intent to do vio lence is an essential element, the degree is immaterial. The violence frowned on by the cases where assault is involved is, as Judge Wood pointed out, “the slightest unlawful touching of the person of another.” The intent to inflict a traumatic injury is not an ingredient. The mere “laying on of hands” is sufficient. Our view is that in the circumstances of this case, where all the testimony tended to show rape and attempted rape, and where the use of physical force was a means of accomplishing sexual desires, the Court was not required to instruct that the crime of assault and battery could not be established unless the “intent to inflict an injury” were shown; nor was the statement that a fine of but $200 could be assessed a correct declaration of the law without adding the proviso relating to assaults of an aggravated character. Requested Instruction No. 14 was so closely tied in with No. 13 that rejection of No. 13 — which alone contained the definition— rendered No. 14 unacceptable. Third — Preliminary Hearing. — The defendant’s preliminary hearing, set for August 11, was continued until August 13, arrest having been made without a warrant. On August 12th counsel for Bailey filed with the Clerk of the Circuit Court his motion to quash the information, alleging a denial of due process through failure to provide a preliminary hearing. We have repeatedly held that a defendant.is in lawful custody when an information has been properly filed with detention under it. The writ of habeas corpus is at all times available to one illegally held. Fourth — Systematic Exclusion of Women From Jury Panels. — It was stipulated that in respect of the First Division of Pulaski Circuit Court, no woman had been selected by the Commissioners since 1925. By Amendment No. 8 to the Constitution of Arkansas qualifications of electors were fixed and equal suffrage conferred, but “women shall not be compelled to serve on juries.” See Act 402 of 1921; Pope’s Digest, §§ 8302-3-4; Ark. Stats. (1947), § 39-112, 113, 114. The Constitutional proviso and statute sections have been construed as a privilege women may claim — declarations of public policy pursuant to wbicb it has not been thought that jury commissioners abused their discretion when there was failure to include women on the lists of those summoned. Criminal court trials often involve testimony of the foulest kind, and they sometimes require consideration of indecent conduct, the use of filthy and loathsome words, references to intimate sex relationships, and other elements that would prove humiliating, embarrassing and degrading to a lady. Under recognized requirements in this State, racial distinctions are disregarded in jury service. More often than not the fact-finders are not permitted to separate after a case has been submitted. Standards of deportment between men and women, and individual conceptions of personal propriety enter into the transactions; and while of course the State possesses power and could through an all-inclusive constitutional mandate say that in jury service there shall be no distinction between sexes, and while the right of Commissioners to call women unquestionably exists, it has not been thought that the policy constitutionally declared in 1920 was of a character depriving Commissioners of the discretion exercised in cases such as that with which we are dealing. It is suggested that decisions of the Supreme Court of the United States are conclusive of the issue and bound the trial Court to quash the panel. Ballard et al. v. United States, 329 U. S. 187, 67 S. Ct. 261, 91 L. Ed. 181. Effect of that case is to say that due process failed when the defendant (a female) was tried by a California jury of men, a showing having been made that women had been systematically excluded from jury service. The decision did not rest upon mere difference of sex. The Ballard case, however, was in Federal Court, and it is noteworthy that California’s constitution does not carry a savings clause in favor of women. In exercising its supervisory power over the administration oí justice in the Federal Courts, the U. S. Supreme Court has said that “ . .• . the purposeful and systematic exclusion of women” by those charged with the duty of calling jurors for the Federal District Courts in states where jury duty is imposed alike upon the two sexes, relieves the defendant of the burden of proving prejudice in a particular case; but this rule has not been extended to state court trials — and certainly there are no expressions indicating that the discretion permitted commissioners under a State constitution such as ours would be controlled without a showing of conduct resulting in prejudice. See State v. Taylor, 356 Mo. 1216, 205 S. W. 2d 734. In Fay v. New York, 332 U. S. 261, 91 L. Ed. 2043, 67 S. Ct. 1613, a state prosecution was brought to the U. S. Supreme Court by certiorari. The opinion was written by Mr. Justice Jackson, who said that proof that only those women who volunteered or were suggested as willing to serve were subpoenaed for examination for service “was insufficient to show that women were intentionally and deliberately excluded, bearing in mind that New York gives women the privilege to serve, but does not impose a duty”. A significant statement by Mr. Justice Jackson is: “While this case does not involve any question as to the exclusion of Negroes or any other race, the defendants rely largely upon a series of decisions in which this Court has set aside State Court convictions of Negroes because Negroes were purposefully and completely excluded from the jury. However, because of the long history of unhappy relations between the two races, Congress has put these cases in a class by themselves. The Fourteenth Amendment, in addition to due process and equal protection clauses, declares that ‘The Congress shall have power to enforce, by appropriate legislation, the provisions of this article’. So empowered, the Congress on March 1, 1875, enacted that ‘no citizen possessing all other qualifications which are or may be prescribed by law shall be disqualified for service as grand or petit -juror in any court of the United States, or of any State on account of race, color, or previous condition of servitude’; and made it a crime for any officer to exclude any citizen on those grounds. 18 Stat. 336-37, 8 U. S. C. Sec. 44. For us the majestic generalities of the Fourteenth Amendment are reduced to a concrete statutory command when cases involve race or color which is wanting in every other case of alleged discrimination. ... It is significant that this 'Court never has interfered with the composition of State Court juries except in cases where the guidance of Congress was applicable, . . . [hence] one who would have the judiciary intervene on ground, not covered by statute must comply with the exacting requirements of proving clearly that in his own case the procedure has gone so far afield that its results are a denial of equal protection or due process”. ’We think the inference deducible from the Fay case is that where a State does not impose upon women as a class the inescapable duty of jury service,- a defendant who complains that due process was denied, or that he was not afforded the equal protection contemplated by the Fourteenth Amendment, must show something more than continuing failure of jury commissioners to call women for services in a division of the Court where the innate refinement peculiar to women would be assailed with verbal expressions, gestures, conversations and demonstrations from which most would recoil. Attention is called to the fact that the stipulation upon which appellant relies does not say that women have been systematically excluded from jury service. The court, seeking to express what it thought was intended, remarked that “The stipulation relates to defendant’s motion to quash the panel because the jury commissioners have habitually excluded women from jury service solely because they are women”. The motion did not allege they had been “systematically” excluded. Our decision, however, does not rest upon this technical refinement; but rather upon the substantial ground that the record does not show that the defendant failed to receive a fair trial at the hands of a competent jury. Affirmed.’ Requested Instruction No. 13: “. . . Under the information in this case you may find the defendant guilty of rape or you may find the defendant guilty of any of the offenses of assault which are included in the information. If you find the defendant guilty of assault with intent to commit rape, you may fix his punishment at any time not less than three nor more than twenty-one years. On the ather hand, if you have a reasonable doubt of whether it is rapé or assault with intent to commit rape, you will find the defendant guilty of the lesser offense. If you do not find beyond a reasonable doubt that the defendant was guilty of either rape or assault with intent to commit a rape, [but] if you further find that the defendant committed an assault and battery on the prosecuting witness, it would be possible, under this information, if you found the evidence to justify it, to find the defendant guilty of assault and battery, which is the unlawful striking or beating of another person with the intent to inflict an injury, and fix his punishment at a fine not to exceed $200.” Requested Instruction No. 14 would have told the jury that if it found the defendant guilty of assault and battery under the evidence, “but are not convinced beyond a reasonable doubt that he is guilty of assault to rape, it will be your duty to return a verdict for the lesser offense. Further, if you find that the evidence under the instructions of the court justify you in returning a verdict of guilty of assault to rape, as defined in these instructions, and have a reasonable doubt as to his guilt as to the charge of rape, as contained in the information, it will be your duty to give him the benefit of that doubt and return a verdict only for the lesser offense.” Amendment No. 8, although adopted in 1920, was not so recognized until the decision in Brickhouse v. Hill was handed down, 167 Ark. 513, 268 S. W. 865, followed by the ruling in Combs v. Gray, 170 Ark. 956, 281 S. W. 918, decided April 12, 1926.

Frank G. Smith, J. Claim for compensation was filed by appellee Jan. 21, 1948, claiming that he was employed by Brook’s Inc., a domestic corporation, which regularly employed five or more employees, and that he was injured in the course of his employment on November 20, 1947. A hearing was had before one of the Commissioners at which time it was stipulated that appellee was employed by Brook’s Inc., hereinafter referred to as appellant, on and prior to November 20, 1947, and that he was accidentally injured while so employed, and that his injury arose out of and in the course of his employment and that he was earning $25 per week when injured. An order was filed by the Commission on Ang. 25, 1948, holding that Edward E. Brook, president of appellant company, was one of its employees, working in a dual capacity, making a total of five employees of the Corporation, which, if true, gave the Commission jurisdiction of the claim filed with it. Appellant contended, and now contends, that it had only four employees when appellee was injured, and that therefore the Commission had no jurisdiction of the claim. See paragraph (c), § 2, Workmen’s Compensation Act, Act 319, Acts of 1939, p. 777. Upon the finding stated the Commission approved the claim and awarded the compensation fixed by the Compensation Act, from which award an appeal was duly prosecuted to the Circuit Court, where the Commission’s award was affirmed. Appellant says the only question before the court on this appeal is whether Brook, the president of the appellant company, was an employee as contemplated by the Compensation Act. The question presented for decision is therefore one of fact, and the rule must be applied here, as in all other cases arising under the Act, that the Commission’s finding on question of fact will be given the same finality as the verdict of a jury and be affirmed, if there is sufficient competent testimony to support the finding. Now, as stated, it is conceded that appellee himself was an employee of appellant, and was injured in the course of his employment, and is therefore entitled to the compensation fixed by the Compensation Act, if that Act is applicable, and its applicability is dependent upon the question whether Brook was an employee when appellee was injured. Brook was president, and manager of the Corporation and testified that he drew no salary, his exact testimony being, “I drew what I needed to get by — we have not decided on a salary until we start making a larger profit. I draw what I need every day.” The appellant company was organized in 1946, and its report to the Internal Revenue Collector for 1947 shows that for that fiscal year it paid social security tax on five employees, but Brook was not one of that number, and no tax has ever been paid for him. The records of the corporation were introduced, which reflect a resolution by its board of directors that “There shall be paid to Edward E. Brook, president and manager of the corporation’s business, as compensation for his services to the corporation in those capacities, a salary in, the amount of (not decided) per month, which salary shall be paid monthly out of the funds of the corporation.” It thus appears that it was contemplated and provided that Brook should have a salary to be paid monthly, although the amount thereof was not fixed, and that in the meantime he drew from the company whát he needed every day. Now Brook was to be paid for his services not only as president of the company, but also for' his services as its manager. The record reflects that his services as president were not extensive, and probably required but little of his time, yet his entire time was devoted to the company’s business, he says as its manager. But what service was he performing? He testified that the company’s business was “Appliances, air conditioning and heating services,” and that his duties as president were “a little of everything we do there. I do part of almost everything, supervision of our jobs and our sales staff, our shop- men and bookkeepers and also sales personel. We have two floors in our store and it depends on what is going on as to what I am doing. I may be waiting on a customer or helping on a radio, or maybe I am bidding on a job or writing a letter.” He further testified that at other times his employment was to wait on customers, trying to sell them something, and he further testified: Q. “Do you go out on the job when the men are working at any time?” A. “Yes sir.” Q. ‘ ‘ What do you do out there ” A. “ I see what is going on and see if I can recommend anything, and if they need a hand on lifting something I will help them in lifting.” Section 2 of the Compensation Act defines an employer as “Any individual, partnership, association or corporation carrying on any employment. . . . ” The Aet also defines employee and the definition given is “Any person, including a minor whether lawfully or unlawfully employed, in the service of an employer under any contract of hire or apprenticeship, written or oral, expressed or implied, but excluding one whose employment is casual and not in the course of the trade, business or profession or occupation of his employer.” Paragraph (c) § 2 of the Act provides that employment means “every employment carried on in the State in which five or more employees are regularly employed in the same business or establishment . . .’’with certain exceptions not applicable here. The record shows that until within two days before appellee’s injury one Tate was an employee of appellant company, and, that if he were counted, appellant had five employees when appellee was injured, excluding Brook, but the Commission did not base its holding that the Compensation Act was applicable upon the finding that appellant had five regular employees, excluding Brook, when appellee was injured, although that finding might have been made upon the authority of the case of Green v. Benedict, 102 Conn. 1, 128 Atl. 20. But it did base its award upon the finding that Brook was himself an employee, and that without him there were not five employees of appellant when appellee was injured. The Commission’s opinion recites “From the testimony in this case it is the opinion of the Commission that Mr. Brook, president of Brook’s Inc., was acting in a dual relationship with the corporation, that of office of president, and that of an employee as salesman.” That Brook was acting in a dual capacity was shown by his own testimony, so that in its last analysis the question is whether an executive acting in a dual capacity may be counted as an employee in determining the jurisdiction of the Commission. The authorities appear to be divided and we do not determine where the weight of authority lies, as we have held that one may act in a dual capacity and if with the knowledge and consent of the employer he acts in a capacity which confers jurisdiction, he will be considered as one acting in that capacity, although he has another relationship. See Soltz Machinery & Supply Co. v. McGehee, 208 Ark. 747, 187 S. W. 2d 896, and Parker Stave Co. v. Hines, 209 Ark. 438, 190 S.W. 2d, 620. In the case last cited we quoted from the former opinion as follows: “In the recent case of Soltz Machinery & Supply Company v. McGehee, 208 Ark. 747, 187 S.W. 2d 896, the following statement from Schneider’s Workmen’s Compensation Text, Vol. 4, Permanent Ed., § 1076, was cited with approval: ‘While in all ordinary transactions the existence of the relation of contractor as between two given persons excludes that of principal and agent, or master and servant, there is not necessarily such a repugnance between them that they cannot exist together, and an employee may be an independent contractor as to certain work, and yet be a mere servant as to other work for the same employer. The decisions recognize that principle.’ ” In Vol. 1, 2nd Ed. Schneider’s Compensation Law, p. 229, it is said: “Whether officers of a corporation could be counted to make up the required five or more employees within the meaning of the act would depend on the facts of the particular case,-whether they were actually regularly employed in the usual course of the business of the corporation.” If an executive officer may in certain cases be counted as an employee to determine the jurisdiction of the Commission, we think the commission was warranted in finding that Brook may be so counted in this case, as, not only a substantial, but the principal part of his duties were those ordinarily discharged by an employee not acting in an executive capacity. In Vol. 35, No. 10, of the University of Arkansas Law School Bulletin at page 3 there appears a Review of the opinions of the Arkansas Workmen’s Compensation Commission, written by a long time member of the Commission, in which it is said: “The Commission holds that the title and theory of the Compensation Act imports the idea of compensation for workmen and their dependents and would not ordinarily be deemed to refer to executive officers receiving large salaries and engaged exclusively in designing and executing the general policies of business, but when an executive does the work of an employee or acts in a dual capacity as executive and employee and is injured while performing the duties of an employee, the injury is compensable. The test of the right to compensation is not the title of the injured employee, but the nature and the quality of the act he is performing at the time of the injury.” Brook is not a claimant but his relationship to appellant is determinative of the Commission’s jurisdiction to adjudge claims against the corporation. At page 174 of Honnold on Workmen’s Compensation, it is said: “The California Commission has held that where the corporate stock is all in the hands of the directors, two directors, father and son, as president and secretary, being authorized to exercise full control of the business, the son, on being injured while acting in the course of his -employment as secretary, can recover compensation against such close corporation; also that the fact that one was general manager on a salary . conclusively showed the fact of his employment, though he was also president of the corporation.” In the case of In re Raynes, 66 Ind. App. 321, 118 N. E. 387, it was said by Div. 2 of the Appellate Court of Indiana: “It appears to us as sound that compensation under Workmen’s Compensation Acts cannot be denied one simply because he happens to be the president or other executive or managing officer of the corporation that employs him, and that fact alone is not sufficient to eliminate him from among those regarded as employees within the meaning of such acts. If the corporation is great and powerful, with extensive financial resources; if an officer is a large stockholder and his time is occupied in the discharge of the usual duties of his office and his salary is fixed because of the discharge of such duties — it would seem apparent that he could not be regarded as an employee under such an act. But in another corporation of humbler proportions such an official might serve in a dual capacity; that is, as an officer and also as a workman. It is not unreasonable to conceive of a case where the discharge of the official duties would constitute but a small portion of the services rendered by him to the corporation. Such an officer might be hired in fact to perform manual labor in connection with other employees, and his time in the main be occupied in performing such service and regular wages paid him accordingly. Such an official in his capacity as a workman might measure up in all respects to the conception of an employee within the meaning of the act as we have herein-before developed it, and in such capacity we believe that he should be regarded as an employee within the meaning of Compensation Acts.” In the case of Parker Stave Co. v. Hines, supra, it is said: “In determining whether one is an employee or an independent contractor, the Compensation Act is to be given a liberal construction in favor of the workman, and any doubt is to be resolved in favor of his status as an employee rather than an independent contractor. Irvan v. Bounds, 205 Ark. 752, 170 S.W. 2d 674; 71 C.J., p. 449.” The same liberal rule of construction should be applied in determining whether Brook was an employee, although he was also an executive, and when so applied we think the testimony supports the Commission’s finding that Brook was an employee. We said in the case of Irvan v. Bounds, above cited, that no hard and fast rule for determining the relationship of the parties in every case of this kind can be formulated, and we are not attempting to do so, as every case must be governed by its own peculiar facts, but when the Act is liberally construed we think the Commission. had jurisdiction, and as no other question is raised, the judgment is affirmed.

Ed. F. McFaddin, Justice. On a plea of guilty, the jury convicted the appellant of murder in the first degree, and assessed the death punishment; and this appeal is an effort to obtain a reduction in the sentence. The facts are sordid. Appellant had been estranged from his wife, Mrs. Gertrude Rorie. On the night of October 8, 1948, he went.to her home when she was alone with her two small children. When she refused to become reconciled with him, he struck her on the head with a hammer, and either killed her or knocked her unconscious. Then he sprinkled kerosene over the bed where she and her two sleeping children were lying. He set fire to the bed and departed. The children were Frankie Maupin, aged 11, and Joyce Maupin, aged 9, being stepchildren of appellant. As he left the premises he heard the children scream; as he reached his truck a few hundred feet away, he saw the entire house in flames: but he drove to his home and retired for the night. Mrs. Rorie and her two children were burned to death. Only the skulls and bones remained the next morning after the fire, but these were properly identified. Appellant was arrested on the morning of October 9th. He promptly confessed, and gave the .officers his clothes and the hammer, all of which showed human blood stains. He identified the container from which he had poured the kerosene. In short, his confession was freely made, and amply corroborated. He was tried on information which charged him with murder in the first de gree for the killing of the two children, done while he was perpetrating the crime of arson. Appellant duly entered his plea of guilty, and the Circuit Court empaneled a jury to examine the testimony and find the degree of the crime and fix the punishment. The learned Circuit Court followed the statutes and our cases covering such a situation. See §§ 4041-2, Pope’s Digest (§§ 43-2152 and 43-2153, Ark. Stats. of 1947), and these cases: Lancaster v. State, 71 Ark. 100, 71 S. W. 251; Wells v. State, 193 Ark. 1092, 104 S. W. 2d 451; Ray v. State, 194 Ark. 1155, 109 S. W. 2d 954; Carson v. State, 198 Ark. 112, 128 S. W. 2d 373; and Jones v. State, 204 Ark. 61, 161 S. W. 2d 173. The cause was tried to the jury just as though the defendant had pleaded not guilty. Every essential fact of the crime was established. The jury was instructed on the degrees of murder and the discretion as to the punishment. The verdict is in the form required by law. It reads: “We, the jury, find the defendant guilty of the crime of murder in the first degree as charged in the information and fix his punishment at death in the electric chair.” In capital cases we not only consider each assignment, but we also examine the transcript for each objection made by appellant, See § 4257, Pope’s Digest, (§ 43-2723, Ark. Stats. of 1947), and see, also, Bates v. State, 210 Ark. 1014, 198 S. W. 2d 850. After having studied all of the assignments and all of the objections, we specifically hold: 1. The motion for continuance was properly refused. 2. There was no error in the Court’s ruling relative to the opening statement of the prosecuting attorney. 3. The evidence is sufficient to sustain the verdict. ■ 4. The trial court ruled correctty on each of the eight objections relating to the admissibility of evidence. 5. Each of the nine instructions given by the Court was correct, and — together with one unnumbered instruction — they covered all phases of the case. 6. The Court ruled correctly in refusing each of the nine instructions requested by appellant, since such requested instructions were either incorrect, or had been covered by correct instructions given. 7. In addition, the record reflects that shortly after the arrest, the trial court on its own motion had appellant’s sanity ascertained. In the brief the attorney for appellant makes' a strenuous argument against capital punishment. Our statutes (§ 4042, Pope’s Digest, § 43-2153, Ark. Stats, of 1947) allow the jury to assess the death penalty; and the amending of the statutory law is a matter for the Legislature, rather than the Courts. Finally, appellant’s counsel asks this Court to “exercise its constitutional power and reduce the death sentence to life imprisonment.” Among other cases, we are cited to Blake v. State, 186 Ark. 77, 52 S. W. 2d 644, in which case this Court modified the judgment from the death sentence to imprisonment. When this Court finds that the evidence is insufficient to support the punishment assessed, then we have the power to modify the punishment. Our cases clearly reflect, however, that this modification is done, not on a basis of judicial clemency, but only in a case in which the evidence would not sustain the higher punishment assessed. In the case at bar we find the evidence sufficient to support the jury verdict. Therefore, the judgment is affirmed. Not reported in full in the Arkansas Reports,

