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Hart, J.
This case was commenced in a justice of the peace court, and is .here on appeal from the circuit court, where the case was tried de novo on appeal from the justice’s court. The facts are as follows:
Peter Mengoz died testate in April, 1908, owning -certain lands in Phillips County, Arkansas, and the appellant, Peter Deisch, qualified as executor under the terms of his will. Steve Young was one of the tenants on the place at the date of the ■death of Mengoz, and continued to work and gather his crop, the probate court having made an order authorizing and directing said executor to furnish the tenants with necessary supplies, which was done by him. In October, 1908^ with the consent of the executor, Young sold to the appellee, Wooten-Agee Company, nine bales of cotton which he had grown on said lands, and it paid for the same by a check drawn in favor of said Peter Deisch. Through an error in -computing the amount due for the cotton, the check was made for $9.30 too much, which sum appellee seeks in this action to recover from appellant. Appellee, when it bought the cotton, was advised and believed that Young was a tenant of said Peter Deisch. When discovering its mistake, appellee wrote to Peter Deisch informing him of that fact and demanding a return of the amount overpaid. Deisch recognized the fact that he had been overpaid, but refused to return the amount, $9.30, on thp ground that he had credited the account of Young with it before he was informed of the mistake having been made.
Under this state of facts the circuit court directed a veidict in favor of appellee for the sum of $9.30, the amount so. overpaid. The action of the court was right.
The undisputed evidence shows the sum of $9.30 more than' was due was paid through a mistake of fact. Appellee was advised by Young that he was a tenant of appellant, and was selling the cotton with his permission; and for that reason the check was made payable to appellant. Repayment of the excess was demanded before there was any change of position to his prejudice on the part of appellant. The mere fact that he had credited Young’s account with it did not change his position to his prejudice; for that was a mistake which, like any other mistake in the account, could have been corrected. It is only where “the payee has changed his position to his prejudice because thereof and can not be put in statu quo by the payer,” that money paid under a mistake of fact can not be recovered. 30 Cyc. 1321.
The judgment will be affirmed.
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Battle, J.
On the 14th day of July, 1902, J. B. Duerson, Pauline Duerson and Henry Dittmer commenced a suit in the ■Chicot Chancery Court against Kit Bullock and Harrison Mc-Gehee to quiet title to the northeast quarter of section five, township fourteen south, range two west, in Chicot County, in this State, alleging that they are the owners of the land, and that the defendants are in possession of a part of it, and that the remainder is wild and unoccupied, and that the defendants are trespassers and own no part thereof.
The defendants answered, and, in part, said: “That they have expended in improvements on said land $2,500 each, under purchase by them from A. S. Caldwell, who purchased from W. B. Streett, who purchased the same from the collector of Chicot County at a sale had for nonpayment of taxes for the year 1868, and received a deed therefor; that the)' went in possession of same under such purchase from W. B. Streett in the spring' of 1906, and have continuously resided thereon since said date, and that plaintiffs have not been seized or possessed of said lands for more than two years next before the institution of this suit.”
On the 13th day of September, 1869, William B. Streett purchased the lands in controversy at a sale of the same for the taxes of 1868. On the third day of January, 1898, Streett agreed in writing to sell the west half of the land in controversy to-the defendants, and they paid him $75, and executed their promissory notes to him for the remainder of the purchase money,, and Streett bound himself to convey to them the land sold upon payment of the notes.
Wm. B. Streett received no deed, in his lifetime, for the-land purchased at tax sale. He died, and his heirs filed an affidavit with the county clerk of Chicot County to the effect that the certificate of purchase of lands at tax sale, executed to-Wm. B. Streett, had been lost and could not be produced, and. the county clerk on the 6th day of February, 1900, by deed conveyed the lands in controversy to such heirs. On the 27th’ day of August, 1900, Julia R. Streett, the widow, and W. R. Streett and W. G. Streett, the heirs of Wm. B. Streett, deceased,' sold and conveyed to James Haggart and William McMaster all their interest and estate in the lands.
On the 9th day of January, 1906, the Alliance Trust Company, Limited, sold and conveyed the north half of the land in controversy to the defendant, Kit Bullock, and on the 25th' day of January, 1906, sold and conveyed the south half of the same tract to the defendant, Harrison McGehee. We do not find in the record that Haggart and McMaster ever sold or conveyed the interest in the land conveyed-to them by Julia,. W. R. and W. G. Streett, and that the Alliance Trust Company, Limited, acquired any interest in the same.
The defendants took possession of the west half of the land in controversy immediately after purchasing it from Wm. B. Streett, and at all times since then have held open and adverse possession thereof.
The lands were sold on the 15th day of May, 1876, for -the taxes and costs due thereon for the years 1873, 1874 and 1875. 'The record of such sale shows that the land was valued for •each of the years 1874 and 1873 at $154, and that the county tax and penalty assessed against the land for each of such years was $1.54, and that the land was forfeited to the State of Arkansas. Such forfeiture was set aside by the Chicot Chancery 'Court on the 28th day of January, 1882, in a proceeding lawfully instituted under what is known as the “overdue tax act.”
The chancery court, upon hearing, found that the defendants acquired title to the west half of the land in controversy "by adverse possession, and dismissed plaintiff’s complaint as to -that part for want of equity; and found the tax sale of 1868 was void, and quieted plaintiff’s title to the east half of the land as against the defendants; and both parties appealed.
It has been repeatedly held by this court that “in suits to •quiet title the plaintiff must succeed, if at all, as in actions •of ejectment, upon the strength of his own title, and can not rely upon the weakness of his adversary’s, and the burden is -upon him to show title.” Lawrence v. Zimpleman, 37 Ark. 644, 647; Kelley v. Laconia Levee District, 74 Ark. 202; St. Louis Refrigerator & Wooden Gutter Co. v. Thornton, 74 Ark. 387; Chapman & Dewey Land Co. v. Bigelow, 77 Ark. 338, 346; Mason v. Gates, 82 Ark. 294, 301; Little v. Williams, 88 Ark. 37; McMillan v. Morgan, 90 Ark. 190; Sibly v. England, 90 Ark. 420, 423.
The land .was sold for the taxes of 1868 on the 13th day •of September, 1869, and the deed on account of such sale was •executed on the 6th day of February, 1900. This deed was .authorized by the statute which provides: “When, by the provisions of any former law of this State, any officer or person was by law authorized to make deeds for lands or lots sold for taxes, and the same has not been done, the clerk of the county ■court of the proper county shall be and is hereby authorized . to make such deeds to all persons entitled thereto, and the deeds which shall be made by the clerk of the county court shall be , good and valid in law as if made by the person authorized •under such former law to make such deeds.” Kirby’s Dig., § 7108. And such former law, under which the land in controversy was sold for taxes of 1868, provides that a deed executed in pursu anee thereof “shall vest in the grantee, his heirs or assigns, a. good and valid title, both in law and equity, and shall be received in all courts as prima facie evidence of a good and valid title in such grantee, his heirs and assigns.” Acts of 1868,. page 280, § 70.
The deed executed by county clerk of Chicot County to' the heirs of William B. Streett is prima facie evidence of a good and valid title to the land in controversy in the grantees therein,, their heirs and assigns. This prima facie evidence is not overcome. An effort to do so was made by the record of the sale of the land for the taxes of 1873, 1874 and 1875, on the 15th day of May, 1876. Such sale should have been for the taxes-of all these years at one time, at one offering, and not in separate sales. Worthen v. Badgett, 32 Ark. 496, 532, 533. The presumption is that it was, and was sold for one per cent, county tax for 1875, when five mills was the maximum of such tax. Constitution of 1874, art. 16, § 9. The sale was void, and was afterwardsset aside by decree of the Chicot Chancery Court rendered on the 28th day of January, 1882, which decree was followed by an invalid sale made under decrees rendered by a special judge at an adjourned term of the court, when the judge thereof was-holding the regular term of another county. Streett v. Reynolds, 63 Ark. 1.
The court found that the tax sale of 1868 was void. We-find no evidence of that fact. The plaintiff filed a copy of the record of the sale of the land for the taxes of 1868, on the 13th of September, 1869, to prove that fact. But it contains only the names of the owner, the description of the land, the taxes assessed against the same, and the name of the purchaser. It was a record of the sale, and nothing more, and does not show its invalidity.
Plaintiffs failed to show that they had title to the land. Their complaint ought to have been dismissed for want of equity.
The decree is affirmed as to the west half of the land; and as to the remainder is reversed, and the cause is remanded with directions to the court to enter a decree in accordance with this opinion.
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Wood, J.,
(after stating the facts). The only question is, shoitld the judgment be reversed because the senior mortgagee an’d 'fumor mortgagees were joined in the complaint for foreclosure? Mr. Pomeroy on Code Remedies says: “It is a rule universally established that all subsequent incumbrancers, who are holders of general or specific liens on the land, whether mortgagees, judgment creditors, or whatever be the nature of the lien, if it can be enforced against the land, are not necessary parties in the sense that their presence is indispensable to the rendition of a decree of sale; but they are necessary parties defendant to the recovery of a judgment which shall give to the purchaser thereunder a title free from their liens and incumbrances. If they are not joined as defendants, their rights are unaffected; their liens remain undisturbed and continue upon the land while in the hands of the purchaser; and they retain the right of redemption from the holder of the mortgage before the sale, and from the purchaser after the sale. It is not, in general, considered that prior incumbrancers are even proper defendants, 'for, as their liens .are paramount to the mortgage, they can not be in any manner affected by the action or decree therein. Section 239, p. 333.
Where a junior mortgagee comes in and joins in a suit to foreclose, it is not necessary to make him a party defendant, because he is then already before the court. The object in making him a party defendant is that he may be brought in, so that his rights may be protected and preserved as far as pos sible, and that the purchaser under the decree of foreclosure may get a title free from junior liens. Mr. Jones says: “In one sense every person who has acquired any interest in the property subsequent to the mortgage is a necessary party to the suit for foreclosure, whether that interest be by way of mortgage or judgment lien, an inchoate right of tenancy in dower or curtesy, or an unconditional estate in fee; because, in order to make the foreclosure complete, and to transfer a perfect title by the sale, it is necessary, that the holder of every such right or interest should be brought before the court.” Again he says: “All parties in interest should be joined, inasmuch as it is true that the proper object of a bill in,equity to foreclose a.mortgage is to cut off all rights subsequent to the mortgage.” 2 Jones on Mortgages, § § 1394, 1396. At section 1442 the same author says: “New parties who are found to have an interest in the premises may be joined in the bill by. amendment, or in a supplemental bill, if application be made within a reasonable time; or they may themselves intervene in the original cause by petition, or may maintain a separate bill. A suit may be stayed, even on final hearing, to bring in subsequent 'mortgagees and incumbrancers who are found to be proper parties.” Our own court has held that in a foreclosure suit a senior mortgagee need not be made a party. See White v. Holman, 32 Ark. 753.
“It is a general rule in equitv,” savs Mr. Pingrey, “that all persons materially interested, either legally or beneficially, in the subject-matter of the suit are to be made parties to it, either as plaintiffs or defendants, however numerous they may be, so that there may be a complete decree which shall bind them all.” 2 Pingrey oh Mort, § 1665.' Our statute provides: “All persons having an interest in the subject of an action, and in obtaining the relief demanded, may be joined as plaintiffs except. where it is otherwise provided. Section 6005, Kirby’s Dig. “Subject of an action” is not the cause of the action, nor the object of the action. It rather describes the physical. facts, the things, real or personal, the money, lands, chattels, and .the like, in relation to which the suit is prosecuted. When there is a suit to foreclose a mortgage, all the mortgagees have an interest in “the subject” of the action and “in obtaining the relief demanded.”
Therefore, treating the objection to the complaint as for “misjoinder and multifariousness” as properly raised, the judgment of the court is correct, and must be affirmed. It is so ordered.
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Hart, J.
This action was commenced in a justice of the peace court by T. C. Marlar against J. D. Pelt. The justice rendered judgment for Marlar, and Pelt appealed to the circuit ■court, where the case was tried before the court sitting as a jury. Marlar again recovered judgment, and Pelt has appealed to this court.
The action was brought on a check of which the following is a copy:
“$100.00 New Rewisville, Arkansas.
“January 14, 1909.
“Merchants & Farmers’ Bank:
“Pay to T. C. Marlar tine hundred dollars.
“No. 15. “J. D. Pelt.’’
The testimony is practically undisputed, and is substantially as follows: Appellant drew the check in question on the day it bears date, and at the time had on deposit sufficient funds with which to meet it, and which he did.not thereafter draw out of the bank.. Appellant indorsed the check in blank, and on the 18th inst. delivered it to the Citizens’ Bank of Hope, Arkansas, for collection, which on the same day mailed the check to the German National Bank at Rittle Rock, Arkansas, properly indorsed for collection. On the 20th inst. that bank indorsed it and sent it forward to the Merchants & Farmers’ Bank for collection. The latter bank is at New Rewisville, Arkansas, and closed its doors on the 20th inst. because of insolvency. Its assets were placed in the hands of a receiver, and it is admitted that they are not sufficient to pay the creditors of the bank any substantial sum. The bank continued to pay checks presented in person or by agent up to the close of its business 'day on Saturday the 16th inst.; but collections presented to it through the mails were paid by exchange on other banks, and none of the exchange issued by it after the 15th inst. was honored.
The payee and the bank on which .the check was drawn were in different places in the same county about 15 miles apart; and counsel for appellee contends that the testimony on his part shows that, had appellant forwarded the check in due course of mail, it would not have reached New Lewis-ville until the 15th inst. after banking hours, .and that under the rule announced in Burns v. Yocum, 81 Ark. 127, he was not required to present it until the next day, at which time he contends that it would have been too late, for the reason that none of the exchange issued by the Merchants & Farmers’ Bank on that day was paid; but learned counsel do not take into consideration the fact that checks presented in person or by agents for collection on the 16th inst. were paid. It may be conceded that the mere fact that appellee forwarded the check direct to the drawee itself, instead of having it presented through another agent, would not of itself discharge appellant. See Citizens’ Bank v. First National Bank (Iowa), 13 L. R. A (N. S.), 303.
But other facts and circumstances enter into the present case. Appellant had sufficient funds on deposit to pay the check, and did not withdraw them. Had appellee promptly forwarded the check to a suitable agent at New Lewisville for presentation, it is conceded that it would have reached him on the evening of the 15th inst., and, had such agent presented it for payment the next day, the undisputed evidence shows that it would have been paid. The failure to do so occasioned loss to appellant, which would have been avoided had presentation and demand of payment ¡been made by some suitable agent selected by appellee for that purpose. This principle is recognized in the case of Citizens’ Bank v. First National Bank, supra, and Plover Savings Bank v. Moodie (Iowa), 110 N. W. 29, and cases cited.
It follows, therfore, that the judgment must be reversed, and, as there is no dispute about the facts, the case will be dismissed.
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OPINION OF THE COURT.
McCoy, as administrator of Carlisle, made his motion before the county court of Conway county, for an allowance against Lemons, administrator of McElmurry. After a hearing of the parties, the county court sustained his motion, and allowed him five hundred dollars, with interest at the rate of six per cent, per annum, from the 29th day of October, 1S25, from which Lemons appealed to the circuit court; but the appeal was dismissed on the motion of Lemons, on the ground that ten days’ notice had not been given to him, according to the directions of the statute of 1825, and from which latter decision McCoy has appealed to this court.
It appears from an examination of the proceedings before the county court, that the defendant W'as present at the trial in that court, which, in our opinion, superceded the necessity of notice. "The notice prescribed by the act of 1S25, can only be considered in the light of process to bring the party into court, and of course his voluntary appearance supersedes the necessity of it. Acts Fla. 1825, p. 66. There is no principle of law better established than that the appearance of the defendant cures all defects and irregularities in process. It cures the want of service. Caswall v. Martin, 2 Strange, 1072; Wood v. Lide, 4 Cranch [8 U. S.] 180; Knox v. Summers, 3 Cranch [7 U. S.] 498. Judgment reversed.
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Wood, J.
The court erred in permitting the testimony of Mrs. Wise, taken before the grand jury, to be read as evidence. The record itself does not recite that appellant consented to the reading of the testimony of the witness, Mrs. Wise, taken before the grand jury, and there is no sufficient showing of consent on the part of appellant to such proceeding in the bill of exceptions.
The court, after hearing the statements of the respective counsel, stated that it was his recollection “that there was an agreement at the last term of the court that the prosecuting attorney would be permitted to read the testimony of the witnessess; that that was the ground for granting defendant a continuance at the former term.”
The statements of the respective attorneys as to the purported agreement on the part of appellant were not under oath, and, at most, on the part of the prosecuting attorney, it was but a statement of his understanding or recollection of what was said by the appellant’s counsel. The appellant’s counsel earnestly denies that' he made such an agreement, and states affirmatively what he did agree to, which was entirely different from the understanding of the prosecuting attorney. The court adopted the understanding of the prosecuting attorney as correct, stating that it was in accord with his own understanding of the agreement.
The showing made by this record is not sufficient to deprive appellant of the right given him under the Constitution, “to be confronted with the witnesses against him. ’ ’ Const, of Ark., art. 2, § 10.
The testimony thus introduced on behalf of the State against the appellant was prejudicial to his rights, and the court erred in admitting it.
Other errors are complained of; which may not occur again, and we deem it therefore unnecessary to discuss them.
For the error indicated, the judgment is reversed and the cause remanded for a new trial.
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Wood, J.,
(after stating the facts). The court erred in granting appellee’s prayer for instruction No. 2. It was a question for the jury to determine as to whether or not the appellee was negligent in undertaking to walk from Halley to Trippe station, under the facts which the testimony tended to prove.
. It did not follow as a matter of law that if the jury found the facts as recited in the first part of the second instruction, given at appellee’s request, that “she had a right to elect to walk to said station, if she could not get other means of conveyance, without assuming the risk incident to taking such walk. ’ ’ It was still a question for the jury to determine as to whether or not appellee was negligent and assumed the risk incident to the journey, even though the facts were as stated in the first part of the instruction, for the undisputed evidence shows that appellee was a woman sixty-nine years of age, and that she was in a debilitated condition at the time, and that it was a hot day. Under those circumstances, which the first part of the instruction ignored, it was a jury ques tion as to whether or not she was guilty of contributory negligence in walking from Halley to Trippe station.
While the undisputed evidence shows that the aged mother was induced to take the long walk of four miles out of love and deep solicitude for her daughter who was so critically ill, it was nevertheless for the jury to say whether or not one of her age and enfeebled condition should have undertaken such a journey under the circumstances disclosed by the evidence. The first part of the instruction tells the jury that she had a right, under the circumstances, to walk to said station without assuming the risk incident to taking such walk, and the latter part of the instruction leaves it to the jury to say whether or not, from the evidence, “the circumstances justified her in electing to walk,” but the two propositions are wholly inconsistent and irreconcilable, and were well calculated to mislead the jury. In this respect, the instruction was inherently erroneous, and no specific objection was required to present the error of the court’s ruling, because it was not a mere defect in verbiage or form, but one of substance, to which a general objection would be sufficient. But even if a specific objection had been necessary, prayer No. 2 of the appellant, which the court granted, was in direct conflict with the objectionable part of prayer No. 2 of the appellee, and was tantamount to a specific objection to such prayer.
To furnish the jury a correct guide, the charge of the court as a whole must be consistent and harmonious. St. Louis, I. M. & S. Ry. Co. v. Steed, 105 Ark. 205; St. Louis, I. M. & S. Ry. Co. v. Rogers, 93 Ark. 564, and cases there cited; A. L. Clark Lumber Co. v. St. Coner, 97 Ark, 358; St. Louis, I. M. & S. Ry. Co. v. Brown, 100 Ark. 107; Hodge-Downey Co. v. Carson, 100 Ark. 433; Dare v. Harper, 101 Ark. 37, 140 S. W. 983.
Appellee’s prayer for instruction No. 3 was defective in that it did not require the jury, in case of a favorable verdict for the appellee, to base their finding as to the amount of damages on the evidence in the case. See St. Louis, I. M. & S. Ry. Co. v. Steed, supra. This instruc tion, however, when taken in connection with the other prayers, was not so misleading to the jury as to constitute reversible error.
For the error in giving instruction No. 2, the judgment is reversed and the cause remanded for a new trial.
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Hart, J.,
(after stating the facts). It is conceded that the sale of the lands for the nonpayment of the taxes of 1868 was void. Mrs. Lucy Ricks, one of thb appellants, paid the taxes for 1904 on March 25, 1905, and continued to pay the taxes for each successive year thereafter until the present suit was instituted, which was on April 29,1911. In the case of Updegraff v. Marked Tree Lumber Co., 83 Ark. 154, the court, in discussing the question of title acquired by payment of taxes on unimproved and unenclosed land, said:
“And we think it necessarily follows from that conclusion that there must be an unbroken possession for a period of seven years from the date of the first payment, and that the mere payment of taxes seven times is not of itself seven years’ possession, where the possession is broken by the commencement of an action within seven years after the date of the first payment. We are therefore of the opinion that appellee failed to show title by limitation.”
So here the lands were unenclosed and unimproved, and there was not seven years from the date of the first payment of taxes by Mrs. Ricks until the institution of this suit.
Appellants also invoke the doctrine of laches to bar appellees of their right of recovery in this action. It is true that appellees did not pay taxes on the lands after they were forfeited in 1869, and that they did not thereafter exercise any control over the lands until the institution of the present suit; but the lands were wild and unimproved, and there was no need or occasion for them to exercise any control over them. The mere fact that they did not pay the taxes and remained silent during all these years did not estop them from claiming title to the lands, or bar them of their right of recovery in this action. It is also true that the lands increased in value, and that this increase in value was partly due to the fact that appellants, and other sawmill companies, established sawmills in that part of the country, and for the further reason that a railroad was constructed there. Thus, it will be seen that the increase in value was common to all the lands in that part of the country, and was not due to any act of appellants exclusively in regard to the lands in question. Appellees did nothing to cause appellants to believe that they had abandoned their title to the lands or to induce appellants to purchase the same on the faith that they did not claim title thereto. Mere inaction on the part of appellees and the failure to pay taxes by them short of the statutory period do not constitute supervening equities calling for the application of the doctrine of laches. Updegraff v. Marked Tree Lumber Co., supra, and cases cited; Chancellor v. Banks, 92 Ark. 497; Tatum v. Arkansas Lumber Co., 103 Ark. 251. Moreover, the decree must be affirmed for another reason. The recitals of the decree originally rendered in the chancery court shows that, in addition to the depositions and documentary evidence read in the cause, it was submitted upon the oral testimony of three witnesses. This oral testimony is not brought into the record by a bill of exceptions nor by any other proper method. Appellants sought to remedy that defect by a nunc pro tunc order made at a subsequent term of the court. By that order the decree is made to read as be fore with this addition: “And the oral testimony of these three witnesses was to the point, and only to the point, of identifying the records of sale of forfeited lands for taxes in 1868, set out above, so far as the court remembers.” In the case of Bradley Lumber Co. v. Hamilton, 109 Ark. 1, 159 S. W. 35, this court said, in regard to a precisely similar contention, that the chancery court could not by nunc pro tunc entry bring oral testimony into the record by recitals in the decree of its recollection of the testimony. It follows that the decree must be affirmed.
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McCulloch, C. J.
The grand jury of Garland County returned an indictment against appellant, charging him with the crime of grand larceny, committed by stealing, taking and carrying away $20,000 in paper money, the personal property of one Frank P. Fox, and on a trial before a jury the defendant was convicted and sentenced to the penitentiary.
The facts of the case, as adduced from the State’s testimony, accepting it as true in its strongest light, are about as follows: Fox resides in the State of Indiana, and is said to be a man of considerable wealth. He had an acquaintance in that State named Worth, who was also an acquaintance of appellant. The three met in a bar room in Terre Haute, Ind., and appellant (who was introduced to Fox under the name of Ward) reported to Fox that his brother-in-law,- one Denton, was assistant manager of the Indiana Clnb, a gambling house in the city of Hot Springs, Arkansas; that Denton was dis- . satisfied with the management because he had not been paid his full share of the profits, and had arranged with the dealer of the roulette wheel to “fix” the wheel so that a player would be sure to win, and that all that was needed was- some man of wealth to play the wheel and secure large winnings. He said they wanted to interest a man known to be wealthy so that his playings would appear to be in good faith. Appellant and Worth proposed to Fox that he go into the scheme as the wealthy man of the party, and that the winnings would be divided. Fox readily accepted the offer, and the trio at once departed for the field of operations at Hot Springs. When they reached the latter place, they were met at the train by a man who gave his name as Joe Denton, but whose real name was “Jimmie Johnson,” and who, according to the theory of the State, was a party to the scheme to swindle Fox. Denton conducted the party up to the hotel, and, after they had registered, all of them repaired to the club rooms late in the afternoon for the purpose of practicing the fraudulent game on the roulette wheel so that when the real play came off at night they would know how to play the right numbers. The dealer of the wheel- was into the scheme, and Fox and Worth were fully instructed as to what numbers to play. After the practice was over, the party went back to the hotel, and returned to the club rooms after the evening meal for the- purpose of starting the play. Fox purchased $20,000 worth of chips, and gave his check on a bank in Illinois. He began playing- the wheel, and in a few minutes — not over ten or fifteen minutes, according to his statement—he won $26,700, without sustaining any losses, and upon signal from Denton, quit playing, it having been understood between them that the winnings should not be too large for fear that the management would suspect the trick. This gave him chips, including his- winnings' and his original stake, ag gregating the sum of $46,700, and he started to cash the chips. When the money was being counted out to him, he asked for the-return of his check, and about that time a man calling himself Wilt, and claiming to be the manager of the club, walked in and said, “What check is that? Is it an out-of-town check?” and, upon being informed that it was, said, “I thought I told you not to take any more out-of-town checks. ’ ’ Some argument ensued between Wilt and the party, composed of Denton, Fox, Worth and appellant, about the check being accepted contrary to the rules of the club, and Wilt proposed that he would give a due bill for the amount owing to Fox ($46,700), and pay the same as soon as the check should be paid. Fox demurred to this on the ground that it would take too long to send the check through various banks for collection, and proposed that the manager hold the check, and he keep the due bill until he could go back to Indiana and bring down $20,000 in money as an evidence of the fact that his check had been, given in good faith, and would have been paid. This plan was agreed upon, and Fox made an endorsement on the back of his check, showing that the same was not to be deposited for collection. He went back to Indiana, secured the $20,000, and returned in company with Worth. When they reached Hot Springs they again repaired to the gambling room (the same parties, Fox, Worth, Denton and appellant, being present), and Fox produced the $20,000, and also presented his due bill at the same time for payment. He counted the money in the presence of Wilt, who claimed that he had followed the 'count, and that only $18,500 was in the roll, and he took it out of Fox’s hands—“snatched it,” as Fox states-—and proceeded to count it himself, and after verifying the amount and finding that there was $20,000 in the roll, placed it in a drawer. Wilt then proceeded to count out the money for the purpose of cashing the due bill, but found, or pretended to find, that he was short $10,000 of enough money to pay the due bill, whereupon he offered to give his check for the $10,-000, which Fox, upon the suggestion of Worth, declined to accept for the reason that the manager had declined to accept his check. Wilt then proposed that the party wait while he sent ont to the bank and got a $10,000 cheek cashed, and this was agreed upon. They went into an adjoining room, and spent the time of the delay in drinking wine. After they had drunk a glass or two, Denton handed the due bill to appellant and said, “You don’t drink much; take this order and go in there and talk with the old man” (meaning the so-called manager, Wilt). Appellant left the room as he was bidden, and, after being absent a short time, returned hurriedly into the room, and as he came through the door, he was crying and said, “What will we do? 1 lost $26,000 of that money.” Denton struck him a light blow, and the operator of the wheel came through about that time, and said, “You damn fool, what did you play that wheel for? I had the works in my pocket; no wonder you lost. Get out of here; we are done with you forever.” Whereupon appellant left the room and was heard of no more until he was arrested in Chicago, except a brief conversation held with Fox a little while afterward at the hotel. A few minutes after appellant left, Wilt stated to Fox that appellant had lost the $46,700 playing the wheel, and another of the party verified this statement, saying that -appellant had played the checks, ‘ ‘ like money grew on trees in his part of the country.” Wilt kepjt the $20,000 which he had taken out of the hands of Fox, and the latter left the place.
The indictment of appellant and others of the party followed.
Fox testified that he exhibited the $20,000 merely as an evidence of his good faith in giving the check for chips, and that he had no intention of parting with the title to the money.
Appellant testified in his own behalf, and corroborated Fox’s statement as to most of the details of the transaction, but he testified that he took the due bill and played the amount of it off on the wheel at the suggestion of Fox and Worth. He testified that Denton told Fox that he thought' it would be a good idea, while the “old man” (Wilt) was in the room, for them to play part of the money off, and that he kept up the play too long, the inference from his statement being that this was caused by the exhilaration from the wine drinking. He said, however, that Fox was present during his play. He claimed that he had been told that the wheel would be “fixed,” and that he entered into the arrangement with Fox and Worth in good faith to beat the wheel under a promise that he would be given part of the winnings.
The issue was sharply drawn in the testimony before the jury as to whether Fox delivered the money ($20,000) with intent to part with the title, and whether he consented to the last playing of the wheel when the whole of the winnings and the original stake were lost by appellant. The court submitted those questions to the jury upon proper instructions, and the issue has been settled against appellant.
The law applicable to this case is decided in the two cases of Hindman v. State, 72 Ark. 516, and Johnson v. State, 75 Ark. 427. In those cases the law was stated as follows:
“Where several persons conspire to cheat a man under color of a bet, and he simply deposits his money as a stake with one of them, not meaning thereby to part with the ownership therein, they, by taking the money committed larceny none the less, though afterward they are by fraud made to appear to win.”
In the Hindman case, the indictment was for the crime of larceny, and this court reversed the judgment of conviction because the trial court gave instructions which ignored the question whether the injured party had delivered the money to the stakeholder with intention to part with the title.
In the Johnson case that issue was correctly submitted to the jury, and the judgment of conviction for the crime of larceny was affirmed.
In the present case that issue was, as before stated, correctly placed before the jury in appropriate instruc tions. The instructions are numerous, and need not be set forth here at length. Suffice it to say that the appellant’s criticisms are unfounded. The facts of this case, if the testimony of the State’s witnesses is believed, make out a case of larceny according to the rule announced in. those cases.
Appellant asked several instructions telling the jury, in substance, that if the money was snatched from the hands of Fox without the latter’s consent, the crime would be robbery, and not larceny, and that appellant could not be convicted under this indictment. The court refused to give those instructions, and counsel for appellant now insist that such refusal constituted error.
The court was correct in refusing the instructions, because the evidence did not make out a case of robbery, for the mere snatching of the roll of money from the hands of Fox did not, of itself, constitute the crime of robbery. “It is well established,” said this court in the case of Routt v. State, 61 Ark. 594, “that' the snatching of money or goods from the hand of another is not robbery, unless some injury is done to the person, or there be some previous struggle for the possession of the property, or some force used in order to obtain it.”
But even if the facts of the case constituted the crime of robbery, it would have been incorrect to give an instruction to the jury that on that account the accused should be acquitted of larceny, the crime charged in the indictment. The charge of robbery includes a charge of larceny, and even though the accused be guilty of the higher offense of robbery, the State has the right to elect to indict for the crime of larceny which is embraced therein, and seek a conviction for the crime of larceny, ignoring the higher offense. Routt v. State, supra.
Error of the court is assigned in permitting the State to introduce the statement of Wilt, the so-called manager, made to Fox, a few minutes after appellant had left the gambling place, to the effect that he (appellant) had lost the $46,700 playing the wheel. It is insisted that this violated the rule of evidence that the admissions of co- conspirators are not admissible against each other after the purpose of the conspiracy had been consummated. The alleged exception appears in the records as follows: ‘ ‘ Q. What did you do immediately after that A. I went back into the ladies ’ room where the wheel was. Q. Who was in there when you got back? A. Mr. Wilt and Mr. Byan, and I asked Mr. Wilt what—” (Mr. Bhoton: “I object to all this and save exceptions.”) (Witness, continuing) : “I asked Mr. Wilt what Ward had lost, and he said he lost $46,700.”
In order to properly preserve an objection to a ruling of the court upon testimony and the exception to the ruling, the complaining party should ask for a ruling of the court upon his objection. It does not appear in the record that this was done, for the objection and exception were made at the same time, and no ruling was asked. The witness was permitted to continue with his statement without any ruling of the court being asked for. But even if an exception had been properly preserved, we are of the opinion that the testimony did not violate the correct rule of evidence. According to the State’s theory, the scheme was to secure possession of Fox’s money, and then retain possession under false pretense that it had been played off in gaming at the wheel. If this was true, the purpose of the conspiracy was not consummated until the fálse pretense was made to Fox which induced him not to insist on return of his money. In other words, it was a part of the conspiracy to pretend to Fox that his money had been lost in play at the wheel, and in making the alleged statement to Fox, Wilt was only carrying out a part of the plan embraced in the conspiracy. He was merely “making away with the goods,” so to speak. The conversation occurred within a few minutes after appellant had left the room, and was really a part of the transaction whereby the false pretense was made to Fox. In addition to that, we are clearly of the opinion that no prejudice could have resulted to appellant from this testimony, because the alleged statement made by Wilt was precisely what appellant testified to on the witness stand, and the two statements corroborated each other. Wilt’s statement to Fox was that appellant had played the amount of the due bill, $46,700, on the wheel. Appellant testified that he surrendered the due bill for chips amounting to $46,700, and played the amount off on the wheel, and that he did that in the presence of Fox, and with the latter’s consent. The difficulty with appellant’s case is that the jury did not believe his statement, and came to the conclusion that his claim and that of Wilt’s, as to Ms playing’ the money off at the wheel, were false, and were made merely as a pretense to Fox and an excuse for the loss of the money and the retention of the $20,000 wMch he had produced and exhibited to show his good faith in giving the check for the original stake. In any view of the case, therefore, tMs exception presents no ground for reversal.
Appellant sought to quash the indictment because counsel employed specially to assist the prosecuting attorney was in the grand jury room when witnesses were examined.
The testimony heard on the motion discloses the fact that Mr. Martin, the attorney employed by Fox to assist in the prosecution, was in the grand jury room, and conducted the examination of witnesses, and that either the prosecuting attorney, or Ms deputy, was. present in the room during a part, if not all, the time. Mr. Martin was present in the grand jury room, and conducted the examination at the request of the prosecuting attorney. The attorney was not present, however, when the grand jury was deliberating or voting on the charge.
TMs, we think, brings the question within the rule announced by this court in Bennett v. State, 62 Ark. 516, and Tiner v. State, 109 Ark. 138, where we held that “the presence in the grand jury room of an attorney employed by the State to assist the prosecution,” was not ground for quashing the indictment. We also held, in Richards v. State, 108 Ark. 89, that the presence of a stenographer in the grand jury room at the request of the prosecuting attorney -would not vitiate the proceedings.
The only distinction between the present case and the preceding ones is that the prosecuting attorney, or his deputy, was present in the grand jury room with the special counsel in this case, but not in the preceding cases. Those cases establish the rule that if the special counsel is in the room at the request of the prosecuting attorney, and for the purpose of assisting in the prosecution, it does not vitiate the proceedings. We do not think that the rule is altered by the fact that the prosecuting attorney himself, or his deputy, also present. The rule established by the eases is that it does not offend against the statute for the prosecuting attorney to have a stenographer or attorney in the grand jury room to assist him at such times as the statute permits him to be there himself. So, it is unimportant whether the prosecuting attorney is himself present or not if the purpose of the presence of another party is such as does no violence to the spirit and meaning of the statute.
Appellant asked the postponement of the cause to enable him to take depositions of witnesses in Indiana to impeach the credibility of witness Fox, the injured party, or to give time to bring witnesses from Indiana for that purpose.
The depositions of witnesses for the purpose of impeaching Fox had been taken in another case against one Spear, and the contention of counsel for appellant in this case is that, either by agreement of counsel or an order of court at a previous term, those depositions were to be read in appellant’s case. The record of the court does not show any order for the taking of depositions in this case, or that the depositions in the Spear case were to be used in this. The court heard testimony on this issue as to what the former order of the court was, and found that no such order had been made. There is much testimony to the effect that appellant’s counsel, at the time the order at the preceding term was made, thought that it was to include depositions in this case, and that the depositions taken were to be used in this case. But the order of court does not read to that effect, and, according to the preponderance of the evidence, there was no agreement of counsel covering the subject, and we can not say that the court abused its discretion in refusing to postpone the trial.
Another assignment of error is that the clerk of the court violated the terms of the statute in opening the additional jury list out of the presence of the court.
The statute governing the formation of juries, after providing for the selection by jury commissioners of the regular panels of the grand jury and petit jury, contains a further provision for the selection, at the discretion of the court, of a list of names to be used, in lieu of summoned bystanders, after the regular panel has been exhausted. The two sections of the Digest read as follows:
“The circuit courts shall have power, if they deem the same advisable, to direct the jury commissioners in addition to the regular panel, to provide a list of names not less than twenty-five, for the use of said court in all cases when the regular panel may have been exhausted in empaneling any jury, said list to be drawn in lieu of summoning bystanders.
* ‘ Said list so returned as provided in the foregoing section shall be placed in a separate box, each name having been written on a separate slip of paper, and said box shall be securely locked or sealed, and shall not be opened except under direction of, and in presence of, the court. Whenever the regular panel shall be exhausted as provided in the foregoing section, the court, instead of summoning bystanders, shall direct the clerk to draw from said box a sufficient number of names to complete the jury being empaneled, and shall hand the same to the sheriff, who shall. forthwith proceed to summon said parties for service on said jury. Provided, if said list so drawn from said box shall be exhausted, the court shall order the sheriff to summon bystanders as provided by law.” Sections 4510 and 4511, Kirby’s Digest.
It appears in this case that such a list had been se lected and kept by the clerk, and had been opened in the trial of the Spear case. The statute provides only that when the list is opened it shall be done in the presence of the court, and there is no provision that after part of the list is exhausted, the remaining part shall be again sealed or locked. Moreover, it will be seen that, according to the terms of the statute, this provision is exercised at the discretion of .the court, and an accused has no right to a trial before a jury selected in this manner. If no such list had been provided, or, if the list had not been kept in accordance with the terms of the statute, the jury could have been completed by summoning bystanders after exhausting the regular panel, and the fact that a list was used which had not been properly kept would not vitiate the proceedings.
The remaining assignment of error is that the court erred in permitting the argument of the case to be closed by the attorney employed in the case instead of by the prosecuting attorney. It is insisted that the statute (Kirby’s Digest, § 2388) requires the prosecuting attorney himself to make the closing argument.
We do not so construe the statute, for it merely prescribes the order of the argument, and not the particular attorney who shall close. The purpose of the statute is to require the attorney for the party having the burden of proof to open and close the argument. There is nothing in it that requires the prosecuting attorney, when assisted by other counsel, to make the closing argument himself.
The record in this case is, in our opinion, free from prejudicial error, and the judgment is therefore affirmed.
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Hart, J.
The General Assembly of 1911 passed an act for the creation of an improvement district for the purpose of constructing a bridge over the Arkansas River, at or near the city of Pine Bluff, and the constitutionality of the act was sustained in the case of Board of Directors of Jefferson County Bridge District v. Collier, 104 Ark. 425. Subsequently, certain owners of land within the proposed district presented to the circuit court of Jefferson County a petition for a writ of certiorari to bring up and quash the proceedings of the Board of Directors of the Jefferson County Bridge District finding that the petition for improvement had been signed by a majority, as prescribed by the terms of the statute authorizing the improvement. The circuit court sustained a demurrer to the petition, which, on appeal, was affirmed by the Supreme Court. Collier v. Board of Directors of Jefferson County Bridge District, 106 Ark. 151, 153 S. W. 259. The court held, however, that a property owner should be allowed to call in question, on the ground of fraud, a finding of the Board of Directors, and the court said:
“We are of the opinion, however, that the petition does not state facts sufficient to make out such a charge of fraud against the board of directors as will warrant setting aside the findings. Fraud which will vitiate the proceedings of the board does not mean errors of the board either of law or fact. In order to constitute fraud, there must have been an intent not to exercise an honest judgment and make a true finding, but to disregard the facts and make a false finding. This is not alleged in the petition. Taking the allegations as a whole, they amount only to a charge of error on the part of the board in refusing to hear and consider protests and evidence affecting the question at issue, and that the petition was not, in fact, signed by a majority of the property owners. The statute does not provide any method of procedure for the board, and the board had the right to inquire into the fact in its own way.”
Thereupon, certain land owners within the proposed district instituted a suit in the chancery court of Jefferson County, seeking to enjoin the board of directors from continuing the improvement on the ground that the finding of the board was false and fraudulent within the meaning of this decision. The present suit was instituted against the board of directors by Roane C. Bell, and, after hearing the evidence introduced by both parties, the chancellor dismissed the complaint for want of equity, and the case is here on appeal. The other cases were heard on the same testimony, and the plaintiffs in those cases have joined with the plaintiff in the request suit in briefing the case for hearing before us.
Section 5 of the act of 1911, Act 214, p. 608, Private Acts, under which the district was organized, provides, among other things, that if, at the hearing the board of directors shall find that the petition for the improvement was not signed by a majority, either in number or in acreage or in value, of the holders of real property within the district, as shown by the last county assessment, they shall so declare, and such findings shall terminate all proceedings under this act. It further provides that if said board of directors shall find that said petition is signed by a majority, either in number or in acreage or in value, of the holders of real property within the district, as shown by the last county assessment, they shall so declare and shall proceed to carry out the purposes of the act.
The board, after having examined the petitions filed with it, and after considering all the evidence introduced before it, found in favor of the organization of the proposed district, and the object and purpose of the present suit is to set aside the finding of the board on account of fraud.
The principal contention of counsel for plaintiff is that under section 5 of the act, set out above, the last county assessment on file with the county clerk of Jefferson County before the organization, is made the sole standard and guide whereby the board shall make an ascertainment and declaration of the question of whether or not there is a majority in numbers of the holders of real property within the district who signed the petition. On the contrary, it is contended by counsel for defendants that the words “as shown by the last county assessment” relate only to the value of the land within the proposed district, and are not to be taken as applying to the owners of the land or to the acreage.
In the construction of statutes the general rule is that a limiting clause is to he restrained to the last antecedent, unless the subject-matter requires a different construction. Cushing v. Worrick, 9 Gray (Mass.) 382; State v. Scoffer, 95 Minn. 311; Lewis’ Sutherland Statutory Construction (2 ed.), vol. 2, § 408; Black on Interpretation of Laws, p. 150. Under this rule of construction, we think that the words “as shown by the last county assessment” relate to the preceding word “value,” only, and do not qualify any of the other preceding words in the section. We think this construction is manifest from the general scope and purpose of the statute, and that such construction carries out the intention of the Legislature. Our statutes authorizing the creation of improvement districts in municipal corporations provide that the council, in organizing the district, shall be governed by the valuation placed upon the property, as shown by the last county assessment on file in the county clerk’s office. It is well known that persons differ widely as to the value of real property, and, by making the valuation placed by the county assessor on the real property a guide, a more uniform valuation of the property is ascertained than could be declared by any other means. It is a matter of common knowledge that land is frequently assessed and the taxes paid in the name of another person than the owner; and it is not to be presumed that the Legislature, in the act in question, intended that the board should be governed solely, as to the owners of property within the proposed district, by the county assessor’s books, for it is evident that this would not be a sure and safe method of ascertaining who owned land within the district. See Money v. Burke, 92 Ark. 84. Moreover, section 7113, Kirby’s Digest, provides that no sale of land or lot for delinquent taxes shall be considered invalid on account of its having been charged on the tax book in any other name than that of the rightful owner.
The evidence upon the part of the defendants shows that they acted honestly and in good faith in making their finding that the district had been organized ac cording to the terms of the act. They examined both the tax books and the county assessment list, and heard the testimony introduced by the land owners who objected to the formation of the district. Under the decision of the court upon the former appeal, in the case of Collier v. Board of Directors, reported in 153 S. W. 259, 106 Ark. 151, the finding of the board that the district was organized in conformity with the provisions of the act is conclusive.
Moreover, if it should be said that we are mistaken in holding that the words, “as shown by the last county assessment of the land within the district, ’ ’ do not qualify the word “value,” alone, the evidence does not show that there was an intent on the part of the members of the board not to exercise an honest judgment, and make a true finding. The evidence taken in the case is very voluminous. No useful purpose could be served by setting it out in detail. We deem it sufficient to say that we have carefully considered it, and are of the opinion that ‘it shows that the members of the board gave a full and fair hearing to the land owners who opposed the formation of the district, and in declaring that the district had been legally formed under the provisions of the act, and that their conduct, as shown by the testimony, leads us to the conclusion that they exercised their honest judgment to make a true finding, and- did. not attempt to disregard the facts and make a false finding. We held, when the matter was before us before, that fraud which would vitiate the proceedings of the board did not mean errors of the board, either of law or of fact. The most that could be said in the present case is that the testimony showed that the board made an erroneous finding; but it does not show that it made a false finding. The fact that the board went into executive session to consider the testimony presented to it does not in any manner indicate fraud on its part.
It is again strongly insisted by counsel for plaintiff that, under the provisions of section 5 of the act the finding of the board is not conclusive. In support of their position, counsel refer to the first part of the section which provides that the board of directors shall give public notice of the passage of the act and of their organization and the purposes of the act, and that the public improvement contemplated is conditioned upon its approval by a majority, either in numbers or in acreage or in value, of the holders of real property within said district. A subsequent clause of the same section provides that if the board of directors shall find that the petition is signed by a majority, either in number or in acreage or in value, of the holders of real property within the district, etc., they shall so declare, and shall proceed to carry out the purposes of the act. Thus it will be seen that the act does not provide that the validity of the organization of the proposed district shall depend upon the fact, whether a majority, either in numbers or in acreage or in value, of the holders of real property within the district, shall have signed the petition, but the validity of the organization depends alone upon the fact, whether the board of directors shall so find. It is true the first part of the act requires the board to advertise that the public improvement contemplated by the act is conditioned upon its approval by the majority; but, as we have already seen, power is conferred conclusively upon the board to ascertain and determine whether or not a majority has signed the petition. No doubt, the Legislature, in providing that the board of directors should give public notice that the public improvement is conditioned on its approval by a majority, contemplated that the finding of the board that a majority had signed the petition should be a true finding, and not a false one, and we so held when the matter was before us in our prior decision relating to the question.
Counsel have given no good reason why our ruling on this question was not sound, and we adhere to it on this appeal. Reference is made to our former decisions for the reason for adopting it. It follows that the judgment must be affirmed.
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Kirby, J.
The railroad brings this appeal from a judgment awarding $700 damages for personal injuries to .appellee, resulting from turning over his wagon at a crossing. It complains of the excessiveness of the verdict and the error of the trial court in submitting the question of the permanency of the injury to the jury without any testimony upon which to base it in instruction No. 2, as follows:
“If the plaintiff, James Scoville, recovers, the measure of his damages is a sum which will fairly compensate him for the injury received, if any, and the loss defendant has occasioned him, if any. Several ingredients go to make up such damages. He is entitled to damages for bodily pain and mental anguish, if any; also, from the permanent injury arising from the hurts to plaintiff, if any; also for the loss of time from his business.”
The complaint alleges a permanent injury, but the most the testimony shows is that the appellee’s side, back and hip were bruised; that he was kept indoors on account of it for three days and not permitted by his physician to return to his usual work until after ten days. He said that his side hurt worse than his hip and that his arm was dressed by the physician four or five times; that his side hurt him when he lifted anything up to the time of the trial, which occurred five months after the injury; that he spit up blood four or five days after it occurred. That he was away from his business for ten days and was making at the time the injury occurred $1.75 per day. There was no testimony relative to the payment of doctor’s bills, the railroad company’s physician having treated the patient, nor any testimony tending to show that the injury was permanent, unless it be appellee’s statement at the time of the trial, five months after the injury that “my side hurts me every time I lift, anything.”
The appellee resumed his usual work at the end of ten days, and although he stated at the time of trial that lifting still caused his side to hurt, there was no indication of the extent of the pain nor any testimony relating to its probable continuance.
In St. Louis, I. M. & S. Ry. Co. v. Bird, 106 Ark. 177, 153 S. W. 107, the court said:
“Unless there is testimony, tending to show with reasonable certainty that the injury is permanent, the court should not permit the jury to assess any damages for permanent injury. * * * But to fulfill the requirements of the law, there must be affirmative testimony to the effect that the injury was permanent before the jury would be authorized to find that such was the fact and the court should not allow the permanency of the injury to be considered as an element of damage where the witnesses themselves are uncertain as to whether there would be any permanent injury and where the nature of the injury per se does not show that the injury was permanent.”
There was no testimony tending to show that appeleluding the question in the instruction which was specifically objected to.
The record of the case furnishes no reasonable indication of the prejudicial effect of the error with the jury in the amount of the damages assessed. It may be that it did not operate to increase the damage awarded, aplee was permanently injured and the court erred in inpreciably, and, upon the other hand, it might have largely influenced them in fixing the amount, and, such being true, we do not think the case one where the court should fix the amount of a remittitur to be entered that would remove the prejudicial effect of the erroneous instruction. It is a question that only the jury can properly determine.
For the said error the judgment is reversed and the cause remanded for a new trial.
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McCulloch, C. J.
In each of these cases an attack is made on the validity of an improvement district, one in the city of Pine Bluff, and the other in the city of Argenta, Arkansas, organized pursuant to the general statutes of this State. The point of attack in each case is that the General Assembly of 1913 enacted a statute purporting to amend the general statutes on the subject of organization of improvement districts in cities and towns, but which omitted any provision for the appointment of commissioners, and that the effect of that omission was to render the whole of the law on that subject inoperative.
The original statute relating to the appointment of commissioners by the city council re.ads as follows:
“If within three months after the publication of any such ordinance a majority in value of the owners of real property within such district adjoining the locality to be affected, shall present to the council a petition praying that such improvement be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district or districts, the city council shall at once appoint three persons, owners of real property therein, who shall compose a board of improvement for the district.” Kirby’s Digest, § 5667.
The amendatory statute was approved and went into effect March 3, 1913, and the title thereof is “An Act to amend the statutes in reference to improvement districts in cities and towns.” Act No. 125, page 527, Acts 1913. The first section reads as follows:
“That section 5667 of Kirby’s Digest be amended to read as follows:
£ £ If within three months after the publication of any such ordinance, persons claiming to be a majority in value of the owners of real property within such district adjoining the locality to be affected shall present to the council a petition praying that such improvement be made, which petition shall designate the nature of the improvements to be undertaken, and that the cost thereof be assessed and charged upon the real property situated within such district, the city clerk or town recorder, by order of the city or town council, shall give notice by publication once a week for two weeks, in some newspaper published in the county in which such city or town may lie, advising the property owners within the district that on a day therein named, the council will hear the petition and determine whether those signing the same constitute a majority in value of such owners of real property. At the meeting named in the notice, the owners of real property within such district shall be heard before the council, which shall determine whether the signers of said petition constitute a majority in value, and the finding of the council shall be conclusive, unless within thirty days thereafter suit is brought to review its action in the chancery court of the county wher.e such city or town lies. In determining whether those signing the petition constitute a majority in value of the owners of real property within the district, the council and the chancery court shall be guided by the record of deeds in the office of the recorder of the county, and shall not consider any unrecorded instrument.”
