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Kiduick, J.,
(after stating the facts.) The question presented by this appeal relates to the validity of a tax sale under which the plaintiff, Gunn, claims to be the owner of the lot in controversy. The defendant, Thompson, who was the owner at the time of the tax sale, paid the taxes on the lot, but through a mistake the taxes were credited to another lot not owned by him. The case, then, turns on the question as to whether this mistake was the fault of Thompson or the collector of taxes.
Thompson testified as follows: “I went,” he said, “into the collector’s office. I asked to pay taxes on lot 4, block 25. The sheriff handed me my receipt. I can neither read nor write. I thought my tax receipt was all right, and did not know but what it was on lot 4, block 25.” He goes on then to say that the first intimation he had that anything was wrong was after the time for redemption had expired. Under the evidence, as it appears in the record, the chancellor might have found that the defendant at the time he paid the taxes told the officer that he wished to pay on lot 4, block 25, and that the officer, after looking at the deed exhibited by the defendant, concluded that he wished to pay on the land as described in the deed, and made out the tax receipt accordingly, without informing the defendant of his action in this respect. The defendant, not being able to read, rested under the belief that the officer had obeyed his directions and credited the amount paid to the lot owned by him. Assuming that these facts to which the defendant testified were true, we think they are sufficient to uphold the finding of the court.
We have not overlooked the fact that the officer was propably misled by the description in the deed exhibited to him by the defendant. If the defendant had directed the officer to credit the taxes on the lot described in the deed, or if he had merely handed the deed to the officer, and said nothing more, the officer would have been justified in presuming that the deed correctly described the lot upon which Thompson wished to pay. But the defendant testified that he told the officer that he wished to pay on lot 4, in block 25. This lot was owned by Thompson, and assessed in his name, and was the one upon which he desired to pay the taxes, but the officer, without looking at the books, credited the taxes on another lot, which belonged to, and was assessed in the name of, another party.
The mere fact that Thompson, who could not read, handed the officer a deed in which the lot was incorrectly described did not justify the officer in applying the money to the payment of taxes on a lot different from that upon which the defendant had offered to pay, and which was assessed to another person. He should have called Thompson's attention to the fact that the lot described in the'deed was not the lot upon which he had offered to pay, and allowed him to make the change if he desired to do so. Of course, there may be room for doubt as to whether the testimony of Thompson was correct or not, but, as he testified that he notified the officer that the taxes were paid on the lot owned by him, and as no witness contradicted this statement, we think that the finding of the court has sufficient evidence to support it. If the taxes were paid on the lot, it follows that the sale for nonpayment of' taxes was without authority and void.
Judgment affirmed. | [
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.Riddick, J.,
(after stating the facts.) This is a suit in equity to cancel a note and mortgage, and to set aside and annul a sale made under the power contained in the mortgage. The statute requires that, before land can be sold under power contained in a mortgage, it must be appraised by three disinterested householders of the county appointed by a justice of the peace of the county in which the real estate is situated. Sand. &. H. Dig., § 5112; Acts 1895, p. 4. But the justice of the peace who appointed the appraisers, as well as the appraisers who appraised the property, lived in a different county from that in which the land a]Dpraised was situated, and there was, for this reason, no valid appraisement, and the sale was void.
The contention on the part of the plaintiff that this was a mortgage of the homestead, and void for noncompliance with the statute regulating conveyances of homesteads, we do not think is supported by the record. The evidence does not show that this property was occupied as a homestead at the time the mortgage was executed, and, even if it did show that fact, we think the acknowledgment was sufficient; and, further, that, even if the acknowledgment had been defective as contended, the defect would have been cured by the subsequent curative act of 1893.
Nor do we think there is any ground for the contention that the mortgage is barred by the statute of limitations. The plaintiff in her complaint asked, if the court found that there was ■anything due from her to Raines or Kelley on account of the note •or mortgage, that “an account thereof be stated, and the plaintiff have leave to bring the same into court and pay the same, which she now and here offers to do, and for other relief.”
In his answer to this complaint Kelley asked that the plaintiff’s complaint be dismissed, and that he have a decree for the possession of said land, and for further relief. Under the prayer of this complaint and answer, we think, if the court had found that the sale under the mortgage was void, but that the mortgage and note were valid, it would have been its duty to have ascertained the amount due on the mortgage, and to have given a decree therefor in favor of defendant, with leave for plaintiff to pay the same, as she offered to do in her complaint. We therefore think that the running of the statute of limitations was stopped by the action of plaintiff herself, and her contention on that point must be overruled.
This brings us to the questions upon which the case was decided by the circuit court. The circuit judge found that there was no consideration for the note. On that point the evidence was conflicting. There was evidence tending to show that the note and mortgage were executed to Eaines at his request to enable him to borrow money or to secure a collateral for a loan which he intended to procure, and that they were not executed to secure a debt, as Eaines contended. While there is doubt about the matter, we feel that the finding of the chancellor on that point has evidence sufficient to sustain it.
But Kelley alleges that he purchased the note and. mortgage before maturity for a valuable consideration and without notice of any defense on the part of plaintiff. After a careful consideration of the evidence, we are of the opinion that this contention of Kelley is supported by the evidence, and that the finding of the chancellor on that point is clearly against the weight of evidence.
For this reason the judgment is reversed, and the cause remanded, with directions for a judgment in favor of Kelley for amount of note and foreclosure of the mortgage. | [
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Wood, J.
The questions are:
First. Could the infant appellees avoid the original decree as against the representative of the Rose estate?
Second. Could they avoid it as against the appellant Blanton ?
Third. Could Mrs. Ada Neal avoid the decree?
The proof shows that the land in controversy was the property of Vachel Rose at the time of his death. This is sufficient to entitle the appellees, the infant heirs of Yachel Rose, to the relief sought, as against the representative of the W. B. Rose estate.
Section 5871, Sand. & H. Dig., is as follows: “It shall not be necessary to reserve, in a judgment or order, the right of an infant to show cause against it after his attaining full age; but in any case in which, but for this section, such a reservation would have been proper, the infant, within twelve months after arriving at the age of twenty-one years, may show cause against such order or judgment.” The statute is notice to all the world in cases where it applies, and there can be no such thing as an innocent purchaser in those eases. Nor can anyone plead protection by virtue of title acquired under a decree of court. Decrees, however, regularly obtained, are not void, but only voidable for cause. Houston v. Aycock, 5 Sneed, 406, 415.
To what cases does the statute apply ? Where the effect of the decree is to divest the infant of an interest in land, or where a conveyance is required of an infant in lands where he has a personal interest under the ancient chancery practice, it would have been proper in such cases to reserve in the decree a day for the infant to show cause against it after becoming of age. “I take it to be the course of the court,” says Lord Chancellor Hardwicke, “not to give any day unless a conveyance is directed in form or substance.” Sheffield v. Buckingham, West’s Rep. 684; Napier v. Lady Effingham, 2 P. Wms. 403; Cary v. Bertie, 2 Vern. 342; Eyre v. Countess of Shaftesbury, 1 P. Wms. 403; 1 Dan. Ch. Pr. 165; Dow v. Jewell, 21 N. H. 490; Long v. Mulford, 17 Ohio St. 484, 506; Harris v. Youman, Hoff. 178; Pope v. Lemaster, 5 Litt. (Ky.), 77. Under the old English chancery,where there was a foreclosure— strict foreclosure — the infant had his day in court after coming of age. Sayle & Freeland case, 2 Ventris, 350; Price v. Carver, 3 M. & C. 162, 3. “But in the ease of decrees for the foreclosure and sale of mortgaged premises, or for the sale of lands under a devise to pay debts, the infant had no day.” 2 Kent, Com. 245; Booth v. Rich, 1 Vern. 295; Scholefield v. Heafield, 7 Simons, 667; Cooke v. Parsons, 2 Vern. 429; 1 Dan. Ch. Pr. 165 et seq.; Wilkinson v. Oliver, 4 Hen. & Munf. 150, and other cases cited in Am. Ch. Dig. (Decree), 497; Mills v. Dennis, 3 Johns. Ch. 367, and cases cited in note.
The reason for the distinction and the policy of the statute does not concern us here. It follows that the infant appellees could avoid the decree as to appellant Blanton. The case of Moore v. Woodall, 40 Ark. 42, and Boyd v. Roane, 49 Ark. 397, relied upon by appellee, are not in point; The question under consideration was not raised or discussed in those cases. Moreover, in both a sale of the land was decreed to satisfy liens.
Mrs. Ada Neal was under no disability when the decree in favor of W. B. Bose was rendered. Blanton was an innocent purchaser for value of the dower interest of Mrs. Ada Neal, which passed by the original decree, and he is entitled to have the same assigned to him. Weaver v. Rush, 62 Ark. 51. The decree is affirmed as to the infant appellees. As to 'the appellee Mrs. Ada Neal, the decree is reversed, and the cause is remanded, with directions to have her dower interest in the lands in controversy set apart and passed to appellant Blanton. | [
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Battle, J.
Kate Townsend brought an action against Charles Bergstrand to recover the possession of two diamond rings, of the value of $350. The defendant denied that he was in possession of any diamond rings belonging to the plaintiff. Townsend recovered judgment for the property in controversy, and Bergstrand appealed.
In the trial of the issues in the case before a jury the plaintiff testified, in her own behalf, that the rings in controversy were given to her by Joseph Q. Townsend, deceased, in his lifetime. In her cross-examination she was asked, what relation she bore to the deceased in his lifetime. She replied, she was his wife. She was then asked: “Where were you living and what were you doing at the time Joe Townsend gave you those rings as you allege ?” Her answer was: “I was in St. Louis at the time he gave them to me the first one, and the last one I was living in Little Rock.’’ The next question was: “What was your occupation at that time and prior to that time?” Her reply was: “His wife.” The defendant then asked her: “Prior to your marriage with him, what was it?” The plaintiff objected to the question, and the court sustained the objection; and the question was nqt answered. Should the witness have been required to answer it? This is the only question we consider necessary to determine in this opinion, the other questions discussed in the briefs of counsel having been decided by this court in other cases.
In Hollingsworth v. State, 53 Ark. 387, 390, it is said: “It is always competent to interrogate a witness on cross-examination touching his present or recent residence, occupation and associations ; and if, in answer to such questions, the witness discloses that he has no-residence or lawful occupation, but drifts about in idleness from place to place, associating with the low and vicious, these circumstances are proper for the jury to consider in determining his credibility.” In St. Louis, Iron Mountain & Southern Ry. Co. v. Kelley, 61 Ark. 52, 56, it is said: “The extent to which either party may be allowed to cross-examine a witness of the opposing side concerning collateral facts and matters not in issues is a question, to a large extent, within the discretion of the trial court.”
The statutes of this state provide that “a witness may be impeached by the party against whom he is produced * * * by evidence that his general reputation for truth or immorality renders him unworthy of belief.” Sand. & H. Dig., § 2959. In Holliday v. Cohen, 34 Ark. 711, the court said, in speaking of such evidence: “It was in the discretion of the judge to admit or refuse such testimony, according as he might think it too remote or fairly proper to assist the jury in judging of the present veracity of the witness.”
The rule stated in Holliday v. Cohen, is undoubtedly correct. The object of proving the general reputation of a witness fox truth or immorality is to enable the court or jury to determine the degree of credibility the impeached witness is entitled to and the weight to be given his testimony. If the reputation offered to be shown was at a time too remote to assist in judging of the veracity of the witness at the time he is testifying, it would serve no useful purpose, and ought to be rejected. For the same reason, it would be no abuse of the discretion of a court to deny to a party to .an action the privilege of impeaching a witness produced against him by cross-examining him as to his residence, occupation and associations at a time too remote to shed light upon his present veracity.
In the case at bar the defendant sought to cross-examine Mrs. Townsend as to her occupation before her marriage. She was not examined as to the time when her marriage occurred, nor was it shown when she was married. An answer to the question the court overruled would not have shown the time of her occupation before marriage, or that it was sufficiently near the time she was testifying about to throw any light upon her credibility at that time; for it might have been too remote for that purpose. It does not, therefore, appear that the trial court abused its discretion.
The evidence adduced at the trial was sufficient to sustain the verdict.
Judgment affirmed. | [
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Riddick, J.,
(after stating the facts.) This is an action brought for a minor by his next friend to recover damages for injuries received by him from a pool of hot water on the premises of the defendant company.
The case has been twice tried, and is n,ow before this court for the second time. On the first trial the plaintiff rested his right to recover on the fact that the company permitted a pool of hot water on its premises to be covered over and concealed by bark and trash, so that plaintiff, a boy six years of age, while playing on the premises and not knowing that there was a pool of hot water there, walked into it and was burned. On the appeal from the judgment rendered on that trial the ease was reversed by this court, for the reason that the instructions of the trial judge did not submit to the jury the question whether, under the circumstances in proof, the company ought reasonably to have anticipated that children of the age of plaintiff would probably go upon the premises and receive such injury as the plaintiff did receive by reason of the situation and condition of the pool of water at the time of the injury. The court said that “the owner of land is not required to provide against remote and improbable injuries to children trespassing thereon. But he is liable for injuries to children upon his private grounds when it is known to him that they are accustomed to go upon it, and that from the peculiar nature and exposed and open condition of something thereon which is attractive to children he ought reasonably to anticipate such an injury to a child as that which occurred." Now, it seems from some of the instructions given on the second trial that the circuit judge understood from this language that the defendant company was liable in this case if its officers knew that boys about the age of plaintiff were in the habit of playing at or near the pool of water where the injury occurred, and made no effort “to so protect the pool from exposure as would prevent the plaintiff and other children of his age from going into it and receiving injury." But the language of the court in the opinion must be taken in connection with the facts as they were alleged and proved on the other trial. It was alleged on that trial, and the evidence tended to show, that the pool of hot water was concealed by trash and bark, and that the boy, not knowing of its presence, accidentally walked into it and was injured. The court, in effect, said of this state of facts that the mere fact that there was a pool of hot water concealed by bark and trash on the premises of the defendant, into which a boy had accidentally walked and was burned, was not of itself sufficient to make out a ease. This shallow depression into which the water ran from the boiler was on the private grounds of the defendant some distance from the nearest street or traveled way. The water was turned into it only once in two weeks, and remained there but a short time before it cooled or sank into the earth and became harmless. Under these circumstances, the court held, in effect, that the proof must not only show that the pool was concealed and dangerous, but must go further and show that the company knew that boys were in the habit of frequent-\ ing the place, or would probably come there, and would be liable to receive injury from the pool left in such concealed condition. There are few boys of six years of age that do not know that fire or hot water will burn, and if this boy possessed that amount of intelligence, and yet went on the premises of the company, and of his own volition or carelessness walked into an open pool of water that he knew was hot, we think that no recovery can be had for injury thus sustained by him. If the law was otherwise, one could not boil water in an open kettle on his premises without being liable for damages to any boy who should come and put his hand into it, unless he went to extra precaution to prevent the boy from getting to the water. Such a rule, carried to its logical conclusion, would, as said by the supreme court of Pennsylvania, render the owner of a fruit tree liable for damages to a trespassing boy who in attempting to get the fruit should fall from the tree and be injured. It would charge the duty of protecting children upon every member of the community except upon their own parents. Gillespie v. McGowan, 100 Pa. St. 144. We did not intend to lay down such a rule in the former opinion in this case, but we hold that if the company owning the premises had notice that children did frequent the place of this pool, or were from the nature of the surroundings likely to do so, and if it carelessly left a pool of hot water there concealed in such a way that one would reasonably expect it to occasion injury to such children, the company would be liable for damages to a boy who by reason of its concealed nature walked into the pool of hot water and was burned.
An owner of land has the right to use it for any lawful purpose, and this company had the right to operate its manufacturing plant and empty the hot water from its boilers on its own premises when it became necessary to do so, and before it can be made liable for an unintentional injury caused to a boy of six years of age by such hot water, two things are necessary: First, it must be shown that the company had notice that this boy or other children were likely to come upon its premises; and, second, that by reason of the concealed nature of the pool of water, or the want of notice on the part of the children of the condition of the water, injury to them ought reasonably to have been foreseen on the part of the company as a consequence of leaving the pool of water in that condition. Watson, Damages, § 234, page 291.
If the pool of water was open, and not concealed, and the boy had notice that it was hot, we think that the company conld reasonably suppose that a boy six years o£ age would not intentionally or carelessly put his foot into water known by him to be hot, and if he did so, and injury resulted, we do not think the company is responsible. The law on this point was correctly stated in the sixth instruction given at the request of the defendant, and other instructions given at the trial were correct, but others were not so clear, and instruction number one given at the request of the plaintiff seems in conflict with some of those given for the defendant.
^ We said in the former opinion that the instructions were erroneous because they assumed that the company was liable to any child trespassing on its grounds for an injury caused by a concealed pool of hot water, whether there was anything to put the company on notice that a child was likely to come upon the premises or not, and now we must hold that one of them is erroneous for the reason that it assumes that the company, if it had notice that children were accustomed to frequent its premises, is liable for any injury inflicted on a boy by a pool of hot water, though he may have known that the water was hot, and may have possessed sufficient intelligence to appreciate the danger, and yet walked into it of" his own volition or carelessness. Such a rule might be just as to very young children having no knowledge or appreciation of such danger, but a.boy over six years of age should (dmow better than to knowingly or carelessly put his foot into a pool of scalding water. He testified in this case that he did know better. His testimony shows that he knew the water in the pool was hot, and he stepped in it unintentionally. He said that he and a companion were watching the steam rise from the end of the drain where the water ran into the pool. "The pool,” he says, "was covered with bark except where the force of the water had pushed it back at the mouth of the pool. The rest of the pool was covered up with trash and bark, so that the water could not be seen, and where I stepped in I thought it was ground, and did not see the hot water.” This tends to show that he was misled by the concealed nature of the pool. But there is conflict in the evidence on this point, and that question was not fairly submitted to the jury. Instruction one, given at the request of the plaintiff, permitted a recovery without regard to whether the boy had notice that the water was hot or not, or whether the pool was concealed or open. We think that this instruction was erroneous and prejudicial, and for that reason the judgment is reversed, and a new trial ordered.
The appellant did not comply with the rule requiring all the instructions given on the trial to be set out in the abstract, where a reversal is asked on account of error in instructions. For that reason it is ordered that no costs for printing briefs be taxed in its favor. | [
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Riddick, J.
T. P. Poole brought an action before a justice of the peace against 0. H. Parker, and had F. R. Norman, the appellant here, summoned as garnishee. On the return day of the writ of garnishment the garnishee failed to appear, and the justice of the peace gave judgment against her by default. From this judgment the garnishee appealed to the circuit court, and on a trial there judgment was again rendered against her, and she appealed to this court. No bill of exceptions was filed, and the evidence before the circuit court is not before us. TVe assume that the evidence was sufficient to support the judgment, and the only question here is whether there is error upon the face of the record.
The appellant contends that no judgment could be rendered against her in the action against the defendant Burke, and that the judgment was void for the reason that no separate action was commenced against her, and for the further reason that there was at the time of its rendition no judgment against the principal defendant, Burke. It has been frequently held in this state, since the adoption of the Civil Code, that a final judgment against one summoned as a garnishee in an attachment proceeding cannot be rendered in the original action, but that the proper practice, when the garnishee makes default or refuses to pay over the proceeds in his hands, is to commence an original action to recover judgment against him. St. Louis, I. M. & S. Ry. Co. v. Richter, 48 Ark. 350; Giles v. Hicks, 45 Ark. 271.
These decisions were rendered before the passage of the act of April 8, 1889, in reference to judicial garnishments, and the amendatory act of April 19, 1895. Under the practice as regulated by these two acts, it is no longer necessary in all cases to commence a separate action against the garnishee in order to authorize the court to render a final judgment against him, but in the cases covered by these acts final judgments may be rendered against the garnishee upon default made by him, or when on a trial the court finds that he is indebted to the defendant in the original judgment.
It is difficult for us to say from the record in this case whether the plaintiff bases his garnishment proceedings on the acts referred to or not; but, conceding that this is so, and conceding that it was unnecessary to institute a new action against the garnishee, it was. still necessary for the record to show a judgment against the defendant before a final judgment can be rendered against the garnishee. The proceeding against the garnishee is ancillary to that against the defendant. As the object of the garnishment is to reach money or property in the possession of the garnishee, and subject it to the payment of the judgment which the plaintiff may recover against the defendant, it follows that there can be no lawful judgment against the garnishee until after the judgment has been recovered against the defendant. Drake on Attachments, § 460; Adler-Goldman Com. Co. v. Bloom, 62 Ark. 616. When, as in this case, no new action is begun against the garnishee, but the proceedings, against him is in the same action as that against the principal defendant, the judgment against such defendant is a part of the' record in the garnishment proceeding. The record in the proceeding against the garnishee should show that a judgment has been rendered against the principal defendant, for that is the foundation upon which the judgment against the garnishee rests. We do not say that it is necessary that the judgment against the principal defendant should be copied in full in the record, but it should appear from the record in some way that a judgment has been rendered against the defendant. Now, we have carefully examined the transcript in this case, and there is nothing to show or indicate that there has been any judgment against the principal defendant, except for costs in the justice’s court. Neither the judgment against the garnishee rendered in the justice’s court, nor that rendered in the circuit court, recites or refers to any such judgment. It may be that this defect in the record here is due to oversight of the clerk who prepared the transcript, but the point was made in the brief of appellant, and no attempt has been made to remedy such defect in the transcript, if it exists. We must therefore take it that the transcript reflects the facts, and we are of the opinion that the circuit court erred in giving final judgment against the garnishee, when there was no judgment against the principal defendant.
We have not overlooked the contention of counsel for appellee that the judgment appealed from was rendered by consent of the garnishee, but the record does not support such a contention. The record shows a judgment by default before the justice, and a trial de novo and judgment for plaintiff in the circuit court, from which the garnishee appealed. If the judgment was by consent, it should have been amended. As it stands here, the record shows to the contrary. For the error indicated, the judgment is reversed, and new trial granted. | [
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Battle, J.
The board of improvement of Sewer District No. 1 of Fort Smith, Arkansas, filed a complaint in equity in the Sebastian circuit court for the Fort Smith district for the condemnation and sale of certain real estate to pay a special assessment levied upon it for the purpose of constructing sewers, of which sixty-six lots or parcels were the property of the School District of Fort Smith, the same having been returned delinquent on account of the nonpayment of the assessment. The school district was made a defendant. A summons was issued, and in the names of the owners and defendants therein commanded to be summoned the name of the school district appeared sixty-six times; and it was served by the delivery to the school district of sixty-six copies of the same.
Was the sheriff entitled to sixty-six fees for serving the summons by the delivery of the sixty-six copies? This is the only question in the case. The circuit court held that he was entitled to only one fee.
The statutes of this state provide that if any assessment upon real property, made for the purpose of constructing a local improvement, shall not be paid within the time prescribed by law, the collector shall add thereto a penalty of 20 per centum, and return a list of such property to the board of improvement as delinquent, which shall straightway cause a complaint in equity to be filed for the condemnation and sale of the same for the payment of such assessment, penalty and costs of suit; that it shall be no objection to any suit brought for said purpose that the lands of two or more owners are joined in the same proceeding, and such suit may be brought against one or more owners; that the owner of the property assessed shall be made a defendant, if known; and that summons shall be issued, and the defendant shall be required to appear and respond within five days after service. Under these statutes all the assessed property of the same owner may be joined in one proceeding, may be made the subject-matter of the same action. When this is done, there is but one action, and the owner is but one defendant. The fact that sixty-six tracts of his land are joined in the same proceeding does not constitute sixty-six actions, or make him sixty-six defendants. The object of the statute in requiring him to be made a defendant, and that he be summoned to answer the complaint, is to give him notice of the pendency of the proceeding against his property, and the opportunity of setting up his defenses, if he has any. To accomplish this purpose it is not necessary to make him sixty-six defendants and to serve him with sixty-six copies. One is sufficient. The service of the summons by sixty-six copies is only one service, and only one fee therefor is due.
Judgment affirmed. | [
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Hughes, J.
On February 18, 1891, a deed of trust executed by J. T. Jefferson and his wife, Jennie Jefferson, to W. B. Nichols, as trustee for J. C. Neely et al., on the 9th of February, 1893, was filed for record to secure tire payment of $45,759.14 indebtedness to J. C. Neely, evidenced by various notes, acceptances, indorsements and accounts, upon which and for which the said J. C. Neely was severally liable either as joint maker, indorser or acceptor. On January 4, 1896, Nichols, the trustee, foreclosed said deed of trust by sale of the property described therein, by virtue of the power contained in said deed of trust, at which sale J. C. Neely purchased the lands offered for sale thereunder, and after-wards received a deed of conveyance from Nichols, the trustee, for the said lands, which was duly filed for record. In 1893 Pat Gatens obtained judgment against J. T. Jefferson in the Phillips circuit court in the sum of $1,735, and on same day Walter R. Jones recovered judgment against said J. T. Jefferson in said circuit court in the sum of $1,531.25. At the commencement of suits on February 23, 1891, attachments were issued and levied on the lands in controversy as the property of J. T. Jefferson. The attachments were sustained, and the lands ordered sold.
On the 17th of September, 1895, the lands were sold, and Gatens and Jones bought them for $1,000, $500 of which was credited on Gatens’ judgment, and $500 of which was credited on Jones’ judgment. The sale was reported to and confirmed by the court, and a deed for the lands was made to Gatens and Jones, the appellants. January 19, 1898, executions were issued on these judgments, and returned nulla bona.
On October 23, 1897, judgment was rendered in favor of Eugene Dupont et al., against J. T. Jefferson in Phillips circuit court for $8,437.48. Execution issued January 13, 1898, and returned nulla bona.
This suit was brought by the appellants to cancel the trust deed, and sale thereunder by the trustee under the power contained in said deed, by virtue of which deed and sale the appellee J. 0. Neely claims that by purchase he had obtained title to the lands therein described. The theory of the complaint is that the trust deed was made to defraud creditors; that nothing had ever been paid to or for Jefferson, the grantor in the trust deed, when it was executed by him, or before the 1st day of January, 1892; that it was executed to indemnify Neely against loss from the payment of debts which he might have to pay for Jefferson, but had never-paid. The complaint also averred that the 'Claim of J. C. Neely was barred by limitation of three years, being only an implied obligation to reimburse Neely for such payments as he might make on Jefferson’s account; that the demand of Brooks, Neely & Co. was barred by limitation, and had in fact been long since paid and satisfied by the application of payments made by Jefferson; that there was no appraisement of the property before sale; that it was sold for less than two-thirds of its appraised value. These are the material allegations in the bill, which shows, also, that the appellants had obtained judgment against Jefferson, and had bought in the lands, and they claimed that the trust deed to Neely by Jefferson, the sale thereunder, and purchase by the deed to Neely constituted a cloud upon their title.- After considering the testimony and the exhibits to the complaint and answer of the defendants denying the material allegations of the complaint, the court found that there was no equity in the complaint, and dismissed the same for the want of equity. The case -comes up here upon appeal.
We are of the opinion that the complaint and the theory of the appellants as to J. C. Neely’s claim are not sustained by the evidence, and that the decree of the chancellor is supported by the evidence in the ease.
Before the 1st of January, 1892, J. C. Neely, it appears, had paid for Jefferson some $35,000 or more, which, by the provisions of the deed of trust from Jefferson to Neely, became due the 1st of January, 1892, and which the deed of trust was executed to secure.
The provision in the deed of trust referred to in this behalf is as follows: “Whereas the said first party, J. T. Jefferson, is justly indebted to the party of the third part, J. C. Neely, in the sum of forty-five thousand, seven hundred and fifty-nine dollars and fourteen cents ($-15,759.14), evidenced by various notes, acceptances, indorsements and accounts upon which and for which the said third party is severally liable either as joint maker, indorser, or acceptor; and whereas, the said first party is unable to pay them, or his share thereof, at the present time, or when the same shall become due and payable; and whereas, the said third party will or may have to pay the whole thereof; and whereas, the first party is desirous of securing the repayment thereof to the said third party on or before the 1st day of January, 1892, at which time said sum is to be due and payable; and whereas, it will be necessary for said first party to have supplies and money furnished and advanced by some one to enable him to bear his share of the expenses in planting, cultivating and gathering the crops to be grown during the current year on the lands above herein described, which the said third party has agreed to make and advance in such amounts, quantities and sum and at such times as may in his judgment and discretion seem right and proper, the amount thereof to be evidenced by the books of account of the said party of the third part, and to be due and payable on the last day of January, 1892; and whereas, the said party is also justly indebted to the firm of Brooks, Neely & Co. and the other third party in the sum of fifteen thousand dollars, evidenced by account for that sum now due, but the time of payment of which in consideration of this conveyance and security is extended to the 1st day of January, 1892, at which time the same is made due and payable.”
According to the terms of this portion of the deed of trust, Jefferson agreed and undertook to repay to J. 0. Neely all sums Neely might pay for him before the 1st of January, 1892. The sale under the deed of trust, at which Neely bought the lands in controversy, took place on January 4, 1896. Less than five years — • only four years and three days — had elapsed between the 1st of January, 1892, and the sale of January 4, 1896. Therefore the statute of limitations had not barred Neely’s right to foreclose the trust deed when the sale was made under it for the debt which was due on the 1st of Januarjq 1892, and which the deed of trust was made to secure. Neely bought in the property at the sale for $30,000, having before the 1st of January, 1892, paid of Jefferson’s debts over $35,000.
We think the debt of Brooks, Neely & Co. had been extinguished through the application of payments made by Jefferson before the 1st of January, 1892.
The decree of the chancellor is affirmed. | [
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Kiddick, J.,
(after stating the facts.) The defendant was convicted of an assault and battery upon one Joe Meeks. He makes on this appeal no complaint that either the indictment or the evidence was insufficient to warrant the judgment, and only contends that his plea of former conviction should have been sustained. But, if we assume that the plea of former conviction was sufficient in form, still the transcript of the judgment in the mayor’s court, introduced in evidence, upon which defendant relies to support his plea, does not show that the defendant was convicted of an assault and battery in the mayor’s court. After reciting that defendant was arrested and charged by the city marshal with that offense, it states that “tire court, after hearing the testimony of witness Mil-burn Keese, together with what the court saw that the defendant did, finds the defendant is guilty of violating ordinance number 25 of said town.” Then follows a judgment imposing a fine of ten dollars. In other words, the transcript shows that the defendant was fined ten dollars for violating ordinance number 25 of the town of Nashville, but there is nothing to show what that ordinance was. We may, of course, surmise that, as the defendant was arrested for an assault and battery, and pleaded guilty to the charge, the judgment of conviction was for that offense. But, if this was so, the mayor should have been required to amend his docket entry so as to reflect the facts, or ordinance, number 25 should have been proved. As the docket was neither amended or the ordinance proved, we are not able to say from the record that the defendant was convicted and fined for an assault and battery in the mayor’s court, or that the circuit court erred in . rejecting the plea of former conviction. The judgment of the circuit court must therefore be affirmed. It is so ordered. | [
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Wood, J.,
(after stating the facts.) First. A widow is a competent witness against the executor of her deceased husband, unless her knowledge of the facts was obtained through confidential communications from her husband. The statute is declaratory of the common-law rule. The statute provides: “ The following persons shall be incompetent to testify:
“Fourth. Husband and wife, for and against each other, or concerning any communication made by the one to the other during the marriage, whether called as a witness while that relation subsists or afterwards; but either shall be allowed to testify for the other in regard to any business transacted by the one for the other in the capacity of agent.” Sand & H. Dig., § 2916.
“The great object of the rule,” says Mr. Greenleaf, “is to secure domestic happiness by placing the protecting seal of the law upon all confidential communications between husband and wife; and whatever has come to the knowledge of either by means of the hallowed confidence which that relation inspires cannot be afterwards divulged in testimony, even though the other party be no longer living.” 1 Greenl. Ev. § 337.
The facts proved by the widow were in no sense confidential communications, and, death having ended the marriage tie, she was not excluded by either the letter or spirit of the statute. Pratt v. Delavan, 17 Ia. 307; Denbo v. Wright, 53 Ind. 226; Floyd v. Miller, 61 Ind. 224; Griffin v. Smith, 45 Ind. 366; Mercer v. Patterson, 41 Ind. 440; Beveridge v. Minter, 1 C. & P. 364; Jackson v. Barron, 37 N. H. 494; Smith v. Potter, 27 Vt. 304; French v. Ware, 65 Vt. 338; Stuhlmuller v. Ewing, 39 Miss. 447; 1 Greenl. Ev. § 338; Stein v. Weidman, 20 Mo. 17; Cornell v. Vanartsdalen, 4 Pa. St. 364; Saunders v. Hendrix, 5 Ala. 224; McGuire v. Maloney, 1 B. Mon. 224; Caldwell v. Stuart, 2 Bailey, 574.
In the Missouri and Mississippi cases cited supra the witness was called for the estate of her deceased husband. But under our decisions that could not lessen their authority. Collins v. Mack, 31 Ark. 684; Watkins v. Turner, 34 Ark. 663.
Mr. Rodgers, in his excellent work on Domestic Relations, at section 285, under the title “When Survivor May Testify,” correctly announces the law as follows: “It is no invasion of the policy of the law protecting confidential information possessed by husband and wife for him or her to testify" as to any facts which may have come under observation during the marriage, where the information sought to be elicited by such evidence comes to the knowledge of one or the other, not by reason of the confidential relation, but from observation or otherwise, not as a family secret or in mutual confidence.
Second. The testimony of Mrs. Graves shows that her husband promised plaintiff (appellee) that he would hire a hand to work in plaintiff’s crop while the plaintiff was nursing him; but it does not show that the amount to be paid such farm hand was fixed as the measure of plaintiff’s compensation. There was, therefore, no error in appellant’s request for instruction.
Third. The declarations of deceased were against interest and admissible. 1 Greenl. Ev. § 147.
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JOHNSON, J.
This is an action of covenant, brought by Clark and Patton against Hartfield, on the following covenant: — “Arkansas Territory, Sevier County. Articles of agreement made and entered into between John Clark and Benjamin Patton, of the first part, and Ása Hartfield, of the second part witnesseth: that the party of the first part hath this day bargained, sold, and delivered to the party of the second part all their right, claim, interest, and possession of the salt on Little river, known as the Little River Saline, together with the salt kettles, also the farm attached to said premises; and it is understood that if the party of the second part should be dispossessed of the aforesaid premises by any law of congress passed at the last session thereof previous to the time any one of the payments which are to be made in manner hereinafter described, then and in that case the party of the first part doth declare all such payments to be null and void. In consideration of which, the said party of the second part is to pay the party of the first part the sum of $4,500, as follows: $1,350, which is paid in advance; $1,500 in salt, as follows, namely, $1,200 to be paid at any place or places on the bank of Red river, below the mouth of Little river and not below the Long prairie, which may be designated by the party of the first part, at the rate of $1.50 per bushel, and required to pay $300 at the aforesaid Saline at one dollar per bushel, and if not required there, to pay at the same time and places of the aforesaid, $1,200 in salt, at $1.50 per bushel, on the first day of December, 1831, if the water will admit of its being taken at that time, if not, at the first sufficient rise thereafter; the other payment of $1,500 to be made on the 1st December, 1832, on the same conditions and at the same places as the foregoing payments; also 150 bushels of salt, at the aforesaid salt-works, in the course of next winter, spring, and summer, as required, when he may have salt on hand.”
The above agreement was signed and sealed by the parties on the 16th of September, 1830. The plaintiffs, Clark and Patton, in their declaration averred the failure of the defendant Hartfield to deliver the salt at the times and places specified in the articles of agreement aforesaid, and claim damages therefor. The defendant demurred to the declaration, which demurrer was overruled by the court, and afterwards he filed two pleas; the first a plea of set-off, and the second that the plaintiffs did not give notice to the defendant of the place for the payment and delivery of the salt, on which issues were joined. On the trial before the court below, a jury having been dispensed with by consent, a judgment was rendered in favor of the plaintiffs, from which this writ of error is prosecuted.
The first point relied upon for the plaintiff in error is, that the declaration is fatally defective in not averring notice of the place for the delivery of the salt By the terms of the contract, the salt was to be delivered at any place or places on the banks of Red river, below the mouth of Little river and not below Long prairie, which might be designated by- Clark and Patton. There can be no doubt that Hartfield might have performed his contract by delivering the salt at any place on the banks of Red river, below the mouth of Little river and above Long prairie, in the event of the failure or omission of Clark and Patton to designate a place between those points. Clark and Patton might or might not designate a particular place, and their omission to do so did not prevent Hartfield from delivering the salt at any convenient point he might select between the places specified. There was then no necessity for the averment of notice of a place for the payment and delivery of the salt, as a place was designated by the contract itself. The declaration, in our opinion, is not defective in omitting to aver notice before the times specified for the delivery of the salt. The other objection to the declaration in relation to the dispossession of Hartfield by any law of congress passed at the last session thereof before the date of the writing obligatory, is so clearly untenable, that it is unnecessary to remark upon it. The cause was tried upon the pleas of set-off and the failure of Clark and Patton to give notice of a place for the payment and delivery of the several quantities of salt in the agreement specified. The issue formed upon this latter plea was clearly immaterial, and a question arises whether a repleader ought not to have been awarded. The doctrine is well settled, that a repleader is never awarded in favor of him who commits the first fault in pleading. 3 Bibb, 84, 226. Nor is it ever awarded where one issue is material, though other issues are immaterial; and (Id. 168), on both of these grounds, a repleader should not have been awarded. 2 Tidd, Pr. 830; Willes, 532; 1 Ld. Raym. 170; 1 Doug. 306. Judgment affirmed. | [
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Wood, J.
This suit was brought by appellant for himself and others to test the validity of the following ordinance passed by the council of the city of Pine Bluff, to-wit:
“Section 354. Every person engaged in running any dray, wagon or other vehicle, hauling passengers, wares, goods, merchandise or other freight of any kind for hire in this city, shall be required to pay for such privilege an annual license fee of twelve dollars for each dray and twenty dollars for each two-horse wagon or other vehicle so operated, and in default of the payment of such license fee shall, on conviction, be fined in the sum of twenty-five dollars. Every such license issued by the city clerk shall be numbered consecutively, and shall be for but one vehicle, and the clerk shall, at the expense of the city, furnish to the person licensed a number cut out of tin or other metal with figures not less than one and one half inches in height and of proportionate width, which number shall correspond with the number of the license, and shall be affixed to and kept conspicuously displayed on the vehicle so licensed during all the time such license is in force. A failure to keep such number displayed shall subject the person holding such license to a fine of not less than five dollars for each day of such failure.”
The appellant contended that the ordinance was for the purpose of raising revenue for the city. The appellee contended that it was for the purpose of defraying the expense of issuing and recording the license, and for the purpose of police regulation. The ordinance was within the express power conferred upon municipalities by the legislature. Sand. & H. Dig., § 5139. We cannot say upon the face of the ordinance that the license fees prescribed are unreasonable. There was proof pro and con, but we think the finding of the chancellor was not clearly against the preponderance of the evidence. There was ample proof to sustain a finding that the purpose of the ordinance was for regulation, and not for revenue. The conditions of travel and traffic in the city of Pine Bluff, according to the proof, justified police supervision over the vehicles named. While it appears from the evidence that the amounts prescribed would be greatly in excess of the amount required for the expense incident to the mere issuing and recording the license, it does not appear, by a manifest preponderance of the evidence, that the sums are more than are necessary for police regulation. See following cases: Fort Smith v. Ayers, 43 Ark. 82; Russellville v. White, 41 Ark. 485; Fayetteville v. Carter, 52 Ark. 301; Hot Springs v. Curry, 64 Ark. 155.
Affirmed. | [
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Riddick, J.,
(after stating the facts.) This was an action of ejectment, which was, on motion of the defendant, transferred to the equity docket, and tried as an equity case by the judge of the circuit court. But an examination of the defense set up by the answer shows, as we think, no sufficient ground for the transfer of the case of the equity docket. The defenses set up in the answer were legal defenses. The answer presented no defense calling for equitable relief, and the case should have been tried at law. But, though the plaintiff objected to the transfer of the case to the equity docket, she does not now press that point as ground for reversal. The only substantial thing the transfer to equity effected was to bring the issues of fact presented before the judge for trial, instead of before a jury, and the case is now very much in the attitude of a case at law tried before the judge sitting as a jury, and afterwards appealed to this court.
We have given the case careful attention, and our conclusion is that the finding of the circuit judge to the effect that Emile Grober was the owner of this land at her death, that under the law her father took only a life estate, and that after his death the title vested in Theresa Grober and Rhinehold Grober, the brother and sister of Emile Grober, is sustained by the law and the evidence. Kelley’s Heirs v. McGuire, 15 Ark. 555.
The testimony of Mrs. Matilda Jackson bearing on the execution of a deed from Emile to her father is not convincing to our minds, and we think the circuit judge was justified in rejecting it.
As Theresa Grober was a married woman at the time of her sister’s death, and remained so up to the time of the bringing of her action of ejectment, we think that it is clear she was not barred by the statute of limitations.
The doctrine of laches, invoiced by the defendant, does not apply to a case where the plaintiff is not asking any equitable relief but seeks only to enforce a plain legal title in a court of law, and where her action is not barred bjr the statute of limitations in reference thereto. Rowland v. McGuire, 67 Ark. 320; Wilson v. Nichols, 72 Conn. 173; Broadway Nat. Bank v. Baker, 176 Mass. 294; Wood, Limitations, § 60, note a.
But, whatever view may be taken of that question, the facts and circumstances in proof, we think, fully justified the circuit judge in overruling this defense and finding in favor of the plain tiff on that issue. This disposes of the questions presented by the appeal of the defendant.
As to the cross appeal, we must also say that no ground for reversal is shown. The 40 acres claimed by the defendant were, it is true, forfeited to the state for nonpayment of taxes after the death of Emile and before the expiration of the life estate held by John C. Grober. But neither McFarlane nor Gunter, who purchased this tax title from the state, were in possession of the land, or had any claim to it at the time it was forfeited, nor were they under any obligation to pay the taxes for which it was-sold. Long after this tax sale, and when the title had become vested in the state, Gunter purchased the land from parties holding through conveyances from Grober purporting to convey the title in fee. Gunter believed that he was acquiring the title in fee, but, finding that this 40 acres had been sold to the state for nonpayment of taxes, and that the state was the owner thereof, he purchased it from the state, and afterwards sold it to McFarlane. One in possession of land under claim of title may strengthen his title thereto by the purchase of an outstanding title. Coxe v. Gibson, 27 Pa. St. 160. While a tenant for life whose duty it is to pay the taxes will not be allowed to acquire a title against the owner of the fee by permitting the land to be sold for taxes, — in other words, while one whose duty it is to pay the taxes will not be allowed to profit by a failure to discharge the duty, — yet the rule does not-apply here, for the claim of Gunter to the land was not in recognition of the rights of the plaintiff, but adverse to them. He was not in any way to blame for the forfeiture of the title to the state through the nonpayment of the taxes, and he stands in no such relation to the plaintiff as makes it unjust or inequitable that he should set up against her this title acquired from the state. We therefore think that the contention of the defendant on this point must be sustained. Blackwood v. Van Vleit, 30 Mich. 118; Coxe v. Gibson, 27 Pa. St. 160; Lybrand v. Haney, 31 Wis. 230; Cooley, Taxation (2d Ed.), 508.
Although, for the reason that she was a married woman, the statute of limitations did not bar the right of the plaintiff to recover the undivided half interest in the land owned by her, yet it commenced to run against Rhinehold Grober on the death of the life tenant, John C. Grober, if not before, and the conveyance of Rhinehold to his sister, the plaintiff, did not stop the statute, and the right to recover the undivided interest owned by him was clearly barred before the commencement of this action. On the whole case, we think the judgment should be affirmed, and it is so ordered. | [
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Bunn, C. J.
The evidence in these two cases is the same in all essential particulars, and they were heard together, and will be considered so here.
This suit was originally in ejectment, but on coming in of the answer and cross complaint the cause was transferred to the First chancery district, and heard before the Hon. Thomas B. Martin, chancellor, and decree was rendered for defendant, and plaintiffs appealed to this court. The facts are substantially as follows, to-wit: J. W. Jones, being the owner of the following lands situated in White county, Arkansas, namely: “seventy acres in the east half of northwest quarter, section 17, township 5 north, of range 8 west; and the north half of lot No. 2 in block 16, and lot 10 in block 3, in Iiutffs survey of the town of Beebe; also the east half of southeast quarter and east half of southwest quarter of section 33, township 6 north, range 8 west, containing 100 acres, more or less” — sold and conveyed the same to his wife, Nancy J. Jones, for the expressed consideration of $28, on the 9th of April, 1875; and this deed was recorded April 10, 1875. In this deed is a clause explaining the consideration as follows: “The above conveyed land was purchased with the money belonging to Nancy J. Jones, obtained from the sale of stock and real estate sold in the state of Mississippi, which was owned by her previous to óur marriage, and placed in my hands in trust to purchase real estate for her benefit and .children by me.” This deed was acknowledged before a justice of the peace, but his certifícate was not in accordance with the provisions of the statute, the word “consideration” and all equivalent words being omitted. This deed is exhibited with the complaint, and is that upon which the claim of plaintiffs for title rests. Nancy J. Jones died in 1879.
The appellee, Robert Seaborn, claims title to fifty-eight acres of said lands by deed from Samuel B. Shipley, dated April 13, 1881, who held by deed from said J. W. Jones, dated September 2, 1886, who held by deed from J. W. House, as administrator of Samuel A. Taylor, dated August 31, 1886, and Samuel A. Taylor held by deed from said J. W. Jones and wife, Nancy J. Jones, dated December 29, 1876, and in this deed the said Nancy J. Jones united with her said husband in the conveyance or granting clause, and also relinquished her dower in due form. .The appellee D. C. Harris claims two acres of said land by purchase of her co-appellee, Robert Seaborn; the, appellee S. E. Humphries, five acres of said land purchased from said Samuel B. Shipley by deed dated June 1, 1888. Appellee Martha Boss claims by deed from H. B. Strange dated December 2, 1876, lot 3 (one acre) off of west half northwest quarter section 17, township 5 north, range 8 west, and lot 4 (one acre) in Jones’ addition to Beebe (this being no part of the land conveyed by J. W. Jones to his wife as aforesaid). Strange held by deed from Edward Mahoney, dated March 20, 1874, and Mahoney by deed from J. W. Jones and wife, Nancy J. Jones, dated October 14, 1873, before the date of the deed from J. W. Jones to his wife. Appellee Humphries claims five acres of said land by deed from Samuel B. Shipley, dated June I, 1888. Appellee Henry Folsom claims title to lot 2 in Jones’ addition to the town of Beebe, a part of said lands by deed from said J. W. Jones and Nancy J. Jones, his wife, to Mary E. Bowles, dated July 24, 1874, by deed from Mary E. Blair (nee Bowles) to J. M. Gowdy, dated November 1, 1884; by deed from J. M. Gowdy to A. J. Smith, dated October 3, 1885; by deed from A. J. Smith to T. J. Camp, dated January 5, 1888, and by deed from T J. Camp to himself, dated April 20, 1889. These are the defendants and appellees in case No. 4501.
These eases, Nos. 4500 and 4501, resting on substantially the same essential facts, are heard together here.
It appears that in all the aforesaid deeds made by J. W. Jones and Nancy J. Jones, his wife, both before and after his deed to his said wife (April 9, 1875), the wife joined in the granting clause, and also relinquished her dower. The rule laid down in this court in Bryan v. Wilburn, 43 Ark. 28, and still adhered to, is, as expressed in the syllabus, the following: “Since the adoption of the constitution of 1874 (October 30, 1874) a married woman can convey her separate property the same as if she were single; and where she joins her husband in a deed of her land, and also relinquishes dower, the deed will convey the fee, though she acknowledges only the relinquishment.”
The case at bar comes under this rule, especially as to all the parcels of land conveyed by J. W. Jones and his wife, Nancy Jones, after the date of the adoption of the present constitution, and as to these lands Mrs. Nancy J. Jones conveyed all the title she had, and so conveyed the fee. Whether the conveyance of the one or two small parcels made before the adoption of the constitution come under the rule it is not necessary to determine here, since up to April 9, 1875, all these lands appeared on the records, and also appear from the evidence as having been always considered the property of J. W. Jones, and the parties appear to have bought with that understanding. His deeds carried the title to innocent purchasers at least. From the evidence no one appears to have ever known or heard that Mrs. Nancy J. Jones ever at any time laid claim to any of this property.
The land claimed by Hill, Fontaine & Co., appellees in case No. 4500, appears to be lot 10, block 3, in Hutt’s survey of the town of Beebe. The land was purchased from J. W. Jones and his wife, Nancy J. Jones, by J. M. Battle about January 1, 1878. The deed is not exhibited. Battle testifies that he took possession under his deed about that time. The deed, according to Battle’s testimony, was made by J. W. Jones and his wife, Nancy J. Jones. He says he had heard Jones say before that that he was going to put his property in his wife’s name, he being in financial troubles at the time; but understood from Jones when he bought that he had made and then, before delivery, destroyed the deed he intended for his wife. The property conveyed in this deed to Battle is that involved in case No. 4500. Battle, who was well acquainted with Jones and his family, never heard of any claim to any of the property by Mrs. Jones, while she lived. Moreover, there does not appear to be any contention as to Battle’s title. He occupied the property he bought about five years, and then sold to Naylor, who put improvements on the property, as all must have known, and mortgaged it to Hill, Fontaine & Co., who foreclosed the same, and became the owners of it by purchase at foreclosure sale.
The findings of the chancellor are not set out in the record of either case, but, assuming that his findings were in fact the same in both cases, for the facts in evidence appear to be the same substantially, his decree dismissing the complaint and cross complaint in each case is in all things affirmed. | [
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Wood, J.,
(after stating the facts). The question here is, did appellant lose the right to the statutory allowance for which she petitions by failing to have the personal property appraised, as provided by section 3 of the act of April 1, 1887 ? That section is as follows: “Be it further enacted that any widow desiring to avail herself of the provisions of this act shall, -within thirty days after the death of deceased, cause to be made an appraisement of all'the personal property of the estate by three disinterested householders of the county, whose duty it shall be to view and appraise all the personal property of the estate except such articles as are reserved as the absolute property of the widow by section 2 of this act, and shall make a full and complete list of the same, describing each article and the value thereof, and showing the total value of the appraisement, which shall be signed by them, or any two of them, and attach thereto an affidavit reciting that they are not of kin to the widow or the deceased, and not in any way interested in the estate, and that they have to the best of their abilities appraised the property to them shown, and each of said appraisers shall receive for his services the sum of $1 for each day he may have been engaged in making said appraisement, to be paid by the person for whose benefit the same was made, and the list of appraisement shall be immediately filed with the clerk of the county court of the county; provided, no widow or children of anjr deceased person shall ever be barred of any of the benefits of sections 1 and 2 of this act by failure to make appraisement or file list of same within the time specified in this section.”
An act of January 2, 1852, provided that “when anyone shall die, leaving a widow or children, and it shall be made to appear to the court that the estate of the deceased does not exceed $300, the court shall make an order that the estate vest absolutely in the widow or children,” etc. Under this act we held that the title to an intestate’s estate vests in the widow or children; that the law, propio vigore, gave the right to the widow to retain in her hands the whole estate, without liability to account if it was in fact of less value than $300. Hampton v. Physick, 24 Ark. 561; Word v. West, 38 id. 243; Wolff v. Perkins, 51 id. 45. The first section of the act of 1887, fixing the allowance, is couched in similar language to that of the act of January 2, 1852, and the same construction must be given it, so far as vesting the title, is concerned. Under the act of 1887, as under the act of 1852, the title vests when the facts in reference to the value of the personal estate prescribed by the statute exist, regardless of whether such facts are ascertained in the manner pointed out by the statute or not. .The proviso to section 3 but recognizes and follows the liberal construction which this, court had placed upon a statute making the allowance in similar terms. Under that statute the order of court was not a prerequisite to the investiture of title. That would seem to be of more importance than the matter of appraisement.
The design of the legislature doubtless was to point out an expeditious, impartial and accurate method of ascertaining the value of the estate at the cost of the person for whose benefit the proceeding is instituted. But it was not intended to be made a condition precedent to the vesting of title in the estate. The statute concerning appraisement is directory. We think the proviso should be construed to mean that the failure to make the appraisement would not forfeit the vested estate, nor, if made, would the failure to file the list of same within the time specified work a forfeiture.
The burden of proving the value of the estate is on the person benefited. But it was not questioned in the court below that the value of the estate was less than $800. Nor was there any proof to show that it exceeded $300. The report of sale was accepted, without objection, as the only proof of the value of the estate.
The title to the property in the hands of the administrator at the time of the sale being in the appellant, she is now entitled to the proceeds in his hands.
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Hughes, J.
(after stating the facts). The only question for the consideration of the court is whether the warning order in the overdue tax proceeding was entered of record as required by the act of 1881, p. 63. The act provides:
Section 1. “That hereafter' any citizen of this state, who shall give security for costs, may file a complaint in equity in the name of the state, in the court having equity jurisdiction,” etc.