Minor W. Millwee, Justice. The Workmen’s Compensation Commission found that appellant, Glenn A. Green, sustained an accidental injury to his eyes which arose out of and in the course of his employment by appellee, Lion Oil Company, in June, 1947. The commission denied appellant’s claim for weekly compensation benefits because he received a salary from the State during the period of disability in excess of what his earnings would have been had he remained in appellee’s employ, but ordered payment by appellee of necessary medical expenses incurred by appellant as a result of the injury. Appellee, a self-insurer under the Compensation Act, appealed to the circuit court which reversed and set aside the order of the commission on the ground that there was not sufficient competent evidence in the record to warrant the award for medical expenses. Appellant prosecutes this appeal from the circuit court judgment. Appellant resigned his position as Publicity Director for the State of Arkansas and entered the employ of appellee as assistant advertising* manager on June 15, 1947. At that time he had suffered occasionally for approximately two years from a slight conjunctivitis. A few days after he started working for appellee he received treatment from Dr. Raymond C. Cook of Little Rock and was fitted with glasses to correct the condition. According to the testimony of appellant, his condition had materially improved on June 26, 1947, when he and a co-worker went to the fertilizer plant operated by appellee at El Dorado, Arkansas, to take some pictures to be used in company advertising. The fertilizer manufactured at the plant is known chemically as ammonium nitrate which is packed and distributed in pellet form in 100 pound sacks. In arranging a sack of' the material for photographing, appellant worked with it with his bare hands for a period of two or three hours. It was a hot day and he perspired freely using his handkerchief repeatedly to dry his hands and face. He went directly from the plant to his hotel room where he first became conscious of irritation in his eyes. His condition grew progressively worse and on July 1, 1947, he again consulted Dr. Cook who found appellant suffering from acute purulent conjunctivitis for which treatment was administered. On July 2, 1947, corneal ulcers had developed and appellant underwent radical treatment for a two weeks period and was totally disabled for five weeks. He was discharged by Dr. Cook on August 5, 1947, with vision of 20-20 in both eyes and pupils back to normal. Appellant resigned his position with appellee on June 30, 1947, and resumed his former position with the state on July 1, 1947. He received his regular salary from the state during the five weeks period of disability although he was unable to perform his duties during that time.. The record does not indicate the exact date appellant filed his claim with the commission, but on July 16, 1947, appellee filed its report of intention to controvert the claim in which it is stated: “Reason for Controverting Claim. Deny that Glenn A. Green received the alleged injury while working for Lion Oil Company.” The effect of Dr. Cook’s testimony is that appellant undoubtedly came in contact with something that resulted in a marked irritation of the eyes between the treatments of June- 21 and July 1, 1947. It was his opinion that appellant’s exposure to and contact with the ammonium nitrate aggravated the pre-existing sub-acute conjunctivitis and resulted in formation of the corneal ulcers and temporary total disability for five weeks. The testimony of Dr. Cook was disputed by that of Dr. M. Y. Russell who did not treat appellant, but testified as an expert on behalf of appellee. Dr. Russell stated that while ammonium nitrate would result in eye irritation, he did not believe that enough of the chemical could have been transmitted to appellant’s eyes in the manner described to result in ulceration. He also stated that appellant’s contact with a large amount of ammonium nitrate would have caused an ulcerated condition within 48 hours, if at all; and that since such condition did not set up until several days thereafter, it was his*opinion that some systematic or other condition was the cause of the-formation of the ulcers. On this point Dr. Cook stated that the period of the development of the ulcers after exposure would depend on the amount of ammonium nitrate that got into the eyes of one already suffering from subacute conjunctivitis and that if the amount was small and in the form of a fine dust, it would set up an allergic infection which would take a few days for the ulcer to develop. E. L. Payton, a chemical engineer and assistant supervisor of the nitrate plant, testified that he and other employees at the plant had gotten ammonium nitrate in their eyes on many occasions and that the normal reaction was an immediate stinging senstion which soon subsided. He also stated that if a large quantity of the chemical got in the eyes, it was necessary to wash the eyes to obtain relief, and that the company maintained places over the plant for that purpose. He would not attempt to say what the reaction would be on eyes already diseased. Dr. M. D. Barnes, a research chemist employed by appellee, disagreed with Dr. Cook and other witnesses as to the chemical being an eye irritant. After a learned and extensive explanation of the Ghemical properties found in ammonium nitrate, he stated that similar properties were used in various eye medicines and that in his opinion appellant’s trouble could not have been caused by the chemical. He concluded that a weak solution of the chemical would make a good eyewash and stated that he administered a one percent solution of ammonium nitrate to one of his eyes for three days prior to the giving of his testimony without harmful effect. .His invitation for those present at the hearing to examine his eyes invoked the following testimony in response to questions by one of the commissioners: "Q. When did you do this, doctor? A. I did it this past week end, starting Friday night. Q. Is that the reason your eye is red now? A. (No response).” His work was confined to the laboratory and he did not know of the experiences of employees at the plant as related by Mr. Payton.' He stated that these employees must have gotten more than a 1% solution of the chemical in their eyes. The question for determination is whether there was sufficient competent evidence to support the commission’s finding that appellant received an accidental injury to his eyes which arose out of and in the course of his employment. If the commission’s finding that appellant sustained such an injury is supported by substantial evidence, the trial court erred in reversing and setting aside the award of the commission. It is not the province or duty of either the circuit court or this court on appeal to try de novo cases heard by the Workmen’s Compensation Commission. Solid Steel Sissors Co. v. Kennedy, 205 Ark. 958, 171 S. W. 2d 929. It is also well settled that the circuit court on appeal from the commission and this court on appeal from the circuit court must give to the findings of fact by the commission the same force and effect as the verdict of a jury or of the circuit court sitting as a jury. Lundell v. Walker, 204 Ark. 871, 165 S. W. 2d 600; Sturgis Brothers v. Mays, 208 Ark. 1017, 188 S. W. 2d 629. In determining whether there is sufficient evidence to support the award, both the circuit court and this court on appeal must weigh the testimony in the strongest light in favor of the commission’s findings. Hughes v. Tapley, Admr’x, 206 Ark. 739, 177 S. W. 2d 429. We have also adopted the rule stated by the California Court in Pacific Employers Ins. Co. v. Industrial Accident Commission, 19 Cal. 2d 622, 122 P. 2d 570, 141 A. L. R. 799, as follows: “Circumstantial evidence is sufficient to support an award of the commission, and it may be based upon the reasonable inferences that arise from the reasonable probabilities flowing from the evidence; neither absolute certainty nor demonstration is required.” Herron Lumber Co. v. Neal, 205 Ark. 1093, 172 S. W. 2d 252; J. L. Williams & Sons, Inc. v. Moore, 206 Ark. 766, 177 S. W. 2d 761. This court is also committed to the rule that an aggravation of a pre-existing diseased condition resulting in death or disability is compensable, if caused by an accidental injury that arises out of and in the course of employment. McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Harding Glass Co. v. Albertson, 208 Ark. 866, 180 S. W. 2d 961. In support of the judgment of the circuit court, appellee contends that appellant’s own testimony conclusively shows that he did not get ammonium nitrate in his eyes because he stated that he felt the irritation to his eyes for the first time when he arrived at his hotel room from the plant, while the evidence shows that he would have experienced an instantaneous burning sensation while working with the chemical. It is also insisted that the commission gave unwarranted weight to the testimony of Dr. Cook and that the latter’s conclusion as to the cause of the acute conjunctivitis whicli resulted in corneal ulcers on appellant’s eyes was wholly conjectural. The evidence is in conflict, but it was the province of the commission as the fact finding body to harmonize the various inconsistencies in the testimony. Appellant gave a reasonably clear history of having gotten the ammonium nitrate in his eyes which were already diseased by subacute conjunctivitis. This experience was followed by increasing pain and culminated in a severe and disabling condition of his eyes. The testimony of Dr. Cook that in his opinion the chemical caused or could have caused the disabling condition was not an unreasonable conclusion to be drawn from all the facts and circumstances. It is our conclusion that the evidence, when considered in its strongest light in favor of the commission’s findings, was substantial and sufficient to support the award. Appellee also argues that under § 11 of Act 319 of 1939, which was in effect at the time of the alleged injury, it had the right to select the physician for the treatment of injured employees and is under no obligation to reimburse appellant for the medical expenses which he has incurred. Appellee also insists that there was no proof of medical expenses nor statement thereof rendered the commission as required by this section of the compensation act. The commission made an open award in appellant’s favor for necessary medical expenses without determining the amount or reasonableness thereof. This procedure was not objected to by appellee at the hearing. There was in fact testimony as to the amount of Dr. Cook’s charges. There was also evidence that appellee knew of the treatment of appellant by Dr. Cook at the time it filed notice of intention to controvert the claim on the sole ground that appellant did not receive the alleged injury while working for appellee. The proceedings before the commission were confined to the question whether appellant sustained an accidental injury arising out of and in the course of his employment. The issues of appellee’s right to select the physician, the amount and reasonableness of medical expenses and the rendition of a statement of such expenses were not raised before the commission and may not be raised for the first time on this appeal. Murch-Jarvis Co., Inc. v. Townsend, 209 Ark. 956, 193 S. W. 2d 310. It follows that the trial court erred in setting aside the award of the Compensation Commission. The judgment is, therefore, reversed and the cause remanded with directions .to reinstate and affirm the findings and order of the commission. Justice Frank Gr. Smith, not participating.

Leflar, J. Appellant Wisinger applied to the Arkansas Public Service Commission for a certificate authorizing him to operate a motor transport line for hauling heavy oil field equipment over certain named highways, with headquarters at El Dorado. At the hearing, Wisinger’s evidence indicated the inadequacy of existing motor transport service of this type. Opponents gave evidence tending to show that existent services were adequate. The Public Service Commission’s order found the facts to be in accordance with the evidence given by Wisinger, and a certificate was issued permitting him to operate, for the purpose stated, over the highways designated, which included highways throughout the entire South Arkansas oil fields and adjacent areas. On appeal to the Circuit Court, the holding was that there was ample evidence to sustain the finding that public convenience and necessity required an additional carrier in the vicinity of El Dorado, but that there was insufficient evidence to show such need at any place ‘ ‘ other than El Dorado, Arkansas, and the immediate vicinity thereof,” and the case was remanded to the Commission with instructions to ascertain. and fix the area covered by “the immediate vicinity” of El Dorado.- Wisinger appeals from that part of the Circuit Court’s judgment which would thus limit the area covered by his certificate. No cross-appeal has been taken, by the opponents of the application, from that part of the Circuit Court judgment which affirmed the granting of the certificate for highways in El Dorado and its immediate vicinity. The only question here, then, is as to the propriety of the Circuit Court judgment insofar as it in part set aside the Commission’s order. Analysis of the evidence received in the case has convinced us that the Commission’s original order should be reinstated. The statute which prescribes the scope of judicial review of orders of the Public Service Commission is Act 124 of 1921, the relevant parts of which appear in Ark. Stats. (1947), §§ 73-133 and 73-134. These sections governed judicial review of orders of the old Railroad Commission. By Act 12 of 1933 the functions of the Railroad Commission were transferred to the newly created Corporation Commission, but the scope of appeal (Act 12 of 1933, § 9) remained unchanged. Act 324 of 1935 set up the Department of Public Utilities within the Commission, and prescribed a different scope of appeal from its orders, Ark. Stats. (1947), § 73-233, but made no change in the law governing other appeals. Then Act 40 of 1945 abolished both the Corporation Commission and the Department of Public Utilities, combining the two agencies as the present Public Service Commission. The Act of 1945, however, made no change in the existent law as to judicial review. Fortunately or unfortunately, the law was left in the situation of-providing one rule for review of orders issued in cases jurisdiction over which was inherited by the new Commission from the Department of Public Utilities, and another rule for cases the jurisdiction in which was inherited from the old Corporation Commission and the Railroad Commission. (For a study of this entire matter, see the Comment on Judicial Review of Findings of the Arkansas Public Service Commission in 2 Ark. L. Rev. 67.) The guiding principles of judicial review applicable to appeals such as this one have been stated several times. They are: “A. This court tries this case de novo, and renders such judgment as appears to be warranted and required by the testimony. . . . “B. The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.” Santee v. Brady, 209 Ark. 224, 227, 189 S. W. 2d 907, 909; quoted in Arkansas Motor Freight Lines v. Batesville Truck Line, 214 Ark. 448, 216 S. W. 2d 857. C. “. . . it must be remembered that we are dealing with tbe finding of a tribunal erected by tbe Legislature for the special purpose of investigating and determining matters of tbe nature bere involved; and tbe finding of sucb a tribunal on a fact situation may not be upset by tbe courts unless tbe finding is clearly against tbe weight of tbe testimony.” Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 7, 205 S. W. 2d 716, 719. A point not to be lost sight of bere is that de novo review by tbe courts, including this Court, must not proceed as though tbe Public Service Commission did not exist and bad never held a bearing. A bearing has been held, and tbe Commission which held tbe bearing has bad tbe advantage of seeing and bearing tbe parties and witnesses face to face, whereas tbe Circuit Court and this Court review tbe evidence from tbe record only. “Where a matter is beard and decided by an administrative body sucb as tbe Public Service Commission, an order made by it should be upheld by tbe court on appeal unless it is against tbe weight of tbe evidence.” Camden Transit Co. v. Owen, 209 Ark. 861, 863, 192 S. W. 2d 757, 758. “We try cases of this kind de novo, but it is tbe duty of tbe courts to accord due deference to tbe finding of tbe Commission, since it is tbe agency upon which tbe G-eneral Assembly has placed tbe duty to investigate and determine, in tbe first instance, tbe need for any proposed motor carrier service.” Schulte v. Southern Bus Lines, 211 Ark. 200, 202, 199 S. W. 2d 742, 743. Accord: Motor Truck Transfer, Inc. v. Southwestern Transportation Co., 197 Ark. 346, 122 S. W. 2d 471. The first case to come up under tbe judicial review sections of Act 124 of 1921 was St. Louis Southwestern Ry. Co. v. Stewart, 150 Ark. 586, 235 S. W. 1003, decided in 1921, and McCulloch, C. J., there said: “The statutes of tbe State lodged (that) power, primarily, in the . . . Commission, and it was not the purpose, we conceive, of the framers of the statute in allowing an appeal to substitute the judgment of the courts, unless it. appears that an error was made by the Commission in its conclusions.” In another recent case the following language was used: “. . . the statute . . . required this court, upon the appeal to it, to hear the matter de novo, and to render such judgment upon appeal as appeared to be warranted and required by the testimony. And so we do, but we cannot ignore the fact appearing in the record before us that a protracted hearing was had, both before the Commission and in the Circuit Court on appeal, and, while the burden was on petitioners to make the affirmative showing that the public convenience and necessity required the issuance of the permit, that finding has been made, and should now be affirmed unless it appears to be contrary to a preponderance of the testimony. We hear chancery appeals de novo, but, when we have done so, we affirm the findings of the chancellor on questions of fact unless his findings appear to be contrary to a preponderance of the evidence.” Potashnick Truck Service v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 508, 157 S. W. 2d 512, 514; quoted in Southeast Arkansas Freight Lines v. Arkansas Corporation Commission, 204 Ark. 1023, 166 S. W. 2d 262. This Court’s proper task, in the light of this state of the law, is to inquire whether the determination of the Commission was contrary to the weight of the evidence. As already indicated, we have found that it is not. Applicant Wisinger’s witness, M. F. Gathright, a rig-building contractor, testified that he operated in an area running 75 or 80 miles from El Dorado, that his work required heavy equipment to be hauled not only in and around El Dorado but “from one field to another,” “and sometimes from other states, ’ ’ that other operators lacked adequate equipment for handling his work, that there had been delays in rendition of service by other operators, that applicant Wisinger had been employed by other operators to do work which they were unable to attend to for their customers, and that he and others had need of applicant’s services in the oil field areas in which they worked. Another witness, J. B. Cunningham, testified to the same general effect as to the need for the service, and that “Our business'is all spread (out) . . . throughout the oil fields in Southeastern Arkansas.” C. R. Douthitt testified that he needed applicant’s services, and that he was “operating in Union, Ouachita, and Columbia counties.” H. N. McClatchey testified similarly, and that he served oil fields in Union, Ouachita and Columbia counties, ‘ ‘ and farther than that, if they want it, all over the Arkansas fields.” J. E. Cox testified that he needed applicant’s services, and that “I cover the oil fields in South Arkansas and part of North Louisiana.” Three of the opponents’ own witnesses, G-. W. Benefield, Rodney Stewart, and J. E. Purkins, testified in terms of operations outside Union County. This affirmative testimony was sufficient to justify the Commission in concluding that the oil fields of South Arkansas constitute an inter-related unit in respect to the matters involved in this application, and that the application should be granted for the entire territory constituting that inter-related unit. The order of the Commission included authority to operate on some highways outside the oil fields altogether. The relevance of these highways to oil field operations is not clear, but it suffices now to point out that the certificate of public convenience and necessity permits the applicant to move only oil field equipment over the designated highways, and none of the opponents has shown that the certificate, insofar as it relates to these off-the-field highways, will in any way interfere with his business. The judgment of the Circuit Court is reversed, and the order of the Public Service Commission is reinstated as originally entered.

Ed. F. McFaddin, Justice. Appellant was convicted of a violation of the Full Switching Crew Law of Arkansas, in that the appellant’s switching crew in the City of Osceola consisted of an engineer, fireman, conductor and only two brakemen, whereas the State contends that three brakemen are required by the said law, the germane portions of which read: “No railroad company or corporation owning or operating any yards or terminals in the cities within this State, where switching, pushing or transferring of cars are made across public crossings within the city limits of the cities shall operate their switch crew or crews with less than one engineer, a fireman, a foreman and three helpers. It being the purpose of this Act to require all railroad companies or corporations who operate any yards or terminals within this state who do' switching, pushing or transferring of cars across public crossings within the city limits of the cities to operate said switch crew or crews with not less than one engineer, a fireman, a foreman and three helpers, . . (italics onr own). It is conceded that the only question is whether the railroad switch tracks in the City of Osceola constitute a railroad “yard”, as that word appears in the said law. In claiming that the trial court erroneously decided this fact question, appellant says: “The appellee contends that the appellant owns ‘yards’ in the City of Osceola. Because of its interpretation of the word ‘yard’ in the statute it charges the appellant has violated the statute in switching, pushing or transferring cars across public crossings in Osceola using only two helpers instead of three helpers in addition to an engineer, a fireman and a foreman. The appellant denies that it is violating the statute because Osceola is not a ‘yard’ or ‘terminal’ as those terms are understood in railroad parlance. The burden is on the State to prove its charge and the evidence is in conflict.” We agree with appellant that the evidence in this case is in conflict; but we hold that there is sufficient evidence to sustain the finding against appellant. The record discloses that the appellant has facilities in Osceola consisting of seventeen spur, team and house tracks totalling more than three miles in length; that these tracks serve eleven industries and are across four streets; that appellant maintains a switch engine and crew at Osceola for the purpose of doing switching in that city and also in Wilson, a community several miles away; that the Osceola switch engine takes cars from arriving trains to the various industries and then collects the cars containing outgoing freight, and returns .them to the proper tracks for the departing trains; and that this switching and collecting of cars is done on no authorized time table, but as prescribed by signals, rules and instructions from time to time. The evidence as thus synopsized, together with other evidence in the record, is sufficient to support the holding that appellant’s facilities in Osceola constitute a “yard”, whether tested by (1) the dictionary definition, (2) that contained in the cases, or (3) the railroad’s own definition as contained in some of its “rules.” Webster’s New International Dictionary defines a railroad yard as: “a system of tracks within prescribed limits used for making up trains, storing cars, etc., . . .” In Smith v. Boston & M. B. Co., 88 N. H. 430, 191 Atl. 833, there was presented the question of what constituted a railroad yard, and this language appears in that case: “The term ‘yard’, in the construction of statutes, even in the construction of penal ones, is considered not as limited only to places so designated by the railroad, hut is interpreted to include places ‘upon which are railroad tracks, used for the purpose of receiving and storing cars when not in use, or used for the purpose of switching in the distribution of cars and engines to other places and in the making up of trains.’ Chicago & Northwestern Railway Co. v. Chicago, 151 Ill. 348, 357, 37 N. E. 842, 844; George v. Quincy, O. & K. C. R. Co., 179 Mo. App. 283, 167 S. W. 153; Baltimore & Ohio Southwestern Railway Co. v. Little, 149 Ind. 167, 172, 173, 48 N. E. 862; Harley v. Louisville & N. R. Co. (C. C.) 57 F. 144; 51 C. J. 372.” The railroad rules define a yard as: “A system of tracks within defined limits provided for the making up of trains, storing of cars, and other purposes, over which movements not authorized by timetable or train order may be made, subject to the prescribed signals and rules or special instructions.” Under either of the foregoing definitions, the evidence is sufficient to support the factual finding that appellant’s facilities as actually used in the City of Osceola constitute a “yard” as that word is employed in the statute under consideration. Affirmed. This is Act 67 of 1913, and is now contained in §§ 73-726, et seq., of Ark. Stats. of 1947. The recent case of Kans. City So. Ry. Co. v. State, 213 Ark. 906, 214 S. W. 2d 79 involved the same law; and in the opinion in that case the earlier cases were listed and discussed. Seé, also, Order of Ry. Conductors v. Swan, et al., 329 U. S. 520, 67 S. Ct. 495, 91 L. Ed. 471 (in which appears a stipulated definid tion of a railroad yard); and see also the words “railroad yard” in Words and Phrases, Vol. 36, p. 73 and “yard” in Words and Phrases, Vol. 45, p. 639.