Other sections of the amendatory statute make further changes in the law by adding new provisions and changing others.
An analysis of section 5667, as it stood before the amendatory statute was passed, reveals three separate points covered by it, namely, (1) a specification of the time within which the petition may be filed; (2) the requirement as to contents of the petition, and (3) the authority for the appointment by the city council of the board of commissioners and the specification of their qualifications.
The section, as amended by the last statute, omits any reference to the appointment of commissioners, and the contention is that this operated as a repeal of the old section without providing any method for making such appointment. Learned counsel for the appellants rely upon the well settled rule of construction announced by so many of the courts and text writers that, “when a statute amends a former statute ‘so as to read as follows,’ it operates as a repeal, by implication, of inconsistent provisions, in tbe former law, and of provisions omitted in the amended law.” In re Prime, 136 N. Y. 347, 18 L. R. A. 713.
The authorities in support of that rule are so numerous that it is unnecessary to cite them. The rule is clearly recognized by decisions of this court. Mondschein v. State, 55 Ark. 389; Rennau v. State, 72 Ark. 445; Henderson v. Dearing, 89 Ark. 600; Edland v. State, 91 Ark. 243.
But that rule of interpretation is not an absolute or an inflexible one, and is not always arbitrarily applied. It must be considered with other rules equally well settled, and must yield place to others which may, under the language of a statute, be more appropriately and accurately employed. The cardinal rule of interpretation is the ascertainment of the meaning of the law-makers as expressed in the language which they have used. Not what the law-makers themselves meant, but what the language they used means. And all rules of interpretation must yield to this as the paramount one.
“The intent of a statute being the law,” said Mr. Sutherland, “it necessarily follows that the object of all interpretation is to find out that intent.” 2 Lewis’ Sutherland on Statutory Construction, § 364.
In reaching the goal, we adopt any of the rules of construction which are found appropriate.
An examination of the amendatory statute discloses an irreconcilable conflict between the language thereof, when literally interpreted, and other parts of the same statutes as well as other parts of the old act which there appears no intention to amend or repeal. The language of the amendatory statute is that the section named above “be amended to read as follows;” but, as before stated, it omits any reference to the appointment of commissioners, and if a literal meaning be given to the words used, the result is that the whole law on the subject of improvement districts is abrogated. This the law-makers did not intend. The new act clearly contemplates the continued existence of a complete statutory scheme for organizing and carrying out the purposes of improvement districts, for we find in later sections of the amendatory statute references to the commissioners and their duties, and also find many untouched provisions of the old statute which contain references to the duties of the commissioners. Por instance, there is a section which specifies when the commissioners shall take the oath of office, and what the oath shall contain; another section contains a provision for filling vacancies, and another provides what shall constitute a quorum of the board for the transaction of business. Numerous other sections specify duties to be performed in carrying’ out the purposes of the organization of the district.
Now, the title of the act shows that the purpose of the law-makers was not to repeal the statute on the subject of improvement districts, but to amend the same, and if we give literal meaning to the words, we reach a result which the law-makers, not only are not presumed to have intended, but which the language they used shows affirmatively that they did not intend. Therefore, to adopt that construction would be to defeat the expressed will of the law-makers and work out an absurd result in the repeal of the law on this important subject.
Eight here we find application for a principle which is nowhere more clearly expressed than by this court in the case of State v. Smith, 40 Ark. 431, as follows :
“It is the duty of every court, when satisfied of the intention of the Legislature, clearly expressed in a constitutional enactment, to give effect to that intention, and not to defeat it by adhering too rigidly to the mere letter of the statute, or to technical rules of construction. And any construction should be discarded that would lead to absurd consequences.”
We announced the same principle in the recent case of Hodges v. Dawdy, 104 Ark. 583, where we said, in speaking of a certain meaning contended for in construing the language of an enactment, that ‘ ‘ such a construe tion leads to an absurdity and must be rejected for that reason.”
This court in quite a number of recent cases has said that, in ascertaining the true legislative intent and “in order to conform to the legislative intent, errors in an act may be corrected or words rejected and others substituted.” Garland Power & Development Co. v. State Board of Railroad Incorporation, 94 Ark. 422; Pryor v. Murphy, 80 Ark. 150; Bowman v. State, 93 Ark. 168; Hughes v. Kelley, 95 Ark. 327; Williams v. State, 99 Ark. 149; State v. Handlin, 100 Ark. 175; Snowden v. Thompson, 106 Ark. 517.
Mr. Sutherland states that rule as follows: “The mere literal construction of a section in a statute ought not to prevail if it is opposed to the intention of the Legislature apparent by the statutes; and if the words are sufficiently flexible to adinit of some other construction, it is to be adopted to effectuate that intention. The intent prevails over the letter, and the letter will, if possible, be so read as to conform to the spirit of the act.” 2 Lewis’ Sutherland, Statutory Construction, § 376.
The words, “be amended to read as follows,” constitute a mere formula, in which there is no magic, except that it ordinarily carries the meaning, when not otherwise limited, that the amendatory statute excludes all omitted provisions of the former law.
The rule of interpretation that those words ordinarily operate as a repeal of inconsistent and omitted provisions is nowhere more clearly recognized than by the Court of Appeals of New York, in numerous cases in which it has been announced, but that court, while thoroughly recognizing its force, says that it is not an absolute and inflexible one. In the case of Bank of the Metropolis v. Faber, 150 N. Y. 200, after reiterating the rule announced in the Prime case, supra, that court said:
f “q^e effect upon a prior statute of a subsequent amendment, ‘ so as to read as follows, ’ is not to be determined in all cases by any fixed and absolute rule, but frequently becomes a question of legislative intent to be de termined from the nature and language of the amendment, from other acts passed at or about the same time, and from all the circumstances of the case. The duty of the courts is to give effect to the legislative intent rather than the literal terms of the act.” Pursuing the subject further, the court said:
“It is scarcely possible to conceive that the' Legislature actually intended, by the amendment, to displace section 30 of the original law from its place as a part of the revised system of statute law, and substitute the amendment in its place. That conclusion must be reached, if at all, not from the circumstances or inherent probabilities of the case, but by the application of some arbitrary rule as to the legal effect of amendments in that form. That rule is not so absolute and unqualified as not to be made to yield to a contrary intention when it is to be found in the nature of the case, in the language employed, and in the course of contemporaneous legislation on the same subject.”
Amendatory or repealing words of a statute are subject to the same rules of construction as any other parts of the statute, and the literal meaning may be put aside in order to carry out the obvious intention of the lawmakers as otherwise indicated.
“A repealing clause is subject to construction, the same as any other provision of a statute,” said the Supreme Court of Indiana in Indianapolis Union Ry. Co. v. Waddington, 82 N. E. 1030, “and even an express declaration of a repeal will not be given that effect when it is apparent that the Legislature did not so intend.”
“An absolute repeal may be construed as a qualified or partial repeal, where other parts of the statute show such to have been the real intent.” 1 Lewis’ Sutherland on Statutory Construction, § 293.
It is obvious, from a consideration of the whole of the amendatory statute, that the Legislature did not intend to amend the whole of the' section named, but left unimpaired that part of it which covered a subject not treated in the new statute, namely, the third and last clause of the section which related to the appointment of commissioners and prescribing their qualifications.
We are called upon to decide between an amendment of the whole section, which accords with the liberal meaning of the words used, though it defeats the real meaning as otherwise clearly expressed, and a partial amendment, which the whole of the statute clearly indicates that the law-makers intended. We feel impelled, by the paramount rule of construction, that is, the one which demands the ascertainment of the real intention of the Legislature, to adopt the latter construction, and say that only a partial amendment was intended, and that the provision with reference to the appointment of commissioners is left unimpaired.
It is earnestly insisted by counsel that this construction puts the statute in conflict with the clause of our Constitution which provides that “no law shall be revived, amended, or the provisions thereof extended or conferred by reference to its title only; but so much thereof as is revived, amended, extended or conferred shall be re-enacted and published at length. ’ ’ Article 5, section 22, Constitution 1874.
.We can not agree with counsel in this contention. No part of the old statute is “revived, amended, or the provisions thereof extended or conferred by reference to the title only. ’ ’ In fact, under the construction we place upon it, no part of the old section is revived or extended, but the part which is the subject of this controversy is, as we have already explained, left unamended. It is untouched by the amendatory statute, which is, as we have already said, only partial in its operation.
The purpose of the constitutional provision was, as its language clearly implies, merely to prohibit the revival, amendment, or 'extension of laws merely by reference to title, and has no application to the interpretation of its language in determining whether it operated as an amendment of the old section in its entirety or merely as a partial amendment.
Our conclusion is that that part of section 5667, having reference to the appointment of the commissioners by the city council, has not been repealed, but remains a part of the statute.
In the case of Ramsey v. Farmer, there is another point raised against the validity of two improvement districts on the ground that they embrace noncontiguous territory. They are street improvement districts,' and it is shown that the streets to be improved cross a certain intersecting street which has already been paved, and constitutes a separate improvement district, and it is contended that this breaks the contiguity of the district, and separates it into two parts, which it is contended can not be legally done.
It does not appear that the property embraced in the old district through which the other street was paved is, on account of the paving of the intersecting street, freed from benefits to be derived from the improvement sought through the new districts. For that reason, if for no other, it can not be said that the new districts are broken up, or that the parts are separated. But even if it wa$ otherwise, the cutting in two of the districts by an intersecting district for the paving of a single street does not necessarily separate^ the parts so widely that it can be declared, as a matter of law, that the whole of the territory affected is not contiguous to the improvement within the meaning of the law on the subject.
Nor can it be said, because the street reaches through different classes of property, business houses and residences, that the two kinds of property can not be classed together and put into one district. The mere statement of the fact, as in the complaint in that case, that all the property in the district is not of similar character, is not sufficient to defeat the organization.
The judgment in each of the cases is affirmed.
Kirby, J., dissents.
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Kirby, J.,
(after stating the facts). Appellant challenges the sufficiency of the indictment, claiming it does not allege that death resulted from the wound inflicted by bim upon the deceased. The indictment charges that he did “unlawfully * * * kill and murder one Jack Chandler * * * by then and there stabbing and cutting him, the said Jack Chandler, with a certain knife * # * held in his hand with # * * intent then and there to kill and murder bim, the said Jack Chandler.”
It is true, it does not say that he died and that his death was caused from the wound inflicted by the stroke with the knife, but it does say he did kill and murder him with a knife held in his hand, by cutting and stabbing him with the intent to kill and murder him, and although the word “murder” has a technical meaning, which may be ascribed to it in the indictment, the word “kill” is by no means technical, it is used in its ordinary acceptation and means unmistakably to slay, to put to death, to deprive of life, and when the indictment charges that the defendant “did kill and murder Jack Chandler * * *” it gave him clear and specific notice that Jack Chandler died from the effects of the stabbing, and of the offense with which he was charged. Neither was it defective in failing to specifically alleged that the deceased died within a year and a day after the infliction of the wound. It is¡ true our statute (Kirby’s Digest, § 1774) provides that in order to make the killing murder or manslaughter, it is requisite that the person injured die within a year and a day after the wound was given, but under other statutes, requiring what indictments shall contain and providing that none is insufficient for “any defect which does not tend to prejudice the substantial rights of the defendant on the merits,” it is immaterial that no specific allegation is made of the death resulting within such time after the mortal wound, since murder has a technical meaning, and when it is sufficiently alleged in the indictment the defendant is put upon notice that death resulted within the time specified by law to make the offense of that grade. Kirby’s Digest, § § 2228-9 and 2243; State v. Sly, 80 Pac. (Idaho) 1125; Cordell v. State, 22 Ind. 1; Caldwell v. State, 14 S. W. 123-4; State v. Kirby, 63 Pac. 752; Thomas v. State, 71 Ga. 44; People v. Sanford, 43 Cal. 29; State v. Ryan, 13 Minn. 371.
Instructions numbered 9 and 10 correctly state the law, and were applicable to the case made. The evidence shows that after appellant and deceased were arrested, and while they were being taken to the office of the justice, the officer discovered open in appellant’s hand a new dirk knife, which he had purchased and exhibited to witnesses, declaring that he bought it to kill deceased with, and there was much testimony tending to show that deceased was standing where the officer left him when he tried to wrest the knife from appellant or prevent him using it, with his hands by his side, making no attempt whatever to assault appellant when the fatal blow was struck. It also tends to show that appellant broke away from the officer, and made two or three steps toward deceased, and struck him with the knife, cutting his throat from ear to ear. That he did this, notwithstanding the officers and others were trying to prevent him and take the knife from him. He claims he thought the other man was advancing upon him, and believed that he had a knife and that he struck the fatal blow in order to protect himself; but no witness said for him that he attempted in any way to avoid the difficulty or get away from the officer or to get out of the way of deceased, and he himself does not contend that he did.
Neither was error committed in refusing to give instruction No. 21, as requested. The evidence shows that appellant had voluntarily entered into the difficulty; that he was about to assault the deceased and the officer to prevent him doing so pushed him aside and tried to wrest the knife from him, and that he made no effort whatever to go around the officer or attempted to get away from the difficulty, but broke loose and went by the officer, or pushed him back and struck over his shoulder and killed the deceased, who was unarmed, so far as the testimony shows, and was not at the.time, according to the great preponderance of it, making any hostile demonstration toward appellant. Instruction numbered 9 correctly covered the phase of the case upon which this instruction was asked. Neither was there error committed in refusing to allow the witness, Z. E. Fisher, to state what the deceased said to him after the cutting relative to who was to blame for the trouble. The conversation was not a part of the res gestae, was not shown to have been made under such circumstances as to render it admissible as a dying declaration, and was but a mere expression of an opinion and inadmissible on that account.
We find no prejudicial error in the record, and the judgment is affirmed.
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Wood, J.,
(after stating tbe facts). First. Tbe court did not err in refusing to submit tbe issue of equitable estoppel to tbe jury. There was nothing, either in tbe pleadings or tbe proof, to warrant tbe court in submitting such an issue. Tbe appellants in their complaint relied upon a contract, which they alleged they entered into with tbe board of directors, to do tbe work of beating and plumbing tbe building, in consideration that tbe district would pay them tbe amount of money which was due them from tbe Southern Building Company, contractor, and that they completed tbe work in accordance with tbe contract.
J. R. Thompson, representing tbe plumbing company, testified as follows :
“I completed tbe heating and plumbing on tbe strength of tbe contract made with tbe board,” and the only other witness in behalf of appellants testified that be (Thompson) “refused to do the beating and plumbing unless tbe school board would stand good for bis money, and tbe school board agreed for him to go ahead and do tbe beating and plumbing and they were to stand good for it.”
It is clear that in view of tbe allegations in tbe complaint and tbe testimony above quoted that tbe doctrine of equitable estoppel could not be invoked by tbe appellants in this cause. They relied upon a contract entered into with the school board. The appellees denied any such contract and the testimony on their behalf tends to show that no such contract was entered into. Only the issue of the right to recover on contract was made and the court was correct in confining the jury to the determination of that issue and therefore did not err in refusing appellant’s prayers for instructions and in giving the instructions presenting such issue on its own motion. Even if the equitable estoppel had been made an issue by the pleadings, in our opinion there is an abso: lute want of evidence, as abstracted by appellants, to warrant a finding that the school district through the conduct of its directors estopped itself from denying liability to appellants for the amount in controversy. There is no evidence to show that the directors, as a body, or that any one of them acting- singly, did anything to warrant appellants in completing the work of plumbing and heating the building upon any promise, expressed or implied, that the school district would pay for the same. On the contrary, the evidence in the record tends to prove conclusively that the school board was relying upon its contract with the Southern Building Company and the Guaranty Company, its surety, to complete the work and to pay for same.
It is unnecessary to discuss the evidence in detail. Appellees claim that a large portion of it has not been abstracted, and so much of it as appellants have abstracted does not, in our opinion, warrant a finding that the school district was estopped by any conduct of its directors from denying liability for the claim sued on. There is nothing to show that the directors, as a body or individually, did any act to warrant appellants in believing that the school board would pay them for the plumbing work on the building, nor that appellants did the work, relying on anything done or said by the directors. This would be necessary, even if estoppel were properly an issue in this controversy. Trapnell v. Burton, 24 Ark. 371, page 400; Rogers v. Galloway Female College, 64 Ark. 627. See St. Francis Levee District v. Fleming, 93 Ark. 490.
Second. There was evidence tending to prove that appellants finished the work on the school building, relying upon its contract with the Southern Building Company and that appellants took the note of the building company in payment for the work and finally completed and connected the work of plumbing, after receiving this note in settlement of the balance due them on their contract with the Southern Building Company. The evidence warranted the court in submitting this question to the jury, which it did upon proper instructions. ' There was no prejudicial error in the court permitting the witness Simpson to answer the question propounded to him by appellee’s counsel, nor in permitting the testimony of the witness adduced by appellees to contradict the testimony of witness Simpson. The testimony was competent and its credibility was for the jury.
Finding no reversible error, the judgment is affirmed.
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Per Curiam.
The decree of the chancery court can-
celled the deeds purporting to convey the lands in controversy to defendant and adjudged the title to the lands to be in the plaintiffs, but declared a lien in favor of the defendant for taxes paid, the amount of same being agreed upon by the parties. This part of the decree was a complete adjudication pro tanto of the rights of the parties and was final. Davie v. Davie, 52 Ark. 224; Young v. Rose, 80 Ark. 513. It does not fall within another line of decisions of this court holding judgments and decrees which are incomplete not to be final. Har gus v. Hayes, 83 Ark. 186; Brown v. Norvell, 88 Ark. 590; Bennett v. Walker, 92 Ark. 607. The decree went further and determined that defendant is liable to plaintiffs for the value of .timber cut from the lands and referred the case to a master to determine the amount to be awarded as damages, and the appeal upon the first part of the decree was prosecuted without waiting for the report of the master to come in. That, however, was a separate issue which could be prosecuted to a conclusion while’ the appeal was pending here or after the affirmance by this court. The plaintiffs (appellees) now move this court to modify the judgment here so as to remand the cause for further proceedings. That is unnecessary for the reason stated above, namely, that the adjudication of the value of the timber is a separate issue which the affirmance of the original decree here does not affect, and the chancery court still has jurisdiction to proceed to a determination of that issue. The motion to modify the decree is, therefore, overruled.
Opinion on motion to modify decree in Bradley Lumber Co. v. Hamilton, Ante p. 1.
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McCulloch, C. J.
The defendant was convicted under an indictment based upon the following statute:
“If any clerk, apprentice, servant, employee, agent or attorney of any private person, or of any copartnership, except clerks, apprentices, servants and employees within the age of sixteen years, or any officer, clerk, servant, employee, agent or attorney of any incorporated company, or any person employed in any such capacity, shall embezzle or convert to his own use, or shall take, make way with, or secrete, with intent to embezzle or convert to his own use, without the consent of his master or employer, any money, goods or rights in action, or any valuable security or effects whatsoever belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, office, agency or attorneyship, he shall be deemed guilty of larceny, and on conviction shall be punished as in case of larceny.” Section 1837, Kirby’s Digest.
The charge contained in the indictment is, in substance, that defendant, being the agent and bailee of Sam Eye, and having entrusted to his possession a certain promissory note, the property of said Eye, which had been executed to him by one Miller Swancy, of a certain date, for the sum of $92, and of that value, did feloniously and fraudulently embezzle and convert said note to his own use, without the consent of said owner.
The indictment also contained another count charging defendant with the crime of grand larceny, alleged to have been committed by stealing $30 in money, the property of Sam Eye.
Upon a trial of the case the court gave a peremptory instruction in defendant’s favor as to the second count, and the jury returned a verdict of guilty under the first count.
The testimony adduced by the State tended to show that defendant pretended to Eye that he was an ‘ ‘ ex-attorney,” and proposed to him to collect the note in question without charge; that the note was entrusted to him for collection, and that he subsequently converted the same to his own use by hypothecating it to a bank in the city of Hot Springs for a loan of money, or, rather, that he hypothecated it to one Cobb for the purpose of having the latter endorse his note to the bank.
The evidence was sufficient to sustain each of the elements of the crime.
It is especially contended by appellant that there was no affirmative proof that he was over sixteen years of age at the time of the alleged commission of the offense.
It is true that no witness testified directly as to defendant’s age, but there are many statements of the witnesses from which the jury, might infer that he was a ma ture man. There is much testimony about his former occupations and his statements concerning the same which would justify the jury in finding that, according to his own admissions, he was very much over sixteen years of age. He claims that he had been an attorney-at-law, and that he was an experienced worker in concrete. Besides this, he testified before the jury, and an opportunity was thus given to determine his age. This fact could be established by circumstantial, as well as by direct, evidence. Douglass v. State, 91 Ark. 492. Nothing seems to have been said or suggested during the trial, or in the instructions requested and given, about proof of the age of defendant. The alleged defect in the proof appears only to have been discovered after the testimony got into the transcript. But we are of the opinion, nevertheless, that there is enough in the testimony to warrant an inference by the jury as to defendant’s age.
Errors are assigned in the refusal of the court to give certain instrnctions thereby it was sought to submit the question of defendant’s good faith and honest belief that the note had been turned over to him by Sam Bye for the purpose of cancelling a debt which defendant claimed Bye owed him.
Defendant testified that Bye owed him a sum of money in excess of the amount of the note, that the note was assigned and delivered to him, and that the proceeds were to be appropriated as a payment on said debt. This was denied by Bye, who testified that he did not owe defendant anything, and that the note was entrusted to the latter for collection. There was a sharp conflict in the testimony on that point. There was scarcely any room to find, from the testimony, that, if the note was not delivered to defendant in 'satisfaction of the debt he claimed against Bye, defendant honestly believed that it was delivered to him for that purpose. In other words, if it is not true, as he claims, that Bye owed him and turned the note over to him to satisfy the debt, then there is nothing that would warrant the conclusion that he honestly believed so. But, be that as it may, the court submitted that issue in an instruction which told the jury that before they could convict defendant, they must find that he converted the note to his own use “knowing that he had no right to do so,” and that defendant “converted the note to his own use with the intent and purpose of cheating and defrauding the said Sam Rye out of the said note, or its value.” This fully covered the point contained in the instruction requested by defendant, and there was no error in refusing to give the one he requested.
Objection is made to certain instructions given by the court, and error is assigned in that respect. But upon a careful consideration of them, we are convinced that the instructions given properly submitted the issue to the jury. Some of the instructions that defendant complains of referred to the conversion of the $30 in money received when the note was hypothecated, and, as a matter of fact, the first count does not charge the conversion of the money. The references in these instructions to the money collected relate only to the intent of defendant in using the note, and do not direct a finding of guilt because of the misappropriation of the money, but make guilt depend upon the conversion of the note itself. If defendant received the note for collection, as contended by the prosecuting attorney, and hypothecated it for the money which he appropriated to his own use, this would constitute an unlawful conversion of the note and would make him guilty under the indictment.
There is no prejudicial error in the proceedings so far as we can discover, and the judgment is therefore affirmed.
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Hart, J.
(after stating the facts). It is first urged that the judgment must be reversed because the court permitted A. J. Witt, private counsel for the children of the deceased, to be in the grand jury room during the time it was inquiring into the charge against the defendant. It is not contended that he was present while the grand jury were deliberating or voting on the charge. The contention of counsel has been decided adversely to him in the case of Bennett v. State, 62 Ark. 516.
Counsel for the defendant assigns as error the action of the court in giving certain instructions, and in refusing others asked by him. He saved the following exception to the refusal to give- said instructions:
“Of which said instructions, the court gave the ninth and eleventh, and refused to give any of the others. To the refusal of the court to give instructions numbered 1, 2, 3, 4, 5, 6, 7, 8,10,12,13,15 and 16, as asked by the defendant, the defendant at the time excepted, and asked that his exceptions be noted of record, which was accordingly done.”
The court, on its own motion, gave nineteen instructions, and counsel for the defendant saved the following exceptions to the giving of the said instructions: “To the giving of instructions numbered 1, 2, 3, 4, 5, 6, \7, 8, 10,12,13,14,15, 16,17, 18,19 and 20 by the court, on his own motion, the defendant at the time excepted, and asked that his exceptions be noted of record, which was accordingly done.”
It has been uniformly held by this court that a general exception to certain instructions will not be entertained on appeal, if any of them be good. It is equally well settled that a general exception to the refusal to give several instructions requested collectively will not be considered on appeal, if any of them are bad. Johnson v. State, 84 Ark. 95; Atkins v. Swope, 38 Ark. 528, 539; Geary v. Parker, 65 Ark. 521, 525; Young v. Stevenson, 75 Ark. 181, 183; Matthews v. State, 84 Ark. 73; Owens v. State, 86 Ark. 317, 333; St. Louis, etc. Ry. Co. v. Hambright, 87 Ark. 614, 623. In the application of this rule, without setting out the instructions given and those refused, it may be said that some of the instructions asked by the defendant were argumentative, and others were faulty because they singled out facts, and were properly refused by the court, and it is conceded by the defendant that some of the instructions given by the court were correct.
It is claimed by counsel for the defendant that the court erred in permitting Doctor Brown to testify that Mr. Davis told him that he took the defendant’s pistol away from him in his wine cellar. Counsel for defendant, in his cross examination of Doctor Brown, had brought out the fact that early on Monday morning preceding the day of the killing that John B. Davis had come to Ms house with a shotgun and a pistol, and that they had. gone to Pocahontas and turned over the pistol to the assistant prosecuting attorney. Many questions were asked Doctor Brown by the defendant in regard to this pistol, and what was done with it. Doctor Brown was also asked in detail as to the movements and conversation of himself and Davis on that day. Besides this, the defendant proved by other witnesses that the deceased had told them that he had taken the pistol away from the defendant at his wine cellar. Under these circumstances, we do not think that any prejudice'resulted to the defendant, and it is well settled that a judgment will only be reversed for prejudicial errors.
The court did not err in allowing parol proof to be made as to what defendant testified to before the coroner’s jury. The evidence on the part of the State tends to show that the defendant voluntarily testified before the coroner’s jury, and the evidence now complained of was introduced for the purpose of contradicting the evidence given by the defendant on the trial of the case. The point is expressly so ruled in the case of Caughron v. State, 99 Ark. 462.
Neither did the court err in permitting the State to prove by the testimony of members of the coroner’s jury contradictory statements made by witnesses for defendant before the coroner’s jury. Caughron v. State, supra.
It is next assigned as error by counsel for the defendant that the'court erred in permitting Jesse Cagle to testify that on the Sunday evening preceding the killing on Tuesday that the deceased had told him that a son of the defendant had pleaded terribly hard with him for the pistol, and that he had refused to give it to him, saying that he had won it in a victory. The court did not err in admitting this testimony. Cagle was a witness for the defendant, and in his direct examination the fact was developed that the defendant and deceased had had a quarrel in the wine cellar on Sunday morning, and the witness was asked all about this quarrel, and stated that Davis had told him at that time that the defendant had tried to shoot him, and that he had taken a pistol away from Mm. Everything that occurred in the wine cellar was brought out and introduced in evidence by the defendant. It is well settled that cross examination should be permitted as to all matters developed on direct examination, and it may be extended into all circumstances surrounding or affecting the transaction which the witness has detailed in Ms direct examination.
Anme Tiner was a witness for the defendant. She was the wife of Dee Tiner, a son of the defendant, and they had been separated some time prior to the killing. She had resided in the family of Doctor Brown, a son-in-law of the deceased, for about four years prior to her marriage. She was asked this question: “Was Doctor Brown in any way instrumental in 'your separation?” And, over the objection of the State, the court refused to permit her to answer the question. The defendant set out that they would have proved in answer to the question that Doctor Brown was the immediate cause of the separation between herself and husband, and that she had confessed to her husband her criminal intimacy with Doctor Brown. That the deceased had asked her to repudiate that statement, and had declared that he would have the, statement at any cost, and that tMs fact was communicated to the defendant prior to the difficulty. In the first place, it may be said that these answers were not responsive to the question asked. The particular objection made by the counsel for the defendant to the court’s action in refusing to allow the witness to answer the question is, that the deceased had made a threat against the defendant, and tMs threat had been communicated to Mm. The defendant was allowed to introduce evidence of other threats that had been made by deceased and communicated to the defendant, and no attempt was made by the State to disprove them. The defendant was also permitted to prove by other testimony, which was not disputed, that bad blood existed between defendant and deceased on account of the separation of Dee Tiner and Ms wife, and that the deceased had threatened the life of defendant. Therefore, the testimony refused was only cumulative of the other testimony which was admitted, and .which the State did not contradict.
It is next insisted that the court erred in permitting the prosecuting attorney to dress a chair in the bloody garments of the deceased, and because three daughters of the deceased sat in front of the jury crying during the closing argument. • The clothing of the deceased was exhibited in evidence before the jury, and there was no error in permitting the prosecuting attorney to use the garments for illustration in his closing argument. Derrick v. State, 92 Ark. 237. The daughters of the deceased had a right to be present at the trial, and the judgment will not be reversed because they shed tears during the argument.
Finally, it is insisted by counsel for the defendant that the evidence does not warrant the verdict. We can not agree with him in this contention. It is true there is an irreconciliable conflict in many essential respects between the testimony given by the witnesses for the State and that given iin behalf of the defendant, but it was the peculiar province of the jury to pass upon this conflict. The defendant was indicted for murder in the first degree. The jury found him guilty of murder in the second degree, and fixed his punishment at twelve years in the penitentiary. Therefore, it is manifest that they did not believe the evidence' adduced by either side in its entirety. It is contended by counsel for the defendant that it was a physical impossibility for young James Hurn to have run from the spring in time to have seen the last shot fired. They had measurements made of the distance, and this evidence tended to show that the witness could not have run this distance in the time Stated by him. However, the witness himself gave the distance and his credibility was a question for the jury. It is probable, however, that the jury did not believe his testimony in this respect, or they would have found the defendant guilty of murder in the first degree. Even if the jury had. discarded his testimony entirely, There was sufficient evidence to have warranted the verdict of the jury. It is undisputed that bad blood existed between the defendant and deceased on account of the separation of the son of the defendant and his wife, who had formerly lived as a member of the household of the son-in-law of the deceased. They had a quarrel about 'this matter on the Sunday morning preceding the killing. The defendant remained in the wine cellar during Sunday and Monday night preceding the killing on Tuesday with his guns lying at hand, although his home was only a short distance away. It is true, he states, that he stayed there because he was afraid to go home. The jury may not have believed his explanation, and were warranted in believing from the circumstances, as they found them to exist, that defendant had become angered at Davis because of their quarrel at the wine cellar on Sunday morning, and had formed the design of killing him on sight; that the deceased had formed a similar design as to the defendant, and that in furtherance of this design, each began to shoot at the other as soon as they saw each other. The jury was fairly warranted from all the evidence in finding that each had formed the design of killing the other on sight, regardless of the fact of whether or not he believed his own life to be in danger. They may have thought that the parties entered into a mutual combat, and this view of the case warranted the verdict of the jury. If the testimony of the State in its entirety was believed by the jury, they would have been warranted in finding the defendant guilty of murder in the first degree. On the other hand, if the evidence adduced by the defendant in its entirety was believed by the jury, a verdict of acquittal would have been warranted.
"We do not deem it necessary to enter into a further discussion of the evidence, but think it sufficient to say that the evidence supported the verdict of the jury.
The judgment will be affirmed.
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Kirby, J.,
(after statihg the facts). It is first contended that the court erred in denying the motion for a continuance. The court found that on May 1 the case was set for trial on the 22d, thereafter, and that shortly thereafter the defendant caused a subpoena to be issued directed to the sheriff of Prairie County, for the absent witness, not giving the sheriff any information.as to Ms whereabouts, and had not made any effort to have the subpoena returned. Besides, the testimony of this witness was largely cumulative of that introduced. Half a dozen or more people, all of whom saw the difficulty, being ex amined as witnesses. Applications for continuances are addressed to the sound discretion of the court, or trial judge, and we do not find that there was an abuse of judicial discretion in the denial by the court of this motion. Jackson v. State, 94 Ark. 169; Miller v. State, Ib. 538; McIlroy v. State, 100 Ark. 310.
Neither did the court err in overruling the motion for a change of venue. The court examined the witnesses, making the supporting affidavits, and their testimony disclosed that they did not have such definite and sufficient information as to the state of mind of the inhabitants of the county toward the defendant to make it necessary for the granting of the motion in order to give the defendant the benefit of a fair trial. Williams v. State, 100 Ark. 218; McIlroy v. State, Ib. 307; Wolfe v. State, 107 Ark. 29.
It is next contended that the court erred in ruling upon the qualifications of two jurors, Meerifield and Nolan. Merrifield stated that he had an opinion about the case, formed from rumor, but that he could forego that and give the defendant a fair and impartial trial on the evidence produced, and the court correctly held him qualified. Decker v. State, 85 Ark. 64.
The juror, Nolan, stated that he had long been acquainted with the appellant and knew his family intimately and could not view the case with the same fairness and impartiality, as if appellant was not known to him; that he would be biased in his favor, and would be influenced by his acquaintance with the family to some extent and the court thereupon excused him and committed no error in doing so. Decker v. State, supra, 85 Ark. 64.
Appellant also complains of the court’s action in allowing a witness to state that he was in the habit of carrying a pistol, but if there was any error committed in permitting the introduction of this testimony we are of the opinion that it was harmless and could not have prejudiced appellant’s case. It tended in no wise to show that he had armed himself for the encounter, but rather the contrary, and he did in fact have the pistol and fired the shot which killed deceased, a club-footed man, not physically strong, and under such circumstances as fully warranted his conviction for the grade of the offense of which the jury found him guilty.
Finding no prejudicial error in the record, the judgment is affirmed.
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JOHNSON, J.
This is an action brought by [James] Lemmons to recover of [Augustus] Choteau, upon an assignment which the latter made to the former, of a note executed by William S. Williams. The note of Williams bears date the 5th of October, 1824, was payable the 25th of December following, and was assigned by Choteau to Lemmons the 6th of October, 1824. The declaration of Lemmons nowhere suggests that he has exercised any diligence by prosecuting a suit against the maker of the note. It states that when the note became payable, he made diligent search after Williams, the maker of the note, and has continued to make diligent inquiry for said Williams up to the time of bringing this suit, but could not find him; and avers that Williams, at the time of the assignment, was not a citizen or resident of this territory, nor at this time resides in this territory; and that he never did reside in this territory, nor has he any property here whereon to make or collect the amount of the note, or any part of it.
The doctrine has been long settled by a uniform current of decisions in the states of Virginia and Kentucky, upon a statute in all respects analogous to ours, that the assignor of a bond or note is liable upon his assignment in the event of a failure to obtain payment of the bond or note, after due diligence has been used by the assignee to coerce payment. If the question were now presented for the first time, it might admit of great doubt, whether, according to common law principles, the assignor would be responsible whére the debt assigned was just and fair, and the failure to obtain' payment resulted alone from the insolvency of the maker of the bond or note. It cannot be asserted that there is a failure of the consideration because the right to a just debt is sold and transferred, and the inquiry arises, whether the assignor or the assignee takes upon himself the risk of the insolvency of the obligor or payor. . I should incline to the opinion that where the parties were silent, the law would cast the risk upon the purchaser of the bond or note, and would not raise an implied contract on the part of the assignor, that he took upon himself and insured the solvency of the obligor or maker of the note. But this question I consider at rest, by the decisions referred to, as well as by the previous decisions of this court. We have repeatedly held that the assignor is liable to the extent of the sum received by him, upon a failure on the part of the as-signee to obtain payment after the use of due diligence. The question in this case is, whether that diligence which the law requires has been used. In the case of Brinker v. Perry, 5 Litt. (Ky.) 194, the court says, “that, in general, due and. proper diligence by suit against the maker of a note must be employed by the assignee to enable him to have recourse against the assignor, cannot at this day be doubted.” The necessity of doing so has been repeatedly decided by this court, and as a general principle must now be considered as incontrovertibly settled. To this general principle there are, no doubt, exceptions. Does the case at bar fall within any one of those exceptions? The allegations in the case just referred to, were, that when the note became payable, Moody, the maker, had left, and' continued out of the state for many months, and is still out, so that the amount could not be recovered of him. The averments in this declaration are, that the plaintiff has made diligent search for Williams, the maker of the note, but has been unable to find him; that Williams at the time of the assignment, and ever since, has not resided within this territory. In the case of Brinker v. Perry, the maker of the note was out of the state when the note became payable, and was out at the commencement of the suit. In the case at bar, precisely the same facts are alleged. The only difference in the two cases is, that it is averred in the present case that the plaintiff has made diligent search for the maker of the note, from the time it became due until the institution of this suit.
The court of appeals of Kentucky i in the ease referred to, say: “It is unimportant whether the declaration be understood to allege the fact of the maker of the note having removed from the state, or only absented himself on a temporary occasion. In either case the principle is the same, and in neither case can there be a recovery against the assignor, without due diligence, by suit, having been exercised against the maker of the note. If the absence was merely temporary, there was nothing to prevent Brinker from suing the maker of the note, and if there was a permanent removal, as it is alleged to have taken place before the note was assigned, he must be understood to have undertaken to pursue the maker of the note, by suit, in the country to which he had removed, before recourse could be had against the assignor.” Apply this doctrine to the case now before us. If the maker of the note.resided out of the limits of this territory, as is alleged in‘the declaration, at the time the note was assigned to the plaintiff, he must be understood to have undertaken to pursue the maker of the note, by suit, in the country where he did reside, before he could have recourse against the defendant. The two eases are exactly similar, and the only diversity that could be imagined, consists in the allegation of the diligent but unsuccessful search after Williams, the maker of the note, and that is an averment wholly immaterial, and can have no bearing in the case. The case of Brinker v. Perry, I consider as authority of high character, and precisely in point, without a shade of difference; and on that I am clear that the demurrer to the declaration should be sustained. Demurrer sustained.
NOTE. If the maker is notoriously insolvent, so that a suit would be fruitless, the assignee is not bound to sue him, before he can resort to the assignor, because the law never requires an useless act. Saunders v. Marshall, 4 Hen. & M. 455.
The plaintiff amended his declaration, to which there was a demurrer, which was determined before JOHNSON, BATES, ESK-RIDGE, and CROSS, JJ., July, 1830.
JOHNSON, J.
A demurrer having been sustained to the declaration in this case at a former term, an amended declaration has been filed by the plaintiff, to which the defendant has again demurred. The aver-ments in the former declaration were, that the plaintiff had made diligent search for Williams, the maker of the note, and could not find him, and that he never did reside in this territory, nor has he any property whereon the said amount or any part of it could be made or collected. Upon these averments this court decided that the plaintiff failed to show the use of that diligence to recover the debt against Williams, which entitled him to recover upon the assignment made by the defendant. The ground of that opinion was, that as the plaintiff himself alleged that Williams was a non-resident at the time of the assignment of the note, he was bound to pursue him to the country where he did reside, or where he might be found, and there bring suit against him, and pursue him to insolvency, before he could have recourse against the assignor. In this opinion we were fully sustained by the case of Brinker v. Perry, 5 Litt. (Ky.) 194. Is the case materially varied by the amended declaration? What are the averments? That the plaintiff has made diligent search for Williams, and has not been able to find him, or any property upon which to levy an attachment; that he has not been able to find any fixed residence of Williams, but that before the note became due, Williams went beyond the limits of this territory into thé'Osage Nation of Indians, and has lived there ever since, so that no legal process could be served on him, nor could he be compelled in the Osage country to pay any part of the note, and that Williams is a wanderer in that Nation, and has no special place of residence.
The plaintiff in the preceding allegations does not inform the court that Williams resided in this country at the time the defendant assigned the note. If that averment was made, and also the averment of the subsequent removal of Williams from this territory, and that he had gone to parts unknown to the plaintiff, or that he was insolvent, these allegations might dispense with the averment of the use of due diligence by suit, and entitle the plaintiff to maintain the. action. But the averments are, tiiat Williams executed the note in this territory, and shortly after went beyond our limits into the country belonging to the Osage Indians, and has there wandered ever since. The fact that Williams is a transient persofi or wanderer, and cannot be found, if he was so at the time the note was assigned, does not excuse the use of diligence by suit, for if the plaintiff received the assignment of a note executed by a person thus transient and wandering, he must be understood to have undertaken to search for and find him and bring suit against him to coerce the payment of the note. Where a man receives a note by assignment upon a person residing in a different state or country, he is bound to sue .the obligor of the note in the country where he resides, if he cannot be found elsewhere; and where a person takes a note by assignment upon a transient and unsettled person, having no fixed place of residence, he impliedly undertakes to find the obligor or maker of the note, and to bring suit against him before he can have recourse against the assignor. It is, however, contended that in the Osage Nation of Indians, there is no mode of coercing the payment of a debt. The answer is, that the plaintiff has not averred that the payment of a debt cannot be coerced in the Osage Nation, and if he had made the averment it could not avail him, unless he had also averred the insolvency of Williams; for the defendant is liable upon the assignment, only in the event of the maker of the note being unable to pay it. Demurrer sustained.
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LACY, J.
The complainants filed their original bill to set aside and cancel a mortgage which they allege was executed by James Hamilton in his lifetime to Frederick Notrebe, and also to set aside and cancel a deed of sale made by said Notrebe to the legal representatives of said Hamilton], they pray all the title and interest of the property contained in said deed be vested in themselves. The bill states that Hamilton became indebted to Notrebe in the sum of about $500, for which he executed a mortgage on two slaves, Phillis and Caroline, which they have fully satisfied. It charges that all the property belonging to Hamilton was exposed to sheriff's sale in 1S25, and that Notrebe became the purchaser for the sum of $220, and that he agreed that Hamilton might redeem the property one year thereafter, by his paying to N.otrebe the purchase-money and interest, and also whatever else was owing by Hamilton to Notrebe. It alleges that Drusilla Hamilton during her widowhood, and Lenox since his intermarriage with her, have fully paid off and discharged Notrebe's debt. Notrebe and the heirs of Hamilton are made defendants to the original bill. Notrebe answered, and admitted generally the allegations set forth. The fund by which the payment was made, is alleged to have been a gift from Sarah Blanton to Drusilla Hamilton, for her sole benefit and use, and the remainder out of individual means of Lenox. The heirs answered by their guardian, and denied the al legations generally and specifically. It Is stated by them, after ’the purchase by No-trebe of Hamilton’s personal estate at sheriff’s sale, it was agreed between Hamilton and Notrebe that the latter was to reconvey the property to them by Hamilton’s paying whatever might be owing to Notrebe; that Hamilton in his lifetime never did pay off the debt and take a conveyance to himself, nor did he redeem the property for their benefit; that in 1826 their relative, Sarah Blanton, furnished to their mother, Drusilla Hamilton, now Drusilla Lenox, $1,100 for their sole use and benefit, and upon express conditions that Notrebe’s bill of sale was to be paid off with it, and all the property therein contained conveyed to them. Accordingly the said Drusilla did pay the $1,100 to No-trebe for their use, and took a deed of conveyance, which was regularly acknowledged and recorded in 1826, conveying all the right, title, and interest to the legal representatives of James Hamilton, deceased. They after-wards filed a cross-bill against Lenox and Notrebe (his wife, Drusilla, having previously departed this life), setting forth the same material facts as contained in their answer, and prayed that the slaves be surrendered to their guardian for them, and that a decree be rendered in their favor, for the rents and profits accruing upon the estate. Lenox answered, and set forth in addition to his original bill, that the money advanced for the redemption of the mortgage and bill of sale was furnished by his wife and himself individually, and that a judgment had been rendered in the state of Mississippi- against him, in favor of Sarah Blanton’s adminis-tratrix, for the $1,100 furnished his wife Drusilla, to pay off Notrebe’s debt, and on that judgment suit had been instituted against him in the Arkansas circuit court, and judgment obtained, for which he was then liable. He also claimed title to the same property, by a bill of sale executed by James Hamilton to Pugh, in 1825, and prior to the sale by the sheriff to Notrebe. Pugh conveyed to William Rainey in 1825, and Rainey to the complainant in 1831. It was admitted that Mrs. Lenox and her two infant children, Sarah E. and Isaac Francis, departed this life in December, 182S. Notrebe answered, and admitted the conveyance to Hamilton’s heirs and representatives, and the full satisfaction of his debt. He stated the $1,100 was paid by Mrs. Blanton, for the benefit of the heirs of Hamilton, and that he made the conveyance to Hamilton’s legal representatives. The proof in the cause clearly demonstrated that the $1,100 was the consideration of the deed from Notrebe to Hamilton’s representatives, and was furnished by Sarah Blanton, for the sole use and benefit of the children and representatives of James Hamilton, deceased, and also that Mrs. Hamilton herself manifested some displeasure at the conveyance not having been made to the children. The object of the advancement, as shown by the testimony, was-to vest in the children all right and title to-the property.
The pleadings in this cause present considerable confusion and some contradiction. The parties seem to have changed their ground in their complaint and defence, and herein the court have found no little embarrassment in examining the record. The questions presented are numerous and highly important, and we have given to them a caref reconsideration. In their investigation, the cout): have derived much assistance from the highly satisfactory arguments of all the counsel concerned. The complainants’ bill is mainly a claim to set aside a deed or bill of sale, regularly executed and recorded, and to vest title in themselves, without charging expressly that the conveyance was made through mistake or fraud. It is difficult for the court to conceive by what means they propose to effect their object. It is not pretended that Notrebe, in conveying the property to Hamilton’s representatives, acted fraudulently. The proof shows that he. was governed by the most scrupulous honor, that his object was to protect the rights of the children, without prejudicing the interest of creditors. And hence, though he knew that it was the wish and intention of Mrs. Blanton and Mrs. Hamilton to convey the property to the children by name, he chose to employ descriptive terms in the conveyance, for fear they might by possibility be injured. Was it by mistake that the term “legal representatives” was used in the conveyance? Certainly not; for he had a full knowledge of all the facts, and even incurred the expense and trouble of consulting counsel upon the subject. It is contended that the conveyance was improperly made. In what way? The court is not aware that a deed or bill of sale can be impeached, except for mistake or fraud. The defendants claim the property as the legal representatives of Hamilton, and they show a deed or bill of sale, regularly executed and recorded, to protect their title. Even where fraud is alleged to set aside a deed, it must be satisfactorily proven, either by positive or circumstantial testimony. This doctrine is so fully and ably examined in the leading case of Hildreth v. Sands, 2 Johns. Ch. 36-56, by Chancellor Kent, and the authorities there cited are so numerous and conclusive, that it is deemed unnecessary to refer to others.
A deed, or even a judgment, or a decree of a court of chancery of twenty years’ standing, can all be set aside on the ground of fraud; but then it must be clearly alleged in the bill, and supported by proof. In this case there is no charge of fraud, nor is there any attempt to prove it. The defendants are clothed with the legal title, and until that title is destroyed by a superior equity, they are the rightful owners of the estate. It is not denied but what they are the legal representatives of Hamilton, and if so, all the right, title, and interest of the estate attached immediately to them, on the execution of Notrebe’s bill of sale. It is contended that the purchase by Notrebe, at the sheriff’s sale, conveyed no more than an equitable interest, and that the mortgagee held the property subject to redemption. An equity is not subject to execution, unless by some particular statute. This principle is too familiar and salutary to require argument or authority to sustain it. Hamilton’s legal estate was sold by the sheriff, and No-trebe became the purchaser; and that estate, whatever it may be, the defendants are in law and equity entitled to. It is difficult to conceive how it can be considered a mortgage, when the complainant does not charge in his bill that it was one, though the defendants treat it in the character of a mortgage in their answer. It was, to all intents and purposes, a legal sale, and a legal title was conveyed. And if there was a latent equity, constituting it a mortgage, even a court of chancery would never consider it so, unless for beneficial purposes. This sale was good against Hamilton and his heirs, and the agreement of Notrebe afterwards to recon-vey did not change its character, though it might have incumbered it with conditions. Both the complainant and the defendants claim through the . purchase of Notrebe, and it is good against them both and all the world. It can be impeached only on the ground of fraud or mistake by creditors or purchasers. Is the present complainant a creditor or purchaser? Can a court of equity view him in that light? When did Hamilton’s estate become indebted to him, or at what time did he constitute himself creditor or purchaser? The property remaining in Hamilton’s possession, or coming to him, could not make him the one or the other. It might and did constitute him a trustee. 1 Atk. 489. A trustee cannot acquire any advantage by possession of property, but holds it for the benefit of his cestui que trust. 2 Johns. Ch. 30; 1 Dow. 269; 1 Ch. Cas. 191; 1 Ball & B. 46, 47; 2 Johns. Ch. 269. It is a settled principle, that a trustee can gain no benefit by any acts done by him as trustee, but that it shall accrue to him for whom he holds. He is not permitted to become a purchaser of part or the whole of the estate, for which he is trustee for a valuable consideration. Lord Hard-wicke determined that a trustee could not buy at a sale by auction, and Lord Eldon has followed that decision. The reason is apparent. So jealous is the court of a trustee’s taking advantage of his situation to benefit himself, that he could not even purchase property which the owner refused to sell to the cestui que trust. So a trustee who purchases a mortgage or judgment which was a lien upon the trust estate, is not allowed to turn such purchase to his own advantage. 1 Madd. 90-93; 1 Johns. Ch. 27; 2 Johns. Ch. 252. In 2 Caines’ Cas. 183, it is decided that a trustee cannot purchase an outstanding claim or title for his own benefit. If this doctrine be true, and of that there can be no doubt, then what sort of title did Lenox acquire, when holding the property for Hamilton’s children, by this purchase from Rainey? If the purchase from Rainey was fair and for a valuable consideration, it could not avail the complainant any thing, for he was holding as trustee for the defendants, and hence he could take nothing by his purchase, and it would enure to their benefit. How much stronger is the case against him when he comes into equity and sets up a title which, by his own showing, is fraudulent on its face, and that, too, to defeat the rights of infants, acquired for a valuable consideration. Besides, this fraudulent deed or bill of sale was executed long after the suit was commenced, and even after the filing of the cross-bill, and for the avowed and express purpose of defeating a legal and equitable title.