Section 2. “ On the filing of such complaint the clerk of the court shall enter on the record an order, which may be in the following form,” etc.
“ Circuits courts- shall have exclusive jurisdiction * * * as courts of equity.” Sand. & H. Dig., § 1115.
“ The records of proceedings at law shall be in books separate and distinct from the records and proceedings in equity.” Sand. & H. Dig., § 1293.
That the act contemplated that the warning order should be placed on the chancery record is too plain for contention. The suit shall be in equity. The records of its progress must be kept on the equity record, in books separate and distinct from the records of cases at law. If this requirement of the statute is designed to serve any purpose, then it is mandatory. In Gregory v. Bartlett, 55 Ark. 34, this court said, in speaking of the notice required by this act: “When this requirement of the statute is complied with, it furnishes to the owner of delinquent lands a means of information which the statute designed he should receive. Searching the records and finding no order for proceeding against his land, he had a right to presume none existed. There is nothing in the statute to indicate that the legislature considered the entry of the order upon the record as of any less significance than the publication of it. * * * The statute does not authorize the clerk to make the order in any manner other than by entry on the record, and authorizes publication of nothing except a copy of the record. To say that the clerk can dispense with the record and make his entry in the-first instance in a newspaper would be to disregard a plain provision of the statute, and dispense with one of the means the law affords for imparting information to the landowner. But when a statutory provision is plain, and is made to aid in the accomplishment of a useful end, it cannot be treated as merely directory, and so be disregarded.” It is true that in this case of Gregory v. Bartlett there was no order made, as far as the record showed. Nevertheless it bears on this case.
The judgment is reversed, and the cause is remanded, with directions to enter a decree for appellants. | [
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Hughes, J.,
(after stating the facts.) Section 3510 of Sandels & Hill’s Digest provides that “the plaintiff shall, on the day on which he sues out his writ of garnishment, prepare and file all the allegations and interrogatories, in writing, with the clerk or justice issuing said writ upon which he may be desirous of obtaining the answer of such garnishee touching the goods and chattels, moneys, credits and effects of the said defendant, and the-value thereof, in his hands and possession at the time of the service-of said writ of at any time thereafter.”
The allegations and interrogatories in this case bear the file-mark of the; clerk of December 28, 1896. The circuit court in its judgment recites that “it further appearing to the court that on said! 12th day of December, 1896, plaintiffs sued out a writ of garnishment, etc., and that on the same day plaintiffs prepared and filed herein with the clerk of this court their interrogatories and allegations in writing.”
The file mark of the clerk shows they were filed -on the 28th of December, more than ten days after the writ of garnishment was sued out, but the judgment of the court recites that it appears they were filed the 12th of December, the day on which the writ of garnishment was issued. If the court’s finding was correct, there was a full compliance in this behalf with the statute quoted above.
The question is, which must control, the file mark of the clerk or the recital in the court’s judgment? There was no bill of exceptions in the case, and we are bound to presume that there was other evidence than the file mark which warranted the court’s finding that the allegations and interrogatories were filed on the 12th of December, the day the writ of garnishment was issued. “Every act of a court of competent jurisdiction shall be presumed to be rightly done till the contrary appears.” Ex parte Woods, 3 Ark. 532; McKnight v. Smith, 5 Ark. 409.
Judgment affirmed. | [
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Battle, J.
The Gate City Co-operative Grocery Company recovered a judgment in the court of W. J. Smither, a justice of the peace of Miller county, in this state, against R. J. Southerland, for the sum of twenty-four dollars and costs. Upon this judgment the grocery company sued out a writ of garnishment against the St. Louis Southwestern Railway Company. The garnishee answered denying indebtedness to the defendant, and plaintiff denied the answer. The issue joined was tried by a jury, and they returned a verdict in favor of the plaintiff. On this verdict a judgment was rendered against the garnishee for thirty dollars and three cents: and it appealed.
The evidence adduced at the trial shows the existence of two-corporations. One was the St. Louis Southwestern Railway Company. It was incorporated in the state of Missouri, and its railway extends to the state line between the states of Arkansas and Texas at Texarkana. The other was the St. Louis Southwestern Railway Company of Texas. It was incorporated under the laws of Texas, and its railway begins at the state line between the states, of Arkansas and Texas, at Texarkana. The defendant, R. J. Southerland, was in the employment of the latter company. The former company owed him nothing. The fact that some of the officers of the two companies were the same persons did not show that they were jointly liable to the defendant for his wages. The undisputed facts show that the two companies were separate and distinct corporations, and there was no evidence to show that they were jointly liable, or that the appellant was separately liable or indebted to the defendant, Southerland, for any amount.
The judgment of the circuit court is therefore reversed, and a final judgment is rendered in favor of the appellant. | [
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Hughes, J.,
(after stating the facts.) It has been several times held by this court that where lands are claimed by another and held adversely, a suit in equity for partition will not lie. The remedy is in ejectment to settle the title, before a bill for partition can be maintained. The remedy by ejectment is complete and adequate. The will can be construed in a suit by ejectment, and the title settled. Moore v. Gordon, 44 Ark. 334; Criscoe v. Hambrick, 47 Ark. 235; London v. Overby, 40 Ark. 155.
The will in this case bequeathed a legal title only. “So far as a will of real property bequeaths purely legal estates, and the devisees therein obtained purely legal title to the land given, the enforcement thereof belongs to the courts of law bjr means of the action of ejectment; the courts of law have Ml power to control and interpret the instrument and to determine the rights of the devisees; there is no necessity, and therefore no power, of resorting to a court of equity in order to obtain a construction of such wills.” 3 Pomeroy, Eq. Jur. § 1155. “The special equitable jurisdiction to construe wills is simply an incident to the general jurisdiction over trusts. * * * A court- of equity will never entertain a suit brought solely for the purpose of interpreting the provisions of a will without any further relief, and will never exercise a power to interpret a will which only deals with legal estates or interests, and which makes no attempt to create any trust relations with respect to the property donated. * * * It is by reason of the jurisdiction of courts of chancery over trusts that courts having equitable powers, as an incident of that jurisdiction, take cognizance of and pass upon the interpretation of wills. They do not take jurisdiction of actions brought solely for the construction of instruments of that character, nor when only legal titles are in controversy.” 3 do. § 1156.
As only a legal title was bequeathed by the will, without the creation of any trust, equity had no jurisdiction.
The demurrer was properly sustained.
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Wood, J.-
This suit is on a fire insurance policy. The fire occurred on the 6th of December, 1895. Suit ivas first brought on the 13th of February, 1896, and on the 24th of December, 1896, the plaintiff, took a nonsuit. On the 5th of January, 1897, she again brought suit in the Pulaski circuit court. The policy contains, this provision: “No suit or action on this policy for the recovery of any claim shall be sustainable in any court of law or equity, * * * unless commenced within twelve months next after the fire.”
Under this provision was the action barred? Section 4144, Sand. & H. Dig., provides: “In all actions against insurance companies upon policies of insurance issued by them, if the plaintiff shall suffer a nonsuit, * * * such plaintiff may commence a new action from time to time within one year after non-suit suffered * * *; and no stipulation contained in any policy of insurance shall avail to deprive the plaintiff in such action of any of the benefits of this section, but the same shall apply to the limitation of the time of suing stipulated for in the policy of insurance.” No stipulation in a policy of insurance, written since this law was passed, providing a limitation on the right to sue, can avail to deprive the plaintiff of the benefits of the above section. Parties cannot stipulate for a limitation in conflict with the law. The above statute controls, and the action is not barred. Under the general statute as to nonsuits, a voluntary nonsuit taken is within the purview of the statute. So here a nonsuit taken is a nonsuit suffered. The word “suffer” is used in both statutes.
On cross-examination the plaintiff, without objection, testified that she was born in the West Indies; met her husband in New York City; married him in New Jersey, where, she said, it was not necessary to get license; went from New York City to Chicago; remained there three years; and from there went to Lexington, where she lived about two and one-half years, keeping house part of the time. She had a house burned, or rather damaged by fire, there, which was insured for a trifle, and collected the insurance money. After leaving Lexington she traveled for a while; then went to St. Louis to visit friends; and from St. Louis she went to Pine Bluff. At Pine Bluff she rented a building from Mrs. Smart, where she lived. There she had her furniture and wearing apparel and that of her husband insured in her name, which was burned, and she collected the insurance money for all except the piano, which was insured, and worth $500, for which she received no insurance. They (insurance companies) paid the insurance without trouble because they knew how it caught. There was a storm, and the electricians said it caught by the electric wires, etc.
There was ample proof (circumstantial) in the record tending to show that the fire which caused the loss in controversy was produced by the willful negligence or connivance and procurement of the plaintiff herself; but the jury has determined that issue in her favor, and we cannot disturb its verdict, for it is not without sufficient legal evidence to support it.
The defendant, among others, make the following request for instructions: “The jury are the sole judges of the credibility of the witnesses and the weight to be given to their testimony, and in passing upon the testimony of any witness the jury have a right to take into consideration the interest any such witness may have in the result of this trial, the manner of testifying, and the former life or history any such witness may have given of him or herself in this case;” which the court refused. On the credibility of witnesses, the court gave the following: “You are the sole judges of the credibility of these witnesses and of the weight of the testimony that is given you. The law has wisely placed that, and made that the province of twelve men selected from the county to listen to the evidence, weigh it, and give a fair consideration to the testimony of the different witnesses. The court cannot obtrude upon that part of your duty, and would not do it, but simply asks you now fairly to consider and determine the evidence. Take the different witnesses, and give to each one such, and such only, weight as you, in your fair and deliberate judgment, using your common experience and common sense in regard to such matters, think they are entitled to, and then, giving the weight to the different witnesses in determining their credibility, you take the whole evidence, and determine what facts have been proved to you, and apply the law the court gives you to these facts, and deduce your verdict therefrom."
The court fails in the above instruction to call the attention of the jury to any of the well-established legal tests and methods by which the credibility of witnesses is determined. The jury are told to use their common experience and common sense in regard to such matters. The jury might not have any common experience about determining the credibility of witnesses who testify in court, and their common sense might not enable them to fix any definite and certain rules upon the subject. Such a standard would be capricious and variable. The law has wisely recognized certain tests and methods, such as “interest in the result of the suit," “manner of testifying," etc., which, when applied to the testimony of witnesses, will enable the jury to determine what weight or credit to give their testimony.
The defendant certainly had the right to have these familiar tests applied in this case. The right to recover was based almost entirely upon the testimony of the plaintiff herself. The jury should have been told specifically that they had the right to consider the interest of any of the witnesses in the result of the suit and their manner of testifying in determining their credibility. It was not improper or prejudicial either in this case to tell the jury they might consider the former life or history of any witness, as given by himself or herself, in determining their credibility. The testimony as to such history or life was elicited on cross-examination, and went before the jury without objection. It might not have been error to have omitted the clause as to the life and history, in as much as there was nothing in such history or life to discredit the testimony of any witness, but, such being the case, the witness-plaintiff cannot complain of what she said, without objection, of herself, and no prejudice could have resulted in telling the jury that they might consider such life or history.
The court was not asked to tell the jury to consider such life or history for or against the witnesses in determining their credibility.
Various other questions were raised, but they involve familiar principles, and we deem it unnecessary to discuss them.
For the error in refusing the request of the defendant (appellant), supra, the judgment is reversed, and the cause is remanded for new trial.
Battle and Hughes, JJ., dissent. | [
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Battle, J.
M. L. Grayson and her husband, A. D. Grayson, instituted an action in the Greene circuit court against W. P. Bow lin to recover one undivided sixth, interest in certain lands described in their complaint. At the same time, and in the same court, T. D. Henderson, Jr., by his next friend, brought an action against the same defendant to recover an undivided one-twelfth interest in the same land. These two actions were afterwards, by a consent order of the court, consolidated, and William T. Francis and Melville Francis were, on their motion, made defendants.
Plaintiffs, respectively, alleged in their complaints that John Francis departed this life, intestate, seized and possessed of the lands described in their complaints, and left Elizabeth Francis, his widow, and William T. Francis, Melville Francis, and W. M. Henderson, C. E. Henderson, T. D. Henderson, and M. L. Grayson, in right of their mother, Elizabeth Henderson (born Francis), his only heirs, him surviving; that T. D. Henderson died, leaving T. D. Henderson, Jr., his only heir; that W. M. Henderson conveyed his interest in said lands to M. L. Grayson, and that the defendant, Bowlin, was in unlawful possession of the lands.
The defendants answered, and denied that John Francis died seized and possessed of said land, but alleged that the defendants, William T. and Melville Francis, purchased and paid for the same, and their vendors conveyed it to William T. and John Francis, and that John Francis held one undivided half of it in trust for Melville; and the defendant asked that the court so declare, and that all the right, title and interests “which the plaintiffs, or either of them, may have or claim in or to said lands be divested out of them, and vested in the said Melville Francis,” and for other relief.
The plaintiffs replied, and denied the foregoing allegations of the defendants, and alleged that, if any trust in Melville's favor ever existed, it was an express trust, and is void because it was not in writing, and is stale.
The court, on motion of the defendants, transferred the cause to its equity docket; and, after hearing the evidence, found in favor of the defendants, dismissed the complaints of the plaintiffs, and decreed that the title to the lands vest in the defendant Bowlin; and the plaintiffs appealed.
The facts, as we find them, according to the preponderance of the evidence adduced at the hearing, were substantially as follows: William T. and Melville Francis were the sons of John Francis. Melville being a minor, his father emancipated him at the age of 17 years, and allowed him after that to receive and use the wages and products of his labor as his own property. After this, in the month of December, 1867, William T., for himself and Melville, during the minority of his brother, purchased an undivided three-sixths interest in the lands in controversy, on a credit of one and two years. John Francis, the father, wrote the notes for the purchase money and the bond of the vendors for title. Believing that Melville was incapable, on account of his minority, of making a valid contract and acquiring real estate, he signed the notes with his own name for Melville, and William T. signed for himself. The bond, as written, obligated the vendors to convey the three-sixths interest to John and William T. Francis when the purchase money was fully paid. William T. and Melville afterwards paid the purchase money. Their father paid no part of it. Thereafter, on the 24th of February, 1870, Melville still being a minor, the vendors conveyed the lands to John and William T. Francis for the same reason the bond for title was executed to them. In the month of November, 1869, William T. purchased, for himself and his brother, another sixth interest in the same land on a credit of two and three years. John and William T. Francis executed their promissory notes for the purchase money, and the vendor executed his bond for title to them, for the same reason the other notes and bond were executed. At the maturity of the last notes William T. and Melville paid them, each paying one-half. On the 25th day of May, 1872, Melville being a minor, the vendor conveyed the one-sixth interest to John and William T. Francis. After this Melville, being 21 years old, purchased the remaining two-sixths interest in the land for himself and William T., and took a deed for the same to himself and brother. After each purchase William T. and Melville took possession of the interests thereby acquired, and controlled and managed the same as their own property. The father admitted that he held one-half in. trust for Melville, and, so far as the evidence discloses, never denied that he so held. The brothers held and controlled the land as their own until sometime in September, 1891, when Melville,, having acquired the interest of his brother, sold and conveyed the land to the defendant, W. P. Bowlin, who took possession and placed valuable improvements on the same. The actions brought against him to recover the land were commenced on the 18th of August, 1897.
“That the father,” said Chief Justice English in Fairhurst v. Lewis, 23 Ark. 438, “had the right to permit his son, during his minority, to labor for himself, and appropriate his wages according to his own inclinations, is well settled.55 In the case at bar the father permitted his son, Melville, to labor for himself, and to enjoy and appropriate the product of the same to the purchase of one undivided half of the land in controversy. Believing that Melville was incapable of acquiring real estate during his minority, four-sixths of the land in controversy were conveyed to the father and his brother, William, notwithstanding it had been purchased by him and his brother, and one-half of the purchase money had been paid by him according to the agreement and understanding entered into at the time of the purchase. Did John Francis hold one-half of the land in trust for Melville ?
In Milner v. Freeman, 40 Ark. 62, 68, Justice Smith, delivering the opinion of the court, said: “A further objection was that the plaintiff did not pay the purchase money at the time of the purchase. The evidence conduced to show that he bargained for the lots before he paid for them; the payments not being completed until the deeds were made. This court in Sale v. McLean, 29 Ark. 612, and in Duval v. Marshall, 30 id. 230, said in effect that, in order to create a trust of this nature (resulting trust), payment of the purchase money must be made at the time of the purchase. By this it was meant that the trust must arise, if at all, from the original transaction at the time it takes place, and at no other time; and that it cannot be mingled with any subsequent dealings. Some of the cases use the language, ‘at the date of the payment of the purchase money;5 others, ‘at the time of the execution of the conveyance.5 But all of them mean the same thing, namely: that it is impossible to raise a resulting trust, so as to divest the legal estate of the grantee, or his heirs, by the subsequent application of the funds of a third person to the satisfaction of the unpaid purchase money. Botsford v. Burr, 2 Johns. Ch. 406; Rogers v. Murray, 3 Paige, 390; Lead. Cases in Equity, supra, 338. The trust arises out of the circumstances that the money of the real purchaser, and not of the grantee in the deed, formed the consideration of the purchase, and became converted into land.55
According to the opinion in Milner v. Freeman, John Francis held one-half of the land conveyed to him and William T. Francis in trust for Melville.
In Bland v. Talley, 50 Ark. 71, cited by appellant, the court found that according to the evidence adduced by the plaintiff, who sought to establish a resulting trust, three brothers, William H. Talley, Frank Talley and John L. Talley, agreed to purchase, and William H. purchased in his own name, furnished all the money, and took'the title to himself. The court said in reference to this state of facts: “Now, a parol agreement that another shall be interested in the purchase of lands, or a parol declaration by a purchaser that he buys for another, without an advance of money by that other, falls within the statute of frauds, and cannot give birth to a resulting trust.” The facts in the case before us are entirely different. Two brothers, William T. and Melville Francis, purchased the land for themselves, and, according to the agreement made at the time, each one paid one-half of the purchase money before the conveyance of the land was executed.
It is contended that if any trust in favor of Melville Francis existed, it was an express trust, and is void under the statute of frauds. But the trust is based upon the purchase of the land by the two brothers for themselves; and the payment by each of them, in pursuance of the agreement at the time of the sale, of one-half of the purchase money before the execution of the deed, of itself, created it. It cannot be that the consent of the trustee to hold the title for the benefit of the cestui que trust, or an agreement so to do, in case of a resulting trust, will change its character. By the agreement the trustee assents to an obligation imposed by the law. The trust would exist without the agreement by operation of law. The agreement cannot destroy the effect of the conditions under which the law presumes the estate is held by the trustee. Robinson v. Leflore, 59 Miss. 148; Barrows v. Bohan, 41 Conn. 278; Cotton v. Wood, 25 Ia. 43.
We do not think that the trust in favor of Melville is stale. His father admitted it. The evidence does not show that he ever denied it. On the contrary, when he and his brother William purchased, they took possession of the land in their own right, and controlled and managed it as their own property; paid taxes on it, and improved it; their father never objecting. This management, control* and ownership over it continued for twenty years or more, and until Melville sold and conveyed to Bowlin. Their claim was, never allowed to grow stale, but was always asserted and maintained.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) The court, sitting as a jury, was justified in finding and declaring the contract one of insurance upon condition. The service was rendered with the assurance that there should be no charge unless there was a foal, provided the owner of the mare did not sell or trade her during the period of gestation. The statute provides a lien from the time of service, which shall not be lost by reason of any sale, exchange, removal, or other disposition of the animal served, without the consent of the owner of the lien. But upon such disposition of the animal the lien may be immediately enforced. Section 4811, Sand. & H. Dig. The court was warranted in finding no waiver of the lien, or of the time for its enforcement under the statute. The proof makes a case similar to that of Cummins v. Peed, 109 Ind. 71, 9 N. E. 603.
Affirmed. | [
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Battle, J.
Appellant’s cause of action was defectively stated in her complaint. Construing the complaint liberally, as our statutes provide, we think it may be said to state facts showing that appellant was entitled to be subrogated to the rights of the Ladies’ Building Association, Perpetual, under the note made by T. F. Henry, and under the mortgage executed by the appellees. She was secretary of the building association, and was bound by a bond in the sum of $10,000 to hold and save the building association harmless against all mistakes made by her in the payment of money. It appears from the complaint that while she was such secretary, and acting as such, she paid of the moneys of the association on the amount secured by the mortgage $45.45, by mistake, more than appellees, or either of them, were entitled to, and that this sum was secured by the mortgage; and that, in perform anee of her bond, she paid to her principal the sum so paid by mistake. In paying the same she was no volunteer, but was acting in the discharge of an assumed obligation, and is clearly entitled to be subrogated to the rights of the building association under the note and mortgage, as to the amount and the interest thereon.
The defects in the complaint could have been reached by motion to make it more definite and certain, but not by demurrer. Bushey v. Reynolds, 31 Ark. 657; Bush v. Cella, 52 Ark. 378; Sweet v. Desha Lumber Company, 56 Ark. 629.
So much of the decree of the chancery court as sustained the demurrer of appellees to the complaint is therefore reversed, and the cause is remanded, with instructions of the court to overrule the demurrer, and for other proceedings. ' | [
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Riddick, J.,
(after stating the facts.) This is an appeal from a judgment rendered by the Conway circuit court against the defendant railway company for damages caused by the killing of a mule owned by the plaintiff. The only question raised on the appeal is that the evidence does not show that the court had jurisdiction. The statute requires that actions against railway companies for injuries to stock by trains shall be brought in the county where the injury occurred. Sand. & II. Dig., § 6322. And defendant contends that the evidence does not show that this mule was killed in Conway county. But we are of the opinion that this contention must be overruled. The witness who testified that the mule was killed by the train, in. describing the place of the accident, said that the mule was killed in a culvert “this side of Germantown.” Now, we can take judicial notice of the fact that Germantown is a village in Conway county on the line of railway shown to have been operated by the defendant. As the case was tried .by the Conway circuit court, we know that the witness while testifying was at Morrilton, the county seat of that county. His statement that the mule was killed at a culvert “this side of Germantown” showed that the injury occurred at a point beiween Morriltown and Germantown, which must have been in Conway county, as both of these points are in that county.
Judgment affirmed. | [
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Riddick, J.
This is an appeal from the Monroe circuit court. The appellee filed no brief, and the case was 'submitted on the brief of the appellant only. The main ground on-which the appellant relies for a reversal is that the evidence is not sufficient to support the verdict, but the typewritten transcript of the record which appellant has filed here is such a blurred and indistinct copy that the evidence cannot be read without some trouble, nor without more or less strain on the eyes. If we knew that a simple remonstrance would stop clerks from sending such transcripts here in the future, we would put up with this transcript, and only call attention to the defect in disposing of the case, but we have tried this with little or no effect. It is not infrequent that clerks send up just such blurred and indistinct copies of the record as the one in this ease. As they are required to file only one copy of the record, we know of no reason why they should not send here a first copy, which has not been blurred by the taking of other copies from it.
To consider evidence presented in the shape that this record presents it is inconvenient and annoying, and tends to delay. For this reason we feel justified in refusing to consider the record in its present shape, and therefore order that appellant file another copy of the transcript within thirty days, or its appeal will be dismissed.
[An amended transcript having been filed, the following-opinion ■ was delivered April 26, 1902.] '
Riddick, J.
J. D. Rogers, of Brinkley, Arkansas, was in 1894 employed by the Singer Manufacturing Company to act as its agent in the matter of selling machines and. collecting the price thereof. He entered into a-contract with the company for that purpose, and executed a bond in the sum of $500 for the faithful performance of his duties. Rogers acted as agent of the company for two or three years, when he was discharged or quit the business. Afterwards the company brought this action against him to recover the sum of $306.56, which sum it alleged was due from Rogers for moneys collected and machines sold and for other matters set out in the complaint. Rogers filed an answer denying that he was due the company the sum named in the complaint, but alleged that the company was due and- owing to him the sum of $104.15, for which amount he asked judgment. On the trial there was a verdict in favor of defendant for the sum of $76.85, and judgment accordingly. The company appealed.
We have carefully examined the evidence in this case, and our conclusion is that the judgment against the company is clearly and palpably wrong. Granting that Rogers was entitled to a reasonable sum for taking up and returning machines outside of his territory, yet we think it is clearly shown by his own reports to the company and other' conclusive testimony that he owed the company more than sufficient to cover any amount due from the company to him, and that he was entitled to no judgment against the company. The rule established in this court is that, even where there may be some conflict in the evidence, a new trial will be granted where the verdict is so clearly and palpably against the weight of evidence as to shock the sense of justice of a reasonable person; and the evidence here, we think, calls for this application of this rule. Oliver v. State, 34 Ark. 632; Calvert v. Stone, 10 Ark. 492.
We think the circuit court should have sustained the motion for a new trial on the ground that the evidence does not support the verdict. As the ease must be retried, we will not set out -or discuss the evidence further.
Reversed and remanded for new trial. | [
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Bunn, C. J.
J. A. Phillips rented the plantation of J. C. Neeley, in Crittenden county, for the year 1898, for the rental sum of $800. He was financially unable to run the plantation without assistance from others in the way of supplies, and Neeley was not so situated as to give him the desired aid. Phillips negotiated with Godfrey, Frank & Co., furnishing merchants, of Memphis, Tenn., who agreed to furnish him; Neeley at the same time, as a matter of inducement to them, agreeing to waive his landlord’s lien in their favor to the extent of $1,200 in money and supplies to be furnished to Phillips for the year. Phillips then gave Godfrey, Frank & Co., through a trustee, a deed of trust conveying his crops of cotton and corn for the year, and other things, as security for such advances, and the customary promissory note for the amount, and Neeley gave to them at the same time a written waiver of his prior lien, according to their previous agreement, which is in words and figures as follows:
“In consideration of one dollar to me in hand paid by Godfrey, Frank & Co., of Memphis, Tenn., the receipt of which is hereby acknowledged, and for the further consideration that Godfrey, Frank & Co. have agreed to furnish J. A. Phillips, a tenant on my plantation, with money and supplies during the year 1898, as specified in a deed of trust executed by the said Phillips in their favor, I hereby waive, in favor of said Godfrey, Frank & Co., all my lien as landlord, for rent, advances or otherwise, on the crops to be grown during the year aforesaid to the amount of $1,200, and further agree that the tenant may ship to the said Godfre]r, Frank & Co. all agricultural products grown upon the said premises during said year, to be sold, and the proceeds applied first to the discharge of the indebtedness secured by the deed of trust in their favor, and costs thereof; to the amount of $1,200, and the balance, if anyr, to be applied to the payment of the rent due me. [Signed] J. C. Neeley.”
Subsequently (the date not stated), Godfrey, Frank & Co. assigned and transferred the deed of trust to one C. L. Lewis, as the agent of A. Hodges, for the expressed consideration of $465.23, and indorsed his transfer on the back of the deed of trust. At the same time they, gave back the written waiver to J. C. Neeley. Afterwards, finding that the crops on the plantation were being carried away by or for others than Godfrey, Frank & Co., Neeley brought suit by attachment on the rent claim against Phillips; and Hodges intervened, claiming a lien on the crops as assignee of the deed of trust from Godfrey, Frank & Co. and the benefits of the waiver given by Neeley to Godfrey, Frank & Co., which he contends goes with the assignment of the deed of trust as a matter of law. This contention of Hodges constitutes the main issue in the case, and was sustained in favor of Hodges by the chancellor' — • the cause having been transferred to the equity court of. the district — from which decree the plaintiff, Neeley, appealed to this court.
In Arkansas Valley Smelting Company v. Belden Mining Co. 127 U. S. 387, the supreme court said: “Every one has a right to select and determine with whom he will contract, and cannot have another person thrust upon him without his consent. In the familiar phrase of Lord Demnan, 'You have the right to the benefit you anticipate from the character, credit and substance of the party with whom you contract/ ” The waiver under consideration, exhibiting in its very language and terms something of the elements of trust and confidence,and having not the mere payment of money for its consideration, shows that the written waiver is not necessarily, as a matter of law, general, and. as forming a part of and going with the deed of trust in the assignment thereof. This being-true, the question is one of fact, going to show the real intention of the parties in making and accepting the written waiver, whether it was understood to be personal or general in its operation.
The uncontradicted testimony in the case shows that while Lewis, the agent of Hodges, was negotiating with Godfrey, Frank & Co. for the purchase of the deed of trust, he was informed in plain and emphatic terms by Neeley in person that the latter had made the waiver as personal to Godfrey, Frank & Co., and still insisted that such was the true intent and meaning of the same between himself and the latter. He also testifies that he so held in conversation with them; and by their conduct they corroborate Neeley in this, in surrendering the written waiver back to him after the assignment of the deed of trust to Lewis for Hodges. The knowledge of Lewis was the knowledge of his principal, Hodges, on the subject. We are therefore of opinion that it is. fairly shown that the waiver was personal, and all the parties to this suit knew that fact, and, that being so, the decree of the chancellor on that issue should be reversed.
There is a question of damages growing out of the care, or alleged want of proper care, of the property after the levy of the attachment. It is claimed that the sheriff entrusted the property, which appears to have been the ungathered crops in the field, to a person designated by the plaintiff as custodian, and that he suffered the stock in the neighborhood to get in and depredate upon the crops, to the great damage of the tenant and intervener. To this the custodian as a witness testifies, in effect, that the fencing was old and inefficient, and that he did everything in his power to preserve the crops. It appears really that there was no evidence to support the charge, and as the attachment is shown not to have wrongfully sued out, we see no grounds for the assessment of damages. Reversed and remanded, with directions to enter decree in accordance with this opinion.
Riddick, J., not participating. | [
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Riddick, J.,
(after stating the facts.) ' The appellants in this case were nonresidents. They did not appear in the action, and the decree against them was based on a constructive service by publication of a warning order. The record here does not show that there was any affidavit made as a foundation for the warning order against the defendants. The complaint filed in this action is neither signed nor verified as required by the statute, and no affidavit for the warning order appears in the transcript. There is, however, an affidavit of the deputy clerk of the chancery court, filed with the transcript here, stating that an affidavit for the warning order had been made and filed with the clerk of the chancery court, and that it was afterwards lost, but this statement of the deputy clerk, not being a part of the record of the case, cannot be considered.
We must presume that the transcript of the case filed here is a true and perfect copy of' the record. If incorrect or incomplete, it should have been corrected by appropriate proceedings. This has not been done, and we cannot go outside the record for facts, but must determine the ease from the facts as they appear in the record. No affidavit for warning order being found in the record, we must take it as established that none was-made. Stayton v. Newcomer, 6 Ark. 451; 3 Cyc. 152; 2 Enc. Pl. & Pr. 296.
It is said on part of appellee that, in proceedings of this kind for the collection of assessments against the land of nonresidents, no affidavit for a warning order was required. But we do not concur in this statement. The statute directs that suits for the collection of these assessments “shall be conducted in accordance with the practice and pleadings of chancery courts in this state,” except as therein otherwise provided. The statute then proceeds to name certain exceptions in the matter of not requiring attorneys or guardians ad litem, etc., but does not dispense with the necessity of an affidavit as the foundation for a warning order. Acts 1895, p. 88. We conclude that, an affidavit that the defendants were nonresidents of the county was required by law as a prerequisite to the publication of the warning order against them. As the record stands here, we must hold that the court erred in rendering a decree in this case when no affidavit for warning order was made.
Judgment reversed, and cause remanded for further proceedings.
Wood, J., absent. | [
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Battle, J.,
(after stating the facts.) The deed of trust created no lien on the land in controversy as against the appellee. “The acknowledgment, having been taken and certified by an officer who was a party to the deed, did not entitle the instrument to record, and the record of it imported no notice to subsequent purchasers or incumbrancers.” Green v. Abraham, 43 Ark. 420.
Appellant concedes that the acknowledgment of the deed of trust by the grantor was invalid, but insists that the defect in it was cured by the curative act of February 27, 1893. This act provides that “all conveyances and other instruments of writing which have heretofore been recorded in any county in this state, the proof of execution whereof is insufficient because the officer •certifying such execution or acknowledgment omitted any words in his certifícate, or because such officer failed or omitted to attach his seal of office to such certificate, or attached to any certificate any seal not bearing the words or devices required by law, or when the term of the officer taking the acknowledgment had expired at the time, or otherwise informal, shall be as valid and binding as though the certificate of acknowledgment or proof of execution was in due form and bore proper seal.” The effect of it made the certificate of acknowledgment therein referred to as valid and binding as though they were in due form and bore proper seal.' But it did not make them as valid as they would have been if the acknowledgment had been taken by an officer thereunto duly authorized. So it did not validate the acknowledgment of the deed of trust in question.
The record fails to show a valid sale under the deed of trust. The deed executed by the trustee to the bank is evidence only' of the truth of its recitals. McConnell v. Day, 61 Ark. 464, 473. It fails to show, among other things, that the land brought two-thirds of its appraised value, or that it was offered for sale under the deed of trust more than once, as provided by section 5111 of S andéis & T-TilFs Digest; and this defect was not supplied by evidence aliunde.
Decree affirmed. | [
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Biddick, J.,
(after stating the facts.) This is a suit in equity to foreclose a mortgage. The "defense set up is that at the time the mortgage was executed the land was owned by neither plaintiff nor defendant, but was the property of the staté, and that since the execution of the mortgage the land has been “donated” by the state to the defendant for the purpose of a homestead, and that under the law the donated land is not liable for the previous debts of the grantee in the state’s deed.
The contention of the plaintiff on this point is that the defendant is bound by his compromise; that, having purchased the land from plaintiff and acquired possession in that way, defendant cannot, so long as he retains such possession, deny the title of plaintiff. It is no doubt the general rule that the vendee cannot deny the title of the vendor without first restoring him to possession. But there are exceptions to this rule, and we are of the opinion that this case falls within one of the exceptions. The statute under which lands of the state are donated to citizens of the state requires that the applicant shall make an affidavit “that the land applied for is for the purpose of actual settlement, occupancy and cultivation by the applicant for his or her own exclusive benefit, and not directly or indirectly for the benefit or use of any other person or persons whomsoever.” Sand. & H. Dig., § 4573. It further provides that “no donation shall be liable for any debt contracted by the donee prior to the execution of the deed therefor.” Sand. & II. Dig., § 4594.
Under this statute the mortgage to Files, being executed by Benson prior to the execution of the state’s deed to him, did not bind the interest in the land he acquired from the state, and he is not estopped from setting up this title against the claim of Files; for, if the grantee in the state’s donation deed was not permitted to set up his title acquired from the state against such demands, the policy of the state, which is to secure a home to the state’s grantee, and to protect it against his debts contracted prior to the execution of the deed from the state, would be defeated. It would be contrary to public policy to forbid such a defense in a case of this kind. The reason for this rule of public policy is very fully discussed by this court in the case of Shorman v. Eakin, 47 Ark. 35, to which case we refer for a more elaborate statement of the principles controlling this decision. See, also, Sorrels v. Self, 43 Ark. 451; Anderson v. Carkins, 135 U. S. 483.
Having reached the conclusion that Benson is not estopped from disputing the title of Files in this case, it follows that the decision of the chancellor cannot be sustained, for there is nothing in the record to show that Files had any title. It is true that he stated in his deposition that he was the owner of the land, but this was objected to by the other party, and, being only an opinion, was clearly incompetent, as title to land cannot be established in that way. If Files, and not the state, was the owner of the land at the time the state conveyed it to Benson, then, of course, the donation deed, being of no effect, would be no defense to the action of Files, more than the deed from any other person who had no title. We know, of course, that under some circumstances it might, in connection with the statute of limitations and adverse possession, be used to support title, but no question of that kind is presented here.
But, as before stated, Files introduced no evidence of title. He relied on his note and mortgage, and the fact that Benson had compromised with him and purchased the land from him before getting the donation deed from the state. For these reasons, it seems, he did not fully develop his case. If we should direct a final decree on the record as it stands here, it would quite likely result in injustice, as it seems that the facts of the case are not fully presented. We have therefore concluded to reverse and remand the ease for further proceedings, and with leave for either party to amend his pleadings and take further evidence. It is so ordered. | [
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Hughes, J.,
(after stating the facts.) The court is of opinion that the bond was a joint and several obligation and contract, and that the plaintiff had the right to sue thereon without joining others. The provisions of the bond warrant this construction of it.
The action was transitory, and not local. It could be brought here or in Texas, in the proper forum. Its obligation was a contract, and its breach gave a right of action against the defendants, wherever they might be found. The court was not in error on the question of jurisdiction, and the right of the appellees to sue in the court in Miller county in Arkansas.
There is no abstract of the evidence in the case by the appellant, and for this reason the judgment should be affirmed, under rule 9 of this court; but we have discovered that the judgment for the appellees is for the whole amount of damages suffered by all the creditors, whereas only part of the creditors are plaintiffs. The judgment, therefore, should, have been for their pro rata share ■of what all the accepting creditors were entitled to recover, if they were plaintiffs. Some of the creditors have not been made parties. Though the suit was brought in behalf of the plaintiffs named and all the creditors who might join in it, still it is not like a suit to uncover property fraudulently conveyed, where the filing of the bill gives a lien to the plaintiffs because of - their diligence. This was a fund in court to be equally distributed pro rata between ■creditors, and plaintiffs were entitled to no-more than their share of it.
For this error tire judgment is reversed, and the cause is remanded, with instructions to decree for plaintiff for their pro rata .share of the damages in accordance herewith.
Bunn, C. J., dissents. | [
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Htjghes, J.,
(after stating the facts.) It is conceded by the appellant that there was no error in the court’s instructions, and that the evidence in the case is sufficient to support the verdict. He objects because he says the indictment is insufficient in this, that it does not charge that defendant “did steal, take and carry away.” He contends that the language of the indictment does not charge a robbery, but only a trespass.
Bobbery is larceny, with the aggravating circumstances of taking by force, and putting in fear, from the person of another, and an indictment for robbery must charge larceny. “Larceny by the common law is the felonious and fraudulent taking and carrying away by any man or woman of the mere personal goods of another.” 3 Inst, 107. “The felonious taking and carrying away of the personal goods of another.” 4 Bl. Comm. 220. If one take from another personal goods, and carry them away, without the felonious intent, it would not he larceny. But when done feloniously, or with felonious intent, what else can it be but larceny? Under our law a felony is a crime, punishable by death or imprisonment in the penitentiary. Sand. & H. Dig., § 1437. We think the words, “feloniously did take from the person,” etc., as used in the indictment, import stealing lucri causa and an asportation with intent to deprive the person in the lawful possession of the property in the goods. It is true that “the formal allegation in an indictment for larceny should be that the defendant did steal, take and drive or carry away the property,” as held in Walker v. State, 50 Ark. 532. But this is not saying that there can be no good indictment for larceny without these formal words. If the indictment charges in effect the same thing in other apt words, it is the same charge.
In robbery there must be the same felonious intent as in larceny. “Felonious intent is always essential, and an instruction ignoring that element is ground for reversing a conviction.” Commonwealth v. White, 133 Pa. St. 182. In this indictment that element is directly charged to have existed at the time of the commission of the crime.
In the case of Boles v. State, 58 Ark. 35, the indictment charged that the said Lee Boles and Bone Terry in the said county of Carroll, in the eastern district thereof, in the state of Arkansas, on the 10th day of July, 1892, unlawfully, forcibly, violently, and by putting in fear, did take from the person and possession of one R. A. Martin one United States treasury note of the denomination and value of $5 * * * and the grand jury do accuse the said Lee Boles and Bone Terry of the crime of robbery, against, etc. The judgment in that case was reversed on demurrer to the indictment, on the ground that it did not charge the ownership of the property. There was also a motion in arrest of judgment in the case, and the failure to mention in the indictment the ownership of the property was the only ground in the opinion of the court on which the indictment was held insufficient. It can hardly be supposed that, if there had been other defects in the indictment, the court would have passed them without mention, on demurrer and motion in arrest. The indictment in that case was certainly no better than the indictment in this case. It did not have the word, “steal,” or “feloniously take” even, in it, but it was impliedly held sufficient save for the omission of the allegation of the ownership of the property alleged to have been unlawfully, violently and by putting in fear taken from the person, etc.
In our opinion, it would be a technicality tending to defeat the ends of justice to hold this indictment insufficient because the word “steal” is not used in it, when it does charge that the defendant feloniously and violently, and by putting in fear, did take $30, etc., from the person, etc. We think this was a good charge of robbery.
The judgment is affirmed. | [
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Per Curiam.
The question presented by this appeal is whether the storehouse owned by the appellant Berry is a part of his homestead. He is the owner of lot 3 of block 14 in the town of Clarendon, and resides with his family in a dwelling house on that lot, all of which he claims as a homestead. Certain of his creditors had an execution levied on the lot, and contended that the north part of it, on which the storehouse is located, is not a part of the homestead, nor exempt from execution. Although this storehouse was used by the debtor himself in his own business, there are decisions by the courts of other states to the effect that such a storehouse, entirely separate from the residence of the owner, and not used as an appurtenance or convenience of the dwelling house, is not a part of the homestead. In re Allen, 78 Cal. 293. But a majority of the judges are of the opinion that this court is committed to a different view of the law. In Gainus v. Cannon, 42 Ark. 504, Mr. Justice Bakin, speaking for the court, said: “It is a strange and irrational idea sometimes advanced that a.man ought to lose his homestead as soon as he attempts to make any part of it helpful in family expenses.” To like effect, see remarks of the same judge in Klenk v. Knoble, 37 Ark. 298. This view of the Jaw certainly works no injustice to the creditor where the value of the homestead, including the shop or store used for the business convenience of the owner, is small, as it is here, the whole being of the value of $900. Under these circumstances a majority of the judges are of the opinion that the execution defendant can hold the entire lot as a homestead, including that part occupied by his storehouse, unless he has done something to estop him from doing so.
After a careful reading of the transcript, we are all of the opinion that the evidence shows neither a waiver of this homestead right by appellant, nor anything to estop him from claiming such exemptions. The fact that he and his wife mortgaged the south two-thirds of the lot to a building and loan association, and released their rights of homestead in the land mortgaged, does not show that they claimed only the portion mortgaged as a homestead, for they had the right to mortgage all or any portion of the homestead. To our mind, this mortgage shows nothing beyond the fact that the part mortgaged was thought to be at least a part of the homestead. 'Whether it was all or onfy a part cannot be determined from the mortgage, which throws no light on that question. The deed to his wife of the north third of the lot shows that he intended to convey that portion of the lot to her, but it does not show that it was not a part of the homestead at that time. .If it was a part of the homestead, and the deed left any interest still in him, it could still be protected from sale under execution as a part of the homestead. The statement of the appellant made to Louis Solomon, and also to Will Thomason, that “he owned the dwelling house and storehouse on lot 3, block 14, and that it. was, all liable for his debts,” and by which statement they say they were induced to sell him goods, cannot control the decision in this case. In the first place, these statements were not made to Meir & Co., the plaintiffs; and, if they had been, they did not amount to a waiver of the appellant’s homestead rights. It is often, the case that men, when contracting debts, express their determination to pay them by say^ ing that all they have is subject to their debts, but this species of boasting does not estop or preclude them from afterwards claiming their homestead and exemption rights, if they choose to do so. It will be noticed that the statement alleged to have been made by the defendant was that the whole lot, including both the dwelling and storehouse, was liable for his debts. It did not therefore show" any separation of'the storehouse from the dwelling, for the statement puts both together. It was not an assertion that the storehouse was not a part of the homestead, but at most it was only a parol promise that he would not take advantage of the homestead laws. We doubt if, under any view of the law, it could be treated as a waiver or estoppel against the appellant; but, as the law does not now permit the husband to convey or mortgage his homestead unless his wife joins in the execution of such conveyance, the promise, if made, was of no effect, for his wife is not shown to have consented to it in any way.
The case of Klenk v. Knoble, 37 Ark. 298, upon which counsel for appellees rely, was very different from this, for the debtor in that case gave the creditor a mortgage, and in the description of the property used the following words: “The same being the lots upon which the said Joseph Knoble now has a brewery, and not a part or parcel of the homestead.”
As -the debtor had still remaining, besides the lots mortgaged, a dwelling house and a lot 75 by 140 feet, and as the lot mortgaged (to quote the language of the decision), “constituted no part of his actual residence,” the court held that the statement in the mortgage showed an intention to contract the area of his homestead, and estopped him from claiming the part mortgaged as a homestead against the mortgagee. This decision was made before the passage of the act making it necessary for the wife to join in conveyances of the homestead. But the appellant in this case executed no mortgage to the creditor, nor was it shown that either he or his wife had ever stated to the creditor, or anyone else, that this storehouse was not a part of the homestead. We find in the transcript nothing to estop him from claiming the whole of this lot as his homestead.
For the reasons stated, a majority of the judges are of the opinion that the defendant has the right to claim the entire lot as his homestead, and that the court erred in'quashing the supersedeas as to the part occupied by. the homestead. The judgment is therefore reversed, and the case remanded, with an order to overrule the motion to quash. | [
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Battle, J.
W. H. Ritter was indicted by a grand jury of the Greene circuit court, at the February term, 1901, for embezzlement. The indictment, omitting the formal parts, is as follows: “The said W. Ii. Ritter on the 14th day of December, 1900, in the county of Greene aforesaid, then and there being over the age of 16 years and being the cashier of the Greene County Bank, an incorporated company, and having in his custody and possession as such cashier as aforesaid, and then and there having come into possession as such cashier as aforesaid, $10,000, gold, silver and paper money, lawful money of the United States of America and the property of the Greene County Bank as aforesaid, did unlawfully, feloniously and fraudulently’ make way with, embezzle and convert to his own use said sum of $10,000 as aforesaid, without the consent of the Greene County Bank as aforesaid, against the peace,” etc.
He was arraigned, and pleaded not guilty; and was tried and convicted; and his punishment was fixed at one year’s imprisonment in the penitentiary. He filed a motion for a new trial, which was overruled, and he appealed.
The Greene County Bank, mentioned in the indictment, was a corporation, organized under the laws of Arkansas, and did a general banking business. The appellant was its cashier from the year 1892 up to January 1, 1902, on or about which time it failed. He was and is over the age of 16 years. His duties as cashier were to take charge of the money and assets of the bank, and to receive funds on deposit; make collections; keep the records of the bank; receive the mail of the bank and answer it; and to keep the statements of other banks to it on file. It was his duty also to keep the cash book, balance book, collection register, remittance register, interest and exchange book, while the assistant cashier kept the journal and depositors’ ledger, and made out statements to depositors. He “had in his charge at the time of his election, that is, at the time he took charge as cashier, in cash about $16,000, and in bills receivable and scrip, both county and city, and cash accounts with other banks, and collection items, to the amount of $80,000 or $90,000.” After he had been cashier for many years a large portion of the assets of the bank disappeared, and he, failing to account for them satisfactorily, was indicted for their conversion.
1. Appellant’s first contention is that the indictment is defective, because it does not allege that he was an officer of the bank. This was unnecessary. A cashier is an officer. Merchants Bank v. State Bank, 10 Wall. 604; Bissell v. First Nat. Bank of Franklin, 69 Pa. St. 415; Baldwin v. Bank of Newbury, 1 Wall. 234. An allegation that he was cashier of the bank was equivalent to an averment that he was an officer.
2. Appellant insists that the trial court erred in admitting a copy of the account of the Greene County Bank with the Merchants’ Laclede National Bank, of St. Louis, Missouri, as evidence. The last named bank, which for convenience we will call Laclede Bank, was a correspondent in St. Louis, Missouri, of the former bank. J. B. Sullivan was its bookkeeper, and kept 'an account of the business transactions of the two banks with each other in .the books of the Laclede Bank. Many of the items of the account were derived by him from letters of remittance by the Greene County Bank to the latter, which were received, opened, and handed to him by mailing clerks. Other items were for drafts drawn by the former upon the latter, deposits and perhaps money sent by express. The drafts were returned to the former monthly,- and the letters of remittance were retained by the latter. From time to time, and frequently, Sullivan, the bookkeeper of the Laclede Bank, furnished the Greene County Bank with statements of its account with his bank. He testified that these statements were a correct copy of the account kept by him, except certain changes which were made in them after they were forwarded to the Greene County Bank; and that these changes increased the credits of the last named bank to a considerable amount, which he stated. Upon this testimony and the facts stated, which were proved, the statements forwarded to the Greene County Bank were received as evidence.
The objection to the evidence was specific. There was no ■ objection to its admission on the ground that the bookkeeper did not make the entries in the account in the discharge of his duties and in the regular course of his business, and that each entry was not made at or about the time of the transaction thereby recorded. But appellant objected to its admission, in part, because many of the items in the account were for remittances and drafts of the Greene County Bank, of which the letters of remittances and the drafts themselves were the best evidence. This may be true, but they could not have answered the purpose for which the account was adduced. It contained a statement of all the debits and credits of the Greene County Bank, and was a record or history of the business transactions of the two banks with each other, and was admitted for the purpose of showing the indebtedness of one to the other at various times, the funds of one in the hands of the other, and the fraudulent and unauthorized alterations in the same while in the possession of appellant. This the letters of remittance and drafts could not do. The drafts were evidence of their contents, but not for their payment, as the account was.
The letters of remittance were in the possession of the Laclede Bank, were outside of the state, and secondary evidence was admissible to prove their contents. Burton v. Driggs, 20 Wall. 125, 134; Shepard v. Giddings, 22 Conn. 282; Eaton v. Campbell, 7 Pick. 10.
While it is not positively stated, the evidence indicates that all the drafts of the Greene County Bank upon the Laclede Bank that could be found were read as evidence in the trial of appellant, and to this extent the objection to the admission of the account was thereby made of no avail.
Another objection to the admission of the account as evidence was that many of its items were for remittances, and that they were shown by letters received by the Laclede Bank from the Greene County Bank; and that Sullivan, the bookkeeper, testified that these letters were received through the mails, and were opened and handed to him by a mail clerk, and that all he knew of what was received from the Greene County Bank he learned from the letters handed to him by the mail clerks. If the account, under these circumstances, was not competent evidence of the remittances, it is obvious that its admission for that purpose was not prejudicial to appellant. To that extent it showed a legitimate disposition of the assets of the Greene County Bank, and in that respect was beneficial to him, and contributed to maintain his defense.
3. Appellant also insists that the circuit court erred in admitting copies of the account of the Greene County Bank with the Third National Bank of St. Louis, Missouri, as evidence. The latter was also a correspondent in St. Louis, Missouri, of the former bank. Eugene Mosby was supervisor of the bookkeepers of the Third National Bank. Numerous copies of different parts of the account of the Greene County Bank with it were furnished to the former bank. Mosby testified that he compared the balances in the copies with the balances in the original, and that he found that false and fraudulent alterations had been made in the copies for the purpose of increasing the credits of the former bank. Appellant objected to the introduction of the copies as evidence for substan tially the same reasons that he objected to the admission of the copies of the account of the Greene County Bank with the Laclede Bank. But the court overruled the objections, and admitted the copies as evidence, and instructed the jury that they could be considered only “for the purpose of showing whether or not they corresponded with the statements said to have been changed since they left that bank (the Third National Bank); that is to say, whether false and fraudulent alterations had been made." This rendered tjje objections urged of no effect.
4. Appellant objected to the admission of the testimony of J. S. Elliott. lie was an expert accountant, and was occupied in that capacity for a month in examining the books of the Greene County Bank, and the statements furnished it by corresponding banks. They were voluminous, and of a character to render it difficult for a jury to comprehend without the aid of an expert; and it would require considerable time to read them to the jury. Elliott testified that the shortage of the bank, on the 12th of January, 1901, was $33,539.26, and what its shortage was at semiannual periods for the two years preceding that time. The objection to this evidence was that it was hearsay. The court properly overruled it. Woodruff v. State, 61 Ark. 157, 170; State v. Findley, 101 Mo., 217, 223.
5. Appellant objected to the following instruction, which was given to the jury: “You are instructed that the defendant, being the cashier of the Greene County Bank, and having control of the cash and other assets of said bank, is responsible therefor, and the fact that other officers of the bank have access to the funds does not relieve the defendant from accounting for the same." He (appellant) testified that he was cashier of the Greene County Bank, and custodian of its funds. He was civilly responsible for the same, and the fact that other persons had access to the funds did not relieve him of the duty of accounting for them to the best of his ability.0 The failure to do so did not constitute embezzlement, but it is a fact which may be taken, with all the evidence, into consideration in determining whether he is guilty. The court, in the instruction objected to, called the attention of the jury to facts, without telling them the effect thereof, but did tell them that, before they could convict, they “must find beyond a reasonable doubt that he actually converted the money of said bank to his own use." When considered in connection with the other instructions and the evidence, we see nothing in the instruction in question prejudicial to appellant. State v. Cowan, 74 Ia. 53; State v. King, 81 Ia. 587, 592; State v. Foley, 81 Ia. 36.
There were objections to other instructions which we do not deem of sufficient importance to notice in this opinion. We see nothing prejudicial in them.