Griffin Smith, Chief Justice. A Piper Cub airplane, piloted by Thomas J. Jordan, Jr., crashed and was demolished. It belonged to West Memphis Flying Service and was insured up to $1,750 by American Aviation. When sued the insurer defended on the -ground that under Exclusion (d) of the policy there was no coverage while the craft was being operated in violation of the provisions of the Civil Aeronautics Administration, or its successor, “with respect to the pilot.” Jordan had a certificate as student pilot, issued by the Administration of Civil Aeronautics, Department of Commerce. Rules prohibit students from piloting an aircraft carrying a passenger. It is stipulated that William A. Goddard, as a passenger, was with Jordan when the crash occurred, and that the plane was being used without the plaintiff’s knowledge or consent. . Appellant thinks the trial Court’s conclusion that the plane was not insured against loss in the circumstances shown was due to a misconception of the Commerce Department’s basic rule-making power, and the law. It was shown that prior to 1940 matters pertinent to the controversy here were dealt with by Civil Aeronautics Authority. As thus created, the so-called Authority consisted of a five-man board, with an Administrator. It is contended that the Administrator, alone, was not authorized to issue safety regulations affecting pilots. By Congressional Resolution effective June 30, 1940, name of the five-man Authority was changed to Civil Aeronautics Board. Appellant argues that the Board, formerly known as the Authority, retained power to establish safety standards, and that no such agency as Civil Aeronautics Administration, or Administrator of Civil Aeronautics, is in existence; hence neither could have issued restrictive regulations, as mentioned in the policy, and there was no violation of “provisions of the Civil Aeronautics Administration.” We readily agree with the trial Court. The Federal Government uses “Administrator of Civil Aeronautics,” and “Civil Aeronautics Administration” interchangeably. This was testified to by an attorney and aviation expert called by áppellant, whose explanation was that rules were made by the Board “and enforced by the Administrator or Administration, whichever you want to call it.” The pilot’s license was captioned, “United States .of America, Department of Commerce, Civil Aeronautics Administration.” It was issued “By direction of the Administrator of Civil Aeronautics.” Mr. Maurer, testifying for appellant, said that members of the public generally refer to the Civil Aeronautics Administration “when, practically, they mean the Administrator of Civil Aeronautics.” The Government’s recent publication, “Organization of Federal Executive Departments” (printed on a sheet 36 by 44 inches) lists — under the Department of Commerce — “Civil Aeronautics Administration, Office of the Administrator.” It is dated January 1,1949. “To accompany Committee Report No. 5.” Our view is that “Administration,” as used in the policy, and as the term was treated by the contending parties, meant the Washington agency having control of aviation, including “Board,” “Authority,” “Administrator.” Congress had lodged with such bureau full power to restrict use of the air in its relation to aviation. The high degree of scientific and practical knowledge, required to make flying reasonably safe justifies the enforcement of rigid rules. In the case at bar the insurer and the insured will be conclusively presumed to have been familiar with these rules and their source. Since the terms “Administrator,” and “provisions” must have been understood in the same sense by the contracting parties, effect will be given the exclusion clause, affirming the judgment. . ■

Frank G. Smith, J. Appellant filed this suit to enforce the specific performance of an alleged contract to purchase a tract of land. A demurrer to the complaint was sustained, from which decree is this appeal. The case is a continuation of the litigation reported in the case of Cortiana v. Franco, 212 Ark. 930, 208 S. W. 2d, 436. The facts alleged in the complaint, as constituting the cause of action, most of which are recited in the opinion above referred to are as follows. The Kansas Educational Association of the Methodist Church, acquired by assignment to it, two mortgages on the land in question, executed by Cortiana and his wife, and as the basis of tin's suit is certain letters which passed between the managing officer of the Association and Cortiana, we copy them in full. The first of these letters reads as follows: “January 19, 1933. “In re: Cortiana Loan No. 14148 “Mr. D. Cortiana Springdale, Arkansas. “My dear Mr. Cortiana: “I am in receipt of your letter of a few days ago relative to the foreclosure of your loan. I note that you prefer that this should not be done inasmuch as you thought it would hurt your credit. I note further that you would like to have the privilege of going ahead just as you now are, and that you would pay us first. “In reply will say that I know this matter has been a source of a great deal of worry to you people, as it has also to us. I wish also to say that we certainly do not wish to do anything that we do not think is for your best interests as well as for ours. I feel however, as stated to you in my letter 7 that the safest thing both for you and for us is for us to proceed to take title under our foreclosure judgment. As stated to you while we were there, I do not believe this means at all that you will be put out of your home. I do not believe anyone will pay or bid, the amount that we have in the property, and that means that the property will be bid in for us and we will take title. Then, as stated to you in a previous letter, we would be more than glad to either rent the property to you under proper lease, or sell the same back to you as soon as you can get clear of your other creditors, and thence as soon as it can safely be done, under a proper contract. We do not want the property, and would much rather sell it back to you again. This plan, however, would prevent other creditors stepping in and making claim to your entire crop as they did last year. It is true that it was not your fault that this happened last year, but was the fault of the Shartel Mortgage Company. Nevertheless, there is nothing to prevent these other creditors from running an attachment again this coming summer, and I think, therefore, that this plan is much the safer. May I say further that I do not believe that this plan will in any way affect your credit nor your ability to continue to operate your plant and canning factory as you have heretofore. In fact, I am not sure but that it may help, because those from whom you buy in the future will be more assured that your old creditors cannot step in and run attachment for your old debts, thus taking your whole crop. I hope, therefore, that you see this matter as I do and that you do not worry about the matter, because we are only trying to do what it seems to us is best for both of us. As I have already said, I see no reason why you should not continue to retain possession of your home and regain title under a re-purchase agreement as above indicated. “With kindest personal regards to yourself and family, I remain “Tours truly, “F. E. Wolf, “Treasurer”. The mortgages were foreclosed and the Association became the owner of the land and for a number of years the Cortianas continued in possession as tenants under annual rental contracts. A note for the rent for the year 1946 was given and upon default in its payment an action of unlawful detainer was filed. The Cortianas answered and alleged that they were in possession under a contract to purchase the land, but that notwithstanding this contract the Association had sold the land to one Smith, who in turn sold and deeded it to one John Franco and Albert Pellin and these persons were made parties, it being-alleged that they had purchased with the full knowledge of Cortiana’s possession and of his claim of the right to possession under a contract of purchase. It was held in the case above cited that the Association had made proper and sufficient proof of all facts required and necessary to maintain the action of unlaw ful detainer, to-wit: Their possession as landlord, a contract of rent, unpaid rent and demand for possession. It was held that defendant Cortiana could not convert that action into a suit for specific performance, but that he might bring a separate suit to obtain that relief, which he later did, and this appeal is from the decree of the court sustaining a demurrer praying that relief. The opinion in the unlawful detainer suit was delivered February 16, 1948. The managing officer of the Association wrote Cortiana the following letter: “July 8, 1946 “Mr. D. Cortiana Springdale, Arkansas My dear Mr. Cortiana: “I am writing this to advise that our Committee feels that some definite change will need to be made in the handling of our above property before another year. You know that we have been trying to hold the place for you so that you could buy it, and have been renting it to you at less than a normal rental figure. Our committee feels that this cannot continue any longer. As you know also prices of everything else are advancing very rapidly and this includes not only the price of land- and houses but also rent. You should, therefore, make your very definite plans to buy the property this fall or be prepared to pay at least twice the amount of rent you are now paying. May I say, however, that I think it would be much better for you to get your finances in shape to buy the property. You have always indicated that you wanted to repurchase the property and we have tried to hold it for you. We have had offers to sell and now have a definite offer for the buying of this place. I doubt, if I can hold our committee off much longer. If, therefore, you are interested in trying to buy it, I think, you should make definite arrangements about the matter. I should also add that I am sure our Committee would not be willing to sell it for less than $5,500. They would be willing to make terms, but I feel sure .that they would expect at least $1,500 paid down at the time the deal is closed. I wish, you would give this matter your very serious consideration and advise me as I would like to know how to answer the other party who is interested in buying. If you wish to try to buy, I will prepare one of our regular Offer to Purchase Blanks somewhat along the above lines and send it down for your approval and signature. You understand that after the $1,500 is paid, we would be willing to carry mortgage back for the balance with annual reduction payments. Please let me hear from you. “Yours very truly, “F. E. Wolf”. In reply to this letter Cortiana wrote the Association the following answer: “Springdale, Arkansas “July 15, 1946 “Dear Mr. Wolf: “In regard to your letter of July 8, we are positively doing everything possible to buy our place. Mr. Wolf, we know you realize how awfully hard we have always tried and as the odds seem to have always been against us we have not had a chance to buy. However, this year things seem pretty well to be in our favor and therefore, we are positively going to make a definite plan agreeable to both of us to buy back our property. “Mr. Wolf, we have a good crop this year, as you know the grape harvest will not begin until the third or fourth week in August we are unable to make a definite decision at the present, therefore, no later than October 1st we will be in a position to make this settlement that we are both so very anxious to make agreeable for all concerned. “Rp-1 Box 115 “Springdale, Ark. “Yours truly, “D. Gr. Cortiana.” The three letters herein copied were made - exhibits to the complaint filed by Cortiana and are relied upon as constituting his cause of action. It appears from the letter dated January 19, 1933, that it was contemplated that Cortiana would repurchase the land and that until he had done so he would remain in possession as a tenant, paying an annual rent, he had made no attempt to exercise the right to repurchase the land when the letter dated July 8,1946, was written. This letter advised that the committee of the Association having the matter in charge, had decided that they could no longer hold the transaction in abeyance as they had a definite offer to purchase the land from a purchaser who was awaiting an answer. A minimum price for the land and a minimum cash payment was suggested. Cortiana did not accept this offer, on the contrary he stated that he “was unable to make a definite decision at the present”, but stated that no later than October 1st following, he would be in a position to make a settlement that would be satisfactory to all parties. Just what settlement that would be was not stated. Cortiana did not say he would pay the price demanded. It was certain, therefore, that no contract was made for the sale of the land, and there was therefore no contract, the specific performance of which could be enforced. We have many times held that the courts will not make contracts for the parties, and that the specific performance of a contract will not be enforced where the parties have not agreed upon the essential-details, the most recent case to that effect being that of Wyatt v. Yingling, 213 Ark. 160, 210 S. W. 2d 122. After the receipt of Cortiana’s letter above copied, dated July 15, 1946, in which he stated that he was “unable to make a definite decision at the present”, the Association accepted an offer to purchase, of which they had advised Cortiana in the letter dated July 8, 1946. And on or about July 26, 1946, a contract was entered into between the Association and Smith whereby the land was sold to Smith, who conveyed to his co-defendants John- Franco and Albert Pellin. After this contract and sale, Cortiana offered to comply with the terms offered him for the purchase of the land, but it was then too late as the offer was not made until after the contract with the sale to Smith had been made. The complaint supplemented by the exhibits thereto does not allege the existence of a contract between the parties, and the demurrer was therefore properly sustained.

Frank G. Smith, J. Appellant was found guilty of assault with intent to commit rape. The jury’s verdict finding bim guilty did not fix Ms punishment, but left that duty to the trial judge. Section 4070, Pope’s Digest, permits this practice and under its authority appellant was given a sentence of four years in the penitentiary. To reverse this judgment appellant assigns three errors in his motion for a new trial; that the verdict of the jury was contrary to law, contrary to the evidence, and that the court erred in giving Instruction No........... The testimony shows that immediately before assaulting Mrs. Frisby, the person alleged to have been assaulted, appellant pursued and chased two other ladies, but both eluded him. Mrs. Frisby was not so fortunate. Her testimony was that she was enroute home from a church meeting, about 8:00 p. m., when she saw appellant chasing a lady, who evaded him by running into a house on the street where she ran. Mrs. Frisby testified that she thought the parties were fighting. When she passed the house into which the lady who was being chased by appellant ran, appellant came down the steps and grabbed her “right down here on my person, low down”. He asked Mrs. Frisby to come around the corner with him, and put his hands all over her, knocking her down. She called appellant a dirty black devil, and he disappeared, and she started running to her home. But appellant reappeared in the next block and again grabbed her, throwing her to the ground. Her neck was scratched, her legs skinned and the buttons on her dress torn off. Her false teeth were knocked out of her mouth, and when she screamed appellant ran away. Mrs. Frisby further testified that both times she was attacked she layed or threw her pocketbook where appellant could get it if that was what he was after, but that “he did not want my pocketbook and he did not touch it.” Mrs. Frisby and the woman she saw appellant chasing identified appellant very positively and definitely as their assailant. The testimony supports the finding that the assault made on Mrs. Frisby was with the intent of committing rape. It was said in the case of Priest v. State, 204 Ark. 490, 163 S. W. 2d 159, that to warrant a conviction of assault with intent to rape it must appear not only that defendant intended to have carnal knowledge of the female alleged to have been assaulted forcibly and against her will, but that he did some overt act toward accomplishment of his purpose which amounted in law to an assault upon her. The testimony here fully meets this requirement. That Mrs. Frisby was assaulted is not questioned, and that appellant was her assailant was established by the testimony of Mrs. Frisby. There was testimony tending to prove an alibi according to which testimony appellant was not present at the time and place where the assault occurred. The truth of this testimony was of course a question of fact and evidently was not credited by the jury. The assignment that the court erred in giving Instruction No. _ is disposed of by the opinion in the case of Page v. State, 181 Ark. 314, 25 S. W. 2d 422, where it was said: ‘ ‘ The last assignment that the court erred in giving instructions numbered ‘_’ to the jury cannot be considered, as it points out no particular instruction, is too general, and is the same as if it had said the court erred in giving instructions.” Certainly all the instructions were not erroneous, indeed we find no error in any of them, and appellant does not attempt to show that any of them were erroneous. The testimony amply supports the verdict, and as no error appears, the judgment must be affirmed and it is so ordered.

Minor W. Millwee, Justice. Appellant, Robert W. O ’Meara, was drilling for oil at a location in Little River county about eight miles north of Texarkana, Arkansas, in August, 1946. Hershel L. Williams, Clyde Redi, Noel A. Beasley, and F. Gr. Tisdale, members of the drilling crew, had started to work in Williams’ automobile with Redi driving about 11:00 p. m. August 21, 1946, when the car in which they were riding collided with another automobile resulting in Williams ’ death and injury to the other three occupants. Claims for compensation benefits were filed with the Workmen’s Compensation Commission by Hershel Williams’ widow and the three injured employees. The commission found that the death of Williams and the injuries sustained by the other claimants did not arise out of and in the course of their employment and said claims were denied after hearings before one commissioner and the full commission. On appeal to circuit court, the findings and order of the commission were reversed and compensation in the amount of $7,000 was ordered paid in a lump sum to the widow of Hershel L. Williams and the other three claims were remanded to the commission to determine the sole question of the amount of compensation due them. The employer and his insurance carrier have appealed. After extensive findings of fact, the commission reached the following ‘ ‘ conclusions of law ’ ’: ‘ ‘ Claimants contend that they are entitled to compensation benefits because they were injured at a time and in such a man ner that it could be said that their injuries arose out of and occurred in the course of their employment-. We do not agree with this contention. From the evidence presented in this case it appears that these employees were injured in an automobile accident at the intersection of 9th and Hickory streets in the city of Texarkana, Arkansas, several miles from the site of their employment which was an oil well some distance from tliecity of Texarkana. The employees at the time of the injury were en route to work and, construing the evidence in the most favorable light for these claimants, it may he conceded that they were following the most direct route to the site of their employment. <-Wiatiu<>' from this route only when necessary to pick up various employees at their homes. “The general rule is that injuries occurring to employees en route to or from their employment and outside the premises of their employer are not compensable under the law. Claimants argue, however, that this case falls within an exception to that general rule in that they were being transported to their work by their employer. This Commission has always recognized that injuries received while Joeing transported to and from one’s employment by the employer are compensable and we feel that such is a valid and legal exception to the general rule regarding the coming and going of employees. Claimants here, however, have failed to show that their transportation was being furnished by their employer. It may be that Mr. Beasley, the drilling foreman, considered the fact that Hershel Williams owned an automobile as'a factor in his decision to employ him, hut he did not show that the employer paid for this transportation in any way. Furthermore no showing was made, although it was attempted, that it was customary in the oil drilling industry to furnish transportation to the employees. The one witness who testified regarding this custom remembered that oil drilling companies formerly furnished such transportation, hut at that time the employees had to pay nothing for it. The witness ‘understood’ that later the> companies had abandoned this practice. The evidence here does show that these em ployees had entered into a ‘car pool’ among themselves, an arrangement which was common during the war when there was a shortage of gasoline and automobile tires. Proof presented is that they themselves provided the transportation due to the fact that Williams owned an automobile and the other employees, including Mr. Beasley the foreman, were to pay a small sum each week ■for the transportation expenses. The fact that Mr. Beasley was a foreman and had himself entered into this car pool cannot impute tlA whole responsibility of the transportation to this employer. “Roy Beasley, the driller, and Gr. H. Saeler, both testified that O’Meara did not agree to furnish transportation. Mr. Saeler further testified that O ’Meara had never furnished transportation — that it was up to the driller and his crew to get to the job. The men’s pay began when they reached the job and ended when they left the job. No extra pay was given the driver of the car transporting the men, and the driller had no authority to obligate O’Meara for transportation.” One of the exceptions to the general rule that an employee is not in the course of his employment while going to, or returning from, work is that arising where the transportation to and from the place of employment is furnished by the employer as an incident of the employment. This exception was recognized in Hunter v. Summerville, 205 Ark. 463, 169 S. W. 2d 579, where a timber contractor acquiesced in the custom of employees riding to and from the log woods on trucks of a subcontractor whose compensation insurance was paid by the contractor. In Blankenship Logging Co. v. Brown, 212 Ark. 871, 208 S. W. 2d 778, an award of compensation was upheld where there was substantial evidence to establish at least an implied agreement by the employer to furnish transportation to the injured employee when the vehicle was supplied by the employer for the mutual benefit of himself and the workmen. In Stroud v. Gurdon Lumber Co., 206 Ark. 490, 177 S. W. 2d 181, and Cerrato v. McGeorge Contracting Co., 206 Ark. 1045, 178 S. W. 2d 247, the employer was held not responsible for an injury sustained by an employee in traveling to and from tbe place of work in tbe absence of an express or implied agreement on the part of tbe employer to furnish sucb transportation. Tbe distinction between these cases and tbe case of Hunter v. Summerville, supra, was pointed out in tbe Cerrato case as follows: “In tbe Hunter case, as is pointed out in tbe opinion in tbe Stroud case, tbe employer bad agreed to furnish transportation to tbe employee to and from bis work, and tbe injury was sustained while tbe transportation was being provided. But here, as in tbe Stroud case, there was no sucb agreement. Cerrato furnished bis own transportation to and from bis work. He was riding in tbe truck of a fellow-employee, who was furnishing transportation for both, upon a public highway, four hours after be bad ceased working for bis employer, at a distance of about three and one-half miles from tbe place of bis employment, and was killed by coming in contact with a live wire lying across a public road, which was as much a peril to other users of tbe road as it was to Cerrato and bis companions. “In the Stroud case, we quoted, with approval, from an opinion of tbe Supreme Court of Oklahoma in Indian Territory Illuminating Oil Co. v. Gore, 152 Okla. 269, 4 Pac. 2d 690, the statement that ‘In tbe absence of an agreement, express or implied, to transport an employee to tbe place of work, tbe employer is not responsible for an injury sustained by tbe employee in traveling to tbe place of work, ’ and tbe rule would not be different if tbe employee were traveling from bis place of work, as was Cerrato.” We have carefully reviewed tbe evidence before tbe commission. Tbe findings of tbe commission are supported by substantial, if not undisputed, evidence to tbe effect that there was neither an express nor implied agreement on tbe part of tbe employer, O ’Meara, to furnish transportation to members of tbe drilling crew. While there was some evidence that tbe driller hired Williams because be bad a car, there is an absence of proof that either the driller or any other agent of the employer agreed to pay for transportation or that the employer ever followed a custom'of doing so. We conclude that the evidence supports the findings of fact and conclusions of law made by the commission, and that the circuit court erred in failing to so hold. The judgment is, therefore, reversed and the cause remanded with directions to affirm the findings and order of the Workmen’s Compensation Commission.