The defendants claim as purchasers for a valuable consideration, which is proved to have been advanced and paid to Notrebe in discharge of his demand against their ancestor, and this title is attempted to be dis-. turbed and overthrown by a voluntary conveyance, fraudulently entered into, to defeat the rights of innocent purchasers or creditors. The rule of law, that a fraudulent conveyance between the grantor and grantee is obligatory upon himself and his heirs, so far from prejudicing the right of the infants before the court, will shield and protect them. They are purchasers, and claim the estate as such, and do not derive title by descent. The conveyance of Rainey to Len-ox. as to them, is fraudulent and void. Bn* it is said that Notrebe and the defendants treated the sheriff’s sale as a mortgage in their cross-bill and answer, and it being such will enable the complainant, in right of himself and his wife, to take the estate. The bill nowhere charges the sheriff’s sale, in express terms, to be a mortgage. It is true it often has reference to a mortgage, but when that is the case, it is confined to the mortgage of the two slaves, Phillis and Caroline. Infants cannot be prejudiced by the misstatements or omissions of their guardian in his answer. Hence a court of chancery will decree according to the facts of the case. 3 Johns. Ch. 367. The answer of one defendant cannot be evidence for or against a co-defendant. [Clark v. Van Riemsdyk] 9 Cranch [13 U. S.] 153; [Leeds v. Marine Ins. Co. of Alexandria] 2 Wheat. [15 U. S.] 380. In this instance, the original answer of No-trebe responds in general terms affirmatively to the complainant’s bill. The defendants, not deeming it satisfactory and complete, asked in their cross-bill for a full disclosure of all the facts, and hence his answer may be considered an amended answer to the complainant’s original bill, and although it is not evidence against his codefendant, is nevertheless evidence against the complainant. Field v. Holland, 6 Cranch [10 U. S.] 8; 2 P. Wms. 453. Notrebe’s answer confirms the other testimony in the cause, which is abundant without it, and therefore there can be no doubt that the fund that redeemed the property sold at the sheriff’s sale was advanced upon the express condition that it was to be conveyed to the children of Hamilton, and the deed shows upon its face by whom and for what purposes it was so advanced. If the property was held as collateral security subject to redemption, before .Lenox and wife could ask a conveyance, they would have to show that they had actually paid the incumbrance. The solvency or insolvency of the estate can make no difference, for the view here presented considers the infants as purchasers, and the complainant and wife claiming as representatives of the estate. Besides, the deed from Notrebe to the children was procured through the agency of Mrs. Hamilton, and she entirely approved of its contents. Whatever right she had or possessed before that time was, by that conveyance, relinquished and given up to her children, and her husband, who claims through her, can in no possible event derive title. The widow cannot be endowed of a trust estate. 1 Har. Ch. 7,22. The property remaining with Hamilton during his lifetime,' and with her afterwards, and coming finally into the possession of Lenox, did not at all change the nature of Notrebe’s purchase. He was the legal owner, and no one could possibly have any title to it, except in equity. As the case stands, Notrebe could not have probably been compelled by any one to have reconveyed, for his promise was made after the sale and without consideration; and above all, there can be no pre-tence that he could be compelled to convey to Lenox and wife. If creditors have lain dormant and lost their rights, or can even yet assert them, that cannot be any reason why those should be preferred who have no shadow or pretext of right in their favor. The estate vested in the defendants is both a legal and an.equitable one, so far as the complainants are concerned; and they will not be permitted to disturb it without showing right or title in themselves. It is no answer to say that a judgment is rendered against Lenox by the administratrix of Sarah Blanton, deceased, which remains yet unsatisfied and enjoined by the complainants. That record could not be evidence in any point of view against the defendants, for they were neither privy nor parties to it (1 Starkie, Ev. 217); but if it even could be, still it would weigh nothing against the mass of testimony in the cause. Though the judgment and the purchase by Lenox of Rainey, after the filing of the cross-bill, throw a dark and dishonoring shade over the whole of this transaction, and demonstrate .its true nature and complexion, yet the court will forbear, and not indulge in expressions of harshness and severity which might be called for, and would be justified on this occasion, — requies-cat mortuum manes in pace.
Every aspect in which the court is capable of viewing or considering this subject, constrains them to believe that both the law and equity of the case are with the defendants. It will, therefore, be decreed, that the original bill be dismissed with costs, and the prayer of the cross-bill granted. Decreed accordingly.
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McCulloch, C. J.
This is an action instituted by the plaintiff, B. A. Stevens Company, against defendant, Pat Whalen, to recover possession of two pool tables and the paraphernalia connected therewith, which plaintiff had formerly sold to the defendant and had taken chattel mortgages ¡back to secure the purchase price. Defendant purchased one of the pool tables in controversy and the cues, balls, racks, etc., to be used in connection therewith, from plaintiff on October 12, 1907, and executed to the latter a chattel mortgage on same to secure the price, which was divided into eleven promissory notes of $10 each, five of which he paid and six remained unpaid at the time of the commencement of this action. Defendant purchased the other table in controversy from plaintiff on May 18, 1908, and executed a chattel mortgage to secure the price, evidenced by eleven promissory notes of $10 each, one of the notes only having been paid at the time of the commencement of this action. The action was commenced in April, 1909, after all the said notes became due. An order of delivery was issued at the commencement of the action, and the property was taken thereunder and delivered to plaintiff, defendant failing to give a retaining bond.
The evidence tends to show that the second table, purchased on May 18, 1908, was defective by reason of the fact that the slabs of slate out of which the top of the table was constructed did not fit together, and that when the table was put up there were joints between the ends of the pieces of slate; also that one of the ■ carom blocks did not fit the pocket in the table. This table was shipped from plaintiff's factory 01-place of business at Toledo, Ohio, to the defendant at Hoxie, Arkansas, and complete instructions were sent showing how to set the table up. Soon after the table was received and put up by defendant, he wrote to plaintiff notifying it of the defect. He did not, however, reject the table or notify plaintiff that he intended to do so. Further instructions were sent to him by plaintiff about correcting the defect, and after defendant' made an effort to correct the defect he again notified plaintiff of the continued existence of the defect, concluding his letter with the following statement: “Now, I will want you to make good your mistake. Let me hear from you.” He still did not offer to return the table, nor did he notify plaintiff definitely that the same would be rejected. On the contrary, he continued to use the table in his pool room up to the time this action was commenced.
In September, 1908, in response to a demand for payment of the notes then due, he wrote a letter to the agent of plaintiff who had the notes for collection stating that it would be impossible for him to pay then on account of the fact that the cotton crop had not begun moving, and that he could not pay anything until about thirty days later. The notes were after-wards sent to an attorney in Lawrence County, and presented to the defendant, and he refused to pay, failing, however, to make an offer to return the table.
. There was no defect about the first table, and it is undisputed that six of the notes were unpaid and past due at the time this suit was commenced. Defendant introduced testimony tending to prove the defective condition of the table, and also tending to prove the usable value of a pool table. After the introduction of all the evidence, the court refused to give any of the instructions requested by plaintiff, but on motion of defendant submitted to the jury the following interrogatories, which were answered by the jury as indicated below:
“1. Was the last table bought by Pat Whalen from the B. A. Stevens Company defective?
“A. Yes.
“2. Was the plaintiff notified of the defective table?
“A. • Yes.
“3. What was the usable value of a good combination table like the one bought by defendant from the plaintiff in the business house of the defendant, Pat Whalen, at Hoxie, Arkansas?
“A. One dollar per day.
“4. What was the usable value of the table actually received by the defendant from the plaintiff?
“A. Fifty cents.
“5. What was the usable value of the good table taken from Whalen by the replevin action?
“A. One dollar per day.
“6. If the defective table taken by the plaintiff in replevin had been such a table as was intended to have been sold, what would have been the usable value of the same since the replevin was brought?
“A. One dollar per day.
“7. What was the value of any of the property replevied by the plaintiff that was not owned by the defendant at the time the mortgage was given?
“A. $22.18.
“8. How much insurance is included on the notes sued on in this action?
“A. $7.00.
“9. What was the value of the articles replevied? Give the articles and values.
“A. Total $337.20; 1 No. 6864 4x8 Buckeye pool tauie, $143.00; 1 set carom blocks, $2.50; 1 set billiard markers, $1.25; 1 cue rack, $4.00; 1 set 2 Jg No. 910 billiard balls, $20.751 1 ball rack, $4.00; 1 dozen cues, $4.00; 1 brush, 55 cents; 1 bridge, 35 cents; 1 basket, 40 cents; 1 shake bottle, 35 cents; 1 shake ball, 20 cents; 1 triangle, 30 cents; 1 rail fork bit, 20 cents, 1 No. 6535 4x8 Buckeye pool table, $125.00; 1 set pool balls, $16.00; 1 cue rack, $4.00; 1 ball rack, $4.00; 1 dozen cues, $4.00; 1 brush, 55 cents; 1 bridge, 35’ cents; 1 basket, 40 cents; 1 shake bottle, 35 cents; 1 rail fork bit, .20 cents; 1 set shake balls, 20 cents; 1 triangle, 30 cents. Total, $335.20.”
The court then made a finding that the defendant had tendered the defective table at various times, and had paid as a part of the price thereof $45 in cash, $12.77 in freight and $7 insurance, which should be credited upon the notes given for the other table, and that, when so credited, said sums were sufficient to cancel all the notes given for the first table purchased. The court thereupon held that, the purchase price of the first table being thus paid, plaintiff had no right to recover the first table, and that the taking thereof under the order of delivery was wrongful. Judgment was thereupon rendered against plaintiff and the surety on the replevin bond for the recovery of the first table and paraphernalia, viz., the one purchased in October, 1907, or its value, a total of' $155.35, together with the sum of $215 as damages for detention of same during the pendency of the action. Plaintiff appealed.
It has been often decided by this court that if there be a breach of warranty of the soundness or fitness of an article which the vendee has had no opportunity to inspect before delivery, he may make his election, either to rescind the contract, or to affirm the contract by accepting and keeping the property, and, when sued for the price, set up the false warranty by way of recoupment. Plant v. Condit, 22 Ark. 454; Weed v. Dyer, 53 Ark. 155; Bunch v. Weil, 72 Ark. 343; Ward Furn. Co. v. Isbell, 81 Ark. 549.
In the last case cited above, which was a contract for the sale of lumber, the rule is stated as follows: “The contract specifications as to age and grades of lumber were not merely warranties, but conditions precedent, which gave appellant these rights: (1) if the lumber was not according to contract in these respects, to reject the same, or (2), to accept same and bring cross action for breach of warranty when sued for the purchase price, or (3), without bringing cross action for breach of warranty, to use the breach by way of reduction or recoupment in the action by the vendor for the price.”
The vendee, having his election, can not employ all of these remedies, but must make a choice between them. Now, in the present case, defendant sought to take advantage of the remedy allowed him to rescind the contract, and the court allowed him the benefit of this. It was too late, however, to make his election after the action had been commenced against him to enforce the contract. It was his duty to make his election within a reasonable time after he received the property and discovered its defective condition. He had no right to keep the property and use it, and at the same time insist on a rescission of the contract. By keeping the property and using it, he elected to pursue the other remedy' — that of demanding damages sustained by reason of the defect, which- would be the cost of correcting the defect, if it could be corrected at a reasonable ex- . pense, or the difference between the value of the defective table and one which was free of defect, such as was contracted for. If the damages found by the jury, by reason of the defective condition of the table, exceeded the amount of the mortgage notes, then the plaintiff could not recover judgment for possession of the property. Ramsey v. Capshaw, 71 Ark. 408; Ames Iron Works v. Rea, 56 Ark. 450.
Under the statutes of this State, which provide that in replevin suits to recover mortgaged property the mortgagor shall be allowed to prove the amount of payments or set-offs against the debt, and that judgment shall be rendered for the balance due on the debt (Kirby’s Digest, § 6869), whatever damages the jury shall find to be due the defendant by reason of the defective condition of the table should be allowed by way. of counterclaim as a payment on the mortgage debt due for the defective .table. The amount so found can not, however, be a counterclaim against the mortgage debt due for the price of the first table, for that is a separate contract, and the statute provides that a counterclaim “must be a cause of action in favor of the defendants, or some of them, against the plaintiffs, or some of them, arising out of the contract or transactions set forth in the complaint as the foundation of the plaintiff’s claim or connected with the subject of the action.” (Kirby’s Digest, § 6099). Barry-Wehmiller Mach. Co. v. Thompson, 83 Ark. 283.
Nor can it be pleaded as a set-off, for unliquidated damages for a breach of contract can not be the subject of a set-off. Gerson v. Slemons, 30 Ark. 50; Stewart v. Scott, 54 Ark. 187.
Upon the pleadings and proof, plaintiff was entitled to a judgment for the possession of the pool table and paraphernalia sold to defendant in October, 1907. The question of damages on account of the defective condition of the other table should have .been submitted to the jury.
The judgment is therefore reversed, and the cause remanded for new trial.
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McCulloch, C. J.
This is an action instituted by appellee against appellants to recover a balance claimed to'be due on his salary as manager of a cotton oil mill at Camden, Arkansas, owned and operated bv the appellants. Appellants answered, admitting the employment of appellee by them as such manager at the salary mentioned in the complaint, but they alleged that appellee, by virtue of his contract of employment, agreed to manage the business in a careful, capable and business-like, manner, and had failed to do so. They seek to recoup damages alleged to have been sustained by reason of the negligence of appellee in his management of the mill, and set forth numerous specifications as to said acts of negligence and mismanagement. The case was tried before a jury, and seems to have resulted in a verdict and judgment in favor of appellee, though the amount of the verdict is not set forth in appellant’s abstract. In fact, the abstract furnished by counsel is so incomplete that we are precluded, under the rules of this court announced in previous decisions, from considering the case on its merits. The onlv assignment of error referred to in the abstract and brief is the giving of an instruction at appellee’s request. This instruction is quite a lengthy one, and contains numerous separate paragraphs. Whether this instruction was objected to or not, or, if so, what part was objected to, nowhere appears in the abstract or brief. In fact, the abstract and brief contains no reference to a motion for new trial or to an exception saved at the time of the trial. In order to determine whether or not error was committed, we would be compelled to thoroughly explore the record to ascertain what instructions were given, and whether or not exceptions were saved. This we are not called on to do. On the contrary, unless there is something in the abstract and brief which shows that an error was committed, and that the same was properly objected to below and exceptions saved, nothing is left for us to do but to affirm the judgment. Wallace v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 359; Files v. Law, 88 Ark. 449; Haglin v. Atkinson-Williams Hardware Co., 93 Ark. 85.
Appellant’s abstract of the testimony shows that there was sufficient evidence to sustain the verdict in favor of appellee. The judgment is therefore affirmed.
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Frauenthal, J.
This was an action instituted by Mrs. Grace Hartung, the plaintiff below, against the St. Louis, Iron Mountain & Southern Railway Company to recover damages on account of personal injuries which she alleged she sustained while a passenger upon one of defendant's trains. The defendant ran a mixed train from Watson to Helena, two stations upon its line of railroad, in which it carried passengers and freight. The testimony on the part of the plaintiff tended to prove that she had paid her fare, and was entering defendant’s train as a passenger at Watson for Helena.
In the train were two passenger coaches, and some freight cars were being switched for the purpose of putting them in the train. The train was preparing to leave, and passengers were entering the train. The plaintiff was accompanied by her baby, which was in the arms of her husband as she first entered the coach. She deposited some bundles upon the seat and then returned at once to the platform of the coach to take the baby from her husband. As she was thus standing on the coach platform, the engine backed three flat cars loaded with timber against the passenger coach with great and unnecessary force and violence, so that, as one of the witnesses testified, it almost lifted the end of t'he coach off the track. By the great jar and jolt the v plaintiff was thrown across the coach platform on which she was standing and against the brake beam and guard rail of the next car, and thereby she was severely injured.
Upon the trial of the case the jury returned a verdict in-favor of the plaintiff for $2,500; and from the judgment entered thereon the defendant has appealed to this court.
It is urged by counsel for defendant that, inasmuch as this was a mixed train, the plaintiff was guilty of negligence which contributed to the injury by going on the coach platform after entering the coach; and that on this account she is not entitled to recover, as a matter of law. But the fact that this was a mixed tram dm not alter or diminish the duty, whicn was required of defendant as a carrier, to stop its train for such a reasonable time as would permit passengers to go on board with safety. Where the carrier accepts passengers on such mixed trains, the same rules of law will apply to it for the exercise of care in protecting its passengers from injury as apply to -it when receiving them on regular passenger trains. In the case of St. Louis, Iron Mountain & Southern Railway Company v. Brabbzson, 87 Ark. 109, it is said: “It is well settled that, though a passenger riding on a freight train must be deemed to have assumed all the risks incident to travel op such trains, yet, where the railway company undertakes the carriage of passengers on freight trains, it owes to such passengers the same high degree of care to protect them from injury as if they were on passenger trains.” Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22; Arkansas Central Railroad Co. v. Janson, 90 Ark. 494; Arkansas S. W. Ry. Co. v. Wingfield, 94 Ark. 75.
The carrier of passengers on mixed trains is required, like carriers on regular passenger trains, to furnish reasonably safe means of entering the car and to hold the car in a reasonably safe manner for a reasonable time to permit those who wish to enter to do so with safety. If therefore, while the passenger is getting on the car, the train is negligently started, or so neg-. ligently handled by permitting other cars to be thrown against it with such violence that the passenger is injured, the carrier will be liable. The time that is allowed a passenger to enter a train depends to a great extent on the particular circumstances of each case and of the passenger; the physical ability of the passenger, his incumbrance with baggage and his being accompanied by those who are dependent upon him for attention may all be taken into consideration in determining whether a reasonable time has been afforded the passenger in getting on board the train. 2 Hutchinson, Carriers (3d Ed.), § mi; 6 Cyc. 613.
In the case at bar the plaintiff was accompanied by her infant child, .and she had come to the coach platform to take it from the arms of the father, who was standing on the depot platform. Other passengers were at the time entering the train, and all of them had not entered when the injury occurred. It became a question for the jury to say under the testimony in the case whether the plaintiff went to the car platform without unreasonable delay, and whether she remained on the platform a reasonable time to get her child. If she acted with reasonable diligence to do this, then it cannot be said as a matter of law that she was guilty of contributory negligence which would defeat her right to recover.
The court gave a number of instructions to the jury, both at the request of the plaintiff and of the defendant. These instructions fully told the jury that the plaintiff assumed all the ordinary risks and hazards that were incident to -the travel on a mixed train, and properly declared to them the care that the law required the plaintiff to exercise as a passenger, on such train. Amongst other instructions it gave the following at the request of plaintiff:
“3. You are instructed that railroad companies are required in the carriage of passengers to use the utmost care and foresight, and are held responsible for even a small degree of negligence causing an injury to a passenger, and are required to exercise the highest degree of a practicable care, diligence and skill in the operation of their trains to prevent injury to passengers.”
It is urged that the court erred in giving this instruction because it was not applicable to the carrier of passengers on a mixed train. But we do not think this contention is correct. The duty of a carrier of passengers on a freight or mixed train is thus stated in the case of St. Louis Southwestern Ry. Co. v. Cobb, 89 Ark. 82: “The passenger assumes the risks and hazards that are incident to the operation of a freight train; but the general duty of the carrier to use the utmost care for the safety of the passengers is the same. Freight trains and passenger trai.ns are operated differently, but a freight train carrying passengers cannot be operated carelessly without subjecting the company to liability, any more than a passenger train. * * * In the operation of a freight train the operatives can no more overlook the due care of their passengers than can the operatives of a passenger train.” See also Rodgers v. Choctaw, O. & G. Rd. Co., 76 Ark. 520; Pasley v. St. Louis, 1. M. & S. Ry. Co., 83 Ark. 82; St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109; Arkansas Central Rd. Co. v. Janson, 90 Ark. 498.
If there was any defect in the verbiage of the instruction, the defendant should have called the court’s attention thereto by a specific objection, so that it could have been corrected in that particular. St. Louis, Iron Mountain & S. Ry. Co. v. Richardson, 87 Ark. 602.
It is urged that the court erred in giving the following instruction: “4. You are instructed that a railway company operating a mixed train which carries passengers and which has drawn up .to a station for the purpose of receiving passengers is bound to anticipate the presence of passengers aboard the passenger car and to exercise care not to injure them.”
Under the circumstances of this case we do not think that any error was committed .by giving this instruction. The passenger ooaches were stopped at the depot, and passengers were at the time entering the train. Preparations were being made for the departure of the train, and the trainmen were bound to anticipate the presence of the passengers going on board of the train under these circumstances. St. Louis. I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503; St. Louis, I. M. & S. Ry. Co. v. Gilbreath, 87 Ark. 572.
It is urged that the court erred in giving the following instructions:
“5. You are instructed that in the operation of mixed trains jars of great, unusual and unnecessary violence would be evidence of negligence on the part of the trainmen, and you are further instructed that, as a matter of law, it is not1 necessarily negligence for a passenger to be standing on a mixed train, but on the other hand one has a right to so stand, provided the standing is not so protracted or uncalled-for that it becomes unnecessary or imprudent.”
The principle of law set out in this instruction is, we think, correct. A passenger is not guilty of negligence per se to stand up in a mixed train. There are circumstances which often arise that justify a passenger in standing up. In the case of St. Louis, I. M. & S. Ry. Co. v. Gilbreath, 87 Ark. 572, it is said: “This court has repeatedly held that it is- not necessarily negligence for a passenger on a freight train to stand up, but that it is generally a question for the jury to decide under the circumstances disclosed in each case.” See also St. Louis, I. M. & S. Ry. Co. v. Billingsley, 79 Ark. 337; Pasley v. St. Louis, I. M. & S. Ry. Co., 83 Ark. 22; St. Louis, I. M. & S. Ry. Co. v. Harmon, 85 Ark. 503; St. Louis, I. M. & S. Co. v. Richardson, 87 Ark. 101; St. Louis, I. M. & S. Ry. Co. v. Brabbzson, 87 Ark. 109.
Nor do we think the instruction is otherwise prejudicial. We do not think that the fair meaning of the language would indicate that it assumes the existence of the facts therein recited, but that it is in effect hypothetical.
In other instructions given on behalf of the defendant the court had told the jury fully as to what acts would have constituted contributory negligence on the pant of the plaintiff by standing up; and the effect of this, instruction was only to tell the jury what acts in that regard would not as a matter of law constitute such contributory negligence. Its effect was still to leave to the jury the province to determine the facts and whether or not under the circumstances of this case the plaintiff was guilty of contributory negligence in standing up. Inasmuch as the defendant had requested and obtained the giving of instructions which singled out facts on, this issue, we do not think that any prejudicial error was committed by the court in this regard in this instruction.
It is urged by the defendant that the court erred in instructing the jury that the plaintiff could recover for mental pain and anguish as an element of damage. It claims that the evidence shows an entire absence of mental suffering. We do not think that this contention is correct. The evidence shows that the plaintiff, a delicate woman, was thrown with great force and violence across the end of the car and against the iron brakes and rails. Her breast was injured, the skin was torn from her arm from the wrist to'the elbow and the muscles of her shoulder were badly wrenched. She suffered physical pain at the time, and has continued to suffer such pain for more .than one and one-half years after the injury. A physician of defendant waited on her immediately after the injury, and later she required the attention of another physician. She suffered such rheumatic pains, which were caused by the injury, that she consulted a specialist; and with all the medical assistance which sihe obtained she still endures pains that are a result of the injury. Mental suffering is so intimately connected with physical suffering that mental pain and anguish was necessari!)*- inci dent to her condition from the injury. St. Louis, I. M. & S. Ry. Co. v. Taylor, 84 Ark. 46; Arkansas S. W. Ry. Co. v. Wingfield, 94 Ark. 75.
There was 'evidence in the very nature, extent and circumstances of the injury which was sufficient to sustain an instruction relative to mental pain as an element of the damages. And under the testimony that was adduced in this case as to the nature and extent of the injury we cannot say that the verdict of $2,500 was excessive.
The judgment is affirmed.
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Frauenthal, J.
This was an action in the nature of a creditors’ bill, seeking to satisfy a judgment out of indebtedness due to the judgment-debtor, which could not be reached by ordinary legal process, and by equitable garnishment to apply such indebtedness to the extinguishment of the judgment.
Fred Roesch, the plaintiff below, had obtained a judgment against R. J. Polk, the principal defendant in the present suit, some years prior to the institution of this action, which remained wholly unsatisfied. In 1907 and for some years prior thereto R. J. Polk was treasurer of Pulaski County, Arkansas, and had deposited the public funds of said county during said years with the defendant, W. B.. Worthen Company, an incorporated bank, in his name as such county treasurer. The compensation of said Polk as county treasurer consisted of commissions upon' the public funds thus received by him from time to time. These commissions during the year of 1907 and up to the time of the institution of this action in June, 1908, amounted in the aggregate to' about $5,000. In his complaint the plaintiff alleged that these commissions due to said Polk were on deposit with said W. B. Worthen Company in the name of said Polk as county treasurer, and had not as yet been segregated from the public funds of said county, and he sought by this proceeding in the nature of an equitable garnishment against said Worthen Company to have the said com missions due to Polk applied to the satisfaction of his judgment against him.
The testimony of the cashier of W. B. Worthen Company tended to prove that on October 16, 1907, R. J. Polk became indebted to W. B. Worthen Company in the sum of $6,000, for which he on that day executed his note payable 9 months after date; and in said note it is stated that he “deposited or pledged with said W. B. Worthen Company as collateral security for the payment of this note all my commissions as treasurer of Pulaski County, Ark., which are or may become due to October 31, 1908.” On the same day he executed an additional written instrument in which he authorized and directed “W. B. Worthen Company to collect and receipt for all commissions which are or may be due me as county treasurer of Pulaski County during my present term of office, which expires October 31, 1908.” All the commissions that the evidence adduced upon the trial of this case shows were due to R. J. Polk had been earned and were due to him prior to the institution of this action, and the cashier of W. B. Worthen Company testified that these commissions as they were earned were in the hands of W. B. Worthen Company, and became the property of that company by virtue of said assignment from Polk, and were appropriated to the payment of said note from Polk, although they were not actually credited upon the note until after the institution of this action; that there were no commissions due to Polk at the time of the institution of his suit, and that W. B. Worthen Company was not indebted'in any manner to said Polk. The chancellor made his, findings in favor of W. B. Worthen Company, and entered a decree denying to plaintiff any relief against the said company; and from that portion of the decree the plaintiff has appealed to this court.
It is urged that the assignment of the commissions of his office of county treasurer made by R. J. Polk to W. B. Worthen Company on October 31, 1907, was invalid. This contention is made upon the ground that the fees or commissions of the office were at that time unearned; and plaintiff invokes the rule of law that the assignment of the future emoluments of'a public office is void. This is the English rule, and the preponderance of American authority supports the rule.
It is said that “the rule rests upon the ground of public policy, which forbids anything tending to weaken the efficiency of the public service.” The law presumes that the officer requires .the payment of his salary to enable him to properly perform the duties of the office. It is held that the public service is protected by protecting those' engaged in performing public duties, and the funds that are provided by the law for the maintenance of the office should be received by those who are to perform the work at the time and in the manner appointed by the law for its payment. In order to obtain faithful and efficient service from public officers, it is the policy of the law to forbid the assignment of the unearned commissions or salary of a public officer. Bliss v. Lawrence, 58 N. Y. 442. And see First Nat. Bank v. O’Brien, 4 A. & E. Ann. Cases, 423 and note to said case; McGowan v. New Orleans, 10 A. & E. Ann. Cases, 633; 4 Cyc. 19.
But the same rule of public policy which forbids the assignability of the unearned fees and salary of a public officer involves also the conclusion that such fees and salary can not be reached by attachment, garnishment or other legal proceeding. This rule is placed upon the further ground that the officers entrusted with public duties should not be embarrassed or interrupted by such litigation, and that the efficiency of the “public service should not be hazarded by any uncertainty respecting the payment of the officer charged with the performance of public duties. In the case of McMeekin v. State, 9 Ark. 553, it is said: “The question is distinctly presented whether or not the salary due from the State to one of her public officers can by garnishment be seized before being paid to him and appropriated to the payment of his judgment debts. And this seems to be absolutely forbidden by considerations of public policy. * * * The proper and efficient administration of the State Government in all its departments would be endangered by the establishment of the doctrine contended for by the plaintiffs in error; * * * it would at all times in its practical operation be embarrassing, would frequently be mischievous, and under some circumstances might prove fatal to the public service.” Geist v. St. Louis, 156 Mo. 643; Morgan v. Rust, 100 Ga. 346; Knox v. Erie City, 28 Pa. St. 175; Mayor v. Rowland, 26 Ala. 498; McDougal v. Supervisors, 4 Minn. 130; Boalt v. Williams Co., 18 Ohio 13; 12 A. & E. Enc. Law, 70; 20 Cyc. 1030; Rood on Garnishment, § 18.
But the objections to an assignment of the prospective compensation of an officer do not apply to his fees and salary after the same have been earned, and there is no legal objection to such an assignment becoming effective after the salary or fees have become earned and are payable. Throope on Public Officers, § 45; Bliss v. Lawrence, 58 N. Y. 442; Stephenson v. Walden, 24 Iowa 84.
In the case at bar the commissions of Polk as county treasurer on the various public- funds received by him prior to the institution of this suit were then earned and payable to him. These fees and commissions so earned were then in the hands of W. B. Worthen Company, and the assignment thereof which had been made to it by Polk became then effective. The mere fact that- credit therefor was not then written upon the note would not defeat the right of W. B. Worthen Compan}'- thereto. The commissions were in their possession; and by the assignment, which then was valid and effective, these commissions were in equity appropriated to payment on the note, which represented the indebtedness that Polk was then owing the W. B. Worthen Company, and to the payment of which the commissions were pledged. The rights which the plaintiff seeks to obtain by this equitable proceeding can be no greater than the rights which the W. B. Worthen Company obtained to the earned fees and commissions by virtue of said assignment.
Nor can the plaintiff, by virtue of this proceeding in the nature of an equitable garnishment, acquire any greater right to these earned commissions than the defendant Polk could have asserted or enforced, in the event the indebtedness to W. B. Worthen Company was bona tide, and the assignment of the fees was made in good faith and for a valuable consideration. By this proceeding W. B. Worthen Company was in effect made a garnishee, and as such it had a right to retain all funds and earned fees which it could by virtue of said assignment appropriate to the payment of the indebtedness of said Polk to it. For such tees and commissions the defendant Polk could not hold W. B. Worthen Company liable, and -this garnishment proceeumg can not place it in a worse position, or under any greater liability, than it would be should the debtor Polk at tempt to obtain these earned fees which had thus been equitably appropriated upon his indebtedness to W. B. Worthen Company. Rood on Garnishment, § § 44, 46; 20 Cyc. 1060.
It is urged that the assignment of said commissions is void because it was made for the purpose of delaying and defrauding the plaintiff in the collection of his judgment. This contention presents a question of fact as to whether or not Polk was actually indebted to W. B. Worthen Company and made the transfer of said commissions to it in good faith and for a valuable consideration. The chancellor by his decree, in effect, made a finding that the note executed by Polk to W. B. Worthen Company in October, 1907, was for money actually loaned to him, and that the indebtedness represented by the note was bona ñde; and that the assignment of the commissions was made in good faith and to secure the payment of said note, and not with the intent to delay or defraud plaintiff in the collection of his debt. We have examined the evidence adduced upon the trial of this case, and we can not say that the$e findings of the chancellor are clearly against the preponderance of the evidence. We do not think that it would serve any useful purpose to set the testimony out in detail. It appears that the relations between R. J. Polk and W. B. Worthen Company were very close, and that the entire control and management of the treasurer’s office was turned over to the cashier of that company. But the manner in which that office was conducted and the emoluments received therefrom could not in any way affect the rights of the parties to this litigation. There was sufficient evidence to sustain the findings of the chancellor that the indebtedness due from Polk to W. B. Worthen Company as represented by the note was bona ñde, and that the commissions were assigned in good faith, and were subject to be appropriated in payment on said note prior to the institution of this suit. Under such circumstances the findings of the chancellor should not be disturbed. Whitehead v. Henderson, 67 Ark. 200; Hinkle v. Broadwater, 73 Ark. 489; Bank of Pine Bluff v. Levi, 90 Ark. 166.
The decree is affirmed.
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Hart, J.,
(after stating the facts). It is first contended by counsel for appellant that the judgment in favor of Bilby vacating the former judgment is void because no service in the proceeding was had upon Foohs; but he is precluded from, raising this question by the recitals of the record that “the attorney for said John Foohs has submitted a written argument or a statement to this court in this cause.” “Any action on the part of a defendant, except to object to the jurisdiction, which recognizes- the case as in court will amount to a general appearance.” 3 Cyc. 504. “Any taking part in the proceedings will constitute a general appearance.” 2 Enc. of Plead. & Prac., p. 639.
Counsel now insists that he only appeared for the purpose of objecting to the jurisdiction of the court over the person of Foohs; but the record does not show that he limited his appearance to that single question. On the contrary, it shows a general appearance. “A general or voluntary appearance is equivalent to service of process, and confers jurisdiction of the person on the court. Hence a defendant is estopped to object to want of such jurisdiction where he has appeared generally, and it is held, to be immaterial whether he be a resident or nonresident.” 3 Cyc. 515-517. “
It is not contended by Foohs that the counsel referred to in the record had no authority to enter his appearance. Hence the question of unauthorized appearance does not arise in the case.
It is next insisted by counsel for appellant that, Bilby having appealed from the judgment of the circuit court and the judgment having been affirmed, he was precluded from instituting proceedings to vacate it. This objection is not tenable. The appeal was merely a continuation of the suit below. An appeal does not have the effect of vacating the judgment of the court below. Even where a supersedeas is granted, an appeal does not have the effect of vacating a judgment, but only stays proceedings thereunder. Miller v. Nuckolls, 76 Ark. 485. If no supersedeas is granted, the judgment of the court below is suspended pending the appeal; and if the cause is reversed, the rights of the parties stand as though no action had ever taken place in the court below. Harrison v. Trader, 29 Ark. 85. On the other hand, if the judgment is affirmed, the rights of the parties will stand as if no appeal had been taken. Therefore, we do not see how the rights of a party to have a judgment set aside for the grounds set out in section 4431 of Kirby’s Digest can be affected by an appeal taken from the judgment. The appeal and the proceedings to set aside the judgment for the grounds mentioned in section 4431, supra, are wholly separate and independent proceedings, and are intended to effectuate different purposes. Therefore, it is difficult to perceive how the use of the one remedy will preclude the right to exercise the other.
Again, counsel for appellant urges a reversal on the ground that appellee had filed a prior application to vacate the judgment, but it is conceded that this was dismissed on his own motion without prejudice to a renewal of it, and we have no statute limiting the time within which the moving party must act to bring himself within the terms of section 4431 supra. In such cases there can be no objection to a second application. 23 Cyc. 975. Besides, the complaint herein was filed within one year after the former application was dismissed without prejudice on the motion of appellee.
We now come to the main question in the case. Appellee in his complaint to vacate the judgment rendered against him at the November term, 1907, of the' Arkansas Circuit Court alleged that he was a nonresident of the State, and that his attendance at the trial was not necessary, and that he was not expected to be present. That the conduct of the case was wholly in the hands of his attorney. That his attorney became ill and died a short time before the sitting of the court, and that he did not know of the illness and death of his attorney until after the judgment in question had been rendered, and-the court had adjourned for the term. He alleged further facts which constituted a valid cause of action in his behalf. The record shows that evidence was heard on the trial of the case. No bill of exceptions was filed, and this was necessary in order to bring into the record the facts proved or admitted on the trial. Hall v. Bonville, 36 Ark. 491; Berger v. Houghton, 84 Ark. 342, and cases cited.
Counsel for appellant filed a motion to set aside the judgment obtained by appellee vacating the former judgment. This was done at the same term of the court, and in his motion • counsel for appellant by exhibits and other papers filed therewith undertakes to -supply a record upon which he bases his right to a reversal of this case. Manifestly, this can not be done. We must review the alleged errors on the record as presented to the lower court; otherwise we might not review the case passed upon by the trial court but a wholly different one.
In the case of Hurlburt v. W. & W. Manufacturing Co., 38 Ark. at p. 597, the court said: “It is noted in the record that afterwards, during the same term, the defendants made two several motions, in effect to set aside the default, and tendered an answer. The motions and the answer tendered are set forth in the transcript, but are not incorporated in any bill of exceptions. Whilst it is proper for the record to show that motions of this class were made and acted upon, neither the grounds of the motions recited therein, nor the papers tendered with them, can be received as evidentiary of the facts therein stated. The grounds upon which the court based its discretion can not be known, nor can it be seen whether or not the court abused its discretion, without a bill of exceptions showing the matters set forth in the motions and papers tendered and the ■proof upon which they are based. It is not the office of the record proper to do that.” And for like reason the court held in the case of Cox v. Cooley, 88 Ark. 350, that a motion for a new trial can not be used, and has never been used, to incorporate anything into the record. See also Independence County v. Tomlinson, 93 Ark. 382.
This is conclusive of the present case. The errors complained of do not appear from the record itself, and there is nothing presented for our review.
The motion to vacate the judgment under section 4431 supra was heard on evidence, and, the evidence which the court heard and on which it acted in setting aside the judgment in question not being brought into the record, we must presume that every fact necessary to sustain the finding and judgment of the court was proved that could have been proved. Hempstead County v. Phillips, 79 Ark. 263, and cases cited.
“In the absence of a bill of exceptions,- it will be presumed that the court’s findings of fact were based on the evidence, where there is nothing in the record to rebut that presumption.” Swing v. Brinkley Car Works & Manufacturing Co., 78 Ark. 198.
The judgment will therefore be affirmed.
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Frauenthal, J.
The appellant is a foreign corporation with its place of business and domicil located in the State of Illinois, and School District No. 47 was on June 24, 1904, one of the-duly formed common school districts of Pike County. On that day two of the directors of that district entered into a written contract with appellant, by which they agreed to purchase from it a number of school desks for the school district. It was therein agreed that the purchase price should be $344.77, and payable on September 1, 1905; and, inasmuch as <the payment for the desks would not be made until said day in the future, the cost of the desks was arrived at and agreed upon by adding interest to the cash price thereof. The third director was not present at the making of said contract, and had no notice of the meeting at which it was made. The contract, however, provided that it might be countermanded within fifteen days ’from its date; and in about three weeks thereafter there was a meeting of the board of directors of the school district at which the three directors were present. At that meeting the three directors agreed to and ratified the contract for the purchase of the desks and authorized the issuance of a warrant therefor upon receipt thereof. ' At the annual school meeting held previous to the making of this contract the electors of the school district voted a five mill tax for building purposes, but gave no expression relative to the purchase of desks. After the contract was agreed to by the three directors appellant shipped the desks, which were received and accepted, and a warrant of the school district -was issued therefor. This warrant was executed by the three directors for $344.77 in common form, and stated that it was due September 1, 1905. The desks were used by School District No. 47 from the time they were received until in 1905 when said school district' was organized into a special school district, under the provisions of sections 7668 et seq.' of Kirby’s Digest, known as “Delight Special School District.” From that time up to the trial of this case the desks were in the possession of and used by said special school district, and at no time did either of these school districts ask or offer to return .the desks. The cause was tried by the court sitting as a jury, who declared the law to be that the contract made by the directors of School District No. 47 for the purchase of the desks was beyond their powers and therefore invalid; and that the warrant executed therefor was void. It entered a judgment in favor of appellee, from which the A. H. Andrews Company has appealed to this court.
The question involved in this case is whether or not the directors of a common school district have the power to purchase school desks for the district without being expressly authorized to do so by the electors at its annual meeting. A school district is a quasi corporation created' pursuant to legislative enactment, and it can exercise only those powers which are expressly conferred by statute or which arise therefrom by necessary implication. The powers of the school directors are likewise derived only from the statute, and they can exercise no power which is not therein expressly granted or which does not arise as a result from fair implication. The directors can enter into contracts only in the mode prescribed by the statute; and where the directors proceed in a mode prohibited by statute, or enter into a contract which is in excess of their powers, the district will not be bound by their acts. Thus, it is pro vided by statute that, before the directors shall purchase a school site or charts, they must be impowered to do so by a vote of the electors of the district. A contract made by the directors for the purchase of such property without a vote of the electors authorizing it would be made in a mode contrary to the statute, and would be in excess of the powers of the directors. First National Bank of Waldron v. Whisenhunt, 94 Ark. 583.
But school directors are authorized, not only to exercise the powers that are expressly granted by statute, but also such powers as may be fairly implied therefrom and from the duties which are expressly imposed upon them. Such powers will be implied when the exercise thereof is clearly necessary to enable them to carry out and perform the duties legally imposed upon them. School directors are public officers, and the rules respecting their powers are the same as those that are applicable to the powers of public officers generally. “The rule respecting such powers is that, in addition to the powers expressly given by statute to an officer or board of officers, he or it has by implication such additional powers as are necessary for the due and efficient exercise of the powers expressly granted or which may be fairly implied from the statute granting the express powers.” Throop on Public Officers, § 542; 25 Am. & Eng. Ene. Eaw, 56; 28 Cyc. 307.
By the express provisions of section 7614 of Kirby’s Digest the directors “have charge of-the school affairs and school ■educational interests,” and 'the care and custody of all its properties. By section 7590, Kirby’s Digest, the electors .determine the length of time that the school shall be taught during the year. But it becomes then the duty of the directors to make the necessary arrangements to have the school carried on. As a fair implication from this express power to manage the affairs and educational interests of the district and to make the arrangements for carrying on the school, the power arises to ■provide all those things that are clearly necessary in order to have the school conducted and taught. Thus, stoves, fuel and receptacles for water must necessarily be furnished in order that a school may be carried on; and, although there is no express power given by statute to the directors of common school districts to make purchases of these articles, yet it is fairly implied, from the duty imposed upon the directors to have the school carried on, that they may exercise such power; and so, too, they may purchase- other articles that -are clearly necessary in order to have the school taught. By section 7631 of Kirby’s Digest it is provided that the clerk of the school board shall keep an account of the expenditures made by the board in having the school taught, and present same at the school meeting. These items of the expenses of the school include what has been-expended for “houses, fences, stovewood, maps, charts, blackboards, dictionary, and other necessaries for a school.” These items, thus mentioned in the statute, include those which the directors have the power by express -grant to purchase and also those they have the power by fair implication to purchase. All these items of expenses are thus recognized by the statute as such as the directors had the legal right to make, whether from the powers expressly or impliedly granted. By section 7627 of Kirby’s Digest the directors are impowered to draw-orders or warrants “for the payment of wages due teachers or for any lawful purpose.” By fair implication from these provisions of the statute we are of opinion that the directors of common school districts have the -power to make contracts for the purchase of those articles which are clearly necessary to be provided in order that a school may be carried on and taught; and we are further of the opinion that under the circumstances of this ■ case the desks purchased from appellant were clearly necessary for the conduct of the school in- this district. The directors'had, therefore, the power to purchase the desks; and we think that at the meeting of the board at which all three directors were present the contract-therefor was-entered into in conformity with the law, and that thereby the district was -bound.
Furthermore, the board of directors of the original district and its successor accepted the desks and have used them com tinuously since the purchase thereof with full knowledge of the contract so made. They have thereby in effect fully ratified such contract. Springfield Furniture Co. v. School District, 67 Ark. 236; School District v. Goodwin, 81 Ark. 143; Forrest City v. Orgill, 87 Ark. 389.
It is urged that the warrant is void because interest was charged upon the -original purchase price and included in the warrant. This contention is made by virtue of art. 16, § 1, of the Constitution, which provides: “Nor shall any county, city, town or municipality issue any interest-bearing evidences of indebtedness.” But in the case of Schmutz v. School District, 78 Ark. 118, it was held that a school district is not a “municipality” within the .meaning of this provision of the Constitution, and is not thereby inhibited from entering into a contract agreeing to pay interest, if given statutory authority to do so. But we do not think that .it is necessary in this case to decide as b> whether or not a school district has the power to enter into a contract for the payment of interest without express statutory authority. The amount named in the warrant was agreed upon as the price to be paid for the desks. A number of considerations might fairly affect the amount of the price; and delay in the payment thereof could be reasonably taken into consideration in fixing the price. The manner in which the parties arrived at the price, based upon the fact that they took into consideration the postponement of payment, would not' affect the validity of the contract or warrant. The district through its directors agreed to give, and the appellant to accept, for the desks the amount named in the warrant; and the warrant was not invalidated because that price of the desks was made larger by reason of the postponement of the date of its payment. Brakefield v. Halpern, 55 Ark. 265.
It is contended by appellant that it is entitled to interest on the warrant from the time that payment thereof was refused. But there is no statute in this State which provides for the recovery of interest upon school warrants; and the weight of authority is that, in the' absence of a statutory provision to that effect, such warrants do not bear interest. Ashe v. Harris Co., 55 Tex. 49; Oreole Fire Engine Co. v. New Orleans, 39 La. Ann. 981; Scranton v. Hyde Park Gas Co., 102 Pa. St. 382; Pekin v. Reynolds, 31 Ill. 529; Warren County v. Klein, 51 Miss. 807; 21 Am. & Eng. Enc. Law 25. See also Nat. Bank of Jacksonville v. Duval County, 3 Am. & Eng. Ann. Cases 457, and note thereto.
Our statute provides that the warrant of any board of school directors must be presented to the treasurer of the proper county, and he shall pay the same out of any funds in his hands belonging to the district for that purpose (Kirby’s Digest, §■ 7628). It is further provided that, if there are no funds with which to pay such warrant, the treasurer shall make an indorsement thereon that it is not paid for want of funds, and shall number and record each warrant in a book, and thereafter shall pay the warrants in the order of their number. (Kirby’s Digest, § 7666). The treasurer is thus only impowered to pay the amount of the face of the warrant, and no authority is given by the statute to him to pay interest thereon. School districts are only quasi corporations, and are governmental agencies organized under legislative enactment for the carrying out of certain public purposes. The issuance of warrants on the county treasurer by school districts is done under the provisions of the statute. The statute does not provide, and it cannot be fairly implied therefrom, that the warrants shall bear interest; and, until the Legislature shall by express enactment grant to-school districts the power to.issue interest-bearing warrants, we think that it is the policy of the law that such warrants shall' not bear interest.
We are of opinion that the warrant sued on was a lawful and binding obligation of School District No. 47 for the amount thereof, and by section 7690 of Kirby’s Digest it became a legal liability against Delight Special School District, into which it was organized.
In its answer the appellee also alleged that the appellant was a foreign corporation, and had not complied with the laws of this State, and on that account could not maintain this action. Counsel for appellee do not urge this contention in their brief, and we do not think that it is well founded, under the decision rendered in the case of Simmons-Burks Clothing Co. v. Linton, 90 Ark. 73.
For the error of the court as above indicated the judgment is reversed, and the cause remanded for a new trial.
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Battle, J.
William O. Forbes sued David Laser for damages. He alleged in his complaint that he entered into a contract with the defendant on the 24th day of January, 1908, by .which the defendant bargained and sold to plaintiff certain blocks for $6,900, of which he haso paid $1,530; that the defendant, by the terms of the contract, undertook to expend twenty-five -per cent, of the moneys paid in by him, as fast as it was received, in surface grading and laying sewer pipe in front of the property and in building a four-foot .cement sidewalk along the street line of the property; and that defendant has failed to malee such improvements, to his damage in the sum of $2,530; and asked for judgment for that amount.
The defendant, David Laser, answering, admitted the execution of the contract as alleged by the plaintiff, and that plaintiff made payments as alleged, except that $340 was paid by note, which is past due and wholly unpaid; and denied that he or his codefendant, Ed L. Wheeler, has failed and refused to comply with their agreement to surface grade and lay sewer pipe in front of the property, or failed or refused to do any part of such work or expend any part of the $1,500 in compliance with their contract; and alleged that plaintiff is now owing to the defendant the sum of $1,700 on account of a part of the purchase money, for which the blocks were sold, remaining unpaid, and asked for judgment against plaintiff for that amount.
Much evidence was adduced in the trial of the issues in this action, and improvements were shown to have been made by the defendants in the vicinity of the blocks sold, to the plaintiff.
The court instructed the jury, in part, over the objection of the defendant, as follows: “The court instructs the jury that the obligations of the contract sued on are mutual; and if the defendant Laser has failed to comply with the obligations imposed on him by said contract, then the plaintiff had a right to refuse to make further payments and to rescind said contract and recover from defendant any amount paid by him to defendant under said contract.”
And the court refused to instruct the jury, at the request of the defendant, as follows:
“You are further instructed that if you find from the evidence that the defendant in this cause entered into a written contract with the plaintiff whereby he agreed to expend 25 per cent, of the moneys by him received from the sale of the property in the Central Park Addition, the property in controversy, and has failed to perform his part of the contract by such expenditure of the money, then plaintiff will be entitled to recover against the defendant for the breach of contract on the part of the defendant.
“The jury are further instructed that, if you find in favor of the plaintiff and against the defendant according to the above instruction, then the amount of recovery that the plaintiff would be entitled to against the defendant in this ease would be such sum as you might find, from the evidence in this case, the plaintiff, as owner of the property purchased from the defendant, has 'been damaged by reason of said breach of the contract on the part of the defendant.”
The jury returned a verdict in favor of the plaintiff for $1,530, tfie .amount paid by him for the blocks; and the court rendered judgment for that amount against the defendant, and he appealed.
This action was brought to recover damages occasioned by an alleged breach of contract and not to rescind. The cjuestion in the ease was, what damages had the plaintiff suffered? He is not entitled to recover the money paid for the blocks purchased by him and to hold the blocks. The blocks were not shown to be worthless, and the damages were not shown to be $1,530, or any approximate amount. The plaintiff did not ask to rescind. The instruction given and copied in this opinion should not have been given, and the instructions refused should have been given.
Reverse and remand for a new trial.
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Wood, J.,
(after stating the facts). 1. The principal question is, does the cause of action arising under section 859 of Kirby’s Digest survive? That section is as follows:
“If the president or secretary of any such corporation shall neglect or refuse to comply with the provisions of section 848 and to perform the duties required of them respectively, the persons so• neglecting or refusing shall jointly and severally be liable to an action, founded on this statute, for all debts of such corporation contracted during the period of any such neglect or refusal.”
Section 848 requires the president and secretary of certain corporations to make an annual certificate showing, the condition of the affairs of such corporations, etc. In view of the above statute the president of a banking corporation when he accepts the office and enters upon his duties, impliedly undertakes, if he neglects or refuses to maké the annual statement, to pay all debts of the corporation contracted during the period of such neglect or refusal. The law raises the promise on his part to the creditors of the corporation that he will pay the debts of the corporation to them contracted during the period of his neglect or refusal to comply with the statute.
Mr. Blackstone says: “Whatever, therefore, the laws order any one to pay, that becomes instantly a debt, which he hath beforehand contracted to discharge.” 2 Cooley’s Blackstone, Book III, p. 158; see also p. 157.
Mr. Bishop states the principle thus: “The law by placing its command in whatever form upon one to do a thing for the benefit of another, or the State, creates the promise from the former to the latter to do it.” Bish., Cont. (2 ed.), § § 184, 204, 205.