Judgment affirmed.
Riddick, J., did not participate. | [
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Eiddick, J.,
(after stating the facts.) The questions presented by this appeal relate to the validity of an ordinance of the city of Fort Smith in reference to the weighing of coal sold in that city. Plaintiff, a coal dealer in that city, contends that the ordinance is void on the ground that it is unreasonable and oppressive, and operated to deprive plaintiff of his property without due process of law, and for the further reason that it was passed for the purpose of raising revenue for the city.
The ordinance in question, after providing that all coal sold in the city shall be weighed upon the city scales, directs that the sum of 10 cents shall be paid to the weighmaster for the weighing “of any load or part of a load of coal.” The word “load,” used in the ordinance, is rather indefinite, and might be said to include a car load or wheelbarrow load of coal as well as a wagon load. But, as the evident intention of this ordinance was to protect the residents of the city who were purchasers and consumers of coal against fraud, imposition or mistake in the weighing of the same, and as coal is usually delivered to consumers by wagons, either in full loads or in parts of a load, we think it is evident that the word “load” in the ordinance refers to wagon loads, and that it has no application to sales of very small quantities, such as a bucket or wheelbarrow load of coal. In fact, the mayor of the city testified that the ordinance was construed by the city authorities to apply only to cases where the delivery was by wagon in loads or parts of loads, and we are willing to adopt this construction of it.
Now, our statute expressly grants power to cities “to provide' for the measuring or weighing of any wood or other article of sale.” Sand. & H. Dig. § 5132. Under this statute the city had the power to require parties selling coal in the city to weigh the same on scales provided by the city, and to pay a reasonable fee for the weighing. Taylor v. Pine Bluff, 34 Ark. 603.
While under our statute an ordinance of this kind cannot be passed for the purpose of taxation and raising a revenue, yet fees can be imposed sufficient to cover the necessary expenses incident to the enforcement of the ordinance. The city council is required to determine what fees will be necessary for that purpose. And, in arriving at their conclusion on that question, they may take into consideration all legitimate expenses required for the enforcement of the ordinance, including, as we think, any extra police superintendence necessary for that purpose. City of Fayetteville v. Carter, 52 Ark. 301.
As the exact size of the fee required cannot always be ascertained in advance, the courts will not interfere with the action of the council when the fees imposed are not plainly unreasonable and excessive. Taylor v. Pine Bluff, 34 Ark. 603; Fayetteville v. Carter, 52 Ark. 301; Hot Springs v. Curry, 64 Ark. 152.
After considering the facts proved in the ease, we think the evidence does not show that this ordinance was passed for the purpose of raising revenue. On the contrary, there is evidence to justify a finding that the annual expenses of the city in furnishing and keeping in repair scales, in hiring assistant weighmaster required, and in furnishing necessary police superintendence, very nearly equal the revenue arising from the fees imposed for weighing.
As to the contention that the ordinance is unreasonable and oppressive, the evidence shows that the coal yards and place of business of plaintiff are situated about ten blocks distant from the public scales, which are operated by the city continuously during the year. On this account the ordinance does impose some hardship on plaintiff, especially in cases where the coal is sold in small quantities to persons who wish the same delivered at or near the coal yard of plaintiff. In such a case it is no doubt very inconvenient to be compelled to carry the coal over half a mile to the scales for weighing, and then return with it to the yards or near them for delivery. But it was shown that from 1st of November to 1st of April, during the season when coal was most in demand, the city maintained and operated two public scales, one of which was near plaintiff’s yards. From the 1st of April to 1st of November the scales located near the coal yards were not operated, for the reason that during that time of the year the demand for coal was small, and the expense of operating the scales was greater than the income from the fees charged. While, as before stated, the requirement that even small quantities of coal, when sold, must be weighed on the city scales imposes during the summer, when only one pair of scales is operated by the city, some unnecessary inconvenience and expense on plaintiff, still, taking into consideration that this is during a season when not much coal is sold, a majority of us are of the opinion that the ordinance is not so clearly unreasonable and oppressive as to justify a court in holding it invalid. It is often that city ordinances occasion individual inconvenience and even hardship. The powers which are vested by law in municipal legislatures are at times exercised unwisely; for these, like other human tribunals, are not infallible. But it does not follow, because an ordinance operates to the annoyance and inconvenience of a citizen, instead of to his benefit, that it is invalid, or that the courts can for that reason interfere with the local concerns of the city, and declare the ordinance invalid. On the whole case, a majority of the judges are of the opinion that the judgment of the circuit court is right, and it is therefore affirmed. | [
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Battle, J.
Ossey Allen was indicted by a grand jury of the Miller circuit court for murder in the first degree, .charged to have been committed by feloniously, with malice aforethought, with deliberation and premeditation, killing John Gayton, in the county of Miller, in this state, on the 31st day of'March, 1900, by shooting him with a pistol. To this indictment the defendant pleaded not guilty, and was tried and convicted of murder in the first degree. He moved for a new trial, which was denied; and he then appealed to this court.
. The evidence adduced by the state tended to prove, substantially, as follows: John Gayton and Lottie Gayton were husband and wife. They resided in Miller county, in this state. On the night of the 31st of March, 1900, John Gayton was absent from his home. In his absence the appellant visited his wife, in the night, at their home, and was in a room with her, and had been for an hour or longer when John Gayton returned. No one was in the room with her except appellant. It was not very dark. One witness said it was a “starlight night.” John 'Gayton made an effort to enter the room through a window, when the appellant shot him. John then went into the room of his mother-in-law, in the same building. The appellant, barefooted at the time, leaped out of the window, and ran away, carrying with him his shoes. John lived about, three hours after he was shot, and died. Before dying he said it was not necessary to send for a doctor, that he was “bound to die,” and that Ossey Allen shot him.
The appellant adduced testimony tending to prove an alibi.
The court gave to the jury ten instructions at the request of the state, the first three of which were almost literal copies of sections 1639-1645 of Sandels & Hill’s Digest. The second, which was given over the objections of the appellant, was as follows: “The court further instructs the jury that, the killing being proved to have been done by the defendant, the burden of proving the circumstances of mitigation that justify or excuse a homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense committed only amounted to manslaughter, or that the accused was justified or excused in commiting the homicide.” In this connection the court also instructed the jury as follows:
“16. You are instructed that if there is any reasonable hypothesis arising out of the evidence and circumstances in this case, except the one that the defendant, and not someone else, killed the deceased, then the defendant is entitled to the benefit of such hypothesis, and he ought to be acquitted.”
“18. You are instructed that it devolves upon the state to establish b}' competent and sufficient proof every material allegation in the indictment, and that the defendant killed the deceased is a material allegation; and it devolves upon the state to prove and establish it beyond a reasonable doubt; and if the state fails to do so, it is your duty to acquit the defendant.” <■
“3. You are instructed that, before you can convict the defendant in this case, it must appear from the evidence, beyond a reasonable doubt, that the defendant, and not somebody else, committed the crime; but it must show beyond a reasonable doubt that the defendant committed the crime.
“4. You are instructed that mere probabilities are not sufficient to warrant a conviction, nor is it sufficient that the greater weight of evidence supports the theory, nor is it sufficient that upon the doctrine of chances it is more probable that the defendant is guilty than that he is innocent; but, to warrant you in the conviction of the defendant, he must be proved to be guilty so clearly and conclusively that there is no reasonable theory under the evidence upon which he can be acquitted.”
And the court, at the request of the state, over the objection of the appellant, gave an instruction numbered nine, which was as follows :
“9. The court further instructs you that if you believe from the evidence the defendant in this ease has attempted to prove an alibi, that is, that he was elsewhere when the killing occurred, at the time of the killing, the burden is upon him to establish the alibi by a preponderance of the testimony; and unless you entertain a reasonable doubt of the defendant’s guilt, growing out of all the testimony and the circumstances in the case, it is your duty to convict the defendant.”
And in this connection gave the following instruction at the request of the appellant:
“34. As regards the defense of an alibi, the jury are instructed that the defendant is not required to prove that defense beyond a reasonable doubt to entitlo him to an acquittal. It is sufficient if all the evidence in the case raises a reasonable doubt of his presence at the time and place and commission of the crime charged.”
The appellant asked the court to instruct the jury as follows:
“A statement by one who has been shot, respecting who it was who inflicted the wound, is admissible as a dying declaration, if made at a time he did not expect to survive the injury, but is of no more weight than if the deceased was present and testified. But a mere expression of an opinion as to who shot the deceased is not a dying declaration, and is no evidence whatever. Therefore, if you find from the evidence that at the time deceased was shot the one that shot him was in a dark room at night, and that it was impossible for the deceased to have seen or known who shot him, and that his statement as to who did the shooting was an opinion, then you will not consider the evidence of his dying statements in arriving at your verdict.”
And the court gave the first sentence, and refused to give the remainder, as an instruction to the jury. In this connection the court also instructed tile jury as follows:
“10. If you believe from the evidence that the deceased, after he was shot, made a statement as to who shot him, and under what circumstances the shot was fired, and that at the time he made such statement he believed he would die from the effects of said shot, and entertained no hope of recovery, then you will give such statements, if proved, as much weight as if he were duly sworn, present and testifying in the case.
“11. The defendant is presumed to be innocent of this charge until proved beyond a reasonable doubt to be guilty. This presumption of innocence is not a mere form, to be disregarded by the jury at pleasure. It is an essential, substantial part of the law of the land, and binding upon the jury in this case; and it is the duty of the jury to give to the defendant the full benefit of this presumption, and to acquit him, unless you feel compelled to find him guilty as charged, and the evidence so convinces you beyond all reasonable doubt of his guilt.”
The objection of the appellant to the second instruction given at the request of the state is that it assumes that he killed John Gayton. But. we do not think so. By it the court evidently meant to say if the killing was proved to have been done by the defendant, “the burden of proving the circumstances of mitigation that justify or excuse a homicide shall devolve on the accused,” etc. This is made apparent by other instructions given upon the same subject. In one instruction it told the jury that if there was “any reasonable hypothesis arising out of the evidence and circumstances in this case, except the one that the defendant, and not someone else, killed the deceased, then the defendant is entitled to the benefit of such hypothesis, and he ought to be acquitted;” and in another, that it “devolved upon the state to prove and establish it beyond a reasonable doubt, and if the state failed to do so, it was their duty to acquit the defendant.” In one instruction it told the jury that, before they could convict the appellant, “it must appear from the evidence, beyond a reasonable doubt, that the defendant, and not somebody else, committed the crime; but it must show beyond a reasonable doubt that the defendant committed the crime;” and in another, “to warrant you in the conviction of the defendant, he must be proved to be guilty so clearly and conclusively that there is no reasonable theory under the evidence upon which he can be acquitted.” If the court meant to say that the killing in this case was proved to have been done by the appellant, why did it seek to impress upon the jury, in these instructions, that it was their duty to acquit, unless the evidence so clearly and conclusively showed that appellant killed the deceased as to exclude every reasonable hypothesis that it was done by any other person? The court, instead of assuming that the killing was proved to have been done by the appellant, cautioned the jury against finding that it was, unless they found that the evidence so conclusively proved his guilt as to exclude every reasonable doubt. The instructions, as a whole, clearly indicate that the court never meant to say that the killing of the deceased was proved to have been done by the appellant.
Appllant objects to the ninth instruction given at the request of the state because of the word “attempted.” He says that the court should not have said “attempted to prove ah alibi,” because the' expression was calculated to make the impression upon the minds of the jury that the court .was of the opinion that the appellant only attempted and had failed to prove an alibi. But the instruction is not reasonably susceptible of this interpretation. It does not say that he had attempted to prove an alibi, or say that •there had been a failure to make such proof. It did not intimate any opinion of the court upon the subject, but left the question as to whether the alibi was proved to the jury.
Appellant insists that the court erred in denying, in part, his request for an instruction, as before stated, because the dying statement of deceased should not be ■considered as evidence if it was an expression of an opinion. But the statement was not made as an expression of an opinion. The deceased declared most emphatically that the appellant shot him; that he knew it because he was very near to him at the time. Under the instructions of the court, it went to the jury for what it was worth, and it was their duty to disregard it if they believed it was untrue. So there was no prejudicial error in the refusal of so much of the request as was not granted.
Appellant says that the trial court erred in refusing to permit him to peremptorily challenge Lucian Adams, a juror, after he had been accepted by the state and defendant. The record shows that as each person was accepted as a juror by the state and defendant, the clerk swore him, and the court then directed him to take his seat in the “jury box.” Adams was the second .person selected and sworn. After, four others were selected and sworn, appellant undertook to challenge him peremptorily, but the court refused to qllow him to do so. Was this an error?
Under the statutes of this state persons summoned as. jurors, when called to serve in criminal cases, may be examined under oath touching their qualifications. As each one is called, he is first examined by the state, and then by the defendant, and, after such examination is completed, if the juror is found by the court to be competent, the state shall challenge him peremptorily or accept him; if accepted by the state, the defendant shall challenge him peremptorily or accept him. Lackey v. State, 67 Ark. 416. Each party must challenge or accept in the order named, when the court declares him competent. After he is accepted by both parties, he ■cannot be challenged peremptorily without permission. The court, for good cause, may permit the challenge to be made at any time before the jury is completed. Sand. & H. Dig., §§ 2202-2217.
In the case before us the record fails to show any reason given for challenging Adams after he had been selected, and consequently fails to show that the court erred in refusing to allow him to be challenged.
The last ground upon which appellant, in his brief, insists that the judgment of the trial court should be reversed is the admission of the testimony of Johnson Thompson, given at a former trial, without proof that he was absent, dead, or had ever been subpoenaed. But, as it was not made a ground of a motion for a new trial, the appellant cannot take any advantage of it on an appeal, and we cannot reverse on account of it.
Judgment affirmed. | [
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Battle, J.
Appellant sued appellee for a balance due on a written contract by which it undertook to furnish and sell to appellee sewing machines at specified prices, which he agreed to pay. Appellee admitted the contract, and alleged that he had paid all that he was owing upon it, but that an oral agreement had been substituted for it, by which appellant agreed to give him a machine as a premium if he sold twelve for it (the company) in the year 1898; that he sold eleven, and was entitled to one as a premium; and that he had accounted and paid for the eleven.
On the trial he testified that the allegations made by him as to the substituted contract was true; that appellant furnished him with twelve machines, and he sold eleven, and accounted and paid for the same, and retained one as a premium. The value of this machine was twenty dollars. Another witness testified -that appellant agreed to give him a sewing machine if he sold twenty-five in the year 1898, and nothing as a premium if he did not.
The jury returned a verdict in favor of the appellee, and judgment was rendered accordingly.
We think, accepting the statement of either witness as tp the terms of the contract to be true, that appellee sold only eleven machines in the year 1898, and is not entitled to the premium offered, and is indebted to the appellant for the value of the machine retained, which is twenty dollars.
The judgment of the circuit court is therefore reversed, and the cause is remanded for a new trial.
Hughes and Biddick, JJ., absent. | [
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Riddick, J.
This is an action brought by the Brown-Desnoyers Shoe Company against D. M. Simpson and wife to foreclose a mortgage. The mortgage was executed on the 3d day of March,. 1891, to secure a promissory note of same date for $611, due and payable on or before the 3d day of March, 1892, and the action to foreclose was brought on the 1st day of August, 1899. The defendants filed an answer setting up the statute of limitations as a defense to the action. The record recites that the case was heard in the chancery court upon the complaint, mortgage, note and the answer of the defendants. The court overruled the plea of the defendants, and gave judgment in favor of the plaintiff.
Me regret that in considering this appeal we have not had the assistance of a brief from counsel for plaintiff. On the hearing before the chancellor only the plaintiff appeared by attorney, and we have on the appeal a brief for defendants only. While this is not a satisfactory way of hearing cases, yet in this case the record is short, and the facts not complicated. The note became due over seven years before the action was commenced, but the complaint alleges that the defendants made certain payments on the note, the last of which was on the 26th day of March, 1892. This was still over seven years before the action was commenced, but the complaint further alleges that after the last payment above mentioned the defendants paid on the note to an agent of the plaintiff “a certain small amount by way of rent on the property,” but neither the date nor'the amount of this payment are stated in the complaint, and there is nothing in this allegation, or in the record, to show that this pajunent for rent was made within five years before the commencement of the action to foreclose. Although the mortgage and note are both under seal, yet, being executed after the act of 1889, the p.eriod of limitation is five years, and, unless a payment was made on the note at some later date than that mentioned in the complaint, the note and mortgage shows on their face that they are barred. If any such payment was made, the burden was on the plaintiff to show it. Watkins v. Martin, 69 Ark. 311; Wood on Limitations (3d Ed.), § 116.
As we see the record, nothing is shown to take the case out of the statute. On the contrary, the facts as set out in the record show that the action was barred. We are therefore of the opinion that the judgment in favor of the plaintiff should be reversed and the case dismissed, and it is so ordered. | [
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Riddick, J.,
(after stating the facts.) This is an action of replevin brought by the Rust Land & Lumber Company against Gr. W. Isom to recover 2,200 pipe staves. The action was commenced before a justice of the peace, who gave judgment in favor of the plaintiff, and the defendant took an appeal to the circuit court. On the calling of the case in the circuit court, the plaintiff moved the court to dismiss the appeal for the want of a proper affidavit. The affidavit for appeal made by the defendant is in proper form, and was filed on the same day the justice gave judgment. But the trial before the justice of the peace commenced on the 3d day of June, though the judgment was not rendered until next day. It seems that the defendant, anticipating an adverse decision, made the affidavit for an appeal on the morning of June the 3d, and left it with his attorney, who filed it after the rendition of the judgment next day. I am inclined myself to the opinion that this affidavit, being made before the rendition of the verdict and judgment, was premature, and feel doubtful as to its sufficiency, but a majority of the judges are of the opinion that the affidavit, though irregular in having been made before the judgment, was a substantial compliance with the statute requiring the applicant for appeal “to make and file with the justice an affidavit that the appeal is not taken for the purpose of delay, but that justice may be done.” Moreover, our statute regulating appeals from justices of the peace provides for amendments to bonds and affidavits executed for the appeal, “so that,” to quote the language of the statute, “no such appeal shall be dismissed for want of jurisdiction because of any defect in the affidavit or obligation for the appeal or order granting the appeal, or any defective entry made or informal judgment rendered” by the justice. Sand. & H. Dig., § 4438. This provision evinces an intention of the legislature that appeals from justices of the peace should not be dismissed on narrow and technical grounds, when the applicant for the appeal has endeavored to comply with the statute regulating the manner of taking appeals. It thus appears that there are substantial reasons in favor of the ruling of the circuit court that the mere fact that an affidavit was made a short time before the judgment appealed from ivas delivered did not render it nugatory, where it was filed after the judgment, and in other respects conformed to the requirements of the statute. The contention of appellant on that point is therefore overruled.
On the trial the evidence showed that the defendant, without the consent of the plaintiffs, cut timber upon its land, and converted it into staves. The defendant claimed that he purchased the staves from one Thornton. The circuit judge, at the request of the defendant, instructed the jury that if Thornton and those from whom he claimed title “had held actual, continuous, adverse and uninterrupted possession of the lands from which the timber was cut for more than seven years before the institution of the suit, the verdict should be for the defendant.” This instruction, to the giving of which plaintiff saved proper exceptions, was entirely abstract. Thornton did not testify that he had ever held possession of the lands claimed by the plaintiff. On the contrary, the undisputed testimony was that those lands were wild and unoccupied. Thornton did testify that his father took possession of lands described in a deed from Moon to him, but that deed did not purport to convey the land claimed by the plaintiff. The only land in section 8 that such deed purported to convey was east of Lake Grampus, and possession of that land could not affect the title of plaintiff to lands west of the lake, even though Thornton believed that his deed covered that land also. There was, as we see it in the transcript, no evidence whatever to justify the jury in finding that Thornton had title to the land claimed by plaintiff, on which the timber was cut, by statute of limitation or otherwise, and that question should not have been submitted to them for decision. The testimony of Thornton that his father and he had held adverse possession of lands’conveyed by Moon to him was incompetent, for it had no bearing on the question at issue, which was whether the staves were cut from the lands owned by plaintiff west of the lake. Plaintiff did not claim the land conveyed by Moon to Thornton, and there was no question as to the title of those lands involved in the case. The tendency of this evidence of Thornton, and the instruction based on it, above noticed, was to becloud the real matters at issue, and mislead the jury; and we are therefore of the opinion that the evidence should have been rejected, and that the court erred in giving the instruction as to adverse possession.
The only legitimate basis for introducing the deed from Moon to Thornton was not to show title in Thornton to the lands claimed by the plaintiff, for, as before-stated, that deed did not purport to convey such land, but to show that the defendant had the right to cut timber on the land adjoining those owned by plaintiff, and in connection with the evidence to show that he cut the timber of plaintiff innocently, under an honest misapprehension as to the location of the boundary line between the land of plaintiff and that of Thornton. The jury should have been admonished that the deeds of Thornton were no evidence of title to the land claimed by the plaintiff, and that they could only be considered in determining the question as to whether the defendant was innocent of intentional wrong.
The evidence on the trial showed very clearly that at least a portion of the staves replevied were made by defendants from timber cut by him on plaintiff’s land without his consent, and then converted into staves. The evidence tended to show that defendant piled these staves with other staves owned by him, and they were thus so mingled that the particular staves owned by the plaintiff could not be identified. The court instructed the jury on this point that, before they could find for the plaintiff, it must be shown either that it was the owner of all the staves replevied, or, if it owned only a portion of the staves, it must be shown that these staves had been mixed and mingled by defendant with the staves belonging to him, “with the intention of preventing plaintiff from identifying the staves cut from its land.”
No doubt, the rule that where one willfully and wrongfully mixes his property with that of another, so that the property of neither can be distinguished, gives to the innocent party the whole of the mixed property, was intended to prevent fraud, and to take away from the evil-disposed the incentive to deprive another of his property by mixing it with his own so that it could not be identified. While the rule was intended to prevent a mixture for that purpose, it is not necessary for the innocent party to prove that the mixture was actually made with that intent, for in most cases that would be difficult to do. For instance, take this case as an illustration. If the defendant knew that the timber which he cut belonged to plaintiff or some other person, and that he had no right to cut it, and yet willfully and wrongfully entered upon this land, cut timber, and converted it into staves, and afterwards mixed these staves with staves belonging to himself, so that the property of neither could be identified or distinguished, it would certainly not be necessary for the plaintiff to go further, and show that the mixture was made to prevent plaintiff from identifying his staves. We apprehend that in such a case it would be entirely immaterial whether he mixed them for that purpose, or only for the purpose of making a more convenient shipment or sale. In either case the mixture would have been willfully and wrongfully made by defendant, and he should suffer the loss if any be caused by such act. We are therefore of the opinion that the instructions given on this point placed a greater burden on plaintiff than the law required, and were to that extent erroneous and prejudicial.
Another question presented by the facts of this case, but which does not seem to have been discussed at the trial below, is whether, if the mingling was innocently done, and if the staves mingled were all of the same kind, quality and value, replevin may not be maintained by .plaintiff, notwithstanding the particular staves cannot be identified. If the staves are of the same kind, quality and value, and if no advantage would result to either party by getting the identical staves owned by him, even if that were possible, the general rule is that replevin will lie for the number owned by the plaintiff, to be taken out of the mass, especially when the mingling was not brought about by his act. This rule is generally followed by the courts of this country, including, it seems, the supreme court of the United States. Eldred v. Oconto Co. 33 Wis. 141; Peterson v. Polk, 67 Miss. 163; The Idaho, 93 U. S. 585; Cobbey, Replevin (2d Ed.), §§ 399-404.
We do not understand that this court has ever distinctly decided to the contrary. The case of Hart v. Morton, 44 Ark. 450, may seem at first glance to be a decision of that question, but an examination of the facts of the case will show that this is not so. The plaintiff in that ease purchased cotton from a tenant subject to the lien of the landlord. At the time of his purchase the cotton was in the field unpicked. Later, the landlord, who was the defendant in the ease, also purchased the interest of the tenant. There had been no separation of the rent cotton from the other at the time of this purchase. Afterwards the landlord himself weighed out the cotton, to determine the amount of rent and other cotton. But this was not a separation binding on either party, and the cotton was remixed after being weighed. It is very plain, we think, that the claim of the plaintiff in that case was for an undivided interest, and the cortrt, speaking of it as an undivided share, properly held that replevin would not lie. But the headnote prefixed by the reporter to that case indicates that the court went further, and decided the question under consideration here; but we think the reporter was mistaken in this, and that his headnote is to that extent misleading.
We have many other cases of that kind holding that replevin will not lie by one tenant in common against his co-tenant to recover his undivided share of the common property. The reason that underlies these decisions is that until division has been made neither of the parties owns any particular part of the property, more than the other, and neither has the right to the exclusive possession of any particular portion of it. We have also held that, when cotton has been innocently mixed and baled, replevin will not lie for a part of the bale; and this is clearly correct, for division in kind cannot then be made without injury to the other party. For, if the bale be torn to pieces, the cotton would have to be re-baled at additional expense. Moseley v. Cheatham, 62 Ark. 134; Washington v. Love, 34 Ark. 93; McKinnon v. May, 39 ib. 442.
But this case belongs to neither of these classes of cases. The parties here are not tenants in common. The plaintiff owns a certain number of staves, which, without its fault, have been mixed by defendant with other staves of his own. Conceding that this was innocently done, yet, if the staves mingled are of the same kind, quality and value, a majority of us are of the opinion that plaintiff can in this action recover his staves, or an equal number to be taken from the common mass, if the separation can be made without injury. The plaintiff, as we have stated, was not responsible for the mingling, and whether, if it had been, replevin would lie at its instance and for its benefit, we need not determine.
For the errors stated, the judgment’is reversed, and the cause is remanded for a new trial. | [
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Wood, J.,
(after stating the facts.) Appellants contend that one who has signed a petition against license may change his opinion at any time béfore the final order of the court, without giv ing any reason for so doing, and that, if he notifies the court of his change of mind and dissent from the petition before the final order; it is sufficient, however informal the notice may be.
Appellees contend, on the other hand, that no petitioner has the right to withdraw his or her name from the petition after it has been filed in the count}'' court, unless his or her signature was obtained by fraud, or through ignorance on the part of the signer.
The first, third and fourth propositions of law, as declared by the learned trial judge, are correct. The second is not the law. In Williams v. Citizens, 40 Ark. 290, it is said: “If the original signatures were obtained intelligently and without fraud, and have not been erased before presentation, or afterwards by leave of the court, they fulfill the requirements of the statute.” In McCullough v. Blackwell, 51 Ark. 164, it is said: “The presentation of the petition is in the nature of an election. When the county court has acted, the votes have been cast, and the election returns made.” The word “presentation,” as used in these decisions, should be construed to mean the “filing of the petition.” Treating the proceedings as analogous to that of an election, as is done in McCullough v. Blackwell, supra, the ballots are cast when the petition containing the signatures is filed with the clerk of the county court. Continuing the analogy, when thq county court begins the investigation to determine the result the polls are closed, and the count of the ballots has begun, and when the order is entered the returns are made. Before the filing with the clerk, where petitioners adopt that method of presentation to the judge, the petition is in the power of the signers. Each signer may control Iris signature. It is not yet a petition in which the public is interested. The matter is as yet in fieri, so to speak. But when the petition has been filed with the county court, it has been then delivered, presented to the court, made a court record. The public has now become interested in it. The jurisdiction of the subject-matter has now attached.
In the absence of something in the statute pernfitting it, no individual signer, nor, indeed, all the signers, could thereafter withdraw or erase their names from the petition without leave of the court. And the court should not grant such leave without some good cause shown therefor. He who voluntarily sets on foot a proceeding for the enforcement of a salutary police regulation in any community should not be permitted to capriciously undo his work. He should not be allowed to play fast and loose with the interests of society. The law makes no provision for protests and remonstrances, for signing and contra-signing. It only provides for the petition. See the following authorities: Williams v. Citizens, 40 Ark. 290; McCullough v. Blackwell, 51 Ark. 164; Wilson v. Thompson, 56 Ark. 110; State v. Gerhardt, 33 L. R. A. 325; Carr v. Boone, 108 Ind. 241, 9 N. E. 110; Sutherland v. McKinney, 146 Ind. 611, 45 N. E. 1048; Orcutt v. Reingardt, 46 N. J. L. 337; Grinnell v. Adams, 34 Ohio St. 44; 17 Am. & Eng. Enc. Law (2d Ed.), 248.
The judgment of the court was correct on the facts, even if the law were as favorable to appellants as the circuit court declared in its second proposition. ,
Affirmed. | [
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Wood, J.
The appellee admitted that the tax sale records show that the delinquent list was filed by the deputy sheriff, instead of the collector; that the certificate of the clerk of the publication of the delinquent list does not recite that the papers in which the delinquent list was published had a bona fide circulation in the county for thirty da}rs before the first issue of publication; and that there was no separate book wherein a record of the said tax sales was entered kept by the clerk of Arkansas county prior to 1894. These admissions show that the forfeiture for taxes and the donation deed under which appellee claims title are void.
Section 6603, Sand. & H. Dig., provides that “the collector shall * * * file with the clerk of the county court a list or lists” of delinquent taxes. The sheriff being ex-officio collector, what he does in the capacity of collector must be taken as done by the collector. While the offices are distinct, their functions are performed by the same individual. At least, this must be taken as prima facie true. Brown v. Rushing, ante, 111; Keith v. Freeman, 43 Ark. 296; Budd v. Bettison, 21 Ark. 582. But this rule does not apply to deputy sheriffs. They are not ex-officio deputy collectors. It will not be presumed that a deputy sheriff is also a deputy collector. Crowell v. Barham, 57 Ark. 195. The delinquent list was filed by the deputy sheriff. The law does not authorize him to file such list. The filing of the delinquent list as the law prescribes is a prerequisite to a valid forfeiture to the state for the nonpay mcnt of taxes. Without such list no notice could be published, and no sale could be had. Black, Tax Tit. § 199.
The statute provides: “The clerk * * * shall record in a separate book, to be kept for that purpose, each tract of land * * * sold to. the state, together with the taxes, penalty and cost due thereon.” Sand. & H. Dig., § 6613. The failure of the clerk to keep this record, as shown by the admission, rendered the sale to the state for the nonpayment of taxes void. The provision for the keeping of this record is mandatory. It is all-important to the landowner, for it furnishes him the only record evidence of the taxes, penalty and costs for which his land was sold. Cooper v. Freeman Lumber Co. 61 Ark. 36; Salinger v. Gunn, id. 414. It was intended that the record of the sale actually made should be preserved in permanent form for the protection of the landowner. He can rely upon this record to determine whether his land has been sold, and whether it was legally sold for the proper amount of taxes, penalty and costs charged against it. See Logan v. Eastern Arkansas Land Co. 68 Ark. 248.
The appellee acquired no rights by limitation. His donation deed was executed January 14, 1898. This suit was brought March 16, 1898. In McCann v. Smith, 65 Ark. 305, we said: “The possession necessary to bar the plaintiff, his ancestor, predecessor, or grantor, must be held under the donation deed. * * * Until the deed is executed, the grantee therein acquires no right, title or interest in the land, and acquires none by adverse possession.” Sand. & H. Dig., § 4819.
Whether or not appellee is entitled to improvements, and, if so, what amount should be allowed, are questions depending largely upon the construction of the evidence, as well as the question of rent. The learned special chancellor, having found in favor of the appellee, did not pass upon these questions. For that purpose only the cause is remanded, and with directions to enter a decree on the question of title in accordance with this opinion. | [
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Hughes, J.,
(after stating the facts.) The -court had power and the right to revoke its order revoking the prohibitory order during the term at which the order was made,' and its finding of facts warranted it in doing so. When the order was revoked, it left the prohibitory order in full force, and really showed that it had never been in effect suspended. The license granted upon the order revoking the prohibitory order never had any validity, and there was no foundation in fact for such license. The license therefore was no protection to the defendant against a prosecution for the sale of whisky. Underwood v. Sledge, 27 Ark. 295.
The judgment of the court is reversed and remanded for further proceedings. | [
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Battle, ■ J.
This action involves the validity of mining claims. The Buffalo Zinc & Copper Company alleged in its complaint, substantially, as follows: It was duly organized as a corporation, under the laws of the state of Illinois, on the 3d day of June, 1887, for the purpose of doing a general mining and smelting business, and dealing in mineral lands. Since then it has been engaged in such business.
On the 6th of November, 1886, one Rose Ann Kaylor, in accordance with law, located a lead and lode mining claim, described as follows: “Beginning at the northwest comer of the southwest quarter of the southwest quarter of section 11, in township 17 north, and in range 15 west, and thence running north along the section line 1,500 feet, thence east 600 feet, thence south 1,500 feet, and thence west 600 feet to the place of beginning.77 Notice of this location was given, and was duly filed for record in the office of the recorder of the Harrison mining district, in which the land was then situated, and was recorded on the 8th of December, 1886; and was also filed for record on the 21st day bf January, 1888, in the office of the recorder of Marion county, where the land lies, and was duly recorded. This.location was named and known as the “Bell Claim.77
On the 6th of November, 1886, one Francis E. Blake lawfully located, as a lead or lode mining claim, the land lying in the county of Marion, in this state, and known and described as follows: “ Beginning at the northeast corner of the said Bell claim, and thence running east 600 feet; thence south 1,500 feet; thence west 600 feet; and thence north 1,500 feet to the place of beginning; being a part of the west half of the southwest quarter and the •southwest quarter of the northwest quarter of section 11, in township 17 north, and in range 15 west.77 Notice of this location was given, and was duly filed for record in the office of the recorder of the Harrison mining district, where the land was then situated, on ihe 8th day of December, 1886, and the same was duly recorded; and it was also filed tor record in the office of the recorder of Marion county, on the 22d day of August, 18Ü0, and was recorded. This location was named and known as the “ White Eagle Mining Claim."
On the 20th day of November, 1886, Bose Ann Naylor and William Naylor, her husband, for a valuable consideration, sold and conveyed to T. A. Blake all their right, title and interest in and to the White Eagle and Bell mining claims, and put him in possession of the same.
On the 4th of June, 1887, Francis E. Blake, T. A. Blake, and W. P. Beebe, the owners of the Bell and White Eagle mining claims, for a valuable consideration, sold and conveyed said claims to one Fred C. Exter, who, on the 27th of June, 1887, sold and conveyed them to the plaintiff, the Buffalo Zinc & Copper Company, and placed it in the possession of the same.
On the 19th of May, 1898, the plaintiff, in conformity with the law in such cases made and provided, made a corrected location of the White Eagle and Bell mining claims, so as to conform to the lead or lode of mineral pre-empted, and consolidated the two in one claim, and named, it the White Eagle Lead or Lode Mining Claim. Notice of location was given, and was duly recorded, on the 19th day of May, 1898, in the office of the recorder of the Bush Creek mining district, where the mining claim was then located.
The defendants in this action attempted to make a location of a placer mining claim upon the lands upon which the mining claims of the plaintiff are located. These lands were valuable for zinc ores found in them in leads or lodes, and are not subject to locations of placer mining claims; and the location of the defendants upon them are therefore void.
The defendants filed an application in the office of the proper land district for a patent to the lands, and notice of the application was published on the 16th of September, 1898. On the 10th day of November next following plaintiff filed, in the same office, an adverse claim to the same land; and proceedings on the application for a patent were suspended during the pendency of this suit.
Plaintiff asked for a decree canceling the placer location of the defendants, and declaring that it is the owner of the lands and entitled to their possession, and other relief.
Frank Pace, S. J. Pace and Harry Pace brought an action against the plaintiff, Buffalo Zinc & Copper Company, S. W. Woods, and the defendants in the action instituted by the Buffalo Zinc & Copper Company, to-wit: G-. J. Crump, B. J. Carney, J. C. South, M. N. Dyer, Z. M. Horton, DeRoos Bailey, W. F. Pace, and Arthur N. Sager, to recover the possession of the land claimed by the Buffalo Zinc & Copper Company in its complaint, and claimed to be the owners by virtue of a placer mining location made on the 11th day of April, 1898.
The latter action was transferred to the equity docket, and by consent the two actions were consolidated and heard as one.
Frank, S. J. and Henry Pace answered the complaint of the Buffalo Zinc & Copper Company substantially as follows:
They admitted that Rose Ann Kaylor, on the 6th day of November, 1886, attempted to make the location named and known as the “ Bell Claim ;” and that Francis E. Blake, on the same day attempted to make the location named and known as the “White Eagle Mining Claim;” and denied all the other allegations in the complaint. They say that the pretended location of Rose Ann Kaylor was illegal, because one E. C. Bartlett, on the 11th clay of March, 1885, made a location of a mining claim on the same land, in the manner prescribed by law, which was named “Bon Ton,” and was valid and subsisting on the 6th of November, 1886. They allege that the White Eagle Mining Claim was invalid, because one S. E. Williams, on the 12th day of March, 1885, segregated and appropriated the land on which it was located by entering upon and locating thereon a mineral claim, known as the “ Small Hope,” in the manner and form required by law, and that it was in full force when the White Eagle Mining Claim was located. They aver that, if the Buffalo Zinc & Copper Company acquired an interest or title in and to the lands in controversy by locating the White Eagle and Bell mining claims thereon, it abandoned and forfeited it on the 11th day of February, 1892, by entering and locating thereon a placer mining claim, and by permitting and causing one August Schmidt, on the 13th day of April, 1892, to enter the land as a homestead, and to occupy the same for a full period of five years, with the fraudulent intent of acquiring the same, .through Schmidt, as agricultural lands. They aver that, if the Buffalo Zinc & Copper Company acquired any interest or title in and to the lands upon which the Bell and White Eagle mining claims are located, it forfeited the same by failing to do the assessment work required by law in such cases for the years 1893, 1894, 1895, 1896, and 1897. They alleged that they peaceably entered and located a placer claim upon the lands in controversy. They alleged that the Buffalo Zinc & Copper Company ought not to maintain their action, because it is a foreign corporation, and has not filed in the office of the secretary of state a copy of its charter or articles of incorporation or association, and has not designated an agent, who is a citizen of this state, upon whom summons or other process may be served, and has not filed a certificate with the secretary of state, showing its principal place of business in this state. And they asked that their answer be taken and considered as a cross complaint against the Buffalo Zinc & Copper Company, and that they have judgment for the land.
The defendants, G-. J. Crump, B. J. Carney, J. C. South, M. N. Dyer, Z. M. Horton, and W. F. Pace answered the complaint of the Buffalo Zinc & Copper Company, adopted the answer of Frank, S. J. and Henry Pace as their own, and alleged that, on the 28th day of December, 1897, they located a mining claim on the lands in controversy, and called it the “White Eagle Placer Mining Location,” and thereupon entered, begun and carried thereon mining operations, and expended large sums of money in developing the same, and at all times thereafter have continued in possession and expended money and labor upon the same; and on the 16th day of September, 1898, made application to the United States for a patent thereto in the manner and form required by law. And they asked for judgment for the land.
The Buffalo Zinc & Copper Company answered the cross complaint of Prank, S. J. and Henry Pace, and denied all the allegations therein inconsistent with its complaint.
The court, after hearing the evidence adduced by both parties, found that the defendants were entitled to the possession of the land, and that the plaintiff, Buffalo Zinc & Copper Company, was, in equity, entitled to recover the sum of $10,000 for moneys expended by it in developing said property, but refused to determine whether it was lead or lode or placer ground, and rendered a decree in favor of the defendants for the land, and decreed that the plaintiff have a lien on the same for the $10,000, provided it assented to and ratified the decree within forty days; and the plaintiff appealed.
The following questions are presented by the pleadings and evidence in this case for our consideration and decision:
First. Did appellant, by a failure to comply with the terms of an act entitled “An act to prescribe conditions upon which foreign corporations may do business in this state;” approved February 16, 1899, lose its right to maintain this action?
Second. Was the mining claim of appellant located upon a lead and lode of mineral?
Third. Were the locations of the Bell and White Eagle claims by Bose Ann Ifaylor and Francis E. Blake valid?
Fourth. Did appellant abandon or forfeit the Bell and White Eagle lead and lode claims?
Fifth. Did the appellant have the right to amend the Bell and White Eagle claims?
We shall consider these questions in the order stated.
1. Section 1 of the act of February 16, 1899, provides that every foreign corporation, “before it shall be authorized or permitted to transact business in this state, or to continue business therein, if already established, shall, by its certificate under the hand of the president and seal of such company or corporation, filed in the office of the secretary of state of this state, designate an agent * * * upon whom servi'ce of summons and other process may be made,” and state its principal place of business in this state. Section 2 provides that every foreign corporation, doing business in this state, shall file in the office of the secretary of state of this state a copy of its charter, articles of incorporation or association, or certificate of incorporation. Section 3 provides that any corporation which shall refuse or fail to comply with the act shall be subject to a fine of not less than $1,000, and shall not “maintain any suit or action, either legal or equitable, in any of the courts of this state, upon any demand, whether arising out of contract or tort;” and section 4 provides that “any foreign corporation that has heretofore engaged in business, or made contracts in this state, may, within ninety days after the passage of this act, file such copy of articles of incorporation, together with certificate of appointment of an agent upon whom service of summons or other legal process may be had, in the office of the secretary of state, and pay the requisite fees thereon, as provided by this act.”
This action was commenced in December, 1898, before the act of February 16, was passed; and the plaintiff, a foreign corpo ration, filed a copy of its articles of incorporation and a certificate of the appointment of an agent, upon whom service of summons and other legal process may be had, in the office of the secretary of state, on the 18th of August, 1899, during the pendency o'f the action.
Appellant contends that it was not necessary to file a copy of its articles of incorporation or a certificate of appointment of an agent, in order to maintain this action, because it is not a suit or action upon any demand arising out of a contract or tort. But it is not necessary to decide that question. The act of February 16 does not expressly prohibit the institution of an action because of a failure to perform any condition, nor does it intend to forever prohibit the maintenance of any action because the plaintiff therein is a foreign corporation, and has not within any particular time complied with its terms. Penalties are imposed on account of past conduct or omissions. The penalties of the act in question are, doubtless, intended to compel an observance of its terms. When that is done, its purpose is accomplished, the condition upon which the right to maintain an action depends is performed, and the plaintiff can in the future prosecute it to a- final judgment. Carson-Rand Company v. Sterne, 129 Mo. 381.
The institution and prosecution of an action are not doing business within the meaning of the act of February 16, 1899, and of other statutes upon the same subject. Railway Company v. Fire Association, 55 Ark. 174.
The appellant complied with the act, and has the right to prosecute its suit until it is finally disposed of in due course of law.
2. Was the mining claim of appellant located upon a lead and lode of mineral?
It is difficult to define what is meant by a lead, lode or vein of mineral matter. The first reported case in which a definition was attempted is the Eureka Case, 4 Sawyer, 302, 311. The court, after observing that the word was not always used in the same sense in scientific works on geology and mineralogy and by those actually engaged in the working of mines, said: “It is difficult to give any definition of the term, as understood and used in the acts of congress, which will not be subject to criticism. A fissure in the earth’s crust, an opening in its rocks and strata made by some force of nature, in which the mineral is deposited, would seem to be essential to the definition of a lode, in the judgment of geolo gists. But, to the practical miner, the fissure and its walls are only of importance as indicating the boundaries within which he may look for and reasonably expect to find the ore he seeks. A continuous body of mineralized rock, lying within any other well defined boundaries on the earth’s surface and under it, would equally constitute, in his eyes, a lode. We are of opinion, therefore, that the term, as used in the acts of congress, is applicable to any zone or belt of mineralized rock lying within boundaries clearly separating it from the neighboring rocks.” The supreme court of the United States in Iron Silver Mining Company v. Cheesman, 116 U. S. 529, 534, followed this citation by observing: “This definition has received repeated commendation in other cases, especially in Stevens v. Williams, 1 McCrary, 480, 488, where a shorter definition by Judge Hallett, of the Colorado circuit court, is also approved, to-wit: In general, it may be said that a lode or vein is a body of mineral, or mineral body of rock, within defined boundaries, in the general mass of the mountain.” And the same court, in the same case said: “The lode or vein -must be continuous in the sense that if can be traced through the surrounding-rocks, though slight interruptions of the mineral-bearing rock would not be alone sufficient to destroy the identity of the vein. Nor would a short partial closure of the fissure have that effect if a little further on it recurred again with mineral-bearing rock within it.” Iron Silver Mining Company v. Cheesman, 116 U. S. 538. We accept this interpretation of the acts of congress as correct..
The validity of the location of the Bell and White Eagle mining claims depend upon the acts of congress. They are located under these acts, and derive their whole force, strength and support from them. In determining, therefore, whether they were located upon a lode or vein of minerals, we are governed by the meaning of those terms as used in the statutes of the United States. It can serve no useful purpose to set forth the evidence adduced by the parties upon this issue. It would require too much time and space to do so. It is sufficient to say that, in our opinion, the preponderance of the evidence in the ease shows that the claims in question were located upon a lode or vein of minerals, in the sense those terms are used in the laws enacted by congress; and we so decide.
3. Appellees insist that the locations of the Bell and White Eagle claims as made by Eose Ann Naylor and Francis E. Blake were invalid. They say that the description of the Bell claim in the notice of location by Naylor was insufficient. It is as follows: “ Beginning at the northwest corner of Ed Williams, 1-16, at a black oak post; thence 1,500 feet north between sections 10 and 11 to a dogwood bush; thence 600 feet east to a dogwood bush; thence 1,500 feet south to oak post in Williams’ field; thence 600 feet to place of beginning. This being in the northwest quarter of the southwest quarter, section 11, township 17, range 15 west.” They base their contention upon the fact that there is nothing in the record which shows what is meant by “Ed Williams, 1-16,” named in the notice as the beginning point. But it does show that it was at a black oak post, and 1,500 feet north of it was a dogwood bush between sections 10 and 11, which must have been on the line between those sections, and that the claim described was in the northwest quarter of the southwest quarter of section 11, township 17, range 15 west, in Marion county, in this state. The presumption is that it (Ed Williams, 1-16) is a well known natural object, until the contrary appears. Hammer v. Garfield Mining & Milling Company, 130 U. S. 291; S. C. 16 Mor. Mining Rep. 125, 132. And nothing is shown to the contrary. The sufficiency of the description is not attacked upon any other ground.
What we have said of the Bell claim is equally true of the White Eagle claim.
They further insist that there is no evidence to show that the notices of the location of these claims were posted on them, but the evidence does show that the appellant purchased the Bell and White Eagle claims, and that they were conveyed to it by the vendor, and that it has been in possession controlling and developing them, and holding adversely to all the world, for a time longer than the statutory period of limitation. As against all adverse claimants, the presumption is that the location of the claim of appellant was regularly made. Harris v. Equator Mining & Smelting Company, 3 McCrary, 14; S. C. 12 Mor. Mining Rep. 178; Cheesman v. Hart, 42 Fed. Rep. 99.
They say that the notices of the location of these claims were not recorded within thirty days. The record shows that they were recorded before any adverse rights to the same ground were acquired. This is sufficient. No damage was done by the failure, and no one can complain that it was not done at an earlier date. Faxon v. Barnard, 2 McCrary, 44; S. C. 9 Mor. Mining Rep. 515; Preston v. Hunter, 67 Fed. Rep. 996; McGinnis v. Egbert, 8 Colo. 41; S. C. 15 Mor. Mining Rep. 329.
Appellees contend that the original locations of the Bell and White Eagle claims were void, because the land covered thereby was not subject to location at the time they were made; E. C. Bartlett and S. E. Williams having previously, on the 12th of March, 1885, made mining locations, known as the “Bon Ton" and “Small Hope" claims, on the same land. The evidence indicates that Bartlett and Williams had abandoned their claims when the Bell and White Eagle claims were located. After locating the Bon Ton and Small Hope claims, they never undertook to develop and maintain them. The Bell and White Eagle claimants took possession and held and developed them by work and labor performed, and held adverse possession of the same for a longer time than the period of limitation prescribed by statute. This was sufficient to render their claim valid against every one except the United States. Glacier Mt. S. M. Co. v. Willis, 127 U. S. 471; Francoeuer v. Newhouse, 43 Fed. Rep. 236; Four Hundred and Twenty Mining Company v. Bullion Mining Company, 3 Sawyer, 634; Harris v. Equator Mining & Smelting Company, 3 McCrary, 14.
4. Did appellant abandon or forfeit the Bell and White Eagle lead and lode claims ?
Appellees alleged that appellant made a placer location upon 160 acres, including the ground upon which the Bell and White Eagle lead and lode claims were located, and thereby abandoned the latter. Bpt this was disproved by the evidence. W. Q. Seawel, as agent, undertook to make such a location, but did so without authority, and appellant refused to ratify it.
The next contention is that appellant abandoned the Bell and White Eagle mining claims by quitting work upon them and closing them up, and causing August Schmidt to enter the land embraced by the same, together with other lands amounting in the aggregate to 160 acres, as a homestead. An abandonment is a voluntary act, and consists of the relinquishment of possession of the claim with an intention not to return and occupy it. It is purely a question of intention. “If there is no animus reverlendi, the desertion of the claim determines the property at once, without regard to the duration of the locator’s absence.” To constitute an abandonment, there must be an absolute desertion of the premises. The burden of proving it is upon him who asserts it. 2 Lindley, Mines, § 643. In this ease the appellant quit work upon its claims temporarily, except annual assessment work, on account of the lack of transportation for the ores taken from the mines. August Schmidt entered the land as a homestead, but without the consent of appellant. There was no agreement or understanding that he would hold the land for its benefit. The evidence is insufficient to prove that it did or intended to relinquish its claims.
Appellees allege that appellant forfeited the Bell and White Eagle mining claims by the failure to perform the annual labor required by law. Section 2324 of the Revised Statutes of the United States provides, among other things, as follows: “On each (mining) claim located after the 10th of May, 1872, and until patent has issued therefor, not less than $100 worth of labor shall be performed or improvements made during each year. But where such claims are held in common, such expenditures may be made upon any one claim; and, upon a failure to comply with these conditions, the claim or mine upon which such failure occurred shall be open to relocation in the same manner as if no location of the same had ever been made; provided, that the original locators, their heirs, assigns or legal representatives, have not resumed work upon the claim after failure and before such location.” Under this statute, if an original locator, his heirs or assigns, should fail to perform work in any year, and should thereafter resume work in good faith before any location is made, he thereby preserves his* right to the claim. His rights then stand as they would if there had been no failure to comply with this condition of the law; and no one has a right to relocate upon the land covered by his claim after such resumption of work in good faith. Belk v. Meagher, 104 U. S. 279; North Noonday Mining Company v. Orient Mining Company, 1 Fed. Rep. 522, 536.
As said in Belk v. Meagher, 104 U. S. 284, “Mining claims are not open to relocation until the rights of a former locator have come to an end. * * * The right of location upon the mineral lands of the United States is a privilege granted by congress, but it can only be exercised within the limits prescribed by the grant. A location can only be made where the law allows it to be done. Any attempt to go beyond that will be of no avail. Hence a relocation on lands actually covered at the time by another valid and subsisting location is void; and this not only against the prior locator, but the whole world, because the law allows no such thing to be done.”
A forfeiture of a mining claim by the failure of the former owner to perform the annual labor required by law cannot be established except by clear and convincing evidence. The burden of proving it rests upon him who sets it up, — in this case upon the appellees. Hammer v. Garfield Mining & Milling Company, 130 U. S. 291, 301.
The grantors of appellant located their mining claims, the Bell and White Eagle, in the year 1886. They and appellant held and controlled the same until 1897 and 1898, when appellees undertook to locate claims upon the same and'other lands and to take possession thereof. Saying nothing of the work done by appellant in previous years, we think the evidence satisfactorily shows that it in good faith annually performed the work required by the statutes of the United States in the years 1895, 1896, 1897 and 1898, and until the commencement of this suit. The attempted location of appellees was therefore void, and the effort to take possession was a trespass.
5. Appellant amended the location of its Bell and White Eagle mining claims. Appellees insist in this court that the amendment was not made in the manner prescribed by law. But that was not in issue in the trial court. Appellant alleged in its complaint as follows: “Plaintiff further states that on the 19th day of May, 1898, plaintiff, being the owner of and in possession of all that part of said White Eagle and Bell mining claims that was not embraced in the homestead of August Schmidt as corrected by the secretary of the interior, made a corrected location of. said mining claims, so as to conform to the lead or lode of mineral; and embraced said lands in one claim, containing about 17.60 acres, and named the White Eagle Lead and Lode Mining-Claim, and situated and embracing most of the south half of the northwest quarter of section 11, township 17 north, of range 15 west. That said amended location was made in conformity to the laws of the United States, the laws of the state of Arkansas, and the laws and usages of the Push Creek mining district, where said mining claim is located. That said location notice was duly recorded in the office of the Push Creek mining district on the 9th day of May, 1898, in record book K, on pages 44 and 45.” And appellees answered as follows: “They deny that plaintiff, Buffalo Zinc & Copper Company, had any right or authority to make the said pretended change and correction of what it claims to be its lode or lead mineral claim. * * * They aver that, as alleged in their original complaint filed herein, which said complaint is here referred to and asked to be taken and considered'in connection with this pleading, that long before said pretended change of survey by said plaintiff, Buffalo Zinc & Copper Company, these plaintiffs (defendants) had, in manner and form required by law, peaceably entered upon and made August Placer Mineral Location, covering all the land involved in this controversy and all the lands mentioned and described in these plaintiffs’ (defendants’) original complaint, and was holding the same at the time the said plaintiff, Buffalo Zinc & Copper Company, entered thereon for the purpose of making said pretended change in what they claimed to be their lead and lode, and aver that said entry by said plaintiff, Buffalo Zinc & Copper Company, was without right or authority of law, and that such entry was a trespass on the rights of these plaintiffs (defendants).” The complaint and answer show that the legality and sufficiency of the amendment of the location were not questioned, except the right of appellant to enter upon the land for the purpose of making the same, and that, we have seen, it could lawfully do. It was unnecessary to prove or show that which was, expressly or impliedly, admitted by all the parties.