Minor W. Millwee, Justice. Appellant is a farmers mutual fire insurance company organized under Ark. Stats. (1947), § 66-1501. On March 19, 1947, the company issued its policjr to appellee, Mrs. L. E. - Kelley, insuring her rural home and household furnishings against loss by fire and windstorm in the total sum of $1,500. The insurance was for a period of three years at a stipulated single premium of $65.63. Appellee suffered a total loss of the property by fire on March 7, 1948. Her demand for payment was refused and this suit followed. Appellant denied liability on the ground that a note given by appellee in part payment of the premium ivas past due and unpaid at the time of the loss; and that under the terms of the note, policy and by-laws of appellant the policy had, therefore, lapsed and been .duly cancelled prior to the fire. This appeal follows a verdict and judgment for appellee in the sum of $1,500. The sole contention for reversal is that the trial court erred in refusing appellant’s request for a directed verdict because the policy was not in force at the time of the fire. Appellant says it is undisputed that a second note given for the premium was past due and unpaid at the time of the loss. When appellee made written application for insurance on March 19, 1947, she executed two notes for the premium of $65.63. The first note for $26.25 became due and was promptly paid on or about April 1, 1947. The second note was for $39.38 which represented the balance of the premium. The due date of this note is a sharply disputed question of fact. A copy of the note was introduced in evidence and the original exhibited to the jury. The space in the body of the note providing for time of payment was left blank. In the lower left hand corner of the note opposite and below appellee’s signature appears the notation "Due 10-1-47.” Appellee testified that this due date was not on the note when she signed it; that the agent who took her application and to whom she paid the first note stated that the second note would be due in twelve months and that the $26.25 payment represented the amount due for the first year; that she received no notice of delinquency, request for payment or notice of cancellation of the pol-kw prior to the date of the fire; that the agent stopped by her place one time during the Christmas holiday season in 1947, but made no demand for payment or suggestion that the note was due. Appellee’s testimony was contradicted by that of the agent and officers of the company. The agent stated that he wrote the date "10-1-47” when the note was signed, that after the note was due he talked with appellee several times and at his suggestion the compairy extended the time of payment to Januaiy 1, 1948. On cross-examination he stated that he informed appellee at the time the note was executed that $26.25 would be the amount of a premium on a one year contract, but that this amount also represented the down payment on the three year contract which she chose; that he also advised her that she could save six months premium under the three year contract if she "fulfilled her obli gation” when the note became due. He testified: “I told her very clearly that the payment should be made on a certain date. Also, I left an envelope and told her if she didn’t fulfill her obligation I would make a special trip to her home and change the policy to one year contract so the amount she had paid would take care of her for one year.” He later stated that this was not done because appellee did not notify him that she desired to change the policy. Several dates were stamped or written on the face of the note, the first being September 12, 1947, and the last, January 15, 1948. The office manager of the company stated that on these dates letters or notices were mailed to appellee calling her attention to the fact that the note would be due on a certain date or was past due. He stated that the notation “January 15, 1948” advised her that the note was past due and that the policy had become inoperative and suspended. No copies of such letters or notices were introduced by appellant, but blank forms ordinarily used in such cases were introduced. Appellee denied receiving any communication from the company. The secretary of the company testified that under company regulations the premium on a three year policy must be paid within the first six months of the life of the policy and that a policy could not be issued on an application providing a longer time of payment. However, the note in question was not payable until six months and 11 days after issuance of the policy if appellant’s contention as to the due date is accepted. The evidence does not disclose whether an endorsement appearing on the application showing the due date of the note to be 10-1-47 was placed there before or after appellee signed the application. Both the note and the policy contained the usual provision that the insurance should cease if the note became delinquent. Appellant cites several cases in which we have upheld the provision of a premium note that the policy should forfeit upon non-payment of the note when due. Some of these cases are Patterson v. Equitable Life Assurance Society, 112 Ark. 171, 165 S. W. 454; Home Life & Accident Company v. Haskins, 156 Ark. 77, 245 S. W. 181; and Home Life & Accident Co. v. Scheuer, 162 Ark. 600, 258 S. W. 648. The trial court recognized this principle in his instructions to the jury. In appellant’s requested instruction No. 4 the jury was told to return a verdict for appellant if the note was past due and unpaid at the time of the loss. When the evidence is considered in the light most favorable to appellee, we conclude that it was sufficient to warrant the jury’s finding that the note in question was not delinquent at the time of the fire. It follows that the trial court did not err in refusing to direct a verdict for appellant. Affirmed.

George Rose Smith, J. On March 24,1930, the Missouri State Life Insurance Company obtained a foreclosure decree that resulted in a deficiency judgment against the appellees. The judgment was assigned to the appellant in 1933. The question now is whether it has been kept in force by revivorship proceedings. The facts are stipulated. A writ of scire facias was issued and served in June, 1939 — less than ten years after the entry of the judgment. The right to revive was not contested, but the order of revivor was not entered until November 23, 1942. Thereafter the judgment was again revived in 1945, without resistance by the appellees. In 1948 the appellees filed their complaint under Ark. Stats. (1947), § 29-506, seeking to vacate the two judgments of revivor. The chancellor held that the court had been without power to revive the original judgment more than ten years after its rendition. Upon this premise he vacated both judgments of revivor; the judgment creditor appeals. Among other defenses the appellant asserted: (a) that if the writ of scire facias is issued within the ten-year period the order of revivor may be entered after its expiration; and (&) that the 1945 judgment is res judicata as to any defenses that might then have been interposed. Both contentions are well taken. I. The ten-year period of limitation is fixed by Ark. Stats. (1947), § 29-601, reading in part: “No scire facias to revive a judgment shall be issued but within ten years from the date of the rendition of the judgment . . . ” The statute refers only to the issuance of the writ, not to the entry of the order of revivor. By its terms it grants the full period of ten years within which the writ may issue. To require that the judgment also be taken within ten years would have the effect of reducing the time allowed for issuance of the writ, since provision is made for the filing of an answer and for a hearing upon the question of revivor. Unless a statute of limitation expressly provides otherwise, its operation is ordinarily tolled by tbe commencement of an action rather than by its prosecution to judgment. The identical question has arisen in several jurisdictions having statutes similar'to ours, in which reference is made to the issuance of the writ rather than to the entry of the order. These cases uniformly hold that a writ issued within time supports an order entered after the time has expired. Well reasoned decisions include Lafayette County v. Wonderly, 92 Fed. 313 (C.C.A.8); Luzerne Nat. Bank v. Gosart, 322 Pa. 446, 185 Atl. 640; and Thomas v. Towns, 66 Ga. 78. In Georgia the time for issuance of the writ was three years, and in the case cited the court said: “To hold that a judgment of revival must be had within the period of three years . . . would, we think, be a construction unprecedented in all limitation laws. ’ ’ II. Our decision in Hinton v. Willard, ante, p. 204, 220 S. W. 2d 423, decided May 2, 1949, completely supports the alternative defense of res judicata. There we pointed out that a judgment of revivor is as effective an adjudication as any other judgment and that in a scire facias proceeding the judgment debtor must plead all matters of defense that he has. Even if there were merit in the appellees’ attack upon the earlier judgments, the defense should have been asserted in the 1945 proceeding. Hence the appellant must prevail on both grounds. Reversed and remanded.

Minor W. Millwee, Justice. This is a suit by plaintiff, Lydia Green, against her son-in-law and daughter, Chester A. Whitney and Ruth Whitney, to set aside a deed and vest title in plaintiff to certain property located at 804 Izard Street in the City of Little Rock. The trial court declined to grant the relief sought, but instead found that a trust arose in favor of plaintiff in the amount of $3,059.89 expended by her in obtaining execution of the deed to defendants and improving the property. The court also declared an equitable lien upon the property to secure payment of the judgment. Plaintiff, Lydia Green, has appealed and defendant, Chester A. Whitney, has cross-appealed. The decree contains findings of fact as follows: “The plaintiff, Lydia Green, is a colored woman, eighty years of age, and defendants are son-in-law and daughter of the plaintiff. “In March of 1944 the plaintiff, Lydia Green entered into an agreement with Annie Johnson, the owner of property described as Lot 11, Block 248, Original City of Little Rock, Pulaski County, Arkansas, whereby the said Annie Johnson was to convey this property to the plaintiff, Lydia Green, for the following considerations, to-wit: “The sum of One Dollar ($1.00) in hand paid by Lydia Green, and the covenants and agreements on the part of Lydia Green to maintain Annie Johnson on the premises throughout the lifetime of Annie Johnson in a comfortable condition; the further condition that Lydia Green immediately provide for Annie Johnson reading-glasses, a set of false teeth and the proper clothing for her comfortable maintenance; the further consideration that Lydia Green would pay to Luvenia Smith the sum of $429.47 as reimbursement to the said Luvenia Smith of all taxes paid by her upon the above-described property; the further consideration that Lydia Green would pay the sum of $100 to C. P. Jones. “It was the understanding between all parties that the defendants in this cause, Chester A. Whitney and Ruth Whitney, son-in-law and daughter of the plaintiff, Lydia Green, would live on the premises with plaintiff Lydia Green and Annie Johnson. “On the 9th day of March, 1944, the defendant, Chester A. Whitney, wrote to the plaintiff, Lydia Green, requesting that the property be put in his name so that he might ‘remain the head of the family’, agreeing therein to care and provide for Annie Johnson and Lydia Green for the rest of their lives. “On the 13th day of March, 1944, the said Annie Johnson executed a warranty deed to the above-described property to the defendants, Chester A. Whitney and Ruth Whitney, who thereby covenanted to perform the conditions set forth above, and, in addition, covenanted to maintain Lydia Green on the premises in a comfortable condition throughout her life. “The plaintiff, Lydia Green, on the transfer of the property, as consideration for the deed, paid the sum of $429.47 to Luvenia Smith; paid the sum of $100 to C. P. Jones; paid the sum of $50 for false teeth for Annie Johnson, and between March 13, 1944, and June 15,1944, expended a total of $2,115.42 for alterations and improvements to the property and $365 in furniture for the home. “After the alterations and improvements were completed, the said Annie Johnson, Lydia Green, Chester A. Whitney and Ruth Whitney moved into the above-described premises and lived there together until August 8, 1946, on which date Annie Johnson died. “The plaintiff, Lydia Green, continued to live with defendants until the 2nd day of November, 1947, at which time she was forced to leave the home, seek shelter elsewhere and become a subject of charity because of the fact that the defendant, Chester A. Whitney, neglected and abused the plaintiff, subjected her to indignities, and such food, shelter and clothing and other physical necessities as were provided, were provided under con ditions which made it impossible for her to use and enjoy those necessities in ease and peace, and that her condition was thereby rendered intolerable. “Since this cause of action was commenced, the defendant, Ruth Whitney, has filed suit for divorce against the defendant, Chester A. Whitney.” At the time of the execution of the deed in question, Lydia Green was living with defendants on Cross Street and other relatives had contributed to her support. The defendants were married in 1921, but were later divorced and remarried in 1941. Annie Johnson, who was approximately 100 years of age, owned and resided on the property in controversy. She was in debt and unable to provide for herself and the house was in need of extensive repairs. In December, 1943, and the early part of 1944, Lydia Green received a total of $7,000 from the sale of oil leases on land in Mississippi in which she presumably had some interest. A proposed agreement was reached whereby Annie Johnson would deed her property to Lydia Green upon the latter’s agreement to make the payments required by Annie Johnson and support her the rest of her life. A deed to this effect was drafted, but was not executed because of the objections of the defendant, Chester Whitney. The letter of March 9, 1944, from the defendant, Chester Whitney, to Lydia Green, who was at the time residing with the defendants, is as follows: “Dear Sis Lydia Green, I accept this opportunity to thank you in Jesus’ name for your intention of buying us a home, but since this setup isn’t based upon righteousness I wish it to be droped, and you keep the money in the bank and I will go on providing for you and Ruth and just as I am doing, that I may remain the head of my house and wife of which Ephesians 5 Chapter and 23 Yerse gives me. Or if you have in mind to give me something, I will get the place and deed it in my and Ruth’s name and borrow an additional sum from you and give notes on the barber shop till paid back and sign a contract to take care of you and Sis Johnson as long as we live. So there isn’t anything rong in this proposal. Whatever be done will benefit all of ns and I remain the head of my family just as I am now and you all haven’t suffered. My reason for writing is to avoid unpleasantness whenever i try to explain anything. So be sweet and prarful for us that we always be together till the Lord separates us by death if that’s his will. Tour son-in-law, C. A. Whitney.” When Annie Johnson executed the deed to defendants four days later, it was understood by all the parties that Lydia Green’s money would be used to make the payments imposed upon the defendants by the terms of the deed and that she would also pay the expense of repairing the house. Annie Johnson resided with the defendants and Lydia Green on Cross Street after the deed was executed and until the repairs were completed in June, 1944, when the four moved to the property in controversy. After the repairs had been completed and paid for by Lydia Green, she learned that her title to the mineral rights in the Mississippi land had failed and she was required to return the balance of the $7,000 remaining after such expenditures. It is the contention of plaintiff that the trial court erred in refusing to set aside the deed and vest title to the property in her. Plaintiff insists that defendants became constructive trustees of the property for her benefit; and that, since the property is*now worth between $6,000 and $7,000, the action of the court has resulted in defendants’ realization of a profit by their breach of contract and obligation to plaintiff. The defendant, Chester A. Whitney, insists that no trust was created in the favor of plaintiff; that the evidence does not sustain the chancellor’s finding that defendants breached their contract to support plaintiff; that the judgment for plaintiff was contrary to the pleadings; and that plaintiff’s only remedy is an action at law for damages for breach of a contract under which she was merely a third party beneficiary. It is well settled in this state that the grantor is entitled to cancellation of a deed based on the grantee’s promise to maintain and support the grantor upon the grantee’s failure or refusal to .carry out the promise. It is also the rule that where such continuing promise to support is broken, equity will presume the transfer to have been fraudulently induced and obtained in the first place. The rule is stated in the leading case of Edwards v. Locke, 134 Ark. 80, 203 S. W. 286, as follows: “This court is committed to the doctrine, which is supported by the great weight of authority, as announced in 4 R. C. L. p. 509, § 22, that: ‘Where a grantor conveys land, and the consideration is an agreement by the grantee to support, maintain, and care for the grantor during the remainder of her or his natural life, and the grantee neglects or refuses to comply with the contract, that the grantor may, in equity, have a decree rescinding the contract and setting aside the deed and reinvesting the grantor with the title to the real estate.’ Salyers v. Smith, 67 Ark. 526-531, 55 S. W. 936; Priest v. Murphy, 103 Ark. 464, 149 S. W. 98; Whittaker v. Trammel, 86 Ark. 251, 110 S. W. 1046. “The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract and, therefore, vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to regardless of any remedy that the grantor may have had also at law.” (Citing cases). In most of our cases the suit is between the grantor and grantee and cancellation furnishes full and appropriate relief by reinvesting title to the property in the grantor. The case at bar presents a different factual situation in that plaintiff is not named as a grantor in the deed but merely as a beneficiary. Defendant argues that plaintiff cannot, therefore, demand cancellation because if such relief is granted the title would reinvest in the heirs of the grantor, Annie Johnson. Plaintiff contends that under the doctrine of presumed fraud as announced in Edwards v, Locke, supra, defendants are in the same position in equity as though they had wrongfully converted plaintiff’s money and used it to purchase the property and should he deemed constructive trustees of the property for plaintiff. Plaintiff relies on the general rule as stated in Humphreys v. Butler, 51 Ark. 351, 11 S. W. 479, and many other cases, as follows: “In general, whenever the legal title to property, real or personal, has been obtained through actual fraud, misrepresentations, concealments or through undue influence, duress, taking advantage of one’s necessities or weakness, or through any other similar means or under any other similar circumstances, which render it unconscientious for the holder of the legal title to retain and enjoy the beneficial interest, equity impresses a constructive trust on the property thus acquired in favor of the one who is truly and equitably entitled to the same, although he may never perhaps have had any legal estate therein; and a court of equity has. jurisdiction to reach the property either in the hands of the original wrong-doer, or in the hands of any subsequent holder, until a purchaser of it in good faith and without notice acquires a higher right and takes the property relieved from the trust. The forms and varieties of these trusts, which are termed ex maleficio or ex delicto, are practically without limit. The principle is applied wherever it is necessary, for the obtaining of complete justice, although the law may also give the remedy of damages against the wrong-doer.” In the case of Goodwin v. Tyson, 167 Ark. 396, 268 S. W. 15, this court recognized the right of beneficiaries other than the grantor to maintain a suit for cancellation of a deed after the death of the grantor. In that case a father executed a deed to his only son in consideration of the latter’s promise to support the grantor and his wife during their lives and three minor sisters of the grantee during the term of their minority. The court there said: “A fair interpretation of the deed in question is that the beneficiaries named in the deed were not only to be furnished food and shelter and clothing and other physical necessities, but these were not to be provided under condition which made it impossible for them to use and enjoy those necessities in ease and peace, as was said in Edwards v. Locke, supra, and it would not have been a compliance with the condition of the deed to have furnished these necessities but to have done so under circumstances which rendered the condition of the beneficiaries intolerable.” While the right of the beneficiaries to the remedy by cancellation was recognized, they were denied relief because the evidence did not show a failure of the son to render support as required by the deed. This court is also committed to the rule that where a promise is made to one party upon a sufficient consideration for the benefit of another, the beneficiary may sue the promisor for a breach of the promise. This general principle has been consistently recognized by this court, but our decisions are not in complete harmony as to certain limitations that have been recognized in its application. Mansfield Lbr. Co. v. National Surety Co., 176 Ark. 1035, 5 S. W. 2d 294. See, also, Dickinson v. McCoppin, 121 Ark. 414, 181 S. W. 151 and Freer v. J. G. Putman Funeral Home, Inc., 195 Ark. 307, 111 S. W. 2d 463, where it was held that the obligation of the promisee to the third person must be one that existed at the time of the making of the contract, or one which grew out of the contract itself. When all the facts and circumstances in connection with the execution of the deed are considered in the instant case, it is clear that Lydia Green was more than a mere third party beneficiary. It is undisputed that Annie Johnson, who furnished the badly run-down property, was in debt and unable to care for herself and that plaintiff furnished the money to discharge the debts and improve the property in order to make it comfortably habitable for all the parties. The amount of money furnished by plaintiff was equal to, if in fact it did not exceed, the value of the property furnished by Annie Johnson in 1944. It was plaintiff’s money that made the entire transaction possible and in the eyes of equity she became equally interested with Annie Johnson in the property conveyed to defendants. In these circumstances plaintiff should be treated as a joint owner of the property with Annie Johnson and accorded the same rights and remedies which were available to the latter as grantor in the deed to defendants. If defendants have breached their contract to maintain and support plaintiff, she is, therefore, entitled to have the deed cancelled and the title to the property vested in her. There is a decided conflict in the testimony as to whether plaintiff was forced to leave the home on account of intolerable treatment by the defendant, Chester A. Whitney. In urging the insufficiency of the evidence to support the chancellor’s finding on this issue, defendant relies on the case of Fisher v. Sellers, 214 Ark. 635, 217 S. W. 2d 331, where we said that “if the grantor voluntarily leaves the home, or refuses the proffered and adequate support and maintenance, without the grantee being at fault, then, during the time the grantor renders performance impossible, he cannot claim that the grantee is violating the contract.” It was there held that there was no corroboration of the grantor’s testimony concerning the alleged mistreatment by the grantee (daughter). In the case at bar plaintiff had been ill with diabetes and other ailments for several years. It is true that she left the home in November, 1947, ostensibly for an overnight visit with a friend where she apparently preferred to remain and live on charity rather than return to the household of defendants. According to the testimony of plaintiff and her daughter, the son-in-law frequently cursed and abused both in a manner such as to render it impossible for plaintiff to live in the home in peace and comfort. For more than a year prior to her departure, plaintiff made frequent complaints to her attorney of the abusive treatment. She also made similar complaints to her doctor and the friend with whom she made her new home. There was also evidence that Whitney refused to furnish medical service to plaintiff. This evidence was stoutly denied by Whitney and several witnesses in his behalf. We think it is clear from a consideration of all the evidence that plaintiff’s condition was rendered intolerable within the meaning of our cases, and it is immaterial that this condition may have resulted in part from domestic difficulties between the defendants. We conclude that the able chancellor erred in refusing to grant the relief sought by plaintiff. The decree is accordingly reversed on direct appeal and the cause remanded with directions to cancel the deed to defendants and vest title to the property in the plaintiff, Lydia Green.

George Rose Smith, J. Petitioner is the mother of a four-month-old boy whose custody is involved in this proceeding. On March 18, when the baby was less than a month old, petitioner signed and verified a pleading by which she entered her appearance in the probate court and agreed to the appointment of a guardian for the child, the guardian to have power to consent to the child’s adoption. Ark. Stats. (1947), §§ 56-120-and 45-210— 45-217. On May 3 the respondent, a supervisor of the Child Welfare Division, filed an ex parte petition in the Pulaski Probate Court and was appointed guardian. Later in the same day petitioner applied to the chancery court for a writ of habeas corpus, alleging that re spondent was illegally detaining the child. In her answer Mrs. Ratcliffe relied upon her letters of guardianship to justify her custody. At a hearing in the chancery court the probate petition and order were introduced in evidence. It was stipulated that petitioner’s verified entry of appearance had been exhibited to the probate court but had not been made part of the record. Petitioner offered to prove that she had revoked this instrument before the guardian was appointed, while the respondent offered to show that there had been no revocation. The chancellor took the view that the controversy should be presented to the probate court and accordingly dismissed the case. Petitioner brings it to us by certiorari, the established method by which we review habeas corpus proceedings. Johnston v. Lowery, 181 Ark. 284, 25 S. W. 2d 436. Petitioner’s basic premise is that the ex parte proceeding in the probate court was void because she was not made a party. She argues that the chancellor should have disregarded the probate court order and cites our cases holding that upon collateral attack the recitals of a judgment cannot be impeached by extrinsic evidence. In those cases, however, the judgments under attack were prima facie valid, the extrinsic evidence being offered to prove invalidity. Here the judgment is apparently void for want of personal jurisdiction, and petitioner’s entry of appearance is relied upon to supply this defect. If the rule advanced by petitioner applies to this situation, the rather novel consequence is that the probate court order is void upon collateral attack and yet may withstand a direct attack — the converse of the usual condition. We find it unnecessary, however, to decide this issue, for the decision may rest on a broader ground. The writ of habeas corpus, while a matter of right in the sense that its availability is guaranteed by the Bill of Rights, nevertheless does not issue as a matter of course. It is an extraordinary remedy, to be invoked when no other effective means of relief is at hand. This petitioner has a complete remedy in the probate court. Under our statutes she may file her complaint in that court to set aside tlie order of guardiánsMp. Ark. Stats. (1947), § 29-506. It is suggested that this procedure would not give petitioner immediate custody of her son, but the answer is that the probate court is one of superior jurisdiction and has power under the Civil Code to grant provisional remedies preventing great or irreparable injury to the complainant. Ibid., §§ 27-103, 27-108, and 32-103. The chancellor was therefore right in declining to entertain a controversy that can better be determined by the court in which it arose. • The petition is dismissed, without prejudice to further probate proceedings. Griffin Smith, C. J., not participating.