This court, in Nebraska National Bank v. Walsh, 68 Ark. 433, has heretofore held that the liability created under the above statute is not in the nature of a penalty, but of a contractual obligation. In that case we said: “Having reached the conclusion that this is a statutory liability, and not a penalty, the statute of limitations would be that applicable to all actions founded upon any contract of liability, expressed or implied not in writing; for, before the forms of action were abolished, debt was the proper action for enforcing a statutory liability of the kind under consideration.” While the precise question here involved was not before the court in the above case, yet the principle was the same, and it must follow from the reasoning of that case that the rule of survivor is that applicable to obligations in the nature of a contract, and not to those imposed as a penalty. See also Huntington v. Attrill, 146 U. S. 657; Arkansas Stables v. Samstag, 78 Ark. 517; Jones v. Harris, 90 Ark. 51. To be sure, in jurisdictions where liabilities of this kind are held to be penalties, the rule is. different. Such are the cases cited in the brief of learned counsel for appellant. The liability created by this statute is in the nature of an ordinary contract, indebitatus, for the amounts due creditors of the bank during the period of dereliction of its president.
2. There is no merit in the contention that the act of February 14, 1891 (Acts of 1891, p. 12), did not amend the former law upon the same subject as contained in section 980 of Mansfield’s Digest. True, the Legislature of 1901 designated section 980 of Mansfield’s Digest as “section 980 of the Revised Statutes.” But it is obvious, when the whole act and its title is examined, that the term “Revised Statutes” meant the statutes as revised by the Digester, Judge Mansfield. For the act was an amendment of a prior law on the same subject. That law was contained in section 980 of Mansfield’s Digest. There was no such section as 980 in what is technically known, among lawyers, as the “Revised Statutes,” revised under the authority of an act approved October 6, 1836, and adopted at the October session of the General Assembly of 1837 and supervised and rearranged by Albert Pike under authority of law and finally published in book form in 1838. There was, however, a section designated 980 in Mansfield’s Digest, and that section had reference to the subject-matter that the Legislature of 1891 had in mind when it passed the act of February 14, 1891. The title of this latter act is: “An act to amend section 980 of Mansfield’s Digest.” This with the subject-matter shows plainly that the Legislature meant to amend section 980 of Mansfield’s Digest, or section 980 of the statutes as revised by Mansfield. Designating the section as “Revised Statutes” was an obvious clerical misprision.
3. There was no prejudicial error therefore in the admission of testimony tending to prove that John L. Hughes, the president of the bank, intentionally neglected or refused to make the annual report. For, under the law, it was wholly immaterial whether the delinquency was intentional or not.
The judgment is affirmed.
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McCulloch, C. J.
Margaret Cox, a resident of Mississippi County, Arkansas, died in October, 1903, leaving surviving appellant, Maggie Eee Segers, her sole heir at law. She left an estate consisting of a tract of land in that county, and in July, 1904, E. M. Ayers, the husband of appellee, Sarah J. Ayers', was appointed administrator of the estate of said decedent. Mrs. Ayers then probated a claim against said estate for the sum of $400, alleged to be due for the rent of land for the years 1893, 1894, 1895 and 1896. The claim was duly authenticated and presented to the administrator, who allowed it, and it was then presented to the probate court, and that court rendered a judgment allowing and classifying the claim. The' judgment of the probate court was rendered at the October term, 1904. During that term of the probate court, appellant ascertained that the claim had been allowed by the court, and she employed an attorney to represent her in getting the judgment of allowance set aside. Her attorney requested the administrator to take an appeal to the circuit court, but the latter refused to do so. An appeal was prayed by appellant at the July term, 1905, of the probate court, and a transcript of the proceedings was lodged in the circuit court. Nothing was done-in the case until May 3, 1909, when the circuit court dismissed the appeal on the .ground that appellant had no right to prosecute an appeal from the judgment of the probate court. Appellant then commenced the present action in the chancery court to set aside the judgment of allowance, on the ground of fraud in its procurement, alleging that the debt claimed against said estate had been paid during the lifetime of Mrs. Cox to said E. M. Ayers, as husband and agent of appellee, and that, if the same had not been paid as aforesaid, it was barred by the statute of limitations long before it was presented to the administrator. Appellee answered the complaint, and on final hearing of the case the chancellor dismissed the complaint for want of equity.
Appellant introduced a witness who testified that the rents for the years 1895 and 1896 were paid to E. M. Ayers. E. M. Ayers died before the commencement of this action, and appellee testified that she had no recollection of ever having received the rent for the years claimed. Fraud in the procurement of the judgment can not be predicated on the fact that the debt was barred by the statute of limitations, for this was apparent from- the face of the claim presented to the court, and there was no evidence that the facts were misrepresented to the court, or that the tacts on that point were concealed from the court. The fact alone that there was a valid defense to the claim will not defeat the judgment, for fraud which will vitiate a judg merit is that practiced in its procurement, not fraud in the original cause of action. Scott v. Penn, 68 Ark. 492; James v. Gibson, 74 Ark. 440.
It' is insisted, however, that the failure of E. M. Ayers to disclose to the court the fact that he had collected a part of the amount for which the claim was being asserted constituted a fraudulent concealment from the court of material facts, and amounted to a fraudulent procurement of the judgment of allowance. We do not deem it necessary to pass on that question, for we are of the opinion that appellant is barred by laches from attempting at this time to set aside the judgment on the alleged ground that the debt had been paid to appellee’s husband. Appellant, with full knowledge of the rendition of the judgment, waited about five years before commencing the action. In the meantime, appellee’s husband, E. M. Ayers, • to whom payments on the debt are claimed to have been made, and who is alleged to have practiced fraud in procuring the judgment, died. Appellee had no means of rebutting the testimony adduced by appellant as to said payments, and by this delay she was deprived of the opportunity to present her side of -the question. It is no excuse to say that during the period of delay the appeal from the judgment was pending in the circuit court. She is not excused by the time frittered away attempting to prosecute an unauthorized appeal. No reason is given why the case was permitted to lie undisposed of in the circuit court for four years.
Chief Justice Engeish, speaking for the court in Wilson v. Anthony, 19 Ark. 16, said: “Where the statute is not relied on as a defense, or where there is no statute of limitation, a court of equity will not aid in enforcing stale demands, -where the party had been guilty of negligence, and slept upon his rights. The chancellor refuses to interfere after an unreasonable lapse of time from considerations of public policy, and from the difficulty of doing entire justice when the original transactions, have become obscured by time, and the evidence may be lost. (Citing authorities). No precise rule, applicable to all cases, as to what lapse of time will constitute a demand a stale one, in the sense above indicated, can be declared. Each case must, to some extent, depend on its own circumstances, and will be construed or modified by them, and by analogy to other known and settled rules of ’law.”
The Supreme Court of the United States announces the same rule in language which is entirely pertinent to the question now before us: “The doctrine of laches is based upon grounds of public policy, which require for the peace of society the discouragement of stale demands. And where the difficulty of doing entire justice by reason of the death of the principal witness or witnesses, or from the original transactions having become obscure by time, is attributable to gross negligence or deliberate delay, a court of equity will not aid a party whose application is thus destitute of conscience, good faith and reasonable diligence.” Mackall v. Casilear, 137 U. S. 556. See also as illustrative of this doctrine Stuckey v. Lockard, 87 Ark. 232; Jackson v. Becktold Ptg. Co., 86 Ark. 591.
We are clearly of the opinion that the unreasonable delay in bringing the suit, coupled with appellee’s loss of evidence by reason of the death of P. M. Ayers during the period of delay, is sufficient to warrant a court of equity in refusing to set aside the judgment for alleged fraud in the procurement thereof. For this reason the decree is affirmed.
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McCulloch, C. J.
The Security Fire Insurance Company, a domestic fire insurance corporation domiciled at Little Rock, Arkansas, became insolvent, and a receiver was appointed by the chancery court of Pulaski County to wind up its affairs. The receiver, Charles McKee, instituted the present suit against the directors of the defunct corporation for losses which are alleged to have resulted from negligence and mismanagement in the discharge of their duties. Counsel for plaintiff summarizes as follows, in his brief, four distinct controversies or points involved' on which he , contends the directors should be held liable:
“Proposition i. The directors should be held liable for watering the stock of the Security P'ire Insurance Company.
“Proposition 2. The directors should be held liable for taking over the business of the Security Mutual Insurance Company without proper investigation.
“Proposition 3. They should be held liable for preferring the Citizens Investment & Security Company in the sum of $6,500 after they knew that the Security Fire Insurance Company was insolvent.
“Proposition 4. The directors should be held liable for using the funds of the corporation to purchase worthless notes.”
The chancery court on final hearing of the cause rendered a decree against the defendants only on the fourth proposition, the amount decreed ’being $4,737.68 with interest, the whole aggregating the sum of $5,780.14. Two of the defendants, Robert E. Wait and H. P. Edmonson, appealed from the decree against them. Plaintiff appealed from the failure or refusal of the court to decree liability on,the three other propositions.
There is little, if any, conflict in the testimony. The Security Fire Insurance Company was organized in November, 1903; Alex C. Hull being its chief promoter and president. For several years prior thereto a mutual insurance company, known as the Security Mutual Fire Insurance Company, had been engaged in business in Tittle Rock, and Mr. Hull was its president and’ manager. It had been doing a large business as a mutual company, and had an extensive system of local and traveling insurance agents throughout the State of Arkansas. Mr. Hull and others interested in the company conceived the idea of organizing a new insurance company on the stock basis as successor to the mutual company, and the Security Fire Insurance Company was organized to carry out that plan. It was understood in the beginning that the last-named company should be organized for that purpose, and that it would take over or purchase the assets of the old company, and assume its liabilities. The work of organizing the new company began in November, 1903, but it was not complete, and the company was not ready for business until June, 1904.
The statutes of this State provide that “no insurance company shall be allowed to transact business of insurance in this State until it shall have a bona fide subscribed capital of not less than one hundred thousand dollars, with a paid-up capital of not less than fifty thousand dollars.” Sec. 4335, Kirby’s Digest.
The delay in perfecting the organization of this company was in getting the requisite amount of stock subscribed. The necessary amount of stock was finally subscribed, but not paid. Notes were executed for stock subscriptions, but credits of fifty per cent, were indorsed on said notes, leaving only the remaining. fifty per cent, payable, so that the stock was in fact subscribed at fifty per cent, of its face or par value. The stock certificates issued were indorsed, “non-assessable and paid-up.”
The company did not have $50,000 paid-up capital, as required by the statute in order to do business, and for the purpose of raising that amount it sold the Citizens Investment Company of Little Rock the stock subscription notes given by its subscribers to the amount of. $40,000 (after the fifty per cent, had been credited thereon), and thus realized the requisite amount in order to get a certificate from the State Auditor to do business. The notes were sold absolutely, and were indorsed “without recourse” by the insurance company, but Hull and Neimeyer (another of the directors) indorsed them, and Neimeyer pledged his shares of stock in other corporations as security to the Citizens Investment 'Company for these notes. Hull and Neimeyer were the principal stockholders in and promoters of the insurance company, and indorsed the notes as a matter of accommodation in order to raise funds for the company on its notes so that it could proceed to transact business. The company sold the notes for the obvious purpose of parting with all interest in or liability on them, so that the sum realized would swell its paid-up capital to $50,000. Otherwise the stock for which the notes were executed could not have been certified as paid-up.
On March 25, 1905, the company repurchased from the Citizens Investment Company $7,797.68 of these - stock notes; $4,737.68 of them have never been paid, and are worthless, so far as the makers are concerned.
The new company took over the business and assets Of the Security Mutual Fire Insurance Company, and assumed its liabilities. Among the other liabilities assumed was a debt to the Citizens Investment Company of $6,500, for which the old company had executed its note, and on December 5, 1905, it paid; this amount with interest to the Citizens Investment Company, (thus discharging the note.
The company did business through the years 1904 and 1905, and in November or December, 1905, it was found to be insolvent. The company was probably insolvent long before that time, but on account of concealment of its liabilities by the president the directors did not 'become aware of its true.condition. After this condition was ascertained -an effort was made to procure the certificate of the Auditor permitting the further operation of the (business for the next year on accommodation notes executed to the company; but the Auditor withheld his approval, and the insolvency proceedings in the chancery court .soon followed.
The chancellor declined to render a decree against the directors on the charge of watering the stock, that is to say, issuing paid-up stock with fifty per cent, of the stock notes credited back. The grounds of his refusal, stated in the decree, were that the stockholders were liable for the full unpaid price of the stock, notwithstanding the illegal credit, and that no decree should go against the directors until the remedy against the stockholders is exhausted, and then only to the extent of any loss developed, none being shown in the .present -case. We think that is the correct view of the matter. The stockholders are liable for the full amount of their several stock subscriptions, notwithstanding the wrongful credits on the notes. 1 Cook on Corporations, § 28. When the remedy -against them is -exhausted, the question of the directors’ liability will then arise as to any loss on account of failure to enforce liability of the stockholders.
The chancellor was also correct in refusing to charge the directors with liability for talcing over the assets and business of the Security Mutual Fire Insurance Company and assuming its liabilities.- This was the purpose of the organization of the new company, and in doing this the directors were but carrying out the. will of the stockholders. No negligence on their part in this transaction is shown. They used all means reasonably available to ascertain the condition of the mutual company, and acted as reasonably prudent business men. The charge is entirely unfounded, as far as the proof shows, that two of the directors interested in the affairs of the Citizens Investment Company procured the assumption of the liabilities of the mutual company in order to get its debt paid. The debt was already well secured.
It is insisted that the directors should be held liable for the sum of $6,500 paid to the Citizens Investment Company on December 16, 1905. Why should they be held liable? It was a valid and subsisting debt of the Security Fire Insurance Company, and was paid out of available funds of the company. Conceding that the company was insolvent at the time of the payment, that fact does not render the directors responsible. If the payment was an unlawful preference to the Citizens Investment Company as a creditor, the remedy, if any, was against that company to recover the amount so paid. Upon no theory can the directors be held for the amount paid.
The only remaining question is as to the liability of the directors for the amount paid for the stock subscription notes repurchased from the Citizens Investment Company. Aside from the indorsement of Neimeyer, the notes -were worthless. They did not constitute bankable paper, and it was not the part of good business judgment to purchase them. It is no excuse for the directors to say that they intrusted the selection of the notes to Hull, as president. They, as directors, were responsible to the corporation, its stockholders and creditors, for the management of its affairs, and they could not^ shirk the duty by delegating it to another. Fletcher v. Eagle, 74 Ark. 585; Bailey v. O'Neal, 92 Ark. 327.
It is insisted that the indorsement of Neimeyer and the pledge of his stock in other corporations made the notes good. Neimeyer’s indorsement was made for the accommodation of the Security Fire Insurance 'Company, and did not inure to the benefit of the latter when it repurchased the notes. The question whether or not the company was bound to protect its accommodation indorser, Neimeyer, or whether the latter, in the event he paid the notes, could have looked to the company for reimbursement, does not arise. He did not pay the notes, and was not called upon to do so. His pledged stock was not delivered to the company when it repurchased the notes, the same being retained by the Citizens Investment Company as security for debts still unpaid. Neimeyer was no longer responsible on the notes when they passed back into the hands of the company for whose accommodation the indorsement was made. It is well settled by the authorities that where indorsed paper is paid or settled by the accommodated party all liability of the accommodation party is extinguished. 1 Ene. E. & P. 539.
The facts of this case are peculiar in that the accommodated party (which was the Security Fire Insurance Company) indorsed the note without recourse. We can not see, however, that this affects the principles above stated. For, notwithstanding the indorsement without recourse, the accommodated party extinguished the liability of the indorser when payment was made to the holder of the indorsed note. The accommodated party cannot, under those circumstances, purchase the notes and thus keep alive the liability of the indorser. There is an implied liability on the part of the accommodated party to protect the indorser; and the purchase of the notes from the indorsee was equivalent to a payment, so far as the indorser was concerned. 1 Am. & Eng. Ene. Eaw, 504.
We can conceive of no principle which will permit one who has taken advantage of an indorsement of paper, made for his own benefit, to pay the note in the hands of the indorsee or purchase it and assert liability against the accommodation indorser.
We conclude, therefore, that the decree of the chancellor was correct as a whole,, and the same is in all things affirmed.
Battle and Wood, JJ., dissent on the ground that the directors should not be held liable on the repurchase of stock subscription notes. They agree with the majority on the other points.
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Hart, J.
In the year 1901 J. C. Speed was appointed the guardian of his minor child, Effie Speed, who had inherited an estate of the value of $150 from a deceased relative. No further steps were taken in the guardianship until 1908, .when J. C. Speed filed his final settlement. Effie Speed, who had become of full age, filed exceptions to the settlement.
At its May term, 1909, the probate court, after hearing the evidence adduced by both parties, found that the guardian was indebted to his ward in the sum of $95.25, and rendered judgment accordingly. On the 18th day of June, 1909, J. C. Speed filed an affidavit for appeal to the circuit court.
Effie Speed married and became Effie Ery, and the case was docketed and tried in the circuit court under her married name. The circuit court rendered judgment in her favor for $126, and J. C. Speed has appealed to this court.
The record shows that J. C. Speed filed an affidavit and prayer for appeal in the usual form to the circuit court, but it does mot show ¡that the probate court made an order granting the appeal. This was necessary in order to give the circuit court jurisdiction. Kirby’s Digest, § 1348; Matthews v. Lane, 65 Ark. 420 and cases cited; Walker v. Noll, 92 Ark. 148.
This court has held that the appellee may waive the want of an affidavit for appeal in the circuit court by failing to move to dismiss. James v. Dyer, 31 Ark. 489. The reason is that the affidavit and prayer for appeal is a regulation for the sole benefit of fhe appellee. But the order of the probate court granting the appeal is a prerequisite to the right of the circuit court to exercise jurisdiction, and for that reason can not be waived. It follows, therefore, that the circuit court should have dismissed the appeal because no order of the probate court granting it was made, and for this error the judgment will be reversed and the cause remanded with directions to the circuit court to dismiss the appeal for want of jurisdiction.
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McCulloch, C. J.
This is an action at law instituted by appellant against appellees to recover possession of a tract of land in Chicot County, described on the plat of 'the government survey as “the east half of the northeast quarter of section 10, township 17 south, range 2 west.” A trial before a jury resulted in a verdict and judgment in favor of appellees, from which an appeal is prosecuted.
Both parties claim title from a common source. Appellant’s claim of title comes from the Government, through one W. D. Hill, the appellee’s grantor. Hill acquired title to the land by deed dated November 22, 1886, and on October 7, 1889, he executed a mortgage or trust deed, which was afterwards foreclosed and under which appellanr claims title. There was a patent error in the description of the land in the deed to appellant,- which was subsequently corrected by the execution of a new deed accurately describing the land; but, inasmuch as the error was thus corrected, it is unnecessary to determine whether or not this error in the description was such as rendered the conveyance inoperative.
Appellant attempted to establish its title by proving, in addition to the chain of title deeds, adverse possession by paying taxes for the statutory period under color of title; and the question relating to the error of description in the first deed to appellant became important in determining whether or not the deed constituted color of title. The importance of that question has ceased, however, since the jury found, on conflicting evidence, that appellant’s possession was broken by an actual entry of the land by appellees less than seven years before the first of the four payments of taxes made by appellant prior to the passage of the act of 1899. Updegraff v. Marked Tree Lumber Co., 83 Ark. 154; Taylor v. Leonard, 94 Ark. 122.
Appellee’s claim of title to the land in controversy is based on the following deeds:
On January 30, 1870, John Hill as administrator of the estate of Alfred Flowers, deceased, executed to W. D. Hill a deed purporting to convey, pursuant to an order of the probate court of Chicot County, a tract of land described therein as fallows: “The east part of the northeast fractional quarter (north of bayou) of section ten (10), township seventeen (17), range two (2) west, containing 93.74 acres.” On March 31, 1870, W. D. Hill by warranty deed conveyed the land by the same description to the heirs at law of Alfred Flowers, under whom appellees claim title.
There is nothing to show that Alfred Flowers had any title to, or any interest in, the land in controversy; but if the description in the said deed of W. D. Hill was sufficient to cover the land in controversy, then the title which he subsequently acquired in 1886 inured to the benefit of his grantees under that deed, and he had no title to convey in 1889, at the time he executed the mortgage of trust deed upon which appellant’s claim of title is based. Kirby’s Digest, § 734.
The controlling question in the case, therefore, is whether- or not the description in the deed from Flowers’ administrator to W. D. Hill, and in the latter’s deed to the heirs of Flowers, was sufficient to identify the land as embracing the tract in controversy.
The correct description of the tract in question, according to the plat of the Government survey, is .“the east half of the northeast quarter of section 10, township 17 south, range 2 west, containing 80 acres.” The description in the Hill deed, under which appellees claim title, is “the east part of the northeast fractional quarter (north of bayou) of section 10, township 17, range 2 west, containing 93.74 acres.” A copy of the Government plat of that township was introduced in evidence, and also a copy of the field notes of section 10. The northeast quarter of that section is not fractional, and contains. 160 acres. Neither the plat nor the field notes show any 'bayou traversing that quarter section. Bayou Macon is shown on the plat to run through the west half of section 10, and thence southerly and easterly through adjoining sections; but in no way can that bayou affect the description in the Hill deed.
It was proved by oral evidence at the trial that there is a narrow slough or bayou which commences a short distance south of the north line of the east half of the quarter section, and runs southwesterly and forks in the southeast quarter of the section, one fork running easterly through the southeast quarter. Some of the witnesses call it a bayou, and some call it a slough. The evidence does not show the number of acres lying north of the bayou -or slough in the northeast quarter.
The description in the Hill deed is, we conclude, void for uncertainty. Nor can it be made certain by application of the descriptive words to any natural objects. The descriptive words can not be construed to mean all the northeast quarter lying north and east of the bayou, for they do not say that. If the words are construed to refer to a bayou running west and south of the quarter section, they do not aid the description any, for. they do not refer to land east of the bayou. The words refer to lands in the- northeast quarter, -lying north of the bayou, but only to the “east part” of the quarter section. There is nothing to indicate the boundaries of the -east‘part. It is the same as if the description read, the east part of the quarter section, without referring to the bayou at all.
The. bayou can not be accepted even as the southern boundary, for, according to the testimony, it does not in its easterly course touch the northeast quarter, but runs easterly through the southeast quarter. The descriptive words can not be made to fit any tract of land at all. So the deed is void for uncertainty. Doe v. Porter, 3 Ark. 18; Mooney v. Cooledge, 30 Ark. 640; Freed v. Brown, 41 Ark. 495; Adams v. Edgerton, 48 Ark. 419.
Resort may be had to extrinsic evidence in order to fit a description of the land conveyed, but the descriptive words in the deed must furnish the key to the identity. Dorr v. School District, 40 Ark. 237; Paragould v. Lawson, 88 Ark. 478; Fordyce Lumber Co. v. Wallace, 85 Ark. 1. Here the descriptive words furnish no means of identifying the land conveyed, for there is nothing to show what was meant by the words “east pjart.” This being true, the undisputed evidence establishes appellant’s title to the lands in controversy, and the judgment should have been in its favor.
Reversed and remanded with directions to enter judgment for appellant for the recovery of the land.
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Battle, J.
In December, 1908, William Finley filed in the Clay County Court a petition, in which he asked the court to grant him the privilege of operating a ferry across Current River at a certain place where he owned both .banks on opposite sides of the river in that qounty. He stated that C. R.> Shemwell had at one time procured license to operate a ferry across Current River about one mile north of where petitioner’s, ferry is, and has annoyed him with lawsuits, contesting his right to maintain a ferry when and where he has endeavored to do so, and now claims that he “has no right to have a ferry at the place where there has been a regular ferry for many years and before defendant ever undertook to establish a ferry.” He made ShemweÜ a party defendant to his petition, and asked that the court grant to him the aforesaid privilege and deny to the defendant the privilege of maintaining a ferry within one mile of the ferry sought by petitioner.
Plaintiff gave notice to the defendant of the filing of his petition, and that he would object to the court granting him (Shemwell) license to operate a ferry across Current River within one mile of the place where he was asking to establish a ferry. In response to this notice the defendant appeared and answered. Both parties asked for license to operate a ferry across Current River at places within a distance of three-fourths of a mile. Shemwell had previously established a ferry in such distance. Under the statute more than one ferry could, not be established within that distance, it not being at or near a city or town (Kirby’s Digest, § 3575). The question was to whom should the license be granted. Each adduced evidence tó prove that his ferry would better accommodate and conserve the interest and convenience of the public than the other. The county court granted license to the petitioner, and denied it to the defendant, and Shemwell appealed to the circuit court for the Eastern District of Clay County, and the cause was transferred to the Greene Circuit Court.
In the circuit court the issues were tried de novo; evidence was adduced by both parties; and the circuit court rendered judgment in favor of the petitioner, and the defendant appealed to this court.
Appellant complains of the judgment of the circuit court, It affirmed the judgment of the county court. The form of the judgment is improper. But the circuit court heard the cause de novo, and reached the same conclusion the. county-court did, and in doing so gave great weight to the decision and judgment of the county court. The obvious intent of the circuit court was to render the. same judgment the county court did, and did so by affirming it. This was not prejudicial to the defendant.
Did the Clay County Court have the right to discontinue the ferry of appellant? In Bell v. Clegg, 25 Ark. 26, 29, Mr. Justice Compton, speaking for the court, said: “In Lindsay v. Lindley, 20 Ark. 573, it was decided that where two public ferries had been established at the same place, the question of public convenience was no longer an open one between the owners of the respective ferries, subject to investigation on the occasion of each annual grant of license therefor; or, in other words, that the one owner could not afterwards insist that the ferry of the other should be discontinued because the public convenience did not require both. But in that case the court distinctly waived any expression of opinion as to whether the county court, from considerations affecting the general good alone, had the power, under the statute, to discontinue one or both of the ferries, no such question being then before the court. The question, however, is now presented, and we do not hesitate to hold that the county court, when the public welfare requires it, undoubtedly has the power to discontinue a ferry franchise, by refusing the annual license for its further exercise.” Finley v. Shemwell, 94 Ark. 190.
The question was presented to the county court in this case. The issue was made, and both parties adduced evidence to sustain his ferry. The testimony was conflicting, and opinions differed. In the circuit court evidence was adduced by the parties with the same results. We think the evidence was sufficient to sustain the judgments of both courts.
Judgment affirmed.
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Frauenthal, J.
The appellee sold to appellant a tract of land in Craighead County, and conveyed same to him by a warranty deed. In the deed the land was described as follows: “The fractional south half of the northwest quarter of section eleven, township fourteen north, range three west, being all of said subdivision lying north of the Kansas City, Fort Scott & Memphis Railway, containing seventy acres more or less.” About two years after the purchase was made the appellant had the land surveyed, and claimed that there were only 57.23 acres in the tract. He then instituted this suit against the appellee, and in his complaint alleged that the appellee had falsely represented that the tract contained 72 acres when as a matter of fact it only contained 57.23 acres; and he sought to recover by way of damages the excess of price which he claimed he was induced to pay for said land'by reason of said false representation. The case was tried by the court sitting as a jury, who made a finding of fact and of law in favor of the defendant; and a judgment was entered accordingly. From that judgment the plaintiff below appealed. The testimony adduced at the trial tended to prove that the appellee was a nonresident of the State, and had placed the land in the hands of a resident agent to sell. This agent called the attention of the appellee to the fact that the land was for sale. The land is situated about one and one-half miles from the city of Jonesboro, and the appellant had seen the land many times before the sale and had been on and over it. Before the contract of purchase was made the appellant and the agent of appellee talked about having the land surveyed in order to determine the number of acres that were in the tract. The agent stated that the land had not been surveyed, and that he was not in a position to have it surveyed. It was then agreed that the appellant would have the land surveyed. This was about'two or three months before the deed was executed, the purchase money paid and the contract of sale consummated. There is no testimony that the agent stated that the land contained 70 acres; and the only circumstance indicating that this number of acres was mentioned is that in the deed the land is described as containing 70 acres, more or less. The appellant testified that when he purchased the land it was to contain, or that he thought it contained, 72 acres, but he does not state that the agent made such a representation.
This is an action to recover damages for an alleged deficiency-in the quantity of the land claimed to have been sold. It is founded upon the alleged fraud in making a false representation as to the quantity of the land, which induced the purchaser to pay ,the price therefor. Such an action can not be founded upon the breach of any of the usual covenants that are contained in a deed and which were contained in this deed.
Independently of an express averment or covenant as to quantity in the deed, when the quantity is mentioned after a particular description of the land, it is regarded merely as a part of the description, and will be rejected if it is inconsistent with the actual area of the premises conveyed. In the case of Harrell v. Hill, 19 Ark. 103, it is said: “The mention of quantity of acres after a certain description of the subject by metes and bounds, or by other known specifications, is but matter of description, and does not amount to any covenant or afford ground for the breach of any of the usual covenants, though the quantity fall short of the given amount.” When the vendor conveys for a specified price a tract of land which is described by metes and bounds or otherwise, with the words • added containing a specified number of acres more or less, this upon the face of the contract is a contract not by the acre but in gross, and does not by implication warrant the quantity. In such event, should there be a deficiency in the quantity, the right to relief for such deficiency is founded upon fraud, misrepresentation or gross mistake. 1 Sugden on Vendors, p. 490; 3 Washburn on Real Property, § 2322; Harrell v. Hill, 19 Ark. 103; Goodwin v. Robinson, 30 Ark. 535; Neely v. Rembert, 71 Ark. 91; Joseph v. Baker, ante p. 150.
The appellant can not maintain this action for damages upon the ground that there has been any breach of a covenant in the deed or of any implied warranty of the quantity of the land. His cause of action is founded, as'alleged in the complaint, upon the ground that he was induced by false representations made as to the quantity of the land to pay the price therefor. Now, before a representation will be considered fraudulent in law so as to give a right of action therefor, it must be made relative to a matter susceptible of accurate knowledge, and must be a statement importing knowledge on the part of the person making the representation; and it must also be relied on as such. If the statement was made only as an expression of opinion, or if it was not made in a manner so as to induce the other to act in reliance thereon, then such representation, even though not true, would not be sufficient to base an action thereon for deceit. In the case of Yeates v. Pryor, 11 Ark. 58, this court said: “The misrepresentation, in order to affect the .validity of the contract, must relate to some matter of inducement to the making of the contract in which, from the relative position of the parties and their means of information, the one must necessarily be presumed to contract upon the faith and trust which he reposes in the representations of the other on account of his superior information and knowledge in regard to the subject of the contract; for, if the means of information are alike accessible to both, s.o that with ordinary prudence or vigilance the parties might respectively rely upon their own judgment, they must be presumed to have done so; or, if they have not so informed themselves, must abide the consequences of their own inattention and carelessness. Such representations therefore, to amount to fraud, must be of a decided and reliable character, holding out inducements to make the contract, calculated to mislead the purchaser and induce him to buy on the faith and confidence of the representation, and in the absence of the means to be derived from his own observation and inspection and from which he could draw conclusions to guide him in making the contract independent of the representations of the vendor.” Hill v. Bush, 19 Ark. 522; Fitzhugh v. Davis, 46 Ark. 337; Matlock v. Reppy, 47 Ark. 148; 14 Am. & Eng. Ency. Law, 33.
In the case-at bar when the appellant spoke to the agent of the appellee relative to the purchase of the land, its quantity was also spoken of. They talked about having the land surveyed in order to determine its quantity. The agent told the appellant that he was not in a position to have the land surveyed, and thereupon the appellant agreed to have it surveyed. This was before the contract was entered into, and long before the purchase price was paid and the sale consummated. Erom this testimony we think the court was justified in finding that the agent of appellee did not make any decided representation as to the quantity of the land which was calculated to misle.ad the appellant. On the contrary, the court was warranted in finding that the appellant was intending to ascertain for himself the quantity of the land and rely upon the information that he would obtain relative thereto by a survey which he would have made. The court was warranted in finding that the appellant was not induced to enter into a contract for the purchase of the land by any representation made by appellee’s agent which was fraudulent as understood in law.
Upon the trial of the case the appellant attempted to prove that the tract contained less than 70 acres by a, witness who testified that he surveyed it. But the testimony of this witness was so unsatisfactory that we can not say that the court erred in not placing reliance thereon. This was the only testimony adduced upon the trial as to the quantity of the land.
Upon an examination of all the testimony we are of the opinion that there is sufficient evidence to sustain the finding of the court as to the facts, which therefore becomes conclusive; and that the finding of facts so made by the court fully, justified its conclusion of law and the judgment which it entered.
The judgment is affirmed.
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McCulloch, C. J.,
Plaintiff, Wm. F. Osborne, was a passenger on one of the passenger trains of the defendant, which collided with a freight train about a mile distant from the city of Little Rock on the first day of October, .1907, and he sues 'to recover damages on account of physical injuries alleged to have resulted from the collision. Negligence of defendant’s servants is alleged to have -caused the collision.
Plaintiff took passage' on the train at Gurdon, Arkansas, where he resided; Little Rock being his destination-. Just as the train reached the outskirts of this city, it ran into the caboose of a freight train. ■ Plaintiff was sitting in the smoking car at the time, and was, by the force'of the shock, thrown and pitched forward so that his head and shoulder hit against the back or arm of the seat. 'He describes his injury in the''following language:
“I fell sideways, and .struck my left shoulder right back there (indicating), as well as I have been able to ascertain from the soreness on that part. When that seat was thrown over, there was an exposed part that comes over, and my head hit on that, and left shoulder. Back part of head, back of my ear, struck this part of seat (indicating) and back of my neck; then got up feeling stunned and dazed; was confused; had pain in the back of my neck at two places a short distance apart, just a few seconds after I got to my seat. The pain was very acute and sharp, like there had ibeen a sprain or wrenching of head and neck.” He described his sensation immediately after receiving the injury as that of fullness in the chest, which continued, and pain in the shoulder, neck and head, and dizziness; couldn’t hold his head up; “head seemed to go forward.”
. He walked up to the station, and took a car up town, where he got lunch, and then went to a hotel and retired for the night, but couldn’t sleep. The next day he attended to some business in Little Rock, and took the train for Newport, Ark., where he was engaged in business. The next night he suffered considerable pain in his head and shoulder, and consulted a physician. He continued his attention to business, but in a few days took suddenly sick and called in physicians. He was under treatment of physicians almost continuously from the date of his injury up to the time of the trial, which occurred February 20, 1909. . He remained at Newport under the treatment of physicians until October 13, 1907, when he returned to his home at Gurdon, and was there treated by his regular physician until December 20, 1907, when the latter died. He was also treated by several physicians in Little Rock at different times, and spent considerable time in a sanitorium, but has never recovered. He described his physical condition at the time of the trial as follows : “Before accident I was a pretty good mixer with my fellow man, enjoying a joke, and weighed about 220 pounds, and wasn’t irritable; went down to about'200 pounds; now I am easily worried; can’t stand any sharp noises; remember instances at Gurdon, my place of business being near-the railroad, the blowing of whistles would affect me considerably; shooting of firecrackers makes me nervous and irritable; have very little to do with anybody on account of my affliction, and that -is the first thing I want to talk about; I have- a number of small -children at home, and have to stay away from them on account of the noise; light affects my eyes, and I keep my room darkened ; don’t read anything but néwspapers, and then only fifteen or twenty minutes at a time; don’t sleep well; am nervous; something will get on my mind, and I can’t shut it out, and the next morning usually feel tired; can’t walk but a short distance now; week or two after getting hurt I had a very acute pain that seemed to'be where I believe t’he base of the brain is; couldn’t move my head, and couldn’t stand a jar; my walking was retarded perhaps soon afterwards, but I got worse three or four months after I was hurt; walk with difficulty, and have had to carry a cane about twelve months; my back hurts me, and walking increases it; have very severe scalding pain, burning pain, in my head, but the trouble seems to be a strain or tearing or some dislocation in the neck.. This bothers me the most. At times my hands and feet are cold and clammy; hands are numb, and have lost my grip; can think for only a limited time without becoming tired; can’t work any, and haven’t worked much since fourteen months ago; reading increases trouble; have spots before my eyes; when I stand straight up and close my eyes, have a falling sensation; have to use a cane; my appetite is fair at times; have taken a great deal of tonic; have to have specially prepared food now, and for that reason eat at a restaurant; suffer some from dyspepsia and indigestion; can’t stand excitement; have sweating of t'he hands. I have been in the hardware and furniture business at Gurdon for a number of years; very small business now, less than it was a year ago when I had a stock of about $3,500. I am closing the furniture out of my Gurdon store. It was hardware and furniture at the time of the accident, and I had two clerks then; have only one now; have not been able to conduct that business as it was at time of accident, but have kept it open; can not think connectedly. Since the accident have been able to give my business very little attention. I have spent about one-half my time in bed around home, and the greater part of the time I did spend around my business I spent on a cot in my store; got a cot in each of my stores on which I spent most of the time while I was in my places of business.” •
Three physicians, who treated plaintiff, were introduced as witnesses, and the testimony of each tended to substantiate his claim that he had sustained serious injury. Each stated his opinion concerning plaintiff’s condition, and the extent of the injury which he claimed to have received. They diagnosed the trouble as traumatic neurasthenia, that is to say, weakness of the nerves caused or aggravated by a wound or physical shock or injury, and they gave opinions ..that the disease is generally, but not certainly, curable; that recovery is uncertain and always doubtful, even under favorable conditions. They said that plaintiff’s condition had constantly grown worse since they knew of the case. Eminent medical text writers are quoted to the effect that in a'majority of cases of traumatic neurasthenia or hysteria, the patient recovers, but that some do not recover, the disease persisting “until psychoses develop, such as melancholia, dementia, or occasionally progressive paresis.” The physicians ■who examined plaintiff did not find any cuts, bruises or other external signs of injury on his body, but medical authorities seem to agree that the disease may be produced by the shock' of a railway accident, without there being any external signs of the injury.
Defendant introduced considerable testimony, experts and others, rebutting the plaintiff’s claim. It undertook to show that plaintiff had received no substantial injury at all, but was shamming or feigning injury — malingering, as the medical men term it. People living in the same town with plaintiff testified that he would appear to walk and otherwise deport himself as a perfectly well man when he thought he was unobserved, but that when he saw any one watching he would assume an. attitude of suffering and physical disability. A physician who examined him at defendant’s instance testified that he found nothing the matter with him. But the testimony was conflicting, and that introduced by plaintiff was sufficient to warrant a finding that he was severely injured, and that the injury resulted from the collision while he was a passenger on the train.
The trial jury returned a verdict in plaintiff’s favor, and assessed his damages at tiie sum of $16,000, which is alleged to be excessive. We are of the opinion, however, that, if full credit be given to all of plaintiff’s witnesses, as the jury had the right to do, the verdict is not excessive. Plaintiff is, according to the testimony, seriously injured, and his recovery is doubtful. It is not greatly improbable that his condition will grow worse. He sufférs constant pain, and his capacity to earn a livelihood is considerably impaired, if not entirely destroyed. If his condition is such as that described by. him and his witnesse's, his life is ruined, though yet a young man, so far as comfort and enjoyment is concerned. We are unwilling to say that under those circumstances the verdict' is excessive.
It is undisputed that the collision occurred, and that plaintiff was a passenger. No attempt was made by defendant to exculpate itself from the charge of negligence; so, if the plaintiff’s injuries are proved to have resulted from the collision, the presumption of negligence arises and fixes defendant’s liability. As to negligence, the occurrence speaks for itself. Assignments of error in the giving of instructions on the degree of care which a carrier owes to passengers need not, therefore, be considered, for, according to the undisputed evidencé, the defendant is responsible for any injuries which plaintiff received in t'he collision, and no error in the instructions on that point could have been prejudicial.
Numerous errors of the court are assigned in admitting testimony adduced by plaintiff. The first is as to plaintiff’s own testimony. He was allowed to testify, over the defendant’s objection, that since he was injured he had been unable, on account thereof, to give attention to his business; that he spent most of the time around home and in bed; that he was pessimistic, and lacked patience in waiting on customers, and that in consequence of these things he had lost his trade, and that bis business had ceased to be profitable. We see no reason why these matters were not proper to prove. They came within the allegations of the complaint as to the nature, extent, and result of his injuries. It was necessary to show these things in order to prove the amount of his damages.
It is especially urged that an error was committed in permitting plaintiff to say that he was pessimistic since he received the injury, and took a gloomy view- of life; thus, it is claimed, passing on ‘his own disposition and stating a conclusion. Who can state the feeling and changed disposition better than one’s own self? These are things from which the jury is left to draw conclusions in the light of the other testimony, the jury being, of course, the judges of its weight.
Objection is also made that the court permitted plaintiff to testify that since he was discharged in bankruptcy he had, under a sense of moral obligation, paid a considerable portion of the discharged debts. This testimony was brought out on re-direct examination, after defendant’s counsel had drawn from him on cross examination the statement that he had taken advantage of the bankrupt law in the year 1905, which was two years before he received the jury. If error was committed, it was invited by defendant in entering upon this subject in the examination of the plaintiff. The fact that plaintiff had, prior to the injury, taken advantage of the bankrupt law had no legitimate place in the case, and its only effect was to degrade plaintiff before the jury by showing that he was either unable or unwilling to pay his debts, and defendant can not complain that plaintiff was allowed to rebut this by showing that he paid the debts, notwithstanding the discharge in bankruptcy.
Nonexpert witnesses were permitted, over defendant’s objection, tou testify as to plaintiff’s physical condition before and after the date of the alleged injury. The objection is based on the fact that the witnesses were not experts. They did not profess to be experts, but were allowed to state facts within their knowledge and observation as to plaintiff’s physical condition, habits, etc. This was proper.
One of the physicians introduced by plaintiff as a witness, and who treated plaintiff in his sanatorium in the city of Little Rock, testified that two local men of prominence in Newport, Arfe., where the case was tried, were then patients in his sanatorium at the time of the trial. This is assigned as error, and it is contended that its prejudicial effect was emphasized by a statement of counsel for plaintiff in his closing argument in substance that the patronage of those gentlemen was a certificate of the physician’s good reputation; qualifications, etc. This physician’s .reputation and professional standing were not questioned, and we can not see how the testimony or the statement of counsel could have' had any effect either one way or the other.
There are several other assignments of error in admitting improper testimony, but they are not of sufficient importance' to discuss.
Another assignment of error is as to the refusal of the court to permit Dr. R. C. Dorr to answer certain questions eliciting his opinion concerning plaintiff’s conduct and appearance while on the witness stand. Dr. Dorr had never examined the plaintiff, and was not personally acquainted .with him, but saw him on the witness stand and heard him testify. He (Dr. Dorr) testified as an expert in the case as to the causes, effects, etc., of traumatic neurasthenia. Defendant’s counsel offered to propound to him the following questions:
“Doctor, did you observe Mr. Osborne while he was here the past week in attendance upon the court, and while he was on the witness stand?
“And did you observe his manner of testifying on cross examination, and observe any difference as to his demeanor upon the witness stand while he was being cross examined?”
The court refused to allow the questions, and counsel then made the following statement as to what was expected to be proved: “If is' expected by the defendant that the witness will testify that he has observed the difference between the plaintiff’s demeanor on the witness stand on direct examination and on cross examination, and that while the plaintiff, Osborne, was-, on the witness stand he held his head downward; frequently passed his hand over his eyes and drooped his eyes, and that on cross examination he straightened up, became apparently more interested and ceased" bowing his head, and ceased throwing his hand over his eyes, and ceased drooping his eyes — that question is a foundation, and the defendant proposes to then propound to witness the following question.”
The following question was also offered and disallowed:
“Would this manner and conduct, which you have observed in the witness, be an indication of impaired memory or lack of concentration, and-what have you to say as to it being an indication, from a medical standpoint, as to malingering?” And counsel made the following statement: “It is.expected by defendant that the witness will testify that such manner and conduct indicates no impaired memory and no lack of concentra-tion, but indicates that plaintiff is malingering.”
The contention is, in support of these assignments of error, that defendant had the right to have Dr. Dorr state his opinion, based on his • observation of the plaintiff while on- the witness stand, to the effect that plaintiff was malingering or shamming) and was not a sufferer from neurasthenia. In another part of this witness’ testimony he was permitted to state that' he had observed the plaintiff for five hours while the latter was on the witness stand, and that from such observation he had discovered nothing to indicate any loss of memory or lack of concentration of ideas on the part of plaintiff, and that plaintiff’s capacity in this regard, as indicated by his appearance and demeanor on the witness stand, was free of defects and about the same as that of any other average man.
So it is seen that defendant was allowed to prove everything by this witness that he attempted to prove except the de-‘ scription of the plaintiff’s demeanor and appearance while on the witness stand. This, of course, was not competent, for the jurors observed this as clearly as the doctor did. The latter as an expert could, at most, be permitted to give his opinion as to. what the conduct indicated, and he was permitted to do that. The question whether or not plaintiff was, in the opinion of the doctor, a malingerer, is settled by a subsequent statement of Dr. Dorr, made on cross examination. He stated that he had not examined plaintiff, and could not attempt a diagnosis of his particular case.
Objection is made to that part of an instruction on the measure of damages which submits the question of damages for permanent injury. It is insisted that the evidence did not warrant a finding of the existence of a permanent injury, but we conclude that there was sufficient evidence to warrant such finding, and that the question was properly submitted. The experts who testified as to the prognosis of plaintiff’s case did not say positively that the injury is permanent, but they do state that his chances of recovery are very .doubtful and uncertain, and that he is growing worse all the time, instead of improving.
Error of the court is assigned in modifying the defendant’s questions to be propounded to the jury for special finding thereon, but we are of the opinion that the modifications were within the pleadings and proof in the case, and that they were not erroneous.
Judgment affirmed.
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Hart, J.,
(after stating the facts). In this State no distinction is made between the meaning of the words “bodily heirs” and “heirs of the body,” when used in a conveyance, and it is a principle firmly established in this State that, under section 735 of Kirby’s Digest, a deed of conveyance to the grantee and his bodily heirs creates a life estate in the grantee with the remainder in fee simple in his children that survive him, and the issue of such as die during'his life per stirpes. Horsley v. Hilburn, 44 Ark. 459; Wilmans v. Robinson, 67 Ark. 517.
So it may be said that the rule of construction laid down in these cases will govern in the case at bar unless the addition of the phrase “and assigns forever” to the words “bodily heirs” has the effect to malee the estate to Martha Florence by the deed an estate in fee simple.
The word “forever” is one of time, but the term relates to the person to whom the property is given, and not the estate granted. If the words “bodily heirs” are presumed to have been used by the grantor in their legal sense, so the word “forever” will be presumed to have been likewise used; and if it relates to the person and not to the property, it can not serve to either add to or take from the estate granted by the former words, “bodily heirs;” and the use of the words together does not enlarge the estate to a fee simple.
In Williams on Real Property (17th ed.), p. 178, it is said that the words “and assigns forever” have no conveyancing virtue at all, but are merely declaratory of that power of alien ation which the purchaser possesses without them. ' And in the case of Pollock v. Speidel, 17 Ohio St., at p. 446; the court said that the use of the word “assigns” in the connection in which it was used in the present case “only imports that the estate granted may be transferred, and can not operate to enlarge the grant or defeat its express limitations.” To the same effect see Weart v. Cruser, 49 N. J. L., at p. 479, and cases cited; Corbin v. Healy, 37 Mass. 514; Lessee of Hall v. Vandergrift, 3 Binney (Pa.) 374; Lessee of Wright v. Scott, 4 Wash. C. C. 16; and Dennis v. Wilson, 107 Mass. 591, where it is held that the term “forever” does not impart inheritable'qualities.; Haynes v. Bourn, 42 Vt. at p. 691.
If the words “and assigns forever” do not serve to add to or take from the estate granted, the deed, in all essential respects, is similar to that in the above-mentioned cases, and this case is ruled by them. That is to say, under section 735 of Kirby’s Digest, Martha Florence took a life estate, and the remainder passed in fee simple absolute to the person to whom the estate tail would first pass according to the course of the common law by virtue of the conveyance..
The next question that presents itself for our consideration is -whether the remainder passed by section 735 of Kirby’s Digest is vested or contingent. It is urged with much force by counsel for appellant that the remainder is a vested one, but this court has decided adversely to their contention in the case of Horsley v. Hilburn, supra. In that -case the property was conveyed to Marietta Hilburn “and the heirs of her body.” At thq time the conveyance was made Mrs. Hilburn had issue living, Robert and Ida. Subsequently, other children were born unto her. Ida died before her mother, without' issue. After the death of Ida, Mrs. Hilburn conveyed her interest’ in the property. In construing section 735 of Kirby’s Digest, which was enacted in 1837, the -court held that Mrs. Hilburn took only a life estate, and that her conveyance, could affect that alone, unless Ida had a vested interest which her mother ’ inherited. In discussing this qfiestion'the court said: “The statute says that the remainder shall pass in fee simple absolute to the person to whom the estate tail would first-pass-according to the course of the’ common law. It' never cou'ld,' findeir the circumstances, ;hav'e passed to' Ida at common -latv: r.Duririg her mother’s lifetime she was not heir at all. At her mother’s death she was gone without leaving issue. There had been only a contingency that she might get an interest b)' surviving the mother, and that a vague and uncertain' interest, which might be more or less according as there might be no more or many brothers andsisters. Nothing was vested as a right which she might transmit. At common law, the surviving ¡brothers, sisters and -their descendants per stirpes would be entitled to have the estate pass to them on the death of the mother, without any portion being intercepted by inheritance from Ida. (See Fearne on Remainders, vol 2, p. 202). The estate vested in the surviving children and their issue at the death of the mother, and did not vest in remainder at all in any one during her life. The mother inherited nothing from Ida, and the court erred in holding that she did, and that the interest of Ida passed by her deed through Greenwood to Burrell Horsley.”
The effect of the decision was to hold that only a contingent remainder passed to Ida by the deed; for, if Ida took a vested remainder with a defeasible interest, the court would not have held that Mrs. Hilburn did not inherit from her.
The case was decided at the November term, 1884, of the court, and has become a rule of property in this State. Therefore, whether the decision was right or wrong is not a question of law for the court to determine, but is one of expediency that addresses itself to the Legislature. Following the rule of construction announced in that case, it is plain that, under the deed now in question, the plaintiffs took a contingent remainder.
This brings us to a consideration of the question, what are the rights of a contingent remainderman in regard to the commission of waste by the life tenant or his grantee?
It is well settled that the rights of a remainderman, whether vested or contingent, are more extensive in equity than at law; and it is equally well settled that he may obtain relief in equity by injunction to prevent the life tenant or his grantee from committing waste. 5 Pomeroy’s Equity Jurisprudence, § § 491, 492; 16 Cyc. 658. “An injunction to stay waste may be granted in favor of one who is entitled to a contingent or executory estate of inheritance.” 30 Am. & Eng. Enc. Law (2d ed.), p. 290.
The most serious question in the case is whether a contingent remainderman may seek relief in equity for waste already committed. The courts of this country have held -that a contingent remainderman can not maintain an action at law to recover damages for waste already committed. For a collection of the principal cases on the subject see 30 Am. & Eng. Enc. Law (2d ed.), p. 1. The reason a contingent remainder-man has no standing in a court of law is that it can not be known in advance of the happening of the contingency whether--he would suffer damage or loss -by the waste; and if the estate never became vested in him, he would be- paid for that which he had not lost.