It follows that the mining claims of the appellees, so far as they conflict with that of appellant, as amended, should have been canceled by the trial court.
It is therefore ordered that the decree appealed from be reversed, and that this cause be remanded with instructions to the court to enter a decree in accordance with this opinion. | [
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Battle, J.
Stephen White was accused and convicted of arson, committed by burning a dwelling house of William McDonald in Lincoln county, in this state.
In the trial of White it was shown that the house was burned. William McDonald, the owner of the house, testified, in part, substantially, as follows: “The defendant made three statements to me about the burning of the house. The first he told me that Bill Smith burnt it, and told me to go to John Simmons’ wife, who was a fortune teller, and she would tell me all about it. At another time, lie told me that a black man burnt it. I said to him, ‘If you will tell me, I won’t, bother you; I won’t tell anyone.’ He then told me that he burnt it, and that, if I would let him off, he would give me twenty or twenty-five dollars. I got him with Lawrence Johnson, and tried to get him to tell it before him, but he said again that a black man burnt it.” The defendant thereupon moved the court to exclude the confession from the evidence, and the court overruled his motion. In this the court erred. The evidence was inadmissible. The confession was made under the promise of the prosecuting witness, the owner of the house, that he would not be exposed or troubled by him (the witness) if he confessed. Sullivan v. State, 66 Ark. 506.
As the evidence, without the confession, did not clearly show that the accused was guilty of the offense charged against him, the error committed was prejudicial, and the judgment of the trial court should be set aside; and it is so ordered. | [
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Riddick, J.,
(after stating the facts.) The question presented by this appeal is whether the circuit court erred in permitting E. R. Kirksley and other intervening petitioners to become parties to this action, and in rendering judgment in their favor against the defendants for the several amounts claimed by them. Our statute provides that “where, in an action for real or personal property, any person having an interest in the property applies to be made a party, the court may order it to be done.” Sand. & H. Dig., § 5636. But it is not shown that the intervening petitioners had any interest or lien upon the debt which the plaintiff Bean sought to recover in this case. It is true that they allege that they were employed by Bean, and assisted him to perform the contract he had made with the defendants. But they did not do this under any contract with the defendants. They were employed by and worked for Bean, but they had no contractual relations with the defendants. If they had any lien, it was upon the product of their labor, and not upon the amount due from the defendants to Bean under the contract.
But it seems that they claim the right to sue the defendants by virtue of a provision in the contract between Bean and the defendants upon which Bean based his right of action against defendants. The provision referred to required Bean to promptly pay all laborers as soon as payments were made to him, and further stipulated that, upon a failure to do so, the defendants should have the right to retain all subsequent estimates and make payments direct to the laborers. In addition to this, the contract provided that, before any right of action should accrue to Bean, he must furnish satisfactory evidence that the work was free from all liens for labor and materials.
But we find nothing in these provisions of the contract that constitutes a promise on the part of the defendants, McCarthy & Reichardt, to pay the claims of these interveners. To protect themselves against liens of laborers and material men, the defendants reserved the right, in certain contingencies, to pay these debts themselves out of money due the plaintiff Bean, and also provided that no right of action should accrue to Bean on the contract until he had paid all such debts. But, though the defendants, as a matter of self protection, reserved the right to pay these debts, they made no promise to do so, and we see nothing in the contract or in the evidence to justify the judgment rendered in this action against them in favor of the interveners.
We have not overlooked the fact that the plaintiff Bean alleged in his complaint that it was agreed between himself and the defendants that the amounts due him on the contract should be paid over to Wells to be held by him in trust and applied in payment of debts contracted by Bean to laborers and material men in performing his contract. But this allegation in Bean’s complaint was not evidence against the defendants, McCarthy & Reichardt. The defendants denied that'there was any such agreement, and there is no evidence in the record to show that there was.
If we should take this allegation in the complaint as true against Bean, still it would furnish no ground for permitting interveners to join in this action at law against the defendants. At most, it would only entitle them to pro rata portions of the proceeds of the claim, when collected by the trustee, Wells, but would give them no right of action at law against the defendants. 15 Enc. PI. & Pr. 733. The complaint in which this allegation appeared was not signed or sworn to by Bean, and his counsel after-wards claimed that the allegation was the result of a mistake, and asked leave to amend; but we need not consider the effect of this offer to amend, for, even if there was such an agreement as alleged, the rights of the interveners under it would have to be enforced in equity.
It follows from what we have said that in our opinion the court erred in permitting the interveners to become parties, and in rendering judgment in their favor against defendants. The judgment is therefore reversed, and the cause remanded for new trial. | [
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Wood, J.,
(after stating the facts.) The state, having joined issue on tlie plea and gone to trial on the merits, abandoned its ground of demurrer. Tabor v. Merchants National Bank, 48 Ark. 454; 3 S. W. 805; Langley v. Langley, 45 Ark. 392; Jones v. Terry, 43 Ark. 230.
The court erred in directing a verdict for appellee. There was evidence tending to show that the prosecution before the justice was instituted for the purpose of eluding prosecution for the same offense in the circuit court. It was, at least, for the jury to say under the circumstances whether or not such was the object of the proceedings before the justice.
The third request for instruction on behalf of the state should have been granted. Richardson v. State, 56 Ark. 367. Bishop says: "If one procures himself to.be prosecuted for an offense which he has committed, thinking to get off with a slight punishment, and to bar any further prosecution carried on in good faith, — • if the proceeding is really managed by himself, either directly, or through the agency of another, — he is, while thus holding his fate in his own hand, in no jeopardy. The plaintiff state is no party in fact, but only such in name; the judge indeed is imposed upon, yet in point of law adjudicates nothing. * * * The judgment is therefore a nullity, and is no bar to a real prosecution.” 1 Bishop, Cr. Law, § 1010; McFarland v. State, 68 Wis. 400; Watkins v. State, 68 Ind. 427, 34 Am. Rep. 273, and numerous authorities there cited.
The matters set forth in the second request were proper for the jury to consider in determining whether there was a collusive prosecution before the justice. But the court did not err in refusing to tell the jury that these things if found constituted no defense.
The court did not err in refusing the first request. While the affidavit before the justice and the charge in the second count of the indictment do not show that the appellee was charged with the same offense, the proof on the trial, introduced without objection, tended to show that it was the same offense, and that appellant, as we have said, was seeking prosecution in the one court in order to escape it in the other.. . '
For the error indicated, the judgment is reversed, and’ the cause is remanded for new trial. | [
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Hughes, J.,
(after stating the facts.) In the motion for a new trial in this case, the appellant, in the seventh ground of the motion, says: “Because the verdict of the jury is too indefinite, vague, and uncertain, in that it does not state sufficient facts to warrant a judgment of conviction of a felony for cutting timber of the value of more than ten dollars.”
Section 1774 of Sandels & Hill’s Digest provides that “any person who shall, without lawful authority, wilfully and feloniously enter upon any lands belonging to this state, or any lands belonging • to any corporation or person, and shall cut down or destroy, or cause to be cut down or destroyed, any tree or trees standing or growing thereon, of the value of more than ten dollars, or any person who shall induce, assist, aid or abet any other person to do so, shall be deemed guilty of a felony, and shall upon conviction be punished by imprisonment, at hard labor, in the state penitentiary not more than two years.”
It may be that the verdict of the jury in such a case should state the value of the timber, in order that it may show the grade of the offense, because, if the value be less than ten dollars, it would not'be a felony. Sections 1773, 1777, Sand. & H. Dig. Or it may be that the requirement that the value be stated in the verdict of the jury is not for the benefit of the accused. At all events, the accused is not prejudiced in this case by the failure to state the value of the timber in the verdict. The court instructed the jury that, “in ease the accused be found guilty, the value [of the timber] shall be stated in the finding or verdict.” The evidence showed the value to be fifteen dollars. There was evidence to sustain the charge. We think it clear that the jury found the value of the timber to be more than ten dollars, and that the defendant was not prejudiced in this ease by the failure to expressly find and state in the verdict the value of the timber. It would seem that it is safest and entirely proper to follow the requirement of the statute in this behalf, which is (section 1778): “But, in case the accused be found guilty, the value of the timber so cut down, destroyed, sawed or carried away shall be stated in the finding or verdict.” Act March 17, 1883.
There is no prejudicial error in the instructions. The judgment is affirmed. | [
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Wood, J.
Appellee sued the appellant in a justice’s court for $50, the value of a certain mule alleged to have been killed by appellant. Judgment by default was rendered against appellant, and on appeal to the circuit court there was a trial by jury and a verdict and judgment against the railway. There were no written pleadings. The trial before the circuit court was de novo. Therefore, to give the court jurisdiction, it was necessary for the plaintiff; to show that the animal was killed in the county where the court was sitting. The failure to show the venue was fatal to the judgment. Sand. & H. Dig., § 6352; Little Rock & Fort Smith Railway Company v. Clifton, 38 Ark. 205; Railway Company v. Lindsay, 55 Ark. 282. Railway v. Lindsay, supra, was a similar case before the justice’s court. No venue was alleged, but in the circuit court, on appeal, the venue was proved. Thus the jurisdiction was shown. But here there was no statement or proof of jurisdiction anywhere. Our statute (Sand. & H. Dig., § 6352) localizes the action to the county where the injury occurred. The court has no jurisdiction of the subject-matter unless the suit was brought in the county where the killing was done. Consent cannot confer jurisdiction of the subject-matter. 1 Black, Judg. § 217. “A defendant cannot, by any act or omission, confer an authority which the law has withheld, but he may well exonerate the plaintiff from adducing evidence that the ease is a proper one for the exercise of authority which the law has conferred.” Feild v. Dortch, 34 Ark. 399; Jacks v. Moore, 33 Ark. 31; Smith v. Clark, 1 Ark. 63; 1 Smith, Lead. Cas. pt. 2, 8th Ed. pp. 1122, 23, and authorities cited.
Second. Appellant contends that the proof shows that the St. Louis, Iron Mountain & Southern Railway Company was operating the train which caused the injury, and not the appellant company. Inasmuch as the cause must be remanded for a new trial for the error indicated supra, we deem it unnecessary to pass upon appellant’s second proposition. The proof upon a new trial on this question may be entirely different from the proof here. It is not conceded in this case that the St. Louis, Iron Mountain & Southern Railway operated appellant’s road, as was the case in Little Rock & Fort Smith Railway Company v. Daniels, 68 Ark. 171.
For the error mentioned, reverse the judgment, and remand the cause for new trial. | [
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Riddick, J.,
(after stating the facts.) This is an action on a bond of indemnity given by the defendants, Abe Stiewel and Maxwell Coffin, to the plaintiff, the American Surety Company, in order to induce it to give another bond to the New York Life Insurance Company. The giving of this bond by the surety coin pany was the condition on which the insurance company had agreed to pay to Mrs. Shields, a sister of Abe Stiewel, the amount due on a certain insurance policy, about which there was some dispute by reason of the fact that another party had set up a claim thereto. The surety company gave the bond, and the insurance company paid the money to Mrs. Shields, but later, another person having recovered judgment against the insurance company on the policy, the surety company had to make good the loss, and now seeks to recover the amount from the' defendants as obligors on the bond of indemnity given to it.
The defense set up by the defendants to this action is that they were induced to sign the bond to plaintiff by reason of representations that Ed S. Stiewel had signed or would sign the bond executed to the life insurance company. But the jury, to whom the case was submitted, found that no such representation was made, either by the plaintiff or its agent. This finding is supported by the evidence, and on this appeal must be taken as true. Mrs. Shields, the other party, was not present, and it is not shown that her agent, Ed Stiewel, made any such representation. He and defendant, Abe Stiewel, were brothers of Mrs. Shields, and were both, no doubt, interested in the matter of procuring this insurance for her. He is in the employ of his brother, Abe Stiewel, and it is not reasonable to believe that he deceived the defendants in any way, but, if he did, he is responsible for his acts, and the defendants have their right of action against him for any damages suffered by them in consequence of his representations. But there is no reason why plaintiff should suffer therefor, as there is nothing in the evidence to show that it had any notice of any representations made by Stiewel.
But the evidence malíes it quite plain that neither the plaintiff, Ed Stiewel, nor anyone else misled the defendants by any such representation. The only plausible ground for the defense .set up is the recital found in the bond given by the defendants. This bond does recite that the surety company became surety for Ed S. Stiewel and Fannie Shields on a certain indemnity bond, a copy of which, the bond signed by the defendants further recites, is thereunto annexed and made a part thereof. As the bond of defendants refers to the former bond, and expressly recites that a ■copy of it is annexed thereto and made a part thereof, the two instruments must, of course, be read together to get at their mean ing. The two instruments together constitute the contract, and, when the entire contract is read in the light of the attendant circumstances, it is plain that this reference to Ed Stiewel in the bond of the defendants was a mere clerical error, caused probably by the fact that he signed the bond to the insurance company as the attorney in fact of Mrs. Shields. The names of both Ed Stiewel and Mrs. Shields being attached to the bond on which the surety company became surety, the draftsman,- in drawing the bond to indemnify the insurance company which defendants signed, by mistake recited that the surety company became surety for both Ed Stiewel and Mrs. Shields, when, in fact, Mrs. Shields was the only principal on the bond. But whether the mistake was made in that or in some other way is not material, for we think it was a mistake which could have misled no one who read both bonds. Now, as before stated, the bond of the defendants recites that the other bond is thereunto annexed and made a part thereof, and, if the defendants failed to read what was in those bonds before signing, the fault was theirs, and not that of plaintiff. Plaintiff had the right to suppose that they understood their contract, and to act on that supposition. Wagner v. National Life Insurance Company, 33 C. C. A. 121.
This is not a case where one has signed a bond as surety on condition that it shall not be delivered unless another party signs. To deliver the instrument under such circumstances before the other party signs is an act of bad faith which invalidates the bond, if the other party has notice of the premature delivery. But there was no premature delivery of the bond in this case. The defendants themselves made the delivery, and, in our opinion, no valid reason is shown why they should not be bound by their contract. We think that the judgment of the circuit court is right, and it is therefore affirmed. | [
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Hughes, J.,
(after stating the facts.) The appellant did not set up his defense in the replevin suit, and there was nothing shown that would have prevented him from doing it. It was a legal defense, and there is no reason for suing in equity. He became the owner of the five bales of cotton by delivery to him by Craig, and nothing could have prevented him from pleading this in defense to the replevin suit. Under Sand. &. IP. Dig., § 5722, a party to an action at law must interpose all of his defenses, legal as well as equitable, and cannot let judgment go against him, and then go into equity and seek to enjoin the judgment and set up an equitable defense which he might- have made in the suit at law. Ward v. Derrick, 57 Ark. 500.
Affirmed.
Bunn, C. J., and Battle, J., not participating. | [
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Bunn, C. J.
This is a suit by appellee against the appellant, for damages growing out of personal injuries alleged to have been inflicted upon the appellee by the carelessness and negligence of the appellant, by its failure to keep in repair a pair of steps leading-over its right of way fence into an adjoining lot of private ownership, in the eastern suburb of the city of Arlradelphia, Clark county, Arkansas, by reason of which the same broke down with appellee when she attempted to cross over, and greatly injured her. Trial before a jury in the Ouachita circuit court, verdict in favor of plaintiff for $1,500, and judgment accordingly, from which defendant duly and in' due time appealed to this court, assigning as error in its motion for a new trial: (1) That the verdict is contrary to law and instructions of the court; (2) that the verdict is contrary to the evidence; (3) that the court erred in giving, over the objection of • defendant, instructions numbered 1, 2, 3 and 4 on the part of the plaintiff, and in each of the same; (4) that the court erred in refusing to give instruction 10 as asked on the part of the defendant; (5) that the'court erred in modifying-instruction 10 as asked on the part of defendant, and in giving the same in a modified form; (6) that the court erred in excluding testimony by defendant as to ownership of property adjacent to the steps in question; (7) that the verdict is excessive.
From the statement of the complaint, and from the testimony in the case, it appears that for many years there had been a byroad leading from the Ouachita river, below the city of Arkadelphia, to the southern portion of the city, and across the Iron Mountain railway in the neighborhood of its depot. This byroad had been used by persons going fishing and for other local purposes, but in the course of time that locality was laid off into regular streets, one of which crossed the railroad but a little distance from where this byroad crosses it, and apparently was opened to take its place for the convenience of the public having use for the same.
About the year 1890, the defendant erected a fence along the eastern side of the right of way separating its property from the adjoining lots, then'owned, as it appears, by one Dr. McGimpsie, and afterwards, and at the trial of this cause, owned by Mrs. Brown, an aunt of the appellee. That in that year, or during the 3rear 1891, the appellant compa^, or its agents and servants, erected the steps over the fence at the point where this b3rroad had formerly crossed, and which had still been used by footmen up to this time, although for some longer time it had ceased to be used for the passage of vehicles, on account of the fence aforesaid and the opening of the street referred to above.
The evidence as to whether or not the defendant erected these steps in the first instance is .quite indefinite. It is stated by one witness that one Kendrick, foreman of the fencing gang of defendant, was seen to have been making the steps at the time referred to, but whether for the defendant, or for Dr. McGimpsie or others interested, or for both, it is not shown. Nor is it shown that the defendant owed any duty to the public or to anyone to erect said steps, or that it had any interest whatever in the same. Kendrick had been dead at the time of the trial for six or seven years, and his version of it, of course, could not be had. But witness Walker, who was one of his hands, says that none of his gang erected or had anything to do with the steps.
But assuming, for the sake of argument,, that the defendant really erected the steps, and for some purpose of its own, the controlling question of fact then is, whether or not the defendant had abandoned its care and oversight over the steps for a long time, and whether the owners and occupiers of adjoining lots had or had not assumed to do so for themselves and the convenience of Others.
In reference to this point, the complaint is as follows: “That for some time thereafter (after the erection of the steps) the defendant kept said steps in repair for the use and benefit of the public, and invited and permitted the traveling public to use the same as a public thoroughfare, and thereby led the public to believe that they [the defendant] would keep the same in a safe condition. That, notwithstanding it became and was the duty of the defendant to keep said steps in a safe condition, it failed for some time prior to the 29th day of December, 1897, to do so, but carelessly and negligently permitted them to become unsafe; and that, by reason of their unsafe condition, whiLe plaintiff, in the exercise of ordinary care, was crossing over the same, on the date last named, as she had been invited by defendant to do so, they gave way and fell, and threw plaintiff to the ground violently, whereby she was crippled and injured,” etc.
Among others, the court gave the following instruction touching this, asked by the defendant, to which there was no objection, to-wit: “No. 9. The court farther instructs the jury that, even if they should find that the railroad company originally constructed the steps, but for a long period of time prior to the injury of the plaintiff refused to repair them, or to have anything to do with them, and that they (the railroad company) had suffered them to become dilapidated and unfit for use, and that they had been repaired by others having use for them, for their own convenience, then this would absolve the railroad company from all responsibility with reference thereto, and from injuries resulting from their being out of repair.”
The evidence, without contradiction, shows that the steps, at least as far back as the latter part of 1894, had become dilapidated and unsafe for use, and that they were then and several times after-wards repaired by Mr. George Obaugh and his son. Mr. Obaugh resided in the adjoining lot to Mrs. Brown, and was in nowise connected with, the defendant, but was-shown to have acted on his own account.
Witness John Greene, testifying for plaintiff, and the only one testifying on this particular subject, states, on his examination in chief, that he saw the defendant at work on these steps three or four years (before testifying), as many as two or three times: The trial was on the 3d of November, 1899, .and that would make the time óf his having seen the repairing to be in 1895 or 1896. On cross-examination, however, he stated that he had not seen anyone repairing these steps except Mr. George Obaugh, and that was in the latter part of 1894; and as other. undisputed testimony is to the effect that Mr. Obaugh repaired these steps with material from his own premises' from that time on, and at several times, and as the immediate successors to Kendrick, and men working under Ken .drick, and under his successor, all deny that they had done any work on these steps, the conclusion is irresistible that there is no evidence that the defendant kept in repair, or had anything to do with, the steps since they were first built. The verdict was therefore contrary to the instruction of the court, which is in nowise conflicting or inconsistent with any of the other instructions. The verdict is therefore unsupported by the evidence, and for that reason the judgment is reversed, and cause remanded, with directions to grant defendant a new trial. | [
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Bunn, C. J.
This is a bill in equity filed in the Pulaski chancery court by the appellee, the Arkansas Brick & Manufacturing Company, against E. T. McConnell, as superintendent, and M. D. L. Cook, as financial agent, and Jefferson Davis, J. W. Crockett, George W. Murphy, T. C. Monroe and Frank Hill, members of the board of penitentiary commissioners, with prayer as follows, to-wit:
“The premises considered, the plaintiff prays that a temporary restraining order be issued, restraining the defendants, and each of them, from taking any action to prevent the due performance of said contracts, or towards a restriction thereof, and particularly from taking from the plaintiff’s works any of the men now engaged in labor therein; and requiring defendant McConnell, as superintendent of the penitentiary, to proceed with the execution of said contracts and the furnishing of labor as therein agreed upon. And plaintiff prays that, upon a final hearing, a decree be entered as above prayed, and that the said order of the board canceling the contract be declared null and void.”
„ The contracts were made by E. T. McConnell, as superintendent at the time, and J. C. Massey, as financial agent, and approved by the board of penitentiary commissioners, consisting at the time of D. W. Jones, governor; Jefferson Dayis, attorney general; Clay Sloan, auditor; A. C. Hull, secretary of state, and Frank Hill, commissioner of mines, etc., all of whom made and approved the contracts and assignments thereof; and the rescinding resolution was passed by the board of commissioners, composed at the time of Jefferson Davis, governor; G. W. Murphy, attorney general; T. C. Monroe, auditor; J. W. Crockett, secretary of state, and Frank Hill, commissioner of mines, etc.
The complaint sets forth in extenso a contract made by and between the said superintendent and financial agent, on the one part, and the Arkansas Chair Factory,' on the other, and the approval of the same by the board of penitentiary commissioners, signed in writing by each and every one of them, and the subsequent assignment of the same by the chair factory company to the Arkansas Brick & Manufacturing Companjq the appellee, with the approval of said penitentiary -board. It 'further sets forth that, by reason of the passage of the act to erect a new state house on the penitentiary grounds and the putting of said grounds in control of the state house commissioners, and the consequent necessity of removal of the penitentiary Avails and buildings to another locality and erecting others there, it became necessary to make an amendment to the original contract, or a substituted contract, and that the same Avas made and approved by the said board of commissioners as in the first instance; and that under these contracts both parties proceeded to and did perform their respective obligations for and during the period of eighteen months, and that the plaintiff, by reason of said contracts, expended large sums of money in perfecting its plant, so as to be able to perform its part of the same, and entered into engagements by reason thereof involving many thousands of dollars, impossible to be complied with unless the laborers are furnished'it in accordance with the contract aforesaid. That, up to the time of the adoption of the resolution, plaintiff has continued promptly to report as required, and to pay into the treasury the monthly sums stated according to said reports for the hire of the convicts permitted to labor for it, and for the last month, extending up to the date of the canceling resolution, it has paid in the sum of $4,000 or more for the hire of about 200 convicts for the month. That on the 13th day of August, 1901, the said board of penitentiary commissioners at one of its meetings passed a resolution in the following language, to-wit: “Believing that said contract is unjust to the state and made Avithout legal authority, because the same Avas made for a term of years beyond the life of the board making it and amounts to a lease of the state convicts which is prohibited by laAAr, and believing that it is to the best interest of the state and the management of the penitentiary that the same be annulled and set aside, therefore, be it resolved by the penitentiary board that said contract, so entered into between the state of Arkansas and the said Arkansas Brick & Manufacturing Company be, and the same is hereby, annulled, canceled and held for naught, the cancellation of said contract to take effect October 15, 1901, and on and after said October 15, 1901, the state refuses to further comply with the terms of said contract, and the superintendent of the penitentiary is hereby ordered on and after said date to Avithdraw from said. Brick & Manufacturing Company all convicts in their employ and turn them back into the walls- of the penitentiary, subject to the further orders of this board.” Plaintiff states that, by reason of this resolution, the contracts were in effect annulled and set at. naught, and, by reason of said breach of the same, it has lost, and will lose, as a natural consequence, a sum of money largely in excess of $100,000, and that its consequential damages will be a very large sum, detailing each item of damage; that the contracts were fair and lawful, and that said resolution was without authority of law, while in fact having the force and effect of law, in that it put a stop to the performance of said contracts, since the said superintendent and financial agent will obey the same, unless restrained. The contracts are exhibited with the complaint, and said resolution is set out in full therein.
The defendants filed their demurrer to the complaint, containing seven several grounds. Nos. 3, -1 and 5 were subsequently withdrawn, and the court overruled the same as to grounds 1, 2, 3, 6, 7 and 8, which are as follows, to-wit:
“]. For that the said parties are not and could not be charged, to have done anything in their individual capacity, nor have they, nor is it shown that they have any individual capacity to carry any pretended contract with the complainant into effect, as set forth in its complaint and amendments, and in their official capacity are acting solely in behalf of the state.
“2. And because said complaint and amendment thereto seek only for relief respecting convicts belonging to the said state, and,, if the matters recited therein have any validity, which they deny, complainant’s cause of action is against the state of Arkansas, and. cannot be maintained.
“6. Because the said complaint and amendment thereto do not state a cause of action.
“7. Because the facts set forth in the said pleadings do not entitle complainant to any relief herein.
"8. Because this court has no jurisdiction to grant the relief prayed for herein.” ’’
The chancellor overruled the demurrer upon each and every one of said grounds set forth above, and the defendants declined and refused to answer or plead over, but rested on their said demurrer, and thereupon the following decree was rendered, to-wit :
“Thereupon, being well ancl sufficiently advised as to all matters of fact and law arising herein, as shown by the complaint and confessed by the demurrer, this court doth order, adjudge and decree that the resolution passed by the board of commissioners for the management of the state penitentiary of the state of Arkansas, on the 13th day of August, 1901, attempting to cancel and annul the contract purporting to have been made by and between the parties to this litigation and filed as an exhibit to the complaint, be, and the same is hereby, canceled and held for naught. . That the defendants, Jefferson Davis, J. W. Crockett, T. C. Monroe, George W. Murphy and Frank Hill, as members of said board of commissioners, be, and they are hereby, enjoined and restrained from in any manner canceling or annulling said purported contract, without sufficient cause being shown therefor. That the defendant, E. T. McConnell, as superintendent and keeper of the Arkansas penitentiary,’ and M. D. L. Cook, as financial agent of said penitentiary, be, and they are hereby, enjoined and restrained from executing and carrying into effect the said resolution of the said board of commissioners, passed as aforesaid; and that they, together with the said members of the board of commissioners, be, and they are hereby, enjoined and restrained from refusing and failing to execute and carry out the terms of said purported contract until its illegality or invalidity as a contract shall be adjudged and declared, by some tribunal vested by law with jurisdiction and authority, to be illegal or invalid. That the costs of this action be paid by the defendants, for which execution may issue. From this decree the defendants pray an appeal to the supreme court of Arkansas, which is granted.”
Every allegation of the complaint is admitted to be true by the demurrer, and it is unnecessary to set forth the complaint at length, or to incorporate herein the contracts involved, as those parts of the same within the scope of the demurrer will be referred to as occasion may demand. The issues of law (for there are no issues of fact) will be discussed in their logical order, and not in the order presented in the demurrer.
Treating the sixth ground of demurrer as a general demurrer within itself, the question is whether or not the penitentiary officials acted within the provisions of the statute made and provided for such cases in making the contract involved and the amendment thereto. If they did so, the other questions are more or less secondary. If, however, they went beyond this statutory authority in doing so, there is no need to go further with this discussion, for, as was said by this court in Woodward v. Campbell, 39 Ark. 580, “the state is liable only to the extent of the powers actually given to its officers, and not to the extent of their apparent authority; and all who deal with a public agent must, at their peril, inquire into his real power to bind his principal.” And also in Parsel v. Barnes, 25 Ark. 261, this court said: It is “well settled that public officers and agents are held more strictly within the limits of their prescribed powers than private general agents.” And “that the fact that a contract made by a public agent related to a subject within the general scope of his powers does not bind his principal, if there was a want of specific power to make it.” In other words, the state, as principal, cannot be bound by the contracts of one acting for her and in her name, unless it can be fairly gathered, from the law under which he acts, that he is not only the appointed agent of the state for that purpose, but has kept himself within the purview of the law on the subject. Nor can the state be bound by statute, under the general rule, unless expressly named.
In argument, it is contended by the defendants that the clause of the contract which attempts to obligate the state to furnish the labor of as many as 300 able-bodied convicts on demand is too indefinite and uncertain to be enforced, and that this uncertainty vitiates the contract. The stipulation on the subject in the contract is: “The first parties (defendants) agree to furnish 300 able-bodied men on demand of plaintiff after January 1, 1900, and plaintiff agrees to work never less than 100.”
The defendants cite one case, People v. Dulaney, 96 Ill. 503, which at first blush would seem to be an authority in favor of their proposition, in which case the supreme court of Illinois says: “A prayer, in a petition for a mandamus against the penitentiary commissioners to compel the performance of a contract with them for convict labor, that they be compelled to assign to the relator 200 convicts of the ‘kind and quality’ called for and specified in the agreement, renders the petition uncertain and indefinite, as it cannot be told what specific act is sought to be coerced.” That was a proceeding by mandamus to compel the specific performance of a contract, and the argument of the court was that the duty sought to be made the subject of the compulsory order was not sufficiently defined in the contract to warrant the issuance of the order. On close inspection of that ease, it is found that the diffi* culty was not so much in the indefiniteness of the contract as to the labor of 200 convicts, but the difficulty existed in the inconsistent statements of the contract in that regard, occasioned by the inadvertent use of a blank printed form which was inconsistent with the part of the contract written and really made. Besides, the case went off on several other points, so that it is not clear what emphasis was given to the question of indefiniteness, which, of course, is an important question in mandamus proceedings. There is nothing of vagueness and indefiniteness in the stipulation as to the number of the convicts mentioned in the contract between the parties to this action.
The other reason assigned why the contract should be held invalid and ultra vires is that it runs ten years, a period longer than the official life of any of the parties of the first part, the defendants herein, and their predecessors, who joined in making the contract on the part of the state. The question whether it were better for such a contract to run a long or a short time is one for the exercise of the sound discretion of the superintendent and financial agent in making the contract, in the first instance, and the approval or disapproval of the board of penitentiary commissioners, in the second place, and, they having exercised that discretion with fairness, so far as appears upon the face of the contract, the courts cannot seek to control it, without allegation and extraneous proof to the contrary.
The personnel of the superintendent and financial agent and the membership of the board may undergo a change, the official term of each may expire, or each may die or resign, before’ the expiration of the contracts they have all made, be that term long or short, and yet no one would say that that circumstance could affect such contracts in any way whatever, for the contracts which they have lawfully made are supposed to continue indefinitely, until all obligations assumed by them for the state have been met and fully discharged. Besides, the official life of a mere’ agent has never been before, to our knowledge, set up as a limitation upon the performance of contracts continuous in their nature or otherwise. The state is the principal, and never dies, and the state could have discharged every one of these agents at any session of our legislature after the contract was made, and that would have had no effect whatever upon the integrity of the contracts.
A number of authorities are cited in support of defendant’s contention in this regard. It is only necessary to gain a correct understanding of the peculiar facts in each case to see that none of them are applicable to the facts of the case at bar. ' Thus in St. Louis, I. M. & S. Ry. Co. v. Loftin, 30 Ark. 693, it was held that “the right of taxation cannot be parted with by one legislature so as to bind future legislatures, unless under peculiar and exceptional circumstances, and upon an adequate consideration, and no presumption in favor of exemption from taxation can be indulged.” And in the next syllabus in the same case the court said: “An exemption from taxation contained in the charter of a corporation cannot be repealed without the consent of the corporation.” In Files v. Fuller, 44 Ark. 273, the ruling was this: “No legislature has power to prescribe to the courts rules for interpretation, or to fix for future legislatures any limits of power as to the effect of their action.” In Crenshaw v. United States, 134 U. S. 99, the supreme court said: “An officer in the army or navy of the United States does not hold his office by contract, but at the will of the sovereign power.” “It is not within the power of a legislature to deprive its successor of the power of repealing an act creating a public office.”
In Illinois Central Railroad v. Illinois, 146 U. S. 387, and other cases, it is held by the supreme court that “there can be no unrepeatable contract in a conveyance of property by a grantor in disregard of a public trust under which he was bound to hold and manage it.” The case of New Orleans Gas Company v. Louisiana Light Company, 115 U. S. 650, is evidently an authority for the opposite of that intended. The same may be said in reference to Porter v. Haight, 45 Cal. 631. So it is, all the citations fall short of the mark, as we read them. A pure and simple contract by the state with a private individual or corporation, under statutes of the state, is not to be called in question from the mere circumstance of the time which it is made to run, unless, perhaps, as a question of fact it is shown to be unreasonable on that account.
Finally, as to the authority of these penitentiary officials to hire out the labor of the convicts, we think, there can be little controversy. Formerly, the penitentiary grounds and buildings, with the convicts, were leased out under contract with a lessee. Now, however, the grounds and buildings are not leased; neither are the convicts, for they must remain under the control of the state, and only their labor can be engaged by contract with corporations or individuals. The statute on the subject is now as follows, viz:
“See. 4. The said board shall have the general management and control of the state penitentiary and all convicts sentenced to said penitentiary, whether within or without the walls thereof. It shall make or approve all contracts for the building of any additions, repairs, barracks, stockades and improvements necessary to be made in connection with the penitentiary or convict system of this state, on the terms prescribed by law, or, in the absence thereof, on such terms as it may consider £or the best interest of the state. It shall have power to purchase, or cause to be purchased, with such funds as may be at its' disposal not otherwise appropriated, any lands, buildings, machinery, live stock and tools necessary for the use, preservation and operation of the penitentiary, to the end that the largest number of convicts that can be comfortably accommodated and be made self-supporting may be confined therein; and, until adequate provision be made by the general assembly for the confinement and employment of convicts within the walls, said board shall cause to be employed the excess of convicts at labor outside the walls, either under the contract or state account system, under such regulations, conditions and restrictions as it may deem best for the welfare of the state and the convicts, and said board shall, when it has means at its disposal which can be so used from time to time, purchase or lease and equip a farm or farms, upon which convicts who are not suitable for contract labor, and who cannot be made self-supporting within the walls, shall be worked on state account; Provided, said board shall not have the power to remove or sell the present penitentiary under this act.
“Sec. 5. The system of labor for convicts shall be the. state account system, or contract system, or partly one and partly the other, as shall, in the discretion of the board of commissioners, be deemed for the best interest of the state; but no contract shall be let for any of such convict labor, if equally remunerative employment can be furnished by the state and worked on state account.” (Acts 1893, p. 123; Sand. & H. Dig., §§ 5499, 5500.)
Then follow restrictions as to the control and management of the convicts and provisions against the further practice of the lease system formerly practiced in this state, all of which appear to have been strictly observed in the contract involved in this case. With these named qualifications and restrictions, nothing could be more plenary than the power given to make contracts concerning the labor of the convicts, and to say that the contract is ultra vires is going beyond all rules of fair interpretation, for it is impossible to discover anything in the contract which contravenes or transcends the very full power conferred upon the board of penitentiary commissioners, as will readily appear from the particular objections raised by the demurrer and the.argument thereon and the absence of others.
But, while we all think that this was a valid contract, yet, as the statute seems only to authorize such contracts, to quote its language, “until adequate provisions be made by the general assembly for the confinement and employment of all convicts within the walls,” and as the statute further declaies that “the state shall never be deprived of the right to direct how, at any and all times and under all circumstances, its convicts shall be lodged, fed, clothed, guarded, worked and treated (Sand. & H. Dig., §§ 5499, 5500), it may follow that the legislature has, under this provision, the right to abrogate this contract at any time, and to direct that these convicts be placed on a farm or worked in some other way different from that named in the contract. But, that question not being directly involved in this proceeding, it is unnecessary and probably unwise to decide it at this time, and we mention it, not to express an opinion upon it, but merely to show that, while holding that the board cannot, without legislative permission, refuse to carry out the contract, yet we do not say that the legislature cannot do so, under the provisions of the statute above quoted.
The next question in order is raised by the statement of the first and second grounds of the demurrer, which may be considered together, as the gravamen of each is practically the same.
The defendants assume that, as the contract is a state matter, it follows that their rescission of it, after it was made and entered into, and after the plaintiff had gone to heavy expense in preparation to perform its part (which is all confessed to be true), was also a state matter, as they were in this rescission of the contract acting for and in behalf of the state, as they had acted in the making of it.
This argument overreaches itself in more than one particular. In one part of the demurrer it is contended, as we have just seen, that the defendants acted without the authority of law in making the contract, and that for that reason the same was null, and void. But in the first and second grounds of the demurrer now under consideration the contention seems to be that in making the contract they were acting within the purview of the Law, for they say that they were acting as the agents of the state, which cannot be, unless they were acting within the purview of the law on the subject, for the state will not stand sponsor for the acts of her agents except such as are done strictly within the law.
But really there is no contention on the part of the plaintiff that the board of commissioners was not observing the law in making the contract, but, on the contrary, it insists that the contract was one lawfully made and fair in its stipulations, and it is only complaining that defendants have not only refused to perform it as a state contract, which it is their duty to do, but by their affirmative acts have prevented their subordinates, the superintendent and financial agent of the penitentiary, from doing anything towards the fulfillment of the obligations of the state. So that the complaint of the plaintiff is, not that the contract is not a state contract and a state affair, but that its attempted rescission and annulment by the board of commissioners is without authority of law, and therefore no state affair whatever.
The power and authority to make a contract is one thing, but the power to abrogate it is quite another thing, and the latter power is in this government possessed by neither the state nor any of her citizens. The state can only speak through the legislative department, which is the mouthpiece of the sovereign, and the legislature can lawfully pass no law impairing the obligation of contracts. Section 10, article 1, of the Constitution of the United States.
Hence it was said by this court that “the legislature itself has no power to deprive one of the benefits of a contract lawfully made by the commissioners for letting public contracts.” Berry v. Mitchell, 42 Ark. 243. But this principle of constitutional law is too plain to require discussion.
It is and has been the law from time immemorial that a public officer or public agent acting without the scope of his authority— without the authority of law — cannot shield himself behind the sovereign, the state; but where injury is thereby done to private citizens, the officer or agent is a trespasser and personally liable in damages. Six Carpenters’ Case, 8 Coke, 147, 1 Smith’s Leading Cases, part 1, page [62].
This principle is exemplified in almost daily practice at this time. In Poindexter v. Greenhow, 114 U. S. 270, the supreme court said: “An action or suit brought by a taxpayer, who has duly tendered such coupons (coupons made receivable for taxes) in payment of taxes, against the person who, under color of office, as tax collector, and acting in the enforcement of a void law passed by the legislature of this state, having refused such tender of coupons, proceeds, by seizure and sale of the property of the plaintiff, to enforce the collection of such taxes, is an action or suit against him personally as a wrongdoer, and not against the state, within the meaning of the Eleventh Amendment to the Constitution.
“Such a defendant, sued as a wrongdoer, who seeks to substitute the state in his place, or justify by authority of the state, or to defend on the ground that the state has adopted his act and exonerated him, cannot rest on the bare assertion of his defense, but is bound to establish it; and as the state is a political corporate body, which can act only through ■ agents, and command only by laws, in order to complete his defense, he must produce a valid law of the state, which constitutes his commission as its agent, and a warrant for his act.”
In this case there is no law of the state repudiating or authorizing the repudiation or cancellation of the contract, but the defendant commissioners, possessing no judicial powers and no authority from the legislature, attempt to avoid their own valid contract by a mere resolution of their own. Of course, that could not be pleaded in any court of justice as a protection against personal liabiliiy, nor can the state be drawn into such a controversy.
Our attention is called by the able counsel of defendant to several cases which, it is thought by them,- announce a different doctrine. Thus, in the case of In re Ayers, 123 U. S. 443, which was a suit by aliens, the object of which was to enjoin the attorney general and commonwealth’s attorneys of the several counties, cities and towns from bringing any suit in the name of the commonwealth to enforce the collection of taxes for the payment- of which coupons originally attached to the bonds had been tendered, the supreme court of the United States held that it was a suit, in •effect, against the state of Virginia, and within the prohibition of the Eleventh Amendment to the Constitution, which denies jurisdiction of the federal courts to entertain a suit against a state. It is said by the supreme court in that case that ."for a breach of its contract by the state it is conceded there is no remedy by suit against the state,” and “a bill, the object of which is by injunction, indirectly, to compel the specific performance of the contract, by forbidding all these acts and doings which constitute breaches of •the contract, must also, necessarily, be a suit against the state.”
The acts and doings which constituted breaches of the contract in this case were acts and doings of the state herself, by which she forbade her officers and agents to carry out the contract, and mot the acts and doings of the officers and agents themselves. The •decision in that case, it appeares to us, however, was at least an apparent modification in some sense of the opinion in Poindexter v. Greenhow, referred to above, only in this particular, however, that when the state herself has acted through her lawmaking department, and has made and declared the breach of her contract, although this be invalid as in contravention of the constitutional inhibition of acts impairing the obligation of contracts, yet, so far as her agents and officers are concerned, the law, however invalid, is a law unto them, because the state is the real author of the breach, but she cannot be sued. In the former case, the court held that the officer or agent, in resisting the enforcement of the contract as originally made, must run the risk of the later law, under which he now acts, being declared invalid in the courts. But the courts cannot make such declaration against a law of the state, for the state is not amenable to their jurisdiction. The rule in In re Ayers is manifestly the sound one. But the difference does not affect the case at bar, for, while an act of the legislature may and does constitute the rescinding act, however unlawful, a state matter, for which the state is responsible, and not her agents, nevertheless an unauthorized resolution of her agents, having for its object the rescission of a valid contract, and tending to accomplish that object, is by no means the act of the state, and cannot bind the state in any sense. No one can assume that the state will do an unlawful act by ratifying the acts of her agents which amount to a direct violation of the- laws of the land. It must always be assumed that the sovereign will do right and justice, and hence throughout the ages he has been subject to no compulsory process; for, when once it is admitted that the sovereign will not do right except by compulsion, we reflect upon his dignity, and it is for the very reason that he possesses this nice sense of honor and justice that the law frees him from judicial inquiry and process, and there is no other reason therefor in constitutional government.
Going back to the case of In re Ayers: Notwithstanding what was said therein, as cited above, the court further said: “Suits are justifiable against individual defendants who, under color of authority of unconstitutional legislation by the state, are guilty of personal trespass and wrongs; and against officers in their official capacity, either to arrest or direct their official action by injunction or mandamus, when such suits are authorized by law, and the act to be done or omitted is purely' ministerial." In the case at bar, the state has not giren any authority to the board of penitentiary commissioners to pass the resolution by which it undertook to annul the contract. It was the board’s unauthorized act. And, notwithstanding the contract, from the date of its making for a period of eighteen months, had been faithfully and without complaint carried out by both parties, the state has ever been silent on the subject of the rescission, and has taken no steps to accomplish the same, or to show her desire to become particeps in that effort, although one session of the legislature has been held and passed while the contract was being performed, and the subject was necessarily before it; and also while the attorney general has been always at hand to do the bidding of the state in respect to that or any other proper matter.
The contention of the defendants under this head really would have us to presume that the state is involved in their refusal to execute the contract, because the state is bound by the contract made by them for her, and that for that reason, also, the suit should be dismissed because she is the real party in interest and cannot be sued. The authorities do not sustain such a contention. No one can or must be allowed to presume that the state unites in a palpable violation of the fundamental or other laws of the land, which a repudiation of her valid contracts undoubtedly would be, and therefore no one, neither courts nor individuals, can predicate their actions upon any such presumption or assumption of what the state may do. If the state should, through her legislature, annul her contract, merely because she has the power to do so, that -would, of course, put an end to the contract, until restored at the instance of the state by some proper method, for such an act of the legislature would make the state a real party to the controversy, and thereafter no tribunal, except at the instance of the state herself, is authorized to make inquiry into or gainsay such a governmental act. But the case is different where the refusal is a mere resolution or other unauthorized act of the agent.
In the case of Osborn v. U. S. Bank, 9 Wheat. 738, the contention of the appellant was substantially the same as in this case. In that case the counsel for appellant contended thus in argument: “If, then, the state be the only party interested, and if the bill, in its terms, and in its effect, operates solely upon the state, the state ought to be made a party. If the circuit court cannot exercise jurisdiction when the state is a party direct, it cannot be permitted to obtain that jurisdiction by an indirect mode of proceeding. We maintain [says the counsel in that case, continuing] that the state of Ohio is, in fact, the sole defendant in this cause, and that the jurisdiction of the circuit court is excluded, (1) By the constitution of the United States; (2) by the judiciary act.” In the case at bar, the contention is identically the same, except that it is contended that the jurisdiction is excluded by the state constitution, which declares that the state shall never be made a defendant in any of her courts. The difference, if a difference at all, is immaterial. In that case Chief Justice Marshall, speaking for the court, said, quoting from the syllabus (for the opinion is too lengthy to extract from even) : “ In general, an injunction will not be allowed, nor a decree rendered, against an agent, where the principal is not made a party to the suit. But, if the principal be not himself subject to the jurisdiction of the court (as in the case of a sovereign state), the rule may be dispensed with.”
In United States v. Lee, 106 U. S. 196, where the real question was, whether or not the suit was maintainable because congress had given no permission by act to sue the United States, as' was generally the requirement in order to maintain a suit against the United States, the supreme court of the United States said: “That doctrine has no application to officers and agents of the United States who, when as such holding for public uses possession of property, are sued therefor by a person claiming to be the owner thereof or entitled thereto; but the lawfulness of that possession and the right or title of the United States to the property may, by a court of competent jurisdiction, be the subject-matter of inquiry, and adjudged accordingly.” In other words, the agent cannot object in such case to a judicial inquiry into the lawfulness of his acts by pleading the immunity of his principal from suit. So it is, so far as we can ascertain by inquiry, everywhere and in all cases.
The conclusion upon the question raised by the demurrer in these two grounds assigned is that a state cannot be presumed to be interested with the defendants or the real party at interest to sustain their actions in a ease where her agents have gone beyond the scope of their authority and sought to violate a plain provision of the law, as in this case where they seek to annul a valid contract, which the state herself cannot lawfully do; and that the agents in this make themselves wrongdoers, and are personally liable; that the state will be a proper party in such case only when she has made herself by act of her legislature a party to the refusal to perform her act, in which last case, the agent will be exonerated, and, as the state cannot be made a party defendant, the suit cannot be maintained except at her instance in cases where, through her duly authorized officer, she has consented to become a party thereto. The books are crowded with decisions bearing more or less upon this point, but it would serve no useful purpose for us to go further into the inquiry.
The next question is, whether or not the plaintiff has resorted to the proper forum for relief in this cáse, and it is raised by the eighth ground of the demurrer.
It was once held that where one would object, to the jurisdiction of a particular tribunal, it was his duty to designate the proper forum in his pleadings, under the general rule which has by us been formulated into a constitutional provision, to-wit: “Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he •ought to obtain justice fréely and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.” See section 13, article 2, Constitution of 1874.
But the defendants put these objections in this way: “This is not the remedy, if there be any,” which, we take it, is tantamount to saying that there is no remedy, since they contend, also, that the only other remedy would not itself be available to plaintiff, and that remedy is by certiorari. But the argument is such that, if certiorari is not the proper remedy, then the remedy resorted to in this case is the proper remedy, for we must not say, in the teeth of the constitution, that one has no remedy for the redress of his wrongs.
The statute on the subject of the use of the writ of certiorari is as follows, to-wit: “ They [the circuit courts] shall have power to issue writs of certiorari to any officer or board of officers, or to any inferior tribunal of their respective counties, to correct any erroneous or void proceedings, and to hear and determine the same.” Sand. & H. Dig., § 1125. It is contended, in effect, that the board of commissioners of the penitentiary is such a board of officers as is named and contemplated in the act above quoted, which is a part of the civil code, as amended in 1873. We cannot take the time to go into a legal construction of this act, for that has already been done by this court in the case of Pine Bluff Water & Light Company v. City of Pine Bluff, 62 Ark. 196, which is but a reaffirmance of the common-law rule, in which it is said by .this court (quoting from the syllabus) : “The action of officers or public bodies, of a purely legislative, executive or administrative nature, is not reviewable on certiorari at common law, although it involves the exercise of discretion; but it is not essential that the officers or bodies to whom it lies shall constitute a court, or that their proceedings should be strictly and technically ‘judicial;’ it being sufficient if they are quasi judicial.
“The scope of the writ of certiorari at common law, which is. limited to the review of judicial or quasi judicial proceedings, is not enlarged by Sand. & H. Dig., § 1125, authorizing circuit courts to issue writs of certiorari to any officer or board of officers, or any inferior tribunal in their respective counties, to correct any erroneous or void proceeding, and to hear and determine the same.”
It is plain that the defendants, as penitentiary commissioners, are clothed with nothing more than executive or ministerial powers, and with neither judicial nor quasi judicial powers. The writ of certiorari would not lie against them to correct their errors. It follows logically that the proceeding by injunction was the proper and appropriate proceeding.
A very fair and pointed illustration of a tribunal which is not a court, which is not a part of the judicial department of the state, and yet is so far a quasi judicial tribunal as to be the subject of the writ of certiorari to correct its errors, will be found, in the case of People v. Hoffman, 166 N. Y. 462, where, by the nature of the powers conferred upon it, conforming essentially to the power conferred upon a regular court, a military tribunal was held to be so far a judicial tribunal that its proceedings were reviewable upon certiorari. The distinction between the case at bar and that case is so marked, and the rule so well illustrated therein, that we think one need not err in making the proper discrimination.
The case of Southern Mining Company v. Lowe, 31 S. E. Rep. 191, cited by appellants, is not applicable to the question in this case on the point as to what is the proper forum, but is applicable for the plaintiff, however, on the question of the power of the commissioners to make the contract involved, in which the supreme court of Georgia says: “The writ of injunction does not, under any circumstances, or at the instance of any person, lie against the prison commissioners of this state to restrain them from entering into a contract for the hiring of convicts, nor against any person or persons with whom the commissioners are' about to make such a contract, when the granting of the injunction would, either directly or indirectly, interfere with the performance by the commissioners of the duties devolved upon them by the act creating a prison commission for this state.” Certainly not; for they were authorized to make such contracts by the law, and so are the com•missioners in this state authorized to make such contracts. The courts cannot interfere with the state’s agents in making contracts for the state authorized by law to be made. The question here, however, is, can the courts interfere by injunction to restrain these agents from doing acts not authorized by the law ? We think they can.
The defendants contend under their demurrer that “a court of equity ought not to attempt to do by injunction anything which does not admit of enforcement.” The object of the injunction in this case is to restrain the defendants from doing what they have been and are attempting to do in violation of law, and in a mistaken view of their duties under the law. That is certainly not within the category of things impossible of doing. It is, in fact, expected that, when the defendants are advised of the law under which they perform their duties, they will govern themselves accordingly. But they support this proposition by the citation of authorities. This point is most frequently illustrated by the case of a contract with an artist to paint a picture, or with an actor to perform a part in a play. From the peculiar nature of the subject-matter of the contract, and the performance of it being so closely connected with the special qualifications of him who is engaged to perform it, and above all because it is a something that an order cannot compel to be done in the future, and, lastly, a duty the breach of which cannot be compensated in money, the courts hold that an injunction does not lie. Such cases are manifestly different from the one at bar.
Opinion delivered July 12, 1902.
The injunction is not against the state, but against the defendants, to restrain them from going beyond their powers. No order of the court can be against the state, nor against the defendants to compel them to perform these duties as officers and agents of the state. Presumably, the state, in its legislative and executive departments, will attend to that. Nor can we assume that, because the state might possibly be affected by the acts of her agents in carrying out their contract with the plaintiff, therefore she is a proper party in a proceeding to restrain them from refusing to perform their duty as the courts defined it, for, as has been said, it cannot be presumed that a state can be a party to a violation of law. The state may seek relief through the courts, on the relation of the attorney general, not only on the law, but on the facts, of the ease, and the courts will readily furnish it. That plan has not been pursued in this case, for we are restricted to a determination of law questions purely.