George Rose Smith, J. Cypress Lake, as meandered by Government surveyors in 1841, was a long narrow body of water that crossed the Northwest Quarter of Section 29, Township 16 South, Bange 25 West, in a northwesterly direction, isolating a triangle of 8.78 acres in the northeast corner of the quarter. This case involves the title to the east half of the segment of lake bed lying in the quarter section. The appellees, Smith and Mrs. Blocker, who own land on the west side of the lake, brought suit to quiet their title to the disputed strip. Tbprc were originally two classes of defendants (a)' Appellants Johnson and wife, who own the land on the east side of the lake and assert title as riparian owners, and (b) the State and its oil and gas lessees, who asserted ownership on the theory that the lake is navigable. At the first hearing these appellants and appellees successfully joined forces against the State claimants and obtained a decree finding that Cypress Lake is a non-navigable body of water. The decree was entered without prejudice to the present controversy, which was reserved for determination at a later trial. The State and its lessees did not appeal from the first decree and have passed ont of the case. At the second hearing the question was that of ownership as between the appellants and the appellees. This dispute has its roots in a number of past transactions. The appellees bought the farm on the west side of the lake in 1919, their deed describing this particular tract as all that part of the quarter section lying west of the lake. Appellee Smith testified that there was then a fence along the east bank of the lake, which his grantor pointed ont as the eastern boundary. There was testimony that the lake bed was then practically dry and that appellees’ vendor had used it as a pasture. In 1924 appellees bought the farm east of the lake, now owned by appellants, the deed describing this tract as all that part of the quarter section lying east of the lake. Appellees mortgaged this second farm to Cantley, as receiver of a land bank. In 1935 Cantley foreclosed his mortgage and bought in the property. Thus at that time appellees had record title to the land lying west of the lake and Cantley to that lying east of it. Of course the presumption would be that each riparian title extended to the center of the lake. Gill v. Hedgecock, 207 Ark. 1079, 184 S. W. 2d 262. Appellees rely mainly upon an oral agreement between them and Cantley, by which an agreed boundary was fixed in the latter part of 1939. According to the testimony T. H. Albers, as Cantley’s agent, employed a surveyor to run the boundary line between the. two farms. The surveyor fixed the line along the east bank of the lake bed and prepared a plat in accordance with his survey. Appellee Smith, who testified that he was acting for himself and his cotenant, was present when the survey was made and says in effect that he and Albers agreed upon the line. Soon after the survey was made Cantley forwarded to Smith a quitclaim deed by which Smith was to disclaim any interest in the farm east of the lake. The deed recited that a metes and bounds description had not been definitely determined for that part of the quarter section lying “north” of the lake — this being the same land as that east of the lake, as the tract is both north and east of the bed. The deed also recited that Smith and Cantley agreed that the legal and permanent description should be as follows — after which there was inserted a metes and bounds description that followed the surveyed line along the east bank. Smith executed the deed, which was filed for record by Cantley in December, 1939. Later a copy of the surveyor’s plat was attached and the deed was again recorded in January, 1940. It is conceded that the deed was shown in appellants’ abstract of title when they bought their farm. Cantley sold the land east of the lake to appellants in 1943, but instead of using the surveyor’s description he described the tract as all that part of the quarter section lying east of the lake. Appellants contend that as riparian owners they have title to the center line of the lake bed. Appellees base their claim principally upon the agreed boundary line. The chancellor found that the appellees own the entire lake bed. The testimony concerning the oral agreement is very persuasive. Both Smith and the surveyor testified that the purpose of the survey was to establish the boundary line. Appellants question the proof of Albers’ authority to act for Cantley, but we think that there was sufficient evidence apart from Albers’ declarations. Cantley paid the surveyor by check and also sent his check to Smith for the consideration recited in the quitclaim deed. That deed was prepared by Cantley, and it recognized the line determined by the surveyor. Later Cantley executed an oil and gas lease containing this same metes and bounds description. These circumstances connect Cantley so closely with the transaction that it may fairly be inferred that Albers was in fact his agent in having the survey made. Appellants also insist that certain elements of a valid boundary line agreement are wanting. The rule is that such an agreement will be sustained when there is uncertainty as to the true boundary and when the agreement is followed by possession according to its terms. Peebles v. McDonald, 208 Ark. 834, 188 S. W. 2d 289. Here the evidence as to the existence of uncertainty and as to possession in conformity to the agreement .is in such conflict that it would be a difficult task to determine where the preponderance lies. A decision of that question, however, is not necessary to the disposition of the case. We cannot be certain that all pertinent evidence considered by the chancellor is before us. The decree recites that the cause was heard upon the oral evidence taken at the first hearing as well as that heard at the second trial. The testimony adduced at the earlier hearing is not in the record here. Unless we can say that it could not have any bearing upon the issues now presented, we must assume in fairness to the chancellor and to the appellees that the omitted evidence supported the decree. At the first trial the issue was navigability of the lake. Several allegations in the complaint are relevant both to that issue and to the situation existing when the oral boundary agreement was made. It was stated in the complaint that appellees have had adverse possession of the property for twenty-eight years, from which it might follow that the boundary line has become uncertain. It was alleged that the lake bed has been in cultivation; that the meandered bank line has been obliterated by deposits of sediment; that the lake was drained in 1918 and became dry land; and that it has no usefulness for navigation purposes. According to the evidence at the second hearing some of these allegations are exaggerated, to say the least; but it will be remembered that appellants and appellees made common cause against the State claimants at the first trial. It is safe to assume that they made the strongest possible showing of non-navigability, and it would certainly have been helpful for them to prove that the lake bed had actually been cultivated for many years. Such evidence may easily have shed light also on the issues we are now considering. Even though the first decree was entered without prejudice to the present dispute, it does not follow that the trial court may not have considered the evidence then submitted when he reached his decision at the second hearing. If the appellees expected him to do so, there was no need for them to submit their proof a second time. Since the recitals in the decree indicate that the chancellor did consider the earlier proof, we have no assurance that we have been furnished with all pertinent evidence. We must therefore affirm the decree.

George Rose Smith, J. Appellant, a soldier stationed at Camp Chaffee, brought this uncontested action for divorce about two months after his arrival in Arkansas. He admits that his presence in this State is in obedience to army orders and that he may be transferred to a new station at any time. Appellant formerly lived in South Carolina and intends to marry a South Carolina girl if this suit is successful. The appeal is from a dismissal for want of jurisdiction. We held in Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, that our statutory requirement of three months’ residence means the same thing as domicile and that the intention to remain in this State must be manifested by overt acts. Here the only testimony of this nature is appellant’s statement, “I am figuring on remarrying and making this my home.” This bare assertion, unaccompanied by voluntary conduct, fails to establish the element of permanence that distinguishes domicile from simple presence within the jurisdiction. Affirmed.

George Rose Smith, J. By information the appellant was charged with maliciously, willfully and wantonly killing five hogs and wounding three more, all owned by W. D. Elms. The jury imposed a fine and assessed the amount of damages, the court entering judgment in favor of Elms for treble damages as authorized by statute. Ark. Stats. (1947), §§ 41-403 and 41-405. Appellant contends that his plea of former jeopardy should have been sustained. Soon after the incident appellant was arrested and his case set for trial in the municipal court. A similar charge against another man was tried first, however, and the municipal judge ruled that no offense had been committed. The prosecuting, attorney then entered a nolle prosequi as to this appellant and later filed the present information in the circuit court. These facts do not establish former jeopardy, for the State’s dismissal of a case before the trial has begun does not prevent a subsequent prosecution. Miller on Criminal Law, § 186. On the merits there was conflicting testimony as to whether the killings were malicious, willful or wanton. Elms testified' that the. hogs had never escaped before and were at his barn on Sunday afternoon. This testimony was corroborated by Amos Webb. The animals were missed that night and were killed the next day in appellant’s corn field, about two and a half miles away. Appellant’s testimony was to the effect that the hogs had been in his cornfield for at least ten days, that he was unable to learn the identity of their owner, and that he finally killed two of them in order to prevent further damage to his crop. A deputy sheriff quoted appellant as having said that he was- ready to go down and shoot the rest of them if they were in his field. Wo think the jury, were warranted in believing that the hogs escaped on Sunday and that appellant shot them on the following day without having made a sufficient effort to discover their owner or to remove them by less drastic means. Appellant’s remaining contentions were not so presented to the trial court as to enable us to consider them. The court, without objection by the appellant, instructed the jury in the language of the statute. Appellant offered an instruction based on Ark. Stats. (1947), § 78-1143, but did not save an exception to the court’s refusal to give the requested charge. Finally, it is urged that the trial court proceeded upon the erroneous assumption that appellant was required to fence his cornfield against trespassing animals. To the extent that this question was involved in rulings upon the admissibility of evidence as to the condition of the fences, appellant’s failure to except to the court’s action precludes his raising the issue here. And if he wished to have his theory presented to the jury it was his duty to submit an instruction embodying his view of the law. Lucius v. State, 116 Ark. 260, 170 S. W. 1016. Not having done so, he cannot now question the action of the court below. Affirmed.

George Rose Smith, J. In 1945, for a consideration of $1,000, the appellee conveyed to the appellants, Kyle and Fehr, all the “merchantable” cypress timber on eighty acres of land, together with such smaller timber as might be needed for skid poles. Appellants were given two years in which to remove the timber. The* chancellor found that they cut about 280,000 feet of cypress, which they sawed into lumber and sold for $67 a thousand feet. After the timber had been cut the appellee became dissatisfied with the transaction and brought this suit to cancel the deed and to obtain an accounting. She alleged that Kyle was her employee when the trade was made and that she relied on him to negotiate with D. Goodwin, a prospective buyer of the timber. According to the complaint Kyle falsely reported that Goodwin offered only $750 for the timber, and in reliance upon that report the appellee sold the cypress to the appellants for $1,000 without making an independent investigation of its value. It was averred that the timber was worth far more than that sum and that Kyle had violated his fiduciary duty as an agent in order to obtain it for himself and Fehr, At tlie trial appellee’s proof failed to sustain the allegations of her complaint. The evidence showed that Goodwin had in fact offered only $750 for the cypress and that there was no breach of any fiduciary duty on Kyle’s part. The chancellor found, however, that merchantable timber was intended by the parties to mean timber at least twelve inches in diameter at the stump and that appellants had cut 180,000 feet of smaller logs to which they were not entitled nnder their deed. The appellee was given judgment for $1,195, being the stumpage value of this smaller timber less a set-off conceded by appellee. At the close of the plaintiff’s testimony the appellants moved unsuccessfully for a dismissal and now insist that the appellee had not then made a prima facie case. It is unnecessary to decide this question. We have held that our practice does not recognize a demurrer to the evidence; in equity the defendant must either submit the case upon the plaintiff’s proof or proceed with his own testimony. Kelley v. Northern Ohio Co., 210 Ark. 355, 196 S.W. 2d 235. These appellants chose to present their evidence and thus abandoned their motion to dismiss. It will be seen that the chancellor’s decision did not follow the plaintiff’s theory of the case as set forth in her pleadings. The appellants contend that the proof was not fully developed as to the meaning of the term “merchantable” and that the trial court erred in adopting a theory at variance with the complaint. Doubtless the chancellor treated the pleadings as amended to conform to the proof. If the appellants desired to adduce additional evidence on this issue their remedy was by motion to reopen the case for that purpose. The trial court must first be given >an opportunity to correct asserted errors. By taking an appeal instead of seeking to reopen the case the appellants have elected to submit the cause to us upon the record made below. There was actually a great deal of testimony as to the meaning of “merchantable.” Goodwin’s offer was based on his belief that there were about 100,000 feet of merchantable cypress on the tract, by which he meant trees at least twelve inches thick. Kyle himself was. asked to define merchantable timber and replied, “All I have heard, twelve inches and up is merchantable timber.” Others testified to the same effect. Although some of appellants’ witnesses considered that merchantable meant any timber that could be used — even brush— this would render the word meaningless in the deed. We agree with the chancellor in holding that the term was not used idly, that its purpose was to limit the sale to trees at least twelve inches in diameter. The reference in the deed to smaller timber to be used as skid poles confirms this interpretation. The most- difficult question is whether the evidence supports the chancellor’s computation of damages. The measure of damages for the destruction of young growing trees is the difference in the value of the land with and without the trees. St. L. I. M. & S. Ry. Co. v. Ayres, 67 Ark. 371, 55 S.W. 159; Bradley Lbr. Co. v. Hamilton, 117 Ark. 127, 173 S.W. 848. If that rule is applicable the decree is without supporting evidence, for there was no testimony as to land values. The rule is evidently intended to compensate the landowner when his timber is so immature that its value in the market is materially less than its potential worth through continued growth. Even though these litigants used the word merchantable to mean twelve inch trees, it does not necessarily follow that smaller trees had value only as an investment for the future. The best indication to the contrary lies in the fact that appellants did mill these logs and sold the lumber for a uniform price of $67 a thousand feet. While the timber was not merchantable in the restricted sense in which the parties used that term, it clearly had a market value that was realized by the appellants. There is not much direct proof that appellants actually cut trees under twelve inches at the stump, the testimony being largely confined to diameter at the small end of the logs; but the inference may be drawn that smaller trees were removed. There were estimates that the tract contained about 100,000 feet of merchantable cypress; so' the total of 280,000 feet cut by appellants must have included timber not conveyed by tbe deed. Both sides assail the amount of tbe judgment, appellants contending that it is excessive and tbe appellee urging on cross appeal that it is inadequate. Tbe trial court fixed tbe stumpage value of tbe timber wrongfully cut at $10 a thousand feet. Tbe witnesses’ estimates ranged from a minimum of $4 to a maximum of $15 for merchantable timber. We cannot say that any revision by us, either upward or downward, would be better supported by tbe proof than is tbe figure adopted by tbe chancellor. Affirmed. Griittn Smith, C. J., not participating.

George Rose Smith, J. This is a taxpayer’s action to enjoin the appellee paving district from proceeding with the work for which it was organized. Appellant pleaded a number of defects in the organization of the district, but only one need be discussed. The petition, signed by the owners of two-thirds in value of the real property in the district, recites that the district is to pave “approximately eight miles of streets within the City of Huntsville. ’ ’ The notice published by the city clerk describes the improvement as the paving of all streets within the city; the ordinance states that the district is to pave “all streets possible with asphalt paving.” It is stipulated that there are 8.6 miles of unpaved streets in Huntsville, all of which appellee proposes to pave. We think the petition so indefinite as to be fatal to the validity of the district. While the details of construction may be left to the judgment of the commission ers, it is essential that the petition describe with certainty the improvement proposed. The landowners, not the commissioners or the city council, must decide what street's are to be paved. Less v. Improvement Dist. No. 1 of Hoxie, 130 Ark. 44, 196 S. W. 464. Here the commissioners were directed by the petition to improve approximately eight miles of streets. The district insists that the improvement of 8.6 miles substantially complies with the petition, but that fact does not meet the objection. It could equally well be said that paving exactly eight miles would be substantial compliance, leaving the commissioners to determine which fraction of a mile should remain unpaved. Thus it is clear that this jurisdictional allegation of the petition is not sufficiently definite to point out the improvement proposed. Reversed.

Ed. F. McFaddin, Justice. In this action on account for $113.42 the parties have injected questions of venue, partnership, sales, payment, evidence and trial practice. Fortunately for those who favor short opinions, we are able to bypass some of the questions presented. The facts are fairly simple. In 1945, the appellants, Myers and Arnold, entered into a contract for growing beans, by the terms of which contract (1) Myers was to furnish the bean seed and fertilizer, (2) Arnold was to furnish the land and labor, and (3) the gross sales price received from the harvested bean crop would be divided equally between Myers and Arnold. Myers did furnish some of the fertilizer, but when, on August 26th, Arnold went to him for additional fertilizer, Myers had none on hand; so he ordered 50 sacks of nitrate of soda from the appellees (doing business as the Fort Smith Cotton Oil Company). This purchase amounted to $113.42, and payment thereof is the reason for this action. Myers did not deny that he ordered the fertilizer, and Arnold admitted receiving it. The proof showed that, at Myers’ request, Arnold had-the trucking firm of Stewart & Wofford to obtain the 50 sacks of nitrate from appellees and deliver same to Arnold’s farm, where the nitrate was used on the Myers-Arnold bean crop. When Stewart (of the trucking firm) received the nitrate, it was billed to Arnold. Later Arnold refused to pay the bill, claiming that under the Myers-Arnold contract it was Myers’ duty to furnish the fertilizer. Some time later when the account was presented to Myers he also refused payment, claiming that all items charged by appellees to him had been paid previously. Thereupon appellees filed this action against both Arnold and Myers in the Sebastian Circuit Court to collect the said sum of $113.42. Myers was served with process in Crawford . county and he duly objected to the venue. His plea was overruled. A trial to a jury resulted in a verdict and judgment against both Myers and Arnold for the full amount; and this appeal challenges that judgment. In the course of the trial neither Arnold nor Myers . objected to the action of the court in giving Arnold’s instruction No. 3 as modified (and as found on page 109 of the transcript). It reads: ‘ ‘ Gentlemen of the jury, plaintiffs, E. A. Lillard and others, have sued the defendants, W. D. Arnold and J. W. Myers jointly and as individuals, for the purchase price of 50 sacks of soda, of the value of $113.42, which they allege was sold to the defendants, at the defendants ’ special instance and request, on or about August 27, 1945. “The defendants have denied each and every material allegation in plaintiffs’ complaint and deny that they were jointly liable, but allege that they were sharecroppers engaged in the raising of certain vegetables on the day and date complained of. The defendant, J. W. Myers, admits that, under the terms of his agreement with W. D. Arnold in said share-cropping arrangement, it was his duty to furnish fertilizer to be used in said share-crop operation, and defendant, J. W. Myers, further admits that he purchased from plaintiffs said 50 sacks of soda, as an individual. “These facts constitute the issues in this case, and the Court instructs you that the burden of proof is upon the plaintiffs to prove that the purchase was made by the defendants, on the day and date alleged in the complaint, and has not been paid for; that the joint venture existed between the parties upon said date, and unless the plaintiffs prove each of these facts to your satisfaction, by a preponderance of the testimony, your verdict should be for the defendant, W. D. Arnold.” (italics our own) We have copied this instruction in full for several reasons: First. It was not objected to by either appellant, so it became the unchallenged basis for the jury’s verdict. McFadden v. Richards Med. Co., 170 Ark. 1011, 282 S.W. 353. Second. It was not abstracted by either appellant; and such failure to so abstract this instruction justifies this Court in failing to consider the trial Court’s refusal to give other requested instructions. Harrelson v. Eureka Springs, Elec. Co., 121 Ark. 269, 181 S.W. 922; Morris v. Raymond, 132 Ark. 449, 201 S.W. 116; and see, also, other cases collected on page 146 in the 1948 volume entitled, “Supreme Court Procedure,” published by C. R. Stevenson. Third. This instruction — without objection of appellants — listed the matters that appellees were required to prove, as being: the purchase, failure of payment, and existence of a “joint venture” between the appellants. The evidence, when viewed in the light most favorable to the appellees, is sufficient to support the jury verdict on each of the three points that the plaintiffs were required to prove by the said instruction. Therefore, it is unnecessary for us to decide what relationship existed between Myers and Arnold, or even to 'discuss the various relationships which might be thought to have existed, since neither appellant objected to the instruction which referred to their efforts as a “joint venture.” Such quoted words, in effect, submitted to the jury the question of whether the defendants were joint adventures. See 33 C.J. 841; 48 C.J.S. 801; 30 Am. Juris. 675 and annotation in 138 A.L.R. 968. The verdict found the appellants to be joint adventurers; and joint adventurers may be jointly and severally liable to third parties for the debts of the adventure. See 33 C.J. 871, 48 C.J.S. 873, 30 Am. Juris. 699. Likewise, Myers’ plea as to venue is settled by the jury’s verdict based on the said instruction; because Myers, as a joint adventurer with Arnold, was jointly liable with him, and therefore could be sued in Sebastian county, where Arnold was sued and served with process. See Gribson v. Talley, 206 Ark. 1, 174 S.W. 2d 551. The judgment of the circuit court is in all things . affirmed. Arnold’s requested instruction No. 2 found on page 107 of the transcript is also omitted from all the abstracts.