On the qther hand, it is a rule of universal application that a -contingent remainderman may obtain relief in equity by injunction to prevent waste, and this remedy is given him on the theory that he is entitled to prevent the loss or destruction of that which may become his at the termination of the life estate. If a contingent remainderman. has a right to appeal to a court of equity for the preservation and security of the property, to the end that it may be forthcoming at the termination of the life estate, with like reason he should have some remedy for waste already committed. Neither the life tenant nor his grantee have the right to commit waste, and it necessarily follows that they should not be entitled to or enjoy the fruits of their wrongdoing. As we have already seen, the contingent remainderman has no remedy at law in such cases, and it is obvious that, if he can not obtain relief in equity, he must suffer irreparable injury.
Two of the cardinal principles of chancery jurisprudence are, that equity will not suffer a wrong to be without a remedy, and- equity looks to the substance rather than the form. According to the views we have expressed in this opinion, if any of the plaintiffs or their issue are alive at the death of their mother, the life tenant, their estáte will become a vested remainder in fee simple. Some of the plaintiffs are married, and in the ordinary course of nature the strong' probabilities are that at least some of them or their children will outlive their mother, the life tenant.
In the case of Kollock v. Webb, 113 Ga. 762, the court held that “remaindermen, whether their interest be vested or contingent, may appeal to a court of equity to prevent the life tenant from wasting or destroying the corpus of the estate;” and the court quoted from the opinion in the case of Clarke v. Deveaux, 1 Rich. Eq. (S. C.) 172, as follows: “If the remainder is only contingent, still the party representing it, as we have said, is not prevented from seeking the aid of this court for its safety and preservation. A cestui que trust, though entitled to a mere contingent benefit, may, upon reasonable cause shown, apply to this court to have his interest property secured. * * * It might not, probably, be stretching the jurisdiction of equity too far to say that one who holds for a contingent remainderman, and who fraudulently converts the estate confided to him to his own use, may be held to answer for such disposition, either by requiring an account and the payment of the money into court, or, if the property is.still under his control, to transfer it to the succeeding trustee.” This view is supported by the English authorities. See Bateman v. Hotchkin, 31 Beav. 486; Garth v. Cotton, 3 Atk. 751; Bewick v. Whitfield, 3 Peere Wms. 266; Bagot v. Bagot, 9 Jurist (N. S.) 1022.
For these reasons it seems to us that the plaintiffs are entitled to equitable relief. They should not be entitled to it now by way of indemnity, for it can not be certainty known that they will suffer loss; but' we are of the opinion that it is in accord with the principles of equity for the chancellor in cases like this to take an account of the amount of the damage suffered and impound the same and invest the proceeds for the benefit of the one to whom the estate tail would first pass according to the course of the common law by virtue of the deed in question, in which interest the plaintiffs have an expectancy.
For error in not doing this the decree of the chancery court will be reversed with directions to proceed in accordance with this opinion; in all other respects the decree will be affirmed. 1
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Wood) J.,
(after stating the facts.) We will consider the questions in the order presented by appellant’s counsel.
’ It is contended that the cause should be reversed, because the jury failed to' observe the rule of preponderance of the testimony'. When the cause reaches this forum, it is no longer •a question of preponderance, but only of the legal sufficiency, of the evidence to support the verdict. St. Louis & S. F. R. Co. v. Kilpatrick, 67 Ark. 47; Cattett v. Railway Co., 57 Ark. 461.
Appellant objects to the following instruction: “If plaintiff went to defendant’s depot on the day mentioned in the complaint, to take passage on defendant’s train, and at that time the weather was such as to require a fire in the waiting room to make it comfortable, it was defendant’s duty to build and keep a fire in said waiting room; and, if it failed to do so, and plaintiff suffered in consequence of defendant’s failure to build and keep such fire, your verdict will be for .the plaintiff.” It was the duty of railroads, independent of the statute of March 31, 1899, to provide reasonable accommodations for passengers at their stations. McDonald v. Chicago & N. W. R. Co., 26 Ia. 138. This duty requires the exercise of ordinary care to see that station houses are provided with reasonable appointments for the safety and essential comfort of passengers, or those intending to become passengers, while they are waiting for trains. Caterham Ry. Co. v. London, B. & S. C. Ry. Co., 87 E. C. L. 410; 1 Fetter, Car. Pas. §§ 249, 250; Texas & P. Py. Co. v. Cornelius, 30 S. W. 720; Hutch. Car. §§ 516-521, inclusive; 2 Wood, Railroads, § 1338; Elliott, Railroads, § 1590.
By the exercise of such care as ordinary prudence would suggest for reasonable comfort) it could hardly occur that a waiting-room, in midwinter, would be devoid of the means necessary to make it comfortably warm at the times when such rooms are needed to accommodate those intending to become passengers. A failure to provide such means is therefore at least prima facie evidence of negligence. It is insisted that the instruction “eliminated all question of diligence and negligence,” and made the company an “insurer -against the consequences of not having a fire in the waiting room.” But the company maintains that it was not negligent, because it built the fire in the waiting room as requested. It is not complaining of any latent defect or unforeseen exigency which ordinary care could not have anticipated and prevented. It could not have been prejudiced therefore by the instruction in the form given. Moreover, it did not request the court to declare the law to meet the objection it urges here to the instruction. Giving it as requested was not reversible error. St. Louis, I. M. & S. R. R. Co. v. Barnett, 65 Ark. 255.
The court also gave the following: “If plaintiff went to defendant’s depot to take passage on defendant’s train, and defendant’s agent knowingly permitted it to be locked, or knowingly permitted it to remain locked after being notified that it was locked»so that plaintiff was restrained from going in and out, your verdict will be for the plaintiff.”
“A person,” says Mr. Wood, “who is in charge of a station by a railway company has apparently all the power and authority requisite to do and effectuate the business of the company at that station. He has control over the depot, and authority to exclude persons therefrom who persist in violating the reasonable regulations prescribed for their conduct.” 1 Wood, Railroads, § 165. The authority of railroads to make and carry into execution all reasonable regulations for the conduct of all persons resorting torts depots, so as to protect those who are, or intend to become, its passengers from unreasonable annoyances, insults and injuries cannot be questioned. 1 Fet. Car. Cas., § 247; Com. v. Power, 7 Met. 596, 41 Am. Dec. 465; Elliott, Railroads, § 303. This authority is the necessary correlate of the duty to provide reasonable accommodations; for a station house to which drunken, profane, obscene, abusive, riotous and otherwise disorderly persons could resort with impunity would not be either comfortable or safe. The willful or negligent failure of railroads to make and enforce such reasonable regulations would render them liable in damages for any injuries directly resultant to those who repaired to their stations for the purpose of becoming passengers.
If appellant’s station agent, against the protest of appellee, knowingly permitted the only means of ingress and egress to the waiting room, where appellee was properly in waiting to become its passenger, to be locked, and to be so continued for any length of time, when same by the exercise of ordinary care could have been prevented or discontinued, he was guilty of a tort, and for the wrong thus inflicted upon appellee appellant was liable in damages. For, in the unlawful imprisonment of the person of appellee and the deprivation of her personal liberty, even though for a moment, -without her consent, there was an actionable wrong, an injury to her person, however slight. Field, Dam. § 679; Cooley, Torts, p. 195. § 169; 3 Suth. Dam. § 1257.
Appellant does not contend that its agent exercised ordinary •care to prevent the locking of the door, or to have it unlocked after being notified. Its defense on this point is confined to a denial of all knowledge of any such occurrence. The instruction, in the form given, ivas therefore not prejudicial.
Appellant insists that the court erred in giving the following :
“(3). You are instructed that it is the duty of a railroad company to protect'all persons who are-at its stations for the purpose of taking passage on its trains from annoyances, insults and abuse; •and if defendant's agent used toward or about the plaintiff, or in plaintiff's hearing, any profane, obscene or boisterous language, which language insulted or injured plaintiff's feelings, your verdict ■should be for the plaintiff.
“(6). If you find for the plaintiff in this case, her actual damages will be such sum of money as will be a just and fair compensation for all the pain and anguish, if any, both of body and mind, •suffered by plaintiff on account of the injuries received.
“(7). If you find for the plaintiff, you may, in addition to actual damages, award punitive damages as a punishment of the defendant." •
What ive have already said sufficiently indicates the duty of railroads to those intending to become passengers at their stations. While it is their duty to exercise ordinary care to protect them from unreasonable annoyances, and from insults and injuries, from turbulent, riotous or disorderly persons, yet to make them liable in damages it must be shoAvn that there Avas an injury, that the agent in charge of the station “had knowledge or opportunity to know that the injury was threatened, and that by his prompt intervention he could have prevented or mitigated it.” Sira v. Wabash R. Co., 115 Mo. 127, 21 S. W. 905, 37 Am. St. Rep. 386; Spohn v. Mo. Pac. Ry. 87 Mo. 74, and authorities cited.
The duty of railroads in this respect is therefore not absolute, .as the first part of the third instruction assumes. This part of the instruction, however, could not be said to be prejudicial, for the latter part limits the application of the doctrine to “profane,” “obscene,” or boisterous language used only by appellant’s agent. But the latter part of the instruction is abstract, erroneous and prejudicial. We have searched the record in vain for evidence that appellant’s agent used profane, obscene or boisterous language toward or about appellee. The only evidence in the record of any improper language used by the agent at all was that' he “began to swear a little at Dick,” the boy who requested him to make a fire. Dick Canady, the boy who requested the agent to make a fire, said the agent “cussed,” and told him to go on. There is no proof that he cursed appellee, or that what he said to Dick Canady in her hearing was calculated to and did insult her feelings. There is no proof of what the language was. It is not shown to have been said for the purpose of insulting appellee. As the language was not addressed to appellee, in the absence of any evidence as to what the language ivas, the inference that it was said for the purpose of insulting appellee is not warranted. There is no proof of any connection between the cursing and the acts resulting in physical injury to appellee. Whether the use of profane, obscene and abusive language by station agents, when uttered about or in the presence and hearing of those intending to become passengers, while at stations, and for the purpose of insulting them, or injuring their feelings, would alone make the railroads liable for the mental suffering thereby produced, we need not decide; for that state of facts is not presented by the proof in this record.
It is certain there could be no recovery for mental anguish unaccompanied by personal injury, where there was no willful, wanton or malicious wrong done. Whether there could be recovery for mental suffering alone, where there was, willful, wanton, or malicious wrong done, ive reserve for decision.
The complaint alleges three separate grounds for recovery, to-wit, the failure to build a fire, the failure to prevent the locking of the door, and the failure to protect appellee from insulting remarks. The sixth instruction, on the measure of damages, allows the jury to find for all the pain and anguish of both body and mind, without discrimination or designation of the specific grounds upon which the cause of action is based. This instruction, in view of what we have just said in reference to the third, is erroneous; for under it, in connection with the third, supra, the jury were warranted in finding for mental suffering on account of profane, obscene and boisterous language of the station agent. The jury might have found such damages. Whether or not they did so, and, if so, what amount on this account entered into the verdict, it is impossible for us to tell. Tile instruction was erroneous and prejudicial.
It follows also that it was error to give the seventh as to punitive damages, since the jury may have included punitive damages in their verdict for the use of profane, obscene or boisterous language used by the station agent. Furthermore, under the proof it did not follow as matter of law that the jury might find punitive damages if they found for the appellee. The jury may have found that appellant was liable for compensatory damages on one of the alleged grounds of liability, but it did not follow that because they so found they should also find punitive damages on said ground, unless they should further find that the tort or wrong of the servant in the particular alleged was in the line of his employment, and was willful, wanton, or malicious. The instruction should have been framed so as to leave the jury to determine whether or not the elements -essential to punitive damages existed, in connection with any or all of the alleged grounds of liability set forth in the complaint for actual or compensatory damages. We find no other reversible error.
The other questions may not again arise. For the errors indicated, the judgment is reversed, and the 'cause is remanded for new trial.
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Bunn, G. J.
On the 2d day o£ March, 1893, the appellant, Lazarus Lewine, and Jany Lewine, his wife, being indebted to the appellant, L. E. Goldsmith, in the sum of $451.50, executed and delivered to him their promissory note for said sum, bearing interest at the rate of 6 per centum per annum from date until paid, and due and payable on the 1st day of January, 1897. At the same time they executed, acknowledged and delivered to him their mortgage to secure the payment of said note, in which for that purpose they conveyed to him lot three (3) in block six (6), Woodruff’s Addition west to the city of Pine Bluff. The mortgage was also made a security for supplies to be furnished to the appellees from that time until the maturity of the note and mortgage. The stipulation in the mortgage was as follows, to-wit: “Whereas, the said parties of the first part (Lazarus and Jany Lewine) are now justly indebted unto the said party of the second part (L. E. Goldsmith) in the sum of $451.50, which is evidenced by their note, of even date herewith, for the said sum, with interest at the rate of 7 per centum per annum from date until paid, due and payable on the 1st day of January, 1897; and whereas, the said L. E. Goldsmith contemplates and will furnish to the said first parties goods, wares and merchandise, in such quantities as he and the said first parties shall agree upon, between this date and the maturity of the note herein mentioned, the exact amount to be determined from the books of the said L. E. Goldsmith, and the same to be due and payable on demand, and to draw interest on the open account at the rate of 6 per cent, per annum from date that same be furnished until paid.”
This action was begun on the 2d day of October, 1899, for judgment on the note and to foreclose the mortgage. The complaint alleges that'appellees had only paid upon said note the sum of $188.51, on the 5th day of April, 1898, and that the balance of said note, including interest, was still due and unpaid; and that, in the performance of his part of the contract and agreement between them, the plaintiff (Goldsmith)' had furnished to the appellees during said time, upon their order, goods, wares and merchandise to the amount of $1,418.60. The plaintiff also alleges in his complaint that monthly statements of the goods purchased by appellees during the month were made on the first of each succeeding month. That no objection had been made to any of said statements, and that they had become stated accounts rendered. Prayer for judgment on the note, and foreclosure of the mortgage, and sale of the property.
Appellee «Tany Lewine answered the complaint, and in her answer denied that she was indebted to appellant at the time the note and mortgage were executed, but that the same were for the-indebtedness of her husband only, which he owed Goldsmith at that time. She admits that she signed the note with her husband, and executed the mortgage to secure the same. She denies having purchased any goods from Goldsmith whatever; alleges that the sale of the same were to her husband solely, but denies that the account attached to the complaint is correct. That, upon appellant’s representations at the time, the mortgage was only to secure the amount of the note.
It appears that the appellees continued to purchase supplies from the appellant long after the date of the maturity of the note and mortgage, and from time to time continued to make payments on the account up to within a short time before the institution of this suit.
The chancellor held, and so decreed, that the wife “had no authority, in law or equity, to mortgage her separate property, which was also her homestead, to secure the debt of the husband for future advances of supplies, by which he held that no part of the account, — • either that part made before the maturity of the note or that part made afterwards,- — was subject to the mortgage, and hence decreed a foreclosure of the mortgage to pay the amount due on the note only. This, we think, was an erroneous view to take of the matter, because the mortgage covered that part of the running account made between the dates of the making and the maturity of the note, and, if anything were due on that part, it should have been added to the amount due on the note, and the mortgage then foreclosed to pay the aggregate amount of the two.
The court below also gave judgment against appellee Lazarus Lewine for the balance due on the account, less credits, which was proper.
In our view of the case, the wife can mortgage her separate property to secure her husband’s debts, whether those debts are existing debts or debts to accrue; and also the controlling question in this litigation is as to the appropriation of payments made on the running account of appellant against appellees. In order to get at this question the more readily, the matter has been referred to the clerk of this court, to state an account, under the general rule of law, adhered to in this court, as to the appropriation of payments where no appropriation has been made, as in this case. He filed his report, and the same is approved and confirmed, in which he states the account first under the rule laid down in Dunnington v. Kirk, 57 Ark. 595; Johnson v. Anderson, 30 Ark. 745; Fort v. Black, 50 Ark. 256, and cases therein cited; and in the alternative states the same as if that rule should not be applied, leaving it to the court to determine whether this is a proper case for the application of the rule.
In this statement of the account, the special master finds there was due on the note, on the 25th day of June, 1900, the date of the decree, the sum of $454.71, after allowing the credit of $188.50, about which there is no dispute, and calculating and adding interest. There is no controversy as to the mortgage covering this note. He also finds that, between the date of the note and the maturity thereof, the supplies furnished amounted to the sum of $3,099.75, and that the sum of $2,335.65 was paid thereon, leaving a balance of $764.10 due at the date of the maturity of the note for supplies covered by the mortgage, in addition to the note. The interest on this balance of account to the 1st day of January, 1897, amounting to $115.33, made a total balance of account due on that date of $879.43.
There were payments made from time to time on the account, after the maturity of the note, amounting in the aggregate to the sum of $931.95, which, applied to the payment of the balance of $879.43, more than settles the same. But the appellant contends that the amount of these payments should not be so applied, but contends that the account from January 1, 1897, the date of the maturity of the note and mortgage, was a new and distinct account from the account kept previously to that date, and, as the payments were made during the running of this new account, they should be applied to the payment thereof.
The only evidence of the break in the account running from the date of the note and mortgage is his statement that he had begun a new method of bookkeeping and rendering his accounts, changing from the “old system” to the “coupon book” method. But that shows no break in the running of the account, which appears to have run along from the date of the note and mortgage, without break or interruption, until the institution of the suit, with only the change in the manner of keeping and rendering the monthly statements of account. Under the rule laid down in the cases of Dunnington v. Kirk and others referred to above, the $931.95 payments should be applied to the payment of the $897.43, which indudes the oldest items of the account covered by the mortgage. ' _
The question of how these payments should be appropriated is really the only question involved in this appeal. That question is settled by the cases cited above, and the payments should be applied to the oldest items of the running account, which are included in the balance thereof on the 1st day of January, 1897, the date of the maturity of the note, amounting to the said sum of $879.43, to which the aggregate amount of said credits — the sum of $931.95 — being applied in payment, more than pays off and settles the same.
The decree of the court below is therefore, in effect, affirmed as to the foreclosure of the mortgage for the payment of the note only, but denied as to the account, not because the mortgage is invalid in that regard, but because the part of the account secured by the mortgage has been in fact paid, as aforesaid. The personal judgment of the court below against the husband is not erroneous,— in fact, is not appealed from. Remanded, with directions to foreclose tiie mortgage as decreed, and to proceed not inconsistently herewith.
Wood and Riddick, JJ., not participating.
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Bunn, O. J.
This is a suit by Doctors Z. Orto and J. P. Runyan, proprietors of an infirmary in the city of Pine Bluff, Arkansas, for the sum of $260, for services rendered in the care and attention given in said infirmary to the wife of the appellant, a patient therein, for the period of three weeks, at the stipulated and agreed price of $20 per week, amounting to the sum of $60 in the aggregate, and for the additional sum, stipulated and agreed upon, of $200 for professional services in performing a surgical operation on her while an inmate therein, during that period.
There was no controversy as to the prices charged, but the defendant claimed that the plaintiffs failed to comply with their contract to extend proper and reasonable care for the welfare, comfort and convenience of the patient after said operation was performed upon her, and while she remained in said infirmary.
It devolved upon the plaintiffs to prove the services were rendered in a careful and skillful manner, and that they complied with their contract, which required them to give proper care and attention to their patient, and to furnish careful and skillful nurses to that end, and furnish properly kept rooms, water, etc. The court excluded certain evidence offered by the defendant tending to show that plaintiffs had not complied with their contract in this particular, and took the case from the jury, and rendered judgment for plaintiffs, which was error, and for which the judgment will be reversed, and a new trial ordered.
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Battle, J.
Louis Roth, the appellant, purchased an undivided ono-fourth interest in a patent known as the “Eclipse Folding Wagon Step,” and agreed to pay $1,500 therefor. He paid $1,000 in cash, and executed his note to C. P. Thornton, his vendor, for $500 in payment of the balance. In due course of trade, for a valuable consideration, without notice and before maturity, the Merchants’ & Planters’ Bank, of Pine Bluff, became the owner of this note. At maturity the maker, Louis Roth, refused to pay the note, and in a suit brought in the Columbia circuit court against him and C. P. Thornton, as indorser, he filed an answer, and, .after admitting the execution of the note to O. P. Thornton and transfer of same to plaintiff, Merchants’ & Planters’ Bank, pleaded “for a complete defense against the note, * * * that it was given by him to his co-defendant for an interest in a patent right, and was not on a printed form, and did not show on its face that it was executed in payment of such patent right, as required by sections 493, 494, Sand. & H. Dig., and the said note is therefore void;” and the court, sitting as a jury, found that issue in favor of the defendant, and rendered judgment accordingly.
Suit was then brought in the Jefferson circuit court on account for the balance of the purchase money by the bank, and, as the account’ was not assignable by statute, C. P. Thornton, the assignor, was joined as plaintiff. To this suit the appellant, Louis Roth, pleaded the judgment of the Columbia circuit court declaring the note void, as a bar to the right of appellees to recover upon the original consideration.” The circuit court held that the plaintiffs in the latter suit were entitled to recover, and rendered judgment in their favor for the amount sued for, and the defendant appealed.
Section 493, Sand. & H. Dig., upon which the appellant’s defense to the action against him in the Columbia circuit court was based, is as follows: “Any vendor of any patent machine, implement, substance, or instrument of any kind or character whatsoever, when the said vendor of the same effects the sale of the same to any citizen of this state on a credit, and takes any character of negotiable instrument, in payment of the same, the said negotiable instrument shall be executed in printed form, and show upon its face that it was executed in consideration of a patented machine, implement, substance, or instrument, as the case may be, and no person shall be considered an innocent holder of the same,-though he may have given value for the same before maturity, and the maker thereof may make defense to the collection of the same in the hands of any holder of said negotiable instrument, and all such notes not showing on their face for what they were given shall be absolutely void.”
The object of this statute was to save a vendee of “any patent machine, implement, substance, or instrument of any kind or character whatsoever,” all the defenses he may have to an action on his note for the purchase money, and to prevent the loss thereof by a transfer of the note to an innocent holder before maturity. The failure to comply with the statute does not affect the validity of the sale, but renders only the note absolutely void. The penalty does not reach beyond the object to be accomplished. Though the note may be void, the vendor can recover whatever may be due him on the contract of sale from the vendee. Tillman v. Thatcher, 56 Ark. 334, 19 S. W. 968; Marks v. McGehee, 35 Ark. 217; Tucker v. West, 29 Ark. 401; Stratton v. McMakin, 84 Ky. 641, 4 Am. St. Rep. 215; Iron Mountain & Helena Railroad v. Stansell, 43 Ark. 275.
The defense of appellant to the action instituted in the Columbia circuit court was in the nature of a plea of abatement. It did not reach the merits of the case, but the validity of the note only. The only thing adjudicated by the judgment of that court was the validity of the note sued on. This judgment was no bar to an action upon the contract of sale.-
The effect of a judgment upon causes of action is unlike its effect upon defenses. The defendant in an action is required to set up all his defenses to the same. “A valid judgment for the plaintiff sweeps away every defense that should have been raised against the action; and this, too, for the purpose of every subsequent suit, whether founded on the same or a different cause.” Ellis v. Clarke, 19 Ark. 421; Bell v. Fergus, 55 Ark. 538; Davis v. Brown, 94 U. S. 423.
As to causes of actions, the rule is stated by the supreme court of the United States in Russell v. Place, 94 U. S. 608, as follows r “It is undoubtedly settled law that a judgment of a court of competent jurisdiction, upon a question directly involved in one suit, is conclusive as to that question in another suit between the same parties. But to this operation to the judgment it must appear either upon the face of the record, or be shown by extrinsic evidence, that the precise question was raised and determined in the former suit. If there be any uncertainty on this head in the record, as, for example, if it appear that several distinct matters may have been litigated, upon one or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment was rendered, — the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence showing the precise point involved and determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.” It further said in the same case that, “to render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be cancelled was necessarily tried or de termined, — that is, that the verdict in the suit could not have been rendered without deciding that matter; or it must be shown by extrinsic evidence, consistent with the record, that the verdict and judgment necessarily involved the consideration and determination of the matter.”
In Shaver v. Sharp County, 62 Ark. 78, it is said: “That which has not been tried cannot have been adjudicated. * * * That which is not within the scope of the issues presented cannot be concluded by the judgment.” See, also, Dawson v. Parham, 55 Ark. 286; McCombs v. Wall, 66 Ark. 336; Cromwell v. County of Sac, 94 U. S. 351; Davis v. Brown, 94 U. S. 423.
The same rule obtains as to cross-claims, set-offs and recoupments. The defendant in an action against him is not bound to set up such claims, if he has them, but it is generally optional with him to do so or not. McWhorter v. Andrews, 53 Ark. 307; 21 Am. & Eng. Enc. Law (1st Ed.), 224, and cases cited.
The judgment of the Jefferson circuit court is affirmed.
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Wood, J.,
(after stating the facts.) The counsel for appellee states in his brief that “the only question is one of fact, and one only, and that is as to whether or not at the time of the execution of the deed to his wife in October, 1896, the entire 160 acres of land was his homestead, and whether it exceeded in value $2,500.” We are not advised of the grounds upon which the chancellor based his decision. But, taking the statement of counsel, supra, as the theory upon which the case was tried below and here, the decree was clearly against the weight of evidence.. The proof, we think, shows by a decided preponderance that the 160 acres, of which the land in controversy was a part, exceeded in value the sum of $2,- 500. The judgment creditor was seeking to subject the whole tract. It is clear from the answer and the proof that the homestead of Dillard was upon the tract when he made the deed to his wife. Upon this homestead, including the dwelling house or home and such contiguous lands of the tract as Dillard or his wife might select, not exceeding in value the sum of $2,500, the judgment creditor had no lien. Stanley v. Snyder, 43 Ark. 249; Carmack v. Lovett, 44 Ark. 180; Bogan v. Cleveland, 52 Ark. 101, 12 S. W. 159; Davis v. Day, 56 Ark. 156, 19 S. W. 502; Crampton v. Schaap, 56 Ark. 253, 19 S. W. 669; Pipkin v. Williams, 57 Ark. 242, 21 S. W. 433.
The right of homestead, however, is a personal privilege, of which appellee has not yet sought to avail herself as the law prescribes. Sections 3714, 3718, Sand. & H. Dig.; Snider v. Martin, 55 Ark. 139, 17 S. W. 712; Brown v. Peters, 53 Ark. 182, 13 S. W. 729; Pace v. Robbins, 67 Ark. 232, 54 S. W. 213. The complaint does not even set up the homestead right. Nor is there anything in the proof to show that the forty acres in controversy would necessarily be embraced in any selection of the homestead that corüd be made. The dwelling or home is not shown to be on the forty acres in controversy. On the contrary, the answer shows it to be on the west half of the southeast quarter of section 27, etc.
Reversed and remanded, with directions to dismiss the complaint for want of equity, but without prejudice.
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Riddick, J.,
(after stating the facts.) There is only one question that we need notice in this case. The plaintiff was employed by the defendant company in Louisiana, and he was discharged by the company in that state. Although he performed a portion of the services for which he sues in this state, still we think it is very clear that the right of action accruing to him by virtue of his contract and his discharge from the service of the company depend upon the laws of Louisiana, and not upon those of Arkansas. Under these circumstances, he has no right to claim a penalty under the statutes of this state providing that when a corporation engaged in operating a railroad shall discharge any employee the unpaid wages of such employee shall become due, and if the same be not paid on the day of his discharge, “then as a penalty for such nonpayment the wages of such servant .or employee shall continue at the same rate until paid.” Sand. & H. Dig., § 6243.
That statute certainly does not protect an employee who was neither employed or discharged in this state, and whose only claim for the penalty imposed is that he performed a portion of the services sued for in this state. If the discharge had occurred in this state, a different question would have been presented, which we need not determine.
The case was tried below in 1899, before the passage of the act requiring courts of this state to take judicial notice of the laws of other states, and there was no proof as to the law of Louisiana. So far as the action for the unpaid wages is concerned, the courts can, in the absence of proof, presume that the law of Louisiana was the same as those of this state. But this rule does not apply to penalties, and we cannot presume that the laws of Louisiana impose a penalty upon the railroad company for the failure to pay the wages of the plaintiff at the time of his discharge. Driver v. Grider, 46 Ark. 50.
The plaintiff only claimed fifty or sixty dollars due for wages, but he obtained a verdict for $290.55, of which sum the circuit court required him to remit $160.56, and gave judgment for balance. The defendant claims that it does not owe the plaintiff any sum, and, as we are not certain what amount the jury found was due plaintiff for wages, the judgment must be reversed, and a new trial granted. It is so ordered.
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Hughes, J.,
(after stating the facts.) So far as the objection of the appellant is concerned that no separate election was held on the liquor question in the town before the ordinance took effect, the case of Doss v. Moore, 69 Ark., 262, is in point, and settles this question against the appellant. In that case it is said that, “if the town is not a separate election precinct, and a majority of the electors of the county and township in which the town is situated vote in favor of license, then license to keep a saloon in the town may be granted, it being in such case only a part of the township.”
The objection that the ordinance was passed for the purpose of raising revenue only is not tenable. It is an assumption. The town council had the power to regulate the sale of liquor within its corporate limits. The town council had the power to license, regulate, tax or suppress tippling houses or dramshops. Section 5132, Sandels & Hilhs Digest (Acts 1874-5, page 8).
The third section of the ordinance, providing that the license may be transferred, is void, being contrary to the statute. But this does not make the whole ordinance void. It may be stricken out, and there will still remain a complete and perfect ordinance, to effect the object of its passage. That the liconst might be transferred was not of the essence of the thing to be accomplished. State v. Marsh, 37 Ark. 356; Davis v. Gaines, 48 Ark. 370; State v. Deschamp, 53 Ark. 490; L. R. & Ft. S. R. Co. v. Worthen, 46 Ark. 312.
As to appellant’s fourth objection, that the ordinance imposes a penalty greater than $15 a day for each day appellant sells without license, see sections 5150 and 5151, Sandels & Hill’s Digest, and Siloam Springs v. Thompson, 41 Ark. 456, where it is said: “The act (of 1874-5) does not limit the price which a city council may fix for a license to keep a tippling house or dramshop within the limits of said city, or prescribe any particular time in which ordinances on that subject may be passed,” etc.
The town had voted with the electors of White precinct, in which it was situated, for license, and there was no vote against license, and no election on that question in the town, but it nevertheless possessed the power to license and regulate the sale of it within its limits. It was a municipal government having the power to provide for its own welfare, and there was no limitation other than that it might not grant license to keep a tippling house or dramshop when there had been a majority vote against it. The declarations of law asked by the appellant were properly refused.
The judgment is affirmed.
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Bunn, J. C.
The appellants, by this proceeding, seek to enjoin the defendants, as commissioners of the City Park Improvement District of Little Bock, from proceeding further to collect certain assessments levied upon their real property in said district, — among them the last assessment made under the ordinance of the city council.
It appears to be admitted in the agreed statement of facts that the district was properly organized on the petition of ten resident landowners, and that, within proper time after due notice given, the district was formed, and commissioners appointed, and that they in due time qualified, and made the necessary plans and specifications and estimates of the costs of .the improvement, and that the city council, upon the petition of a majority in value of the owners of property in the district, passed the necessary ordinance assessing the real property as required by law; and that, in fact, the district was properly organized, and the assessments made. The Hon. E. B. Peirce, sitting as special chancellor, heard the cause, and decreed against the appellants on all the controverted points, and they appealed to this court.
One of the more serious questions raised by the proceedings in the case, is whether or not the statute includes public parks, and such like, as improvements for which assessments upon the real estate of a district may be made by the city council in the manner provided for local improvements.
The appellants contend that under the familiar rule of construction, which confines the meaning of additional descriptive expressions to the class to which preceding specific terms and names belong, the improvements contemplated by the act are only streets, alleys, sewers and such* like or similar improvements. This is the doctrine of ejusdem generis. It would be difficult to say what other improvements there are or can be in a town similar to streets, alleys and sewers, and the contention of appellees that these descriptive names exhaust the particular class, we think, is well founded, and that public parks are not of that class, though it is true parks contain streets and drives, but these are not to be used for all purposes for which ordinary streets are intended and may be used; and still more might be said to distinguish parks from sewers, and take them out of the class to which the latter belong.
The statute on the subject, digested as section 5321 of Sandels & Hill’s Digest, is as follows, to-wit: “The council of any city of the first or second class, or any incorporated town, may assess all real property within such city, or within any district thereof, for the grading or otherwise improving streets and alleys, constructing sewers or making any local improvements of a public nature, in the manner hereinafter set forth.” This language is certainly broad enough to include any kind and class of improvements which will enhance the value of the real estate of the particular district; that is, benefit it. In construing this statute, this court said in Crane v. Siloam Springs, 67 Ark. 36: “Provisions for local conveniences, like water, light, public parks for recreation, and other public accommodations of the same kind, are some of the matters which are furnished or provided for by municipal corporations in their quasi-private capacity, in which they act, not as an agency of the state, but exclusively for the benefit of their own inhabitants. It is in respect to such matters of local concern that the largest freedom of action has been allowed municipal corporations.” “The case,” says Judge Cooley, “must be extraordinary and clearly exceptive to warrant any court in declaring that the discretion has been abused, and the legislative authority exceeded.” Cooley, Taxation (2d E.), §§ 145, 688, 689; State ex rel. Bulkeley v. Williams, 68 Conn. 131; Williams v. Eggleston, 170 U. S. 304.
The only limitation as to the character of the improvement is that it must be a local improvement and of a public nature; that is, local to the city and the inhabitants thereof, and public to the extent that it shall be free to the public under such proper regulations as may be adopted for its control, management and preservation, by the city council. The text-books and their citations sustain the doctrine that public parks are proper subjects of city taxation; and it is even held that it is proper to call into exercise the right of eminent domain, in order to acquire the necessary ground for the same. 2 Dill. Mun. Corp. (2d Ed.), § 598.
The proper exercise of discretion by the city is conclusive upon the courts. 2 Dill. Mun. Corp. (2d Ed.), § 600.
The next very important question arising from the pleading is, whether or not the property of complainants, which does not actually adjoin the grounds included in the park, is assessable under the provisions of the 27th section, article 19, of the constitution of the state, which reads as follows, to-wit: “Nothing in this constitution shall be so construed as to prohibit the general assembly from authorizing assessments on real property for local improvements in towns and cities under such regulations as may be prescribed by law, to be based upon the consent of a majority in value of the property holders owning property adjoining the locality to-be affected; but such assessments shall be ad valorem and uniform.” It is evident that this section confers no new powers upon the legislature, but the first clause of it is simply a recognition of power already existing; that is, inherent under the grant of general municipal powers. Section 255, Tiedeman, Mun. Corp. The second and last clause contains restrictions which, of course, must be observed, notwithstanding the inherent powers under the general grant of municipal power. In the discussion of this provision of the constitution, the word “adjoining” is made the controlling word, in the endeavor to determine whether or not any real property in the district is assessable, except that which absolutely touches the park grounds. Such is tire contention of the appellants. On the contrary, the appellees contend that all the property in the-district is adjoining, in one sense, the locality to be affected, and is therefore assessable. The etymological meaning of “adjoining” is “touching or contiguous to;” and there does not seem to be any other meaning to the word, when used in this sense. But what effect, in the practical affairs of life, the close relationship or connection of associate words or attendant circumstances may have upon its meaning, to give it a different shade of meaning, we cannot, say. It is sufficient for us to say, however, that the lexicographical meaning of the word “adjoining” is “close to,” “near to,” “contiguous” (see Worcester’s Dictionary); that it is thus given the same meaning as “adjacent,” which is more elastic than “adjoining,” when used in its etjmological sense.
In the case of Vestal v. Little Rock, 54 Ark. 325, in construing the word “contiguous” (which all must agree is, as nearly as may be, synonymous with “adjoining”) in its employment to define what land may or may not be annexed to a city or town, the court said: “To sustain their first ground for reversal, appellants rely on the fact that the 'city is on one side, and a part of the lands included in the order is on the other side, of the Arkansas river. But we do not think this fact conclusive that the lands are not contiguous within the meaning of the act. The river is included in the land annexed, and is therefore not a break in the contiguity, nor an insuperable barrier to a complete amalgamation of the communities upon its opposite bank," — citing authorities. Again, in the case of Little Rock v. Katzenstein, 52 Ark.107, where, of a lot not at all touching the locality of the improvement itself, but separated from it by another assessable lot, this court said: “The action of the city council in including property in an improvement district is conclusive of the fact that it is adjoining the locality to be affected, except when attacked for fraud or demonstrable mistake." In the case at bar there is no break in the continuity of the assessable lots or parcels of ground from the park grounds to the outermost boundaries of the district, which is the city. Therefore, according to Katzenstein v. Little Rock, supra, all is adjoining the locality to be affected.
Again, it is undoubtedly true that, by the erecting of buildings, the planting and training of trees, the sowing and setting of grasses and flowers, and the like, upon the park grounds, the park itself is affected in a merely physical way, and in that sense the park may be the “locality to be affected." But that is not, perhaps, the effect spoken of in the law on the subject, in connection with the levying of assessments for local improvements on the property outside the park belonging to private individuals or corporations liable to such assessments under the law. It is the locality formed by the assessable property, in all probability, which is to be enhanced in value by the making of the improvement that constitutes the locality to be affected; and this, of course, is all the property in the district which is otherwise assessable for such purposes. Such is the property “affected," or may be, within the meaning of the constitution, because it is the property benefited, and that alone can justify the assessments.
Now, it is evident that, under the doctrine contended for by the appellants, no park could be built; for the revenue arising from an annual assessment for 20 years of 1 per cent, would be in all conceivable cases utterly inadequate to purchase the necessary grounds and improve them into a park. The legislature, in authorizing the formation of improvement districts for the purpose of making public parks, doubtless took into consideration all the meanings that might be given to words and phrases used in the constitution, and, in order to make its action of practical use, and not utterly futile, probably ignored the theory contended for by the appellants, and acted upon some one of those referred to above, or some other that we may not have named. That being the case, and it being purely a legislative matter, the doubts that may arise as to the constitutionality of its action, under a familar rule, must be resolved in favor of the validitjr of the same. Neither is it clear how the city council, in conforming-its acts to the act of the legislature, could be guilty of proceeding without the authority of law, in view of the construction this court has put upon the constitution and the statutes. We conclude that the property of appellants was properly assessable, and that there is a lien on the same for the assessments.
There is another question raised by the appellants which we will consider. And that is, whether or not their property was benefited by the contemplated improvement. This contention doubtless has for its origin the decision of the supreme court of the United States in the recent case of Norwood v. Baker, 172 U. S. 269. That was a peculiar ease, indeed, — involving a mixture of questions arising both from an exercise of the right of eminent domain, and the law imposing local assessments for the purpose of not only paying the expenses of street improvement but for paying for the ground condemned for a street. The condemned property and all the property assessed was the property of a woman. She was thus made to pay not only for the improvement of the street, but to pay herself for the street itself. The case was reversed, of course; but, in assigning grounds for the reversal, many things were said that gave rise to the greatest confusion. It was not long, of course, before the soundness of the opinion in that case began to be called in question, and the opinion sharply criticised, not only in the state courts, but also in the federal courts; and a half dozen or more of these cases have since been appealed to the supreme court of the United States, and the decision of Norwood v. Baker, supra, has been so weakened that it is really of little practical force, as the law now stands, except in so far as it may be determined therefrom that in the enactment of state laws it must appear somehow, it matters little how, that the benefits to accrue to the property owner must be considered. This leaves the method of our constitution — the assessment according to value and uniform — intact.
Now, it goes without further question that the inclusion of a piece of real property in an improvement district by city ordinance is at least prima facie proof that it will be benefited by the proposed improvement; and, there being no attempt to show to the contrary in this case, the finding must be that the property is assessable. In fact, it is manifest, from the universal opinion in favor of the proposition that such property is always benefited by such improvement, that the attempt to show to the contrary would be useless in all instances; for all men concur that such things add to the health, comfort, pleasure and convenience of a town or city, and the inhabitants thereof.
We need not repeat here, what has been so often recently said by this court, that the whole area of a eity may be included in one improvement district; nor need we say that such is the plain meaning of the language of the legislative enactment from which we have quoted. The organization of districts is left to the sound discretion of the city or town council in every instance.
This, of course, affirms the decree in this cause, and makes it unnecessary, in the determination of this appeal, to say that, in our opinion, when it is found that one has joined in the petition of ten asking the organization of the district, or has become one of the majority in petitioning for the assessment to be made, that one is estopped from calling in question the organization of the district or the validity of the assessments. As to whether one who has paid voluntarily one or more of the assessments is thereby precluded from resisting the payment of the others, we do not say. As covering the whole ground, we adopt the decision of the special chancellor as our own, in addition to what we have said.
The decree is affirmed.
Battle, J., dissents.
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Hughes, J.
To maintain an action on a judgment, a certified 'Cop3r of the judgment alone is not sufficient, but all the pleadings and proceedings on which the judgment is founded, and to which as matter of record it necessarily refers, must be produced. Hallum v. Dickinson, 47 Ark. 120. Each state of the American Union must give the same effect within its limits to the judicial decrees of every other state, which such decrees have in the state where they are rendered. Const. U. S., art. 4, § 1. The record or proceedings of the Tennessee court in the cause was the proper transcript to present to enable the court in Garland county, m this state, to ascertain how far it is conclusive in the state of Tennessee, where it was rendered. If it is without effect there, it is without effect here. McLaren v. Kehler, 23 La. Ann. 80; 2 Black, Judgments, §§ 859, 877. The certified copy of the Tennessee decree was not admissible in evidence without the complete record. It was error to admit it. It is evidence only that such a decree was Tendered, but does not show that the court had jurisdiction of the subject-matter. Black, Judgments, §§ 928, 929.
The fourth instruction asked for by the appellant and refused by the court should have been given. Where a husband wrongfully and without cause deserts his wife, it is a reasonable presumption that he will return to her again, and that the abandonment is not permanent but temporary. It would in such a case certainly be right that he should do so, and that he should not persist in a wrong, and that the law will not presume a man guilty of a wrong, but rather presumes that he will do right because it is his duty to do right. But it has been frequently decided that what amounts to an act of desertion by the husband cannot have the effect of changing the home of either the husband or his deserted family. The grounds upon which this question was so decided in Moore v. Dunning, 29 Ill. 135, are that “this place still continued the home and residence of the husband, as well as his family, at least until it proved that he had acquired a home and a settlement elsewhere, and this the law can never assume he has done.” The presumption is that he continues a wanderer; without a home, until he returns to his duty and his family. Thompson, Home. & Ex. § 277.
Reversed and remanded for new trial.
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Wood, J.
At the fall term, 1899, of the Greene county circuit court, the grand jury returned against appellant the following .indictment:
“Greene County Circuit Court, Fall Term, 1899. The state of Arkansas against Jim Grant. Indictment. The grand jury of Greene county, in the name and by the authority of the state of Arkansas, accuse Jim Grant of the crime of destroying public records, committed as follows, to-wit: The said Jim Grant, in the county aforesaid, on the 5th day of April, 1899, did unlawfully and feloniously steal, take away, withdraw, avoid and destroy a part of the records of the Greene, county chancery court, to-wit, the depositions for plaintiff in the cause therein pending wherein Della Wilson was plaintiff and L. A. Wilson was defendant, with the felonious intent to injure the plaintiff, Della Wilson, in said cause, and against' the peace and dignity of the state of Arkansas. 0. L. Ivillough, Prosecuting Attorney.”
The only question here is as to the sufficiency of the indictment. The statute is as follows: “Every person who shall steal, take away, withdraw or avoid any record, or part or parcel thereof, writ, return, panel, process, or any book or any paper belonging to any of the public offices of this state, or to the records of any court, with intent to injure another, shall be imprisoned in the penitentiary not less than three or more than ten years.” Sand. & H. Dig., § 1855. The indictment charges but one offense, to-wit, that of destroying a part of the records of the Greene county chancery court. It follows almost literally the language of the statute, and is sufficient. Only one offense was denounced by the statute. That offense may be committed in the various ways enumerated, 1. e., by stealing, taking away, withdrawing, or in any other manner avoiding or destroying the things mentioned, with the intent to injure another. What we said in State v. Keoun, 64 Ark. 231, applies here. Especially are the quotations from Bishop, Stat. Crimes, § 244, and Cr. Proc. § 436, in point.
Affirmed.
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Hughes, J.,
(after stating the facts). Passing by the contention of the appellee that there is no proper bill of exceptions in the case, and also the contention of appellee that injunction will . not lie in this ease, we proceed to dispose of the case upon what we consider the merits on the two main questions presented.
From the appellants’ presentation of the ease, in what they present as their bill of exceptions, and the record in the case, does it appear that there was not a majority in value of the property holders in the improvement district who signed the petition for the levy of the tax with which to make the proposed improvement ? The total value of property in real estate, as appears by the assessment for state and county taxes, including the railroad property, is $268,279. The court below found that this was exclusive of railroad property, but this was error, for it includes the railroad property. The court found the assessable value of the church property, which was not on the tax books, to be $15,000. There was evidence tending to show that it was worth in the neighborhood of $30,000, bnt there was also evidence that it was not worth nearly so much, and that the usual way of assessing property for taxation in that county was at about 50 per cent, of its value.. Considering the conflict in the testimony as to its real value and the evidence as to the manner of assessing real property in that county, we cannot say the court erred in putting its value at $15,000 for the purpose of this ease. Add the value of the church property, and we have $283,289 as the total value of the property in the district assessable for the purposes of the improvement. This amount includes the value of railroad and church property. We find that the total value of the property of the petitioners is $165,179, from which let us deduct $26,120, which is the amount that the appellants claim should be deducted on various accounts, and the petition will then have $139,059. But included in this amount deducted are the following amounts, to-wit: $2,050 to Orrel Bros., and $2,400 to W. T. and S. J. Orrel, which makes $4,450. W. T. Orrel signed the petition, and we give to the petition one-half of this $4,450, or $2,225. The evidence shows that W. T. and S. J. Orrel composed the firm of Orrel Bros.; that $3,465 in the name of Mrs. E. M. Morril, whose name does not appear on the petition, but who, the evidence shows, did sign the petition as L. B. Morril, should be corrected on the petition. These two amounts aggregate $5,690, which added to $139,059, the amount left after deducting from the amount on the petition, leaves on it still $144,649, from which take the amount necessary to a majority, $141,649, and the petition then has a majority in value of the property in the district of $3,005. The amount corrected on the petition (one-half the amount) to W. T. and S. J. Orrel is in accordance with Ahern v. Board of Improvement, 69 Ark. 68, 61 S. W. 575. To the above amount of $3,005 should be added the individual assessment of W. T. Orrel of $200, increasing the majority for the petition to $3,205.
The question of the validity of the second levy of $21,000 by the city council without a new petition is to be considered. Appellant says it would make the amount exceed 20 per cent, of the total value of the property in the district, the limit beyond which the law forbids them to go. The total value is $292,284. Twenty per cent, of this is $58,456.80. Original levy, $32,000. Second levy, $21,000. Total, $53,000. So the limit of 20 per cent, was not reached by $5,456.80.
Now, as to the validity of this second levy of $21,000 by the council without any new petition. The statute in reference to this is section 5366 of Sandels & HilFs Digest, which reads as follows: “ If the assessment first levied shall prove insufficient to complete the improvement, the board shall report the amount of the deficiency to the council, and the council shall thereupon make another assessment on the property previously assessed, for a sum sufficient to complete the improvement, which shall be collected in the same manner as the first assessment. Provided, that when any work has been begun, under the provisions of this act, which shall not be completed and paid for out of the first or other assessment, it shall be the duty of the said council to make such assessment for its completion, from year to year, until twenty per centum on the value of the real property of such district shall be collected and consumed in such improvement, unless it be sooner completed; and the performance of such duty may be enforced by mandamus, at the instance of any person or board interested.”
It will be perceived that the proviso in this section does not control the discretion of the court in making a second assessment before the first is exhausted, because it appears from the language of the section “that when any work has been begun, * * * which shall not be completed and paid for out of the first or other assessment, it shall be the duty of said council to make such assessment for its completion from year to year until twenty per centum on the value of the real property of such district shall be collected and consumed in such improvement, unless it be sooner completed; and the performance of such duty may be enforced by mandamus,” etc. This seems to contemplate that more than one assessment may be made before the proviso becomes operative. The first part of this section, that, “if the assessment first levied shall prove insufficient to complete the improvement, the board shall report the amount of the deficiency to the council, and the council shall thereupon make another assessment of the property previously assessed, for a sum sufficient to complete the improvement, which shall be collected in the same manner as the first assessment,” provided that not more than 1 per centum per annum can be levied till the improvement is paid for, and provided that not more than 20 per centum shall be collected in all, does not restrict the board in the means of ascertaining that the first assessment will prove insufficient. It may ascertain this by proper estimates made by competent engineers, for instance, or by the testimony and estimates of experts familiar with such work, who had knowledge of the place and conditions where such improvement is to be made. That a second assessment should be made, when necessary, before the first is exhausted seems important, as, in the case at bar, it appears that, without a sufficient assessment to complete the work, bonds cannot be sold to obtain money to- have the work done.
Affirmed.
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Bunn, C. J.
This is a suit instituted in the Sebastian circuit court, Fort Smith district, and transferred on change of venue to the Greenwood district, where trial before a jury was had, resulting in a verdict for plaintiff in the sum of $2,000 for personal injuries to said Idus Woodward, and the defendant duly and in, due time appealed to this court.
Idus Woodward, a boy 12 years old, was driving a covered ice wagon along one of the streets of Fort Smith, and, when crossing the defendant’s railway track, this ice wagon was struck and demolished by a car which was being backed by an engine at the rear end of a train of three or four cars, and threw the plaintiff out, greatly wounding him.
The only questions in the case were whether or not the defendant’s engineer in charge of the moving train was negligent in not giving warning of its approach to the street crossing, and, on the other hand, whether or not the defendant exercised proper care to protect himself in attempting to cross the railroad track at the particular place and under the particular circumstances by which he was surrounded.
In the course of the trial, the trial court gave, among others, the following instruction: “7. If you believe from the evidence that the injuries complained of were caused by the plaintiff’s own negligence, and further find from the evidence that the direct cause of the injuries complained of was on account of the omission of defendant’s engineer, after becoming aware of the negligence of the plaintiff, if he knew of such negligence, to use a proper degree of care to avoid the consequences of such negligence on the part of the plaintiff, then your verdict should be for the plaintiff.” There is no evidence in the case that the engineer in charge of the engine and moving cars could have done more than he did do to avoid the injury after he saw the ice wagon and the peril of its driver, for after the wagon got in view on the railroad track the train was stopped within 34 to 80 feet, according to the testimony of the several witnesses, which was a reasonably short stop, even if the train was moving at the low rate of 4 to 6 miles an hour, as some of the witnesses testified. The part of the instruction covering the alleged negligence after he saw defendant’s perilous situation is not only without evidence to support it, but was calculated to confuse the jury, and divert their minds from the real issue in the case, and was therefore improperly given. Railroad Company v. Houston, 95 U. S. 697; United States v. Breitling, 20 How. 252; Little Rock & Fort Smith R. Co. v. Townsend, 41 Ark. 382; Railway Company v. Hammond, 58 Ark. 324.