This principle is fully covered in the decree of the chancellor, and his decree is affirmed. | [
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OPINION OF
THE COURT.
This is an action on the case, brought by the plaintiff to recover of the defendant the sum of one hundred and fifty dollars, won at a game of cards, called “seven up.” To the declaration, the defendant demurs, and insists that there is no cause of action set forth. He admits that the game mentioned is not one of those prohibited by statute, but. claims that there is not a good consideration at common law ■set forth.
The demurrer must be sustained on two grounds: First, because the contract is without a good or valuable consideration. It is settled that the law will not raise an assump-sit without a consideration, or support an action on a nudum pactum. See 1 Bibb, 182; 6 Johns. 194; Comyn., 9. Second, because it is a gaming contract, and against good morals. In the case of Bunn v. Ricker, 4 Johns. 432, a distinction is taken between wagers and gaming contracts. Wagers against public policy or good morals are void as gaming contracts. It is clearly to be inferred from the opinion of the court and the cases referred to, that all wagers are not void, but that all gaming contracts are. In the case of Good v. Elliott [3 Term R. 693] Grose, J., says that wagers are not void as gaming contracts. Lord Mansfield, in the case Da Costa v. Jones [Cowp.'729] says, whether it would not have been better policy to have treated all wagers as gaming contracts, and to have held them void, is too late to discuss. Thus all declare that some wagers are to be supported, but deny the validity of all gaming contracts. This is a gaming contract, and therefore void. Demurrer sustained, and judgment for the defendant. | [
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Hughes, J.,
(after stating the facts.) The appellant sued for a breach of contract. He was entitled to recover on a quantum meruit. The proof shows that he entered upon the performance of his undertaking, rendered some services, and expended under the contract for the benefit of appellee $153.16, which she was bound to repay. That she discharged him before completion of his contract without fault on his part, so far as the proof shows. He was certainly entitled to recover something. He could not in this suit recover for the whole amount because the estate was in administration, and the debts not settled, and therefore his interest could not be ascertained.
In the case of Van Winkle v. Satterfield, 58 Ark. 621, it is said that “d servant who has been wrongfully discharged by his employer before the time for which he was hired has expired has these remedies: First, he may consider the contract as rescinded, and recover on 'a quantum meruit what his services were worth, deducting what he has received for the time during which he had worked. Second, he may wait until the end of the term, and then sue for the whole amount, less any sum which the defendant may have a right to recoup. Third, he may sue at once for breach of the contract of employment. He, however, can adopt only one. If he adopts the third remedy, he can recover the damages which he has sustained down to the day of the trial, which is limited to a compensation for the injury suffered by a breach of the contract. The loss of the wages which his employer agreed to pay him constitutes the injury. What, therefore, he has suffered by reason of the loss of the wages, as a rule, is the amount of the damages he is entitled to recover.”
It follows that, as the appellant adopted the third remedy mentioned above, his suit was not prematurely brought, and the court erred in so holding and dismissing the plaintiff’s suit. For which error the judgment is reversed, and the cause is remanded for a new trial.
Bunn, C. J., and Battle, J., not participating. | [
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Battle, J.
This action involved two tracts of land. One is known as the “Memphis Land & Timber Company land,” containing 4,399.35 acres, and the other as the “Brinkley lands,” containing»966.26 acres. Since the appeal in this case was taken, both parties have parted with their interest in the “Memphis Land & Timber Company land,” and abandoned the same. We will therefore confine what we have to say and decide to so much of the facts and law of the case as affect the “Brinkley land.”
On the 3d day of October, 1896, Margaret B. McKee, wife of I. S. McKee, instituted an action in the Crittenden chancery court against John E. Toof, E. L. McGowan, John S. McTighe and George E. McTighe, his wife, I. S. McKee, and J. H. Biscoe. The action was based upon a note for $2,432.35, executed by Toof, McGowan & Co. to Margaret B. McKee on the 7th of May, 1892, and made payable on the 1st of September, 1893; and the object of it was to recover a judgment against John S. McTighe for the amount due on the note, and to subject his interest in the Brinkley land to sale for the purpose of paying the judgment; such interest being-one undivided half of the land. Plaintiff sued out an order of attachment, and caused it to be levied upon McTighe’s interest in the Brinkley land. The chancery court sustained the attachment, found the sum of $3,387.64 to be due on the note, and ordered that McTighe’s interest in the Brinkley land be sold to pay the same. No personal judgment was rendered against McTighe, because he had been adjudged a bankrupt, nor was there any judgment rendered against Toof, McGowan & Co. McTighe and his wife appealed.
The indebtedness for which the note sued on was executed arose under the following circumstances: Toof, McGowan & Co. were merchants in Memphis, and John S. McTighe was a member of the firm. I. S. McKee and John S. McTighe were partners in business, and as such had to their credit on the books of Toof, McGowan & Co. $2,432.35, each being the owner of one-half of this fund. At the time the note was executed John S. McTighe was hopelessly involved in debt. To protect and shield his half of this fund against his creditors and prevent their seizure of the same, McKee and McTighe caused the note sued on to be executed for the whole amount of the fund to their credit. In this arrangement, and in the procurement and acceptance of the note, McKee represented his wife, the appellee; and in this way she had constructive, if not actual, notice of all the facts connected with the note.
The note was executed for an unlawful purpose. Sand & IT. Dig., § 1577. At least one-half of the consideration .thereof was therefore illegal; and, the note being an entire contract, the whole of it is void as to creditors and between the parties. Crawford v. Morrell, 8 John. 253; Niver v. Best, 10 Barb. 369; Sternburg v. Bowman, 103 Mass. 325.
The note sued on differs from that given by a vendee for property sold to him for the purpose of defrauding the creditors of the vendor. Some courts hold that such a note is good between the parties. Harcrow v. Gardiner, 69 Ark. 6. But in this case John S. McTighe, in legal effect, without consideration, promises to pay to Mrs. McKee his half of a large sum of money for the purpose of defrauding his creditors. The promise, being without consideration and a fraud as to creditors, is void as to creditors and the parties.
So much of the decree of the chancery court-as condemns the lands of appellants to pay the note sued on is, therefore, reversed, and the cause is remanded with instructions to the court to modify its decree in accordance with this opinion.
Bunn, C. J., dissents. | [
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Wood, J.
The decree from which this appeal was taken was rendered in February, 1889. This appeal was granted by the clerk of this court February 19, 1900. The appellant was born June 24, 1881. She was therefore 18 years, 7 months and 25 days old, when this appeal was granted. The decree from which she appeals had been rendered eleven years before.
The act approved March 16, 1899, to regulate the time in which appeals and writs of error may be taken to this court, is as follows:
“Section 1. An appeal or writ of error shall not be granted except within one year next after the rendition of the judgment, order or decree sought to be reviewed, unless the party applying therefor was an infant or of unsound mind at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties or their legal representatives within six months after the removal of their disabilities or death.
“Sec. 2. The parties to all judgments, orders or decrees rendered within two years prior to the passage of this act shall have one year from the time it shall take effect within which to pray an appeal or sue out a writ of error. The time for taking an appeal or suing out a writ of error on all judgments, final orders and decrees rendered more than two years prior to the passage of this act shall be three years from the date of the judgment, order or decree.”
This act was passed to amend section 1027 of Sandels & Hill’s Digest, which is as follows: “An appeal or writ of error shall not be granted except within three years next after the rendition of the judgment or order, unless the party applying therefor was an infant, married woman, or of unsound mind, at the time of its rendition, in which cases an appeal or writ of error may be granted to such parties, or their legal representatives, within one year after the removal of their disabilities, or death, -whichever may first happen.”
1. Appellee contends that the appeal was barred under either of the sections of the act of March 36, 1899, supra.
(a) The first section is prospective in its operation. It applies only to appeals from judgments, orders, and decrees rendered after the act took effect. This is the general rule of construction, and that it is the true rule to apply to this section is manifest when considered in connection with the second section, for that section expressly provides the time for appeal from all judgments, orders, or decrees rendered prior to the passage of the act. The first section has, therefore, no application.
■(b) The first clause of the second section has no application here, for that refers to appeals from judgments, etc., rendered within a period of two years prior to the date of the passage of the act. The decree in this case was rendered about ten years prior to the passage of the act, so it comes within the latter clause of the second section of the above act, which prescribes: “The time for taking an appeal or suing out a writ of error on all judgments, final orders and decrees rendered more than two years prior to the passage of this act shall be three years from the date of the judgment or decree.” From all judgments, final orders and decrees rendered three years or more prior to the passage of the act no time is given in which to appeal. This would, eo instantt, deprive infants of the right to appeal. The legislature could not do that. Sec. 15, art 7, Const.; O’Bannon v. Ragan, 30 Ark. 181.
2. The decree appealed from, after setting out the issues, proceeds as follows: “And it appearing that numerous depositions have been taken in this case, and the litigation herein is likely to be long and tedious of family matters: Now, therefore, in order to put an end to litigation, and as an amicable adjustment and settlement of a family affair in regard to the descent, inheritance and settlement of the rights of the plaintiffs and defendants in regard to all the real and jxersonal estate of the said J. N. S. Gibson as above described and mentioned as being in the hands or control of his administrator, L. D. Snapp, as aforesaid, it is hereby ordered, considered and decreed by the court, as well as by the -consent and agreement of all the parties hereto, both plaintiffs and defendants, that,” etc. It appears that the court did not enter upon the merits of the controversy, but-rendered the decree “to put an end to litigation, and as an ámicable settlement and adjustment of a family affair.” The question, then, is, can appellant appeal from a compromise decree entered by the consent of her regular guardian?
The statute provides that “no judgment can be rendered against an infant until after a defense by a guardian.” Sec. 5647, Sand. & H. Dig. We have held under the statute that the defense of the guardian must be not merely formal, but real and earnest. He should put in issue and require proof of every material allegation to the infant’s prejudice, whether it 'be true or not, and make no concessions on his own knowledge. Pinchback v. Graves, 42 Ark. 222. Again, we have held that an infant is not prejudiced by admissions of his guardian. McCloy v. Trotter, 47 Ark. 445; Moore v. Woodall, 40 Ark. 42; Evans v. Davis, 39 Ark. 235. Now, every compromise involves an admission or concession to some extent of the claims of the other party. Anderson says: "It is the mutual yielding of opposing claims; the surrender of some right or claimed right in consideration of a like surrender of some counterclaim. And. Law Dict. s. v. "Compromise;” Gregg v. Wethersfield, 55 Vt. 387.
In the absence of authority given by statute, the general rule, says Mr. Rodgers, is that a guardian cannot agree to any compromise or settlement by which the property interests of his ward are affected without the concurring sanction of the court, to which he must look for authority to bind his ward. Rodg. Dam. Rel. § 859. The recitals of the record, supra, show affirmatively that the chancellor performed no judicial act of investigation into the merits of the controversy, before entering the decree. On the contrary, that was purposely avoided, out of considerations of mere expediency, "to put an end to tedious litigation, and as an amicable settlement and adjustment of a family affair.” Such added dignity to the compromise of the guardian did not make it any the less his compromise. In the face of such a record, we cannot indulge the maxim, "Omnia praesumuntur rile et solemniter esse acta.”
It was plainly not the compromise of the court. There was nothing to show that it was for the benefit of the infant. The facts shown by this record do not bring the'appellant within the maxim of consensus iollit errorem, and bar her right of appeal. To hold otherwise, we think, would be contrary to the trend of our own statute and decisions, as well as the weight of authority. Walton v. Coulson, 1 McLean, 120; U. S. Bank v. Ritchie, 8 Pet. 128; 1 Black, Judg. § 197, and authorities cited; 15 Enc. Pl. & Pr. 13, and authorities cited.
The motion to dismiss the appeal is therefore overruled. In the absence of a request from the attorneys and an opportunity to be heard, it would not be proper to go further and determine whether the decree should be affirmed or reversed on the merits. | [
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Battle, J.
W. E. Eoote was accused and convicted in the mayor’s court of the town of Wynne, in this state, of a violation of section 2 of the following ordinance:
“Be it ordained by the towm council of the incorporated town of Wynne, Arkansas:
“Sec. 1. It shall be unlawful for any person to stand any stallion or jackass, for the purpose of foaling mares, within the limits of the incorporated town of Wynne.
“Sec. 2. The keeping of any jackass within the limits of said town, in the hearing distance of the populace of said town, is hereby declared a nuisance, and is hereby made unlawful.
“Sec. 3. Any person violating the provisions of sections 1 and 2. of this ordinance shail be deemed guilty of a misdemeanor, and upon conviction thereof shall be, fined in any sum not less than ten nor more than twenty-five dollars, and each day that the provisions of either sections 1 or 2 are violated shall constitute a separate offense.
“See. 4. All ordinances in conflict with this ordinance are hereby repealed, and this ordinance shall be in force and take effect from and after its passage and publication. Approved May 9, 1901.”
The court adjudged that he pay a fine of ten dollars and the costs of the prosecution, and, failing to do so, the marshal of the town took him into custody. He thereupon applied to the Honorable E. D. Eobertson, chancellor of the Fifth chancery district of Arkansas, for a writ of habeas corpus, alleging in his petition that his detention and restraint by the marshal wrere unlawful and wrong for the following reasons:
“(1) That the passage of said sections 2 and 3 of the ordinance aforesaid was ultra vires.
“(2) That said sections 2 and 3 of the said ordinance are null and void, and same are of no effect.
“(3) That, said sections 2 and 3 of said ordinance being ultra vires, invalid, null and void, the said mayor has no jurisdiction to render the judgment aforesaid.”
The marshal responded by admitting that he held the peti tioner in custody as alleged. Upon a hearing, no evidence being adduced, the chancellor denied the prayer of the petition. Was the ordinance void?
The statutes of this state invest municipal corporations with the “power to prevent injury or annoyance within the limits 'of the corporation from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated within the jurisdiction given to the board of health,” that is to say, within the corporate limits and one mile beyond; and to make and publish such by-laws or ordinances as to them shall seem necessary to carry into effect this power, and as may be “necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof.” Sand. & Ii. Dig., §§ 5132, 5145 and 5147.
These statutes endow municipal corporations with power to prevent and abate nuisances, but they do not authorize the declaration of anything to be a nuisance which is not so in fact. Town of Arkadelphia v. Clark, 52 Ark. 23; Yates v. Milwaukee, 10 Wall. 497; 1 Dillon on Municipal Corporations (4th Ed.), §§ 374, 379.
“The authority to prevent and abate nuisances,” saj^s Judge Dillon, “is a sufficient foundation for ordinances to suppress and prohibit whatever is intrinsically and inevitably a nuisance. The authority to declare what is a nuisance is somewhat broader; but neither this nor the general authority mentioned in the last preceding sentence will justify the declaring of acts, avocations, or structures not injurious to health or property to be nuisances. Much must necessarily be left to the discretion of the municipal authorities, and their acts will not be judicially interfered with unless they are manifestly unreasonable and oppressive, or unwarrantably invade private rights, or clearly transcend the powers granted to them; in which ease the contemplated action may be prevented or the injuries caused redressed by appropriate suit or proceedings.” 1 Dillon, Municipal Corporations (4th Ed.), § 379. Again he says, “This authority (the power to prevent and abate nuisances) and its summary exercise may be constitutionally conferred on the incorporated place, and it authorizes its council to act against that which comes within the legal notion of a nuisance ; but such power, conferred in general terms, cannot be taken to authorize the extra-judicial condemnation and destruction of that as a nuisance which in its nature, situation, or use, is not such.” Id. § 374.
In "Wood on Nuisances it is said: “A nuisance, in the' ordinary sense in which the word is used, is anything that produces an annoyance — anything that disturbs one or is offensive; but in legal phraseology it is applied to that class of wrongs that arise from the unreasonable, unwarrantable or unlawful use by a person of his own property, real or personal, or from his own improper, indecent or unlawful personal conduct working an obstruction of, or injury to, a right of another or of the public, and producing such material annoyance, inconvenience, discomfort- or hurt that the law will presume a consequent damage.” 1 Wood, Nuisances (3d Ed.), § 1.
The same author says: “Nuisances are either public or private. Public nuisances, strictly, are such as result from the violation of public rights, and producing no special injury to one more than another of the people, may be said to have a common effect, and to produce a common damage. Of this class are those intangible injuries that result from the immoral, indecent and unlawful acts of parties that become nuisances by reason of their deleterious influences upon the morals or well-being of society.” Id. § 14.
There are two kinds of public nuisances. One is that class of aggravated wrongs or injuries which affect the “morality of mankind, and are in derogation of public morals and decency,” and, being malum, in se, are nuisances irrespective of their location and results. The other is that class of acts, exercise of occupations or trades, and use of property which become nuisances by reason of their location or surroundings. To constitute a nuisance in the latter class, the act or thing complained of must be in a public place, or so extensive in its consequences as to have a common effect upon many, as distinguished from a few. Where it is in a city or town, where many are congregated and have a right to be, and produces material annoj'unee, inconvenience, discomfort, or injury to the residents in the vicinity, it is a public nuisance of the latter class.
It is said in Wood on Nuisances: “Many kinds of business that would be regarded as a nuisance upon a street that is densely populated and much traveled, or that is occupied for business purposes of such a character as naturally make it what is called a thoroughfare, would not be such upon a less populous street, or one that is not so much used by the public. * * * Thus, a blacksmith shop would not for a moment be tolerated upon a principal street of a city in the vicinity of costly buildings and fashionable business places, except it were kept up and maintained in a way so as to produce no possible annoyance or injury; but, from the need-fulness of the business, it is tolerated upon streets in less important parts of the city, and the smoke and cinders arising therefrom, as well as the noisy reverberations from the heavy strokes of the sledgehammers on its numerous anvils in the prosecution of the business, is permitted, even without the aid of special ordinances.” Sec. 21.
It is now well settled that “loud, disagreeable noise alone, unaccompanied with smoke, noxious vapors or noisome smells, may create a nuisance, and be the subject of an action at law for damages, in equity for an injunction, or of an indictment as a public offense.” Id. § 611. “Any indecent exposure of one’s person in a public place, in the presence of several persons, is a public nuisance, * * * because it shocks the moral sensibilities, outrages decency, and is offensive to those feelings of chastity that people of ordinary respectability entertain.” Id. § 57. So, for the same reason, the exhibition in public of obscene pictures, prints, books or devices are common nuisances. Id. §§ 65, 68.
In Nolin v. Mayor and Aldermen of Franklin, 4 Yerg. 163, the act incorporating the town of Franklin authorized the city council to enact and pass laws to prevent and remove nuisances. A law was passed by the council inflicting a penalty of five dollars on any person who exhibited a stud horse in the town. The court said: “Was this a nuisance within the meaning of the act of incorporation? Keeping hogs in a market town has been so holden (Salk. 460); as are ale houses, gaming houses, brothels, booths and stages for rope dancers, mountebanks and the like. 1 Hawk. P. C. cb. 75, § 6. The exhibition of these in the streets would be clearly a nuisance; and we think as certainly showing and keeping a stud horse in the town is. The corporation law was warranted by the charter.”
As a rule, a jack is kept for one purpose onty, and that is, the propagation of his own species and mules. He has a loud, discordant bra}q and, as counsel say, frequently “makes himself heard, regardless of hearers, occasions or solemnities.” He is not a desirable neighbor. The purpose for which he is kept, his frequent and discordant brays, and the association connected with him bring the keeping of him in a populous city or town “within the legal notion of a nuisance.” So far as the facts appear to us, section 2 of the ordinance in question is valid.
In this case we cannot inquire into the regularity of the proceedings of the mayor’s court. The writ of habeas corpus cannot he legally converted into a writ of error. "The great object of the writ is the liberation of those who may be imprisoned without sufficient cause, and to deliver them from unlawful custody. It is not the function of this writ to inquire into or correct errors. But its object is to require the person who answers it to show upon what authority be detains the prisoner. If the person restrained of his liberty is in custody under process, nothing will be inquired into, by virtue of the writ, beyond the validity of the process upon its face, and the jurisdiction of the court by which it was issued.” State v. Neel, 48 Ark. 289.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) The burden of proof was upon appellees. The proof utterly fails to show that the relation of landlord and tenant existed between appellants and. appellees. It is not even shown that Joblin had any authority to make a sale of the premises in controversy, much less Barr, who, in this so-called agreement of sale, acted only as the agent of Joblin. He was not the agent of Hill, Fontaine & Company to sell lands. Joblin assumed to have authority to sell lands for Hill, Fontaine & Company, and the court seems to have treated this assumption of authority on his part as the real thing itself, and demanded no further proof. The court evidently found that Joblin had authority to act for Hill, Fontaine & Company, and that Barr had authority to act for Joblin, and that what Barr did for Joblin in the transaction was done for Hill, Fontaine & Company. This was all wrong. Even if Joblin himself, without a power of attorney, could have made a verbal contract with appellees for the sale of the lands, and upon payment of part of the purchase money could have put appellees in possession, he did not do it. Therefore we are not called upon to decide whether he could have done so or not. We are sure that Barr, who derived whatever authority he had in the premises from Joblin, could make no contract that would bind Hill, Fontaine & Company. That is getting too far away from the source of power. Delegatus non potest delegare would apply to Joblin and Barr. If Joblin had authority as agent to sell, he must have been regarded by his principal as having special fitness for such important responsibilities. This he could not delegate. Meehem, Agency, § 186.
Of course, Ilill, Fontaine & Company might have ratified any contract of sale that Joblin or Barr either might have made with appellees. But there is no proof here that Hill, Fontaine & Company did so. The evidence falls far short of showing ratification, or anything like it, before the institution of this suit. No deed was signed or delivered. Barr tendered back the cash he had received. Appellees refused it, showing that they wanted to make the deal go. Under such circumstances, a retention of the notes by Hill, Fontaine & Company would not be construed as a ratification of the unauthorized act of Barr. But, even if Barr had been clothed with authority to make the sale, he did not make it. There was no such delivery of possession upon payment of a part of the purchase money as to take the case out of the statute of frauds. There was no actual' delivery of seizin to appellees. Appellants never attorned to them or promised to do so. The best the proof shows on this point is that they did not object to doing so. This is far from the affirmative act of paying rent to appellees and thereby recognizing them as landlords or owners.
Moreover, the notice to appellants as tenants by the year was not sufficient. Ten days" notice to quit, given to merchants who had been occupying the premises for years under a lease from year to year, would hardly be considered reasonable. Stewart v. Murrell, 65 Ark. 471.
Reversed and remanded for a new trial. | [
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Hughes, J.,
(after stating the facts.) While we do not say that, as an abstract proposition of law, we approve all that is said in the first instruction, yet, under the circumstances of'this case, we find no prejudicial error in it. There was no reversible error in refusing those that were refused.
It seems that the plaintiff, when the whistle sounded for Knoxville, the station, and the porter called out “Knoxville,” had reason to believe that it was a warning to passengers that the train was approaching the station, Knoxville, and would soon stop there. We do not think there was negligence in her obeying the warning, and getting ready to alight when the train stopped. There is evidence to warrant the jury in finding that the train did come to a •standstill or stop, and that the plaintiff was justified in believing it had stopped for passengers to alight, and that there was no negligence in her getting off where and when she did. The appearances, where she got off, were the same as opposite the depot building, except that the small building itself was not just opposite where she got off. There was, however, a building opposite where she got off which might have indicated to her that the train had entered the little town and stopped for the depot.
No information was given to the plaintiff that the stop was •only in answer to the red flag, and not for the depot, and to correct the reasonable impression made on her mind by the circumstances that the train was stopping at the depot, and that the whistle and announcement “Knoxville” was invitation for passengers for Knoxville to get ready and get off when the train stopped very soon thereafter.
It is not shown that the appellee knew anything about •emergency stops or red flag signals. The train men did understand them. They knew the appellee was a passenger for Knoxville. We think it was the duty of the train men under the circumstances to give the appellee warning that the stop was not for the station, and that there was a negligent failure to do so, for which the railroad company is liable. ° Railroad companies are bound to use in behalf of passengers and for their safety the highest •degree of care. There is nothing to show that the proper warning might not have been given the appellee. We think that in this case it was the duty of the employees of the railroad to give it.
“We deduce that when the name of the station is called, and soon thereafter the train is brought to a standstill, a passenger may reasonably conclude that it has stopped at the station, and ■endeavor to get off, unless the circumstances and indications are such as to render it manifest that the train has not reached the proper and usual landing place.” Smith v. Georgia Pac. R. Co., 7 L. R. A. (Ala.) 323; Memphis & L. R. R. Co. v. Stringfellow, 44 Ark. 330. The accident in the first-cited case occurred in the night time, but the principle applies here.
No contention is made that the damages were excessive, though the motion for new trial alleges that they were, yet in the brief this seems to be abandoned. The injury was a severe, painful and permanent one.
The judgment is affirmed.
Bunn, 0. J., and Battle, J., dissent. | [
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Bunn, C. J.
Lizzie Thurmond, as the administratrix of the estate of her deceased husband, James Thurmond, brought this suit, for herself as the widow and James C. and Sue Ada Thurmond, the minor children of herself and deceased husband, against the St. Louis, Iron Mountain & Southern Railway Company, .for damages in the negligent killing of her said husband, in the second division of the Pulaski circuit court, laying the damages as follows.to-wit: For herself in the sum of $6,000, for the children in the sum of $7,000, and for the estate in the sum of $3,000, aggregating the sum of $16,000, for which she prayed judgment.
The defendant answered, denying all material allegations, and trial was had before a jury, verdict and judgment for $1,050 for widow and children and $50 for the estate. From this judgment defendant in due form and in due time appealed to this court, assigning eleven separate and several grounds of error in the proceedings and rulings of the trial court.
The plaintiff testified that she was the widow of the deceased, James Thurmond, and that they had two minor children living, the children named in the complaint; that her husband had been working for the railway company for five years as a fire-knocker, receiving $1.62-|- per day wages; that he was a steady colored man, and supported his family; that she did not see the accident, and personally did not know where and how her husband was hurt. She only saw him after he was sent to the hospital, where he died. She testified that she was administratix of the estate of her husband.
Deceased was working as a fire-knocker when he was hurt — that is, he was in what is called a cinder-pit under an engine standing on the track running over the pit lengthwise, taking the cinders and ashes out of the ash pan of the standing engine, or was just entering the pit for the purpose of doing so, when his leg, which seems to have been on the rail of the track, was run over and crushed by the wheels of the engine which had been put in motion by the approach and concussion of the engine No. 135 coming up at the time. The leg of the deceased was amputated, and from the effects of this hurt and the operation he died soon after-wards.
A cinder-pit, it appears, is an excavation in the ground, something like the width of the railroad track or wider, and the one in this case was 75 feet long, with a decline at each end, so as to admit of the passage of engines. The pit was 18 or 22 inches deep in the ground, and the railway track above it on posts or upright blocks resting on the bottom of the pit, and extending up about 12 or 18 inches above the surrounding ground, and the stringers and track are laid on these, so that the track is from 30 to 40 inches above the bottom of the pit, may be less. The space above the track and between the wheels of an engine standing thereon is the usual diameter of the wheels, substantially.
The cinder-pit track was a continuation of a spur or side track of the railroad, which connected it with the main line of the road. At the time of the accident the engine, No. 372, had been standing-on the track, until struck by engine No. 135 with such force as to move it its length; one -witness for plaintiff testifying that No. 135 was moving at the rate of fifteen miles an hour, while others make no estimate of or statement as to the speed. It is disputed whether the wheels of the standing engine were blocked or not, some witnesses testifying that they were blocked by two ordinary sticks of fire wood, one oak and the other pine, each about the size of a man’s leg, to use the language of plaintiff’s witness. The defendant’s witnesses saw no block of the kind in the vicinity.
It appears to have been the duty of the fire-knocker — the deceased in this case — to stop the engines on the track above the cinder-pit, just as he wished them to be located, and to block the wheels as aforesaid. The pit in question was 75 feet long, but it is a matter of dispute whether the level part of the track was sufficiently long to accommodate two engines, one standing and the other moving as No. 135 was. It is also a matter of dispute whether or hot the construction of the pit, and track above, in connection with the position of the engines, afforded sufficient room for escape in an emergency, and whether or not the place deceased was required to work in was not too cramped to afford ready ingress and egress in ease of danger, and therefore unsafe. It is a question also in this case whether the deceased entered the cinder-pit by crawling over the track above and between the wheels of the stationary engine No. 372, or had entered the pit otherwise. From the fact that he reached the pit from a place a little distance away, where he was engaged in other works for the company, and did so in great haste after he saw the approach of engine No. 135, it is inferred by the defendant in argument that he crawled over the tracks between the wheels of the standing engine, the most hazardous way he could have selected; and this is the principal ground upon which he is accused of contributory negligence, although his failure to block the wheels, it is contended, is another ground. There is no proof of the first, that is, of the manner in which deceased attempted to enter the pit. Nor is there positive proof that he failed to block the wheels of the engine as required, or that he failed to use such means for that purpose that were at hand, and which it was the duty of the company to provide. It may be true, also, that engine No. 372 was struck with such force as to have made the use of available blocks perfectly useless.
All these questions were submitted to the jury on the charge of negligence against the defendant, as well as on the charge of contributory negligence on the part of the deceased, and the jury have determined against the defendant. Finding no reversible error in the instructions, we cannot disturb the verdict on the facts by the jury.
It is contended by defendant that the deceased as fire-knocker and the engineer running No. 135, called a hostler, were fellow servants, as they were engaged in the same employment, and were under the supervision of one person — John Morgan — the engine dispatcher, who had the discretion of the movement of engines about the yard and of others working therein. That is true, but our statute on the'subject, in defining who are fellow servants, goes a step farther, and says: “All persons engaged in the service of any railway company, foreign or domestic, doing business in this state, who are intrusted by such corporation with the authority of superintendence, control or Command of other persons in the employ or service of such corporation, or with authority to direct any other employee in the performance of any duty of such employee, are vice-principals of such corporations, and are not fellow servants with such employee.” Section 6248, Sand. & U. Dig. • The following section makes it a requirement that they shall also be of the same grade. It is in proof that the hostler of No. 135, that brought about the collision, had a man or men under him as assistants. The letter of the statute makes him not a fellow servant, because he supervises others, and because he is on that account not of the same grade as was the deceased, whose duty it was merely to clean out the ash boxes of engines after being in use, and before being put in use again. It is doubtful what the legislature really meant, but such is the force of the language of the act, as construed in Kansas City, Ft. S. & M. R. Co. v. Becker, 63 Ark. 477, and Kansas City, Ft. S. & M. R. Co. v. Becker, 67 Ark. 1. The verdict is extremely moderate as to amount of damages.
Affirmed.
Wood and Riddick, JJ., not participating. | [
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Hughes, J.
The appellee was charged with assault and battery, on an information made by a prosecuting attorney, which was filed before a justice of the peace by the deputy prosecuting attorney. He appeared before the justice, and entered a plea of guilty, and at the time the deputy prosecuting attorney was present, and claimed a fee of ten dollars, which was allowed by the justice. From this allowance he appealed to the circuit court. The circuit court held that the prosecuting attorney could claim a fee in justice’s court only when present in person or by deputjr, in pistol, whisky and gambling cases. The state appealed to this court. Does the judgment reflect the law?
It appears that the position or office of deputy prosecuting attorney was first provided for in this state by act of 1883 (page 301, § 2), known as the “Blind Tiger Act,” and he was given power alone to assist in enforcing said act. This act appears as section 1928 in Mansfield’s Digest. The act of March 13, 1893, enlarged the powers of deputy prosecuting attorneys in justices’ courts, as appears in sections 6010, 6011, Sandels & Hill’s Digest. Up to the passage of this act in 1893, prosecuting attorneys, “when present and prosecuting cases,” were allowed fees, by section 3233 of Mansfield’s Digest. But the legislature of 1895 (Act April 9, 1895) amended sections 6010 and 6011 by providing in section 1 of said act “that the prosecuting attorneys in the several judicial circuits of this state may appoint one deputy in each of the several counties composing their circuits,” etc. Section 2 of said act of 1895 provides “that section 6011 of Sandels & Hill’s Digest of the statutes of Arkansas be, and the same is hereby, amended to read as fob lows: Section 6011. The deputy prosecuting attorney provided for in section 1 of this act shall have authority to file with any just ice of the peace in his county information charging any person with .carrying weapons unlawfully, unlawful sale of or being interested in the sale of liquors, violation of blind tiger act, or gambling, whereupon it shall be the duty of the justice of the peace to issue a warrant for the arrest of the offender, and in such cases no bond shall be required for costs of prosecution.” Sec. 3. “That whenever any person shall have been arrested under a warrant issued in accordance with the preceding section, and shall plead not guilty and demand a trial on the charge therein, it shall be the duty of the deputy prosecuting attorney to attend and prosecute such charge on behalf of the state, and in the event of a conviction he shall be allowed the same fees as are now allowed in similar cases in the circuit court.” See. 4. “In any .criminal action pending before any justice’s court, where the defendant is charged with any offense mentioned in section 2 of this act, by affidavit or otherwise, and shall plead not guilty, and shall secure the services of an attorney to represent him on the trial, it shall be the duty of the justice to cause the prosecuting attorney or deputy for said county to be notified of the nature of the charge, and the time and place of trial, and such prosecuting attorney shall attend and prosecute in behalf of the state, and in case of conviction shall be allowed the same fee as is now allowed in similar cases in the circuit court, and that no prosecuting attorney or his deputy shall receive any fee unless he personally appears and prosecutes in the case, nor shall any court tax any fee where such officer does not appear and personally prosecute.” Sec. 5. Eepeals all acts in conflict.
So it appears that the judgment in the circuit court is correct. The deputy prosecuting attorney can prosecute only in cases of violations of the law against the unlawful sale of whisky, carrying weapons unlawfully, violation of the blind tiger act, or gambling, and the prosecuting attorney is entitled to a fee only when he is present and prosecutes in person. | [
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Hughes, J.
The appellant was indicted for and convicted of the larceny of a yearling, and appealed to this court. There was some testimony tending to show that the appellant bought the yearling from Charlie Lawrence, who was a witness in the case.
On the trial the state offered to introduce a letter written by defendant; it being agreed by counsel for defendant that W. R. Hampton, if present, would testify that he was jailer at Marianna; that in September, 1900, while defendant was in jail, witness allowed defendant's wife to visit him in the jail, and while she was in there witness saw defendant slip something to her; that when she came out witness took the article away from her, and it was the note offered in testimony wrapped in a leaf of a Bible. The defendant objected to the introduction of the testimony of Hampton and of the letter because the same was irrelevant. The court overruled the objection, to which the defendant excepted. The letter was as follows: “To Lies Nesba: Mr. Lias Nesba, I want you and Johnson to get together, and Charlie Lawrence, and get him to say that he sold me that yearling. If you will do that for me, I have got them. You sec Charlie, and have a talk with him, you and Johnson. I will have you and Johnson sumens at once. Don't get afraid. Now, help me. if it was you, I would dou that for you. I want you and Johnson to get redy. I want a new tryel as soon as you get this note. I want you all to swere that Charlie Lawrence told you that he sold me that yelen. Since I have been in jail, he told you that. As soon as you read this note, you burn it up. I am going to have you sumens. Be redy. Your friend, B. W. Ward, in jail, Marianna, Ark. Wife, send for lies nesba to come at once. You give him this note, and tell him to get redy at once. I want to have a new tryel tuesda3f, and as soon as 3rou give this note to lies, then you go and tell my lawyer that 1 want to call a new tryel, and i will come home. B. Ward.”
That part of the letter to the wife was a confidential communicalion from husband to wife, and privileged, and not admissible in evidence, but there is nothing material in this part of it. 1 G-reenl. J3y. § 254. But the majority of the judges are of the opinion that that part of the letter not addressed to the wife,but to “LiesNesba,” is not privileged, though taken from the wife against her will, and was admissible in evidence to show the purpose for which it was written. The jury might think it was an attempt to manufacture te.stim.0n3g or that it was an attempt to get Charlie Lawrence to tell the truth, and say he had sold the steer to the defendant, which he had sworn he did not do, on the trial. The defendant was contemplating a motion for a new trial when the letter was written. The defendant had testified that Charlie Lawrence sold him the yearling, claiming that he owned it.
The jury retired, and afterwards returned into court for further instructions, and the court orally gave the following: “If the jury find that Charlie Lawrence stole the yearling, and the ■defendant was present and put the rope on the yearling, or assisted in so doing, or in driving it away, then he would be guilty as charged in the indictment,” to which the defendant excepted-This was error. It ignores the idea that, if defendant bought the steer from Lawrence, who claimed to own it, they could not convict the defendant, unless they believed from the evidence beyond a reasonable doubt that the defendant knew at the time that Lawrence did not own the steer.
For the error in this instruction, the judgment is reversed, and the cause is remanded for a new trial. | [
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Riddick, J.
This is an appeal from a judgment for $1,200 recovered by Mrs. Mary Smith against the Prescott & Northwestern Railway Company as damages for causing the death of her son, Ed Mechlin. The defendant company was the owner and operator of a short-line railroad used mainly to carry logs, but passengers were also carried. On the day of the accident a train composed of nine freight and log cars and a caboose for passengers was backed along the railway of the defendant company, having the caboose in front and the engine in the rear pushing the train backward. Ed Mechlin, the son of the plaintiff, was a passenger on the train, and while the train ivas being thus operated the caboose left the track, and Mechlin, who was riding on the platform of the caboose, or was there in the attempt to escape from the caboose,was thrown to the ground and killed.
Our statute provides that “in forming a passenger train no baggage, freight, merchandise or lumber cars shall be placed in the rear of passenger cars, and if they, or any of them, shall be so placed, and any accident shall happen to life or limb, the officer or agent who so directed or knowingly suffered such arrangement, and the conductor or engineer of the train, shall each and all be held guilty of intentional wrong causing the injury, and be punished accordingly.” Sand. & H. Dig., § 6195. It is obvious that this statute was not intended to apply only to regular passenger trains, for such trains do not carry freight or lumber cars. It was plainly intended to apply as well to mixed trains carrying both freight and passengers, and it requires that such trains shall be so formed that “baggage, freight, merchandise or lumber cars” shall be placed in front of the passenger cars. The purpose of the statute was to protect passengers from the danger of being carried in cars placed in front of freight, lumber or other cars of that kind. If the defendant company was engaged in carrying passengers on this train for hire, then we think the statute applies, whether the passengers were carried in a caboose or in a regular passenger coach, and notwithstanding that the main business of the train was to carry logs. Now, it was alleged in the complaint that “Mechlin was a passenger on defendant’s train going from Prescott to a point in Hempstead county,” and this was not denied in the answer. The testimony of defendant, itself showed that, while the train was a log train, yet it also carried passengers, and for that purpose had a caboose attached with seats inside for passengers, who under the rules were required to ride in the caboose. "We must therefore take it as established, so far as this appeal is concerned, that the defendant company ivas engaged in carrying passengers for hire on this train, and that Mechlin was a passenger thereon at the time of the accident that caused his death. These facts being established, the statute applies, and it follows as a matter of Jaw that the defendant was guilty of negligence in operating its train in a manner forbidden by the statute, and we think the facts in evidence were sufficient to support the finding of the jury that it was this negligence which caused the injury to Mechlin.
The defendant contends that Mechlin rode on the platform of the caboose, and was thus guilty of contributory negligence, which precludes a recovery. But the evidence tends to show that Mechlin did not ride on the platform as a matter of free preference. If he was there, the evidence tends to show that it was because the manner in which the train was being operated made it appear to him dangerous to stay in the caboose. It has often been decided that a passenger, placed in imminent peril by the negligence of the company, “may recover, in a proper case, for injuries received in attempting to escape or avoidit, if he exercised ordinary and reasonable care under the circumstances as they reasonably appeared to him at the time, although in acting upon the spur of the moment and under excitement he did not do what was best, or would not have been injured if he had done nothing but remain quiet.” 4 Elliott, Railroads, § 1642, and cases cited. Now, at the time Mechlin was on the platform the train was being run backwards at considerable speed on a down grade, and was approaching a sharp curve in the track. Mechlin, a boy 18 years of age, was the only occupant of the caboose. The evidence tends to show that he was apprehensive that the train might be derailed and the caboose crushed by the heavy cars behind, and he feared that if he remained in the caboose, and an accident happened, he would be unable to escape in time to avoid injury. Under these circumstances, we think it was a question for the jury to determine whether or not he was guilty of contributory negligence. When all the instructions on that point were taken together, we think the question was fairly submitted to them, and their verdict should stand unless another ruling of the court, which we will next proceed to notice, calls for a reversal.
The court allowed the plaintiff! to show to the jury that, after the accident and death of Mechlin, the company required its employees to change the manner of operating its train; that it required them to put the engine in front, and, when necessarjr to do so, to run the 'engine backward in front of the train, instead of backing the whole train with the caboose in front. We are of the opinion that this evidence should not have been admitted. As was said by the supreme court of Minnesota, there is “no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience, after an unexpected accident has occurred, and as a measure of extreme caution, he may adopt additional safeguards. The more careful a person is, and the more regard he has for the lives of others, the more likely he would be to do so, and it would seem unjust that he could not do so without being liable to have such act construed as an admission of prior negligence. We think such a rule puts an unfair interpretation upon human conduct, and virtually holds out an inducement to continued negligence.” Morse v. Minneapolis & St. Louis Ry. Co. 30 Minn. 468.
These reasons have led a majority of the courts to reject such evidence as incompetent, as is shown by the large number of cases to that effect cited by counsel for appellant. The fact that the defendant exercised less or greater care after the accident than it did at that time does not show that it was either guilty or not guilty of negligence at the time of the accident. Its adoption of a particular safeguard at any time, whether an accident had previously occurred or not, could not be deemed an admission that it had been guilty of negligence in not sooner adopting such safeguard. Menard v. Boston & Maine R. R., 150 Mass. 386. One who exercises the highest care in the operation of dangerous machinery may find, from experience or otherwise, that additional precautions are required. The law then demands that these precautions be taken, but it is not so unreasonable as to permit the performance of this duty which it imposes to be used as evidence of previous wrong. Columbia & P. R. R. Co. v. Hawthorne, 144 U. S. 202; Terra Haute & Ind. Ry. Co. v. Clem, 123 Ind. 15.
But, although we think the court erred in admitting this evidence, we are of the opinion that the evidence itself would have done no harm to the defendant, for it only went to show negligence on its part, which, as we have before stated, was already conclusively shown by other evidence. If there was nothing more than the evidence, we would have little trouble in disposing of the contention of appellant on this point. But the evidence was made the basis of an argument by one of the attorneys for plaintiff, which presents a more serious question. He contended in his argument before the jury that this change in the method of operating the train was not only evidence of negligence, but that it'was in effect an admission of liability for the injury on the-part of the company. “That alone,” he said, speaking of the change, “is sufficient proof to justify a verdict for plaintiff. If it was not negligence to hack the train with the engine in the rear, why did they change after killing the boy? By making the change they confessed their liability.” To this language and argument defendant excepted at the time, the court overruled the objections, and defendant excepted. This was an improper argument. It does not follow because the defendant was negligent that it was liable for the injury. It may have been negligent, and yet that negligence may not be the cause of the injury, and it was necessary to show, not only negligence on the part of the defendant, but to go further and show that the injury of Mechlin was the result of the negligence. Even if that was shown, the company may still not be responsible for the injury, for Mechlin himself may have been guilty of contributory negligence. Admitting that the company was negligent, it was still for the jury to determine whether this negligence caused the injury, and, if so, whether the defendant was guilty of contributory negligence. The jury should have determined these questions on proper evidence, and the assertion of counsel that the change in the manner of operating its trains was a “confession of liability^* on the part of the company, and that this change alone “was sufficient proof to justify a verdict for plaintiff;,” was well calculated to mislead the jury, and was prejudicial to defendant. Counsel, we know, are entitled to freely discuss and comment upon legitimate evidence, and we have no desire to curtail such rights or to encourage frivolous exceptions to the rulings of trial judges upon objections made to arguments of counsel. Such rulings must of necessity be made off hand, and are no ground for reversal unless clearly prejudicial. But the argument in question here was based on incompetent evidence, and went much further than such evidence would have warranted, even had it been competent.
We are compelled therefore to hold that the presiding judge erred in overruling the objection. It should have been sustained, and the jury cautioned to disreg-ard the argument. This was not done, and we have no means of knowing what influence this argument had on the verdict of the jury. The mere fact that if was made before the closing argument on the part of the defendant does not justify us in saying that the jury were persuaded to disregard it, and did so. The verdict shows that the jury adopted the views contended for, not by defendant’s attorney, but by counsel for plaintiff. We cannot say that they disregarded a portion of this argument and based their verdict on the legitimate evidence ■only. If they adopted the view urged by plaintiff’s counsel, that the change in the manner of operating the train was a confession of liability, and of itself justified a finding for plaintiff, and based their verdict on that fact only, then they did not pass on the real questions at issue in the ease. As we do not know whether they did so or not, and as this uncertainty was brought about by an improper argument of plaintiff’s attorney, she must bear the consequences.
Our conclusion is that, for the error in refusing to sustain the objection of defendant’s attorne}r to his argument, the judgment must be reversed, and remanded for a new trial. It is so ordered. | [
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Eiddick, J.,
(after stating the facts.) This is an action by the city of Hot Springs against the Hot Springs Electric Light ■Company to recover a sum of money which the city claims of it for the use and occupation of certain portions of the public streets upon which the company has erected its poles for electric light purposes. An ordinance of the city requires that each person, company or corporation erecting and maintaining any pole in the streets of the city for electric light, telephone, or certain other purposes shall pay to the city 50 cents per annum for each pole so erected and maintained. We can agree with counsel for the city that it had the right to pass an ordinance of this kind requiring persons and corporations erecting poles in the streets for purposes mentioned in the ordinance to pay for that privilege, but it does not follow that the city can in that way affect rights' already vested under valid contracts. Now, the ordinance imposing the charge -of 50 cents a pole was passed in 1896, but the poles of the defendant company were all erected prior to that date under an ordinance of 1887, giving the company the right to maintain an electric light plant and to erect poles along the streets and avenues, and to string-wires thereon, for the purpose of lighting the city, for and during a period of twenty years. This grant by the city council, having been accepted and acted upon by the Electric Light Company, became, in effect, a contract between the city and the company, which cannot be abrogated without the consent of the company. Hnder this grant of the right to use the streets of the city for the erection of its poles, the company not only invested large sums of money in the erection of plant, poles and wires, but, relying on that ordinaiice, it has, for an agreed consideration, contracted with the city council to light the streets of the city for a period of ten years by furnishing lights at points in the city designated by the city •council, and has agreed that upon a failure to furnish such lights it will forfeit and pay to the city $5 per day for each light it fails .to furnish. All this was done before the passage of the ordinance imposing on the company a charge of 50 cents per year for each pole placed in the street.
Now, a grant which has been accepted and acted upon by the grantee is a contract, within the meaning of the constitution of the Hnited States, which forbids laws impairing the obligation of ■contracts. When, therefore, rights and franchises lawfully granted to either a person or corporation have been duly accepted, and valuable improvements have been made on the faith of such grant, it becomes, in effect, a contract, which cannot be impaired either by a law of the state or by an ordinance of a municipality. The rights and franchises granted can then neither be revoked, nor can they be diminished in value by the imposition of additional burdens upon their use and enjoyment. Fletcher v. Peck, 6 Cranch (U. S.), 87; Dartmouth College v. Woodward, 4 Wheat. (U. S.), 518; New Orleans Gas Company v. Louisiana Light Co., 115 U. S. 650; New Orleans Water Works Co. v. Rivers, 115 U. S. 674; Sioux City St. Ry. Co. v. Sioux City, 138 U. S. 98; St. Louis v. Western Onion Tel. Co. 148 U. S. 92; Burlington v. Burlington St. Ry. Co., 49 Iowa, 144; 2 Beach, Contracts, § 1205; 3 Parsons on Contracts (8th Ed.), page 479; 15 Am. & Eng. Enc. Law (2d Ed.), 1049.
Counsel for the city do not, of course, deny the rule above stated, but they contend that the grant of the right to use the streets must be understood as being subject to the right of the city to require a reasonable compensation therefor. This grant to appellant of the right to place its poles in the streets, counsel say, only placed the company in the position it would have occupied had it proceeded under some valid statute to condemn the property for such purposes. This illustration is pertinent, but it does not seem to support the position of counsel. If the company had proceeded under a statute to condemn the property, it would have been compelled to make compensation before taking the property. But this grant on the part of the city put the company in the position it would have occupied had it condemned the property under a valid law and paid the compensation required.
After having paid for the property in a proceeding to condemn under the power of eminent domain, supposing that it was authorized to proceed in this way, it could not have been subjected to another demand of the city for the use and occupation of the property for which it had already paid. If a railroad locates its right of way through a farm, the owner may demand compensation therefor, or, if he chooses to do so, he may grant the right of way to the company free of charge. But after he has made the grant, and the company has built the road, he cannot change the terms of his contract by requiring the company to pay him for the use and occupation of the land the right of way over which he has already granted. But cities are as much bound by their lawful contracts as private persons, and it follows from the same reasons that, the city having granted to this company the privilege of erecting and maintaining its poles along the city streets for a period of twenty years, and the grant having been accepted by the company, and the company having expended large sums of money and made valuable improvements on the faith of such grant, the city council cannot now impose additional burdens, and, in effect, change the contract* without the consent of the company. The terms upon which this grant was made having been fully complied with by the company, the city is estopped by its own grant from demanding additional compensation for that which it has already granted. It follows that, in our opinion, the circuit court erred in holding that the city had the right to demand “a reasonable rental charge for the use of the ground occupied by such poles.”
We know, of course, that in this state, under power reserved in the constitution, the legislature may, within certain limits, alter, revoke or amend the charter of corporations, but no question of that kind arises here. We also know that a city cannot contract away its police power, and that the city has the right to inspect the poles and wires of this company to see that they are kept in safe condition, and it is possible that the city may, notwithstanding this contract, have the right to impose the cost of such inspection upon the company. But we do not decide that question, for the agreed statement of facts upon which the case was tried stated that the city had never had an inspector, or made any official inspection of electric light poles. Counsel for the city also say in their brief that “this is clearly an action for rent,” add the circuit court found that the 50 cents per pole imposed by the ordinance was “in the nature of a rental charge for the use of the ground occupied by the poles.” So, looking at the case as presented by the counsel for the city, it is clear that there is no question of the police powers of the city involved. So far as the evidence shows, it is an attempt to charge the company for the privilege of using the streets, which had been previously granted to it, and is, in effect, an effort on the part of the city to change the terms of its contract with the company, and to impose additional burdens on the company without its consent. We are of the opinion that this cannot be done, and our conclusion is that the city made out no case against the defendant.
The judgment of the circuit court is therefore reversed, and the cause remanded for a new trial. | [
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Wood, J.
The court erred in allowing appellant to be examined on cross-examination as to the difficulty he had with a man in Prescott, and this testimony was prejudicial. The uneontroverted proof shows that appellant was at least guilty of murder in the second degree. The cause will be remanded to the circuit court with directions to sentence for murder in second degree. | [
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Bunn, C. J.
This is a suit in the Chicot circuit court by the appellee, Laura Collier, against the appellant, J. T. Crenshaw, Jr., for the conversion of a check for $1,000 of par value, drawn by the president of the board of control of the Knights of Pythias order, on the First National Bank of Chicago, in her favor. Trial by a jury, and verdict and judgment for $750, — being the amount called for by said check, less some expenses paid by the defendant, — and the defendant appeals from said judgment to this court.
■ The transcript, in this case is so defective that it is quite difficult to ferret enough out of it to form the groundwork of an opinion at all. But there is enough to enable us to discover the nature of the suit, the relief sought, and from these data to ascertain whether or not the case was tried on the proper theory.
It appears from the testimony that the husband of the plaintiff, Thomas B. Collier, and the defendant, J. T. Crenshaw, Jr., were neighbors and friends, and both became members of the association or lodge of the order known as the “Knights of Pythias,” and of the local lodge thereof located at Dermott, Chicot count)', Arkansas, and both took out insurance policies in the endowment rank of said order; that the policy taken out by Collier was for $3,000, of which $1,000 were to be paid to Collier’s wife, the plaintiff. herein, and $1,000 to Collier’s minor daughter, Mary, at his death. It also appears that Collier was financially unable to pay the periodical dues on the policy, and that he induced the defendant to pay the same for him, so as to keep the policy alive. This the defendant did for* some time, until he had expended the sum of $145.80 in keeping up the policy, when, to protect himself by some more definite arrangement, Crenshaw had a conversation with Collier on the subject. The result of this interview was an agreement that Crenshaw was to continue to pay the dues and premiums on the policy until the death of Collier, and, if Collier should survive Crenshaw, the latter was to make his will, and in that make provision for the payment of these dues on Collier’s said policy until his death, and the same become collectible. On the other hand, Collier and his wife (the plaintiff herein) were to make a promissory note to Crenshaw for the sum of $3,000 to secure the payment to him of the sum of $1,000, or one-half of the proceeds of the policy, as a consideration for his undertaking as above set out. This was according to the testimony of Crenshaw in explanation of the giving of the note, and what was really intended by it; its purpose being more or less mystical without such explanation. The note introduced in evidence originally read thus: “'One day after date we promise to pay J. T. Crenshaw, Jr., or his heirs, two thousand dollars, for value received.