Griffin Smith, Chief Justice. Lois Cooper was found dead near Gravette the evening of December 23, 1948. Proximity of an old truck near the city garbage dump where the body was found, the peculiar nature of injuries sustained, contradictory statements by Mrs. Cooper’s husband, and unexplained conduct, led to Cooper’s arrest on information filed January 7th. He was convicted of first degree murder and given a life sentence. The motion for a new trial lists twenty-three alleged errors, some of which are not argued. Matters emphasized by the appellant, upon which he relies for reversal, are listed in the first marginal note. First — Sufficiency of the Evidence. — The first public knowledge that Cooper’s truck had been wrecked came when three young men driving south from Sulphur Springs to Gravette heard calls for help a short distance from the city garbage dump. They stopped and saw Cooper prone on the roadside as though in distress. He explained that the pick-up truck he and Mrs. Cooper were using in carting trash from their home had been wrecked; that it had “gone over the bank,” or something to that effect, and that Mrs. Cooper was at the bottom of the ravine dead or in a dying condition. When help arrived it was found that the truck had “nosed over” the embankment and had come to a stop at a sharp incline with the front end embedded in the debris and the rear near enough for one standing on the roadside to reach the bumper with his foot. Waste matter in and against which the car was lodged consisted of discarded tin cans, charred remnants, broken glass, wire, etc. The car differential was so close to the ground that a person could not conveniently see under, while at the front there was no space between car and debris. Mrs. Cooper’s body was 130 feet down the ravine. One witness testified that she was lying on her right side, with the left foot crossed over the right one, resting on an old automobile tire. This witness observed a cut or wound over the right eye. It had turned black, and was not bleeding. Appellant was taken to Hr. Wilford Wilson’s office. While being examined for injuries, he stated that he and Mrs. Cooper had gone to the dump to dispose of trash. With completion of this task appellant got back into the truck as Mrs. Cooper started the engine. The motor was “racing” violently. Appellant said he at first thought Mrs. Cooper was merely joking and that the accelerator had been purposely depressed, but when she exclaimed, “George, do something,” he realized that his wife was alarmed. Just then the machine lunged forward. This witness was not certain that Cooper said he leaned forward for the purpose of turning- off the ignition. But, in any event, the statement was made that before anything could be done the car was in motion, and ‘ ‘ all of a sudden went over. ’ ’ Cooper claimed to have been hurled through the windshield, while his wife was thrown to the left through an open door. Blood was found on the right-hand “jump seat,” and there was blood on the “sill” where the right-hand door “fastens up against it.” A subsequent examination of the opening through which Mrs. Cooper was said to have been hurled disclosed that the door functioned imperfectly and would only open half way. A six-inch maple limb, perhaps ten feet long, was tight against the left fender, one end extending into the rubbish pile. The witness who drove Cooper’s car to Bentonville December 24th testified that the foot-feed functioned normally for an old car and that neither the throttle nor steering mechanism was out of order, and headlights were in good condition. A heavy steel Firestone Company drum used for shipping anti-freeze compound was in the rear of the truck. Its capacity is 54 gallons. A nine-inch hard rubber detachable extension of the old-fashioned gear-shift lever, with a heavy two-inch knob, was described by one state witness as “a convertible gearshift knob and blackjack.” Deputy Sheriff John Black testified that tire-marks left by Cooper’s truck disclosed movements on the evening of December 23d immediately before the car went over the embankment. According- to this witness it was certain that from a point touching some cut-off branches of a plum thicket, the machine proceeded in a southeasterly direction, veering slightly to the left, along an old graveled highway. Skidmarks indicated that the truck had been suddenly started, that it proceeded a distance of 35 or 40 feet, then turned sharply to the left and dropped into the dump, coming to rest when the front end and wheels were impeded by the soft material beneath. Disturbed condition of the gravel for a distance of eight or ten feet convinced the witness that the clutch was suddenly engaged after the engine had been “raced” — supplying, inferentially, a maximum of initial power.' The car windshield had been partially broken by impact from within. Perhaps half of the shatter-proof glass was out and a few pieces were missing Avhen Black gave his testimony. Physical indications were that the break was caused from a blow struck approximately two inches from the bottom of the glass, on the right side. The opening was not, in Black’s opinion, sufficient for a man’s head to go through. Contradictory Statements. — W. F. Burns, County Coroner, testified that on the evening of December 24th he and Mrs. Burns went to the Veterans Hospital to procure Cooper’s permission for having an autopsy. While discussing matters connected with the death, Cooper said that when they drove to the dump he backed the truck to a point selected for unloading. He then got .out of the car and Mrs. Cooper backed it about three feet farther. After disposing of the load Cooper took an old piece of canvas and cleaned the truck bed, then told his wife to “pull up.” At the same time he put an oil drum in the car, then told Lois to pull up again. The accelerator stuck, causing the machine “to race around rather fast. ’ ’ Appellant says he ran and caught the car as it reached the dump, “jumping into it just as it went over.” According to this explanation, the truck went doAvn the hill about 75 feet and stopped suddenly, throwing Cooper through the windshield up to his shoulders, while Lois fell on the driver’s side and went tinder a front wheel. It ran over her neck, and she “gurgled” and didn’t speak again. These representations by Cooper were testified to by Burns and his wife. The former said that he asked Cooper if Lois was insured, and received a negative reply. Burns says he then told Cooper that Clifford Fry, an agent at Gravette, had stated there was a $5,000 policy on Mrs. Cooper’s life, with double indemnity in the event of accident. Cooper’s reply was: “Yes, I remem- . ber that now, but it is a savings account policy. ’ ’ Cooper then said to Burns, “If you will sign the 'death certificate-and get me out of this mess, it will be worth half of the five thousand to you.” The witness said his understanding of the proposal was that the offer related to ■ half of the double indemnity, or $5,000. Mrs. Burns testified that she talked with Cooper while her husband was out of the room typing a form authorizing the autopsy, and that Cooper intimated to her that he would pay $10,000 for the assistance inferentially suggested. Motive Alleged by State. — Other than a small contract covering hospitalization, Mrs. Cooper was insured for $8,500 under three policies, each paying double the principal sum if death should be accidental. All were procured in 1948, the oldest July 20, the next October 21, and the last December 6. If realized upon, appellant as beneficiary would receive $17,000. There was evidence from which the jury could have found that the Coopers were not domestically harmonious, although some witnesses thought they were. At one time the couple had accumulated approximately $6,000, most of it put aside by Mrs. Cooper while her husband was with the armed forces. This, however, had been used, or virtually spent. Cooper operated a radio and electrical repair shop, maintained in a part of the residence he and his wife occupied. They had been married 19 years, and were childless. Supporting the State’s contention that Cooper had grown tired of his wife and had formed other attachments, his connection with a young girl of good family and high scholastic attainment was shown. The girl was eighteen years of age when she testified, but was about seventeen when she met appellant, who soon made “improper advances” which were first repulsed; but, according to the testimony of this witness, Cooper told her “we might later be married.” . She was wholly inexperienced in sexual matters, and was so impressed by the attentions paid her and by Cooper’s personality and seeming devotion that aloofness gave -way to mutual desires, and for several months prior to the tragedy there were no inhibitions. Their first experience consummating intercourse occurred in the basement of Cooper’s home under his radio shop. Mrs. Cooper had gone to Joplin. The girl was persuaded by her lover to believe that Mrs. Cooper —represented by her husband to be without sexual reactions — did not object to the character of conduct she and George were engaging in, although there is no suggestion that Mrs. Cooper had specific information in respect of person or persons her husband was turning to. The young witness related a conversation with Cooper in which he expressed a belief that Lois would not live long — possibly not more than two years, that she “might have a stroke,” and in that case, said the girl, “We were to he married.” Cooper also said that a child conceived as a consequence of his marriage to Lois “had been taken care of” because they were too young to rear it. The witness understood from what Cooper told her that a Doctor R. — had performed an abortion. Cooper maintained a houseboat on Grand Lake in nearby Oklahoma. It was frequently used when he and his wife, the young witness and her mother and father (and sometimes a brother), went for outings. On such occasions Cooper would take individual members of the group for pleasure trips, being particular, at times, to arrange a private trip for the object of his immediate affections. The boat was provided with conveniences for the entertainment each looked forward to. So was a truck, to which and in which access was occasionally had. The trips, whether by boat or truck, were usually made at night. Some time in 1948 Cooper told the witness she might be wearing a ring before school was out. Respecting consequences of the illicit relations, the witness testified that on at least one occasion she expressed apprehension about being pregnant, or fear that pregnancy would result, but was reassured when Cooper told her ‘ it just wouldn’t happen ”; he knew how to take care of that. Finally, the witness said that Cooper'was the first person who had ever made love to her. Question: “And he professed to love you, and that he was going to marry you?” Answer, “Yes.” Cause of Death — Circumstantial Evidence. — While Cooper was in an ambulance, preparatory to entering Dr. Wilford Wilson’s office the night Lois was killed, a superficial examination was made to determine whether appellant had sustained serious injuries. The Doctor, (over objections that any statements made by Cooper while he was being treated were privileged) testified that Cooper complained of intense pains in the right arm and shoulder. There were bloodstains on Cooper’s face, but no cuts, abrasions, or lacerations on either hand. The Doctor “imagined” the facial stains were from a scratch, but because of Cooper’s eligibility to the Veterans Hospital, Dr. Wilson called that institution by telephone and told the physician in charge that a “badly injured man” was being sent over. In describing to Dr. Wilson circumstances attending the so-called “accident,” Cooper said that while at the dump he told his wife to get in the car and start it. When she complied with this direction, the car began “running around.” Lois called for help, and Cooper “hopped in and turned off the switch, and just as this was done the machine went over the dump and a barrel in the car hit [me] in the back and knocked [me] through the windshield.” Dr. Stewart Wilson, connected with the Medical Center at Eogers, made autopsies on Mrs. Cooper’s body at Pyeatte’s Funeral Home in Gravette. There was a deep, ragged laceration on the back of the head, but no blood, in the occipital region. Several minor tears extended out from it, particularly upward. A small amount of blood, tinged with embalming fluid, was found in the hair. Bits of dry leaves and dirt were mixed with the hair, especially in the back. Numerous minor bruises and scratches were “scattered” over the entire body, the more severe being on the anterior surface of the right thigh and about the right eye and mouth. Some dried blood was found in each nostril. In examining the back of the head Dr. Wilson felt “something,” and as he expressed it, “I didn’t quite know what it was, but when I pulled it out it proved to be a large valve stem, caught on the hair, and more or less tangled with it.” The'leaves found in Mrs. Cooper’s hair were not stained with blood. ■ Within the chest there were no indications of injury — no blood, nothing to suggest that the body had been crushed. A bruise under the skin caused by force was the result of [subcutaneous] bleeding. No injury to the abdominal walls had been sustained. In examining the scalp a considerable quantity of clotted blood was found beneath it, without evidence of external bleeding. A small puncture wound through the scalp on the right side of the head was observed, extending inward. “You see,” said Dr. Wilson, “the skull bone is in two layers, with soft spongy [matter] between. This punched-out hole went only through the outer table, producing a slight depression or fracture of the inner table. It caused a hemorrhage of the brain approximately two inches in diameter, although the brain structure proper was not lacerated,” Assuming the injury to have been caused by the valve stem, a test was made to determine whether the wound corresponded with physical proportions of the metal. By rotating the stem in a way demonstrated to the jury, perfect contact was made. Two days later Dr. Wilson reexamined the body, with particular reference to neck, lungs, larynx, trachea, thyroid glands, esophagus, etc., and did not find any evir dence of injury; nor were vertebrae or any other parts of the body injured in a manner to have caused death. In summation of his testimony, Dr. Wilson said: “The wound higher on the head inflicted by the valve.stem .[came] first. There was considerable hemorrhage as a result of that injury, indicating that the girl was very much alive at the time. As far as the laceration on the back- of the head was concerned, .... it occurred either after death or., when she was almost dead. I do not think that [the two] were inflicted at the same time. . . . There were bluish-black discolorations involving both eyelids and the surrounding areas, and over the bridge of the nose. In other words, she just had a black eye. . . . There was considerable swelling over the lips, but not much discoloration.” Distance from the valve stem wonnd to the laceration was approximately four and a half inches. It was the Doctor’s opinion that the lower wound was made by “a dull article, [because] it wasn’t a clean cut. The skin was more broken than cut.” It was Doctor Wilson’s opinion that, primarily, the wound made by the valve stem caused death, and that other injuries were contributory. Appellant’s Testimony. — In explanations relating to the oil drum, Cooper testified that he used a gasoline stove in his home. It required repairing, and the drum in his truck the night Mrs. Cooper was killed had been procured for use as a pressure tank. One end contained two openings, a large “tap” or bung approximately two and a quarter inches in diameter, and a smaller threaded hole diagonally across, and near the rim. The small hole had been closed, but the larger tap had been drilled in such manner that a truck valve stem could be inserted and made leak-proof. By this means a foot- or hand-pump could be attached to the stem and air forced into the drum. The drum, when partially filled with fuel, could thus be put under pressure and fuel fed to the stove through pipe connections. The night Mrs. Cooper lost her life she and appellant put the oil drum in the truck, intending to take it to a filling station for gasoline. Cooper testified that when they arrived at the dump he got out of the car and with the aid of a flashlight gave directions, while Lois backed the machine to a spot where trash was usually unloaded. After getting rid of the load, appellant swept the truck bed, then had Lois pull up about three feet. First, however, he had removed the oil drum, placing it immediately back of the car to hold open the door on the west side. The debris was in sacks, but some sifted through to the car floor. A canvas was used for cleaning purposes. “Then,” said the witness, “I set the barrel back in the car, closed the door, ran around, and jumped in, laid the flashlight behind the seat, and we started up normally. I didn’t notice anything wrong except that as the motor was Med’ it started to race. . . . I thought [Lois] was just playing, (we do that a lot of times: would take off in that [way] and spin the wheels quite a little way); but she made this ‘arc,’ and she called for me to help her. I reached with my foot for the accelerator and grabbed the key. I broke the [key] chain and had to reach a second time to turn off [the ignition] — I believe I got it turned off, but can’t swear to it — because at the same time I got it (I turned the key off) this car went off the embankment with the lights still shining in front. It looked like a black hole down there with no bottom to it. I threw one arm in front of me (indicating) and the car seemed to hit with its front end.” The witness then said he struck his head on the windshield, in consequence of which a tip of the nose was cut off. He added, further, that there were scratches on the side of his face, a split place on the mouth (presumptively caused when a tooth cut it), .and "I cut my neck trying to get my head back through the windshield. It 'bulged out’ where I tried to get my head back, forming a trap. I had to take my hand and push [the glass] to the side to get my head out. ’ ’ The next thing appellant could remember, he was sitting or squatting on the right side of the car. He was outside "feeling his face” until Lois called: — "I then went back through the car. The seats were turned down and this barrel was crossway on top of the back of them. I pushed [the seats] back and pushed the barrel back in the truck and went through to her.” Lois, appellant said, was lying on her face "practically” in front of the left front wheel. The following details were given: "I tried to pick her up, but the left arm was numb. It wouldn’t work — just felt like it belonged to some one else. I put her left arm around my neck and tried to pick her up, and couldn’t. Then I turned her over and put both arms around my neck and told her to hold on. At that time the car came forward and the front of the fender hit me and also seemed to catch her. She [said something like] ‘don’t give up,’ or ‘don’t leave me.’ I tried to extricate her by digging cans out from under her; it seemed like the front wheel had her caught, like it was coming across from the left side. . . . Then [after digging cans] I got a pole that had a piece of wire on it and tried to pry the car up to get her away. . . . The wheel didn’t seem to hurt her. She could talk to me and she actually did, hut those [few] words were all I can recall. Well, [the car wheel] didn’t seem to he on her real tight, . . . but I couldn’t get her loose: then she made a funny noise. I thought it had crushed her or something. It was a gurgling sound in her throat. I took my left hand and wiped off the side of her face and got a whole handful of blood.” Appellant said that after continuing unsuccessfully to give relief, he went “back in the truck” and hunted for the flashlight, but couldn’t find it. Being “half crazy” with fear and apprehension, he tried to start the ear “and drive it off down in there to get it off of her. It wouldn’t start, but the effort seemingly caused the flashlight to fall on the floor board. I grabbed it and went back [to Lois] and found she wasn’t pinned very tight. I got her by the hair of the head, and then, when she did come out from under it, a lot of cans came out with her, and we all fell off right in front of the wheel. There was almost a sheer drop for several feet, and I fell backward and .took her with me. I fell more than once. ’ ’ Cooper, when asked by his attorney regarding these movements, replied that he had. formerly made the statement that the fall was about 70 feet. He had tried twice to pick Lois up, but fell both times. As a result of the first attempt they rolled a little way. After trying a second time, he placed Lois on the ground, straightened up her clothes, then went for help. He claimed that at that time he was unable to stand alone, and had to crawl to the highway. Appellant remained approximately two weeks in Veterans Hospital. Dr. Mulkey testified that he first saw Cooper the night of December 25th. The patient appeared to be in considerable distress and complained of pains in the lower portion of his hack and in the right shoulder. ' There were numerous scratches ' about his face: — “rather deep scratches, bruises and abrasions.” . On his shoulder there were contusions. The back muscles were rather stiff. At times the shoulder was dislocated, but on other occasions it was not. The Doctor thought .this might be accounted for by the position of the patient’s arm when examinations were made. Urinary tests showed traces of .blood cells, indicating a kidney injury, new or old. Notes Taken at the Inquest. — Appellant complains that stenographic notes of his testimony, given at the inquest, were improperly admitted — a matter treated under a different heading in this opinion. According to this evidence, appellant was driving the truck when the dump was reached, and turned to the south; but his wife backed it to a designated position — a distance of perhaps three feet. Appellant didn’t know of any [tree or bush limbs] that were in the way. While standing at or near the back of the truck he threw to the ground, or dropped, the canvas with which the car was cleaned after the trash had been disposed of, then placed the oil drum in the truck in an upright position. The motor was running when Lois “pulled up a little to let me clean out [the bed] ’ ’. Appellant further testified that the truck was not in motion when he got back into it. First, [“originally”] the car started slowly. Cooper-had stated that Lois was a good driver, and he appears to have repeated the statement that she was at the wheel, that the headlights were on, and that when they got to “the hill” the car “couldn’t have been" going very fast [because] it was in low or second gear. ’ ’ A sudden stop, Cooper testified, caused him to “run his head into the windshield.” He didn’t know whether his head actually went through the glass, but it caught him “back of the ears here when I tried to get out.” After the impact Lois told him she was “bad hurt.” Then he said: “I started to pick her up and the ear dropped something like two feet. The upper part of the window caught my shoulder, and up in the front where the bumper and the springs are fastened on and caught on the back of her head — it looked like her neck-m.' and I dragged her back from under that and got her turned over, and the car kept ‘settling’ on me — [came down a second time]. It didn’t make any sudden move; just gradually came on down and caught — I think it was —her clothing, but I couldn’t get her out. It came down over the top part, on her neck, or somewhere along in here,” (indicating). Cooper said he was trying his best to hold the wheel off of his wife’s body, “and when it got on her it didn’t seem to hurt so bad, [for] she could still talk to me;then something ‘gave’ under the car. I was digging the cans out and it smashed my thumb and caught me for a. little while, but I got loose. . . . When it passed down she made gurgling sounds and never did talk to me any more, and I lost my head, I guess. [Then] I got in the. car and tried to drive it off — tried to lift on the back bumper, and it was going on over the dump. I went' around the car and hunted for a pole or anything I could get to pry with, then I got her by the hair of the head and by the coat, and pulled. [But just before that time] the cár wheel was pn her left chest: had rolled over her — no, it came across this way,” (indicating the neck). There was repetition of 'the statement that when Lois was extricated “they both'went to the bottom [of the ravine]”. Appellant “guessed” that an hour — “I .don’t believe it was over that” — elapsed between the time the car went over the embankment “until we landed down the hill.” During that period he frantically dug in the debris with both hands. Touching upon domestic relations, appellant testified that he didn’t remember any .difficulty of a serious nature. On two occasions he had slapped Lois and had once broken her glasses. Regarding the young lady who told of their sexual escapades, appellant admitted that he “worshiped” her, but coupled with this declaration was the assertion that his wife was also fond of the girl, and that the attachment sprang from the circumstance that the child they lost (had it lived) would have been the same age. At another period in his inquest-testimony, appellant said, “I am not hurt: I’m not complaining one bit.” Summation of Factual Status. — When full effect is given the rule that the demeanor of a witness who is heard by a jury may be taken into consideration, that a hesitant, halting, or evasive manner may at times reflect actuality with as much conviction as might be shown by affirmative statements; and when the contradictory nature of appellant’s different explanations is compared with rationale reached by the medical experts, the conclusion, then, is inescapable that there was substantial basis for the verdict. There was positive testimony that death was caused by the head wound, — a wound, as Dr. Wilson said, that corresponded in area and in other respects with the valve stem. The jury was warranted in believing from Cooper’s lack of frankness, and want of consistency with explanations, that the truck was intentionally wrecked. Condition of the skid marks sustains the State’s theory that Cooper, not Lois, started the engine when the truck was at a standstill, accelerated the motor to such an extent that when the clutch was engaged the rear tires “spun” momentarily before gripping the ground, and that during this transaction Cooper steered the machine in a comparatively straight line until speed had been acquired, then pulled sharply to the left as he sought personal safety. The oil drum was- in a position to have fallen against Mrs. Cooper’s head; and in fact it did fall. The “bung” or tap admittedly prepared by appellant for reception of the valve stem was broken, and the stem was in Mrs. Cooper’s hair. A witness who drove by the rubbish dump at a time Cooper claims to have been trying to free his wife testified in a manner supplying negative contradiction of appellant’s assertions. Some witnesses thought Cooper had a “trick” shoulder, and they testified he had been known to dislocate the member to entertain his friends. The fact-finders no doubt (and they had a right to do this) weighed the evidence of witnesses whose testimony was contradictory respecting the condition of appellant’s hands following his alleged endeavor to dig in the debris where broken glass, tin cans, and sharp-edged or abrasive substances would have left their marks. There does not appear to have been a satisfactory answer to the natural inquiry, Why, if Cooper fell twice with his wife, or rolled down a precipitate embankment more than a hundred feet, were her garments, (including hose) virtually intact, and why did Cooper’s wearing apparel show so little evidence of hard usage? If Mrs. Cooper’s death was caused by the valve stem when it was driven into her head as the oil drum fell against her, death was almost instantaneous. This was the Doctor’s conclusion, hence conversations such as appellant testified to were highly improbable. The insurance, with double indemnity if death occurred through accidental means, — policies procured in recent months with annual premiums of more than $500 — and admitted liaison with an immature girl who returned appellant’s affections and had received his assurance that his wife would not live long; his reference to marriage and a wedding ring before school closed; the inferential offer of $5,000 to a coroner if he would assist in lifting the burden of suspicion; appellant’s statement to witnesses who told him the girl friend had admitted their illicit relations, “Well, it’s all over now: I hope you electrocúteme; .... I’m ready to plead guilty”, — these facts and circumstances, when considered as a whole, could not be dismissed as baseless suspicion upon which accusation had been predicated. The record covers more than 1,200 pages. Testimony has only been touched on in this review, each side having produced numerous witnesses. Our conclusions are that facts were sufficient for the jury to find that a motive existed, and that a predetermined course of action was pursued when the truck was driven to the dump. It follows that appellant’s contention that the evidence was insufficient must he overruled. Second — Competency of Juror Gene Thrasher. — On voir dire a list of all witnesses was read and prospective jurors were asked if they had discussed the case with any of them, or if, independently, they had formed or expressed an opinion. All who were accepted gave negative answers. In the motion for a new trial it was charged that Thrasher had talked with the Coroner and had been shown the valve stem found in Mrs. Cooper’s head. Two witnesses, whose testimony at the hearing on appellant’s motion to vacate the verdict was materially weakened on cross-examination, and one who asserted without equivocation that Thrasher had said Cooper was guilty and should be electrocuted, were used by the defendant to show that the juror had fraudulently procured a place on the panel. Although statements made by these witnesses were not countered by the State, their assertions were heard by the same Judge before whom the original examinations were conducted. Thrasher had said he could and would give the defendant the benefit of all reasonable doubts, that he would be guided solely. by evidence adduced at the trial, and that any preconceived ideas would be disregarded. Courts properly examine very carefully into assertions made by witnesses who, after a defendant has been convicted, come forward with what they insist were beliefs expressed in circumstances from which bias or prejudice against' the accused may be inferred. Weeks and months sometimes lapse between trial and what such witnesses say were remarks made at a time when the accused’s status was being discussed. Because of the personal interest' a volunteer may have in serving a defendant, and because the exact words used at a remote period,.or the general import of a conversation, may later be purposely or unintentionally exaggerated, courts are given a broad discretion in determining (a) whether the evidence has been inspired through friendship for the defendant, (b) whether prejudice against the State’s representatives has induced the course of conduct, (c) whether. memory of those testifying is at fault, and (d) whether, if true, the attributed declarations were anything more, than random comment. If the latter, and the proffered juror convinces the Court that, as in the case at bar, he has tried the issues fairly and treated the facts with reasonable consideration, the motion to quash should be denied. Judges are not compelled to accept all testimony as true, even though it is not 'expressly traversed. The. manner in which a witness acts on the stand, his general demeanor, the apparent presence of interest or an effort to serve some one, — these may déprive sworn statements of substantial characteristics; and in the exercise of a sound discretion the Judge who listens to such witnesses must resolve conflicting inferences and act as he conscientiously believes the circumstances warrant. We are not willing, in the instant case, to say that this discretion was abused. \ ' ■ Third — Improper Evidence. — When appellant objected, to the Court’s action in permitting Thelma Whit-low. to verify, and testify from, the stenographic record she had made of appellant’s examination at the inquest^ he asked — in the alternative — that all the ■ record be made available. When overruled he excepted. The Coroner’s hearing was conducted December 29th. At that time Cooper liad not been formally accused, nor is there evidence that the information had been drawn. It was filed January 7th. Under authority of Cole v. State, 59 Ark. 50, 26 S. W. 377, appellant thinks. prejudice resulted when excerpts from his testimony, as distinguished from a transcript of the entire examination, were admitted. But the Cole case does not stand for that proposition. It merely holds that where the purpose was to impeach the defendant, the transcribed testimony was the best evidence — not what a bystander thought he remembered the testimony to have been. Chief Justice Bunn, who wrote the opinion, , said the better practice would be to produce the entire written record. We agree that complete fairness sustains this course. A prejudicial situation might be reflected if appellant had shown by something more convincing than an objection that he was being placed at a disadvantage, in that emphasis was lost or the tenor affected for want of continuity when the Prosecuting Attorney selected questions and answers at random. This is not true here. The Cole case was partially construed in Guardian Life Insurance Company v. Dixon, 152 Ark. 597, 240 S. W. 25, Judge Hart’s statement being that the cited case was a criminal proceeding “in which Cole was present at the Coroner’s inquest and was suspected of being guilty of the homicide. Subsequently he was indicted for the murder of the deceased, and on his trial the court held that it was competent for the State to show what he had testified to at the Coroner’s inquest because he was a party to it.” See Tiner v. State, 110 Ark. 251, 161 S. W. 195; Anderson v. State, 197 Ark. 600, 124 S. W. 2d 216. In Brown v. State, 208 Ark. 28, 184 S. W. 2d 805, it was held that statements made by a claimant before Workmen’s Compensation Commission regarding how a homicide occurred were admissible against him when he was subsequently indicted or informed against for murder, “in the absence of a showing that he objected to being made a witness or that improper means were employed to procure the statements.” An early leading case involving admissibility of testimony given at a Coroner’s inquest is People v. Molineaux, 168 N. Y. 264, 61 N. E. 286, 62 L. R. A. (1904) 193. It was said that one called as a mere witness, who fails to claim a privilege on the ground that the testimony may tend to incriminate him, cannot object to its introduction at his subsequent trial for the commission of the crime originally under investigation. Some of the matters complained of under subdivision (3) were not preserved by exceptions. The contention that Dr. Wilford Wilson was appellant’s physician when he made an examination the night of December 23d, if conceded, would not make reception of the statements erroneous under Ark. Stat. (1947), § 28-607, Pope’s Digest, § 5159. The admissions were not made for the purpose of supplying the physician with information necessary to any treatment. St. Louis, I. M. & S. R. Co. v. Fuqua, 114 Ark. 112, 169 S. W. 786. The exclusion of certain other testimony was objected to by appellant, but it was clearly self-serving and the Court acted correctly as to it. Fourth — Instructions.—It is strenuously urged that Instruction No. 13 did not correctly declare the law. It told the jury that where the State relied entirely upon circumstantial evidence, “it is necessary in order to convict . . . not only that such chain of circumstances as a matter of law should point to and be consistent with the defendant’s guilt, but that [the circumstances] should be inconsistent with any other reasonable hypothesis. That does not mean any more than this: that the facts and circumstances in the whole case, taken together, — if they convince you beyond a reasonable doubt of the guilt of the defendant, [they are] sufficient to convict him. If they do not convince you beyond a reasonable doubt, [they] are not sufficient to convict him, and you should acquit the defendant. ’ ’ Specific objection was that the instruction did not tell the jury the State’s proof “must be so convincing of [the defendant’s guilt] as to exclude every other reasonable hypothesis. ’ ’ The defendant was not entitled to the modification suggested. Bartlett v. State, 140 Ark. 553, 216 S. W. 33; Bost v. State, 140 Ark. 254, 215 S. W. 615; Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902. The Trammell case approves an instruction in the exact language used in the case at bar. Other instructions given, and those tendered and refused, have been examined. "We do not find that error was committed, and the judgment is affirmed. Mr. Justice George Rose Smith dissents. (1) The evidence was insufficient, and an instructed verdict of not guilty should have been given. (2) Gene Thrasher, a juror, stated on his voir dire examination that none of the State’s witnesses had discussed the case with him, and that he had not formed or expressed an opinion regarding the defendant’s guilt, whereas in conversation with a witness, overheard by others, he had said Cooper was guilty and ought to be convicted. (3) Improper evidence was admitted, (a)' In particular it is urged that testimony given by Thelma Whitlow, a stenographer, should have been excluded, or, in the alternative, she should have been required to supply the defendant with a transcript of his examinátion December 29th when the coroner conducted an inquest, all witnesses at the hearing having been sworn. Miss Whitlow, in response to questions directed by the Prosecuting Attorney, read the answers Cooper had given. At that, time no accusations had been made, (b) Statements made by Cooper while in an ambulance just before he was treated by Dr. Wilford Wilson were privileged as communications between physician and patient, (e) Paul Adams ought not to have been allowed to testify to the defendant’s “relations” with unnamed women over a period of three years from 1937 to 1941; also, that in 1937 Cooper burned an automobile for the purpose of collecting insurance, (d) The Court should have excluded testimony by Roy Stewart regarding tests with a barrel and valve stem, the State’s theory being that Mrs. Cooper’s skull was fractured with the valve stem of an automobile inner tube attached to an oil drum, (e) The defendant also predicates error upon the Court’s action in hot permitting him (while examining W. H. Watson, who had testified for the State) to show that he (Cooper) made certain statements when he procured from Watson a long valve stem in exchange for a shorter one. (f) It was error to exclude testimony by others regarding what Cooper had said about procuring the valve stem and the use he intended to make of it. (g) The Court should have admitted testimony regarding questions asked of an insurance agent by Cooper concerning the cash value of a policy on the defendant’s life, and whether such value could he used to convert the contract into a paid-up policy, (h) Evidence regarding a so-called “tarp” found near the city dump was improperly excluded. (4) Erroneous instructions were given and instructions to which the defendant was entitled were refused. Black is the witness whose testimony regarding Cooper’s statements in the doctor’s office, position of the automobile, the blackjack, barrel, etc., has been referred to. This statement was materially weakened on cross-examination when the witness said appellant’s language probably was, “I want to plead guilty; I am ready to be electrocuted; I’m ready to go, but I didn’t kill Lois, [but] I want to plead guilty and get it over with.”