Under the circumstances, it cannot be determined whether the jury based their verdict upon the proper instructions given in the case, or upon the erroneous instruction. The instructions, especially in a case like this where every issue is sharply controverted by the evidence, should be direct and to the point, and not at all misleading as to the real issues involved; otherwise, there can be no fair trial.
Reversed and remanded for a new trial.
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Riddick, J.
The appellant, Reedy Vance, was indicted, tried and convicted of murder in the first degree for the killing of Lee Yick by shooting him with a pistol. He brings this appeal to reverse the judgment and obtain a new trial.
The circumstances of the killing were substantially as follows : Lee Yick, a Chinaman, kept a restaurant on Fifth street, in this city. On the 4th day of June, 1901, Vance went into this restaurant, and ordered a bowl of soup. After he had eaten his soup he started to leave the restaurant without paying the nickel he owed for it. Yick followed him, and asked him for the money. Vance, who had reached the sidewalk, and was walking away, waved his hand back at Yick, and this, it seems, made the impression on Yick that the money had been left in the restaurant. He thereupon stepped back into his restaurant, but returned at once and again asked for the money, saying: “Me see no money. Give me my money.” Vance was some twenty feet from Yick and still going away. When Yick again asked him for the money, he turned, took a step or two towards Yick, threw at him some crackers which he had brought in his hands from the restaurant, then, drawing a pistol from his bosom, said, “Here’s your money!” and fired. Yick fell to the sidewalk, mortally wounded, and died about an hour afterwards. This seems to us to be the truth of the matter, though there seems to be some conflict of evidence in reference thereto, which we shall notice further along.
Counsel have discussed quite a number of questions in reference to the rulings of the presiding judge on the trial, which, under tile facts as we see them, we deem it unnecessary to determine. To eliminate these questions, we will say that, after a careful consideration of the evidence, we find nothing that would have justified the jury in acquitting Vance on account of insanity at the time he shot Yick. There is, it is true, evidence to show that during several years past Vance had acted at times in a peculiar manner; that he had both talked and acted in an irrational way. But we think it is conclusively shown that this was while he was more or less under the influence of intoxicating liquors. Drunkenness is, itself, a species of insanity, and a man who had for years been in the habit of indulging in occasional drunken sprees, who on one or two occasions had delirium tremens, was certain to have often spoken or acted irrationally, and more or less like an insane man. There is nothing strange about that. It is what we should expect of one who had used alcoholic drugs to that extent. But Vance was not suffering from delirium tremens or so much under the influence of strong drink at the time he killed Yick as to be unconscious of his acts or unable to control himself. He may have taken alcoholic drinks on that day, and may have been to some extent under the influence thereof, but he was not even drunk, much less in a condition to be irresponsible for his acts. This is conclusively shown, not only by the witnesses for the state, but by the testimony of Vance himself. Though the statement he gave of the tragedy was more or less favorable to himself, it agreed in many respects with the evidence on the part of the state, and shows that he had a clear recollection of the events leading up to and including the tragic act. Beading this testimony and the testimony of other witnesses concerning the conduct of Vance on that day, we entertain no doubt that Vance was sane at the time he killed Yick, and that an acquittal on that ground would have been a clear miscarriage of justice. This conclusion is also fully supported by the testimony of Dr. filing, a medical expert, who had had exceptional opportunities for judging of Vance's condition, and whose testimony is clear and emphatic to the effect that Vance was not insane.
Again, we feel equally certain that the killing of Yick was not done in necessary self-defense. This is apparent from the testimony of Vance himself. Tie stated that after partaking of the soup he found that he had no money to pay for it, and started to go and get it, first explaining to the Chinaman that he would return soon and pay him. Thereupon he said that the Chinaman picked up a long knife and followed him to the door, abusing him and calling to him to give him his money. He then continues his testimony as follows: “I moved my hand at him without stopping, and told him that I would bring him his money at once. He rushed frantically back into the restaurant. I walked on down the street to get away from him, but he returned to the sidewalk in front of his door at once. I felt sure, from what had occurred in the restaurant, that he had gone inside for a better weapon. I had seen a pistol lying on the shelf behind the counter, and T thought he meant to shoot me or throw a Chinese knife at me. I saw murder in his eye. He came out with his hand under his apron, still calling angrily and threateningly at me. I felt that I could not get away without risking a bullet or a knife in my back, and so I turned and threw a few cracker crumbs, which I had brought out of the restaurant, at him in order to disconcert him and gain time to draw my gun. I immediately drew my gun, and used it with deadly effect." This is a part of the testimony of Vance, though further along he says that he acted in haste, and did not intend to take life. Now, the witnesses for the state say that when Yick came from his restaurant the second time Vance was about twenty feet from him and walking away; that Yick stopped immediately in front of the restaurant. Neither Vance or any of his witnesses contradict this statement. No witness states that Yick followed Vance further than the front of his restaurant. He stopped there and called to Vance to give him his money, and Vance turned and shot him. The reason that he gives for doing so is, in substance, that Yick came out with his hand under his apron and called angrily and threateningly at him. “I felt,” he says, “that I could not get away without risking a bullet or a knife in my back.” So he turned and shot him. Now, it is very plain that Vance did not show that there was any overt act, any attempt on the part of Yick either to cut or shoot him. Yick came out with his hand under his apron, and called angrily at him, and for this reason Vance shot him. But he had no right to shoot Yick because.he held his hands under his apron; and words, however violent, do not justify an assault. They are not even sufficient provocation to reduce the grade of a homicide from murder to manslaughter, and he who takes life on account of words only, however abusive and violent they may be, commits murder. Ex parte Sloane, 95 Ala. 22; Allen v. United States, 164 U. S. 492; 2 Bish. New Crim. Law, 704.
There can be no doubt that Vance was guilty of murder, either in the first or second degree, when we further consider the circumstances under which he killed Yick. Let us remember that Yick had no previous grudge against Vance, who was a stranger to him, and that Yick was only endeavoring to make Vance pay for the soup he had eaten. When one walks -into a restaurant, orders something to eat, and then undertakes to leave without paying for it, he should expect some remonstrance on the part of the proprietor. Especially should he expect this if he is a stranger to the proprietor; for in such a case the proprietor would not know whether his promise to get the money and return and pay was the truth or only a ruse to enable him to get away without paying. This was the position of Yick. He no doubt believed that Vance was intended to cheat him out of a nickel by eating his soup and then deliberately refusing to pay for it. The amount was small, but it was justly due, and Vance could have stopped the difficulty at once by paying or securing the nickel. The deposit of most any article would have been sufficient to convince Yick that Vance intended to pay, and would have at once terminated the matter in a peaceable way. Vance, though a stranger to Yick, was well known in the city, where he had lived for years, and was acquainted with the bystanders. If he had nothing else, he had his pistol, by a deposit of which he could easily have obtained a nickel, had he wished to settle the controversy in an'amicable way. But it is evident that Vance did not care to make any concessions. Counsel for Vance say that Yick “chattered like a chimpanzee,” and that his excessive jabbering angered Vance. This coincides with the statement of the officer who testified that Vance after his arrest said that the Chinaman had insulted him, and is no doubt true. Angered by the repeated demands of Yick for his money, Vance turned and shot him. The bullet struck the Chinaman in the abdomen. That Vance was perfectly conscious of what he had done is shown by the further remark he made to the officers who arrested him. He asked, they said, where the Chinaman was hit, and, on being told that they did not know, he replied: “I aimed right here, and you will find him hit right here,” indicating a point on the abdomen. Vance testified that he did not remember to have made this statement, but he expressed no regret at having taken life over such a trivial matter, and, to quote his own testimony, he said, soon after the deed was committed, “I have often heard that a Chinaman would go to hell for a nickel, and now I think it is so.”
It is laid down in the books, and is the language of our statute, that, to reduce an unjustifiable homicide committed by the intentional use of a deadly weapon from murder to manslaughter, there must be both provocation and passion. The killing must be done in the heat of passion under provocation apparently sufficient to make the passion irresistible. If there be passion but no provocation, or provocation but no passion, it is murder. Where the killing results from the assault made with a deadly weapon, “malice will be implied where no considerable provocation appears, or where all the circumstances manifest an abandoned and wicked disposition.” Sand. & H. Dig., §§ 1656, 1642.
Now, the brutal remark above quoted, which Vance admits that he made, taken into consideration with the other testimony, makes clear the state of Vance’s mind toward the Chinaman, and shows that there was here neither provocation nor passion of the kind that mitigates' crime. The act was not the result of excitement stir red by great provocation, under which peaceable men sometimes give way and do rash deeds, and which in the judgment of the law mitigates crime.
There was little or no provocation that a peaceable man would have felt called on to resent. The crime was prompted by malicious and revengeful anger, unrestrained by slightest regard or respect for human life.
Confining ourselves to the testimony of Vance, and to so much of the testimony of the witness for the state as he does not contradict, it is still conclusively shown that he was guilty of murder. While, if we consider the testimony for the state, which is direct and positive to the fact that Yick was unarmed, that he had his hands by his side with nothing in them, was making no demonstrations toward Vance, and doing nothing except asking for his money when Vance turned, took a step or two towards him, threw some crackers in his face and, saying, “Here’s your money!” shot him down without warning, — the case is made very much stronger, and shown to be an unprovoked and brutal murder. Being thus fully convinced, from his own testimony, that Vance was sane, and that he was guilty of murder either in the first or second degree, it will be unnecessary to discuss the rulings of the trial judge on the questions of insanity and manslaughter, for those matters we regard as outside of the case.
We shall therefore confine ourselves to the consideration of the exceptions to the rulings which bear on the question of murder in the first degree. The first of these is somewhat novel. It is said that the presiding judge, over the objections of the defendant, permitted Bloom Turner, a witness, to illustrate the tragedy by having one of the counsel for the state to represent Vance, while another represented Yick, the Chinaman. These two counsel for the state suiting their actions to the words of the witness, it is said that in this way a sort of dramatic representation of the tragedy was produced before the jury. Counsel for appellant say that the representation was not a fair one, and was prejudicial to Vance for the reason, among others, that in this presentation the character of Vance was assumed by one of the counsel who was a large man, while Yick was represented by a small man, thus making it appear to the jury that it was a large and powerful man assaulting and killing a small man, whereas counsel say that the truth was to the contrary, Vance being smaller that the Chinaman.'
We can very easily see that a defendant might be irreparably injured by having his actions presented in that way before the jury by unfriendly actors not under oath and paid to prosecute him, and if the record fully presented a ease of that kind it would certainly be a serious question as to whether it would not call for a, reversal and a new trial. But, though the record is a little vague on that point, we conclude from it that the court only permitted the witness to illustrate the relative positions and the distance between the parties at the time of the shooting. We are not certain that it shows more than this, and we cannot therefore say that there was error. We however call attention to this point, for it seems to us that there is room enough for all needful display of the dramatic powers of counsel in the regular walks of the profession, and that it is unnecessary, and even unsafe, to go further, and tread more or less on the domain of the witness.
This brings us to a consideration of the exception to the action of the court in excluding the deposition of Bud Lindsey, offered by the defendant. This witness gave in his deposition a statement of the facts of the killing, which agreed in the main with the testimony of Vance. On cross-examination he admitted that he had been convicted of grand larceny, and that he had served a term in the penitentiary for that crime, and that he was, at the time the deposition was taken, confined in jail on another charge of grand larceny. The deposition was excluded on the ground that the witness was incompetent to testify for the reason that he had been convicted of grand larceny. The question presented by the exception to this ruling is whether, when it is shown by the cross-examination of a witness whose deposition is offered as evidence that he had been convicted of a crime which under our statute renders him incompetent to testify, the court can exclude the deposition on that showing, or whether the record of the conviction must be first produced. It has been twice stated by this court that, to exclude a witness on account of a conviction for infamous crime, the record of the conviction should be produced (Southern Insurance Co. v. White, 58 Ark. 277; Scott v. State, 49 Ark. 156); though it does not appear in either of those cases that the witness admitted his conviction on the stand, or that the court had its attention called to the statute which is relied upon by the prosecution in this case as authority for the right to prove the conviction by the testimony of the witness himself. The statute is as follows: “A witness may be impeached by the party against whom he is produced, by contradictory evidence, by showing that he has made statements different from his present testimony, or by evidence that his general reputation, for truth or immorality, renders him unworthy of belief, but not by evidence of particularly wrongful acts, except that it may be shown by the examination of a witness, or record of a judgment, that he has been convicted of a felony.” Sand. & H. Dig., § 2959.
Before the passage of this statute the question as to whfether it could be shown by the cross-examination of a witness on the stand that the witness had been convicted of a crime had been much discussed by the courts. These discussions generally arose on attempts to impeach witnesses in that way, for the reason that in most of the states the fact that a witness had been convicted of a crime did not render him incompetent, but went only to his credibility. To settle that question in this state, the legislature passed this section as part of the code of practice which regulates the ■examination and impeachment of witnesses. Now, it is very probable that in passing this statute the legislative mind was directed mainly to the subject of impeaching witnesses, but it seems to me that the language is broad enough to cover any case where the conviction is proved for the purpose of affecting the testimony of the witness by whom it is proved, whether the effect of the conviction be to exclude his testimony by showing that he is incompetent, or whether it goes only to his credibility as impeaching testimony. As the statute by express terms permits the fact that a witness has been convicted of a felony to be shown either by his examination or the record, it seems to me that when that fact has been established, whether by a record or the testimony of the witness, the ■effect is the same. I see no valid reason for making a distinction in the method of proof between the case where the conviction goes merely to the credibility of the witness and when it renders him incompetent, nor do I believe that there is any such distinction in the statute. If the conviction is one that goes only to his credibility, it is for the jury to consider it with his testimony, but if it be a conviction that renders the witness incompetent, it seems to me that it is proper for the presiding judge to exclude his testimony. For this reason, if I were the sole judge of this question, I should say that no error was committed in excluding the deposition of this witness, it being shown by his own testimony that he had been convicted of a crime which under our statute renders him incompetent. But, after a very careful and full consideration of this question, a majority of the judges have come to a different conclusion. As one of the, judges may find it convenient to give the reasons for their conclusion on this point in a separate opinion I shall not do much more than state their conclusion. In the opinion of the majority of the judges, the section above quoted has reference only to the method of impeaching witnesses. They hold therefore that when the conviction of a witness is shown by his examination only, such conviction goes only to the credibility of the witness. In order to exclude the testimony of a witness on the ground that he had been convicted of a crime, they are of the opinion that the record of his conviction must be produced, when accessible. This conclusion, they think, is supported by the cases in our own court above referred to, and by the rule as laid down in Greenleaf on Evidence, as well as by the language of the section itself.
The case of Cash v. Cash, 67 Ark. 278, is not, they think, in conflict with this conclusion, for the reason that in that case the conviction of the witness was admitted by the party to the action, and thus dispensed with further proof of that fact.
While, as before stated, I differ with the court on this question, I do so with some hesitation, for I can appreciate the force of the argument, ably presented by counsel for appellant, which has led the court to its conclusion.
Taking that conclusion as the law of this case, it follows that the circuit court erred in refusing the deposition of Lindsey; and the next question is whether the error was prejudicial to defendant. In considering that question, it must be remembered that we are not the judges of the weight of the evidence. The argument that we can treat the rejection of this deposition as harmless error because the facts stated therein favorable to the appellant were contradicted by a number of witnesses who testified for the state, or because the witness is shown to have been of bad character, is not sound, for this is an argument concerning the weight that should be given the evidence, which the defendant had the right to submit to the jury. If, when evidence for the defendant which tended to mitigate or excuse the crime is improperly rejected by the trial court, we should retry the case here on the whole evidence, and, notwithstanding the error of the trial court in excluding the defendant’s evidence, affirm the judgment when it was our opinion that the guilt of the defendant was made out beyond a reasonable doubt, it is plain that the right of trial by jury, guaranteed by the constitution, would be seriously infringed, if not abrogated. For there could be no real trial by jury when the jury were not allowed to hear or consider the evidence for the defendant, and on appeal under such a practice, where the evidence was improperly rejected, the accused would secure, not a new trial before a jury, but a retrial before this court, which is a very different thing. But while we cannot, under our system of law', go into an inquiry concerning the weight of the evidence, still the mere fact that evidence is rejected does not justify a reversal when, admitting the evidence to be true, and giving it the full legal effect to which it is entitled, the court can see that it could not or should not have altered the result. Now, looking at this deposition in that light, we can see that it shows nothing more than the testimony of Vance shows. This witness does not say that he saw either a pistol or knife in the hands of the Chinaman, but in giving his reasons for stating that the Chinaman had-a weapon he said that he could see the print of it under his apron, but couldn’t tell whether it was a pistol or knife. IVe think it is plain from his own -testimony that the witness saw neither a pistol nor knife, except the one used by Vance. But he does say that the Chinaman cursed, talked like he was mad, ran into the restaurant, and came back with his hand under his apron, apparently having something in his hand about a foot long, which witness took to be a weapon. While this testimony does not show anything to justify the shooting, or furnish any provocation therefor, still it tends to support the testimony of Vance, and was legitimate evidence for the jury to consider on the question whether Vance was guilty of murder in the first degree. The crime was not committed in an attempt to rob or rape, or by means of poison, or by lying in wait, so that we cannot say as a matter of law that it was murder in the first degree. The evidence, we think, shows that Vance had not formed the intention to kill until Yick came out of the restaurant the second time. When he came out the second time and asked for his money, Vance shot him, but this rejected evidence tends to support the testimony of Vance that when this was done the Chinaman was using abusive and threatening language and holding his hand under his apron apparently as if he held a weapon. If this testimony had been admitted, it is possible that it would have led the jury to believe the further statement of Vap.ce that he acted in great haste and shot with no specific intent to kill Yick, and therefore that he was not guilty of murder in the first degree, or it might have raised in their minds a reasonable doubt as to that fact, which would have led to the same result. We do not say that it would have had that effect. It is enough that the defendant had the right to present it to the jury for their decision, and that we are unable as a matter of law to say that it might not have affected the verdict of the jury to that extent.
A majority of the judges being of the opinion that the deposition of Lindsey was improperly rejected, it follows from what we have said that we are unable to say that its rejection was not prejudicial to Vance, so far as it concerned the degree of murder found by the jury, and for this reason the judgment cannot stand for murder in the first degree.
The conclusion of the court on this point is another illustration of the wisdom of the admonition to trial judges, often repeated by this court, not to reject evidence offered by a defendant on trial for a felony when there is doubt as to its competency. Under our system of law, it is often the ease that the rejection of evidence offered by a defendant charged with an outrageous crime is the greatest favor the judge could grant him, for in this way, if the evidence be wrongfully rejected, he may obtain a new trial long after the commission of the crime when through public apathy or through the disjoersion of the witnesses to the crime the chances for an acquittal are far more favorable.
If the deposition of Lindsey had been admitted, it is highly probable that the verdict would have been the same, and in that event the judgment, so far as we can see, would have been affirmed. By objecting to this evidence and procuring its exclusion, it looks very much as if learned counsel for the state had unwifctipgly conferred a favor on the defendant, for in that way they have enabled him to bring into the record a question of law which after full consideration a majority of us feel compelled to decide in his favor. We say this of course with no intention of reflecting on court or counsel in this case, for we are ourselves divided on the question as to whether the ruling of the circuit court on this point was correct, and we mention it only for the purpose of again calling the attention of trial judges to the importance of acting with due' caution in excluding material evidence offered by a defendant charged with a capital offense, unless such evidence be clearly incompetent.
Having said this much, it is proper and we are pleased to say that in our opinion the prosecution of this case has been conducted with conspicuous ability. It is too often the case that juries are inclined by their verdicts to excuse or condone crimes committed against members of an alien and inferior race. That this jury stood firm against such influences is no doubt due in a large degree to the vigor and talent with which the prosecution was conducted, and it is nothing against counsel that in the hurry of trial they erred on a close question of law.
We take this occasion also to call attention to the backward state of the law in this state in reference to the competency of witnesses convicted of felony. The statutes which render such witnesses incompetent belong to a class of antiquated laws which suppress evidence, and which the wisdom of modern ages has discredited and shown to be unreasonable and injurious. They are of the same class as the laws which formerly forbade the parties to the suit from testifying and closed the mouth of the defendant on trial for his life, and should be repealed as these laws have been repealed, for such matters should go only to the credit or impeachment of the witness — not to the exclusion of his testimony.
There is no valid reason why a person who knows anything material to the decision of a case on trial should not be permitted to tell it, whatever may be its character, the jury being allowed to weigh his testimony in connection with his character and antecedents. These statutes not only suppress evidence, but the application of them often presents difficult and doubtful questions, which, being decided in the hurry of trial, frequently result on appeal in reversals, and in this way justice is often thwarted. There are very few states that now retain such laws, and we think our legislators might well consider whether they should not be repealed in this state also.
Having reached the conclusion that the error of the circuit court above referred to was only prejudicial in so far as it may have affected the finding of murder in the first degree, we have now to consider what should be the judgment of this court. In the ease of Simpson v. State, where a conviction of murder in the first degree was reversed because the evidence was not sufficient to support it, Chief Justice GockriU, who delivered the opinion of the court, said: “In this case the jury have found the prisoner guilty of murder; but, having found a degree of murder which the proof does not warrant, the verdict stands for the offense of murder, and fails as to the degree. It is, then, as though the jury had found him guilty of murder, but failed to assess the punishment.” The court thereupon ordered that the prisoner be sentenced for murder in the second degree. Now in that case the evidence was not sufficient to sustain the finding of murder in the first degree, while here the evidence is sufficient, but the conviction as to murder in the .first degree must be set aside because of the exclusion of material evidence bearing on that point. It is, then, within our discretion to reverse the judgment and remand the case for a new trial on the whole case, or, as the exclusion of the evidence referred to could have affected the degree of the murder only, we can set aside the judgment for murder in the first degree, and allow the verdict to stand for murder in the second degree. The verdict would then fail as to the degree, but stand as to the offense of murder, and the situation of the case would be the same as if the jury had found the defendant guilty of murder in the second degree, but failed to assess the punishment, and we would remand the case with an order to sentence the defendant for murder in the second degree. Simpson v. State, 56 Ark. 19; Routt v. State, 61 Ark. 594; Ballew v. U. S., 160 U. S. 187.
As this murder was not committed by means of poison, or by lying in wait, or in the attempt to rob, or in a way so as to leave no doubt as to the degree of the crime, a majority of us feel inclined to the opinion that a judgment for murder in the second degree, with punishment assessed at something near the longest term of imprisonment allowed for such a crime, would vindicate the majesty of the law, and do almost as much towards the protection of the public against such violent outbreaks of lawlessness as the infliction of even capital punishment would do. For this reason a majority of us are inclined to the opinion that the better course now is to end the matter by remanding the case to the circuit court with an order tó sentence the prisoner for murder in the second degree, and in this way avoid the trouble, expense, delay and uncertainty of another trial on the whole case. But, as counsel may have knowledge of facts which would make such a course unwise in this case, we have concluded to give them an opportunity to be heard before entering final judgment. An order will now be entered setting aside the judgment for murder in the first degree, with leave for either side to show cause within one week why the case should not be remanded to the circuit court with an order to sentence the defendant for murder in the second degree.
[Afterwards the parties appeared by counsel, and the state asked that judgment should be rendered against the defendant for murder in the second degree, while the defendant insisted that the case should be remanded for a new trial. The court concluded for the reasons stated in the opinion that the conviction should be affirmed for murder in the second degree, and that the punishment should be assessed at twenty years’ imprisonment in the penitentiary at hard labor. The ease was thereupon remanded to the circuit court, with an order to give judgment against the prisoner for murder in the second degree, and as punishment therefor to sentence him to imprisonment in the state penitentiary at hard labor for a period of twenty years, commencing at the date of such judgment in the circuit court.]
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McCulloch, C. J.
Mr. Coston, the appellant, was attorney for the Grassy Lake & Tyronza Drainage District No. 9, of Mississippi County, in the organization of the district, the sale of bonds, and other matters concerning the business thereof, and this case involves a controversy between him and the taxpayers of the district concerning the amount of his fee. Appellees, as taxpayers, intervened in the proceeding before the county court for the allowance of the fee. Appellant claimed^ $20,000, and both sides appealed from an order of the county court fixing the fee at $12,500. The case was tried in the circuit court on appeal, and the fee was fixed at the sum of $8,000.
The judgment of the circuit court was rendered in March, 1912, and some time during the month of May of the same year the commissioners of the district paid to appellant the sum of $8,000,' the amount of the judgment, and took his receipt therefor, which stipulated that he accepted the sum without prejudice to his right to prosecute an appeal.
He prayed an appeal from the clerk of this court on March 28, 1913, just before the expiration of the time, and the appeal was granted.
Appellees now move the court for the dismissal of the appeal on the ground that appellant is estopped by reason of having accepted payment of the judgment.
This question was decided in favor of the contention of appellees in the case of Watkins v. Martin, 24 Ark. 14, where the court, speaking through Mr. Justice Compton, held that, “Where a party has recovered a judgment, and received the amount of it from defendant, he will not be permitted to reverse the judgment on error.”
The only distinction between that case and this is, that, in the former the plaintiff collected the judgment upon process issued at his instance, whereas, in the present case, the payment was voluntarily made by the commissioners of the district. That, however, is a distinction without a controlling difference, for it is the acceptance which amounts to a waiver of the right of appeal, regardless of the manner in which the fruits of the judgment are secured.
Nor is the principle altered by the fact that payment was voluntarily made by the commissioners of the district upon stipulation that it was not to prejudice appellant ’s right to prosecute his appeal. This is a controversy between the taxpayers and appellant, and the commissioners had no authority to deprive the latter, by making a voluntary payment, of their right to contest.
In the case of Bolen v. Cumby, 53 Ark. 514, Chief Justice Cockrill, speaking for the court, stated the rule as follows:
“A party may prosecute his appeal from a judgment, partly in his favor and partly against him, even after accepting the benefit awarded him by the judgment, provided the record discloses that what he recovers is his in any event—that is, whether the judgment be reversed or affirmed. But he waives his right to an appeal by accepting a benefit which is inconsistent with the claim of right he seeks to establish by the appeal.”
It will be noticed that the right to prosecute an appeal turns upon the question whether the party merely accepts that which is “his in any event,” for, if his right to recover the amount paid is in dispute, his acceptance of the amount cuts off the right of the other party to further contest the claim in the event of a reversal, and he can not be allowed to occupy the inconsistent position of further prosecuting his appeal.
The rule is clearly stated in the Cyclopedia of Law and Procedure, vol. 2, p. 652, as follows:
“It is the general rule that if the prevailing party obtains a judgment or decree which is so indivisible that it must be sustained or reversed as a whole, he can not prosecute an appeal or writ of error to reverse it after having accepted money voluntarily tendered by the judgment debtor in discharge or partial satisfaction of it. * * * But this rule has no application to cases where the appellant is shown to be so absolutely entitled to the sum collected upon the judgment that the reversal of it will not affect his right to it.”
Many authorities are cited in support of the text, which we conceive to be sound in principle and in accord with the views already expressed by this court in the cases cited above.
The Supreme Court of Idaho, in a well-considered opinion (Bechtel v. Evans, 10 Idaho 147, 77 Pac. 212) lays down the following test, which 'we think is a clear and correct statement of the true rule:
“If the party has collected his judgment, and, in seeking to gain more by the prosecution of an appeal, thereby incurs the hazard of eventually recovering less, then his appeal should be dismissed. If, on the other hand, the appeal is from such an order or judgment as that he could in no event recover a less favorable judgment, and that he incurs no hazard of ever receiving less than the judgment already collected by him, we see no objection to the prosecution of Ms appeal.”
Now, testing the present case by that rule, it is clear that appellant has waived his right to prosecute 'an appeal from the judgment in his favor. The whole amount of his fee was in controversy, and there was evidence tending to fix it at an amount much less than he recovered below, or much more than he recovered. If the judgment should be reversed, and the amount had not already been paid to Mm, he would take the hazard of recovering less, but since he has accepted the amount tendered, he has cut off the right of the appellees to test his right, in another trial, to recover that amount. It follows that the appeal must be dismissed, and it is so ordered.
Smith, J., not participating.
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Wood, J.,
(after stating the facts). The only question presented by this appeal is whether or not appellee had the right to remove the house and machinery from the land.
The reservation in- Darter’s deed- gave him and tenants under him the right to hold as long as Darter lived. When Darter died, the right to hold the land by any one claiming under him was extinguished. Such was the effect of the holding of this court on the former appeal, where we said: “The deed says, ‘as long as we or others holding under us may want to use same for running machinery at said point.’ The last quotation from the deed shows only how long Darter and wife were to have the use of the land free of rent. ‘Others holding under us’ refers to persons holding like tenants.” Appellee under his deed from Darter might enter and hold as long as a tenant of Darter could hold. A tenant of Darter could hold, if such were the contract, as long as Darter lived. It follows therefore that appellee, in entering upon the land and holding it and the houses and machinery in controversy under his contract with Davis and his deed from Darter, was not a trespasser. The contract with Davis gave appellee title to the machinery, etc., mentioned therein, provided these were not attached to the land in such manner as to become realty. The deed from Darter to appellee gave him color of title to the land and the right to possess and use same for the purposes therein mentioned so long as Darter lived.
To justify appellee in removing the house, gin, machinery, etc., from the land it was not necessary for him to show a technical color of title to the freehold. That would only be essential where appellee was seeking pay from the owner of the freehold for -the improvements. It is sufficient to sustain the judgment appealed from if appellee has shown that he was not a trespasser in going upon the land, and that the house, gin, machinery, etc., in controversy were not annexed to the soil in such manner as to become immovable fixtures. The testimony of Berry Field, aside from the deed from Darter and the contract with Davis, shows that appellee was not a trespasser in going upon the land and in placing the machinery, etc., thereon. It is clear from the uncontradicted evidence in the record that appellee made the improvements and put the machinery, etc., on the land in good faith. The only other question then is, were these improvements, machinery, etc., fixtures? While there is no precise definition of a “trade fixture," ■the articles in controversy, under the undisputed evidence, fall clearly within the designation of a “trade fixture,” as that term is used by the authorities in describing property that has been annexed to the freehold for the purpose of carrying on a trade. Trade fixtures “are articles erected or annexed to the realty by the tenant for the purpose of carrying on a trade, and are removable by him during his term, provided the removal does not affect the essential characteristics of the article removed or reduce it to mass of crude materials.” 13 Am. & Eng. Enc. L. (2 ed), p. 642, and cases cited in note; Van Ness v. Pacard, 2 Pet. 137. “Besides being removable on the grounds of public policy, trade fixtures are also removable because, from the nature of the tenure, they are not presumed to have been annexed with the intention of making them permanent additions to the realty.” 19 Cyc. 1065b.
Now, here was property devoted to the business of ginning and milling. Such parts of it as were annexed to the soil were so constructed that they could, “if it became necessary, be put on rollers and taken away.” It was all assessed as personal property, and the evidence shows that it was not the intention of the party who placed it there, nor of the owner of the soil on which it was placed, to have it annexed permanently to the freehold. The intention of the party erecting the structure and placing the machinery in cases of this kind will generally control. Markle v. Stackhouse, 65 Ark. 23; Bemis v. First National Bank, 63 Ark. 628, and cases there cited.
It follows from what we have said that there could not have been any prejudicial error in the -rulings of the court in the giving of instructions. The judgment was right upon the undisputed evidence, and it is therefore affirmed.
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Frauenthal, J.
This was an action instituted by the appellant for divorce. Upon the hearing of the cause the chancery court dismissed the action. The decree recites that the cause was heard upon the depositions of certain witnesses and also upon oral testimony. The oral testimony heard by the chancery court at the trial of the case has not been preserved, and has not been brought into the record by bill of exceptions or otherwise. The appellant has not set out in his abstract the evidence of any of these witnesses or any part thereof. He has simply stated that the depositions of certain named witnesses will be found on certain named pages of the transcript.
The sole ground upon which the appellant relies for a reversal of the decree is that the finding of the chancellor is against the decided preponderance of the evidence. But we are wholly unable to determine whether or not the chancellor’s findings of fact are correct because the oral testimony heard by him has not been properly preserved and brought into the record. “Where the record shows,that the cause in chancery was heard upon oral evidence, and such evidence is not brought into the record by bill of exceptions or otherwise, and there is nothing op the face of the record to show that the court erred, it will be presumed that the decree is correct.” Barringer v. Bratcher, 90 Ark. 214; Murphy v. Citizens’ Bank, 84 Ark. 100.
And where the appellant seeks to reverse the decree of the ’chancery court upon the ground that it is clearly against the preponderance of the evidence, and fails to set out the evidence in his abstract, we shall indulge the presumption that the findings of the chancellor are correct, and accordingly affirm the decree. Nunn v. Lynch, 89 Ark. 41; Jett v. Crittenden, 89 Ark. 349; Eddy Hotel Co. v. Ford, 90 Ark. 393.
The decree is affirmed.
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Hart, J.
This is an action of replevin instituted in the circuit court by L. A. Smith against S. M. Williams to recover possession of a mare valued at $125.
The defendant denied that plaintiff had any title to the ■mare, and in addition set up title in himself under the estray laws. There was a trial before a jury and a verdict for the defendant. From the judgment rendered the plaintiff has appealed to this court.
He first contends that the defendant did not comply with section 7852 of Kirby’s Digest by exhibiting the mare in the stray pen on the first day of the next term of the circuit court of his county; and that therefore defendant acquired no title to the mare in controversy by reason of the estray laws.
■ The defendants admit (and properly so) that plaintiff is right in this contention. Conditt v. Holden, 92 Ark. 618.
As stated by the defendant, the verdict being for him, the only question for our determination is, does the evidence support the verdict? We think not. The undisputed evidence shows that the mare belonged to the plaintiff. The plaintiff and one other witness positively identified the mare as belonging to him. They identified her by brand, color and otherwise. It would do no good to set forth their testimony. It is sufficient to say that it was not contradicted.
The judgment will therefore be reversed, and the cause remanded for a new trial.
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Hart, J.,
(after stating the facts). The question .raised by the appeal is, do the provisions of the anti-trust act apply to the fixing of rates for services performed by railroads in carrying freight and passengers ?
Section 1 of the act is as follows:
“Section 1. Any corporation organized under the laws of this or any other State or country, ,and transacting or conducting any kind of business in this State, or any partnership or individual, or other association, or persons whatsoever, who are now, or shall hereafter create, enter into, become a member of, or a party to, any pool, trust, agreement, combination, confederation or understanding, whether the same is made in this State, or elsewhere, with any other corporation, partnership, individual, or any other person or association of'persons, to regulate or fix either in this State or elsewhere the price of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning or tornado, or to maintain said price, when so regulated or fixed, or who are now, or shall hereafter enter into, become a member of or a party to any pool, agreement, contract, combination, association or confederation, whether made in this State or elsewhere, to fix or limit in this State or elsewhere the amount or quantity of any article of manufacture, mechanism, merchandise, commodity, convenience, repair, any product of mining, or any article or thing whatsoever, or the price or premium to be paid for insuring property against loss or damage by fire, lightning, storm, cyclone, tornado, or any other kind of policy issued by any corporation, partnership, individual, or association of persons aforesaid, shall be deemed and adjudged guilty of a conspiracy to defraud, and be subject to the penalties as provided by this act.”
Section 2 of the act prescribes the penalty. Section 3 provides for the forfeiture of corporate rights and franchises of corporations that violate its provisions. Acts of 1905, p. 1.
Of course, á railroad corporation operating a line of railroad in this State is a corporation conducting a business in the State, but, as above stated, the question is, does such corporation violate the provisions of the act by entering into an agreement with other railroad corporations to fix the value of the services of railro&ds in the carriage of freight and passengers? Counsel for the State do not contend that freight or passenger rates are articles of merchandise, manufacture, mechanism, commodity, convenience or repair, or that they are products of mining; but they do contend that the words “or any article or thing whatsoever” include passenger and freight rates. We can not agree with their contention. This' is a plain case for the application of the doctrine of ejusdem generis.
The rule is “when general words follow an enumeration of particular things, such words must be held to include only such things or objects as are of the same kind as those specifically enumerated.” 2 Lewis, Sutherland on Statutory Construction (2 ed.), § 422.
As stated by this court, in the case of Hempstead County v. Harkness, 73 Ark. 600: “It is an old and settled rule of statutory construction which confines the meaning of additional and general descriptive words to the class to which the preceding specific words belong.” See also Eastern Arkansas Hedge Fence Co. v. Tanner, 67 Ark. 156; St. Louis I. M. & S. Ry. Co. v. Love, 74 Ark. 528. The Legislature has delegated to the State Railroad Commission the power to fix rates for the transportation of freight and passengers. Many other acts having for their object the regulation of railroads have been enacted, and severe penalties prescribed to secure their enforcement. The questions affecting transportation by common carriers have always- been the subject of separate and independent legislation in this State. Congress has created a commission to investigate and act upon complaints made in regard to rates affecting interstate commerce. These facts were matters of common knowledge at the time the “anti-trust act” of 1905 was enacted. The act does not purport to deal with the subject of transportation by common carriers, or the fixing of rates therefor, as do the acts in the cases cited by counsel for the State to sustain their contention. Counsel for the State rely chiefly upon the decisions .in the cases of State v. Missouri, K. & T. Ry. Co. (Texas), 91 S. W. 214, and United States v. Trans-Missouri Freight Association, 166 U. S. 290.
In the first of these cases, the Supreme Court of Texas was construing the act of 1903 passed by the Legislature of that State. The court said: “The act of 1903 expressly deals with combinations affecting transportation, competition therein, and the cost thereof,” and the decision was based on that fact. An examination of the statute shows that it dealt directly and in express terms with the subject. The Supreme Court of the United States had under consideration the* “Sherman Antitrust Act.” The court said: ‘“Neither is the statute, in- our judgment, so uncertain in its meaning, or its language so vague, that it ought not to be held applicable to railroads. It prohibits contracts, .combinations, etc., in restraint of trade or commerce, Transporting commodities is commerce, and, if from one State to another, it is interstate commerce.” Hence it will be seen that these authorities recognize the rule of construction above announced, but did not apply it for the reason that the statutes under consideration, bj' their express terms, undertook to deal with the subject of transportation by common carriers and the fixing of rates therefor.
As above stated, our “anti-trust act” does not in express terms attempt to deal with the question of transportation by railroads or other carriers, or the fixing of rates therefor. It would be a violent presumption, indeed, to say that the Legislature in this vague and indefinite manner attempted to deal with a subject which' so vitally affects the welfare of the people, and a proper solution of which has ever been one of the greatest con cern and complexity. It seems evident to us that the framers of the act intended that the "words “or any article or thing whatsoever” should take their meaning from the things specifically mentioned before, and that, when so construed, the allegations of the complaint do not constitute a violation of the terms of the act. State v. Williams, 120 S. W. (Mo. Sup Ct.), 740; In re Attorney General, no N. Y. Supp. 186; Rohlf v. Kasemeier, 118 N. W (Iowa), 276.
The judgment will therefore be affirmed.
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McCulloch, C. J.
Daniel W. Harris arid each of his four .brothers instituted separate actions against appellee, Caviness, to recover damages for alleged slanderous words spoken of any concerning them by the latter. After issue joined, the court entered the following order of dismissal in each case (omitting •caption) :
“Comes the plaintiff, D. W. Harris, by his attorney, Jo Johnson, and the defendant, Bob Caviness, by his attorney, T. N. Sanford, and upon motion of the defendant this cause is, after due consideration, by the court dismissed upon the settlement and compromise of the parties to the action. It is further ordered by the court that each party pay all costs incurred by him herein, to which action of the court in dismissing said cause the plaintiff at the time excepts, and plaintiff is given ninety days in which to prepare and file bill of exceptions-herein.”
The bill of exceptions was signed by the judge within the time allowed, and filed with the clerk. The only question presented is whether or not the order of dismissal as it appears-on the record should be affirmed. The compromise and settlement referred to in the order was one alleged to have been made between the parties after the commencement of the several actions, and not before.
Counsel for appellants argue that the case should have gone to a jury on the question whether or not the cases had been settled, treating this as a matter in defense which arose after the action had been commenced and the pleadings made up. Without deciding that it should have gone to a jury upon the request of either party, it is sufficient for the purpose of disposing of these cases to say that neither party asked that it be so submitted. The court found, on testimony legally sufficient to sustain the finding, that the cases were compromised and settled subsequent to the commencement thereof. yVe are not at liberty to determine where the preponderance of the evidence lies, for it is our province only to ascertain whether or not there is, substantial evidence in support of the finding of the trial court. The court made no written findings further than is recited in the above copied order, but those recitals necessarily imply a finding that the -cases had been compromised and settled.
Appellants objected only that an oral motion be considered, and moved the court to require appellees to reduce their motion to writing. When this request was denied, they proceeded with the trial before the court without further objection, and testimony was introduced on each side in support of and in -opposition to the motion. As the oral motion was specific in its terms, and as the court treated it as being controverted, there was no prejudicial error in the court’s refusing to require appellees to reduce it to writing. There is therefore nothing involved here except the question of fact, which must be treated as settled by the finding of the court.
Judgment affirmed.
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Wood, J.,
(after stating the facts). “By statute, as well as by common law, the father (unless incompetent or unfit) is ■the natural guardian, and entitled to the custody, care and education of his minor children.” Boles v. Dickson, 32 Ark. 96; sec. 3757, Kirby’s Digest; 21 Enc. Law, 1036, 1037.
In Verser v. Ford, 37 Ark. 30, this court, through Judge Eakin, said: “Any system of jurisprudence which would enable the courts in their discretion, and with a view solely to fhe child’s best interests, to take from him that right, and interfere with those duties, would be intolerably tyrannical, as well as utopian.” Even as between the father and the mother, the custody in the father is generally allowed unless the child, on account of tender years, or being a female, imperatively requires, for its -well being, that' attention which a mother’s love and care alone can supply. But, as between the parent and grandparent, or any one else, the law prefers the former unless the parent is incompetent or unfit, because of his or her poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of the child. It must be an exceptional case where the evidence shows such lack of financial ability or such delinquencies in character oh the part of fhe father as to imperil the present and future welfare of ms cmkt before a court of chancery will deprive him of the duty and the privilege of maintaining and educating his child, and of the pleasure of its companionship. See Wofford v. Clark, 82 Ark. 461.
There -may be other exceptional cases where the father, by reason of indifference to the welfare of his child and the lack of proper affection for it, has voluntarily relinquished these parental obligations, privileges and pleasures to other hands for so long that the court will refuse to disturb the associations and environments which his own conduct has produced, and will leave in statu quo those whom he has thus permitted to stand in loco parentis. Coulter v. Sypert, 78 Ark. 193.
But the evidence in this case fails to discover any of these exceptional cases. As was said by us in Wofford v. Clark, supra: “While great weight should be given to the decree of the chancellor, where he sees the parties and is more cognizant of the local surroundings than this court, we are nevertheless of the opinion that the decided preponderance of the evidence shows that his decree is erroneous.” For here the father has all along manifested an affection for his child and a desire to have its custody. When the decree of divorce was obtained, the court doubtless correctly awarded the temporary custody of the child, because it was a female and of tender years, to its mother. But when the mother married again and left the child in the hands of her grandparents, and left the county, as the evidence tends'to show, the appellant was warranted in making application for the custody of his child. The court.had not awarded the child to her grandparents, but to her mother; and, as between them and the father, the latter shows the better right. He shows that he was financially able to provide for his child. There is no showing in the record that he is incompetent or unfit to discharge the duties which the law enjoins upon him as the natural guardian of his daughter. Since the court has seen proper to take the custody of the child from the mother, we áre of the opinion that under the evidence adduced it should have next bestowed it, at his request, upon the father. The grandfather, for aught that appears, was not asking it, and there is no evidence to show that he was better able, financially or otherwise, to provide for the child. Nor does the evidence show that these grandparents were lavishing such wealth of attention and affection upon this child as to render it inhuman, either to them or the child, to take her away from them and give her to her father.
The decree is therefore reversed, and the cause is remanded with directions to enter a decree awarding the custody of the child to the appellant.
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Battle, J.
On the 24th day of June, 1892, the State of Arkansas donated to James P. Pearson certain lands. On the 27th day of July, 1895, he died intestate, leaving Francis Pearson, his widow, and Sherman Pearson, his only heir, him surviving. On the 30th day of July, 1895, his widow made proof of the performance of the conditions of the donation as required by the statutes, and the Commissioner of State Lands conveyed the land to her. She married William Goodwyn, and died intestate on the 23 d day of February, 1898, leaving Sherman Pearson and Joe Goodwyn her only heirs surviving her.
The only question in the case presented to us for decision is, was the widow intitled to' the lands donated on the death of her husband ? The circuit court decided that she was.
Section 4832 of Kirby’s Digest provides: “In case the donee should die before the time herein required to submit final proof of the right to perfect, the same shall extend first to the widow of the donee, and, if she is dead, then to the children of such donee, and, should they be minors, their duly appointed guardian or administrator of the estate" of the deceased donee may make such final proof for the benefit of such minor heirs, and, should there be neither widow nor children surviving such donee, such right shall in such case descend to the father of the donee, and, if he be dead, then to the mother of such donee; and, if she be dead, then to the brothers and sisters of the deceased donee, any adult of which shall be competent to make final proof,” etc.
Section 4819 provides that the proof required by law shall be filed in the office of the Commissioner of State Lands within sixty days from the expiration of three years from the date of actual settlement. Within that time and after the death of the donee his widow made the final proof in this case and was entitled to a deed to the land from the State in her own right and as her individual property. McCracken v. Sisk, 91 Ark. 452.
Judgment affirmed.
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McCulloch, C. J.
Appellants, N. L. C. Baker and others, instituted an action in the circuit court of Lawrence County against appellee, C. H. Martin, to recover a tract of land. The answer of appellee put in issue all the allegations of the complaint as to the title to the land, and also pleaded adverse possession for seven years. The case was heard by the court sitting as a jury on an agreed statement of facts, and the court made a finding in favor of appellee, except as to some of the plaintiffs who were exempt from the bar of the statute of limitations by reason of coverture and infancy, and judgment was entered accordingly. This judgment was rendered on March 11, 1909, and a motion for new trial was filed on the same day, but the record does not show that the motion was ever presented to or passed on by the court.
N. L. C. Baker and the other unsuccessful plaintiffs presented to the trial judge on that day their bill of exceptions, which was signed by the judge and filed; and in October, 1909, they prayed an appeal, which was granted by the clerk of this court. The bill of exceptions contains a recital to the effect that the motion for new trial had been overruled by the court, and exceptions to, that ruling saved.
During the September term, 1909, of the circuit court, appellants filed a motion in that court alleging that during the March term they presented their motion for a new trial to the court, and that the court overruled same, and also made an order allowing them to present their bill of exceptions within thirty days; and they prayed that said order of court • overruling said motion for new trial, and granting time for filing bill of exceptions, be entered then as of the March term. Upon a hearing of the motion, the court found that the motion for new trial had not been overruled, and that no such orders had ever been pronounced .by the court, and the court overruled the motion for a nunc fro tunc entry. Appellants prayed an appeal from that decision.
The judgment of the circuit court is responsive to the pleadings, and is within the issues presented thereby, and, in the absence of á bill of exceptions, we cannot review the action of the circuit court in its finding of fact, no error appearing on the face of the judgment. Smith v. Hollis, 46 Ark. 17. Neither can we review the judgment where the motion for new trial was never presented to the court for its action thereon. Young v. King, 33 Ark. 745; Kearney v. Moose, 37 Ark. 37.
The recitals of the bill of exceptions can not be looked to in order to ascertain whether or not the motion for new trial has been presented to and overruled ¡by the court. An order overruling a motion for new trial is one which should appear on the records of the court. Carpenter v. Dressier, 76 Ark. 400. That being the appropriate place for it to appear, it has no place in a bill of exceptions. The office of a bill of exceptions is to bring on the record only things which are not properly matters of record. It is not proper to embody therein things which properly belong on the record, such as the judgment of the court, the order overruling motion for new trial, or order granting an appeal. Anthony v. Brooks, 31 Ark. 725.
Error of the court is assigned in refusing to postpone the hearing of the motion to amend the record. Appellants were represented by two attorneys, one residing at Walnut Ridge and the other at Van Burén, Arkansas. The motion was presented to the court by the attorney residing at Walnut Ridge, and he moved for a postponement until the next term of the court in order to procure the attendance of the other attorney, who, he alleged, would testify that the motion for new, trial was presented to the court and overruled. No reason was stated why the attorney was not present, and no diligence was shown to obtain his attendance. The matter of continuance was one within the discretion of the court, and no abuse of that discretion is shown.
Judgment affirmed.
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Hart, J.,
(after stating the facts). It is insisted by counsel for appellant that the evidence did not warrant the verdict of the jury.
In discussing the principle of law applicable to cases of this sort, in Grand Lodge of A. O. U. W. v. Banister, 80 Ark. 190, the court said: “In the first place, there is a presumption against suicide or death by any other unlawful act, and this presumption arises even where it is shown by proof that death was sell-inflicted — it is presumed to have been accidental until the contrary is made to appear. This rule is founded upon the natural human instinct or inclination of self-preservation, which renders self-destruction an improbability with a rational being.” To the same effect, see Clemens v. Royal Neighbors of America, 8 Am. & Eng. Ann. Cases, 1111, and case note; Lindahl v. Supreme Court Independent Order of Foresters, 8 L. R. A. (N. S.) 916; Tackman v. Brotherhood of American Yeomen, 8 L. R. A. (N. S.) 974.
Hence we see that if reasonable men, viewing the facts, which are undisputed, might come to different conclusions as to whether the deceased committed suicide, then the facts, although undisputed, were properly submitted to the jury.
A careful consideration of the facts and circumstances adduced in evidence irresistibly lead us to the conclusion that the death of Watt was by suicide. All the physical facts point that way, and they are inconsistent with any other reasonable theory. It is conceded that all the circumstances point with certainty to the conclusion that Watt shot himself; but counsel for appellee claim that the jury might have found that it was accidental, and rely on the Banister case cited supra as sustaining their contention that the court properly left it to the jury to 'decide whether his death resulted from accident or suicide.