[Signed] “Thomas B. Collier.
“Laura Collier.
, t -r. -o -,*■ -r, „ “Attest: J. P. Baker, M. D.”
Subsequently, and after the death of Collier, Crenshaw added in the presence of witness Ferguson these words after the word “received” in the note, to-wit: “This note is given to secure the collection of $1,000 on Mr. Collier’s K. of P. endowment rank.”
Mrs. Collier denied all knowledge of the agreement between her husband and Crenshaw, but admitted the execution of the note with her husband, but says that she at first refused the same, but at the earnest entreaty of her husband and the statement of Crenshaw she finally signed-it. it was testified by Crenshaw that, some time after the death of Collier, plaintiff gave an order to the projier official of the order to pay the amount of her share to Crenshaw, or words to that effect. Subsequent to this, Crenshaw having made out the proofs of the death and sent them forward, the president of the board of control drew his two checks each for $1,000, one in favor of Laura Collier, individually, and Laura Collier as guardian of Mary Collier, and forwarded them to Crenshaw, who was then secretary of the local lodge, to be delivered to Laura Collier. This Crenshaw did, — that is, he delivered the one for the benefit of Mary Collier to Mrs. Laura Collier, her guardian; and after consultation with Mrs. Collier she indorsed the other to him, and he retained the same, and was taking Iris leave, when she asked him to deliver to her the $2,000 note. He replied that he would retain the same as evidence of the transaction, and after-wards added the words as aforesaid to explain its meaning, and also for the purpose of showing a settlement of it in connection with the indorsed check, not knowing what it meant, or words to that effect. This, substantially, is a statement of the facts in evidence.
Upon this state of case, the court instructed the jury as follows, to-wit: “The court instructs the jury that a wife cannot make a valid note as security for her husband, and if you believe from the evidence in this ease that the $2,000 note dated July 15, 1898, signed by Thomas B. Collier and Laura Collier in favor of defendant, was given to secure a debt by Thomas B. Collier, then the same is void as to the plaintiff, Laura Collier, and created no right of action in the defendant, J. T. Crenshaw, against the plaintiff, Laura Collier.”
The evidence in this case shows that the $2,000 note was given for the purpose of securing the payment of the dues and premiums of the insurance policy in favor of Laura Collier and Mary Collier, the infant daughter of herself and Thomas B. Collier. In other words, it inured to the benefit of Laura Collier. It is not the law that a married woman’s promissory note given for such purpose is invalid. She can bind herself by that means, for in the true sense it is not the husband’s debt, but rather an obligation of his to secure a beneficial provision for his wife and minor child. In Sidway v. Nichol, 62 Ark. 154, this court said, in constru ing the powers and disabilities of married women to make contracts: “Onr conclusion is that a married woman has, under our law, the right to purchase personal property, or borrow money for her separate use, and that the property purchased or money borrowed becomes her separate property. Her contract to pay for the same is a contract in reference to her separate propertj1, and creates a personal obligation, valid in law and in equity, and this without regard to whether she owned any additional property or not. * * We have not overlooked the case of Walker v. Jessup, 43 Ark. 167, and other cases by this court, holding that a married woman cannot make an executory contract for the purchase or conveyance of land binding upon her or her heirs. There may be reasons why the executory contracts of a married woman in respect to real estate should not be enforced against her. That question is not before us, and we do not overrule those eases. But so far as the former decisions of this court may have intimated that the contracts of a married woman in respect to her separate property, and for its benefit, though valid and binding upon her in equity, create no personal obligation on her part, and can only be enforced by a proceeding in a court of equity against her separate property, the same are overruled.”
The policy involved in the suit at bar was partly for the benefit of the wife, in so far it was separate property, and she could contract with reference thereto. There is nothing in the evidence to show that by signing the note she became merely the security for the antecedent or present debts of her husband, for she was in fact a principal, and the note so executed was not a mere security.
The same doctrine is announced in Sellmeyer v. Welch, 47 Ark. 485. In Chollar v. Temple, 39 Ark. 238, this court acecurately defines the powers and limitations upon a married woman in binding herself for her husband's debts. The court said: “She might have bound her separate estate for its benefit or protection, or for her own peculiar benefit, or by conveyance with the required formalities, and given a remedy in rem against that. But she has no general capacity to contract, or bind herself personally for her husband's debts, whether pre-existing or contracted at the time. The benefit to herself must be something special, and not the incidental advantages which every wife may be supposed to derive from the money or property lent or sold to the husband.” This error runs through the second, third and fifth instructions given at the instance of the plaintiff, and to emphasize the error the court refused to give the following instruction asked by the defendant: “The jury are instructed that a married woman may enter into a contract for the future payment of money, when she or those dependent upon her are to receive the benefit of the contract, notwithstanding it does not relate to any existing separate property.”
There are several other errors, but these are enough to determine that the court had an erroneous theory of the rights and powers of the party in the case, and for the giving of said instructions arid refusal of the others, the judgment is reversed, and the cause remanded. '
The evidence shows that J. T. Crenshaw, Jr., on his contract was entitled to only half the amount of the policjr in any event. As the policy of Mary is not involved, the defendant, under his contract, can only recover the half of the check of Laura Collier, the plaintiff, at all events; this statement not to affect, however, the question of costs in this suit. This ruling is independent of the consideration of whether the indorsement of the check was obtained by fraud or deceit. If the check was indorsed and transferred freely, knowingly, and voluntarily by plaintiff to defendant in settlement of his interest in the entire policy, plaintiff cannot recover any portion of the check, for the amount of the check is the half of the policy which Collier agreed to give him for keeping up the whole policy. It is otherwise as to half of the check if plaintiff did not intend, by her indorsement of the check to Crenshaw, to settle her daughter’s half also.
Reversed and remanded. | [
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Biddick, J.,
(after stating the facts.) This is an appeal from a judgment of conviction for false pretenses. The false pre-. tense alleged in the indictment is that the defendant stated to C. T. Gordon “that the cost in the case of the State v. Sid. Avera had all been arranged with Captain Burkett. By this false pretense it is alleged that the defendant procured from Gordon a bill of sale for two suits of clothes, which bill of sale had been deposited as security for the costs.
The case in which the bill of sale was given as security for costs was a prosecution begun before a justice of the peace against Sid. Avera for an assault and battery upon Sam Adair. Adair gave the bill of sale for two suits of clothes to secure the costs. The case Avas appealed to the circuit court, and the justice of the peace sent the bill of sale, Avith transcript and other papers, to the clerk of the circuit court. On the trial in the circuit court Sid. Avera was acquitted, and Adair became liable for the costs, to secure which he had given the bill of sale. Adair thereupon made an arrangement AAdth John Burkett by which Burkett agreed that he would pay all the costs for Adair. After he had made this arrangement with Burkett, Adair, Avho was a negro, Avent to the defendant, who was a negro preacher and friendly to Adair, and sent him to the clerk of the circuit court to get the bill of sale, so that he could get his suits of clothes back. Gordon, the prosecuting witness, Avas clerk of the circuit court. He testified that the defendant came to him, and told him the costs in the justice’s court had been settled, and asked for the bill of sale; that the witness then inquired, “What about my costs ?” and defendant replied, “That has all been arranged with Captain Burkett.” Gordon further testified that thereupon he delivered the bill of sale to the defendant, but that his costs were never paid until after the defendant was indicted. On cross- examination this witness was asked whether the defendant had not stated to him that the costs would be arranged by Captain Burkett, instead of had been arranged? To this question he replied: “T would not be sure whether he said “had' or “would be.’ ” That is, as we understand the witness, the defendant obtained the bill of sale by stating to him either that the costs had been arranged or would be arranged by Captain Burkett, witness not being certain which statement was made. But the indictment charges that the defendant obtained the bill of sale by falsely stating that the costs “had all been arranged with Captain Burkett,’ ” and proof that the defendant stated either that the costs had been or would be arranged was not sufficient. To constitute a false pretense there must be a false and fraudulent representation of a fact as existing or having taken place by one who knows it not to be true. State v. Vandimark, 36 Ark. 396, 400. A mere promise that something will be done in the future does not constitute in law a criminal false pretense, even though the person making it knows that it will not be performed, and makes it for a fraudulent purpose. If the defendant only said that the costs would be arranged, this statement, though false, does not sustain the indictment. And, as the prosecuting witness upon whose testimony on this point the state relies for a conviction was not able to say whether the defendant said that the costs had been or would be arranged, the jury were not justified in finding that he said the costs had been arranged. If the witness for the state had said that defendant stated that the costs had been arranged, and other witnesses had testified that he only said the costs would be arranged, there would then have been a conflict in the testimony for the jury to pass on; but here the only witness testifying against the defendant on this point was not able to say whether the defendant made a statement concerning a past fact or only stated what would be done in the future. Such evidence does not overcome the legal presumption of innocence, and is not sufficient to convict.
It is true, as we have said, that Gordon testified that the defendant also stated that the cost in the justice’s court had been settled. But defendant is not charged with having falsely stated that the costs in the justice’s court had been settled. He is charged with having falsely stated that the costs had all been arranged with Captain Burkett, and he cannot be convicted by proof of a different false statement. Besides, it is necessary not only to show a false pretense, but also to show that this falsehood induced the person defrauded to part with his property; and it is evident that Gordon gave up the bill of sale, not on the statement that the justice’s costs had been settled, but on the statement that" his own costs had either been arranged or would be arranged with Captain Burkett, and it was necessary to show on this point that the defendant stated to Gordon that “the costs had all been arranged with Captain Burkett,” as charged in the indictment, but this was not done.
Again, even if it had been proved that the defendant obtained the bill of sale by stating to Gordon positively that-“the costs had all been arranged with Captain Burkett,” it is doubtful if this conviction should be sustained, for the reason that it was not shown that this statement was false. On the contrary, Captain Burkett and every other witness who testified on this point stated that he had agreed with Sam Adair, the person who executed the bill of sale, and who was responsible for the costs, to pay all the costs, both in the justice’s court and the circuit court. The defendant had been informed of this arrangement by Sam Adair before he made the statements to Gordon and obtained the bill of sale. To show that the statement made by the defendant to Gordon was false, it was shown that Burkett had not arranged or agreed with any officer of the court to pay the costs. But this evidence amounted to nothing, for the indictment does not allege that the defendant stated that Burkett had arranged or agreed with an officer of the court to pay the costs. It alleges only that he stated that the costs had all been arranged with Captain Burkett, and the evidence shows that this statement was true. Burkett, who was, no doubt, a responsible man, and financially reliable, had agreed with Adair to pay the costs, but it seems he had no confidence in or respect for the defendant, and, when he ascertained that the defendant was undertaking to act for Adair in the matter, he refused to advance the money for the costs, or to have any further connection with the matter. It thus resulted that, after the defendant obtained the bill of sale, there was delay in the payment of the costs, and defendant was indicted. The defendant seems to have intermeddled with a matter that did not concern him. He may have intended to get possession of the bill of sale, and not pay the costs it was given to secure. There is evidence that would have sustained a finding to that extent. But the evidence is not sufficient to show that he made the statement as alleged in the indictment, or, if made, that it was false. That he made false statements to the justice of the peace or to Burkett and others is not sufficient, for that is not the charge against him.
We are therefore of the opinion that the evidence, as it appears in the transcript, is not sufficient to support the verdict and judgment.
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Wood, J.
This suit was to recover the penalty under Sand. & EL Dig., § 3395, which is as follows: “Every keeper of such ferry shall keep constantly posted up in some conspicuous place at such ferry the rates of toll allowed to be charged. If any ferryman fail or neglect to do so, he shall forfeit and pay the sum of $4 for every such neglect; each day that such ferry rates are not so posted up shall constitute a separate offense, which sum may be recovered ■ in a civil action, one-half for the use of the informer and the other half to the school fund.”
Sections 3379 and 3380 are as follows: “The toll of ferries that are now, or hereafter may be, established shall at all times be subject to regulation by the county court.”
“The court shall state, on its record, the rates of toll which may be demanded for ferrying passengers, carriages, wagons, carts, beasts, and such other property as is usually transported by ferries. The clerk shall make out a copy of such ferriage rates, under his official signature, and give to the person procuring such license.”
The only question we need consider was raised by the following instruction given by the court at the request of the defendant (appellee), to-wit: “The jury is instructed that it is the duty of the clerk of the county court of Clark county to make out annually a copy of the rates of ferriage fixed by the county court for such ferry, under his official signature, and give to the persons procuring such license such copy; and if you find from the evidence in this case that such copjf was not furnished by the clerk to the defendant or to some person for it aiTthorized to receive the same, then the defendant was under no legal obligation to post the same, and therefore is not liable to the penalty, or any part thereof, sued for in this action, and you will find for the defendant.”
Under this instruction the jury rendered a verdict for the defendant (appellee). The evidence supported the verdict, and the instruction of the court was correct. The county court, for the protection of the public, fixes the rates of ferriage; and, that the ferryman may have at all times convenient as well as authentic and ofiicial information of what the rates are, so as to prevent the possibility of mistake on his part as to the legal toll, the clerk is required to furnish him with a copy of the record of rates. The ferryman in turn is required to notify the public by posting the rates in a conspicuous place at the ferry. The law prescribes the method by which the legal rates are made known to the ferryman. He is not required to receive the information in any other way, and, unless he does receive it in the manner prescribed by law, he is not subject to a penalty for failing to post. He is not required to search the record himself for the information, nor be driven to the expense and trouble of resorting to mandamus to compel the clerk to furnish him a copy of the record, nor is it incumbent upon him even to call up.on the clerk for the copy, in order that he may give the public the benefit of the information thus officially obtained. The affirmative duty is put upon the clerk, the public officer, in the first instance, to furnish the copy of the record; then upon the ferryman to furnish the public the information thus obtained by posting.
The statute is a police regulation of a highly useful and necessary occupation. It comes fully within the rule that penal statutes must be strictly construed; that nothing will be taken as intended which is not clearly expressed; and that all doubts will be resolved in favor of the defendant in construing such statutes. 23 Am. & Eng. Enc. Law (1st Ed.), 385, and notes; State v. Lancashire Insurance Co., 66 Ark. 472; L. R. & F. S. Ry. v. Oppenheimer, 64 Ark. 284; Robinson v. State, 59 Ark. 341; Watkins v. Griffith, id. 355; Hawkins v. Taylor, 56 Ark. 45; Brooks v. W. U. Tel. Co., id. 224; Casey v. State, 53 Ark. 334; Stout v. State, 43 Ark. 413; Grace v. State, 40 Ark. 97, and many other authorities cited in appellee’s brief.
Affirmed. | [
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Battle, J.
The defense of the appellants is based upon an act entitled “An act to suppress the illegal sale of liquors 'and to destroy the same when found in prohibited districts,” approved February 13, 1899. Section 1 of that act is as follows: “It is hereby made and declared to be the duty of the chancellors, circuit judges, justices of the peace, mayors and police judges, on information given or on their own knowledge, or when they have reasonable grounds to believe that alcohol, spirituous, ardent, vinous, malt or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters or medicated liquors of any kind, are kept in any prohibited district to be sold contrary to law, or have been shipped into any prohibited district to be sold contrary to law, that they issue a warrant, directed to some peace officer, directing in such warrant a search for such intoxicating liquors, specifying in such warrant the place to be searched, and directing such officer on finding any such liquors in any prohibited district to publicly destroy the same, together with the vessels, bottles, barrels, jugs or kegs containing such liquors; provided, that this act shall not apply to the giving away or selling of native wines where the sale is authorized by law; * * * provided, that any persons on whose premises or in whose custody any such liquor may be found under warrant of this act shall be entitled to his day in court before said property shall be destroyed.” And section 3 is as follows: “That if any suit shall be'brought against any officer or his bondsmen, or any other person, to recover for any liquors, vessels, barrels, bottles, jugs or kegs destroyed under the provisions of this act, it shall be a complete defense to such suit for such officer, bondsmen or other person to show to the satisfaction of the court or jury that such liquors so destroyed were being sold contrary to law, or were kept to be sold contrary to law, or had been shipped into any prohibited district to be sold contrary to law, or that any portion of the liquors so destroyed had been a part of any liquor so sold contrary to law, or kept to be sold contrary to law, and, upon such showing being made, such officer, bondsmen or other person shall not be liable for the value of the liquor, vessels, barrels, bottles, jugs or kegs so destroyed.”
Appellees insist that so much of this act as authorizes a search is in violation of the constitution and is void. Assuming that to be true, it does not follow that the whole of the act is void. For it is evident that the act, when construed as a whole, does not intend that the search provided for shall be. a condition precedent to the right to seize and destroy the liquors described.
The act makes it the duty of certain officers, on conditions named, to “issue a warrant, directed to some peace officer, directing in such warrant a search for such intoxicating liquors, specifying in such warrant the place to be searched, and directing such officer on finding any such liquors in any prohibited district to publicly destroy the same.” Is this part of the act constitutional?. Statutes which authorize the seizure of intoxicating liquors when illegally kept for sale, under warrant issued for that purpose, and their forfeiture or destruction when it shall be established that the liquor seized was illegally kept for sale, after notice to and hearing of claimants, have generally been upheld and sustained as constitutional. State v. Miller, 48 Me. 576; Fisher v. McGirr, 1 Gray, 1; State v. Wheeler, 25 Conn. 290; Black, Intox. Liq. §§ 52, 53, and cases cited; 2 Tiedeman, State and Federal Control of Persons and Property, pp. 825-827, § 168, and cases cited.
After making it the duty of certain officers to issue warrants, directing the search for and seizure of intoxicating liquors kept in any prohibited district to be sold contrary to law, the act provides “that any persons on whose premises or in whose custody any such liquor may be found under warrant of this act shall be entitled to- his day in court before said property shall be destroyed.” This clearly means that the owner of such liquor shall be entitled to a fair and legal trial, with all the usual incidents thereto, for the purpose of ascertaining and determining whether his property has been forfeited, before it shall be destroyed; that he, or his agent in legal custody, shall have notice of the charge of the guilty purpose upon which his property is declared to be unlawfully held, a time and opportunity to prepare his defense, an opportunity to meet the witnesses against him face to face, and the benefit of the legal presumption of innocence. Without these privileges a day in court might be of little value; and it is not to be presumed that the act intended that a day in court should be a useless and worthless privilege or right, or an idle ceremony or farce.
So much, therefore, of the first section of the act as provides for the seizure and destruction of liquor kept in a prohibited district to be sold contrary to law, without that part which authorizes a search, is constitutional. This being true, and the liquor in question being subject to seizure and destruction because it was kept to be sold contrary to law, and it still being held by the sheriff to be disposed of according to law, the owners of it are not entitled to the release or value of it, because it was found by a search made for it by authority of a warrant issued for that purpose. The law imposes the forfeiture and destruction of it as a punishment for keeping it for an unlawful purpose, and it stands in an attitude like that of a criminal complaining that he has been unlawfully arrested, and insisting that he should be released and lawfully arrested before he can be tried. In the case supposed, the courts held that the legality or illegality of the arrest of the prisoner does not affect the jurisdiction of the court, or his guilt or innocence. Elmore v. State, 45 Ark. 243. So in the case at bar the liquor in question is, by reason of the seizure of the same, within the jurisdiction of the mayor’s court, and the owners of it are entitled to a trial to determine whether it has been forfeited, and is subject to destruction. Their remedy as to the liquor is at present in the mayor’s court. As to remedies for unreasonable or unlawful searches, we make no decision. That is not a question in the case.
The judgment of the circuit court is therefore reversed, and the cause is remanded, with instructions to the court to overrule the demurrer to the appellant’s answer, and for other proceedings.
Hughes and Biddick, JJ., absent. | [
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Biddick, J.,
(after stating the facts.) This is an action of ejectment. Both parties admit that Hannah Strauss was at one time the owner of the land sued for, and base the respective rights claimed by them in this action upon her title. The plaintiffs claim the right to recover as her children and heirs. The defendant concedes their title, but sets up a1 claim for improvements on’ the ground that her husband, believing in good faith that he was the owner of the land by virtue of the will of Hannah Strauss, made valuable and permanent improvements upon it, and afterwards devised it by his will to the defendant.
It is conceded that the will of Hannah Strauss devising the land in question to her husband, Abraham Strauss, does not mention the name of either of her children. For this reason we shall not consider the question as to whether the general reference to the children in the will was a sufficient compliance with the statute requiring them to be named, but shall assume that this construction of the will by counsel and by the circuit court is correct. As these children were her only heirs at law, to whom her property would descend in the event she died intestate, and, as by force of the statute she must be deemed to have died intestate as to them by reason of the fact that neither of their names was mentioned in the will, it follows, we think, that the attempted devise to her husband was void, and passed no title. The names of neither of the children being mentioned in the will, all of the property, by virtue of the statute, passed to them, and there was nothing left upon which the will could act. Sand. & H. Dig., § 7400.
But the fact that the will of Hannah Strauss was void, and passed no title to her husband, does not necessarily preclude him or those holding under him from demanding of the plaintiffs pay for improvements made by him, if they were made in good faith under the belief that he was the owner of the land in fee by virtue of such will. The statute says that “if any person, believing himself to be the owner, either in law or equity, under color of title, has peaceably improved, or shall peaceably improve, any land .which upon judicial investigation shall be decided to belong to another,” he may recover for the improvements, and have their value assessed in the same action in which the title to the lands is adjudicated. Sand. &. II. Dig., § 2590. The improvement must be made in good faith under color of title. Color of title has been defined to be a writing purporting to pass title, but which does not do so, either' for want of title in the person making it or from a defect in the conveyance itself — a title that is imperfect, but not so obviously so that it would be apparent to one not skilled in the law. Beverly v. Burke, 54 Am. Dec. 351; 1 Am. & Eng. Enc. Law, (2d Ed.), 846.
Now, though the defect in this will appears on its face, still its invalidity is not so obvious as must necessarily have been noticed by a person of ordinary information, not skilled in the law; and Strauss, while holding under it, was holding under color of title, within the meaning of the betterment statute. If he held and improved this real 'estate under the will, believing that by virtue thereof he was the owner in fee, and under such belief placed permanent and valuable improvements thereon, he or his devisees would! ordinarily be entitled to compensation for the same before they could be dispossessed by the owners thereof.
The fact that Abraham Strauss was the owner of a life estate-as tenant by curtesy in this land is not conclusive against his right, or the right of those holding under him to set up a claim for improvement. It is, no doubt, the general rule that improvements; made by a life tenant pass free of charge to the remainderman; for where one, knowing that he has only a life estate in land, puts improvements thereon, he must know that after his death the improvements, as well as the land, will pass to the owner of the remainder or reversionary interest. But where he is ignorant of the fact that his title is limited to a life estate, the ease may be different, under our statute. Under it the holder of a life estate may be entitled to compensation for' betterments when he in good faith claims the entire interest under color of title thereto, and makes the improvements under the belief that he is the owner in fee. Fee v. Cowdry, 45 Ark. 410.
We come now to the most difficult point in the ease, and the one on which the claim for improvements was rested. The circuit court 'held that the minor child of Hannah Strauss had a right of homestead in the land in controversy, which had been owned and occupied by her mother as a home, and that this right could not be defeated by a claim to compensation for improvements on the part of the defendants. We are of the opinion that this decision was right. For, conceding that counsel for appellant was correct in saying that the homestead of a married woman should after her death pass to and inure to the benefit of her children, and conceding also that Abraham Strauss, b3>’ virtue of his marriage to Hannah Strauss in 1866 and the birth of children by the marriage before the adoption of the constitution of 1874, became entitled to an estate of curtesy in the land, still Hannah Strauss died in 1883, after the. constitution of 1874 had been adopted. She and her husband lived upon the land at the time of her death. It was their home, and her children would have been entitled to a homestead therein but for the fact that their father had an estate for life as tenant by curtesy. The only obstacle in the way of their homestead rights was this life estate, and when he died, and the life estate terminated, they were entitled to it as the homestead of their mother. At the time this action was tried in the circuit court, all these children were of age except Josie Strauss, but, she being a minor, it follows from former decisions of this court that her action for the recovery of her homestead cannot be defeated by a claim for compensation for improvements on the part of defendant. McCloy v. Arnett, 47 Ark. 456.
It is true that these decisions do not go to the extent of holding that the claim to compensation for improvements can be entirely defeated in such case. They only hold that it cannot be asserted against the claimant of the homestead, so as to defeat his action for' the recovery of the homestead. For this reason counsel for appellants contend with much force that the value of the permanent improvements should have been assessed 'by the circuit court, and the enforcement of the judgment therefor suspended until the expiration of the minor’s homestead estate. But the difficulty in the way of sustaining this contention is that the statute has made no provision for this method of procedure. It directs that the court or jury trying the case shall assess the value of the improvements in the same action in which the title to the land is adjudicated. Now, as before stated, these improvements cannot be assessed against the minor’s homestead estate. If they can be allowed at all, it must be against the reversionary interest of those entitled to the land after the expiration of the homestead estate, but it would be next to impossible to determine what the value of the improvements would be after the homestead estate has expired. They might be destroyed by fire or tornado or damaged by the use of the homestead tenant, and no one could foretell what the condition of the improvement would be, or how much it would •add to the value of the reversionary estate. To attempt to do so ■several years before the termination of the homestead estate would be only guesswork, and was evidently never contemplated by the framers of this statute. As the statute requires the value of the improvement to be assessed in the same action in which the title for the land is adjudicated, and as, by reason of the fact that this is an action for a homestead, neither the improvements nor any part thereof can be assessed against the claimant thereof, so as to defeat his action, it is doubtful if defendant can in anyway recover for these improvements. It seems that further legislation is necessary to cover cases of this kind. Burkle v. Judge of Ingham County, 42 Mich. 513.
There are other questions discussed, but on due consideration of them we are of the opinion that on the whole case the judgment is right, and it is affirmed. | [
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Battle, J.
H. Hirschberg commenced this action against Nelson & Dunham in the Lee circuit court on the 5th day of February, 1900, alleging in his complaint that “the defendants were indebted to him in the sum of $1,195 for money paid and advanced by him to defendants in different amounts from June 5, 1899, to September, 1899, upon a contract for the sale and delivery of lumber by defendants to plaintiff; that the contract was never performed by defendants; and that defendants refused to repay said suni of money to plaintiff.”
The defendants answered, denying that they were indebted. They admitted the advancement of the money, but alleged that it was advanced on an agreement to buy of defendants, and take at an agreed price, about one million feet of lumber; that plaintiff, after having advanced that amount of money, refused to comply with his contract, and failed and refused to take the lumber, and failed and refused to inspect and receive such of it as had been cut and tendered to him. And for counterclaim they alleged that plaintiff had, on the 5th day of June, 1899, entered into a written agreement with defendants, the particulars of which they set out in full, and they made an exhibit of the contract as part of their cross complaint. They alleged that the plaintiff, Hirschberg, failed and refused in any manner to comply with his contract, and that by reason of such failure and refusal they had been damaged in the sum of $6,628.
The contract exhibited was as follows: “Memorandum of agreement made an'd entered into this 25th day of May, 1899, by and between D. L. Nelson and J. P. Dunham, of Bound Pond; St. Francis county, and state of Arkansas, party of the first part, and H. Hirschberg, of New York City, in the borough 'of Manhattan, and state of New York, party of the second part.
“Witnesseth: Said party of the first part has this day sold to the said party of the second part the following hardwood lumber, viz: 150 to 200 M feet of white oak, quarter sawed, to be composed of grades of firsts and good seconds, and to be sawed as per diagram hereto attached, and to be delivered as hereinafter mentioned; * * * 300 to 400 3VI feet of red oak, of the same grades and conditions as the white oak; * * * 100 to 200 M feet first and good second white calico, or gray ash, plain sawed, as per conditions hereinafter named; 4.00 to 500 M feet red gum, long run. All the herein or foregoing various kinds of lumber must be well manufactured, sawed full thickness, and well edged, the ends carefully trimmed, or sawed off to full even lengths. * * * And all lumber to be sawed into such thickness as the said party of the second part, or his agent, John Muhlfield, may from time to time direct. * * * The party of the second part and his agent, John Muhlfield, is to receive all lumber sawed as aforesaid every week or month, and cause payment to be made monthly for all lumber inspected and received. * * * In the event of a failure on the part of the party of the first part to fulfill this, or said agreement, then said first party is to refund all money so advanced, with interest at the rate of 8 per cent.”
We have omitted the provisions in the contract about prices, piling lumber, etc.
Plaintiff filed a reply to the counterclaim, and in it admitted the execution of the contract of June 5 exhibited by defendants, but alleged that prior to that date defendants had entered into a valid contract with one Deutsch for the sale of the same lumber, which contract with Deutsch was still pending, unperformed and unrescinded; that Deutsch had instituted a replevin suit for said lumber, which suit was still pending; that the defendants, by reason of the validity of the contract with Deutsch, were, and had at all times been, unable to perform their contract with plaintiff; that plaintiff refused to accept the lumber claimed by Deutsch, but had at all times been ready to accept all lumber to which defendants had clear title. For further answer he said that defendants, on the — day of October, 1899, executed a mortgage to one Rolfe on all the lumber then cut.
The issues were tried by a jury. In the trial D. L. Nelson, one of the defendants, testified in their behalf substantially as follows: He made the contract, exhibited, with one Muhlfield, the agent of plaintiff. After defendants had about 95,000 feet of oak lumber and about 100,000 feet of gum lumber sawed and on their yard, he endeavored to induce the plaintiff to inspect, receive and pay for it, and he failed and refused to do so, but he did advance to the defendants as much as $1,195 upon the contract. Defendants then offered to prove by this witness the damages they suffered by this failure and refusal of the plaintiff by showing the amount of profits they would have received if they had completed their contract and received the stipulated price; and the court refused to allow them to do so, holding that it was not the proper measure of damages, but that the measure was the difference between the contract and market prices at the place of delivery. Witness then testified that the defendants sold the lumber, and that it had a market value at their mill, which was the same as it was at St. Louis or Memphis, less the cost of getting it there. After this evidence was adduced, “counsel for defendants stated that they did not think it worth while to make further efforts to introduce testimony, for the reason that the ruling of the court upon the measure of damages upon the whole contract, and upon the question of damages by reason of depreciation of the logs and lumber, was adverse to defendants.
“Thereupon the court, without objection by defendants, instructed the jury to return a verdict for plaintiffs for $1,195, with interest, and they returned a verdict for $1,220.87.”
And the defendants appealed.
Was the circuit court correct as to the measure of damages?
The contract in question was for the sale of lumber, which had a market value at the stipulated time and place of delivery. After the refusal of appellee to receive and pay for it, the appellants held and disposed of it as their own property. The measure of damages in such cases (the vendors having complied with their part of the contract), as a general rule, is the difference between the contract price and the market price (the latter being less than the former) at the time and place of delivery stipulated in the contract. If the market was equal to or exceeded the contract .price, there would be no actual damages, and none could be recovered. Glasscock v. Rosengrant, 55 Ark. 376; Morris v. Cohn, 55 Ark. 401; 2 Mechem, Sales, § 1690, and cases cited; 2 Suth. Dam. (2d Ed.), § 647; 2 Sedg. Dam. (8th Ed.), § 753.
The case before us comes within the general rule.
Judgment affirmed. | [
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Battle, J.
John Williams was indicted for unlawfully, willfully, knowingW, and feloniously, resisting E. L. Taylor, an acting and duly commissioned constable, in the execution of criminal process, by threatening and actually drawing a gun upon him while he, in his official capacity, was attempting to serve a warrant for his (Williams’) arrest. He was tried by a jury and convicted.
The evidence adduced by the state tended to prove the following facts: E. L. Taylor was constable of Griggs township, in St. Francis- county, in this state. A justice of the peace of the same township issued and delivered to him a warrant for the arrest of the defendant'for disturbing the peace. He immediately proceeded to execute the warrant. When hé was near the defendant, he called him, and told him to stop, and that he had a warrant for his arrest. The defendant, knowing that he was a constable, turned his face •toward him, threw a gun, which he was carrying on his shoulder, down in-front of him, and said: “It will not do you.one d-bit of good to follow me.” This caused the constable to stop pursuit, to retrace his steps, and make no arrest.
The court, after telling' the jury what the allegations in the indictment were, instructed them as follows: “If you find the defendant guilty of the offense charged in the indictment, you will fix his punishment at confinement in the penitentiary for not less than one year nor more than five years. If you find the defendant not guilty, you will say so.”
The defendant moved for a new trial upon the following grounds: “(1) The verdict was contrary to the law; (2) the verdict was contrary to the evidence; (3) the court misinstructed the jury as to the law by failing to tell them that it was competent for them, if they saw proper, to find the defendant guilty only of a misdemeanor.”
The statute under which the defendant was indicted is as follows: “Every person who shall resist the execution of 'any civil or criminal process by threatening or by actually drawing a pistol or gun or other deadly weapon upon the sheriff or other officer authorized to execute such -process shall, upon conviction thereof, be imprisoned in the penitentiary for a term not less than one nor more than five years.”
We think that the evidence-was sufficient to convict. When the constable called the defendant, and told him to stop, and that he had a warrant for his arrest, the defendant threw his gun from his shoulder, and brought it in front of him, and said: “It will not do you one d-bit of good to follow me.” This was clearly a threat to use his gun in resistance of the officer if he followed for the purpose of arresting him. The officer so understood it, and made no arrest.
The instruction given to the jury was- more favorable to the defendant than he insists it should have been. Instead of saying to the jury that “it was competent for them, if they saw proper, to find the defendant guilty only of a misdemeanor,” the court instructed them, if they found that he was not guilty of the offense charged, to say so. The court virtually told the jury, if the defendant was not guilty in manner and form charged in the indictment, to acquit him. There was no error in it prejudicial to the defendant.
Judgment affirmed. | [
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Battle, J.
On the 27th day of February, 1859, James C. Hodges and W. B. Taylor and George E. White executed their writing obligatory to W. D. Reagan for the sum of $1,000, money loaned to James C. Hodges; the said W. B. Taylor and George E. White being sureties thereon. At the same time James C. Hodges, being the owner of block 20 in the city of Fayetteville, in this state, in consideration of the fact Taylor had become such surety on condition that he, Hodges, would secure him against all losses by mortgage, executed a deed, and thereby conveyed to Taylor said block 20 for the purpose of indemnifying and holding him harmless “against all claims, accounts, charges, suits, judgments and executions and demands whatsoever that might be brought or prosecuted against him on said writing obligatory or by reason of his becoming such security;” and in due form of law acknowledged the execution of the same. Alley Hodges, the wife of Hodges, also joined in the execution and acknowledgment of the deed, but not in conformity with the statute in such cases made and provided. Taylor caused the mortgage to be recorded on the 4th day of March, 1859, in the proper office and in the manner prescribed by law. Thereafter, in the year 1859, Hodges died, leaving Alley Hodges, his widow, and Robert Hodges, his only heir, him surviving; and thereafter Robert Hodges died, leaving Sarah Hodges, his widow, and James C. Hodges, Jr., Robert Hodges, William T. Hodges, and Maggie Poore, his only children and heirs, surviving. After this W. D. Reagan sued Taylor and White on the writing obligatory executed for the $1,000, recovered judgment against them for $2,784 and 10 per cent, per annum interest thereon from that date until paid. On the 2d day of June, 1888, in an action instituted by Taylor against the said Alley Hodges, Sarah Hodges, Maggie Poore, and her husband, James Poore, James C. Hodges, Jr., Robert Hodges and William T. Hodges, in the Washington circuit court, to which W. D. Reagan was made a plaintiff, the court found that said mortgage was invalid as to the said Alley Hodges on account of the defects in the execution and acknowledgment thereof by her, that there was' still due and unpaid on said judgment the sum of $3,709, that Reagan was entitled to be subrogated to the rights of Taylor, and that the amount due and unpaid was a lien on said block 20; and ordered that the same be sold to satisfy said lien, subject to the dower of Alley Hodges, and appointed a commissioner to make the sale and directed him to pay the $3,709 and interest thereon, out of the proceeds thereof, to Reagan. The commissioner, pursuant to the decree, sold the block, on tbe 25th of February, 1889, to W. D. Reagan for the sum of $2,000; reported his proceedings to the circuit court; and on the 22d day of May, 1890, the purchase money having been paid and the sale confirmed by the court, conveyed the block to Reagan. On the 1st day of August, 1890, W. D. Reagan conveyed the block to Hugh F. Reagan, and on the 30th day of the same month he conveyed the same to Lytton Reagan, a minor.
On the 7th day of August, 1894, Lytton Reagan, by his next friend, Hugh F. Reagan, instituted a suit in the Washington circuit court, against the said Alley Hodges, Sarah Hodges, James C. Hodges, Jr., Robert Hodges, and William T'. Hodges, and asked that dower be set apart to Alley Hodges in said block 20. On demurrer the suit was dismissed as to Sarah, W. T. and Robert Hodges. One hundred and sixty-two and a half feet square in the southeast corner of the block was set apart to Alley Hodges as dower; and a decree for the remainder of the block was rendered in favor of Lytton Reagan.
On the 26th day of April, 1899, Lytton Reagan, by his next friend, Hugh F. Reagan, filed three separate motions in the Washington circuit court; one against the said Alley Hodges, James C. Hodges, James Poore, Maggie Poore, Robert Hodges, Sarah Hodges, Thomas G. Tally, Maggie Tally, and others; one against the said Alley Hodges, James C. Hodges, James Poore, Maggie Poore, William T. Hodges, Sarah Hodges, and others; and the other against the said Alley Hodges, James C. Hodges, James Poore, Maggie Poore, and others. The relief asked for in each motion was a writ of possession for so much of block 20 as was not set apart to the widow as dower. The defendants filed responses. By consent of parties and order of the court all the motions were consolidated and made one.
In April, 1899, Lytton Reagan, by his next friend, Hugh F. Reagan, brought three actions of -ejectment in the Washington circuit court; one against the said William T. Hodges and Emma Hodges, his wife, in which he asked for the possession of one-fourth of said block in a square in the southwest corner thereof; one against the said James Poore and Maggie Poore, his wife, in which he asked for the possession of a small frame building in the northwest corner of said block; and the other against the said Robert Hodges and Elle Hodges, his wife, Thomas G. Tally, and Maggie Tally, his wife, in which he asked for the possession of a small frame building in the northeast corner of the same block. These three actions were consolidated. The defendants answered, and, among other things, pleaded seven years’ adverse possession in bar of the action.
The motion and the action of ejectment were heard upon the same evidence, the motion by the court and the action by a jury. In both cases the defendants recovered judgment. The issues in the action were first tried. The court followed the verdict of the jury. Plaintiff appealed in both cases.
The appellees had and have no title to the land in controversy, unless they acquired it by adverse possession. All that any of them ever had was acquired by inheritance from James C. Hodges, deceased, and that was swept away by the decree of foreclosure.
After appellant had proved the facts we have stated, and that he had acquired the legal title to the land in controversy, the said James Poore, one of the appellees, for the purpose of proving that they acquired title to the same by adverse possession, was allowed by the court to testify, over the objection of the appellant, that he had, before the decree of the foreclosure of the mortgage, built a house on the land in controversy and occupied it and a part of the land adversely. This testimony was incompetent, and should have been excluded. The decree of foreclosure divested the appellees of every right they had to the land at that time. They cannot go behind it to set up a title. Roth v. Merchants’ & Planters’ Bank, ante, p. 200. The testimony was prejudicial because it was calculated to lead the jury to believe that they could do so, and it is probable that it had that effect.
The same witness was allowed to testify, over the objections of the appellant, that his wife, one of the heirs of James C. Hodges, deceased, and one of the appellees, told him to build a house on the land, and that they had as good right to it as anybody, and that he acted under the advice of Parson Wainwright, a lawyer, in making improvements. This testimony was, of course, incompetent.
Appellant says that no holding of block 20 by the heirs of James C. Hodges, deceased, before the assignment of dower therein to his widow, was adverse to him (appellant). The truth of this statement depends upon circumstances. Her right to dower alone did not give her the right to possession and make any holding before it was set apart adverse only to her. The only land of her husband’s estate which she was entitled to hold before her dower was set apart was the mansion or chief dwelling house of her late husband, together with the farm thereto attached. “By the common law, the widow had the right to tarry in the mansion for forty days after the death of her husband, which is called her quarantine, but after the expiration of that time the heir could put her out of possession, and drive her to her suit for dower.” Carnall v. Wilson, 21 Ark. 62, 65. But under the statutes of this state she is entitled to the possession of the mansion or chief dwelling house of her late husband and the farm attached until her dower is assigned. It may be that the widow in this case was entitled to hold the whole of the block on which the mansion was situated until dower was assigned to her, because the improvements thereon, such as outhouses, gardens, fields, horse lots and pastures, and perhaps other things, made it useful or necessary to the enjoyment of the mansion, and that no possession could have set the statute of limitation in motion against the appellant until after her dower was assigned. To allow her this right would be promotive of the object of the statute, which was to afford her shelter and support until her dower was assigned. But this question is not before us for decision.
For the prejudicial error indicated, the judgments in both cases are reversed, and the causes are remanded for new trials. | [
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Wood, J.,
(after stating the facts.) The court erred in telling the jury “that defendant, Neal, was not entitled to the credit claimed by him on his account with Brandon & Baugh for the value of the mules and corn furnished by him to Tom Hall to make a crop.” The uncontradicted proof shows that two mules valued at $115, and corn valued at $44, were furnished Hall to make the crop. The proof shows also that appellees knew that appellant had furnished his tenant the mules. The circumstances were such as to put them on inquiry as to any supplies furnished. They received the crop of Hall, upon which appellant had a lien for these supplies superior to the lien of their mortgage on Hall. They were therefore liable to appellant out of the proceeds of Hall’s crop for the value of the mules and corn. Sand. & H. Dig., § 4795.
Appellant was entitled to have the amount credited on his account with appellees, whether he was liable for Hall’s account or not. If appellant was liable for Hall’s account, and the account of appellant (including Hall’s) remained unpaid, after giving him the benefit of a credit for the amount of these supplies, he would not be prejudiced by the instruction.
But appellant contends, and there was evidence tending to support his contention, that he was not liable for the account of his tenant Hall. The instruction was' erroneous, because it took this matter away from the jury. Until the contrary is shown, it must be presumed to have been prejudicial.
Since the cause must be remanded for new trial, we will pass upon the propositions embodied in appellant’s request. Concerning the relation existing between appellant and Tom Hall, appellant testified: “I made a contract with Tom Hall to cultivate some of my land in Lee county for the year 1898. I agreed to furnish him with the land, two mules, and eighty-eight bushels of corn, and he agreed to perform the labor, supply himself with everything else that was necessary, and give me one-fourth of the cotton and one-third of the corn for the rent of the land, and pay for the corn and mules to come out of Ms part of the crop after paying the rent.” The other party to the contract, Hall, testified substantially the same. It is somewhat difficult under this evidence to determine whether the relation of the parties was that of landlord and tenant or that of owner-employer and cropper-employee. It could not be both, as' the propositions in appellant’s request seem to assume. Our opinion is that it was a contract for the cultivation of land on shares, where the occupier was to have the exclusive possession of the land for the year 1898, and that he was to pay or deliver to the owner certain portions of the crop as rent, which created the relation of landlord and tenant. Tinsley v. Craige, 54 Ark. 346, 15 S. W. 897; Deaver v. Rice, 34 Am. Dec. 388, and other cases cited in note to Putnam v. Wise, 37 Am. Dec. 309, 314, under title, Cases Holding Occupier to be Tenant,” etc.
The title to the crops as between appellant and his tenant is not involved here.
The proof as to the relation between appellant and Hall is uneontroverted. If upon a retrial it remains the same, the court should hold to the view that the relation was that of landlord and tenant. The act of April 6, 1885 (Sand. & H. Dig., § 4795), applies to landlords strictly as such, and also to landlords as em- plovers. The act of March 21, 1883 (Sand. & II. Dig., § 4793), has no application to the relation of landlord and tenant, but only to that of employer and employee.
The fourth proposition should have been given. There was evidence tending to show that the goods furnished Hall by appellees were not furnished on the credit of Neal, as an original undertaking, but that they were furnished Hall on his own credit, Neal simply being security for his account. For the error indicated, reverse the judgment, and remand for new trial.
Bunn, C. J., dissents in some particulars. | [
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Riddick, J.
This is an appeal from a judgment of the chancery court of Chicot county which was rendered by a special chancellor. The record shows that the special chancellor before whom the case ivas tried was elected on 16th of Juno, 1896, and that the decree settling the rights of the parties, and which we are asked to review, was rendered at the subsequent term of the court, the date of the decree being 20th day of November, 1896. The powers of the special chancellor ended with the term at which he was elected, and, as the record does not show that he was elected during the term at which the decree was rendered, the appeal must be dismissed. Wall v. Looney, 52 Ark. 113; Const. 1814, art. 7, § 21; Act of April 14, 1891, p. 267, § 7.
It is so ordered.
Wood, J., absent. | [
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Hughes, J.,
(after stating the facts.) The notes which the trust deed was given to secure were executed by Swanigan, the mortgagor, by making his mark, which was not witnessed as required by law, wherefore the appellants contend that the evidence of their execution is not sufficient. But the deed of trust contained a full description of the notes, and it was duly acknowledged and filed for record. This was sufficient proof of the execution of the notes. Was the deed of trust barred?
When it was executed the law was that, to bar a proceeding to foreclose a mortgage, there must hare been an adverse holding for such a period as would bar an action of ejectment, which was seven years. The fact that the statute bar had attached to the debt secured by the mortgage would not affect a proceeding to foreclose. Birnie v. Main, 29 Ark. 591. The act of March 31, 1887, provides that when a debt secured by a mortgage is barred, an action to foreclose the mortgage shall be also barred. But this act was only prospective in its operation, and did not apply to mortgages existing at the time of its passage. Duke v. State, 56 Ark. 485. “No mortgage to which it applies would be barred in a shorter time after its passage than the period of limitation prescribed for the debt secured, unless barred sooner by adverse possession,” Id. The second section of the act of March 25, 1889, provides “that in all cases in existing mortgages where the debt or liability would be, barred by the terms of this act, or where the debt or liability exists would be barred in less than one year from the date of this act, the party in whose favor said debt or liability exists shall be allowed one year from the date of this act to bring an action to enforce the same.” This suit was instituted September 15, 1889, within less than one year from the elate of the passage of the act, which was March 25, 1889. The mortgage existed when the act of 1889 was passed, on the 31st of March, 1887. It was not barred then, and would not have been until five years thereafter, and in 1889 the act above quoted allowed one year after its passage within which to bring the action to foreclose. Therefore, as the suit was brought within the year after the passage of the act of 1889, it was in time, and was not barred.
The answer to the claim of adverse possession for seven years is that the appellant, Mrs. Goodman, made payments on the debts secured by the mortgage in 1882, 1883, 1884 and 1885. Though these payments by Mrs. Goodman might not have the effect to prevent the running of the statute, yet they were an acknowledgment, in effect, of holding under the mortgage, and that there was no intention to claim adverse possession. They continued to within four years of the bringing of the suit to foreclose.
To constitute adverse holding against a mortgagee by the mortgagor, there must be open and notorious denial of the mortgagee’s title. Birnie v. Main, 29 Ark. 591.
This holds not only as to the mortgagor, but as to privies and grantees with notice. Whittington v. Flint, 43 Ark. 504; Ringo v. Woodruff, 43 Ark. 469. The suit was not barred.
The decree is affirmed, with directions to proceed to foreclose the mortgage. | [
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Hughes, J.,
(after stating the facts.) The court is of the opinion that the court was in error in interfering with the cross-examination of the prosecuting witness, and in saying, m the course of her examination before the jury, that she had not said she was unconscious, when the record shows plainly that she had said she was unconscious. The court, even though he might have been mistaken as to what the witness had said in this behalf, should not have thus interfered in the cross-examination, and stated positively that she had not said she was unconscious. This was a question of fact, which the jury should have settled. The action of the court was prejudicial error, for which the judgment must be reversed.
We think, also, that the question to the prosecuting witness, “Were you ever at the levee camp at all?” and the question, “Did you ever go over to the levee camp, and sit around there with the negroes?” were proper, and should have been allowed. If she had answered in the affirmative, the answer would have had some tendency to affect her reputation for truth and morality, and thus her credibility. The cross-examination is a means of sifting the testimony of a witness, and is especially important to a defendant in a case of this kind. It should not be interfered with or denied, unless in a clear case of abuse of the right.
“The court shall exercise a reasonable control over the mode of interrogation, so as to make it rapid, distinct, as little annoying to the witness, and as effective for the extraction of the truth as may be, but, subject to this control, the parties may put such legal and pertinent questions as they may see fit. The court, however, may stop the production of further evidence on a particular point when the evidence on it is already so full as to preclude reasonable doubt.” Section 2955, Sand. & H. Dig.; L. R. Junction Ry v. Woodruff, 49 Ark. 381.
“Limiting the time for the examination of witnesses, the number of witnesses to a given point, stopping repetitions and irrelevant examinations, are matters necessarily confided to a trial judge. Business could not well be dispatched without it. Thompson, Trials, §§ 352, 353. It is only when the complaining party shows that this discretion has been abused that we interfere.” Jones v. Glidewell, 53 Ark. 178. We think the discretion of the court did not extend so far as the court went in this case.
Reversed and remanded for a new trial. | [
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Wood, J.
Bowen brought replevin in a justice’s court against Cathey for two bales of cotton, and recovered judgment. Cathey asked and was granted a new trial, but before the trial day came on he asked to withdraw his application for a new trial, which he was allowed to do, and then appealed to the circuit court. In the circuit court Bowen again recovered judgment, and Cathey appeals to this court. As grounds for reversal it is claimed: (1) That the verdict of the jury was contrary to the evidence; (2) that the court erred in its charge to the jury; (3) that the circuit court had no jurisdiction; (4) that the judgment was not in the alternative.
We will consider these propositions in the above order.
First. Bowen alleged in his complaint “that he had a mortgage on the cotton,” and “was entitled to the immediate possession of it.” Appellant did not defend on the theory that there was no debt, or that the debt had been paid, but on the ground that if appellee had any lien under a mortgage, it was junior to the lien of the attachment under which appellant held possession of the property, and that the matter involved in this suit was res judicata, and that appellee was estopped. There was no pretense that, if there was a mortgage, the same had been satisfied and cancelled. The mortgage was introduced in evidence. The consideration named was $30. Bowen testified: “I have a mortgage on the cotton in controversy given by Hiram Cheese and Amanda Cheese.” If the debt had been paid, that would, ipso facto, have extinguished the mortgage. When a mortgage debt is paid, the lien of the mortgage is gone. Whether satisfaction has been entered upon the mortgage itself or upon the record or not, the mortgage itself is dead.
While the appellee’s testimony is couched in somewhat general terms, yet we think it sufficient to support the verdict of the jury that the appellee had a mortgage lien on the cotton.
The court, instructed the jury that: “If you find that she and her husband [Amanda and Hiram Cheese] gave to the plaintiff a mortgage thereon, which he now holds unsatisfied, then you will find for the plaintiff.” There was no objection to this, and there was sufficient legal evidence to warrant it.
Second. We cannot consider objections to instructions made here ior the first time. There were no exceptions to the trial court’s charge.
Third. The circuit court had jurisdiction. On December 29, 1897, Bowen recovered judgment in the justice’s court. On January 6, 1898, Cathey asked a new trial, and it was granted, and the case set for January 15. On the 15th the case was continued until February 2. On January 21 Cathey asked to withdraw his application for a new trial, and prayed an appeal to the circuit court, which was granted. When the application for a new trial was abandoned, it left the judgment of December 29 in full force. This must be taken as the result of the rulings on the appellant’s “fast and loose” proceedings before the magistrate. The justice might well have refused to have accommodated him in all of his unstable ways. But appellant should not be heard to complain of irregularities which he invited, since they do not affect the justice’s jurisdiction. The justice granted the new hearing, it appears, but it is not shown that his judgment was ever set aside. Taking the whole record together, it should be construed as nothing more than the filing of a motion for new trial, which was afterwards withdrawn by the party making it, leaving the judgment as entered by the justice to stand, and from which, within- the time allowed by law (30 days), an appeal was duly prayed for,, granted, and prosecuted to the circuit court.