Holt, J. The parties to this litigation, which involves the title to a 160 acre farm in Lonoke county and six lots in England, Arkansas, are all Negroes. .. Appellants are the only heirs of Scipio A. Jones and Lillie M. Jones, his wife. Jones was a practicing attor ney in Little Rock until shortly before his death in 1943. His widow became executrix of his estate and filed her final report June 5, 1945, and was discharged. Lillie Jones died intestate August 6, 1945, and her administrator filed his final report April, 1948, and was discharged. Appellants began the present suit in ejectment April 24, 1948, against appellee, John Williams, and by agreement, the cause was transferred to equity. The complaint alleged, in effect, title in appellants to all the property involved by virtue of (1) a Commissioner’s deed in 1928 to Lillie M. Jones following sale of the property in a foreclosure suit by the Bank of England against Williams, (2) by a court order in 1938, in which it was directed, in a judicial sale to enforce a certain mortgage lien of Gr. W. Morris, that such sale should not' foreclose any interest of Lillie Jones in the property, and (3) a certain court order in 1941 in a foreclosure suit of the Federal Land Bank of St. Louis against Williams, finding that Lillie Jones is the “owner and title holder of record” of said property. It is further alleged that Lillie Jones “permitted defendant (John Williams) to occupy and farm the property, keep it up and pay the taxes and interest, for said use and occupancy.” Appellee answered denying that appellants had title, or any right to the possession, and alleged specifically that he was the beneficial owner of all of said property and that on account of the • relationship and an agreement between him and his attorney, Scipio Jones, an implied trust existed and that the title of appellants, as heirs of Lillie Jones, is that of a trustee only. His prayer was that title to all property involved be quieted and confirmed in him, appellee, free of all claims of appellants. September 3, 1938, the heirs of Gr. W. Morris, deceased, filed intervention alleging, in effect, that on December 3, 1930, appellee, Williams, and wife, executed and delivered to Gr. W. Morris a mortgage on the land involved to secure payment of a debt; that this mortgage was foreclosed in 1938 and the decree revived in 1948 in the case of Morris v. Williams; that no sale was had under these decrees, and that there is pending in that case petition for order of sale and foreclosure of all rights of the heirs of Lillie Jones and prayed that this foreclosure suit of Morris v. Williams be consolidated with the present suit for the purpose of trial only. The trial court consolidated the cases for the purpose of trial and found, in effect, that a trust relationship existed, that the legal title of the heirs of Lillie Jones is that of a trustee only and that appellee, Williams, is the beneficial owner of the property involved, and devested all title out of appellants, Lillie Jones’ heirs, and vested same in appellee subject to all rights of the intervening heirs of G. W. Morris, as adjudged in a separate decree the same day rendered in said case of Morris v. Williams. This appeal followed. Appellants say: “The sole issue for determination on this appeal is whether Lillie M. Jones, the record owner, held title for the benefit of appellee, his contention being- that a resulting trust existed in his behalf.” The essential 'facts, in addition to what has been said before, were: Scipio Jones was appellee’s attorney. There was a stipulation to the effect that G. W. Morris died intestate August 14, 1941, his estate administered, closed, and interveners are his sole heirs, that the property involved was a 160 acre farm in Lonoke county and six lots in England. “December 1, 1925, John and Ella Williams mortgaged said lands to Norman as trustee for Bank of England to secure a loan of $2,300. This trust deed- was foreclosed.” The property sold to Lillie Jones for $1,354.37, the sale approved and confirmed and deed executed to Lillie Jones on March 23,1928, and recorded. That “on June 1, 1919, John Williams executed to Federal Lank Bank of St. Louis a mortgage (on farm land involved) all in Lonoke county, Arkansas, to secure the payment of a note for $6,000 bearing interest at the rate of 5%% per annum, payable in 68 equal semi-annual installments of $195 each and one installment of $194.81 dne on each December 1 and May 1 thereafter until said note is fully paid. ’ ’ “On June 1,1923, John Williams'executed a deed of trust to a trustee for Mosaic Templars of America, which was filed for record June 22, 1923, is recorded in Book 77 at page 417, and conveys all of said land and Lot 21, Block 21, Lots 16,17, 18, Block 66 and Lots 11 and 12 and south half Lot 9, Block 67, Town of England, to secure the payment of a note for $6,489, bearing interest at the rate of 7% per annum, payable $2,163 on June 1 of each of the years 1924, 1925, 1926; his wife, Ella Williams, joined him and released all her dower and homestead rights in each of said conveyances. “The above two conveyances constituted the only liens of record against said land at the time of the sale of said land to Lillie M. Jones on March 10, 1928, at the price of $1,354.37, by the commissioner in Chancery pursuant to the foreclosure decree of December 30, 1927, in the case of Bank of England v. John Williams, et al, and at all times thereafter until after commissioner, on March 23, 1928, executed a deed conveying all of said land to Lillie M. Jones pursuant to said sale”, and until after said deed was acknowledged and filed for record on December 22, 1928.” Mr. Meurer, the representative of the Federal Land Bank, testified that the balance due on the Land Bank mortgage, June 20, 1948, was about $3,200. The gross value of all the property here involved was approximately $24,000 in 1928 when it sold to Lillie Jones, as indicated, for $1,354.37. The only liens against the property at that time were the amount due the Land Bank and approximately $2,220 unpaid balance on the mortgage to Mosaic Templars. On or before the date (December 22, 1928) on which Lillie Jones recorded her commissioner’s deed, supra, at Jones’ direction, she borrowed $3,750 from the Commonwealth Building & Loan Association, giving as security a mortgage on Lot 21, supra. It is significant that the commissioner’s deed to Lillie Jones and the mortgage to the Building & Loan Association were filed on the same day. While she paid only $1,354.37 for all the land involved under the foreclosure sale, this record does not disclose what she did with the balance of $3,750, supra, amounting to a little less than $2,400. The record reflects that Williams had given three mortgages to the Bank of England, one in 1924 for $2,330 and one March 5, 1925, for $2,300, both of which were satisfied of record December 21, 1928. The third mortgage for $2,300 dated December 1, 1925, is the one foreclosed here. Whether the second and third mortgages were renewals of the first, the record does not disclose. The Building & Loan Association foreclosed its mortgage and acquired title to Lot 21. Appellee, Williams, testified, in effect, that Jones had been his attorney and advisor for some time prior to the Bank of England’s foreclosure suit, supra, represented him at this foreclosure and continued as his attorney until his death. o He further testified that under the terms of an agreement which he had with Jones, that he, J ones, was to purchase all the land at the foreclosure sale in Lillie J ones ’ name, arrange to borrow $1,354.37 on the land, and hold title for Williams until the Federal Land Bank mortgage was fully paid and that they would then have a settlement. He further testified that he knew nothing of the $3,750 mortgage, supra, until the filing of the present suit, that he, Williams, at all times mentioned in this case has been in possession and control of the farm land and of the lots involved, has never paid any rent, has paid all taxes, and all amounts due on existing mortgages. He further testified that some of the town lots forfeited for certain improvement district taxes and that Jones procured two quitclaim deeds from the district, one was made to Williams and his wife, and the other to his son, and that while Scipio and Lillie lived, neither has questioned appellee’s ownership. Mr. Meurer, the Land Bank representative, further testified that on more than one occasion, Scipio and Lillie told him, “he (Scipio) said that John Williams owed him or owed his wife some money, that when John Williams had paid this money she would re-convey to John Williams.” There appears to be no evidence of any debt from appellee to Lillie Jones. Following Lillié Jones’ death, August 6, 1945, her administrator filed on separate dates, an original and a supplemental inventory of her estate, and in neither of them was there listed any of the property involved here nor any debt from Williams. After reviewing the facts presented, we have concluded that the evidence (record and oral) was sufficient, and of that clear and convincing character, to establish an implied or constructive trust on. behalf .of appellee, Williams, that Lillie Jones, during her life, held the legal title for Williams ’ benefit, and after her death, her heirs so held it for Williams ’ benefit, with the trust imposed upon it. It is well settled that an agreement creating an implied or resulting trust may be shown by oral testimony. Bray v. Timms, 162 Ark. 247, 258 S. W. 338, and Beloate v. Taylor, 202 Ark. 229, 150 S. W. 2d 730. This court held in Moore, et al. v. Maxwell, et al, 18 Ark. 469, that where the decedent held title in trust, upon his death, his heirs held it, charged with the same trust. Upon the death of the trustee, the trustee’s heirs are vested with the estate subject to the trust. Badgett and Wife v. Keating and Wife, 31 Ark. 400. “ Generally speaking, a trustee who * * * repudiates the trust, claiming title as absolute owner, forfeits his right to compensation.” McHenry v. McHenry, 209 Ark. 977, 193 S.W. 2d 321. In this case, we find no evidence of any fraud, attempted or practiced by Jones on his client, Williams. We think the evidence clearly shows that Jones intended to carry out the agreement which the evidence establishes he had with Williams, and that death prevented his doing so. In regard to appellants ’ claim of title alleged, supra, as resulting from the court order of 1938 in the case of Morris v. Williams, in which Jones was Williams’ attorney, and directing a judicial sale to enforce the mortgage lien of Morris in which order it was recited, in effect, that such sale should not foreclose or effect any interest of Lillie Jones in said property, little need be said. This order did not attempt to decide what interest Lillie Jones had in the property nor was' there any issue in that case between Lillie Jones and Williams. As to the court order of May 23, 1941, which was made in the foreclosure suit of the Federal Land Bank against Williams, the record reflects that this order was based on the report of Robert Meurer, receiver. The order did not adjudicate the beneficial ownership of Williams, but recited that Lillie Jones is “the owner and title holder of record” of the property. As has been indicated, appellee does not contend that Lillie Jones did not hold the record title. There was no issue in that proceeding between Lillie Jones and appellee, Williams, as to title, the only matter presented being Meurer’s report. “That which has not been tried cannot be said to have been adjudicated * * *. That which is not within the scope of the issues presented cannot be concluded by the judgment. ’ ’ Harris v. Whitworth, Administrator, 213 Ark. 480, 211 S.W. 2d 101. Finding no error, the decree is affirmed.