We are of the opinion that the facts in the case at bar tending to establish suicide are much stronger than in the Banister case. There it was shown that Banister was very nervous and excitable, always being in fear of burglars -when aroused from sleep. The killing occurred at night after he had retired and from the physical facts it was not impossible that he might have inflicted the wound by accident in restlessly tossing ■ in slumber or upon awakening suddenly and in affright. He was shot in the temple. He had never talked of killing himself. Here the facts are essentially different. Watt had about one year previous to his death attempted to kill himself. On the very day of the unfortunate occurrence, he had at 3 or 4 o’clock in the morning, a time when people usually sleep soundest, talked with his wife about the self-destruction of both her and himself. After she had risen next morning, and before he had left his bed, she heard the click of his pistol. The fact that they looked at each steadily for a minute -and said nothing, as she says they did do, indicates that his later remark that he was changing his pistol from one pillow to another was a subterfuge. If that was his purpose, there was no occasion for the pistol to click, and no occasion for them to look each other steadily in the eye without saying anything. He shortly after-wards arose and went down town, carrying the pistol with him. While she says he was cheerful when he returned at noon, he was still talking of death. He referred to the death of his friend. Then the immediate facts attending his death of themselves shut out the theory of accidental shooting. He was found lying on his back stretched out on the bed, and there appeared no disarrangement of the bed clothes. His undershirt was on fire where the bullet entered his body in the region of his heart. It went through his body on down through .the mattress and on to the floor, and its course could be traced from the position in which he lay. The condition of the body when it was found and the cburse of the bullet, coupled with his recent statements and acts in regard to self-destruction, are conditions and circumstances inconsistent with any other reasonable cause of death than that of suicide.
The judgment will therefore be reversed, and the cause dismissed.
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Battle, J.
Mary Manchester, Nettie Manchester and Jessie Manchester, three sisters, for cause of action against Oscar Goeswich, state: That J. S. Manchester departed this life some time in 1898, intestate, leaving the plaintiffs his only children and heirs surviving; that at the time of his death he was the owner of an undivided three-fourths interest in certain land; that the defendant, Oscar Goeswich, claims to be the owner of the land under the following chain of title.
“1st. By a trust deed executed thereon by J. S- Manchester, January 10, 1896, to W. J. Bowen, trustee, to secure an in debtedness mentioned therein to J. H. Hale for the sum of $175 and 10 per cent, interest thereon, due and payable December 1, 1896. * * *
“2d. A sale of said land January 28, 1899, 'by said W. J. Bowen, trustee, to John A. Lovewell, to satisfy the indebtedness described and set forth in the trust deed.
“3d. A deed June 28, 1900, by said W. J. Bowen, trustee, purporting to convey said land to John A. Bovewell in pursuance of the sale. * * *
“4th. A deed January 17, 190 x, by John A. Bovewell, purporting to convey the land to the defendant. * * *
“That the trust deed provided that a sale thereunder must be advertised at least twenty days, and in truth and in fact the sale was not advertised for that time. That the land was not appraised before the sale, or, if appraised at all, the appraisers were not appointed in writing; did not qualify by taking the oath and making a report in writing, and they did not go and view the premises. That the land was, at the time of the sale, worth $1,000, but it was sold to John A. Bovewell for the sum of $200.50, which was a shockingly inadequate consideration for the land. That the defendant has sold, cut and removed from the land $1,500 worth of good and merchantable timber, and has received and collected thereon $1,000 in rents and profits.
“Wherefore plaintiffs pray that the sale be set aside and annulled, that the plaintiffs may have a decree against the defendant for timber cut and removed from the land, and the rents and profits thereon,” etc.
The defendant answered and admitted the death of J. S. Manchester, and denied that he was the owner of the land at the time of his death; admitted that the trust deed provided that the sale must be advertised at least twenty days, but denied that the sale was not advertised for that time; denied that the land was at the time of the sale worth $1,000; admitted that it was sold to John A. Bovewell for the sum of $200.50; and denied that it was a shockingly inadequate price, for the land; denied that he has sold, cut and removed from the land $1,500 worth, or any other amount, of good merchantable timber, or that he has received and collected thereon in rents and profits the amount of $1,000, or any other sum.
“Further answering the complaint, the defendant stated that the trust deed executed by J. S. Manchester for the benefit of J. H. Fíale, and described in the complaint, does not purport to convey but one hundred and one and one-fourth acres of land, the same being the interest of the grantor of the trust deed in the estate of George Manchester, deceased, and simply purports to convey the undivided three-fourths interest of said Manchester in and to the southeast quarter of section 5, less twenty-five acres formerly conveyed to Eliza Yarboro, and the defendant alleged that, since his purchase of the interest of George Manchester under the deed set out in the complaint, he has purchased, and is the owner in fee simple of, the other undivided fourth of said one-fourth section, less the twenty-five acres previously sold.
“Defendant further stated that, from the recitals in the deed for the trustee, W. J. Bowen to John A. Eovewell, it appears that the law was complied with, and that the sale was regular in all respects, and that he believes that the sale was regular and in accordance with the law, and he further stated that the land was not worth more than the price bid therefor by John A. Eovewell at the date of the sale. That he purchased the land about two years after the sale by the trustee, and when land had enhanced in value, and, after Eovewell had made valuable improvements thereon, he paid Lovewell as the consideration therefor the sum of $500; that he made the purchase in absolute good faith, and believing that the title of Eovewell was good, and believing that he was getting a perfect title thereto, and without any notice of any claim by plaintiffs.”
The court, having heard the evidence adduced by the parties, found that the 'defendant was a bona fide purchaser for value without notice of the irregularities of the trustee’s sale, and was therefore not bound thereby, and dismissed the complaint for want of equity; and the plaintiffs appealed.
The land in controversy, consisting of about one hundred and one acres, was conveyed by J. S. Manchester to W. J. Bowen, in trust to secure the payment of an indebtedness described in the pleadings. The deed was executed on the 10th day of January, 1896. The debt secured by the deed not being paid, the land was appraised by three appraisers, T. J. Eowery. W. A. Hall and John Jones, on the 28th day of January, 1899, at $300, and sold on that day by the trustee at public sale to John A. Lovewell for $200.50. The land, not having been redeemed, was conveyed to Lovewell by the trustee, W. J. Bowen, on the 28th day of June, 1900; and Lovewell, on the 17th day of January, 1901, sold the land to the defendant for $500, which he paid, and Lovewell conveyed the land to him. Plaintiffs attack the good faith of this sale and conveyance, and seek to set it aside on account of irregularities in the sale by the trustee to Lovewell.
“The essential elements,” said Pomeroy on Equity Jurisprudence, “which constitute a bona fide purchase are three — a valuable consideration, the absence of notice, and the presence of good faith.” (2 Pomeroy’s Eq. Jur. (3 ed.), § 745). The court found that the defendant was a bona fide purchaser for value without notice of the irregularities of the trustee’s sale. The evidence as to the consideration is conflicting, but we think that the preponderance of it sustains the findings of the chancellor. It being shown that the purchase was made for a valuable consideration, the burden of proving notice, in cases like this, devolves on the plaintiffs. 2 White & Tudor’s Leading Cases in Equity, 49, 99, 105. Without notice the good faith of the defendant is without question. He purchased the land for a home, and paid full value for it.
The appraisers were not appointed in writing, did not take the oath prescribed by law, did not view the land before appraising it, and made no report in writing of their appraisement. The trust deed under which the land was sold provides that, in the event of sale, the trustee’s “deed of conveyance shall be taken as prima facie true.” The trustee’s deed recites that the land was previously appraised as the law provides, and that the sum for which it sold was two-thirds of its appraised value. These recitals are prima facie true, and were a sufficient basis upon which the defendant could act, in the absence of notice to him to the contrary. But plaintiffs say that he testified that he did not rely on the recitals. This is true, but he did not say, and there is no proof, that he had notice or evidence to the contrary. He relied upon the trustee’s deed in full faith of its sufficiency to convey title, and plaintiffs have failed to discharge the burden resting upon them by showing that he did not act in good faith, because he had notice at the time he purchased of the irregularities of the sale by trustee.
Decree affirmed.
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McCulloch, C. J.
Defendant, Frank Quertermous, was indicted by the grand jury of Arkansas County under the following statute: “Every person who, with the intent to defraud, shall make any false entry or shall falsely alter any entry made in any book of accounts by any banking corporation within this State, or in any book kept by such corporation or its officers, by which any pecuniary obligation, claim or credit shall be, or purport to be, discharged, diminished, increased, created or in any manner affected, shall, on conviction therof, be punished as for forgery.” Kirby’s Dig., § 1726.
The indictment is as follows: “The grand jury of Arkansas County, in the name and by the authority of the State of Arkansas, accuse Frank Quertermous of the crime of falsely altering bank book accounts, committed as follows, towit: The said Frank Quertermous, in the county and State aforesaid, on the thirteenth day of July, A. D. 1908, then and there being over sixteen years, and being the cashier of the Bank of Humphrey, a corporation organized and incorporated under the laws of the State of Arkansas, and doing business at Humphrey, Arkansas County, Arkansas, and having in his possession, and having come into his possession as said cashier aforesaid, the sum of two thousand, two hundred and seventy-two dollars and twenty-nine cents, of gold, silver and United States currency, a more "particular description to the grand jury unknown; said money being the personal property of the common school fund of Arkansas County, Arkansas, and the said money having been deposited by Joseph Ireland, the duly acting and qualified treasurer of said county, for safekeeping, and the said sum of money having been entered on the books of accounts to the credit of Joseph Ireland, treasurer aforesaid; he, the said. Frank Quertermous, as cashier aforesaid, and having in his custody the book accounts of said bank containing the account of the said Joseph Ireland’s deposit, as aforesaid, of said money aforesaid, did feloniously and unlawfully alter and change, with the intent to defraud the said Joseph Ireland and his bondsmen and the common school fund of Arkansas County, Arkansas, the books of accounts of said bank kept by said corporation, said alteration and change having been made feloniously and unlawfully in said book accounts aforesaid by the said Frank Quertermous; said felonious, fraudulent changes and alterations aforesaid in said books aforesaid were made in such a way and manner as to diminish and make said account to appear as same had been discharged, against the peace and dignity of the State of Arkansas.”
Defendant demurred to the indictment on the following grounds: First, that the indictment charges more than one offense; second, that the indictment is uncertain in its allegations as to the offense charged; third, that the facts set forth do not constitute a public offense. In . support of the third ground of demurrer, which we will dispose of first, it is contended that the indictment fails to state that the Bank of Humphrey was a banking corporation, and on account of this omission no public offense is charged. We are of the opinion, however, that, construing the language of the indictment in its usual acceptation, in accordance with the liberal policy of our statute, it does allege that the Bank of Humphrey was a banking corporation. State v. Peyton, 93 Ark. 406; Harding v. State, 94 Ark. 65.
It alleges that defendant was “the cashier of the Bank of Humphrey, a corporation organized and incorporated under the laws of the State of Arkansas, and doing business at Humphrey, Arkansas County, Arkansas;” that, “as cashier aforesaid, and having in his custody the book accounts of said bank,” etc., he did feloniously, etc., alter and change “the books of accounts of said bank kept by said corporation.” This language leaves no escape from the conclusion that the Bank of Humphrey is alleged to be a banking corporation. The case of Gage v. State, 67 Ark. 308, is relied on by counsel for defendant in support of their contention, but we think the descriptive language- in the present indictment is more definite than in the Gage case, and we are not disposed to further extend the rule announced in that case.
The determination of the question presented by the other two grounds for demurrer calls for an. analysis of the statute under which the indictment is preferred. The gravamen of the offense is the falsification of the books of accounts or any book kept by a banking corporation by which “any pecuniary obligation, claim or credit shall be, or purport to be, discharged, diminished, increased, created or in any manner affected.” The statute does not prescribe two offenses. Nor does the statute prescribe two modes in which the offense may be committed, ,for the false alteration of an entry in the books, by erasure and substitution, or otherwise, which works a change in the accounts, necessarily constitutes a false entry in effect. An entry can not be altered without the act resulting in a new entry, so the expression in the statute “falsely alter any entry” is embraced in the other expression, “make any false entry,” and either -or both of these expressions may properly be employed in an indictment. Proof of the making of a new false entry which purports to discharge, diminish, increase or otherwise affect an obligation, claim or credit is sufficient to support a charge of false alteration of an entry in a book of accounts, and proof of a false alteration, by erasure or otherwise, of an entry previously made is. sufficient to support a charge of making a false entry.
The only authority bearing directly on the question which has been brought to our attention, or which we can discover in the books, is an opinion by the late Judge Thayer construing a statute of the United States wrhich makes it a misdemeanor for an officer or agent of any national bank to make any false, entry in any book, report or statement belonging to the bank. He said: “When a person makes an entry in books of account, the act may involve, and oftentimes does involve, an alteration of an entry previously madé; but the act does not lose its character on that account. An entry is made, notwithstanding the fact that a previous entry is altered. Adopting the definition before stated of the words ‘entry’ and ‘false entry,’ it appears to me that a person makes a false entry, within the meaning of the statute, who erases one or more figures from a number already written in a book of account, and writes other figures in lieu thereof, so that the fact intended to be recorded is falsified. I can see no substantial difference between erasing certain figures of a number and writing different ones in their place, and making an entry every part of which is in the writer’s handwriting. The act in question, as I conceive, may be correctly termed either the alteration of an entry or the making of an entry. It may appropriately be said of such ah act that an ‘entry has been made’ rather than ‘altered,’ because a new number is the result of the act, and for the reason that a new record is created which bears different testimony as to the fact or transaction intended to be authenticated. If attention is paid to the purpose which underlies the law under which the indictment is framed, there is ample ground to base an inference that the construction above given is in accordance with the legislative intent. The statute was obviously enacted to prevent bank officials and employees from concealing the actual financial condition of national banking associations by means of a falsification of any of the books of account or statements or reports which they are by law required to make.”
It is also contended that the indictment is fatally defective in not alleging that the credit on the account of Ireland had not in fact been diminished or discharged according to the purport of the entry. The allegation that there was a deposit of the sum of money named by said Ireland, and an entry therof on the books of the bank, and that said entry had been falsely altered and changed so as to purport to diminish and discharge the credit, was equivalent to a direct allegation that the credit had not in fact been diminished or discharged. Otherwise the alteration would not have been a false one.
Our conclusion is that the indictment was sufficient, and that the demurrer was properly overruled.
The following are the facts proved at the trial. Defendant was cashier of the Bank of Humphrey, a corporation engaged in the banking business at Humphrey, Aidcansas County, Arkansas. J. M. Ireland was treasurer of Arkansas County, and deposited some of the county funds in said bank. On July 13, 1908, there was a balance of $2,272.29 of said public fund in the bank standing as a credit on the books in the name of Ireland as county treasurer. The bank was then hopelessly insolvent, and had ceased to transact business several days prior to that time, though no insolvency proceedings had been begun. It does not appear when the bank became insolvent, but it was known to be so as early as June, 1908. On June ix, 1908, the defendant caused his wife to convey to Ireland some lots in the town of Humphrey on which several buildings were situated. The conveyance was in absolute form, reciting a cash consideration of $2,000, but it was in fact executed as security for Ireland’s deposit in the bank, and the latter gave defendant a writing showing that any surplus realized from the sale of the property over and above the deposit was to be returned to defendant. There was then an outstanding mortgage lien of $1,000 on the property. In April, 1909, Ireland sold the property for $3,000, which amount, after deducting the expenses and discharging said .prior mortgage lien, netted him the sum of $1,541, as a credit on the amount due him on his bank deposit, and left a balance of $731.29 still due him. This had never been paid at the time of the trial. All of the witnesses who testified on the subject fixed the fair market value of the property conveyed to Ireland at $4,000 or more at the time of the conveyance.
Defendant tendered his resignation early in July, 1908, and J. M. Acklin was elected as his successor; but the latter did not assume charge as cashier till July 13, defendant remaining in charge of the books and retaining the keys to the building, etc. The doors of the bank were closed on July 6, and the transaction of business ceased; but a meeting of the directors was held in the office of the bank on July 13, and some time during that meeting, by direction of defendant, the account of Ireland as treasurer was charged with $2,272.29, thus balancing that account and extinguishing the credit, and a like, amount was credited to the account of defendant. These changes in the account were made without Ireland’s knowledge or consent, and must therefore be treated as false entries, for the effect of making them was to purport to discharge the credit standing in Ireland’s name on the books of the bank for his deposits. At that time there was a balance of $873.24 standing to the credit of defendant on the books, which was augmented by the credit of the Ireland balance; but he owed the bank several stock notes, aggregating the sum of $4,004.06. The authorized capital stock of the bank was $25,000, all of which had been subscribed, but only $1,000 had been actually paid, the remainder being evidenced by the notes of the stockholders.
There is a conflict in the testimony concerning the above-named entries changing the Ireland account. Defendant denies that he made or authorized the entries, and says that the same was done by some one else upon instructions of the directors, who did this on the theory that defendant had conveyed property sufficient in value to discharge the Ireland deposit, and was entitled to have a credit on the books to that extent. There is testimony to the effect that the entries were made by the assistant cashier upon defendant’s instructions, but that the directors consented to the change when defendant claimed the right to have the Ireland deposit placed to his credit. The jury found against defendant, and it must be treated as settled by the verdict that he caused the false entries to be made, purporting to discharge Ireland’s credit on the books of the bank without the latter’s knowledge or consent. It is immaterial, so far as the guilt or innocence of defendant is concerned, whether or not the directors consented to the change of the account.
It is earnestly insisted by counsel, however, that there is no evidence of any intent on defendant’s part to defraud Ireland by making the entries. They contend that, as all the witnesses testify that the fair market value of the property conveyed to Ireland, after deducting the prior mortgage debt, exceeded the amount of his credit on the books of the bank, the evidence on the point is undisputed, and that no fraudulent intent on de-' fendant’s part could have existed under those circumstances.
It does seem to us improbable that, after defendant had voluntarily caused his wife to convey to Ireland property of sufficient value apparently, and which the witnesses say was in fact of sufficient value, to discharge the debt, he had any intent to defraud Ireland in transferring the deposit credit from Ireland’s account to his own. But we cannot say that .the jury were wholly unwarranted by the evidence in finding the existence of an intent to defraud. Ireland’s credit was not discharged by the conveyance of the property, and defendant’s own admissions show that he did not so understand it. The bank still owed Ireland as treasurer a balance on his deposit of public funds, and it stood to his credit on the books of the bank. His remedy against the bank for the recovery of the amount, and whatever remedies he may have had to require payment of the stock notes, including those of defendant, were not impaired by acceptance of the conveyance from appellant’s wife; but the false entries purported to discharge his credits on the books of the bank, and thus purported to cut off any other remedy he may have had for the collection of his debt. Though the property conveyed appeared to be sufficient in value to fully satisfy Ireland’s claim, he did not accept the conveyance in satisfaction, and it was necessarily a matter of some speculation whether or not the sale of the property would satisfy it. Defendant had no right to treat the conveyance as a satisfaction of the claim when it had not in fact been accepted as such, and to assume the authority of transferring to his own account the credit of Ireland on the books of the bank without the latter’s consent. It was within the province of the jury to find, from all the circumstances, that the transfer was made by defendant with intent to defraud Ireland. There being evidence from which the jury could find the existence of an intent to defraud, it is not within our province to disturb the verdict.
The case was submitted to the jury on the following instructions given at the request of counsel for the State:
“i. If you find from the evidence that the defendant was cashier of the Bank of Humphrey, or assumed to act as such cashier, and that the book of acounts of said bank showed a true credit to the account of Joseph Ireland as treasurer, and that the defendant, in Arkansas County, within three years next before the finding of this indictment, and on or before the 13th day of July, 1908, the defendant procured or caused said account to be altered, or changed, so that he should have credit for same, and that the account of said Ireland as treasurer should be diminished or closed thereby, and that said alteration or change was false and made with the intent'to defraud Joseph Ireland as treasurer, or the common school fund of Arkansas County, or the bondsmen of the said Joseph Ireland ás treasurer, you will find the defendant guilty.
“2. It is not necessary that the defendant should have himself falsely changed the account. He would, be guilty if he procured or caused it to be done with the intent to defraud the said Joseph Ireland as treasurer, or his bondsmen, or the common school fund of Arkansas County.
“3. It is no defense that the defendant has made complete or partial settlement of the indebtedness shown by the account, if any. Evidence of such action on his part will only be considered by you in determining the motive of defendant in procuring or causing the account to be altered, if he did procure it to be done. And, even though you may believe that the defendant settled or secured the indebtedness, if any, either wholly or in part, yet if, at the time he caused or procured the alteration to be made (if you find that he caused or procured it), he had the intent to defraud the said Joseph Ireland as treasurer, or his bondsmen, or the common school fund of Arkansas County, and, if said alteration was false, you will convict him.
“4. You are instructed that in determining the intent of the defendant in causing the alteration to be made, if you find that the defendant caused such change in the account or procured it to be done, you may consider the state of the defendant’s individual account with said bank and his indebtedness, if he was indebted, along with all the other facts and circumstances in the case.
“5. You are instructed that the fact that others than the defendant may have consented to, or acquiesced in, or assisted in, said alteration or change of said account is no defense. Even though others may have consented to, or acquiesced in, or assisted in, changing said account, if you find that said account was changed, if the defendant caused or procured said account to be changed, and said change was false and made with intent to defraud the said Ireland as treasurer, or his bondsmen, or the common school fund of Arkansas County, it is your duty to convict the defendant.”
The court also gave the following instructions at the request of defendant:
“2. You cannot convict the defendant unless the State has proved beyond a reasonable doubt that the entry was made with the intent to defraud; and if you find that the entry, even though illegally made, was with an innocent purpose or made under a mistaken idea of the proper method of making the books show the facts, your verdict should be for the defendant.
“6. If you believe from the testimony that the board of directors of the Bank of Humphrey considered the matter of Ireland’s account at the time the entry complained of was made, and then decided that the defendant had assumed the Ireland account and secured it, it was proper, as between the said bank and the defendant, that said bank should be relieved of the payment of the Ireland account; and if you believe that the entry complained of was made to effect that purpose, and with no intent to defraud, even though it was not the proper entry to make for that purpose, the entry would not justify a conviction in this case.”
The third instruction given at the request of the State is objected to on the alleged ground that it misleads the jury in saying that a complete settlement of the indebtedness, even before the alleged alteration, would not be any defense. It was inaccurate to refer in the instruction to a complete settlement, for it is not contended, either on the part of the prosecution or by the defendant, that any complete settlement was ever made. Defendant does not contend that he conveyed the land to Ireland in satisfaction of his claim, but admits that it was only given as security. It is not possible that any harmful effect to defendant’s rights could have resulted from this instruction.
The fifth instruction is objected to on the alleged ground that the jury might have understood from it that, if the directors consented to the change in the accounts, and did so with the intent to defraud Ireland, the defendant would be guilty, even though he had no such fraudulent intent. We cannot see that this instruction is at all open to that construction, or that the jury could have been misled by it. All the instructions given by the court conveyed the idea that before defendant could be convicted it must be found that he caused the false alteration to be made with the intent to defraud Ireland. The purport of instruction number five was to tell the jury that the consent of the 'directors to the transaction -would not relieve defendant from guilt if he participated in the act with fraudulent -intent.
The defendant asked the co.urt to give the following instruction, which was refused: “3. An intent to defraud Joe Ireland or his bondsmen is a necessary element to justify any conviction in this case; and if you believe from the testimony that it was the belief of those making the entry on the books at the time it was made that Joe Ireland was fully secured by the property conveyed to him by defendant, you may consider that fact in determining whether there was any intent to defraud, even though it appears that the property was after-wards sold for a sum insufficient to pay the account of Ireland.”
We think that the substance of this instruction is covered by those given, and that there was no prejudicial result from the court’s failure to give it. Moreover, the form of the in struction is open to the objection that it singles out one circumstance and directs the jury’s attention to it without reference to the other facts and circumstances in the case. It does not necessarily constitute prejudicial error to give such an instruction (Hogue v. State, 93 Ark. 316); but this court has several times held that it is better practice not to give an instruction in that form, and that a case will not be reversed on account of the failure of a trial court to do so. Carpenter v. State, 62 Ark. 286; Ince v. State, 77 Ark. 418.
Opinion delivered May 2, 1910.
Error of the court is assigned in permitting witnesses to testify concerning the state of defendant’s account with the bank and his indebtedness to the bank on the stock notes. These were matters which were competent for the jury to consider in determining the intent with which he made the changes in the account.
Upon a careful consideration of the whole record in this case, we reach the conclusion that the case was correctly tried below, that the defendant had a fair trial and has been convicted upon legally sufficient evidence. The judgment is therefore .affirmed.
Wood, J., dissents on the ground that the evidence fails to show an intent to defraud.
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Wood, J.,
(after stating the facts). The complaint alleges that appellees falsely claim that there is a balance due them for what they call rent to April 1, 1909, of $13.50, and the original note of $90, making a total of $103.50; that by making this claim appellees are seeking to take undue advantage of appellant and to force him to pay more than is due them.” While this is not a technical plea of usury, it is a sufficient allegation to cause a court of equity to scrutinize the transaction closely, in order to determine whether or not the parties seeking a benefit under it are attempting to enforce an illegal exaction.
Plere, while appellees have not asked any affirmative relief, •the court, after hearing the testimony, has treated the answer as if it were amended to ask affirmative relief, and granted to appellees a writ of possession against appellant unless he paid the ninety dollars with interest within ninety days. The court thus treated the contract between appellant and appellees as a mortgage by appellant of the lot in controversy to appellees to secure the latter in the amount of money they had advanced to the former to enable him to pay for the lot. The court was correct in treating the contract as a mortgage, but erred in finding that the amount due appellees under it had not been paid. Appellees should be treated as mortgagees in possession as to the amount of rents they collected from appellant under the contract, and should be held to account to him for the amount of these" rents. So treating them, the evidence shows that appellant has more than paid them the balance due on the ninety dollars with interest. Appellant, however, is not entitled to any judgment for the amount overpaid by him because as to this amount it must be regarded as a voluntary payment.
The evidence of appellees shows that they at all times recognized that appellant under the contract was the equitable owner of the lot. Their testimony tends to prove that they, at the request of appellant, took the deed from Davidson in their own name, intending to hold the title to the lot only as security for the amount of money they had advanced to appellant to pay for the lot. They at all times acknowledged the right of appellant, upon the payment of the purchase money advanced by them to him, to have deed to the lot..
The effect of the contract between appellant and appellees, as we view the evidence, was to substitute appellees for Davidson. Thy stood virtually in Davidson’s shoes, and the effect of his contract was to make him a mortgagee holding the title to the lot, “subject to all the essential incidents of a mortgage.” Strauss v. White, 66 Ark. 167, and cases cited. But they say that in the meantime appellant agreed with them that he should pay them a bonus of $1 per week as rent for the lot. There was no consideration for this agreement except the advance made by appellees to appellant of the ninety dollars and interest. Considered in this light, the bonus called rent would be nothing-more nor less than a forbearance for the use of the ninety dollars and interest, and would render the contract void for usury. In Scott v. Lloyd, 9 Peters, 418, Chief Justice Marshall, speaking of the purchasing of an annuity or rent charge which was alleged to be a cloak for usury, said: “Yet if it is apparent that if giving it this form the contract will afford a cover which conceals it from judicial investigation, the statute would become a dead letter. Courts, therefore, perceived the necessity for disregarding the form, and examining into the real nature of the transaction. If that be in fact a loan, no shift or device will protect it.”
We are therefore of the opinion that appellant, having paid to appellees the amount due them, is entitled to his deed. The chancery court of Clark County erred in holding otherwise. The judgment is therefore reversed, and the cause is remanded with directions to enter a decree in accordance with this opinion.
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Frauenthal, J.
This was an action of deceit .brought by A. H. Joseph, the plaintiff below, against J. W. Baker to recover damages for fraud inducing him to make a contract for the purchase of certain land from the defendant. The defendant sold to the plaintiff certain land in Benton County, Arkansas, in consideration of a stock of goods owned by the ■ plaintiff at Carbondale, 111. The land was sold in gross, and the deed of conveyance executed by the defendant gave a particular description of the land by metes and bounds, with the words added: “containing in all 198 acres, more or less.” In his complaint the plaintiff alleged that before the purchase the defendant _ showed him the land, and “pointed out to him a portion of other lands not described in this deed, and claimed that he owned them, and that they were a part of the tract he was selling to plaintiff, upon which he relied at the time without knowledge of the falsity of the same; that said statements were false and kntiwn by defendant to be false;” that defendant falsely represented to him that the tract so sold and conveyed by him contained 198 acres when as a matter of fact it contained only 171 acres; and he sought to recover damages by reason of said false representation. Upon the trial of the case the plaintiff introduced evidence tending to sustain the allegations of his complaint. The defendant in his answer denied the allegations of the complaint relative to his making any misrepresentation as to the quantity of the land; and upon the trial of the case he introduced testimony tending to prove that he was familiar with the boundaries of the land, but did not know the number of acres in the tract; that there was a dispute as to whether the tract contained 198 acres or a less number; that he showed the land to plaintiff and pointed out the boundaries exactly as they are described in the deed, and pointed out to him no other land than that included within those boundaries and covered by .the deed; .and that he did: not represent to plaintiff that the tract contained 198 acres; that before the deed was executed and before the sale and purchase was consummated the plaintiff was told and fully informed that the tract contained only 165 acres; and that the plaintiff said that it made no difference, that he was satisfied, but to write the deed stating that the tract contained 198 acres more or less, which was done. The evidence tended to prove that the tract of land conveyed contained 171 acres.
The court in effect instructed the jury that if the defendant falsely represented to plaintiff that the tract of land contained 198 acres, and that, relying upon such representation, the plaintiff paid therefor, when in fact there were only 171 acres in the tract of land conveyed, then the plaintiff was entitled to recover as damages the price of the deficiency in the number of acres so represented.
Over the objection of the plaintiff the court gave the following instruction:
“6. The court instructs the jury that, although you may find that defendant misrepresented to the plaintiff the number of acres in the tract of land in question at the time the .land was shown to plaintiff -by defendant, still, if you further find that, before the deed was executed and delivered to plaintiff, the defendant or his brother, Harry Baker, informed plaintiff that there was a less number of acres in the tract than had first been. represented to be, and plaintiff had knowledge ot this fact, and then accepted the deed for 198 acres, more or less, he could not recover from defendant, and your verdict should be for the defendant.”
The jury returned a verdict in favor of the defendant, ■and from the judgment entered thereon the plaintiff appealed to this court.
It is urged by counsel for plaintiff that the court erred in permitting, over plaintiff’s objection, the introduction of testimony on the part of the defendant that the plaintiff was informed at the time of the execution of the deed and before the final consummation of the sale that the tract of land only contained 165 acres, for the reason that this would contradict the terms of the written contract and deed which stated that the land contained “198 acres more or less.” But we do not think that this contention is correct. The action that was instituted by plaintiff is not based upon the contract, but it is founded upon the alleged tort committed by the defendant in making false representations by which the contract was fraudulently obtained and the plaintiff wrongfully damaged. It is not an action to enforce the contract, but it is based upon fraud in the procurement of it. It is well established that in actions founded upon fraud parol evidence is admissible to show such fraud in the making of the contract, notwithstanding the contract is in writing; and likewise parol evidence is admissible to show the lack of such fraud.
In the case of Harrell v. Hill, 19 Ark. 102, the charge was made that the defendant had misrepresented the quantity of the land sold to complainant. In that case the court said: “The charge, then, is fraud. * * * No rule or principle of law is violated by the admission of parol evidence to establish fraud going to the consideration or execution of deeds.” Wolfe v. Arrott, 109 Pa. St. Rep. 473.
In the case at bar the land that is actually conveyed by the deed is the area that is described by metes and bounds; the quantity named will not prevail against the particular description. The mention of quantity of acres after a definite and certain description of the land by metes and bounds does not amount to a covenant in a deed unless so expressly declared, and does not afford a cause of action founded upon a breach of a covenant, although the quantity of acres should fall short of the amount named. If the amount thus named is inconsistent with the actual area of the land as shown by the particular specification and designation thereof, it will be considered descriptive merely, and not a covenant to convey the precise number of acres thus named. Ordinarily, when the land is described by definite boundaries in a deed followed by a statement of so many acres, more or less, without any express covenant as to the quantity, the statement of the quantity is not controlling nor is it of the essence of the contract. In such event, should there be a deficiency in the number of acres, the right to relief for such deficiency would be founded upon fraud, misrepresentation or mistake. Harrell v. Hill, 19 Ark. 102; Goodwin v. Robinson, 30 Ark. 535; Neeley v. Rembert, 71 Ark. 91; 3 Washburn on Real Property, § 2322; 1 Sugden on Vendors, 490; Wilson v. Randall, 67 N. Y. 338; Belknap v. Sealey, 67 Am. Dec. 120; Wheeler v. Boyd, 69 Tex. 293; Anderson v. Snyder, 21 W. Va. 632. The action in the case at bar to recover the alleged deficiency of the land claimed to have been sold is founded upon the alleged fraud in the procurement of the contract of sale; and any evidence, direct or circumstantial, which would tend to prove or disprove the alleged fraud would be competent; and therefore parol evidence would be admissible, though the contract thus procured was in writing. The fraud alleged in the complaint was the misrepresentation made by the defendant as to the number of acres contained in the tract of land, and that plaintiff was misled thereby to his injury. The court did not err in permitting the introduction of testimony showing that plaintiff was informed of the actual number of acres of the land before the trade was consummated.
And for the same reason the court did not err in giving said above instruction number 6. In order for the plaintiff to recover in this action of deceit, it was essential that he was ignorant of the matter represented to him; for, if he had knowledge of the actual number of acres that were in the tract, and knew that any other statement made by defendant was false before the trade for the land was finally consummated, then he could not have been deceived by such representation. In the case of McDonough v. Williams, 77 Ark. 261, the court said: “We hold that no action can be maintained for the damages where the contract is executed after the discovery of the fraud.” And in the same case the court quotes the following with approval from Thompson v. Libby, 36 Minn. 287: “To allow a purchaser who has discovered the fraud while the contract is still wholly executory to go on and execute it, and then sue for fraud looks very much like permitting him to speculate upon the fraud of the other party. It is virtually to allow a man to recover for self-inflicted injuries. The fraud is really consummated and the damages incurred by the acceptance of the property and paying for it. And, if this is done after the fraud is discovered, the purchaser can not say that he sustained damage by reason of the fraud.” And so in the case at bar the plaintiff could not have been deceived to his injury by any misrepresentation of the number of acres in the tract if, before the trade was finally made and the deed accepted^ he was informed as to the actual number of acres that were in the tract, ana then with such knowledge accepted the deed and consummated the contract of sale. See also Winter v. Bandel, 30 Ark. 362; Goodwin v. Robinson, 30 Ark. 535; Matlock v. Reppy, 47 Ark. 148; 14 Am. & Eng. Enc. Law, 106.
Finding no prejudicial error committed in the trial of this case, the judgment is affirmed.
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Wood, J.,
(after stating the facts). First. It -was shown that appellee was,a Missouri-corporation chartered“to carry on the cooperage business for pecuniary profit or gaip,..and to cut, buy, manufacture and sell staves, and to manufacture and sell casks, barrels, kegs and all other articles whatsoever belonging to the cooperage business.”
Appellant contends that, such being the express powers granted to appellee, under the laws of Missouri, which must control, appellee was prohibited from holding any lands, and that its acquisition of lands was ultra vires and consequently void.
Under the Revised Statutes of Missouri (1899), § 971, corporations may “hold, purchase, mortgage, or otherwise convey such real and personal estate as the purposes of the corporation shall require, not exceeding the amount limited in its charter.” . See also section 851, Kirby’s Digest. The power to “manufacture” “staves,” “casks,” “barrels,” “kegs,” and all other articles whatsoever belonging, to the cooperage business necessarily carries with it the power to acquire the timber out of which such articles are manufactured. As it might be impossible to purchase timber without the land upon which it grows, the power to acquire timber also, in such case, would necessarily include the power to buy the land upon which the timber grows. The power to manufacture also necessarily implies the power to obtain lands upon which to build and operate the manufacturing plants. Powers that are essential to the exercise of the powers expressly granted are necessarily implied from those expressly granted, and are “as much granted as what is expressed.” Thomas v. West Jersey Railroad, 101 U. S. 71. “It is a well settled rule of construction of grants by the Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the object of the grant.” Minturn v. Larue, 23 How. 435; Carroll v. Campbell, 108 Mo. 559; State v. Lincoln Trust Co., 144 Mo. 586; State v. Murphy, 130 Mo. 10; Huntington v. Savings Bank, 96 U. S. 388.
Therefore, since the power to acquire land is comprehended in the charter of appellee, it was acting within the scope of the powers conferred upon it in obtaining lands, and the quantity was not limited in its charter. It' being determined that the acquisition of land is within the charter powers of appellee, the'inquiry whether any particular real property, or how much, may be necessary to enable appellee to carry on the business for which it was organized is a matter between the State and appellee. “That is a matter' which is not subject to investigar tion, and can not be called in. question by appellant in this suit.” Bowman v. Trainor, 93 Ark. 435.
Second. It was shown that appellee had not complied with the statute authorizing foreign corporations to do business m this State (section 825, Kirby’s Digest) until August 20, 1907. Appellant contends that appellee, because of this failure to comply with the statute, acquired no color of title by its deeds and no title by its payments of taxes. The result of the failure of appellee to comply iwith the above statute precludes it from enforcing any demand it may have against any of the citizens of this State growing out of the contract or tort. Section 830, Kirby’s Digest. But appellee by its suit to quiet title is not seeking to enforce any demand growing out of the contract with appellant or out of any tort committed by appellant against appellee. The deeds which give appellee color of title are executed contracts conveying to appellee the lands in suit. As we have seen, the taking of these deeds on the part of appellee was not ultra vires. For aught shown to the contrary in the evidence, as abstracted by appellant, these deeds may have been delivered to appellee in Missouri. The contracts conveying the lands to appellee may have been consummated by the payment of the purchase money and the delivery of the deeds there. If so, the deeds were valid, even though appellee at the time may have been engaged in business in this State without having complied with the statute. Section 825, Kirby’s Digest.
It is not alleged in the intervention of appellant that the deeds under which appellee claims color of title were made, in this State, while appellee was doing business here in violation of the statute supra; nor is it shown t by the proof that these deeds were made in this State. As we said in White River Lumber Co. v. Southwestern Improvement Association, 55 Ark. 625: “For aught that appears,” these deeds “may have been made in a foreign State in the course of a business lawfully done there, and in the absence of a showing the law will not imply facts disclosing the illegality of the contract.” Appellant denies that the deeds conveyed to appellee any right, title.or .color pf title. But that allegation is only a legal conclusion, and is far from stating, any facts showing that the deeds were void. We do not mean to hold that the deeds could not give color to appellee, even though it had been shown that they were executed in this State.
Since there is nothing in the law or appellee’s charter prohibiting it from obtaining deeds to land in this State, and siuce appellee is not seeking to enforce any demand against appellant growing out of .contract or tort, a majority of the court is of the opinion that appellant, in this suit, can not invoke the provisions of sections 829 and 830, Kirby’s Digest, to have the deeds which appellee obtained through other parties declared null and void. But, even if appellant could make such proof, he has not done so. , Therefore, conceding that appellee was doing business in this State contrary to the provision' of the statute supra, at the time the deeds under which it claims color of. title were executed, still,. as appellant could not show in this suit that these deeds were void, it follows that appellee is entitled to whatever benefits may be derived therefrom as color of title under section 5057 of Kirby’s Digest.
Third. That section gives title by limitation to a person who has color of title to uninclosed and unimproved lands and who has paid taxes thereon for seven years in succession,, at least three of the payments having been made after the passage of the act March 18, 1899. Towson v. Denson, 74 Ark. 302. See also Price v. Greer, 76 Ark. 429; Wyse v. Johnston, 83 Ark. 520; Updegraff v. Marked Tree Lumber Co., 83 Ark. 154.
The chancellor' found that appellee had acquired title tp the lands in suit by payment of taxes under the above statute. Appellant' contends that appellee can not have the benefit of the above statute because it failed to designate an agent upon whom process could be served during the seven years it was paying the' taxes, and thereby became subject to the provisions of sections 5077 and 5088 of Kirby’s Digest. These statutes refer to absconding debtors and other persons who have fraudulently concealed' themselves to prevent the commencement of an action against them.' Limitations do not begin in such cases until the residence or’ whereabouts' of the absconder has been discovered, and the commencement of the action is for that reason no longer prevented. But "these statutes and the, .authorities based on such statutes have' no application, even by analogy, to the case at bar. Appellee, although a foreign corporation, and doing business in this State without designating an agent; would still have the right to pay taxes on lands to which it had color of title. There is nothing in section 5057, supra, or any other statute prohibiting foreign corporations, although do^ ing business in this State without designating an agent, 'from paying taxes on lands which they own or to which they have color of title. Even if the failure to designate an agent, in a sense, would be absconding, the act of paying taxes would be notice to the true owner of the foreign corporation’s constructive possession. It is, under the statute, a taking of the possession. Towson v. Denson, supra. It affects the res, and starts this special statute of limitations. If, when paid by another before April 10, it is a wrong to the true owner, as contended by appellant, under section 7053, giving the owner till that day to pay his taxes, the wrong can be easily prevented by him, or corrected by proper application to the collector. The true owner whose taxes have been paid by a foreign corporation can not claim that, inasmuch as such foreign corporation is not subject to process here, or is evading the service of process, the statute of limitations under section 5057 supra does not begin to run. “Taxes are glebae ascripti — serfs of the soil — a charge which follows the land in whosesoever hands it may go.” Coats v. Hill, 41 Ark. 149, 152; Seldon v. Dudley E. Jones Co., 89 Ark. 234-38.
If not paid, the proceeding to collect them is not against the owner, but against the land itself. Sections 7084-5, Kirby’s Digest. Therefore it is wholly immaterial whether the owner be resident or non-resident, absconding or otherwise. The oayment of taxes under the conditions prescribed by section 5057 starts the limitation therein contained against the owner. If the taxes are paid, as prescribed by the statute, seven years in succession at any time when taxes are payable, the party paying acquires the title, whether he makes, the payments within one year of each other or not. Price v. Greer, 89 Ark. 300. Each payment constitutes the equivalent of possession contemplated by the statute, and continues that possession until the next payment in succession, and so on until seven years shall have elapsed from the time of the first payment. Towson v. Denson, supra. See also Updegraff v. Marked Tree Lumber Co., 83 Ark. 154; Sibly v. England, 90 Ark. 420. There, is :no-allegation in the complaint that the lands were “unimproved and uninclosed.’’ But the chancellor found that the lands that were not in the possession of appellee, were “wild.” That finding is sufficient to show that the lands were “uninclosed and unimproved.” There was competent evidence to sustain this finding. But appellant contends that it was introduced over his objection, and therefore can not be considered. The presumption is that the findings of .the chancellor recited in his decree were based upon competent and relevant testimony until the contrary appears.
There is no objection noted in the deposition- itself to the testimony by which this fact was established. There is no recital in the record proper or in the court’s decree of any such objection, and there is no bill of exceptions showing that such objection was made. A recital in the transcript to that 'effect by the clerk simply cannot be considered. It does not show proper authentication of the objection. Tharpe v. Western Union Tel. Co., 94 Ark. 530; Snyder v. State, 86 Ark. 456; Murphy v. Citizen’s Bank of Junction City, 84 Ark. 100; Beecher v. State, 80 Ark. 600; Beecher v. Beecher, 83 Ark. 424. The same rule .applies to the decitals in the transcript as to objections made to the introduction of other evidence.
The tax receipts in evidence show that for some of the years, during the seven, the taxes were paid by the “Stecher Cooperage Works,” and that for others they were paid by the “Stecher Cooperage Company.” Appellant contends that these might have been different corporations. But the chancellor found that the taxes were paid for seven years in succession by the “Stecher Cooperage Works.” It was shown that the taxes were paid by the agent of “Stecher Cooperage Works,” appellee. Throughout the depositions the lands are referred to as the lands of.,dhe- “Stecher Cooperage Works.” It is obvious from the entire testimony that “Stecher Cooperage Company” in the tax receipts meant “Stecher Cooperage Works,” and that the insertion pf the former instead of the latter was merely a misprision of the collecting officer. The finding of the chancellor that the taxes were paid by the Stecher Cooperage Works was not clearly against the preponderance - of the evidence, but on the contrary is according to such preponderance. Such payment under the conditions prescribed by section • 5057 gave appellee. not a prima facie, but a perfect title, and the court was correct in so holding.
Fourth. As to the following tracts: N. W. A and W. A S. W. J4, Sec. io, S. W. A S. W. J4 and S. E. A Sec. 25, EA[ S. E. 54 and S. E. 54 N. E. J4 Sec. 26, W. % N. E. 54 Sec. 27 and N. E. A N. E. A Sec. 28, all in Twp. 7 N., R. 5 W., learned counsel are incorrect in stating that there is no allegation in the complaint that appellee has or ever had color of title to these. The allegation set forth in statement shows that appellee did allege color of title to these, and exhibited the deeds, and the deeds were therefore properly introduced. As to the S. E. A Sec. 21, Twp. 7 Ni, R. 5 west, the evidence showed that it had been in the adverse possession of appellee for more than seven years. As to the N J4 S. W. A Sec. 25, Twp. 7 N., R. 5 west, the tax receipts in evidence show that it was paid on .by appellee more than seven years. Eor some of the years it was paid on under the above description, and for other years under the following description: “E. of R. S. W.,” sec. 25. This latter description correctly - designated the lands. From this description they could readily be ascertained on the sectional plats of the government survey as the S'. W. A east of river in section 25. As to the N. E. J4 N. E. A Sec. 28, Twp. 7 N., R. 5 W., the appellant’s abstract of the evidence states the following:
“The taxes on the northeast quarter of the northeast quarter of section 28, in township 7 north, of range 5 west, were paid for the years, on the dates and by the persons named herein:
Year. Day and Month. Receipt Issued to
1900— April 10.......................Stecher Cooperage Co.
1901— April 11.......................Stecher Cooperage Co.
1902— May 5......................Stecher Cooperage Works
1903— January 20..................Stecher Cooperage Works
1904— March 11...................Stecher Cooperage Works
1905— April 18....................Stepher Cooperage Works
1906— April 24....................Stecher Cooperage Works
1907— January 6.........'.........Stecher Cooperage Works”
This shows payment on the above tract for more than seven years in succession.
Fifth. Appellant could have no affirmative relief on his intervention. Appellee alleges in its answer to the intervention that appellant and those under, whom he claims had not paid taxes on the lands for over twenty-five years and that they had enhanced in value to the sum of ten or fifteen dollars per acre. These allegations were not denied by pleading or refuted by proof. The testimony shows that appellee had been paying taxes on all the land for more than twelve years, and on some of it as long as seventeen years. During this time the land had greatly enhanced in value. In the very recent case of Chancellor v. Banks, 92 Ark. 497, we said:
“There are cases in which the owner of land had failed to pay taxes on the same for many successive years exceeding the statutory period of limitations of seven years, and another, claiming the land, had paid the taxes thereon for such time, and in the meantime the land had greatly enhanced in value, and in which this court held that a court of equity will not grant the owner relief on account of laches; and in which it so held obviously for the reason that it would be unjust to permit the owner to induce another, by his silence and failure to act, to pay the taxes until the lands have become valuable or greatly increased in value, and then enforce his right. Clay v. Bilby, 72 Ark. 101; Turner v. Burke, 81 Ark. 352; Craig v. Hedges, 90 Ark. 430." See also other cases cited in the opinion.
The court therefore did not err in dismissing the intervention. The decree of the lower court is in all things correct, and it is therefore affirmed.
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McCulloch, C. J.
This is an action at law instituted by J. W. Baker against the Crawford County Bank to recover damages for alleged breach of covenants of warranty of title to land conveyed by deed. The defendant executed to one T. B. Baker on December 21, 1903, a deed with full covenants of warranty of title, etc., purporting to convey, for a consideration of $275, a certain described forty-acre tract of land situated in Crawford County, Arkansas. On December 26, 1903, T. B. Baker conveyed the land to plaintiff, J. W. Baker. The defendant had previously, on Oecember 22, 1900, entered into a written contract with T. B. Baker, whereby it agreed to sell said land to him for said price, and undertook on payment of same to convey the land to him by deed, with warranty of title. This action was commenced in July, 1908’ which was less than five years after the date of defendant’s deed to T. B. Baker.
Plaintiff undertook to prove that the defendant had no title to the land which it had attempted to convey, and that title paramount was in the United States Government; and contended that the -action could, under those circumstances, be maintained by plaintiff without actual eviction having been suffered.
It is well settled' in this State and elsewhere that when the title to land is in the State or the United States, that of itself is such a hostile assertion of the paramount title as will amount to a constructive eviction, sufficient to authorize a purchaser to maintain an action against his vendor for breach of the covenants of warranty. Dillahunty v. Railway Company, 59 Ark. 629; Seldon v. Dudley E. Jones Co., 74 Ark. 348.
Learned counsel for the defendant (appellant) first insist that if paramount title was in the United States, as contended by plaintiff, that. constituted an immediate breach of the covenant to convey perfect title contained in the contract of Decern ber 22, 1900, and that the cause of action arose then, if at all, and was barred by the statute of limitations before the commencement of this action. We are unable to agree with counsel that there was a breach of the covenant contained in the sale contract, or title bond, before the deed was executed or the time arrived, according to the contract, for the execution of the deed. Until that time arrived the contract remained executory, and there was no breach until the obligor' failed to perform it according to its terms. The obligation was to convey a perfect title, but the obligor was not in default until it failed to do so at the stipulated time. For if the title rested in the Government or elsewhere, the obligor could have acquired it in order to fulfill the contract, and thus prevented a breach of the covenant of seisin; but paramount title in the Government or elsewhere could not constitute a breach of the executory contract to convey and warrant the title.
Counsel rely on the case of Tarwater v. Davis, 7 Ark. 153, but we do not think the decision in that case conflicts with these views. There the instrument purported to convey the land, and contained the further covenant “to make and deliver, when required, good and sufficient deed in fee simple, with warranty of title.” The trial court sustained a demurrer to the complaint, which sought to recover damages for an alleged breach of covenant, and which alleged that the covenantor was not the owner of the land; but it failed to allege that a demand had been made for the performance of the contract. The court held that demand was unnecessary, for the reason that the covenantor was unable to execute a conveyance according to his contract, not being the owner of the land at the time of the execution of his covenant nor having acquired title thereto subsequently. That is all that was involved in that decision.
But, even if we were wrong in this conclusion, the action is not barred. The executory contract of sale became merged in the deed, and the covenants contained in the latter constituted a new point from which the statute began to run. We hold that the right of action accrued at the time the deed was executed, for the breach of covenant occurred then if the title was -in the United States.
It is next insisted that the right of action accrued immediately in favor of the grantee, T. B. Baker, if it accrued at all, and did not run with the land. Hendricks v. Keesee, 32 Ark. 714; Dillahunty v. Railway Co., supra; Seldon v. Dudley E. Jones Co., supra. This is correct. But the undisputed evidence is that T. B. Baker purchased the land for the plaintiff, and that the latter paid for it. T. B. Baker took the conveyance in his own name, but, until he conveyed it to plaintiff a few' days later, he held as trustee for the plaintiff. The action could have been maintained in the name of T. B. Baker, as the covenant was executed to him for the benefit of plaintiff (Kirby’s Digest, § 6002) ; but plaintiff is the real party in interest, and the action was properly instituted in his own name (Kirby’s Digest, § 5999). T. B. Baker would also have been a proper party; but defendant waived the omission to make him a party by failing to object and to ask that he be made a party. Clark v. Gramling, 54 Ark. 525.