Fourth. The verdict was as follows: “We, the jury, find for the plaintiff, and value of cotton $44.” The judgment was as follows : “It is therefore considered, ordered and adjudged that plaintiff have and recover of the defendant and his sureties on said appeal bond the sum of $44 and all costs herein expended.” A reversal of this judgment is asked because it is not in the alternative. The statute says: “In an action to recover the possession of personal property, judgment for the plaintiff may be for the delivery of the property) or for the value thereof in ease a delivery cannot be had.” The return on the order of delivery shows that appellant refused to deliver the two bales of cotton, and refused to give cross bond. Cathey answered that he as constable held the •cotton claimed by Bowen under an order of attachment in the case of Flynn v. Cheese, lately pending before W. G. Graham, J. P.; that the cotton claimed by Bowen was the same that was held by him under the attachment.' It further appears that Cathey was ordered by Graham, the justice, on November 25, to sell the cotton held by him and pay the proceeds over to Flynn. And that on November 20, 1897, he returned the execution partly satisfied. In Swantz v. Pillow, 50 Ark. 300, this court, speaking through Judge Cockrill, said: “In replevin the delivery of the property is the primary object of the action. The value is to be recovered in lieu of it, as an alternative, only in case a delivery cannot be had of the specific property. .Whatever purpose beneficial to the defendant the judgment in the alternative may serve, it is not put in that form to give one who Iras been adjudged in the wrong his election to pay the assessed value and retain the property as his own against the will of the party to whom the judgment of the court has awarded it.” While it is better to follow the form prescribed by the statuto in entering judgments in replevin, yet, where the record shows conclusively, as it does here, that a judgment for delivery could not have been executed, the error or irregularity could not have been prejudicial to appellant. It was not an error for which the judgment should be reversed.
Affirm. | [
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Wood, J.,
(after stating the facts.) 1. The first contention is that the land is not sufficiently described in the complaint to make it the basis of any judgment. While the complaint, in literary arrangement, punctuation, etc., is certainly inartistic and clumsy, we think it sufficiently shows that plaintiff is seeking the possession of a certain strip or parcel of land 60 feet wide, running north and south through certain lots (which are described), “which parcel or strip has been used for a levee.” The words “which have been used for a levee,” we think, give sufficient definiteness to the description to enable one, by the aid of extraneous evidence, to readily locate the land. Lane v. Queen City Milling Company, ante, p. 355.
It should not be an impossible, or even difficult, matter by observation to designate a strip of land 60 feet wide running north and south through certain lots named and described, and which had been used for a levee. We apprehend that an artificial landmark like a levee along the Mississippi river would be easy to locate, especially if it had been used as a levee for more than a third of a century, as the outside proof indicates. The complaint stated a cause of action.
2. In an instruction given by the court on its own motion the jury are told that “it is admitted that a number of years ago there was a levee system organized in the state for the purpose of building public levees, and that levees were built, and that this levee was built under that law, and that whatever right, interest, or title the state had in this and other levees in this section of the state vested in the plaintiffs in this suit.” Counsel for appellant complain of this because they say “all the evidence is in the bill of exceptions, and there is nothing in it to indicate that the state ever owned or built the levee, or that such an admission was made.”
It is true there is no such admission in the bill of exceptions stated as a matter of evidence. But the statement of the answer, set out supra, and requests for instructions numbered 2 and 7, made by appellant and refused by the court, show that appellant made such admissions. In appellant’s request for instruction numbered 2 we find the following: “'Plaintiffs claim as the successors of the state of Arkansas, which built the levee in controversy, through its board of commissioners, sometime before the war between the states, and base their claim of title upon the fact that the state of Arkansas, at the time of building said levee, took possession of the land,” etc. And in the seventh request refused we find the following: “If the jury find from the evidence that for a long period, say thirty-five years, prior and up to the creation of plaintiff in 1893, the state, her agents, or successors, did nothing toward repairing and keeping up the levees built by her,” etc. All this appears in the record, and shows plainly there was no issue in the court below as to the state having built the levee. Moreover, the testimony of Bowen that Bard built the levee in 1852 or 1853, under contract with, and under the direction of, the county commissioner, and that he was paid for the work by swamp land scrip, shows conclusively that Bard did not build the levee for himself, bu.t for the state, and that it was built under the law of 1851. Acts 1850, pp. 77, 87, providing for such construction. The appellant having thus conceded that the levee was built by the state originally, the statement by the court that he also admitted “that whatever right, interest or title the state had in this and other levees in this section of the state vested in the plaintiffs” could not have prejudiced appellant, for it was but a statement of the law, whether he admitted it or not. Acts of 1893, p. 172.
3. Appellant also complains because the court on its own motion told the jury that if they found that the “levee was built by authority of the state,” and was built by permission of the owner of the land, and “the state kept control of it for a period of seven years or more, then that would be what the law calls a right of way acquired by adverse possession, and that would complete the right of the levee.”
As we have already shown, there was no issue in the court below as to the levee being built by the state. The record clearly shows that the defendant was not questioning the authority of the state to build the levee. The record further shows that appel lant conceded that Bard was the owner of the land. Appellant in his answer deraigned title through Bard. The proof showed conclusively that Bard built the levee under contract with the county commissioner, and was paid for same in swamp land warrants, which showed that the levee was built by his permission. It was unnecessary, confusing, and therefore improper to submit these undisputed matters to the jury. It was erroneous, too, to declare that, if the state obtained possession of the land, and built the levee by permission of the owner, and kept control of the same for seven years, this would give the state title to the right of way by adverse possession. Possession by permission with no adverse or hostile act would not start the statute of limitation. Harris v. King, 16 Ark. 122; Coleman v. Hill, 44 Ark. 452.
But, upon the concession made by defendant and the uncontroverted proof, we fail to see how there could have been any other finding than that the state acquired the right of way for a levee from the original owner. Therefore, the above instruction could not have prejudiced appellant.
The state built the levee, and paid Bard, the owner of the land, for building it. It expended its money, and acquired possession of the land from the owner for levee purposes. Neither Bard nor anyone under him is complaining. Under such circumstances a dedication to the state should be taken as conclusively established. The conclusion that Bard intended to donate the land to the state for levee purposes is fully warranted.
Then the only question remaining is whether or not the state had abandoned her right to the land in controversy before the passage of the act of March 29, 1893, conveying all her right or interest to the plaintiff (appellee). This question was presented to the jury in instructions numerous and voluminous. We find no reversible error in any of them, and the verdict of the jury on this point was amply sustained by the evidence. In truth, it could not have been otherwise. No statute of limitation could be pleaded against the state, and no affirmative act of abandonment by the state was shown. On the contrary, it was in proof that the public, ever since the levees were constructed, had in times of high water taken possession of the levee land, and repaired and strengthened the levees; that those who had occupied the lands had done so in subordination to this right of the public. This was undisputed.
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Bunn, C. J.
On the 31st day of December, 1901, G. B. Fakes et al. filed their petition under the statute, in the Woodruff county court, containing 609 names, praying an order prohibiting the sale or giving away of intoxicating liquors within three miles of the Methodist church situated in block 10 in the town of McCrory.
On January 1, 1902, it being an adjourned day of the October term, 1901, of said court, W. E. Wilder, S. B. Kyle and H. J. Oariker filed their application for license to keep a dramshop and sell liquor therein in the town of McCrory for the ensuing year, and at the same time filed their protest against the order asked by Fakes et al., prohibiting the sale of liquors in said territory. At the same time remonstrants filed a petition containing 171 names, asking that their names be taken from the prohibition petition, assigning as a reason for the change “that we signed a petition recently circulated in said territory, and now filed in the Woodruff county court, asking an order prohibiting the sale of intoxicating liquor in said territory. Petitioners state that such signatures were made or authorized without due consideration, and under a misapprehension of the facts and results, and that they do not now ask such an order. Therefore petitioners pray that their names be not considered on said petition, and that the court strike the undersigned names therefrom.”
This is hardly a satisfactory reason for permission to withdraw names from a petition of the kind, nor is it clear that it is within the meaning of the ruling of this court in McCullough v. Blackwell, 51 Ark. 159, which makes it necessary to give good reasons for such a change after a petition has been filed and become a part of the record of the proceeding of the county court.
But, granting, for the sake of argument, that the reason is sufficient, then the decision of the case becomes more or less a mere matter of mathematical calculation. It is shown that there were 868 adult inhabitants in the territory, and, in order that the prohibition order should be made, there should have been 435 bona -fide petitioners" names signed thereto. It is shown in evidence that 39 of the names of petitioners for prohibition were not adult residents of the territory; and, these being deducted from the 609 names appearing upon the petition, there remain 570 names on the same who were qualified to sign the same. Of these those who signed by making their marks had their signatures thus made duly attested, as appears on the petition and in evidence. Of the 570 names on the prohibition petition remonstrants (the appellees here) contend that 171 persons represented by these names had asked the county .court to erase their names from said petition for reasons stated above. This was accordingly done, and this reduced the number of petitioners below the requisite number, and so the county court decided against the prohibition petitioners, and the circuit court on appeal affirmed the decision of the county court.
Tbe petition of remonstrants wlio desired the withdrawal of their names from the prohibition petition shows that 49 of their signatures were made by mark, and does not show that the signatures thus made in any instance were attested by the person writing the names or by anyone else. Under the rule laid down by this court in Watson v. Billings, 38 Ark. 278, and also in Ex parte Miller, 49 Ark. 18, these signatures were not evidence of a signing of the names by the persons represented by them, and made not even a prima facie case of genuineness. The 49 names, therefore, should be taken from the 171 names of those recanting, and this leaves 122, which taken from 570 leaves 448, which is 13 more than the requisite majority.
The judgment of the circuit court is therefore reversed, and the cause is remanded, with directions to make all orders necessary in conformity to this opinion, and not otherwise. | [
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Bunn, C. J.
In response to an order of the Hot Spring circuit court, B. C. Fitzhugh, ex-sheriff of said county, showed that on December 4, 1893, the property involved was released from the attachment by him to J. M. Grubs, intervener in the suit, on said intervener’s making the proper affidavit and giving bond, and he made said bond an exhibit and part of said response. To this response the plaintiff demurred, and the case was tried on its merits by the circuit judge sitting as a jury, along with the demurrer, and judgment was given against the sheriff on the insufficiency of his response, and he appealed to this court.
The bond exhibited with the response, which whs the testimony in behalf of the sheriff, does not show a compliance with the law on the part of the sheriff. In such cases the statute provides that the person — not a party to the writ of attachment — must make oath to the property, and the same will be delivered to him on his giving bond in favor of the plaintiff, with security to be approved by the sheriff, in a sum double the value of the property attached, which value shall be ascertained by the oaths of two citizens of the county wherein the writ is levied, to be chosen by the sheriff. Section 406, Sand. & H. Dig. Section 407, ib., provides, that “such bond shall be conditioned that the said claimant will inter-plead at the term of the court to which said writ shall be returnable; that he will prosecute such interpleader to judgment without delay, and if, on the trial of such interpleader, the said property shall be found to be the property of the defendant in the writ, and the plaintiff shall recover judgment against said defendant, the property shall be delivered to said sheriff, or his successor in office, whenever demanded by such sheriff, after execution upon such judgment comes to his hands to be levied thereon. In case the property so levied upon shall not be demanded as aforesaid, said bond shall have the force and effect of a judgment for the amount of the appraised value of such property and the costs of.the interplea,” etc. The respondent does not show that he took the bond from the intervener required by statute, and, as orders of attachment are given the same force and effect as executions levied or to be levied, and are rated in the same way for all practical purposes as far as may be, the order of the court to sell attached property is a sufficient foundation to hold the sheriff for noncompliance with the statute in the matter of disposition of the property in the first instance.
Section 372 of Sand. & H. Dig., or the “intervening statute,” as it is sometimes called, does not properly apply to a ease like this, for it does not ■ authorize the release of the property; and section 343 applies only to persons in possession of the attached property.
In taking the bond from the intervener the sheriff failed to take such bond as is provided for by statute, and, that being so, he had no right to release the property. The statute (secs. 406, 407, Sand. & II. Dig.) contemplates that the bond be given to and acted upon by the sheriff, not the court, and this appears to have been the procedure in this case. ■ The court made no order as to the delivery of the property, if, indeed, it Could have done so. The bond was apparently given to the sheriff, as it would have been under the interpleader statute. But it was defective in form. It did not have the force and effect of judgment.. It did not obligate the intervener to return the property to the sheriff or his successor in office. No valuation of the property seems to have been made, and for other defects it was insufficient under the statute.
It appears that said interpleader was never tried on its merits, but was dismissed, and no appeal appears .to have been taken from said order of dismissal. It further appearing that final judgment was rendered in favor of the plaintiff, the judgment of the circuit court in the matter of the response of the sheriff to the order thereof must be affirmed, and it is so ordered. | [
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Battle, J.
The state of Arkansas, for the use of school districts Nos. '9 and 16 of the county of St. Francis, instituted an action against John B. Wilson and others to recover a sum of money for which Wilson was indebted to them. Norton & Prewett, a firm of lawyers, were employed to prosecute the action. They did so, and recovered a judgment and collected it. The money collected was paid to John W. Aven, the treasurer of St. Francis county, less the amount retained by-Norton-& Prewett for services •rendered. Aven, as county treasurer, thereafter filed his settlement in the St. Francis county court, and charged himself only with the amount he actually received. His settlement was approved by the county court. The action before us was brought by the state of Arkansas, for the use of said school districts Nos. 9 and 16, against John W. Aven and the sureties on his official bond in the St. Francis chancery court, to set aside said settlement for fraud and recover a judgment against him and his sureties for the amount retained by Norton & Prewett as a fee for their services. A decree dismissing the complaint was rendered in favor of the defendants, and the plaintiff appealed.
The school districts were authorized to employ attorneys or ratify the employment of them in their behalf. We have failed to find any statute making it the duty of any officer to prosecute an action in the circuit and ehancerj’- courts, or any inferior court, in their behalf. But the statutes do authorize them to contract and to sue. As a necessary incident to this power, they have the right to employ attorneys to institute and prosecute actions in their behalf; and such attorneys are, of course, entitled to a reasonable compensation for their services.
In the action before us Norton & Prewett were not made parties, and the record fails to show what their services were reasonably worth, and thereby fails to sustain the attack upon the settlement of Aven for fraud, and to show that appellants were entitled to judgment for any amount against appellees; the burden of proving the charge of fraud being upon the appellants.
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Battle, J.
On the 5th of October, 1896, Westfall Commission Company commenced an action against Earl Brothers, before a justice of the peace, upon the following claim:
“Earl Brothers bought of Westfall Commission Company ear cabbage. Ordered ventilated ear, no ice. Received in ice car, rotten condition, damaged. Ordered Holland, received Elat Dutch, 10 ton.
Difference in variety, $2.00 a ton......................$20.00
Ordered without ice, came iced, charges................. 21.75
$83.00
Credit by rebate................................. 15.00
Balance ...................................$68.00”
And it recovered judgment, and the defendants appealed to the circuit court.
The undisputed facts, as shown by the evidence adduced in the trial had in the circuit court, in the language of appellant’s brief, are as follows:
“The Westfall' Commission Company, through Blakemore, a broker, ordered a car load of cabbage from appellants as per following telegram: ‘Ship Westfall ten tons Holland seed cabbage, well trimmed, ventilated fruit car; not iced.’ Upon the arrival of the cabbage at Fort Smith, September 29th, Westfall, of the firm of Westfall Commission Company, went into the car, examined the cabbage, and ascertained the kind and condition of same, and that the cabbages were heated and partly rotted, and that all were not Holland seed, but part Holland and another variety. He at once wrote appellants that cabbage had just arrived; that, instead of it being fresh Holland cabbage, found the back ends in both compartments loaded with good fresh goods, and at the doors of both compartments found that the cabbage was ‘old stock and not Holland,’ and further complained that the cabbage was not shipped in ventilated fruit ear without ice as ordered. He then (and it seems after writing this letter, as he makes no allusion to having wired) telegraphed Earl Brothers as follows: ‘Cabbage just arrived, heated and rotted. Can’t pay draft unless protected, wire instructions.’ Thereupon Earl Brothers wired Blakemore, the broker: '‘Examine Westfall car cabbage. They wired heated and rotted. Eeport quick.’ On the receipt of this telegram, which Blakemore ■showed Westfall, they went together to examine the cabbage (this being Westfall’s second examination), opened the car, went in, and examined same as fully as thejr desired. At this time West-fall called the attention of Blakemore to the fact that it was a car ■of mixed cabbage, and badly heated and rotted. Westfall examined same as thoroughly as he wished, and.admits that he had the opportunity and privilege of examining same all day, had he desired to clo so, before accepting same. He then proposed to take the cabbage if deduction of $25 was made, and had Blakemore wire, ‘Cabbage arrived in very bad condition; not ventilated car as ordered. Westfall will accept $25 rebate/ In answer to this Earl Brothers wired: ‘This your order: bank deduct $15 Westfall draft. Answer/ This order was reported to and accepted by Westfall, who saw all the telegrams, and the trade was then closed, whereupon Blake-more wired Earl Brothers: ‘Westfall accepts reduction. Will write fully by mail/ Westfall then paid draft, accepted the car of cabbages, and removed them to his place of business and sold them out in the ordinary course of trade. All this occurred on September 29th, and on the next day Westfall wrote appellants, as follows: ‘Your broker ordered for me a car of Holland seed cabbage. At the same time I could have, bought at 50 cents a ton less, but I knew you meant to do right, and would see I got a square deal, so preferred to deal with you. Well, the car arrived yesterday. There is not one thousand pounds Holland seed in the car, and the balance is large Drum Head, and so badly rotted that we leave over onefourtli in the ear. I called for a rebate, and got $15. I paid draft less $15, and thought I could get out, but since I got into the car I feel sure I will never get freight out of the whole car. If you can spare the time, please look at the wire ordering the car. It reads, ‘Ship in ventilated fruit car, no ice/ Instead it came in an old-fashioned center-iced refrigerator, right against instructions. I know your business is so great you cannot attend to details; but, if you will trace this matter up for a friend and brother, you will find wherein I have been wronged and made a victim of misplaced confidence. Fifty or sixty dollars is not much to you, scarcely worth your time in reading this; but it is big money to me at present, after my potato disaster last season. I should have refused the car flatly, but thought I might work out even, and protect a friend; but my intentions got me left. We received wire stating, was shipped the 24th. The bill reads 26th, showing.it stayed on track two days before being moved, making it six dajrs in the sweat box. If you think me worthy of reply, I should be pleased to hear from you/ The shipment was made with bill of lading attached, being consigned to shipper’s order.
“Plaintiff Westfall further claimed that he could not have ascertained the true condition of the cabbage without unloading, but admitted that he went to the center of the car, and could have thrown back as much of the cabbage, and could have gone as deep into the car, as he wished, and that there was nothing to prevent him from examining them all day if he wished. He also testified, over objections of defendants, that he told Blakemore ‘that if the car run all through as that indicated on top, $15 or $25 would cover it.’
“The testimony in regard to icing the car is as follows: ‘West-fall admitted that he could have ascertained, when he first examined the car, if it was iced, and could have found out all about it. Blakemore also testified that it was a car which used ice, and that plaintiff could easily have told if it was iced when he first examined it. But plaintiff admits that he did know the ear was iced before he unloaded it, and before he paid the freight and charges for icing to the railroad company. The charge for freight and icing were charges made by the railroad company; were not paid to appellants, who knew nothing of it, and were in no way connected with it.
“The testimony on behalf of the appellants in regard to icing the car, and which is not contradicted, was: That, if the car was iced, it was done by the railroad company, without their orders. William Jaeger, who loaded the car, testified it was loaded without ice, and no instructions given to ice it. If the railroad company iced the car, it was without the knowledge or authority of Earl Brothers. Charles J. Pettybone, who superintended the loading and shipping of the car, testified that there was no ice in the car when it left South Evanston, where loaded, and from which shipment was made, and further testified that he gave instructions to have car forwarded without ice, and, if it was iced, it was done without instructions from or authority of Earl Brothers, or anyone connected with them. None of this testimony is disputed or contradicted.”
The plaintiff recovered a judgment for $36.75; and the defendants appealed.
Was .plaintiff entitled to recover any sum?
When Westfall Commission Company refused to accept the car load of cabbages upon their arrival at Port Smith, the cabbages were in the condition they would have been had they never been sold, and were subject to resale. Westfall Commission Company repurchased them, agreeing to pay therefor fifteen dollars less than it first stipulated to pay. Earl Brothers made no warranty. Westfall Commission Company, upon its examination and judg ment, purchased. There was no fraud in the last sale. It purchased at its own risk, and must suffer the consequences, without recourse on account of the quality and damaged condition of the cabbages. Barnard v. Kellogg, 10 Wall. 383; James v. Bocage, 45 Ark. 284; 2 Mechem on Sales, §§ 1311, 1312, and cases cited.
As to the item of the account for icing, Earl Brothers were not liable. The evidence showed that when the car was loaded with the cabbages it was not iced; that when it left the place of shipment it was not iced; that instructions were given for it not to be iced, and, if iced, it was done by the railroad company in transit, without the knowledge or authority of Earl Brothers. The Commission Compaq knew that it was ordered to be shipped without ice, and paid the railroad company’s charges for the same when no one was in duty bound to do so, and are not entitled to reimbursement on that account.
The judgment of the circuit court is therefore reversed; and, it appearing that appellee has collected, on the judgment recovered against the appellant in the justice’s court, out of the funds paid by the garnishees in this action in court, the sum of $68, judgment is rendered here in favor of the appellants against the appellee for the sum of $68 and 6 per cent, per annum interest thereon from the 18th of January, 1897, the date of payment.
Biudick, J., absent. | [
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Battle, J.
This was an action of unlawful detainer. The issues in the case were, by consent of the parties, tried by the court; trial by jury being waived. The court filed its conclusions of fact and of law, separately, in writing. There were no exceptions to the conclusions of law. The defendant recovered judgment; and the plaintiff filed a motion for a new trial, and for cause stated: “(1) That the findings of the court and judgment are contrary to the law; (2) that the findings of the court and judgment are contrary to the evidence; (3) that the findings of the court and judgment are contrary to the law and evidence.” The motion was overruled, and the plaintiff appealed.
“The objection that the court’s finding of facts is not sustained by evidence may be made by motion for new trial, no exceptions at the time the finding is made being necessary.” White v. Beal & Fletcher Grocer Company, 65 Ark. 278, 285. In this case the appellant concedes that “the findings of the facts by the court, so-far as they go, are correct.” The rule as to the court’s conclusions of law is different. In the language of the court in Dunnington v. Frick Company, 60 Ark. 250, 258, “As there was no exception to the court’s conclusions of law, * * * they cannot be reviewed here.”
There being nothing before us for review, the judgment of the circuit court is affirmed. | [
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Hughes, J.
The evidence in this case shows that on the 29th of November, 1898, the Choctaw & Memphis Eailroad Company made a contract with the Choctaw Construction Company for the construction of its road from Little Eock, Arkansas, to the Indian Territory line; that on the 12th of December, 1898, the Choctaw Construction Company entered into a contract with Graham & Miller to furnish all the ties necessary to be used in the work; that a short time afterward, to-wit, on the 1st day of January, 1899, or about that time, the appellee claims to have entered into a contract with Graham & Miller to furnish them ties to be used in the construction of said road, and about that time commenced to deliver to them ties under this alleged contract. It is under this contract, made with Graham & Miller about the 1st of January, 1899, that appellee claims the right to have a lien declared upon the railroad for the value of the ties furnished to Graham & Miller. Now, the contract the appellee made with Graham & Miller, under which he delivered them ties for the value of which he claims a lien upon the road of the appellants, was made prior to the passage of the act of March 31, 1899, about three months. When this contract was made, the appellee did not have, and could not claim, any lien for the value of the ties furnished by him to Graham & Miller. There was no privity of contract between him and the railroad company. The act of March 31, 1899, has no application to this case. The contract was made under a different law, and in reference to it, and must be governed by that law. The appellee claims as a subcontractor under the above act of 1899, which was not passed until after his contract was made, by virtue of which he claims his right to a lien. The rights of the parties to the contract must be determined by the law in force at the time the contract was made. That this is well settled there are numerous authorities, among which we cite: Donahy v. Clapp, 12 Cush. (Mass.) 440, in which C. J. Shaw delivered the opinion; Parker v. Mass. Railroad Co., 115 Mass. 580; O’Neil v. Anderson, 4 N. W. Rep. (Minn.) 47; Hall v. Banks, 48 N. W. (Wis.), 386.
It follows therefore that appellees had no right to a lien under the act of March 31, 1899, passed after the contract by virtue of which he claims a lien was made.
The demurrer to the complaint should have been sustained. The judgment is reversed, and the cause is dismissed. | [
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Battle, J.
The indictment in this case is as follows: “The grand jury of Desha county, Arkansas City district, in the name and by the authority of the state of Arkansas, accuse Jim Kitts of the crime of murder in the first degree, committed as follows, to-wit: The said Jim Kitts, in the county, district and state aforesaid, on the 25th day of November, A. D. 1901, did unlawfully, willfully, feloniously, with malice aforethought, deliberation and premeditation, kill and murder Jim Johnson by shooting the said Jim Johnson in the side and body of him, the said Jim Johnson, with a deadly weapon, to-wit, a Winchester rifle, loaded with gunpowder and leaden balls, and then and there held in the hands of him, the said Jim Kitts, from which wound so received said Jim Johnson, on the 25th day of November, 1891, die, against the peace and dignity of the state of Arkansas.” A demurrer to it was filed and overruled.
The defendant was then arraigned; pleaded not guilty; was tried by a jury, and convicted of murder in the first degree; and he appealed.
On the day of the trial he filed a motion for a continuance, and for cause said: “That Tom Watson, a witness for the defendant, is absent; that said Tom Watson is a resident of the town of Arkansas City; that immediately after the setting of this case by the court for trial upon this day defendant caused a subpoena for said witness to be issued, and placed said subpoena in the hands of the sheriff for service; that said subpoena is returned not served; that defendant believes that by said witness he will prove that the decedent, Jim Johnson, uttered threats of killing defendant; that said witness communicated said threat to defendant; that said threats were made upon the day of the killing of said Jim Johnson; that affiant believes said facts to be true; that said witness is not absent by consent, connivance, or procurement of affiant.”
The court denied the motion, and proceeded to try the defendant.
In the progress of the trial, A. Driedell, mayor of Arkansas City, testified, over the objection of the defendant, that he, as mayor, issued a warrant for the arrest of the defendant, at the instance of Jim Johnson, the deceased, and Pat Henderson; that Johnson was a witness in the case, and the defendant was fined; .and that he was tried on the same day the deceased was killed, the trial occurring about 1 o’clock in the afternoon, and the killing between 7 and 8 o’clock p. m.
The appellant insists that the judgment of the trial court should be reversed for the following reasons:
First. Because the indictment is defective.
Second. Because the court overruled his motion for a continuance.
Third. Because the court erred in’ admitting the testimony of Driedell.
The appellant contends that the indictment is defective, because the following allegation is made in it, “from which wound so received said Jim Johnson, on the 25th day of November, 1901, die.” He says it does not appear from' this allegation that he did die or will die. But when it is read in connection with what precedes it clearly appears that did die is meant.
The refusal to continue was not prejudicial. The evidence adduced at the trial showed that the deceased was not, at the time he was killed, threatening or making any effort to assault the appellant; and that, if the absent witness had been present at the trial, his testimony would not have been admissible.
The testimony of Driedell was competent. The contents of the warrant or judgment were not in issue. The facts testified to by the witness were collateral, and tended to show appellant’s motive for killing the deceased, and were provable by oral evidence. Long v. State, 10 Tex. App. 186; Under. Crim. Ev. § 44.
The evidence adduced at the trial was sufficient to sustain the verdict of the jury.
Judgment affirmed.
Contra, see State v. Hagan, 164 Mo. 654 (Rep.). | [
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Bunn, G. J.
On the first day of Januar}r, 1902, petitioners, W. A. Wilson et al., filed their petition in the Sevier county court, under the statute, praying that the court make an order forbidding the sale or giving away of any intoxicating liquors of the kind as named in the statute within three miles of the Horatio school house, situated in southwest quarter of southwest quarter of section 31, township 9 south, range 31 west, in the town of Horatio, Sevier county, Arkansas. Thereupon S. R. Lawrence ei al. asked to be made parties to the proceeding, and, on leave being granted, they filed their remonstrance. On the 6th day of January, 1902, the county ■ court sustained the petition of the prohibitionists, and the remonstrants appealed to the circuit court, where they succeeded in obtaining judgment in their favor and against the prohibitionists, thus setting aside the judgment of the county court. The petitioners for the prohibition order then appealed to this court.
The sole question in the case is as to the relative number of signers of the petition to the whole adult population qualified to vote on the question. It was agreed that there were 374 names signed to the petition for prohibition. The remonstrants had in the meantime caused a census of the “adult inhabitants” of the territory embraced within the statutory three miles to be taken, and the same was presented to the circuit court on the trial of the cause de novo on appeal from the county court.
The statute on the subject is as follows, to-wit-:
Section 4877, Sandéis & IiilFs Digest: “Whenever the adult inhabitants residing within three miles of any school house, academy, college, university, or other institution of learning, or of any church house in this state, shall desire to prohibit the sale or giving away of any vinous, spirituous or intoxicating' liquors of any kind, or alcohol, or any compound or preparation thereof, commonly called tonics or bitters, and a majority of such inhab itants shall petition the county court of the county wherein such institution of learning or church house is situated, praying that the sale or giving away of the intoxicating liquors and alcohol enumerated in the premises be prohibited within three miles of any such institution of learning or church house, said county court, upon being satisfied that a majority of such inhabitants have signed such petition, shall make an order in accordance with the prayer thereof, and thereafter, for a period of two years, it shall be unlawful for any person to vend or give away any spirituous, vinous, or intoxicating liquors of any kind, or alcohol, or any preparation thereof, commonly called tonics or bitters, within the limits aforesaid.
“ Sec. 4878. For the purposes of this act females, as well as males, are competent subscribers to the petition herein provided for.”
According to the findings and judgment of the circuit court, the petition of the prohibitionists contained 374 legal signers. In fact, this was in the agreed statement of facts. The circuit court also found that there were 749 in the district authorized to petition or vote on the question, and therefore that the prohibition petition lacked one of containing a majority of such inhabitants of the district.
The contention of the appellants here is that many of the persons who signed the remonstrance were not qualified to sign the same, were not qualified adult inhabitants within the district, and that the names of such should be taken from the whole number as alleged, and that, if that were done, the majority of the whole would be less than 374, and in such case the judgment should be reversed, and rendered for appellants. Appellants designate persons who were not competent according to their contention, and there is evidence on the subject.
The circuit court made its declaration of. law, defining the phrase “adult inhabitants,” as used in the statute, which was expressed in the following language, to-wit: “ Adult inhabitants, within the meaning of the law, means all males over the age of 21 years and females over the age of 18 years, in a certain territory, as applied to the so-called Three-mile law/ That any of said persons, who have a permanent or fixed place of abode for some definite period of time, for the purpose of labor or other work or business, is an inhabitant of the district or territory in which they reside for the purpose of performing said, labor or carrying on and conducting said other work or business, though such persons may work by the month or day and board with the family of another.”
There is a controversy between counsel for the parties as to whether the word “definite” or indefinite” was used by the court in connection with the word period; one charging that the particle “in” had been inserted in the transcript since the declaration of law was made. But the circuit clerk’s response to the writ of certiorari out of this court has settled that controversy, and wo conclude that the word employed by the court in its declaration of law was “definite,” and not “indefinite,” as qualifying the period of time referred to in that connection.
Now, for one to reside or stay or remain in a locality for a definite period of time only it is meant that he will go away as soon as that period has expired, whether it be for a day, a week, a month, or a year. He is a mere sojourner, and has no general interest in voting to establish police rules and regulations for the community’s government and the protection of its society. Such a definition includes the whole catalogue of transient persons, only restricted by other words used in the declaration of law, such as make it requisite that in order to be competent one shall be engaged in some kind of work or labor or business. The purpose for which one is in a district, provided it be a lawful one, has little to do with the question. An adult inhabitant should have a domicil, a permanent and fixed place of abode, as said in the declaration, with an evident intention to remain, unless the unknown exigencies of life should call him to reside elsewhere.
No exact definition can be given to the word “inhabitant,” as applicable to all cases. “ The word ‘inhabitant,’ ” said this court in Brown v. Bushing, ante, 111, “has many meanings. It has been construed to mean an occupier of lands; a resident; a permanent resident; one having a domicil; a citizen; a qualified voter. Its construction has generally been governed by the connection in which it is used.” Thus in Walnut v. Wade, 103 U. S. 683, an inhabitant was held to be a legal voter, because, in the statute involved in that litigation, it was provided that a majority of the inhabitants of a town, to. be ascertained by an election, might authorize the issuance of bonds to aid in the construction of railroads. The court, in effect, held that the election referred to was an ordinary election of the legal voters of the town, and, that being true, the inhabitants referred to were the same as legal voters.
The declaration of law, by the use of the word “definite,” was too general, and let in persons who in no sense could be denominated adult inhabitants, as contemplated in the statute, and for this error the judgment is reversed, and the cause is remanded with directions to ascertain the number of the adult inhabitants in the district at the time the petition was filed in the county court, and, if the 374 petitioners admitted to be competent were in fact a majority of the whole number, then to find for the petitioners, and to make the necessary orders in relation thereto. Otherwise, to find for the remonstrants.
Eeversed. | [
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Bunn, C. J.
This is a suit on a fire insurance policy, instituted in the .Jefferson circuit court on the 13th day of February, 1896, by the appellant, Mrs. E. E. Stanley, the holder of the policy, against the appellee, the Aetna Insurance Company of Hartford, Connecticut, for the sum. of $1,370, damages for the total loss of her house and furniture, and injury to the fencing,— her residence in Pine Bluff, Arkansas, — by fire on the night of the 6th of December, 1895.
The defendant company answered, admitting ’the issuance and delivery of the policy of insurance to the plaintiff, and the occurrence of the fire and destruction of the residence building, but denying that the loss to the furniture and other articles of personal property was to the extent claimed in plaintiff’s complaint, and any damage whatever to the fencing, and alleged not only gross negligence on the part of the plaintiff in the care of said property and the protection of the same, but complicity in, and connivance at, said burning, to obtain the insurance’ thereon as aforesaid.
On the trial of the cause, and on the cross-examination of the plaintiff as a witness, she was asked various questions touching her past life, covering a period of twelve or fifteen years; and, among other things in this connection, she was asked if, while residing in Lexington, Kentucky, she did not have insurance upon her residence there, and if the same was burned down while under such' insurance. This question she answered in the affirmative, with the additional or qualifying statement that she had on the house a very small amount of insurance. After further questioning and answering, plaintiff’s counsel objected to the evidence thus adduced, and moved the eourffito exclude the same from the jury, which motion the court overruled, and permitted the evidence to go to the jury; to which evidence the plaintiff objected, and to the refusal to reject the same she excepted. Similar interrogations were propounded to her as to the insurance on and burning of another house in Pine Bluff, upon which there were like rulings of the court, and exceptions taken..
Our attention is called to the ruling of this court on an identical state of facts in Lancashire Insurance Company v. Stanley, the plaintiff in this cause, ante, p. 1, reported in 62 S. W. Rep. 66. It will be seen, however, that the question there Avas differently presented from Avhat it is in this case. For instance, the questions and ansAvers were not excepted to in the court below; in the next place, the case Avas decided in the court below in favor of the plaintiff, showing that the jury were not influenced by that evidence; and, in the third place, the question in that ease arose upon an instruction in which that particular point and another AArere involved, which latter itself Avas material, and touching which the court held that the court committed a reversible error, to-wit, in not giving the instruction to consider the interest of witness. So that it does not appear that any positive ruling upon the admissibility of this evidence by this court in that case was made, and for that reason, in a ease like this, where the facts are somewhat different, Ave are left free to rule upon the question as presented iaoav.
This character of cross-examination is permissible only where its object and tendency is to affect the credibility of the witness under cross-examination. In section 2959, Sandels & Hill’s Digest, it is provided that “a witness may be impeached by the party against Avhom he is produced by contradictory evidence, * * * by evidence that his general reputation for truth or immorality renders him unworthy of belief, but not by evidence of particular Avrongful acts, except .that it may be shoAvn by the examination of a AAÚtness, or record of a judgment, that he has been convicted of a felony.” This statute is quoted only because its provisions are incidentally referred to in the case noAv cited.
The leading case of this court, on the subject of the admissibility of such evidence as we have now under consideration, is that of Hollingsworth v. State, 53 Ark. 387, in which the court, quoting from a New York ease, said: “This shows that upon a cross-examination of a Avitness, Avith a vieAV of testing his credibility, inquiries are proper as to facts not competent to be proved in any other Avay. Such inquiries do not relate to the issue directly upon trial, but relate only to the credibility of the witness. They are entirely collateral to the principal issue. As to the former, the same strictness is not required AA-hen the evidence is confined to the cross-examination of the witness introduced by the opposite party. In such examination the presumption is strong that the witness’ will protect his credibility, as far, at least, as the truth will' warrant. All experience shows this to be so. It would be productive of great injustice often if, where a witness is produced of whom the opposite party has never heard, and who gives material testimony, and from some source, or from the manner and appearance of the witness, such party should learn that most of the life of the witness had been spent in jails and other prisons for crimes — if this fact could not be proved by the witness himself, but could only be shown by the record existing in distant counties, and perhaps states, which, for the purposes of the trial, are wholly inaccessible. * * * My conclusion is that a witness upon cross-examination may be asked whether he has been in jail, the penitentiary, or state prison, or any other place that would tend to impair his credibility, and how much of his life has been passed in such places. When the inquiry is confined as to whether he has been convicted, and of what, a different rule may apply.”
Thus, while the statute does not permit a witness to be impeached by evidence of mere isolated acts on his part, yet in the case cited evidence of habits of life and associations which go to show habitual immorality and the probable disregard of truth generally is not in conflict with the statute, and is admissible, notwithstanding that, in order to determine this general fact, particular acts in keeping with the general habit may be shown. They are circumstances, says the court, “proper for the jury to consider in determining his credibility.” “That such a life tends to discredit the testimony of the witness, no one can deny; when disclosed on cross-examination, it is exclusively for the jury to determine whether any truth can come from such source, and, if so, how much. The right to impair the evidence of a witness by cross-examination must not be confounded with the right to impeach a witness by evidence introduced by the opposite party. * * * Such evidence must go to his general character.” Hollingsworth v. State, 53 Ark. 390.
After all; such evidence must tend to affect the credibility of the witness, or it is not admissible; for evidence which merely reflects on the character of a witness, or calls his general character in question, which has no reference to his character for truth or immorality, is not admissible, for such can only prejudice the minds of the. jury against him.
This being the law as heretofore defined by this court, we are of the opinion that the evidence so adduced in this case was not admissible, seeing that its effect could not be to impeach the wit ness or lessen her credibility, as the mere fac-t of having an insured house burned on one or more previous occasions proves nothing against her credibility. It should have been excluded.
In the further progress of the trial she was asked: “If you, Thomas Stanley and your husband, Frank Stanley, were indicted by the grand jury of Jefferson county, Arkansas, charged with the burning of this building? This question was objected to, but the court overruled the objection. She being required to answer, said: “I understand so, through my attorneys f and in answer to further questions on the subject, and by way of explanation, she said she herself was never arrested, and was finally discharged by the sheriff at his office. Having been charged by the grand jury with the commission of the crime of arson shows nothing against her, and the object of such testimony could operate only to cast a slur upon her before the jury. It was highly prejudicial, and should not have been permitted to go to the jury, and the error was a reversible one.
In the course of the trial the court gave, at the request of the defendant, the third instruction, which is objectionable, under the peculiar facts of this case, because it failed to say if the plaintiff intentionally or willfully caused the burning of the building.
The seventh instruction, given at the instance of the defendant, is too general, and left to the jury too much latitude in determining what constituted failure of plaintiff in keeping all the covenants contained in the policy. As the case will be reversed for other errors named above, these last references to instructions are in the way of suggestions to the court on another trial.
Reversed and remanded for the improper admission of testimony as set forth in the foregoing. | [
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Riddick, J.
This is an appeal from a judgment of the circuit court of Sebastian county, rendered in favor of John Goset and against the Choctaw & Memphis Railroad Company, for the sum of $300 as a penalty for its failure to construct “suitable and safe stock guards” on either side of enclosed land owned by Goset and traversed by the railroad of defendant.
A statute of this state requires that where a railroad passes through enclosed land of another it shall be the duty of the company owning the road, upon receiving ten days’ notice in writing from the owner of the land, to construct “suitable and safe stock guards” on either side of the enclosure where the railroad enters and to keep the same in good repair. For a failure to comply with this requirement of the law the statute imposes a penalty of not less than $25 nor more than $200, to be recovered in a civil action by the person aggrieved. Sand. & H. Dig., §§ 6238, 6239. It will be noticed that, in order to recover the penalty, the plaintiff must show a ten days’ notice to the company and thereafter a failure on the part of the company to construct the stock guards required by the statute. On the trial in this case the plaintiff, Goset, undertook to show that he had given the notice in writing to the company as required, and for this purpose he offered in evidence a written notice to the company to which was attached an affidavit of R. Parks, stating that he had duly served the notice upon the company by leaving a copy of the notice with an agent of the company. The company objected to the introduction of this affidavit as proof of the service of the notice, on the ground that it was not competent evidence of that fact. But the court overruled the objection, and the defendant excepted. This court said in a recent case that the fact of service of the notice in a case of this kind must be proved like any other fact the'proof of which is not provided for by statute. Kansas City, P. & G. Ry. Co. v. Lowther, 68 Ark. 238. As this was not, strictly speaking, a notice given in an action, it is at least doubtful whether there is any provision for the proof of the service thereof by an affidavit. See Sand. & H. Dig., § 2971. But, however that may be, the point is made by counsel for appellee in his brief in this court that the question is not properly before us for review, for the reason that the ruling of the court in admitting this affidavit as proof of the. service of the notice was not set up as a ground for new trial in the motion filed for that purpose in the circuit court. If this statement of the appellee is correct, the question as to the admissibility of this affidavit is not before us for review, for it is well settled that the rulings of the trial judge in admitting evidence cannot be reviewed here where the ruling is not made a ground for new trial. Graham v. Roark, 23 Ark. 19.
There are three grounds set up in the motion for new trial which appellant contends brings before us the ruling of the trial judge in admitting the affidavit referred to.
One of these grounds in the motion is “because of errors of law occurring at the trial and excepted to by the defendant.” But this was too general. It pointed to no particular ruling of the court, and the court did not err in overruling it. Howcott v. Kilbourn, 44 Ark. 213; Edmonds v. State, 34 Ark. 721.
Another of these grounds assigned for new trial is that “the verdict of the jury was not sustained by the evidence.” But the question raised by this assignment goes to the legal effect and weight of the evidence, and not to its competency. In passing on the question as to whether the circuit judge erred in overruling this ground of the motion, we must look to all the evidence before the jury, and, assuming it to be competent, we are then to say whether it is sufficient to support the verdict. The jury were bound to consider all the evidence before them, and, as this ground of the motion for new trial questions the correctness of their finding, the court in passing on that question must also look to all the evidence admitted by the trial court, and cannot disregard any portion of it on the ground that it was incompetent.
As a matter of course, a verdict or judgment-may be set aside on account of the admission of incompetent evidence, but, to quote the language of the supreme court of California, “that which vitiates the verdict in such a case is the error of the court admitting the evidence,” and to raise that question on appeal the ruling of the court in admitting the evidence should be made a ground for a new trial. Where the only objection is that the verdict was not authorized by the evidence, the question of competency is not a matter of consideration; and in passing on that question whatever was before the jury must be regarded as proper and legitimate evidence. McCloud v. O’Neall, 16 Cal. 392.
The same thing may be said of the other ground of the motion for new trial, that “the court erred in refusing to instruct the jury to return a verdict in favor of the defendant.” This ground raises the question also as to whether the proof was legally sufficient to sustain a verdict for plaintiff, but it does not question the competency of the evidence or challenge the correctness of the ruling of the court in admitting evidence.
There is no other ground in the motion for new trial that can be said to raise any question as to the ruling of the court in admitting the evidence, and we are therefore of the opinion that the point must be taken as waived, not being raised by the motion for new trial.
There are other points raised by the appeal, but we have considered them, and find no reversible error. The defendant asked the court to instruct that the mere fact that animals occasionally passed over the stock guards was not sufficient evidence to establish the fact that the stock guards were unsuitable and unsafe. The evidence in -this case showed that a large number of hogs and also some cattle passed this stock guard, and that instruction under such a state of facts was properly refused, for it was an instruction as to the weight of evidence. It does not, of course, necessarily follow, because a hog or a cow passed a stock guard, that it is unsafe and unsuitable, within the meaning of the statute. There was evidence in this case tending to show that it was impossible to construct a stock guard that will under all circumstances turn all kinds of stock. It was shown that some hogs get to be expert in climbing fences and crossing stock guards, and are extremely hard to keep out of an inclosure they wish to enter, and for this reason the mere fact that one or more animals pass a stock guard is not conclusive evidence that the company has failed to discharge its duty. The law does not impose an impossible or impracticable duty upon the company, and when its stock guard is as perfect and as well adapted for the purpose of turning stock as it is practicable to make it, in connection with the safe and prudent operation of the road, that is all the law requires, and the company has discharged its duty under the statute.
But the question is usually one of fact for the jury, and it would not be proper for the court to instruct them that the company has discharged its duty if the guard is similar to those used by other first-class railroads; nor in a case like this to instruct that the fact that stock occasionally pass the stock guards is not sufficient to show that the guards are unsafe. For these reasons the court did not err in refusing the instructions asked by defendant. On the whole case, we think the judgment should be affirmed, and it is so ordered. | [
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Battle, J.
Section 3 of Mansfield’s Digest reads thus: “When anyone shall die leaving a widow or children, and it shall be made to appear to the probate court that the estate of the deceased does not exceed three hundred dollars, the court shall make an order that the estate vest absolutely in the widow or children, as the case may be; and in ají cases where the estate does not exceed eight hundred dollars the widow or children, as the case may be, shall be entitled to retain the amount of three hundred dollars of the property at cash price.”
Section 1 of an act entitled “An act to provide allowances for widows and children out of the estates of deceased persons and for other purposes,” approved April 1, 1887, is as follows: “That when any person shall die leaving a widow and children or widow or children, and it shall he made to appear to the court that the personal estate of such deceased person does not exceed in value the sum of three hundred dollars, the court shall make an order vesting such personal property absolutely in the widow and children, or widow or children, as the case may be; and in all cases where the personal estate does not exceed in value the sum of eight hundred dollars, the widow or children, as the case may be, may retain the amount of three hundred dollars out of such personal property at cash price.”
And section 2 of the same act is as follows: “That, in addition to the amount mentioned in section 1 of this act, the widow shall be allowed to retain as her absolute property all the wearing apparel of the family for their own use, her wheels, loom, sewing machines, and other implements of industry, all yarn cloth, .and clothing made up in the family for their own use, and such grain, meat, vegetables, groceries and other provisions as may be necessary for herself and her own and her .husband’s family residing with her, for a period of twelve months; also, her household and kitchen furniture, beds and bedding, sufficient for herself and family residing with her.”
In Harrison v. Lamar, 33 Ark. 824, this court held that the word “estate,” as used in section 3 of Mansfield’s Digest, means “the mass of property left by decedent,” including both real and personal, and, if that in the aggregate should'be less than three hundred dollars in value, the intention of the statute was to give it to the widow if living, or, if there be no widow, to minor children.
The only question in this ease is, was section 3 of Mansfield’s Digest repealed by the act of April 1, 1887 ?
According to the construction of section 3 of Mansfield’s Digest by this court, a widow would not be entitled to retain three hundred dollars of the property of her deceased husband, if the value of his entire estate exceeded eight hundred dollars in value, notwithstanding his personal estate would not be worth exceeding three hundred dollars. The effect of that section was to deny her, in such cases, the right to take the personal property as her absolute estate. In this respect it is in conflict with the act of April 1, 1887. But it may be said that the act repeals section 3 of Mansfield’s Digest only to that extent, and still leaves the widow with the right to take property of the value of three hundred dollars, if the entire estate of her husband does not exceed eight hundred dollars in value. This might be true if it did not appear that the act of April 1, 1887, was enacted for the purpose of providing in all cases what property, of the value of three hundred dollars, of the deceased husband’s estate the widow may take as her absolute allowance. Does it so appear?
Section 3 of Mansfield’s Digest and section 1 of the act are almost in the same language, and the latter reads 'more like an amendment than an independent act. The whole subject of section 3 seems to have been in the mind of the legislature at the time the act was passed. Such similarity of language would hardly haye existed if it had not been. It would have been strange, under such circumstances, if it had intended that she should have the right in any case to take real estate as a part of her absolute allowance, it did not say so. But it did, by section 2 of the act, increase her allowance in the personal estate to an amount exceeding three hundred dollars. The rule is that “where the legislature take up a whole subject anew, and cover the entire ground of the subject-matter of a former statute, and evidently intend it as a substitute for it, the prior act will be repealed thereby, although there may be no express words to that effect, and there may be in the old act provisions not embraced in the new.” Pulaski County v. Downer, 30 Ark. 588; Mears v. Stewart, 31 Ark. 17; Dowell v. Tucker, 46 Ark. 438; Wood v. State, 47 Ark. 488; Inman v. State, 65 Ark. 508. We think that this rule applies to and governs this case; and-the act repealed section 3 of Mansfield’s Digest.
Judgment affirmed. | [
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Wood, J.,
(after stating the facts.) There was evidence to support the verdict on the question of negligence. As to who had the burden under the evidence was properly submitted to the jury.
As to whether or not the cattle were injured by reason of their own viciousness, or the negligence of the carrier, was also properly submitted to the jury under full and fair instructions.
Jt is contended that there is no evidence of the value of the stock injured, and, consequently, nothing to show the extent of plaintiffs damage.
Paul Probasco testified that he was a cattle herder, shipping and preparing cattle for market; that he had been so engaged for five years; that on the 2d day of November, 1899, he was engaged in handling cattle for W. H. Jacobs & Co. in and near Little Bock; that he inspected plaintiffs cattle that had been shipped from Vernon, Texas, on the morning of their arrival; that he found the cattle in a bad and injured condition; he found all of the cattle more or less injured; one of them was disemboweled and killed; one died shortly afterwards; four were crippled and rendered' wholly unfit for market; and the balance were injured in various ways to such an extent that they could not be prepared for market; that one bull was in such a reduced condition that care could not bring him out; that of the entire lot there was bui one steer — a yearling — that ever recovered sufficiently to prepare for market; that, from his experience in shipping cattle, the cause of the injury to the cattle was the delay in transportation, rough handling of the ears in which they were confined, neglect to water and feed them properly, recklessly allowing them to get down in the car and be trampled upon by one another; the weaker ones, when thrown down by rough handling of the cars, were permitted to remain down until they were trampled upon, and thus injured; that the cattle were what are called feeders, that is, cattle ready to be fed and prepared for market to be sold for beef and slaughter house purposes; that, judging from his experience in marketing cattle, and his knowledge of the market at the time, and the extent and character of the injuries, he would say that these cattle, were damaged to the extent of $300. Specific objection was made to the last part of the above testimony. There was no proof of the market value of “feeders,” as these cattle were designated. Nothing to show the value of such cattle at the time they were received by the appellant for transportation, nor at the time they were delivered to appellees. A simple statement of the market value of such cattle in good condition would have enabled the jury to properly estimate the damage which had accrued to appellees by reason of the negligent handling of the cattle in transportation. The details of the manner in which the cattle were handled were before the jury, and the nature and extent of the injuries which they had received. As was said by this court in St. Louis, Iron Mountain & Southern Railway Company v. Law, 68 Ark. 224, “the jury should have been left to determine the damages according to the facts, uninfluenced by the opinions of interested witnesses.” The proper criterion for determining the amount of appellee’s damages was not before the jury, and we cannot know to what extent the verdict was influenced by the opinion of the witness Probasco. The data upon which he based his opinion should have been given, rather than the opinion itself. This point is ruled by St. Louis, Iron Mountain & Southern Railway Company v. Law, 68 Ark. supra.
The provision of the contract requiring that the shipper give written notice of the place and nature of the injuries to the conductor in charge of the train, or the nearest station or freight agent of the carrier, and that suit shall not be brought after ninety days from the injury, was waived by appellant. The object of requiring notice of the place and nature of the injuries is to give the carrier an opportunity for a full and fair investigation of such injuries when and where it will be most certain, easy and expeditious. Kansas & A. V. Ry. Co. v. Ayers, 63 Ark. 336. The notice is required to be in writing, so that the nature of the shipper’s •grievance may be definitely and clearly stated. But where it is shown that the proper agents had verbal notice upon which they acted, promptly making all the investigation desired, and without demanding any written notice, it will be taken as a waiver of the written notice. The provision is for the benefit of the carrier, and he may waive it if he chooses. The court properly instructed the jury on this point. Rice v. Kan. Pac. Ry. 63 Mo. 314. See, also, Western Ry. Co. v. Harwell, 91 Ala. 347.