Ed. F. McFaddin, Justice. Appellant was convicted of grand larceny for the theft of a promissory note in the face amount of $400, and prosecutes this appeal. From the evidence the jury could well have found the facts to be as recited in this paragraph: Woodrow Gaza-way was the stepson of Enoch D. Phillips. Appellant at two different times had been the wife, of Woodrow Gaza-way, but claimed to be divorced from him at the time of the events herein detailed.- In May, 1948, Phillips loaned Woodrow Gazaway and the appellant the sum of $400; and they executed to him their joint and several promissory note for said amount, secured by a mortgage of a truck and of a cow and increase; and both Woodrow Gazaway and the appellant signed the mortgage as well as the note. After disposing of the mortgaged property, Woodrow Gazaway left for parts unknown. In July, 1948, the appellant went to the home of Enoch D. Phillips and asked to see the said note. He handed it to her for inspection, but she departed with it; and it has never been found. After the State developed the evidence above recited, Mrs. Gazaway offered as her defense, inter alia, that Enoch D. Phillips surrendered the note to Woodrow Gazaway when he paid the note in full in June, 1948; and that she went to see Phillips about some personal matters, but that she did not take the note from him. •The jury found against her on these facts, and the verdict is sustained by the State’s evidence. Appellant’s motion for new trial contains 20 assignments, but her attorney has materially aided our study of the case by grouping the 20 assignments in three topic headings, which we copy from appellant’s brief. I. Value of the Note. “Grounds Nos. 1, 2, 3, 6, 7, 8, 9, 10, 15, 16, 18, 19 and 20 of the motion for new trial may well be presented together, as they sought a new trial because of (1) errors of the court in ruling adversely to the defendant’s repeated contention that the note being worthless, nothing could be collected thereon, and therefore the grade of the offense could not be grand larceny; and (2) if such note was the subject of larceny, it would be, under the circumstances, only petit larceny. ’ ’ II. Refusal to Instruct on Petit Larceny. “Grounds Nos. 12, 13 and 14 may well be argued together, as they allege error by the court in practically instructing a verdict for grand larceny against the defendant, and in failing to instruct the jury as to petit larceny. ’’ III. Rulings as to Evidence. “Grounds Nos. 4, 5 and 17 may well be argued together, as they go to the issue of the admission of incompetent and prejudicial testimony on behalf of the State, resulting in her conviction and an excessive punishment. ’ ’ We discuss the issues as thus presented: I. Value of the Note; and II. Refusal to Instruct on Petit Larceny. Appellant’s main insistence is that the said $400 note was worthless, so that even if she had taken the note, still she would not have been guilty of grand larceny; and she also insists that the court was in error in refusing to charge the jury on the crime of petit larceny. Appellant offered testimony as to the poverty of herself and Woodrow Gazaway; and this evidence was designed to show that Enoch D. Phillips could never have realized anything on his note, so the taking of it was a matter of no consequence. ■ The trial court, in denying all of appellant’s claims on these points, instructed the jury in the language of the statute — Section 41-3906, Ark. Stats. (1947) — which, stripped of language extraneous to this case, reads: “If the property stolen consists of . . . any evidence of debt whatever . . . the money due thereon .. . shall be adjudged the value of the article stolen.” The promissory note was certainly “evidence of debt,” since it was the promise of the Gaz'aways to pay $400 that had previously been loaned to them by Phillips. The statute fixes the face amount of the note, and not its realizable amount, as the value of the property stolen. In McDowell v. State, 74 Miss. 373, 20 So. 864, the Supreme Court of Mississippi, in a case in which the defense was similar to the one here, said in regard to a statute similar to § 41-3906, Ark. Stats. (1947): ‘ ‘ The statute was designed to relieve the State from the burden of proving the actual value of bonds, bills, notes, etc., by making the face value to be deemed the real value, without further proof. It surely was never before thought that two insolvent debtors, who had refused to pay their indebtedness, might steal the evidence of their indebtedness, and successfully plead insolvency and a refusal to pay in justification of the larceny.” We adopt the above quotation as applicable to this case. The trial court in the case at har was correct in its rulings concerning the value of the property, and also in its refusal to instruct concerning petit larceny. III. Rulings as to Evidence. Appellant became a witness in her own behalf, and it is claimed that the trial court committed error in allowing the State to question her on cross-examination as to two matters: (a) whether she and Woodrow Gazaway were in fact divorced when the money was borrowed and the note signed (it having been shown that they were occupying the same house); and (b) whether the cow included in the mortgage to Enoch D. Phillips was the same cow as the one mortgaged by appellant to a' bank. We find no error in the court’s rulings allowing the cross-examination as to these items, since such cross-examination was certainly designed to test the credibility of the appellant, who had become a witness in her own behalf. What we said in Jutson v. State, 213 Ark. 193, 209 S. W. 2d 681, is apropos: ‘ ‘ This court has repeatedly held that it is proper to interrogate a defendant, or other witness, on cross-examination, touching his recent residence, occupation and associations, as affecting his credibility as a witness. Hollingsworth v. State, 53 Ark, 387, 14 S. W. 41; Hughes v. State, 70 Ark. 420, 68 S. W. 676; McAlister v. State, 99 Ark. 604, 139 S. W. 684; Sweeney v. State, 161 Ark. 278, 256 S. W. 73.” See, also, Hunt v. State, 114 Ark. 239, 169 S. W. 773, L. R. A. 1915B, 131, 131 Ann. Cas. 1916D, 533, and Trotter v. State, ante, p. 121, 219 S. W. 2d 636. Finding no error, the judgment is affirmed. Assignment No. 11 in the motion for new trial also related to an instruction involving the word “felonious”; and is considered in this same topic.

Minor W. Millwee, Justice. Appellee, Bonnie Mae Obennoskey, instituted this suit against the appellant, Hoail Allen Obennoskey, for a divorce on the grounds of personal indignities and cruelty. Appellee also asked for custody of their six months old child and a second unborn child she was expecting, and for support and suit money. Appellant filed an answer denying the material allegations of the complaint and alleging that the trouble between the parties was the result of her parents trying to force appellee and appellant to make their home with the parents. At the trial held in September 13, 1948, appellee offered the testimony of herself, her parents and three physicians. Appellant offered no evidence, but prosecutes this appeal from a decree awarding appellee a divorce, custody of their two children, aged 16 months and two months, respectively, and $35 per month for the support of the two children. At the time of their marriage at Benton, Arkansas, in April, 1946, appellant was 26 years of age while appellee was only 15 years of age. Appellant was regularly employed as a sawmill worker and on April 1, 1947, the couple moved to Stamps, Arkansas, where their first child was born on May 1, 1947. On June 1, 1947, the parties moved to Hope, Arkansas, where appellant became employed. Appellee suffered from a female disorder following the birth of her first child which rendered sexual intercourse extremely painful and dangerous to her health. Appellant not only refused to provide medical attention for appellee, but forced her to submit to incessant and excessive acts of sexual intercourse which impaired her health. We omit a detailed recital of the morbid and delicate matters relating to the physical agony and mental anguish suffered by appellee because of the compulsory and excessive sexual demands of appellant from June 1, 1947, to June 28, 1947. When appellee left appellant June 28th and returned to the home of her parents at Stamps, Arkansas, she was ill and her nervous system prostrated. After returning to Stamps, appellee’s health rapidly improved under the treatment of a physician who advised her to abstain from sexual intercourse until her condition was fully corrected. On or about August 1, 1947, appellant came to Stamps and requested appellee to move with him to Prescott, Arkansas, where he had obtained employment. Appellee consented upon appellant’s promise to refrain from his prior misconduct. Appellant failed to live up to his promise and resumed the mistreatment which was continued until October 22, 1947, when appellee again left him and filed the instant suit on November 3, 1947. It was shown without contradiction that appellee was in good health when she married appellant and that on each of the occasions that she was forced to leave appellant she was broken in health, but rapidly recovered as soon as she ceased cohabiting with him. Appellee was pregnant when she left appellant the last time and their second child was born July 8,1948. For reversal of the decree appellant first insists that appellee was only 17 years of age at the time of the filing of the instant suit and was, therefore, without capacity to maintain the action. Appellant relies on the case of Davie v. Padgett, 117 Ark. 544, 176 S. W. 333. In that case the court construed Ark. Stats. (1947), § 27-823, which provides that the action of an infant must be brought by a guardian or next friend, and held that the incapacity of an infant to sue in his own name may be waived and is waived by the defendant’s failure to take advantage of the defense either by demurrer or answer as provided in Ark. Statsv(1947), § 27-1119. Here appellant waived the objection that appellee was an infant by pleading to the merits without raising the objection in the trial court and that question may not be raised for the first time pn appeal. Barnett v. McClain, 153 Ark. 325, 240 S. W. 415. Moreover, appellee became 18 years of age several months before the trial and was empowered to proceed in the capacity of an adult when the decree was rendered. Coca-Cola Bottling Co. v. Davidson, 193 Ark. 825, 102 S. W. 2d 833. It is next contended that excessive sexual intercourse is not a ground for divorce under Arkansas law. While this court has not passed on the question, it is well settled by the authorities generally that excessive sexual demands of a husband, injurious to the health of the wife, to which she is compelled to submit, constitute cruelty entitling the wife to a divorce. 27 C. J. S., Divorce, § 30; 17 Am. Jur., Divorce and Separation, § 76; Schouler Divorce Manual, § 89; Keezer, Marriage and Divorce (3rd Ed.), § 362. The facts in the instant case are like those in Hines v. Hines, 192 Iowa 596, 185 N. W. 91, where the court said: “A wife has the right to protect her health and her life from the ungoverned lust of her husband by seeking a divorce. Such an action presents as strong a case for relief as when she flees from his intolerable cruelty inflicted by other means. It is personal violence under another name, and cannot be justified under the claim of the exercise of his marital rights. These rights are reciprocal, and exist on the part of the wife as distinctly as on the part of the husband. It is true that marital rights involve marital duties, and include the duty of forbearance on the part of the husband at the reasonable request of the wife, as well as the duty of submission on the part of the wife at the reasonable request of the husband. In the decision of such matters a court must take into consideration the duty of the husband as well as the duty of the wife. To unduly emphasize either would be manifestly unjust.” A spouse may be guilty of “cruel and barbarous treatment” under our statute (Ark. Stats. 1947, § 34-1202) without the infliction of blows. The test is stated in Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86, as follows: “In order to constitute cruel treatment, which our law recognizes as ground for divorce, there must be proof of willfulness or malice on the part of the offending spouse, and the effect of that treatment must be to impair or threaten the impairment of the complaining party’s health or such as to cause mental suffering-sufficient to make the condition of the complaining- party intolerable.” We conclude that appellee has met this test and that appellant’s mistreatment constituted cruelty within the meaning of our statute. It is next argued that the testimony of appellee is uncorroborated and that the evidence is, therefore, insufficient to support the decree. In Hines v. Hines, supra, the wife’s testimony concerning excessive sexual demands of her husband was held sufficiently corroborated by proof that, prior to leaving her husband, she was in poor health and suffering from vaginitis, which had not responded to medical treatment, and that upon complying with her physician’s requirement of temporary separation, the medical treatment was successful and health returned. See, also, McAllister v. McAllister, 28 Wash. 613, 69 Pac. 119. In Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078, we approved the rnle stated in 17 Am. Jur., Divorce and Separation, § 386, as follows: ^ ‘ It is not necessary that the testimony of the complaining spouse he corroborated upon every element or essential of his or her divorce. It has been said that since the object of the requirement as to corroboration is to prevent collusion, where the whole case precludes any possibility of collusion the corroboration only needs to be very slight.” See, also, Goodlet v. Groodlet, 206 Ark. 1048, 178 S. W. 2d 666. The testimony of appellee relative to the excessive sexual demands of appellant was amply corroborated by the testimony of appellee’s parents and three physicians who treated appellee. This evidence established the fact that appellee suffered from a female disorder*; that excessive sexual intercourse would result in the suffering experienced by appellee and that her broken condition of health rapidly improved upon each occasion that she left appellant. It was also shown by the testimony of appellee’s parents that appellant refused to provide proper medical attention for appellee and that he promised to refrain from previous sexual abuses when appellee agreed to live with him at Prescott, Arkansas. Appellant also contends that the return of appellee to the home at Prescott in August, 1947, amounted to condonation of the charges of cruelty and indignities. The undisputed evidence discloses that appellee resumed the marital status with appellant upon the express condition that he would refrain from past misconduct and with proper respect for the condition of her health. Appellant broke his promise and resumed the former mistreatment which thereby impaired the health of appellee to the point of endangering her life if it had-been continued. Condonation for the offense of cruel and barbarous treatment is only conditional forgiveness and if the offense be repeated, it revives the right of action. In other words, the voluntary cohabitation with complete forgiveness will condone prior cruelty only so long as the prior offense is not repeated. 17 Am. Jur., Divorce and Separation, § 202; Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41; Denison v. Denison, 189 Ark. 239, 71 S. W. 2d 1055; Franks v. Franks, 211 Ark. 919, 204 S. W. 2d 90. In the Longinotti case the court said: “The law is well settled that either spouse may condone conduct of the other which, but for the condonation, would entitle the innocent spouse to a divorce. But it is equally as well settled that condonation does not deprive the aggrieved spouse of the right to a divorce on account of the subsequent misconduct of the offending-spouse. On the contrary, subsequent misconduct will generally operate to revive the right to a divorce for the condoned offense.” If the condition upon which cohabitation is resumed is broken by further misconduct, condoned past conduct may then be relied on in support of an action for divorce. Franks v. Franks, supra. Unde£ the uncontradicted evidence here the doctrine of condonation has no application. The decree is correct and is affirmed.

Frank G. Smith, J. Appellant was put to trial upon an information charging him with the crime of murder in the first degree, alleged to have been committed in the perpetration of the crime of rape upon the person of Betty Jane McCall. He was found guilty of the offense charged and was given a death sentence, from which judgment is this appeal. Appellant moved to quash the jury panel upon the ground that no female was on the jury. It was shown that although the number of women who were qualified electors eligible for jury service in Pulaski County, where the case was tried, was nearly as large as the number of male persons eligible for jury service, no woman bad been selected for jury service in tbe criminal division of tbe circuit court for a long number of years and none had served as jurors in tbat division of the circuit court. An exception was saved to tbe action of tbe court in overruling tbe motion to quash tbe panel. Tbe identical question bere raised was presented in tbe case of Bailey v. State, ante, p. 53, 219 S. W. 2d 424, which like the instant case came up from tbe Pulaski Circuit Court, and what was said there is controlling bere. After a review of tbe authorities, which we do not repeat, it was there said: “We think the inference deducible from the Fay case (332 U. S. 261, 61 S. Ct. 1613, 91 L. Ed. 2043), is tbat where a State does not impose upon women as a class tbe inescapable duty of jury service, a defendant who complains tbat due process was denied, or tbat be was not afforded tbe equal protection contemplated by tbe Fourteenth Amendment, must show something more than continuing failure of jury commissioners to call women for services in a division of tbe Court where tbe innate refinement peculiar to women would be assailed with verbal expressions, gestures, conversations and demonstrations from wbicb most would recoil.” Miss McCall, an unmarried woman, was killed on the night of the 23rd of September, 1948, at some hour between 1:30 a. m., and 4:00 a. m. The undisputed testimony shows tbat Miss McCall, who was employed as acting director of nursing education at tbe Veterans Hospital at Ft. Roots, near Little Rock, drove her car to a filling station where appellant was employed in tbe city of Little Rock, for battery service, and while tbe service was being rendered an engagement was made for appellant to escort Miss McCall to a night club where they might engage in dancing. They bad never met before. Miss McCall gave appellant her address and telephone number, and on tbe following Wednesday be called her on tbe phone and she agreed to come for him at his place of business in her car. She did so, and upon her arrival appellant took tbe wheel and thereafter did all the driving. They started to a suburban night club. On the way appellant bought a bottle of whiskey. When arrested he told the officer who arrested him that he had bought a pint of whiskey. At the trial he testified that he bought a bottle containing l/5th of a gallon. They were accompanied to the night club by appellant’s roommate, a young man named Jimmy Wells, and his companion, a young lady named Miss Mills. Appellant introduced this couple to Miss McCall as they had never met before. The four drove to the night club where appellant secured ice and prepared drinks, but only he and Miss McCall drank. The other couple did not drink. There is some question as to whether Miss McCall drank, but we think the fair implication is that she. did. After drinking and dancing for a time, Miss McCall broke the strap on one of her shoes, and the party returned to town, leaving Wells and Miss Mills at a service station where Wells was employed. Appellant and Miss McCall drove to Miss McCall’s apartment. Her roommate testified that Miss McCall arrived there about 11:15 and'after changing her shoes she and appellant returned to the night club. The last person testifying in the case who saw deceased alive was the band leader at the night club, who knew appellant and spoke to him and the band leader testified that appellant and deceased left the night club about 1:30 a. m. No other person testifying in the case, except appellant, thereafter saw her alive. The next person who saw deceased at all was appellant’s roommate, Jimmy Wells, who testified that he was awakened by appellant about 4:00 a. m., who told him that Miss McCall was in the ear and he thought she was dead. Appellant asked Wells if he should drive to a hospital, but when Wells saw that Miss McCall was dead, he told appellant to drive to the police station, which appellant did. Upon reaching the police station the police saw the dead body of Miss McCall lying with her head in the window of the car. The police arrested appellant and called the Prosecuting Attorney, and the deputy prosecuting attorney came, with a young lady stenographer who reported stenographically all that was said after her arrival. The deputy prosecuting attorney asked appellant if he wished to make a statement, and advised him that anything he said might be used against him. He was not asked if he wanted to see an attorney before making his statement. The undisputed testimony is that appellant’s statements were made freely and voluntarily and without duress, threats or promises of any kind. The statement was not in the nature of a confession, but was a narrative of what had occurred between appellant and deceased. He admitted that he had sexual intercourse with deceased, but said it was with her assistance, and he denied any intention of killing deceased. Asked if deceased resisted him, he stated that she did for a time, but that he ‘ ‘ got it. ” The stenographer had transcribed her notés, and the deputy prosecuting attorney had the transcription thereof in his hand while cross-examining appellant. Objection was made and overruled to the use of these notes. Had a confession been shown, it would have been improper to introduce any part thereof without introducing the whole statement; however, the deputy prosecuting attorney in his examination of appellant offered to submit the transcription to appellant’s attorney, which offer was declined. The principal use of the transcription was to ask appellant if he had made certain statements disclosed by the transcription, some of which he admitted, while others were denied. The testimony on the part of the state was to the effect that appellant had made at the police station certain statements which he denied having made while testifying as a witness at the trial. We think this- cross-examination was entirely proper and permissible. Objection was made to the introduction in evidence of a pair of trousers which appellant admitted were his, on which blood was found. Appellant admitted that when he went to his room to advise with his roommate he had changed his trousers, and that the trousers which he had changed and which were found on his bed were his. When appellant first drove up to the police station a picture of deceased in the car was taken. The body was then carried to the undertaker where other pictures were made. Objection to the introduction of pictures was made upon the ground that they were taken by one person and developed by another, but it was shown that the pictures developed were those taken and correctly revealed the body of the deceased when they were taken. Objection was also made that the pictures were so gruesome as to arouse and inflame the jury and that their introduction added nothing to the testimony of witnesses who described the location and condition of the body. We think, however, no error was committed in permitting the introduction of the pictures. They told a story which the testimony of witnesses could not well have described. There was a hiatus in the testimony as to just what happened between 1:30 a. m., and 4:00 a. m., and these pictures told a story conflicting with such explanations as appellant vouchsafed. They reveal deceased’s ordeal during that time, and discredited appellant’s statement that he had sexual intercourse with the assistance of deceased. Witnesses who heard appellant’s statement at the police station testified that appellant said he and deceased had two fights, one when they first stopped the car and while having intercourse they had another fight. They had two fights, one before they had intercourse, and the other while they were having it. Witnesses for the State testified that appellant did not appear to be intoxicated while making these statements. The officer in charge of the State Police Laboratory testified that he had made tests of clothing which evidence showed had been worn either by appellant or by deceased, and that he found blood on the man’s trousers and on his shirt, and that he also found blood spots on the lady’s suit shirt and on her pants or step-ins which had not been removed from her body. Appellant testified that he had been making love to the deceased all during the evening and while riding in the ear where the intercourse was had, and that while at first she repulsed him that later she assisted him. He testified that he became angry when deceased bit his hand, and he exhibited scars showing that she did bite him, but the jury was not unwarranted in finding that the woman was offering such resistance as she could. The pictures show that deceased was bruised all over her face and body, and that she had bled profusely from her wounds. The State’s testimony was that appellant was asked, “When did you quit hitting her?” And he answered, " She kept begging me to stop and I finally did and she sat back upon the seat and leaned her head on the door” and she was in that position when appellant drove to the police station. A police officer testified that he arrived at the station about 4:25 on the moiming of September 23rd, at which time deceased’s body had been removed from the ear. Witness examined the car and found one of deceased’s shoes on the right hand side of the car. Another shoe was directly up in front of the floor board, and he found buttons on the floor board of the car, and a lady’s wrist watch on the right hand side of the car on the floor board in the back of the car. The head of the department of Pathology at the University of Arkansas Medical School, performed an autopsy, at the request of the coroner, at 10:00 a. m. on September 23rd. He testified that the body revealed numerous bruises below the skin, and most apparent were those on the right and left forearm and left leg and over the pubic bone, and over the head and face and neck. That there was a large hemorrhage over the left eye, and a large cut over the left eye, about an inch or an inch and a half in length, and the examination revealed a small wound in the forehead. There were bruises over the whole body, but particularly on the arms and legs, and that an examination of the brain disclosed a small area of hemorrhage, indicating a blow to the head, and that they found that the thyroid cartilage was shattered and the vocal cords were.swollen shut. He further testified that deceased’s hands showed a great many marks of injury, finger nails, or marks of struggle on the left and right hands. The coroner himself, a practicing physician, who participated in autopsy, testified that the removal of the windpipe disclosed that it had been crushed and the edema or swelling had caused an obstruction where no air could get in, that the deceased had died of suffocation due to an injury to the windpipe. That the deceased was guilty of a great indiscretion in making and keeping her appointment with appellant admits of no denial, and the jury’s verdict reflects that she paid with her life for the indiscretion. That appellant had carnal knowledge of the deceased is a fact which he admitted, and the recited testimony supports the finding of the jury that this was not a matter of mutual sexual gratification or the result of consent, or of her assistance as appellant stated. If appellant killed deceased in the attempt to rape her, although he had no intention of killing her, he committed the crime of murder in the first degree. Section 2969, Pope’s Digest, so provides. The testimony recited fully warranted the jury in arriving at the conclusion. Evidence was offered as to appellant’s good moral character, and other testimony was offered by the State to the effect that his reputation for morality was not good. There was testimony also that appellant had been fined for the commission of certain misdemeanors, one for drunken driving. This testimony was admitted and limited to the consideration of appellant’s veracity as a witness, and was admissible for that purpose. Lowmack v. State, 178 Ark. 928, 12 S. W. 2d 909; Shinn v. State, 150 Ark. 215, 234 S. W. 636; Smith v. State, 74 Ark. 397, 85 S. W. 1123; Younger v. State, 100 Ark. 321, 140 S. W. 139. The motion for a new trial was accompanied by a petition signed by 8 of the 12 members of the trial jury, asking the court to reduce the death sentence to a life sentence, or to grant a new trial. Conceding that the court had this power, its exercise was a matter within the discretion of the court and under the facts disclosed by the record in this case we are unable to say that there was any abuse of this discretion. Finding no error, the judgment is affirmed. Justice George Rose Smith not participating.