The questions as to whether or not the provision was reasonable and fair requiring suit to be brought within ninety days after the injury, and whether or not such provision had been waived by appellant, were submitted to the jury upon the evidence, at the request of appellant. Appellant, therefore, cannot now complain of the verdict on these questions.
We find no error in any of the instructions.
For the error indicated, the judgment is reversed, and the cause is remanded for a new trial. | [
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Eiddick, J.,
(after stating the facts). This is an action to recover damages for an injury which the plaintiff alleges was caused by the negligence of the defendant in failing to keep its track clear of rocks. The defendant denied the allegation of negligence, and as a further defense set up that the defendant was guilty of contributory negligence. The questions presented by the pleadings were then, first, whether the company was guilty of negligence in the matter of not keeping its track clear of rocks, and, if that was established, then, second, whether the plaintiff was also guilty of negligence contributing to his own injury?
There was no question of assumption of risks presented by the pleadings, but both parties seem to have treated that question as also raised, and at the request of the defendant the presiding judge told the jury that if the track at the place- of the injury had been from the time of its construction in the same condition it was in when the accident happened, and if the plaintiff knew this fact, and made no objection, he must be held to have assumed the risk, and could not recover. Now, it seems to us that this instruction was a little confusing.. The accident was caused by the train striking a rock. There is no evidence to show how long it had been there, but neither the defendant nor any of the train crew knew of its presence there until a moment before the collision occurred. As trains were passing several times a day, it is evident that the condition of the track at that point had not been the same for any great length of time before the accident. Counsel for the defendant who drew the instruction probably referred to the condition of the bluffs adjacent to the track and from which the rock had probably rolled, for, applying it literally to the track, it was meaningless, and amounted to nothing, except to confuse the jury, because, as before stated, there was no evidence to show that rocks had been on the track at that point before; certainly, none that they had been there ever since the road was built. When the ease came before the jury for argument, one of the counsel for the plaintiff construed the instruction literally, and, over the objection of the defendant, was permitted to tell the jury that it applied only in case it was shown that plaintiff had knowledge that before the accident a rock had been on the track at the exact point where the accident occurred. As there was no proof that plaintiff had such knowledge, the action of the court in approving this argument, in effect, nullified the instruction, was, in effect, a withdrawal of it, and must be considered in that light. While we think that it would have been better for the court to have done this directly by refusing it or by telling the jury that it was withdrawn, still, taken literally, we see no evidence upon which to base this instruction, and are not able to say that its withdrawal was erroneous or prejudicial to the rights of the defendant. The evidence in this case may have been such as justified an instruction on the doctrine of assumed risks, but there was no ground for such instruction on the theory that there had been no change in the condition of the track at the place where the accident happened,, for it was caused by an obstruction on the track which had been there only a short time.
Coming to the other points presented, we are not quite sure that there was sufficient evidence to show that defendant was guilty of negligence, for it-is not shown where this rock came from, further than that it probably rolled from the bluffs upon the track, or' how long it had been on the track at the time of the accident. It was, of course, the duty of the company to use due diligence in keeping a safe track, and if by the use of such diligence it could have known before the accident that the rock was on the track, or that it .was liable to fall upon it, it should have taken steps to avoid the danger. But we have not considered that question ver}r closely, for the reason that it seems to us that, conceding that the company was negligent, yet the evidence, as set out in the transcript, also shows that the defendant was guilty of contributory negligence. The facts which lead us to this conclusion are not disputed, and can be briefly stated.
Stallings, as before stated, was employed to load rock on cars at Hickory spur and to unload them at Fourche La Fave river. While thus engaged, he had to ride to and fro between these points on the construction train that carried the rocks. There was a caboose in the train placed there for the employees to ride in, and where Stallings could have ridden had he so desired. He did not ride there, but, of his own volition, rode on the front car loaded with rocks, which was pushed in front of the train, and which was shown to be a more dangerous place in which to ride than in the caboose. The collision of the train with the rock did not derail the car, but the jolt was sufficient to throw Stallings from the car upon which he rode, though there were others on the same car who were not thrown off or injured. No one in the caboose was injured, and, if Stallings had been there, he would not have been injured. It does not appear that there was any reason why Stallings should ride on the front car in preference to the caboose. So far as the evidence shows, he had no connection with the operation of the train, and was under no necessity of riding on the rock car in front, but rode there of his own volition. If the company was guilty of negligence in allowing the rock to be on the track, yet that negligence exposed no one to injury except those riding on the rock car, a more hazardous place in which to ride than in the caboose. As the evidence shows that Stallings rode there of his own volition, and was by that reason injured, he was at least partly to blame for Iris injury. In other words, the injury of which he complains was caused in part by his own negligence. It has often been said that “in such cases the law has no scales to determine whose wrongdoing weighed most in the compound that occasioned the mischief.” Railroad v. Norton, 24 Pa. St. 469; St. Louis S. W. R. Co. v. Dingman, 62 Ark. 245.
It follows that, iincler the facts as we find them in the record, the judgment for the plaintiff cannot be sustained. Several other questions were raised in the argument of counsel as to the correctness of instructions given and refused, but the conclusion to which we have come on the facts makes it unnecessary to discuss them
Judgment reversed, and cause remanded for new trial. | [
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Bunn, C. J.
The appellee, who was plaintiff in the court below, was, on the 15th December, 1898, employed by the appellant, the defendant in the court below, as baggage master at the stipulated price of $65 per month. It appears from the testimony, as alleged in the defendant's answer, that he was employed as an extra man, — that is to say, he was assigned to work as the exigencies of the service demanded, and was paid by the day for the days he actually worked.
On the 27th day of January, 1899, he was discharged, and his actual wages due were paid, except that the plaintiff claimed that one day more than was allowed him on the paymaster's books was due him, to-wit: for the day occupied in returning from Bald Knob or Newport, Arkansas to Poplar Bluff, Missouri, in answer to a recall order of the proper official of the defendant company. This day was not paid for by the paymaster, but plaintiff was directed to correspond with the time keeper on the subject, which he did, and finally with the chief official of the compány on that division of its road, and the extra $2 were then paid by the company, after a delay, as plaintiff claims, of 57 days from the time when the other wages actually due were paid by the company.
The plaintiff received the $2 on the 15th March, 1899, and on the 29th of the same month brought this suit for the amount of the penalty imposed by statute for failure to pay employees their wages when discharged, — that is, for the sum of $123.50 and interest.
The defendant failing to appear in the justice's court when the suit was instituted, judgment by default was rendered therein against it, and thereafter in due time it took an appeal to the circuit court, where it filed its answer to the complaint, admitting the employment of plaintiff as set np in the complaint, but alleging that he was so employed as an extra man, to receive pay only for the time he should actually work. Defendant denies that it ever withheld wages actually due the plaintiff, but avers that he was paid all that was due him at the date of his discharge; and denies that it failed or refused to pay him any part of the wages until the 16th March, when the said $2 are admitted to have been paid. Defendant further alleges that plaintiff having received from it his wages, and having receipted in full for all wages claimed by him to be due, is estopped from claiming anything further by reason of any failure or refusal to pay him. Judgment was rendered for plaintiff in the sum of $125.50, and it appealed to this court.
Several preliminary questions were raised on the pleadings. The first is whether a suit for a penalty, as denominated in the statute under which this suit is brought, is maintainable without a claim for actual damages.
In Leep v. Railway Co., 58 Ark. 407, this court held that, notwithstanding the use of the word “penalty” in the statute, the imposition therein made, for a failure to pay the wages due on discharge or failure to re-employ, is in fact in the nature of exemplary damages. Now, the general rule is that a separate and independent action cannot be maintained for exemplary or punitive damages, but such damages are received, if at all, as an incident to the claim and judgment for actual damages. But in a case like this, construing the act of March 25, 1889, entitled “An Act to Provide for the Protection of Servants and Employees of Railroads,” Acts of 1889, page 76, it was stated by this court that “the additional amount is allowed on account of the failure to pay the wages when due, and is regulated according to the length of the delay of payment. It is allowed for a double purpose, as a compensation for the delay, and as a punishment for the failure to pay,” Leep v. Railway Co. supra. The additional amount, being partly compensatory and partly exemplary damages, as was held in that ease, really does not bring this class of cases under the general rule, and as the amount paid under the terms of the contract, but not at the time when due, is not necessarily a satisfaction of the claim for the additional amount, which is itself at least partly actual or compensatory damages, plaintiff had still a right of action for the latter.
A receipt in full by the employee, or any other act of his indicating a final settlement of all claim growing out of the transaction, must be considered a waiver of further claim, after the amount due under the contract has been paid and received.
On the trial, one of the material questions was, whether or not the plaintiff was entitled to the extra day’s pay claimed by him. He claimed that it was owing him, and that it was not paid until 57 days after the same was due and the other wages paid. His main evidence to support this contention that the extra day was owing to him was the fact that the defendant had finally paid it, and that of itself was an acknowledgment of its justness. On the other hand, the defendant claimed that the $2 for the extra day was paid in nature of a compromise, and not that the same was due, but only to get rid of the matter, without any regard for its justness or injustice. The fact whether this payment was an admission of the justness of the claim or not was material, and should have been submitted to the jury fairly and definitely. This has not been done, and the defendant, among others, asks its fifth instruction, which was refused by the court, which is as follows: “The court instructs the jury that the mere fact that the defendant paid the plaintiff the one day’s extra time, as claimed by him, does not establish the fact that it owed it; and if, as a matter of fact, under defendant’s usage and custom and the terms of employment with plaintiff, such one day’s time was not due plaintiff, he would not be entitled to recover in this case, and the fact that the defendant paid it would make no difference.” As there was none other given to cover this point, this instruction should have been given, notwithstanding the improper use therein of the expression, “under defendant’s usage and custom,” which may be regarded as mere surplusage, when coupled with the proper expression, “and terms of employment with plaintiff,” as in this instance. The refusal of this instruction was tantamount to holding that the payment of the extra day was conclusive of the fact that it was justly owing under the contract of employment.
For the error in refusing this instruction over defendant’s objection the judgment is reversed, and the cause remanded for new trial. | [
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Bunn, C. J.
This is a controversy as to the fees of the appellant, as county clerk of Scott county, for services rendered in a proceeding to call in, for the purpose of cancellation and reissuance, the outstanding treasury warrants of the county.
The case was here on a former appeal, and was reversed for an error of the circuit court in holding that said county clerk was estopped from claiming any fees whatever because of an alleged contract between himself and the county judge to the effect that, if the latter would call in the warrants for the purposes aforesaid, he would not charge his fees against the county. That was the only question before this court on the former appeal, as the circuit court did not consider the fees charged, whether they were in accordance with the statute regulating such fees.
The court reversed the judgment of the circuit court and remanded the cause, but in the closing paragraph of the opinion used this language: “He (the county clerk) was by the law entitled to the fees allowed by the county court [if found correct, of course], and he is estopped by no antecedent agreement to waive them.” There was but one question before this court, and that was the question of estoppel. The circuit court, by its .order of dismissal of the complaint, had eliminated all other questions. The remanding order of this court was: “The judgment (of the circuit court) is reversed, and the cause remanded, with directions to be proceeded with not inconsistently herewith.” This meant, of course, that the case, on being remanded, should be tried on the merits of the claim and each item thereof, which the circuit court should have done in the first instance, and would have done, had it not dismissed the case on the ground of the estoppel. It is evident, therefore, that the case was not r&s judicata, by reason of anything said in the former decision.
The account of appellant against the county was as follows. to-wit:
“To 2,113 orders of allowance, at 10 cents each.. .$211 30
To 2,113 warrants on treasury issued. . 211 30
To settlements of 2,113 accounts and orders.... 21Í 30
To 700 indexes............................. 70 00
To 700 presentations, filings................. 70 00
Total ................................$773 90”
This was allowed by the county court, and the case was appealed to the circuit court. The circuit court allowed the third item as claimed, and reduced the first and fourth items down to $3.20 each, and disallowed the fifth item, thus allowing in the aggregate the sum of $217.70.
The first item should have been for 700 orders of allowance, for there were 700 claims, and there were in 'fact, whether in form or not, 700 allowances made, and might have been expressed in so many orders.
So, also, there were 700 names of claimants to be indexed, and each claimant must necessarily be indexed, and the claim of each of these 700 claimants constituted a case, within the meaning of the statute. Hence the fourth item should have been $70, as claimed.
. • The third item should -have been disallowed,-as' held by the circuit court, 'for there were no settlements made, within the meaning of the statute. ' ’’ ■ • '
The fifth item'should have been nothing, instead'of $3.20, for, according to Cole v. White County, 32 Ark. 45,it was held by this court that for presenting and filing such warrants (claims) the county is not liable. The account will then stand thus:
To 700 orders of allowance, at 10 cents each... .$ 70 00
To 2,113 warrants on treasury, issued at'10 cents •each ..............................■.... 211 30
To 700 indexes of claims or cases at 10' cents each 70 00
Total ....................;.. .$351 30
Reversed and remanded, with directions to the circuit court to enter judgment in accordance with the opinion herein and certify same,to the county-court for payment. -
Note. — The evidence showed that in the calling in, canceling and reissuance of the county warrants, 700 different persons presented in the aggregate 2,247 different warrants; that all of said warrants presented were allowed and reissued, but in reissuance the' amount was covered by 2,113 warrants. The presentation of said 2,247 warrants by said 700 different persons, the allowance thereof, and the entries directing the issuance of the 2,113 warrants in lieu thereof, appear on the record under thirty-two different headings, ' some as: “ W. B. Maxwell and others” (naming many claimants in the body of the entry), and some as “ J. W. Combs” (naming only-that one person in the entry), each of which the trial court designated as an order. (Rep.) | [
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Bunn, C. J.
This suit is ancillary to the suit of Theresa L. Organ et al., which had but recently been determined in the Crittenden circuit court when this cause was instituted therein, and an appeal had been taken to this court, and styled here the Memphis & Liltle Rock Railroad Company as Reorganized v. Organ; that is to say, it is confessedly based upon the decree of the court below in the former suit. That suit was determined in this court on the 14th October, 1899, and on that day was reversed and remanded. (67 Ark. 84.) The only question involved in the opinion rendered was the application of the statute of limitations, and it was proved as a fact in the case that the action was barred as to all the claimants in the case, except seven or eight of the more remote heirs under disabilities of one kind or another at the time the original suit was instituted, on August 3, 1880. The decree of the court below in the cause was remanded with directions to proceed according to the opinion then rendered. The contention of appellant in its motion to dismiss the case is that 'when a decree is reversed on appeal in this court, the case stands as if no decree or judgment had ever been rendered in the court below, and this reversal affects all the appellees in the suit to that extent. We are of opinion that that is the correct rule, as applied to this case; for, while it was said by this court that some of the claimants were not barred, this of course meant that they were not barred as appeared from the record in the case. The reversal and remanding of the case for further proceedings meant necessarily a remanding of the whole case, for that order would be superfluous as to the heirs shown to be barred by the statute of limitations, and could only apply to those who did not appear in the record to be barred. It was manifestly a reversal of the entire ease, for there was no reservations in the decree of reversal in favor of those said to be not barred.
The ancillary case, having had its foundation swept from under it, must necessarily fall.
We think the principle of West v. East Coast Cedar Co. 110 Fed. Rep. 727, applies to the issue made in the motion to dismiss and response thereto in this case.
Action dismissed. | [
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Battle, J.
Mrs. Anna A. Jones was the owner of 3852.73 acres in Lee county, in this state. She authorized J. T. Robertson, a real estate broker, to sell the same at “three dollars per acre net to her." For about two years Robertson had control of the lands, rented thorn, paid taxes on them, and endeavored to sell. In March, 1896, A. Boysen authorized J. Gr. Thweatt to purchase the land, and Robertson sold the land to Thweatt for Boysen, Thweatt, as such agent, agreeing to pay Mrs.. Jones three dollars an acre, and to Robertson fifty cents an acre as a compensation for selling. While this trade was pending, Boys-en ¡mrehased the land from Mrs. Jones at four dollars an acre, and paid her for it, and received a deed from her for the same. Boysen refusing to pay the fifty cents an acre, Robertson brought this action against him for the same, and recovered judgment for $1,506.40, and he appealed.
Was Robertson entitled to a judgment against Boysen for any amount? That depends upon his contract with Mrs. Jones in respect to the sale of the land. The evidence does not show what compensation he was to receive for selling. But he says he was authorized to sell the land at three dollars per acre net to her, and that he was entitled to all he could get for the land exceeding that amount. He is in error. The contract meant that the land must bring to Mrs. Jones three dollars per acre over and above all expenses and deductions. Turnley v. Michael, 15 S. W. Rep. 912. This was only a limitation ripon his power to sell. It was still his duty to sell the land for the highest price obtainable, and to account to Mrs. Jones for the proceeds, less a compensation not greater than the excess of the purchase money over three dollars per acre net, and at the same time not exceeding a reasonable compensation. The whole amount for which he sold the land was due to and recoverable by Mrs. Jones. If he had collected it, he might have re served out of it what his principal was owing him on account of the sale. But the contract made by him was never completed. Mrs. Jones sold the land to Boysen for four dollars per acre, collected the purchase money, and conveyed the land to the purchaser. She and Boysen had the right to do so, and thereby relieve Boysen from the contract made by their respective agents. But this did not relieve them from any liability for compensation they were severally liable to their respective agents for services rendered.
The judgment of the‘circuit court is therefore reversed, and final judgment is rendered here in favor of the defendant.
Bunn, C. J., dissents. | [
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Battle, J.
This action was brought in the Hot Spring circuit court by B. B. Toler, as collector of Grant county, against appellant, Joseph Brown, under the provisions of subdivision II, c. 139, Sand. & H. Dig. The complaint, omitting the caption, is as follows:
“Comes the plaintiff, E. B. Toler, as collector of Grant county, Arkansas, by his attorneys, W. D. Brouse and Hill & Auten, and complains of the defendant, Joseph Brown, and for cause of action says: That at the general election in 1894 he was duly elected sheriff and ex-officio collector of Grant county, Arkansas, and after-wards duly qualified as such, and has been acting as such ever since. That at and prior to the 1st day of Juty, 1895, section 16, township 5 south, range 15 west, was school land, subject to sale under, the requirements of the law. That on said day, in the town of Sheridan, and in pursuance of notice duly advertised, plaintiff, as collector as aforesaid, offered separately for sale to the highest bidder three lots of 40-acre tracts of said land, as the law directs, after having divided and platted said section and numbered the 40-acre lots thereon from 1 to 16, substantially as shown in plat hereto attached, and marked Exhibit A, and made part hereof. The lots offered for sale as above stated were numbered 4, 12 and 16 on said plat. That at said offering the defendant bid for lot 4 on said plat the sum of $305, for lot 12 the sum of $370, and for lot 16 the sum of $120, which were the highest bids; and said lots were thereupon duly declared sold to defendant for said sums, respectively. But defendant failed and refused to pay any of said bids; and thereupon said lots were duly reoffered for sale, and the Hayward Timber Company became the purchaser of lot 4 at the sum of $52.50, and of lot 12 at the sum of $50, and lot 16 failed to sell at any price. The said Hayward Timber Company at said re-offering made the highest bid on said lots 4 and 12. That, in consequence of the said failure of defendant to pay his bids as aforesaid, the school fund lost $252.50 on lot 4; $320 on lot 12, and $120 on lot 16; making in the aggregate the sum of $692.50. Wherefore plaintiff asks judgment against the defendant for said sum of $692.50, and interest thereon at 6 per cent, per annum from, the 1st day of July, 1895, till paid.
“W. D. Brouse and Hill & Auten,
“Attorneys for Plaintiff.”
Appellant filed his answer to said complaint as follows, omitting caption:
“That he denies that the plaintiff gave legal notice of the sale of said land as stated by him. He denies that he divided the said land in 40-acre tracts, as required by law. He admits that he bid on lots 4, 12 and 16 as stated in said complaint, but he does not remember the amount of his bids on the respective lots, and he denies that he bid the sums on said lots as stated in the complaint. He admits that the said lots were struck off to him by the sheriff at said sale, and that he refused to pay for the same, but he has no knowledge or sufficient information upon which to form a belief as to whether the plaintiff offered said tracts again for sale as required by law, and he denies that he did so offer said tracts, and that the same at such offerings only brought the sums specified in said complaint. He admits that said lot 16 failed to sell as stated in said complaint, and he denies that plaintiff has any right of action against him by reason of such failure. Defendant further says that, after making the bids for the lands as herein stated, he became satisfied that the plaintiff had no authority to sell said land, and that the title which he would undertake to convey by said sale would be worthless, inasmuch as there had been no petition presented to the said plaintiff, as collector, signed by the inhabitants of the township in which said section of land was situated, as required by law, requesting the sale of said land, and that the said sheriff was selling said land wholly without authority of law. He denies that the said plaintiff complied with the law in advertising and making said sale, and he denies that he had authority to advertise and offer the said land for sale at the time and in the manner as stated in said complaint, and he says that the acts of the plaintiff in selling said land were wholly unauthorized and void, and for that reason he has no cause of action against him herein. Wherefore he prays judgment herein for his costs and for other relief. “Wood & Henderson,
“Attorneys for Brown.”
On the 9th day of August, 1899, the death of Toler was suggested, and F. W. Rushing was substituted as plaintiff in his stead.
The ease was then submitted to the court, sitting as a jury, in part, upon the following evidence:
First. The deposition of E. B. Toler, taken in his lifetime, as follows: “I am sheriff of Grant county, and have been such sheriff for nearly three years. I was elected in the year 1892. On the first day of July term, 1895, of Grant county court, I, as sheriff of said county, offered for sale the sixteenth section school land in township 5 south, range 15 west, in Grant county. I offered said land for sale in 40-acre lots at the courthouse in Grant county somewhere about 1 o’clock on Monday, the first day of said term of said county court. One P. G. Gates, who represented Hayward Timber Company, bid for and was the highest bidder for lots 1, 2, 3, 6, t, 8, 9, 10, 13, 14 and 15, and the same were sold to said Hayward Timber Company, and the certificates of purchase were issued by me to the Hayward Timber Company. No petition of any bind was presented to me by the inhabitants of said township requesting the sale of said lands, and I never saw a petition from such inhabitants asking such sale. I examined the records of the county court, and found that Sheriff Beeso, former sheriff of this county, made a sale of a part of the sixteenth section land in 1882, under the law as contained in the acts of the legislature of 1881. The only evidence of any kind that I had of such petition was an order of the county court, which appears on page 194 of the record of said court for the year 1882, and is in words and figures as follows:
“ ‘Tuesday morning, January 3,1882. Court met pursuant to adjournment, present and presiding as on yesterday, before whom the following were had, to-wit: In the matter of the sale of sixteenth section land, township 5 south, range 15 west: On this day comes S. D. Beese, the sheriff of Grant county, Arkansas, and files herein the following report: “To the Honorable County Court, Grant county, Arkansas, January term, 1882, Hon. W. T. Poe, presiding: In obedience to the petition of a majority of the legal electors of congressional township 5 south, range 15 west, and in accordance with an act of the last general assembly approved March 22, 1881, 1 advertised for sale, and on the first Monday, it being the 2d day of January, 1882, proceeded to offer for sale, the sixteenth section in said township, after having the same appraised as the law directs; and W. H. Wilson bid off, and was declared to be the highest and best bidder for, the southwest quarter of the northwest quarter and the northeast quarter of the south west quarter of said section, at $1.50 per acre, the same being-three-fourths of the appraised value. * * * All of which is respectfully submitted. S. D. Reese, Sheriff.’ ”
“And the court being well and sufficiently advised, it is considered, ordered and adjudged that the sale of the said land, and the action of S. D. Reese, be, and it is hereby, confirmed, except as to the recommendation herein.”
Second: The deposition of S. D. Reese, as follows: “I was sheriff of Grant county in 1882, and sold two forties of the sixteenth section of township 5 south, range 15 west, and made the report which has been offered in evidence in this case, which was approved by the county court at the January term, 1882. I do not know where the petition is upon which I acted at the time, but I am satisfied that it was signed by a majority of the voters in said township, or I would not have acted on it. I have very little recollection about the matter, and when the question was first mentioned to me recently, I did not remember anything about it; but after seeing said order of the county court, and having my memory refreshed on the subject, I now remember that such a petition was presented to me. I do not know any name now that was signed to said petition, and cannot state the name of any person whose 'name was signed to it. I think none of the signers on the petition I acted on were boys. I would not have considered a petition with the names of minors on it. I don’t know that said petition was signed by a majority of the male inhabitants of said township, but it was signed by a majority of the electors of said township. I went out of the sheriff’s office about eight years ago.”
Fourth. The evidence of W. D. Brouse, as follows: “I live at Sheridan, Grant county, and am a lawyer by profession. I was present when E. B. Toler sold the sixteenth section land in Grant county, on the 1st day of July, 1895. The sale was made at public-outcry by E. B. Toler, as collector of Grant county, between 12 and 3 o’clock, and lots 4, 12 and 16 were struck off to Joseph Brown, and he failed to make his bids good, and said lots .or tracts were offered for sale again by said Toler the next day between 12 and 3 o’clock, and I bought lots 4 and 12 for the Hayward Timber Company. Mr. Toler adjourned the sale on the 1st day of July, because there was not sufficient time on the 1st to finish the sale.”
Fifth. The deposition of P. G. Gates, who testified that he was present at the sale of the sixteenth section made by Collector Toler, in Grant county early in July, 1894, and bought some of the land as the agent of the Hayward Timber Company; that lots 4 and 12 were knocked down and sold to Mr. Joseph Brown; that he made a memorandum of the bids made by himself and Joseph Brown in pen and pencil on a plat of paper attached to his deposition as Exhibit A; that his bids were $5 less than the figures for which lots 4 and 12 were knocked down to Brown. “Brown bid $370 for lot 12, and $305 for lot 4, and they were knocked down to him for those figures. At the second offering of lots 4 and 12 on the following day, W. D. Brouse bid for me for the Hayward Timber Company.”
Sixth. A transcript from the record of the county court of Grant county, as follows: “In the matter of sale of sixteenth section lands: On this day the report of E. B. Toler, collector of Grant county, Arkansas, of sale of sixteenth section lands, filed herein this day, is examined, and, it appearing that the collector aforesaid has in all things complied with existing laws in regard thereto, it is considered, ordered and adjudged that sale of said lands by said collector, and all his acts therein, be, and they are, approved and confirmed, and it is ordered that said report be spread upon the records of this court, which is accordingly done as follows, to-wit: /Report of sale of sixteenth section lands situated in section sixteen, township five (5) south, of range fifteen west: The undersigned would report that, after advertising and having the following subdivision of said section appraised as the law directs, ho did on the 1st day of July, 1895, the same being the first day of the July county court, proceed to sell the same, and said lands were sold to the following named persons, to-wit: Lots 4, 12, and 16 to Joseph Brown for seven hundred and ninety-five (795) dollars. The said Joseph Brown failing to perfect his bid by refusing to pay the amount of his bid, the sale was continued until July 2, 1895 (it being the second day of said court), whereupon I did, between the hours as prescribed by law, reoffer said lots 4, 12 and 16 of said section 16, and said lots 4 and 12 were sold to Hayward Timber Company for $52.50 and $50, respectively, making a total of one hundred and two and 50-100 dollars. The said lot 1 was not sold for want of a bidder. The expense of this sale was: Cost of confirmation, 75 cents; collector’s commission on $102.50, at 2 per cent, $2.05. Leaving a net balance of $99.70 in my hands due the sixteenth section fund on account of this county. E. B. Toler/ ”
The court, over appellant's objections, made the following finding of facts, to which he at the time saved proper exceptions:
“S. D. Beese was sheriff and collector of Grant county at the time the petition to sell the land in controversy was presented to him in 1882; and he acted in offering and selling the lands embraced in the petition as collector, and not as sheriff. The petition presented to said Beese contained a majority of the adult male inhabitants of the township in which the land to be offered was situated. E. B. Toler, who made the sale of lands in controversy, was at the time sheriff and collector of Grant county, Arkansas, and acted in the matter of the sale as collector, and not as sheriff.”
Appellant thereupon requested the court to make the following-finding of facts, which the court refused, and defendant saved proper exceptions:
“The sale of a part of the 16th section made by Beese on the 3d day of January, 1882, was made by the said Beese as sheriff of Grant county on a petition presented to and passed on by him as sheriff. The petition upon which the sale was made by Beese in 1882 was signed by a majority of the legal electors of the township where the land was situated, but there is no evidence showing that said petition was signed by a majority of the male inhabitants or of the adult male inhabitants of said township. The sale of the land out of which this controversy arose was made by E. B. Toler as sheriff of Grant county in 1895.”
Appellant also requested the court to make the following-declarations of law, which were refused, and appellant saved proper exceptions:
“(1.) E. B. Toler had no authority as sheriff or collector of Grant countjr, in 1895, to sell the land in the sixteenth section under the petition presented to S.' D. Beese, as sheriff, in 1881 or 1882.
“(2.) The petition presented to S. D. Beese, as sheriff, in 1881 or 1882, conferred no authority on the said Beese to sell said land as sheriff.
“(1.) The sale by S. D. Beese, as sheriff, in 1882, was without authority; and the sale by Toler, as sheriff or collector, on the petition passed on by said Beese, as sheriff, was also- without authority.
“(8.) There being no evidence in this case that there was no collector in Grant county at the time of the sale of the land by Toler, the said Toler had no authority to sell said land as sheriff.”
The court on the 16th day of August gave judgment for appellee, and appellant on the same day filed his motion for a new trial, which was overruled, and he appealed.
Appellant assigns three errors, as follows:
“First. The circuit court erred in finding as a matter of fact, as requested by appellee, that S. D. Beese was collector of Grant county in 1882, and acted as such, and not as sheriff, in selling the land embraced in the petition then presented to him, and in refusing to find the converse of said proposition as requested by appellant.
“Second. The circuit court erred in finding as a matter of fact that the petition presented to S. D. Beese in 1882 was signed by a majority of the adult male inhabitants of the township in which the land to be sold was situated, as requested by said appellee, and in refusing to find the converse of said proposition as requested by appellant.
“Third. The circuit court erred in refusing to declare as law •of the case that the petition presented to S. D. Beese in 1882 conferred no authority on said Reese to sell in 1882 either as sheriff or collector, and said petition conferred no authority on Toler to sell in 1895.”
We shall consider these alleged errors in the order stated.
1. The court did not err in finding and holding that Beese was collector of Grant county in 1882. He was sheriff and ex-oficio collector of that county. There is no evidence that he had forfeited the office of collector at that time. Being sheriff and collector, the sale of the land by him in 1882 was by authority, if he was authorized to make the same in either capacity. Budd v. Bettison, 21 Ark. 582; Keith v. Freeman, 43 Ark. 296.
2. Appellant insists that the evidence was not sufficient to show that the petition to Beese, the collector, for the sale of the sixteenth section, in. township 5 south, and in range 15 west, was signed by a majority of the adult male inhabitants of that township. Reese testified that he did not know that it was signed by a majority of the male inhabitants, but it was signed by a majority of the electors of the township. He could not remember whether it was signed by a majority of the male inhabitants. The petition being lost, the judgment of the county court of Grant county, in which the land in question lies, was read as evidence to show that the sale of the same was legal and approved. The judgment was read without objection, and as it tended to prove that the statutes prescribing upon what conditions, and the manner in which, the sale should be made, were complied with, the court sitting as a jury-had the right to regard it as legitimate and proper for that purpose. Frauenthal v. Bridgeman, 50 Ark. 348.
Under the law, it was the duty of Beese, the collector, to report the sale to the county court of Grant county for investigation, and it was the duty of that court to ascertain whether the sale had been made by authority and in conformity with the law. Beese, the collector, did so, and the county court approved the sale. This necessarily implied that the sale was made upon a petition of the majority of the adult male inhabitants of the township, and in the manner prescribed by law. The order of the countjr court was therefore sufficient to sustain the finding of facts by the court as to the sufficiency of the petition for the sale.
3. It is insisted that the petition presented to Beese did not confer upon him the authority to sell, because it was directed to him as sheriff. But we do not think that this defect affected the" authority to sell. He was sheriff and collecter. He was asked to sell the land. Upon a proper petition, he could do so in his capacity of collector. The petition asked for the exercise of that power. The address of it to him as sheriff was a mere mistake in the form of it, which did not affect its sufficiency.
The act entitled “An act to provide for the sale of the sixteenth section in this state,” approved March 22, 1881 (Acts 1881, p. 154), under which Beese, the collector, sold, provides, that “whenever the inhabitants of any congressional township in this state shall desire the sale of the sixteenth section of such township, * * * they majq by written petition, signed by a majorfiy of the male inhabitants of such township, require the collector of taxes of the county wherein such school land is situated to sell the same,” and that “upon the reception of such petition the collector shall ascertain that it is signed by a majority of the male inhabitants of such township,” and that it shall.be his duty to sell when he ascertains that it was signed by such majority. Will a majority of the adult male inhabitants be sufficient?
The word “inhabitant” has many meanings. It has been construed to mean an occupier of lands; a resident; a permanent resident; one having a domicil; a citizen; a qualified voter. Its construction has generally been governed by the connection in which it has been used. In Walnut v. Wade, 103 U. S. 683, the construction oí an act was involved which authorized towns and cities to subscribe for stock in railroad companies, with the consent of the inhabitants of such city or town, to be ascertained by an election held for that purpose. The court held that the word “inhabitant,” in that act, meant legal voters. In that case the meaning of the word was determined to some extent by the nature of the act to be done. In this case it should be determined in the same manner.
Under the statutes of this state a male person under the age of twenty-one years is incapable of managing his estate, or absolutely binding himself for the payment of money for anything except necessaries. He cannot devise his lands, nor participate in the annual school meetings, nor vote in any election. As a general rule, he cannot do any act necessary to be done in the management and disposition of his lands, except subject to avoidance or ratification when he reaches the age of twenty-one years. In view of these laws, he was certainly not intended to be included in that class of inhabitants authorized to petition for the sale of a sixteenth section of land. The object of the act of 1881 in making a petition signed bjr a majority of the male inhabitants of a township necessary to procure such sales was doubtless for the purpose of enabling them to protect the interest of their township in such land; and this precludes the idea that any person the law presumes and pronounces, and is generally known to be, incompetent to perform not provide for its own defeat, and it would tend to do so if it included infants in the word “inhabitants.” For in that event it would make the child in arms and male persons of all ages competent petitioners, and in some eases place it within the power-of children to control such sales, and thereby rob the townships of the safeguards it intended to throw around them. If such was its intention, why were females, and especially adults, excluded? No such construction can reasonably be placed upon the act.
Appellant contends that Toler, as collector, had no authority to sell the land in question in 1895 under the petition presented to Beese in 1882. This contention is based upon that section of the act of 1881 which provides that if “any tract (school land) was offered and not sold, it might be offered again, upon like notice, upon the first day of the next or any succeeding term of the county court, and so on offered until sold, -without a new petition.” He insists that the words “the next or any succeeding term of the county court, and so on offered” should be construed to mean that the land should be offered at each succeeding -term of the county court until sold. We do not think so. It should be construed in that way if the language had been, “if any tract was offered and not sold, it might be offered again, upon like notice, upon the first day of the next and every succeeding term of the county court, and so on offered until sold, without a new petition.” But “or” does not mean “and,” but “either,” and “any” does not mean “every,” but “one indifferently.” We think that the act of 1881 authorizes the sale of any tract, if it was not sold at the time it was first offered, on the first day of any succeeding term of the county court.
Judgment affirmed.
Hughes and Wood, JJ., dissent. | [
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Battle, J.
This action was brought by J. N. Griffith against J. G. Mosley to recover the possession of a sow and her pigs. Both parties claimed the property sued for and its possession. The issues in the ease were tried by a jury, which, after hearing the evidence adduced by the parties, returned a verdict in favor of the defendant, and judgment was rendered accordingly, and plaintiff appealed.
The record shows that each party introduced a number of witnesses at the trial, and that the testimony of the witnesses of each party tended to show that he was the owner of the sow and pigs. The evidence adduced by the appellant tended to prove, among other things, that he lost the sow and pigs for three or four months before the commencement of this action, and that when he found them he was enabled, to a considerable extent, to identify them by flesh marks.
After the verdict and judgment, on the 14th of June, 1900, the appellant filed a motion for a new trial, alleging that the verdict was contrary to the law and evidence; and on the 22d day of June, 1900, filed a motion to amend his motion for a new trial by alleging therein, as a ground thereof, that the judge of the court went into the room where and when the jury was considering its verdict, at its request, and while there said that it was impossible or very hard to recognize stock by its flesh marks after it had been gone three or four months; and attached to the motion the affidavits of three jurors to sustain this allegation.
The appellant filed a motion to strike out the motion to amend because it was not filed within the three days prescribed by law, and to strike from the files of the court the three affidavits because they were made to impeach the verdict. Nothing was brought to the knowledge of the court to sustain the motion to amend, except the affidavits. On the contrarjq the bill of exceptions shows that the judge, by the consent of the parties, went into the jury room to ascertain whether there was a probability of the jury agreeing, and that he had no recollection of the remark or statement set forth in the affidavits, and did not believe that he had made it, and that he said nothing which could have influenced the jury for or against either party.
The motion to strike out and from the files of the court wa.s sustained, and the motion for a new trial was overruled.
The only question in the ease is, were the affidavits admissible to impeach the verdict of the jury? This question has been answered in the negative by many decisions of this court. Pleasants v. Heard, 15 Ark. 403; Fain v. Goodwin, 35 Ark. 109; St. L., I. M. & S. Ry. Co. v. Cantrell, 37 Ark. 519; Ward v. Blackwood, 48 Ark. 396.
The judge should not have gone into the room where and when the jury was considering its verdict, but, inasmuch as the appellant consented, he cannot complain. If the jury needed instructions or Information as to the law or facts in the case, it should have gone before the court to receive the same in the presence of the parties.
Judgment affirmed. | [
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Bunn, C. J.
This is an action of replevin brought by the appellant company against appellee Scott to recover the possession of an engine, boiler, grist mill, gin, feeder and condenser, and belts and pulleys attached, all alleged to be attached to land of appellant and wrongfully removed by Scott. Judgment for defendant, and plaintiff appealed to this court.
In 1885, J. II. Scott, the appellee, owned certain lands in Clark county, this state. Upon this land Scott had built a gin and mill, and in said year mortgaged the same to A. R. Shattuck as trustee for the benefit of W. F. Mullen, from whom he had borrowed money, to secure the payment of which he executed the mortgage aforesaid.
On March 5, 1886, Mullen assigned the deed of trust for value to the appellant company, and Albert Crow was afterwards substituted as trustee in the place of Shattuck, and he, on the 22d of July, 1893, made a foreclosure sale of the property, and the appellant company became the purchaser, and received its deed as such on the same day; and on the same day it made its deed to Scott, with reservation of lien, and Scott, having purchased on a credit, gave his second deed of trust to the company on the same property to secure the purchase money.
On the 29th December, 1889, for the purpose of securing the payment of an $800 note of same date, given for said sum of money claimed to be owing to Mrs. Mary K. Trotter, Scott executed and delivered to John Sanders, as trustee, his other deed of trust, in which he conveyed for that purpose his incoming crop of cotton and corn and a large amount of live stock and other property, among which was included one “engine and all fixtures thereunto pertaining; also all the right and title that I possess in (2) cotton gin and sawmill, also one boiler/5 On the 22d January, 1894, Scott gave a bill of sale to Mrs. Harris, heir at law of Mrs. Trotter, who appears to have died in the meantime, selling to her, among other things, “one twenty-five horse power steam engine heretofore used by me during the past five years, boiler and all fixtures and other attachments relating to said engine and boiler. Also one cotton gin and sawmill, gristmill and one log wagon and other property/5 The second deed of trust given by Scott to the appellant, July 22, 1893, was foreclosed in chancery, and deed made by the commissioner to appellant as purchaser, dated November 8, 1897. In the deed of trust last named the machinery was required to be insured by Scott, and he obligated himself to assign the policies to appellant.
It will be seen that this was a controversy as to the ownership of the machinery claimed in the replevin suit at bar. The proof shows that this machinery was purchased subsequent to the execution of the deed of trust from Scott to Shattuck in 1885, but to replace some old machinery then in the building; that the mill and gin were used as public mill and gin, and were apparently intended as permanent fixtures to the soil. The substituted machinery was used for the same purpose, and was fastened to the building in the usual way, the boiler being entombed in masonry. On the part of the defendant, it is contended that he intended that the machinery involved should be considered separate and distinct from the realty, and was so treated by him in his sale of same, and as was evidenced otherwise. On the other hand, plaintiff contends that the machinery was fixed to the soil; that it was attached to the buildings in the usual manner, and the boiler was fixed to the soil by being inclosed in masonry; and that defendant, in obligating himself to insure the same for the benefit of the plaintiff as his mortgagee, and from other circumstances, so intended it.
The question of the intention of the parties, where there is any doubt whether or not the contract so expresses it, is one of fact for the jury.
The court refused all the instructions of plaintiff, and directed a verdict for defendant. This was error, and for this error the judgment is reversed, and the cause remanded. | [
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Bunn, C. J.
This is a suit to vacate a judgment for costs by the unsuccessful contestant and his bondsmen in an election contest against the appellee, in whose favor the costs were adjudged. The costs involved are such as were incurred in the issuance of summonses to, and service of the same upon, witnesses of the contestee and witnesses’ fees in this case. The petition to retax the costs, and vacate the judgment therefor, which amounts to the sum of $971.31, was denied by the circuit court, and the plaintiffs, the contestant and his bondsmen, appealed to this court.
It appears from the record that there were two or more cases of contest for county offices pending in the Little River circuit court, growing out of the general election of 1894, and among them a contest for the office of clerk and of assessor. It further appears that the contest for the office of clerk was tried by the circuit court at its October term, 1894, and resulted in favor of the contestee, and that the other case or cases, it was agreed, should abide the result of the one determined in the circuit as aforesaid, which had been appealed to the .supreme court, and by reason of this agreement nothing was done in the untried cases until the determination of the first case on appeal in the supreme court. After the determination of that case by the supreme court, the contest case for the office of assessor was called up in the circuit court, at its July term, 1898, and judgment was taken against appellant and his bondsmen for the costs in that case, as aforesaid, without trial, but in furtherance of the agreement to let the case abide the decision of the supreme court in the other case.
In the second paragraph of their petition, plaintiffs aver that before the issuance of any subpoenas in the case, out of which the said costs accrued, it was agreed between counsel of both parties and so understood that no subpoenas should issue on either side, but that the said cause should stand until the same was set by agreement of counsel. And in the first paragraph of their petition plaintiffs aver that no day was ever set for the trial of said cause, and that all the summonses issued and served upon witnesses in this cause on the part of the contestee in said cause were issued and served contrary to said agreement, and were therefore not a proper charge as costs. In the third paragraph of their complaint petitioners say that at the January term of said court, 1896, it was agreed and understood between counsel representing plaintiff and defendant, and so announced by the judge in open court from the bench, that no further action or steps should be taken in this cause until the cause of Walker v. Cheever, appealed to the supreme court, was decided in said court, and that this cause was to abide the decision in said case.
The respondent in his answer denies the agreement set forth in the petition, and there was evidence pro and con on that point, and the court in its findings states that the agreement and announcement alleged in the petition to have been made in open court and by the court at its January term, 1896, was not made at that term of the court, but that such was agreed and such was the announcement of the court at its July term, 1896. So that as to that point the question narrows down to .a mere difference as to dates. The leading counsel for petitioners testifies that he was not present at the July term, but was present at the January term, 1896, and made the agreement aforesaid. He states further in his deposition that he attended said court at said January term, and that he had never attended it since. This should have been easily settled by referring to the record, if the same were kept with ordinary accuracy. Such, in brief, are the facts upon which the decree of the lower court was founded, and the temporary restraining order therein granted was dissolved.
But, in our view of the case, it is unnecessary to discuss the facts in evidence further than they incidentally serve to give a history of the case. The circuit court was not the court of original jurisdiction, and yet all the witnesses were summoned to appear therein. As we infer from the testimony of the leading counsel of contestee in the case, the witnesses were summoned, at the latest, soon after the determination of the clerk’s contest case in the circuit court, for it seems that it was at a time when the question whether the contestant would prosecute his appeal in the supreme court was raised. These witnesses might have been summoned before that.
The statute on the subject of taldng testimony in contested election cases'in this state reads thus: “Either party may, on giving notice to the other party, take depositions to be read in evidence on the trial, and the court shall, at the first term (if fifteen days shall have elapsed after such election, and, if less than fifteen days, then at the second term) in a summary way, determine the same according to evidence.” Sand. & H. Dig., § 2698. The word “may” gives rise to the principal question in construing this statute, and it becomes important to ascertain Avhcther it was used by the legislature in its mandatory or directory sense; and to do this we are to look to the object and purpose of the legislators in enacting the law, in the light of the circumstances surrounding them at the time of its passage.
In contested election cases, it is usually the case that witnesses are so numerous that to have them all to be summoned to appear in open court at a certain time, and to have them remain there until the testimony of all have been taken, would involve such expense as to deter even the most meritorious contestant from ever trying his fortune in that way; but the most important matter to the public would be the delay of the courts in disposing of such eases in the usrial way. For these and other reasons, we are of opinion that the statute is mandatory, and was enacted to expedite the trial of contested election eases, and economize the same as far as possible.
It is our opinion, also, that election contests are special proceedings, and not civil actions under the Code, and everything must be done therein according to the statute regulating such proceedings, where such statute exists; that in this state the taking of testimony is provided for by statute.
In Knox v. Fesler, 17 Ind. 254, it was held “that a contested election is not a civil case, but is a special proceeding, and must be controlled by the statutory provisions authorizing and regulating it, as to the costs therein, and that costs follow the judgment, by the general statute, only in civil cases.” The same rule is announced in Patterson v. Murray, 53 N. C. 278, in which the court used this language: “A contest before the justices of a county court, in regard to sheriffs election, is not an action within the meaning of the Revised Code, c. 31, § 75, so that the successful party can recover costs.” In Borgstede v. Clarke, 5 La. Ann. 733, the court held that “the general rule prescribed by the code of practice that the party cast shall be condemned to pay the costs applies to civil suits, and not to proceedings under the act of June 1, 1846, in reference to contested elections.” In Steele v. Wear, 54 Mo. 531, which was a contest for a seat in the legislature, the ■court held that no costs could be adjudged, unless it has been provided for by statute regulating these proceedings. The meaning •of all these decisions is that in such special proceedings the general rule as to costs going with the judgment does not apply, and that costs, like all other incidents of such special proceedings, are to be determined and appropriated according to the provisions of the statute on the subject, when there is such provision.
As to costs in this state no special provision seems to have been made for the successful contestant, but on behalf of the eontestee the contestant is required to give bond to pay the costs adjudged against him. We think the taking of testimony in election contest cases is regulated by the statute, and that the method so provided is exclusive of other methods, and that the claim for the issuance of and service of summons upon witnesses and for their attendance fees is unauthorized by law, and that the temporary injunction should not have been dissolved, but made perpetual as to the costs claimed and held to be unauthorized in the opinion.
Reversed and remanded, with directions to ascertain the costs improperly charged against plaintiffs under the law as here laid down, and to make the injunction perpetual.
Battle and Riddick, JJ., dissenting. | [
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Wood, J.,
(after stating the facts.) 1. The checks sued on do not come within any of the provisions of chapter 18, Sand. & II. Dig. The design of that chapter was to prevent the creation or circulation by private individuals of “any note, bill, bond, check or ticket purporting that any money or bank notes will be paid to the receiver, holder or bearer, or that it will be received in payment of debts, or to be used as a currency or medium of trade in lieu of money.” Also to prevent the issuance by “any city, town or corporation whatever of any small bills or notes, commonly denominated change tickets or shinplasters.” “Bills and notes” are payable in money, not merchandise. They are not “bills” and “notes” if redeemable in commodities instead of money; and “bills and notes,” as here used,. are commonly denominated “change tickets” or “shinplasters” because they are for a small sum of money. Webster’s Diet, verbo “Shinplaster.”
The statutes arc leveled against any attempt to create a private circulating medium or currency; i. e., notes, bills, bonds, checks, or tickets redeemable only in the current money of the realm. Van Horne v. State, 5 Ark. 350; Ex parte Anthony, id. 359. In Yeates v. Williams, 5 Ark. 684, Judge Lacy said: “The legislature intended to cut up by the root all individual paper emissions of money.” The statutes are in pari materia. Van Horne v. State, supra. See, also, Smith v. State, 21 Ark. 294; Jones v. Little Rock, 25 Ark. 301; Lindsey v. Rottaken, 32 Ark. 619; U. S. v. Van Auken, 96 U. S. 366; Hollister v. Zion’s Cooperative Merchantile Institution, 111 U. S. 62; In re Aldrich, 16 Fed. 370; U. S. v. White, 19 Fed. 723. The form of the check or order in suit refutes the idea that it was intended to circulate as money. It was an order or check for merchandise. The bearer was specifically notified that it was “not redeemable in cash.” Moreover, the proof aliter showed that the purpose was not to have the checks circulated as money.
The checks were issued, says the bookkeeper, “to save trouble in bookkeeping.” It is true they passed by delivery into other hands than those of employees. But this was always at a discount, and the appellee himself took them for merchandise. It is doubtful whether they were ever designed to pass beyond the hands of the employer and the employee. Their circulation was necessarily localized to a very restricted territory. The case of the Iron Mountain & Helena Railroad v. Stansell differs materially from this. In that ease the suit was not upon the certificates or paper, but was for money due on the original contract. Before the suit was instituted, there was a demand made upon the railroad for the payment of the certificates in freight and passage, as the certificates called for. The plaintiff tendered them in payment of freight and passage, and they were refused. The maker of the certificate was setting up their illegality. But that was not the issue. Judge Smith said: “The result of the present controversy does not de pend on the validity or invalidity of these transportation certificates; nor upon the question whether, if they were issued in contravention of a statute, a private corporation is obligated by law to redeem them. * * * The main question,” he continues, “is therefore whether the corporation defendant owes the plaintiff money on a contract which it refuses to pay.” In that case there was strict privity of contract between the plaintiff and the defendant. A portion of the contract of the railroad with the construction company was assigned to the plaintiff, with the knowledge •and consent of the railroad company, and the plaintiff sued the railroad company for material furnished under that contract. It is manifest, therefore, that the court did not have before it for decision the question as to whether the certificates were in a form prohibited by law, and what the learned judge said in that respect was dictum. Here the suit, the right to recover, was based on the ■orders or checks. The holder was a party to the agreement. Ho demand was ever made on the lumber company for the redemption of the orders or checks in merchandise. On the contrary, the proof was that the lumber company was ready to redeem the checks in merchandise, as specified therein, at any time when called for.
2. If the wages of the employees were due when the checks were issued and received by them, then the case is one of accord but without satisfaction, and the acceptance of the check or order would be no bar to an action by them, or one standing in their right, for the money due them as wages; for it is a “general principle that accord without satisfaction is no bar to an action of debt, — that is, that accord, being' a promise to confer satisfaction, must be fully and actually executed and accepted in order to be a satisfaction.” “Consent of a party to accept in satisfaction, without actually receiving, does not form a valid bar to the action.” Pope v. Tunstall, 2 Ark. 209; Ballard v. Noaks, id. 45.
The illustration of learned counsel is apt: .“If A owes B a ■debt which is due, and B says that he will take A’s horse in payment, B’s promise is without consideration, and he may refuse to accept the horse when tendered. But if A’s debt to B is not yet due, and A .waives his right to delay payment, and promises to pay in something else of value, or at another time and place, which is accepted by B, in such case there is a new contract upon sufficient consideration, which is binding.” Cavaness v. Ross, 33 Ark. 572; 1 Cyc. Law & Proc. “Accord and Satisfaction” pp. 323, 324.
There was evidence tending to show that the wages of the employees, although so much per day, were not due until the 15th of each succeeding month. If that were true, the agreement to pay and to accept merchandise for wages not yet due would be binding upon the parties to the contract.
In this view of the evidence, appellant doubtless presented its request fox instruction numbered four, which is as follows: "4. Tf the jury find from the evidence that the company (Martin-Alexander Lumber Company) had established a pay day on which their employees would be paid in full in currency any amount due them for labor, and said employees elected to accept in lieu of said money at pay day these commissary checks, then said company would not be liable in money for the amount of such commissary checks so taken up before pay day.” The request, although not as clear as it should have been, embodied the correct idea, and, taken in connection ivith the evidence, we think could not have misled the jury, and should have been given. It was certainly a question for the jury as to whether the wages were due or not when the checks were issued and accepted. We do not find that other instructions cover the question involved in the fourth request, supra.
3. The checks under consideration are contracts or agreements in writing for the payment of merchandise, and under section 489, Sand. & II. Dig., are assignable by delivery.
For the error indicated, the judgment is reversed, and the cause is remanded for new trial.
Hughes and Kiddick, JJ., did not participate.
43 Ark. 275. | [
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