Was there a breach of the covenant of warranty, and if so, was the breach properly established by evidence? There was an original homestead entry of the lands in the United States Land Office at Dardanelle on June 3, 1870, by Nancy Butler, under which the defendant deraigns its claim of ’ title by mesne conveyances. Plaintiff introduced in evidence a certificate issued to him by the Register of the United States Land Office at Dardanelle, dated December 24, 1907, showing that on his contest against one Rufus Tindle, homestead entry No. 2605 was cancelled, and that the land was subject to his (plaintiff’s) preferred right of entry within thirty days as occupant. He also introduced the receipt of the Receiver of the Land Office, dated January 6, 1908, showing that he had -entered the land as a homestead. It is not contended in argument that the Nancy Baker entry was not cancelled before the subsequent cancelled entry by Tindle and later by plaintiff, but it is insisted that the cancellation was without notice and void, at least that there was no proof of notice.
There is a presumption attending the regularity of the proceedings of the officers of the United States Land Office, as well as all other officers, and this presumption prevails until overcome by proof. Polk’s Lessee v. Wendell, 9 Cranch (U. S.) 86; Minter v. Crommelin, 18 How. 87; Delassus v. United States, 9 Pet. 117; Strother v. Lucas, 12 Pet. 410.
Thus, it is presumed until the contrary appears from proof, that the old homestead entry of Nancy Butler was properly can-celled. “The National Government being the original source of title in this State, the presumption of law is that the title remained with the Government until some other disposition 'is shown.” Shorman v. Eakin, 47 Ark. 351.
Defendant offered to show by oral testimony of a witness that the notice of cancellation of Nancy Butler’s homestead entry (she being now dead) was never given to her, but the court rejected the offer and refused to admit the testimony. The offer was not sufficiently specific to make it effective as the basis of an assignment of error, for it was not shown how the witness could have given testimony establishing or tending to establish the fact that Nancy Butler was dead at the time of the trial, and never received notice of the proceedings to cancel her entry. The witness might have testified that the notice of the proceedings came through the mail to Nancy Butler after her death, but that would not have been sufficient to overcome the presumption that notice was given to those entitled thereto, and that the cancellation was regular. It is the duty of this court not to reverse judgments for technical errors or irregularities unless it appears that prejudice resulted; and unless it be shown that the rejected testimony was material, so that it might have affected the result of the trial, no prejudice appears.
Plaintiff offered to show by oral testimony of the same witness that the final proofs of improvement were made by Nancy Butler and mailed to the Register of the land office, and final payment made. No foundation for the introduction of this testimony was laid or offered. It was secondary testimony, and not competent until loss of the original testimony was proved. If the proof was presented and filed in the land office, the original or certified copies constituted the best evidence. There was no error in this ruling.
The court, over the defendant’s objection, instructed the jury peremptorily to return a verdict for the plaintiff and assess the damages at the sum of the purchase price paid for the land in question, together with interest thereon at the rate of six per cent, per annum from the date of the purchase. It is insisted that, inasmuch as the plaintiff, instead of giving up the land and suing for the damage, had proceeded to acquire the outstanding paramount title of the Government, his recovery of damages should be limited, under the rule laid down by this court in Dillahunty v. Railway Co., supra, to the expenses necessarily incurred in purchasing the outstanding title. Plaintiff ■exhibited with his complaint an itemized account of his expenses incurred in canceling the Rufus Tindle entry and in reentering the land as a homestead. The principal, item of this account is $125 paid out for attorney’s fees. During the progress of the trial he proceeded to introduce proof as to the items of this account, and offered to show that he paid out a sum for attorney’s fees; but on the objection of the defendant the court excluded this testimony. Plaintiff thereupon abandoned his effort to prove the items of expense in the account, and turned to the other elements of damages, viz., the amount of purchase price paid for the land and the time of payment, and no objection was made to that testimony.
It is clear, from, a perusal of the record, that the court by its rulings upón the admission of testimony held that the plaintiff’s measure of damages was the amount of the purchase price with interest, and not the expenses incurred in acquiring the outstanding title. Defendant invited this ruling by objecting to the admission of testimony as to the expenses, and» by acquiescing in it by failing to object to the testimony establishing the other measure' of damages. The error of the court, if it was error, was therefore invited by the defendant’s own conduct, or at least was acquiesced in. It is true that, after the introduction of testimony was closed, the plaintiff asked the court to give a line of instructions the last of which told the jury that the amount of plaintiff’s recovery should be “limited to the sum the evidence shows was necessary to homestead the land in controversy.” But this was after the court had, upon defendant’s objection, excluded from the jury- evidence as to that measure of damages. It was too late then, after the defendant had been instrumental in excluding evidence on that measure of damages, to ask that the recovery of damages be. limited to it instead of another measure of damages, to the proof of which the defendant had offered no objection.
Upon the whole we are convinced that there was no prejudicial error committed by the court, and the judgment is therefore affirmed.
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Frauenthal, J.
The defendant, Harry Poe, was indicted by the grand jury of Garland County, charged with the crime of rape; and upon his trial he was convicted by a petit jury of that crime. He has appealed to this court to obtain a reversal of the judgment of conviction. He urges that there was not sufficient evidence to warrant the finding that he was the person who committed the act or that the deed of rape was accomplished. The testimony on behalf of the State established the following facts: Lena Adams, the female who was assaulted, was a little white girl ten years of age. She lived in the southern suburbs of the city of Hot Springs, and was attending school at what is known as Oaklawn School, which was situated about one-half mile from her home. Between her home and the school there was a stretch of woodland which she passed through in going to and from the school. About a week prior to the day upon which the assault is alleged to have been committed the defendant, who is a negro boy 17 years old, met her on the way, and spoke to her, and asked her if she' did not want some red thread. She told him that her grandmother had thread, and she wanted none from him. On January 25, 1910, the defendant again met her, and near the strip of woods where no one lived and where the place was deserted.- It was about 4 o’clock of the afternoon of that day, and the little girl was going to her home from the school. He told her that he had a rooster in the woods he would show ’her, and quickly grasped her around the waist, and as she began to scream threatened to cut her throat. He carried her into the woods, and there forcibly and against her will made the assault upon her. As he was rising from the ground two White women, Emma Grins tead and Ella Karinger, who were returning to their home from the city, passed through ‘the timber and near enough to him so that they saw him and could identify him. The defendant fled from the place. One of these Women had seen the defendant before that day; and at the examining trial which was held'on the 31st day of January, 1910, both of them testified that they could and did identify the defendant as the party who had made the assault upon the girl. The defendant was arrested a few days after the alleged assault, and was taken before the girl. . Prior to that the girl had described the clothes he wore and his general appearance. Four or five negro boys had been shown to her . for identification, and she claimed that none of them was the assailant. But she immediately identified the defendant as the person who had assaulted her, when he was brought before her. A short time after the assault a physician examined the girl, and found that she was infected with a venereal disease as a result of the assault; and the testimony further proved that the defendant had been and was on the day cf the assault infected with this loathsome disease.
The defendant introduced a number of witnesses who testified that he lived about one mile from the home of the girl, and that he was at his home on January 25, 1910, and at the time the assault is alleged to have been made. But the jury were the exclusive judges of the credibility of these witnesses. It was peculiarly the province of the jury to determine the questions of fact involved in this case; and if their finding of the facts is sustained by sufficient evidence, then, according to the repeated decisions of this court, that finding is conclusive. Hubbard v. State, 10 Ark. 378; Floyd v. State, 12 Ark. 43; Chitwood v. State, 18 Ark. 453; Dixon v. State, 22 Ark. 213; Harris v. State, 31 Ark. 196; McCoy v. State, 46 Ark. 141; Holt v. State, 47 Ark. 196; Williams v. State, 50 Ark. 511; Ferguson v. State, 92 Ark. 120. We are of the opinion that there was sufficient evidence adduced upon the trial of this case to warrant the jury in finding that the defendant was the party who committed the assault. The little girl had seen the defendant upon two different occasions, and she had ample opportunity to observe him on each occasion, and she had sufficient .intelligence to know him, and to recognize him afterwards. This she did; and she testified without any equivocation that he was her assailant. The two women had ample opportnnity to see the defendant just after the assault and to observe him sufficiently to know him. They unhesitatingly identified the defendant as the girl’s assailant. This testimony, together with the other circumstances proved in the case, is, we think, sufficient to sustain the verdict of the jury upon this question of fact. And we are also of the opinion that there was sufficient testimony to sustain the finding of the jury that the deed of rape was accomplished. “The carnal knowledge that is required to constitute rape must be a res in re, but to no particular depth,” and the hymen need not be ruptured nor the body torn. Under our statute (Kirby’s Digest, § '2006) “proof of actual penetration -into the body shall be sufficient to sustain an indictment for rape.” In the case of Reg. v. Lines, 1 Car. & K. 393, Parke, B., said: “I shall leave it to the jury to say whether at any time any part of the virile member of the prisoner was within the labia of the pudendum of the prosecutrix; for, if it was, no matter how little, that will be sufficient to constitute penetration.” 2 Bishop, Crim. Daw, § 1132; 33 Cyc. 1422; Morris v. State, 54 Ga. 440; State v. Hargrave, 65 N. C. 466; People v. Crowley, 102 N. Y. 234.
The testimony of the girl who was assaulted and of the physician who examined her was sufficient to establish the fact that there was penetration into the body, and that there had been an entrance made through the labia and to the hymen.
Upon the trial of this case in the circuit court, the court permitted R. B. Cotham, the court stenographer, to testify, over defendant’s objection, to the evidence that was given by the two women, Emma Grinstead and Ella Kariger, at the examining trial of the defendant before a justice of the peace. At the examining trial the witness, Cotham, was present and heard the testimony there given by these two women, and as court stenographer took stenographic notes of their evidence and afterwards transcribed the same. Upon the trial in the circuit court he testified that this évidence was given by these two witnesses at the examining trial; there was no written statement thereof signed by them. The defendant was present at the examining trial, but without counsel. He was given the opportunity to cross examine these two witnesses, and did propound to one of them some questions. It was shown by testimony which the trial court found sufficient, and which we find to be sufficient, that these two witnesses were beyond the jurisdiction of the court at the time of the trial of the case in the circuit court. It was competent to prove what these two witnesses testified upon the examining trial. “The settled law of this State is that where the adverse witness is dead, 'beyond the jurisdiction of the court, or upon diligent inquiry cannot be found, what such witness testified on a former occasion on the same issue and between the same parties may be given in evidence, provided the accused was present, having the right of -cross examination.” Vaughan v. State, 58 Ark. 353; Hurley v. State, 29 Ark. 17; Shackleford v. State, 33 Ark. 539; Dolan v. State, 40 Ark. 434; Sneed v. State, 47 Ark. 180; McNamara v. State, 60 Ark. 400; Wilkins v. State, 68 Ark. 441; Wimberly v. State, 90 Ark. 515. It is not necessary that the testimony given by such witness shall be reduced to writing and signed by the witness, before evidence of such testimony is admissible. The statute of this State does not require that in examining trials the testimony of the witness shall be reduced to writing and signed by him. The statute only provides that the magistrate in such trial shall state the name and place of residence of the witness and make a general statement of the substance of what was proved. Kirby’s Digest, § 2148. The testimony of the absent witness can be proved by any one who heard him testify and can remember the testimony. Petty v. State, 76 Ark. 515; Shackleford v. State, supra; McNamara v. State, supra.
Nor was it necessary, in order to render this testimony competent, that the defendant should have been represented by counsel at the examining trial. Butler v. State, 83 Ark. 272. And it sufficiently appears from the evidence that these two women were sworn as witnesses in the examining trial. The witness Cotham testified that they were witnesses in said trial and gave their testimony therein. A “witness” is one who has been sworn according to law and deposes-as to his knowledge of the facts in issue upon the trial of a case; and “testimony” means the statement made by the witness under oath in a legal proceeding. Web. Diet.; x B-ouv. Law D-ict. 658. We .are therefore of the opinion that the court did not err in permitting the introduction in evidence of what the absent witnesses testified in the examining trial.
It is urged that the State’s attorney made improper remarks in his argument to the jury. The remarks complained of are that the attorney said that “the defendant had by the evidence been proved guilty beyond a question and ought to be hanged for the protection of women and girls and for the good of the public.” He also said that Lena Adams had been corroborated by the testimony of the two women in a statement made by tier that the defendant had a dog with him on the occasion of the assault. We do not think that any error was committed which was prejudicial to the rights of the defendant by these remarks of the attorney for the 'State. All prosecutions are made for the good of the public as well for the punishment of the guilty; and the statement of the attorney as to the effect of the testimony was but an expression of his opinion relative-thereto which it was not error for him to make. Puckett v. State, 71 Ark. 62; Reese v. State, 76 Ark. 39; Maxey v. State, 76 Ark. 276; Miller v. Nuckolls, 77 Ark. 64.
The statement of the attorney that the two women had in their testimony made any reference to a dog accompanying defendant at the time of the alleged assault was erroneous as a matter of fact; but it was made only as a result of a deficiency in memory as to what these witnesses actually testified. The jury heard their evidence, and could not have been misled by any misstatement thereof.
The attorney for the defendant has not urged in this court that any error was committed by the lower court in any of its rulings upon the instructions. We have examined these instructions, and we are of the opinion that they fully and properly presented to the jury the law that was applicable to every phase of the case.
We have carefully examined each step that was taken in this case, and we are of opinion that the defendant has had a full and fair trial. A jury has declared upon that trial that he is guilty of the crime with which he is charged, and we find that the evidence is sufficient to sustain that verdict of the jury.
The judgment is accordingly affirmed.
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Wood, J.,
(after stating the facts). We are not favored with a brief on behalf of appellant, but have considered the various assignments of error. The indictment is valid. There are no exceptions to the instructions of the court. The evidence is sufficient to sustain the verdict. No objection was made to the testimony of Sam Speight as to the conversation he had with Will Keating and John Henderson. There is no showing in the record that he had any conversation with Lena James. We do not find the alleged remarks of the prosecuting attorney in the record which are set forth as the seventh and ninth grounds of the motion for new trial. There is no variance between the allegations and the proof.
The testimony showed that the ring alleged to have been stolen was tmcen together with other articles of jewelry that were in the same bag. All the articles in the bag were taken at the same time. It was competent to show that appellant had possession of any of these articles. This testimony tended to prove that she took, not only these articles, but also the ring that was in the same bag, and that was stolen at the same time. The taking of the various articles of jewelry in the bag at the same time was a single act of larceny. It was but one transaction. . The evidence was sufficient to support a verdict of guilty on the first count of the indictment, and that was the count on which the State relied, and on which the cause was submitted. No objection ‘was made as to the form of the verdict. The verdict was not invalid, and is a basis for the judgment. Cargill v. State, 76 Ark. 550.
Appellant cannot complain because the jury did not return a verdict designating on which count they found her guilty.
The judgment is correct. ■ Affirm.
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HART, J.,
(after stating the facts). It is earnestly insisted by counsel for the defendant that the court erred in not directing a verdict for the defendant because it was not shown that the defendant was guilty of negligence and because the undisputed facts show that the plaintiff was guilty of contributory negligence. The circumstances surrounding the injury were proved by the plaintiff. It was shown by the plaintiff that his injury resulted from contact with a live electric wire of the defendant which had fallen down at the edge of the sidewalk of one of the principal streets of the city of Mena over which the plaintiff at the time was walking. This made a prima facie case of negligence against the defendant which was not overcome by the evidence adduced in its behalf. Southwestern Tel. & Tel Co. v. Bruce, 89 Ark. 581; Jacks v. Reeves, 78 Ark. 126, and Texarkana Gas & Electric Light Co. v. Orr, 59 Ark. 215. The dangerous character of live electric wires and the consequent peril to which their suspension over public streets expose those who travel the streets or sidewalks, show the justness of the rule, which holds that the injury of a person using the street by contact with a live wire hanging or fallen to the ground, unexplained, affords sufficient prima facie evidence of negligence on the part of the company owning the wire to entitle the plaintiff to go to the jury in an action for damages for the injury.
So, too, whether a person coming in contact with a live wire in a highway is himself guilty of negligence is ordinarily a question for the jury to be determined by it under the circumstances of each particular case. It is true the record shows that the plaintiff lived with a family which used electricity and that on the morning in question when he first arose he endeavored to turn on the electric lights and found that the current was off in the house. It was also shown that the boy climbed the tree and came in contact with the live wire while up in the tree; that the end of the wire in the tree was blazing or one of the limbs of the tree was afire from contact with the wire. The plaintiff denied that he had climbed the tree or that there was any fire in the tree at the time he took hold of the live wire to throw it out of the way. He said that he did not know that the elec tricity was turned on the wire, and there was nothing to indicate that such was the case. While the wire was not lying on the part of the sidewalk usually traveled, it was lying near the edge of the concrete part of it and the plaintiff said that he reached down and picked it up for the purpose of throwing it out of the way. He was only seventeen years old at the time and there is nothing to show that he ever worked about electricity.- Electric light wires are a stealthy and silent danger of great force and capable of instantly killing or severely injuring persons coming in contact with them. Therefore, under the circumstances of this case the court was right in not telling the jury as a matter of law that the plaintiff was guilty of contributory negligence.
It is also insisted that the court erred in giving instruction No. 1 to the jury. The instruction is as follows.: “You are instructed that companies supplying electric current are bound to use reasonable care in the construction and maintenance of their lines. This care varies with the dangers that will result from negligence on the part of the company. Reasonable care is such care as a reasonable man would use under ordinary circumstances, and, in determining whether such care has been exercised, the jury will take into consideration the location of the lines, whether in thickly or sparsely settled communities, the harmless or dangerous character of the current carried by such lines, and their remoteness or proximity to people who may pass by, and all other circumstances in evidence. ’ ’
Counsel for the defendant insists that the instruction is extremely abstract and misleading because it contains a general declaration that electric companies are bound to use reasonable care in the construction and maintenance of its lines. He insists that this declaration does not have a specific application to the facts in the case at bar; that there is no negligence unless it be based upon the contention that the defendant had improperly strung its wires through the tree, and that the undisputed evidence on that point showed that there was sufficient clearance between the limbs and the wire. We can not agree with counsel in this contention. The negligence charged against the company consisted in its failure properly to construct its line and its omission to take the necessary precautions to prevent the wires from falling to the ground and causing injury to persons using the street or sidewalk in case they did fall. It is true according to one of the employees of the defendant there was a clearance of .six inches between the wire and the limbs of the tree in dry weather, but this was not sufficient to absolve the company from its duty to properly maintain its wires. It knew that ordinary rain storms would frequently occur .and that the rain falling on the trees might cause the limbs to fall down over the wire and thereby cause both the wires and the limb of the tree to burn in two. The necessary result, of this would be to allow the wire carrying 2,300 volts of electricity to fall down on the sidewalk where persons traveling over it would likely come in contact with it. Therefore we do not think the court erred in giving the instruction.
It is next claimed that the court erred in giving instruction No. 2, which is as follows: “If you find that the wire in question was under the control and management of the defendant and that the accident would not have happened in the ordinary course of events and if defendant had used due care, then, since the defendant owed a duty to the plaintiff to use care in the management of its lines to avoid injuring him, the burden of proof is on the defendant to prove that the alleged injury was not caused by defendant’s negligence.” ' ■ ji 1
There was no error in giving this instruction. The undisputed evidence .showed that the injury was caused by the plaintiff coming in contact with the live wire of the defendant which had fallen down on the ground at the edge of the sidewalk. This made a prima, facie case for the plaintiff and placed the burden of proof on the defendant to justify or excuse its negligence. See authorities supra.
It is claimed by counsel for the defendant that the court erred in giving instruction No. 3. The instruction reads as follows: “You are instructed that the defense of contributory negligence is contingent upon the object of the plaintiff in handling said wire and also upon his knowledge or ignorance of all the elements of danger connected therewith. The plaintiff can not be charged with contributory negligence unless he voluntarily exposed himself to a known danger. If you find from the testimony that a live wire belonging to the defendant company and controlled by the defendant was lying near the walk, as alleged, and that said wire showed no signs of being charged with electricity, and that plaintiff was ignorant of the character of said wire, and that he took hold of said wire merely for the purpose of casting it aside, and was injured thereby, then your verdict will be for the plaintiff upon this issue.”
Counsel for the defendant make both general and specific objections to this instruction. He urges that the instruction is faulty because it does not submit to the jury the issue as to whether or not the plaintiff was making an effort prior to the accident to do something with the wire, the wire at the time being in the tree. It is well settled that the court can not submit all the issues to the jury in one instruction. It was the theory of the defendant that the plaintiff saw a flame up in the tree and out of idle curiosity climbed up there for the purpose of investigating the trouble to the wire and while doing so came in contact with the live wire which caused his injury. The court submitted this phase of the case to the jury in an instruction asked by the defendant.
It is also insisted that the instruction is faulty because the wire was not on the sidewalk in a place where the plaintiff or other passersby would reasonably be injured thereby, and that the plaintiff acted unnecessarily or officiously in endeavoring to remove the wire. He claims that under the circumstances the defendant owed the plaintiff no duty. Such a modification to the instruction would have amounted to a peremptory instruction in favor of the defendant and was not proper. It is true the wire was not actually lying on the concrete part of the sidewalk which is usually used by pedestrians, but it was lying near the edge of it, and the plaintiff could not be said to be as a matter of law acting officiously in attempting to remove the wire.
It is, also, claimed that the instruction is erroneous because it told the jury that the plaintiff can not be charged with contributory negligence unless he voluntarily exposed himself to a known danger. The vice of this part of the instruction is said to be that it absolves the plaintiff from contributory negligence unless the danger was actually known to him, when the instruction should have contained the modification, that the plaintiff could not be charged with contributory negligence un-' less he exposed himself to a danger known to him or which ought under the circumstances to have been known to him. We do not think this objection is well taken. The word “known” as used in that part of the instruction evidently referred to the fact of both actual and constructive knowledge of danger on the part of the plaintiff. This is shown by the context. It will be observed that before the plaintiff could recover, under the concluding part of the instruction the jury must find that the plaintiff was ignorant of the character of said wire. This refers to actual knowledge of the danger on his part. Just before that we find the following: “That said wire showed no sign of being charged with electricity.” This refers to constructive knowledge on the part of the plaintiff. Before he could recover the plaintiff was ‘required to show, not only that he did not know of the danger, but that he had no reason to believe the wire to be charged with electricity. If the court intended to use* the word “known” to mean actual knowledge, as contended by counsel for the defendant, there would have been no use in telling the jury that it must also find that said wire showed no signs of being charged with electricity before he could recover. If he had to have actual knowledge it would not be any defense that the facts were such that he had reason to believe that the wire was charged with electricity and consequently in. the exercise of ordinary care ought to have known that it was so charged and was therefore dangerous to touch. Hence a majority of the court does not think that the court meant to restrict the meaning of the word “known” to actual knowledge, and we do not think there was any error in giving the instruction.
It is next. insisted that the court erred in refusing to instruct the jury that plaintiff had no right to touch the wire unless it interfered with his passage along the street. The court did not err in refusing to so instruct the jury. This would have been equivalent to the trial court ruling, as a matter of law, upon a question of fact. So, too, in regard to the request of the defendant to instruct the jury that if plaintiff voluntarily touched the live wire then there could be no recovery. Such an instruction would have been an attempt to limit the traveler along the street to an extent not warranted by the decisions.
Counsel for the defendant filed a reply brief in which he assigned as error the action of the court in several respects not argued in his original brief. This is contrary to the rules of the court and for that reason these assignments of error can not be considered by us. The rule has been uniformly enforced and no excuse has been given by counsel for not enforcing it in the present case. If counsel should omit to argue any assignment of error in his original brief, such assignment must be treated as waived or abandoned by him unless permission to amend his brief is asked and granted by the court for good cause before the case is submitted. We find no prejudicial error in the record and the judgment must be affirmed.
McCULLOCI-I, C. J., and SMITH, J., dissent.
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McCULLOCH, C. J.'
Appellee sued appellant in the circuit court of the Southern District of Arkansas County to recover damages sustained by reason of an alleged breach of contract between the parties whereby appellant undertook to furnish water for appellee’s rice crop during the year 1917. Appellee was engaged in growing rice and put in a crop of about thirty-eight acres, and, according to the allegations of the complaint, appellant orally agreed for a consideration to furnish water to flood the crop, and neglected to do so, thereby causing the crop to faiL Damages were laid in the com plaint in the sum of $4,560, the difference between the market value of appellee’s portion of the crop raised and the value of his part of the crop that would have been raised if water had been furnished by appellant according to the contract.
The action was commenced bn March 18, 1918, and the return of the sheriff shows personal service on appellant that day. There were no proceedings at the succeeding April term of court, but on the first day of the November term, which began November 4,1918, the court rendered judgment by default against appellant without his appearance, and the cause was passed to a later day of the term for assessment of the damages. There was an adjournment of the court that day over to December 16, 1918, and on the reconvening of the court appellant appeared by attorneys and filed 'his motion to require the sheriff to correct his return on the writ of summons to make it state the truth, but the motion did not set forth the imperfection or falsity of the return. On the same day appellant filed another motion to set aside the default judgment on the gnound that there had been no valid service of the writ of summons and that appellant had a good defense to the complaint. The prayer of that motion was that the default judgment be set aside and that he be allowed to plead to the complaint.
On the next day, December 17th, appellant filed still another motion to dismiss the complaint on the ground that he was not a resident of the Southern District of Arkansas County and that the court had no jurisdiction over his person. This motion was accompanied by numerous affidavits tending to show that appellant was a resident of the Northern District of Arkansas County and had no ‘‘usual place of abode” within the meaning of the statute (Kirby’s Digest, section 6042) in the Southern District of Arkansas County, and that he was not personally served with process. Appellee responded to the motion and undertook to show by affidavits of certain persons that appellant had a place of residence in the Southern District of Arkansas County and that the sheriff served the process by leaving a copy of the summons at appellant’s usual place of abode with a person who was a member of appellant’s family over the age of fifteen years. The deputy sheriff who signed the return stated in his affidavit that he had served the writ by delivering a copy at the place where appellant resided in the Southern District of Arkansas County to a person who also resided there. Each of the motions just referred to contained a statement that appellant appeared only for the purpose of presenting the motion.
The court overruled each of the motions on December 17th, and appellant then, by permission of the court, filed his answer tendering an issue on each of the allegations of the complaint. Appellee moved to strike the answer from the file, but the court overruled the motion and postponed the cause, at appellant’s request, to give the latter time to prepare for trial. The cause was heard by a jury and the jury returned a verdict in favor of appellee and awarded damages in the sum of $1,000.
It is unnecessary to determine whether or not according to the testimony, appellant was legally served with writ of summons, for it is clear that he waived that defect by pleading to the complaint and going to trial on the merits of the case without preserving his status in specially pleading the objections to the method of service. Each of the motions contained a recital that appellant appeared solely for the purpose of objecting to the service, but when the court overruled the motions appellant then appeared generally in the cause by filing his answer raising issues on the merits of the case. He had the right to appear specially and if his motion was incorrectly overruled he had the right to plead on the merits of the case without disturbing his former status in thus appearing. Spratley v. Louisiana & Arkansas Ry. Co., 77 Ark. 412. But in order to preserve his. objection on the ground of want of service he should have so indicated in the plea to the merits subsequently filed. Chicago, Rock Island & Pacific Ry. Co. v. Jaber, 85 Ark. 232. Moreover, one of the motions filed by appellant was solely for the purpose of having the default judgment set aside in order to permit him to plead to the merits and this itself was an appearance which could not he withdrawn.
The order of court refusing to set aside the default judgment and the order allowing appellant to file an answer on the merits and overruling appellee’s motion to strike it out were inconsistent with each other, but no prejudice resulted to appellant, for, notwithstanding the court did not formally set aside the default judgment, appellant was permitted to file an answer and the cause was tried on all of the issues raised in the complaint and answer. In other words, the issues were not confined merely to an ascertainment of the damages, but all of the other issues with respect to the making of the contract and the alleged breach of it were tried, as well as the question as to the amount of damages. The court submitted each of those issues to the jury upon appropriate instructions, the correctness of which have not been challenged.
The only other question raised here is that the evidence is not sufficient to justify the amount of damages awarded by the jury. It is claimed that the testimony was too vague and general as to the probable amount of rice appellee’s land would have produced if properly watered, whereas it should have been limited to testimony as to this particular land or adjoining lands of like character.
We are of the opinion that the evidence is sufficient to sustain the verdict. Several witnesses testified that they were familiar with this and adjoining lands and it is shown what amount of rice would probably have been raised on that land if it had been properly watered. It was proved also what the same character of lands in that particular locality produced that year. It is true the testimony took a broader range on the cross-examination of certain witnesses, but there are no objections here to the introduction of testimony, and we think there was an abundance of evidence to sustain the verdict.
Judgment affirmed.
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McCULLOCH, C. J.
This litigation involves a construction of the last will and testament of the late George L. Basham for the purpose of determining whether under the terms of the will the testator’s son, Leftridge Basham, took an estate in fee simple, as contended by appellee, or whether he took an estate tail, which under our statute is converted into a life estate, as contended on behalf of appellants. The instrument in question, omitting parts not material to this controversy, reads as follows :
“All the rest and residue of my estate, real and personal, I give and devise to W. B. Worthen Company, Robt. J. Lea, E. E. Moss; my brother, Hugh Basham, and my son, Leftridge Basham, to hold in trust for the purposes hereinafter set out. It is not my purpose to impose on my trustees, Lea, Moss and Hugh Basham, the burden of the management of my estate but simply to give them advisatory control.
“First. My said trustees shall pay all my just debts and funeral expenses and the legacy hereinbefore set out.
“Second. They shall pay to my son Leftridge the sum of one hundred and twenty-five dollars per month and a further sum each month which shall equal the amount of his earnings during that month in any vocation which he may follow. And the further sum of twenty-five dollars per month for each child bom in lawful wedlock while living.
“Should the exigencies of his business in the judgment of my trustees justify it, they may advance to him a reasonable sum provided the same can be done out of the income of my estate. Should my son by his own efforts accumulate an estate of the value of fifteen thousand dollars clear and unencumbered, or in any event when he shall have reached the age of forty-five years, my trustees shall turn over to him my entire estate.
“Should my son die without bodily heirs him surviving, then I will and direct that my trustees shall pay to each of the children of my four brothers and my sister the sum of one thousand dollars. Should any of my nephews or nieces die, prior to my decease, leaving a child or children, said child or children shall receive the part that would have gone to the parent if living. I further direct that they shall pay to my sister-in-law, Laura Basham, fifteen hundred dollars. All the above sums to be paid out of the income of my estate as soon as may be, should my son Leftridge so depart this life without bodily heirs him surviving. And in that event after the payment of the above legacies I hereby direct that my said trustees shall annually pay one-half of the net income of my estate each to Methodist Orphans ’ Home and the Florence Crittenden Home of Little Bock. Should either of these cease to exist then the whole net income shall be paid to the other.
“I hereby direct that $1,000 of my stock in the Bankers Trust Company shall be set aside by my said trustees and that the income and profits of the same shall be used for the care and preservation of my lots in Mount Holly Cemetery, Little Bock, Arkansas, and the furnishing of fresh flowers for the graves of my wife, my children and myself on natal, Easter and Christmas days.”
There is an undated codicil to the will, which reads as follows:
“I desire to make it clear that should my son Left-ridge (die) leaving heirs of his body, such heirs or their descendants shall inherit my estate in fee simple.”
The omission of the word “die” from the codicil is a patent one. It is clear from the language of the will that the trust should come to an end when Leftridge Basham should “by his own efforts accumulate an estate of the value of fifteen thousand dollars clear and unencumbered,” and in any event, when he “shall have reached the age of forty-five years.” According to the testimony in the case it has been determined by the trustees that said devisee has accumulated an estate of the value specified in the will, and they have turned the devised estate over to him.
When the whole language of the will is considered together, it is manifest that the testator used the words “should my son die without bodily heirs him surviving” with reference to the period before the time of distribution when the devised estate should be reduced to possession by delivery to the beneficiary. This, under the doctrine announced by this court in Harrington v. Cooper, 126 Ark. 53. In that case we approved a long line of decisions of the Kentucky Court of Appeals, where similar language in wills was restricted to the death of the remainderman before the termination of that estate or before the distribution of the estate or its reduction to the possession of the person to whom it is first devised.
Now, when the language of the codicil is considered in the light of what appears to be the intention of the testator expressed in the original instrument, it can not reasonably be construed as changing in anywise that intention. In fact, the language used shows that the testator had in mind his intention as expressed in the original document, and did not change the devise, but merely made clearer his intention as originally expressed. The language is not susceptible of the construction that it was intended to devise the property to heirs of the body of the first taker in any event, but merely to declare that those heirs should take the estate in fee simple, if they took at all, on the happening of the contingency specified, i. e., the death of the first taker before the distribution of the estate “leaving heirs of his body.” This interpretation of the will, which is not inconsistent with the language used, is induced by the well-settled canon of construction that'the law favors the early vesting of estates. And the fact that the trust is ended, according to the terms of the will, when the estate is delivered to the devisee on the happening of either one of the events specified, leads unerringly to this construction, for the provision of the will concerning the disposition of the property after the death of the first taker is made by the tras tees during the existence of the trust. So it is clear that no remainder over was intended, except upon the death of the first taker before he came into possession of the estate.
The decree of the chancery court was correct, and it is, therefore, affirmed.
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HABT, J.,
(after stating the facts). The decree of the chancellor was right. In Special School District No. 79 v. Special School District No. 2, 121 Ark. 581, the court, following Crow v. Special School District No. 2, 102 Ark. 401, held that rural special school district can only be established out of territory not already incorporated in a special school district, and that such district when once established cannot be dismembered by including a portion of its territory within the boundaries of another rural special school district.
The court further held that the law did not contemplate that there should be more than one election ordered at a time for the establishment of a particular territory into a rural special school district, nor that, after a petition had been presented for the organization of such special district with the map showing the territory asked to be included therein, any other petition for the inclusion of any such territory into another rural special school district should be considered by the county judge, nor an election ordered therein until the election ordered upon the petition first presented should have been held.
It is contended by counsel for the plaintiff that this decision does not control the instant case because the petition for the formation of Single School District No. 85 was filed before the petitions in the other districts were filed. This does not make any difference. It is not the filing of the petition, but the presentation thereof and the judgment of the court therein which closes the door to the presentation of other petitions until the election provided for in the petition first acted on shall have been held. This was the construction placed upon the decision in Rural Special School District No. 17 v. Special School District No. 56, 123 Ark. 570. In the latter case the court, referring to the former, said that the court had recently held that the territory embraced within a petition for the creation of a new single school district cannot, after the election has been ordered, be invaded by an attempt to create another district "out of a part of that territory.
It follows that the decree must be affirmed.
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SMITH, J.
This appeal questions the constitutionality of'act No. 130, passed by the 1919 session of the General Assembly, entitled “An act creating Road Improvement District No. 2 in Nevada County.” The act is very'similar to, and in many respects is identical with, the ácts construed by this court in the recent cases of Cumnock v. Alexander, 139 Ark. 153, and Reitzammer v. Desha Road Improvement Dist., 139 Ark. 168. Indeed, the counsel for some of those who attack the Nevada County act filed a brief as' amici curiae in the former cases and they now refer to that brief on their own appeal, the court below'having sustained a dehiurrer to the complaints in which the validity of the act was attacked. So that it now appears that most of the questions raised by appellants here have been decided adversely to their contention, and we shall here discuss only those questions not already disposed of.
For' the purpose of improving certain roads there mentioned the lands to be benefited thereby are divided into five sections or districts. Certain of the plaintiffs who attack the act allege that “the road for which their lands are to be' taxed is more than six miles from these lands; that they would be required to cross two public roads to reach this road, which is inaccessible to them; that absolutely no benefit is to accrue to said lands from the building of said roads, and yet these lands are to be charged with the burden of taxation for their construction.”
We have here, however, road districts-of legislative creation in which there is the direction that certain roads shall be constructed and a legislative determination that certain lands will be benefited thereby, and as was said in the case of Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113, “Nor can the courts review (a legislative determination) merely on general allegations that the assessments are ‘arbitrary, excessive and confiscatory.’ Facts must be pleaded which show that the decision of the lawmakers was not merely erroneous, but that it was manifestly outside of the range, of facts, so as to amount to an arbitrary abuse of power; for nothing short of that will authorize a review by the courts. ’ ’
We do not think that the allegations of the complaint set out above are sufficient for us to say, as a matter of law, that it would be arbitrary and confiscatory to assess lands six miles distant from the road to be improved. The benefit to be derived might be very slight, but that is a fact yet to be determined and one not now before us. Neither would the fact that there are intervening roads make it arbitrary and confiscatory to assess for the improvement of a road farther removed from the land.. We do not know the route, length or termini of these intervening roads; they may be unimproved roads which are passable only at certain seasons of the year.
These are questions of fact which make it impossible for us to say that the Legislature has made a demonstrable mistake. It might be said that it is pointed out in the brief filed on behalf of the commissioners that, when we have taken judicial knowledge of the public surveys, it will affirmatively appear that the lands in question are not six miles from the road to be improved, but a distance of less than three. However, we prefer to place our decision upon the first ground stated.
It is said the act must fall because it deprives the county court of its constitutional jurisdiction over the roads of the county, in that the act gives the court no right to remove commissioners and that the county court is given no control over the expenditure of the road tax collected in any of the townships in which any of the lands of the district shall lie, the tax here referred to being the three-mill tax collected under the authority of the Fifth Amendment to the Constitution. In answer to this objection, it may be said that the plans of the commissioners must first be approved by the county court, as well as any changes therein which may later be proposed. And, while the act does not provide that the county court shall direct the disbursement of the portion of the annual three-mill road tax which may be given to a particular district, it only authorizes the court to turn this money over to a particular district. The same section of the act authorizes the county court “to contribute such funds in money or scrip to the expense of the improvement from the general revenue of their respective counties as it may deem appropriate.” And it is fair to presume that, in making this disbursement, the court will ascertain the needs of the particular district which requires assistance from either the three-mill road tax fund, or from the county general revenue, and will act for the best interests of all parties in the disbursement of these funds. The act does not undertake to deprive the county court of its control of these funds—it only authorizes a particular use which the court may or may not make of those funds, that is a donation to the road districts.
The act is also attacked upon the ground that it is arbitrary and confiscatory, in that the lands in the southern part of the county are not included in the district and will not be taxed for the improvement. "We think this objection is sufficiently answered by the statement that the roads do not extend beyond the boundary of the districts, into the portions of the county not taxed. There must be some limit alike to the boundaries of the district and the length of the roads, and it does not appear that any arbitrary action has been taken here in defining the boundaries of the districts or the termini of the road.
The complaint alleges that the act provides that if sections 1 and 3 of the road scheme shall be constructed the existence of a prior road district shall be terminated and sections 1 and 3 should assume all the expenses of the prior district and that all expenses already incurred by said road district shall be a charge on the lands of these sections 1 and 3, and that this action places a burden on the lands of these taxpayers in violation of the due process clause of the Fourteenth Amendment.
This objection to the, act is based upon the provisions of sections 22 thereof, which reads as follows:
“Section 22. If the commissioners and the county court find that it is feasible, practicable and desirable to construct sections one and three of the roads, as provided for in this act, and shall file the plans therefor with the county clerk, as provided in this act, or shall make the assessment of benefits in said sections one and three, and said assessment of benefits in each of these sections shall be sufficient to complete the improvement in each, and this act and the said assessment of benefits shall not be held invalid, and the commissioners are ready to let the contract for the construction of the improvement in each of sections one and three, they shall file a statement to this effect with the county court, and the county court is thereupon authorized to enter an order terminating the existence of Road Improvement District No. 1 of Nevada County. Appeals from such order shall be taken within thirty days after its entry, and not thereafter. If the county court does not enter an order terminating the existence of said Road Improvemeiit District No. 1, as herein provided, then its existence and the proceedings of its commissioners and assessors shall not be affected bv this act, but they may proceed to make the improvements in their district, under the provisions of the law under which said Road Improvement District NumbAr One wa,s created.
“It is found and herebv declared that the survevs, plans, and other expenses incurred bv sa.id Road Improvement District Number .One produced results that will inure to the benefit of sections one and three of the respective roads and the respective territorv set forth in this act. and in the event the existence of Road Improvement District Number One shall be terminated, as herein provided, the said sections one and three, created under this act. shall assume and pav each one-half of such expenses and other indebtedness.”
We see no constitutional obiection to this section. The Legislature has made provision for the possible dissolution of a certain district numbered 1, and has provided the manner in which it ma,v be dissolved, if it is decided to take that action. In the recent case of Reitzammer v. Desha Road Imp., 139 Ark. 168. we decided that a<? the Legislature might create, so it might abolish, road districts, taking care, however, to see that n.o outstanding obligations or1 contracts were impaired. Having made provision for the dissolution of an existing road district, it was proper to make provision for the pavment of the expenses and other indebtedness of the district dissolved, and this the act has done, and no attempt is made to show that the apportionment of this indebtedness was made arbitrarily.
Complaint is also made that property in the city of Prescott has been placed in each of the five districts created by the act. Bnt in the recent case of Cumnock v. Alexander et al., we reaffirmed the doctrine of earlier cases which had held that lands might be placed in more than one district, if they would in fact receive a separate and distinct benefit by each of the proposed improvements.
The validity of the district is also questioned because of the presence in the act of a provision for the appointment of a receiver; and another for certain exemptions from liability in favor of thg commissioners; and still another for the payment of such reasonable expenses as may have been incurred in preparing the act. We think, however, that if anyone or all of those provisions were held invalid, the act would not fall on that account. We think they are clearly separable, and that the Legislature did not intend to make the validity of the act dependent on mere matters of detail, and that the act would have been passed with these provisions stricken from the bill. Oliver v. Southern Trust Co., 138 Ark. 381, and cases there cited.
Other questions are discussed in the briefs filed by appellants; but we regard them as settled adversely to the contentions made by appellants in the cases cited in appellee’s brief. ■
The decree of the chancellor sustaining the demurrer to the complaints attacking the district is therefore affirmed.
WOOD and HART, JJ., dissent.
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McCULLOCH, C. J.
Appellant instituted this action against appellee in the circuit court of Clay County to recover possession of a tract of land containing 80 acres in that county, alleged to be in the unlawful possession of appellee. The cause was transferred to the chancery court over the objection of appellant, and proceeded to a final decree in favor of appellee.
Appellant’s chain of title runs as follows: The land was purchased from the State of Arkansas in July, 1872, by a copartnership composed of P. H. Young, James Surridge and Joseph T. Fisher, and was, in the year 1877, sold under execution against said purchasers, and at the execution sale was purchased by Hecht & Brother, a copartnership composed of Levi Hecht and Samuel Hecht. Upon the expiration of the statutory time for redemption the sheriff of Clay County executed a deed pursuant to the sale, which purported to convey the land to the copartnership by that name without specifying the individual names of either of .the partners. Samuel Hecht died intestate, leaving appellant and other children as his heirs at law, and in a partition suit between said heirs and Levi Hecht the tract in controversy was allotted to the heirs of Samuel Hecht. The other heirs of Samuel Hecht conveyed their interests to appellant.
Appellee claims title under a tax sale in the year 1889, at which sale J. M. Stephens became the purchaser. Stephens conveyed the land in the year 1893 to H. H. Williams and Williams conveyed to appellee by deed dated November 28, 1913. This action was begun on ■December 15, 1915.
The first question presented is whether or not the circuit court erred in transferring the cause to the chancery court. The ruling of the court in transferring the cause is defended by learned counsel for appellee, first, on the ground that there is a defect in the sheriff’s deed under the execution sale in that it recites the sale to have been made by the officer after the return day of the writ, and that a reformation of the deed so as to show the true date of the sale is essential to appellant’s cause of action for the recovery of the land. The answer to this contention is that the pleadings do not show any defect in the sale with respect to the sale being made after the return day of the writ, and there is no prayer for equitable relief. There was an amendment to the complaint substituting a new copy of the sheriff’s deed and alleging that the copy originally exhibited contained the wrong date, but it is not alleged that there was any error in the recitals of the deed concerning the date of sale, nor is there any prayer for reformation.
Next, it is urged that the sheriff’s deed of conveyance to the copartnership under that name (Heeht & Brother) without specifying the individual names of either of the partners conveyed only the equitable title and that it was essential to appellant’s cause of action for the case to be transferred to equity so that the deed could be reformed. Again, it may be said in answer to this contention that there was no prayer for a reformation, nor was that essential to appellant’s right of action for the reason that the deed conveyed the legal title to the copartner whose surname was. stated, and the subsequent partition suit settled the rights of all other parties who had an equitable interest. In Percifull v. Platt, 36 Ark. 456, it was decided that a deed to a partnership under the firm name which expressed the surname and initials of one of the copartners operated as a conveyance of the legal title to the copartner so named, and in Cole v. Mette, 65 Ark. 503, it was heid that a conveyance to a copartnership under the firm name which expressed the surnames, but not the Christian names nor initials of the copartners was sufficient to convey the legal title to both of the copartners. In disposing of that question in the case of Cole v. Mette, the court approved the case of Fletcher v. Mansur, 5 Ind. 267, where it was held that “a deed to one person, describing him by his surname only, is not for that reason void.”
In the present case only the surname of one of the partners was stated in the conveyance, and under the doctrine of the cases just referred to that was sufficient to convey the legal title to him. It became just a question of identification, and the only difference between this case and the case of Cole v. Mette is a matter of degree of proof of identification, it being said in the opinion in that case that the fact that the surnames of both of the partners being mentioned afforded better means of identification than where the name of only one of them was mentioned. It is clear, therefore, that appellant showed in her pleadings a legal title to the land and the right to immediate possession, and was entitled to sue at law.
It is further contended that appellee set up sufficient grounds in his answer to justify the transfer of the cause to equity, in that the original tax deed under which he claimed was imperfect because the name of the clerk of the court was not specified in the certificate of acknowledgment. W. E. Spence was the county clerk who executed the deed and J. M. Stephens was, as before stated, the purchaser. The deed was in the form specified by statute and mentioned the name of the grantee and the name of the officer who made the conveyance. The certificate of acknowledgment followed the form specified in the statute, but erroneously mentioned the name of the clerk as “W. E. Stephens.” It was certi fied, however, that the party who appeared and executed the conveyance was the clerk of the county court, who was personally known to the officer, and acknowledged that he executed the conveyance “as clerk of the county court of said county.” The only error in the certificate of acknowledgment was in stating the name of the clerk, and this was an obvious clerical error, which did not defeat the conveyance, for it is clear from the deed and acknowledgment that the deed was executed by W. E. Spence as clerk of the county and was duly acknowledged by him before the officer.
There was no grounds for transferring the cause to the chancery court, as appellant had based her right of action on a legal title to the land and sought only a legal remedy, and appellee offered no equitable defense, except the plea of laches, but that plea was not available where no equitable relief was sought in the complaint. Rowland v. McGuire, 67 Ark. 320.
It is insisted that the complaint and one of the exhibits show affirmatively that appellant’s right of action was barred by limitation, and that for that reason the error in transferring the cause to chancery was harmless. An examination of the record, however, does not sustain that contention. The complaint sets out appellant’s chain of title and contains an allegation that appellee “is in the unlawful possession of said lands and has been for two years past.” The complaint contains no allegation with respect to the character of appellee’s possession except that it is unlawful. It is not alleged, that the possession was adverse or that it was held under any claim of ownership under a tax deed, or otherwise. It is true there was an affidavit filed with the complaint which was made by appellant’s attorney stating that “she is informed and believes” that appellee claims the land in controversy “by reason of a sale of said land for the taxes on the same’’and that appellant had tendered to appellee “ a sum of money equal to the amount of taxes and costs first paid for said land with interest thereon from the date of payment thereof and the amount of taxes paid thereon by the purchaser subsequent to such sale, with interest thereon, and the value of improve.ments made on such land.” The affidavit does not recite the date of the tax sale or deed, nor does it contain any allegation that appellee was in possession under a tax deed. The affidavit does not constitute a part of the pleadings in the case, but, even if it were so treated, it is not sufficient to show on its face, either by itself or in connection with the allegations of the complaint, that appellee occupied the premises adversely for two years under á tax deed. For that reason it is not correct to say that the complaint shows affirmatively that appellant’s right of action is barred. It is undisputed that appellee claims the land under a tax deed, but the testimony does not show beyond controversy that there was an adverse holding under that deed for two years before the commencement of this action. The allegation in the complaint with respect to the unlawful possession of appellee for two years before the commencement of the action was not necessary, so far as the length of time of said possession was concerned, to a statement of appellant’s cause of action for the recovery of the land, and was included merely for the purpose of setting forth the facts upon which a recovery of the rents and profits could be based. On the trial of the action it would operate as an admission on the part of appellant as to the length of time appellee had been in possession, but she is not conclusively bound by the allegation so far as it relates to appellee’s plea of the statute of limitaions. Appellant was entitled to a trial by jury in a court of law on the issue raised by appellee’s plea of the statute of limitations, and this privilege was denied by the transfer to equity.
The deci’ee is therefore reversed, and the cause is remanded with directions to remand the cause to the circuit court for further proceedings not inconsistent with this opinion.
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HUMPHREYS, J.
The issues presented by the pleadings in this case involve the validity of an act of the General Assembly of 1919 (Act No. 302) creating road improvement district, designated as the Des Arc-Hazen Road Improvement 'District of Prairie County.
It is contended that the act is void because, after the act was read the first and second times in the Senate, the first two pages were extracted and two pages substituted for them, which had not been approved by the Senate. In determining whether an act has been properly passed by both houses of the General Assembly the court will not look beyond the records, books, papers and rolls of the General Assembly, and the journals of each house required to be kept by the Secretary of State. Rogers v. State, 72 Ark. 565. In the case of Chicot County v. Davies, 40 Ark. 200, Mr. Justice Smith took occasion to say that “the enrollment is a solemn record and the existence of the act is to be proved by the record and is not to depend on the uncertainty of parol proof or on anything extrinsic to the law and the authentic recorded proceedings in the passage thereof.” This doctrine was reiterated in the case of Harrington v. White, 131 Ark. 291, in which the rule was laid down that “an act of the Legislature, signed by the Governor and deposited with the Secretary of State, raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the record of the General Assembly. ’ ’ This rule was confirmed in the recent case of John W. Perry v. State of Arkansas, 139 Ark. 227. All the records pertaining to the passage of the bill in question are incorporated in the transcript in this case. An examination of them fails to disclose that the first two sheets of the original bill, after being read the first and -second times, were extracted and different sheets substituted therefor, which were never read a first or second time in the Senate. Without an affirmative showing in the record to this effect, the act cannot be declared invalid. An admission to this effect, unless established by the record, ■could not affect the validity of the bill any more than parol proof to that effect.
It is also contended that the act is unconstitutional because the description of the lands in township 4 north, range 5 west, is indefinite and uncertain. The lands in said township and range embraced in this district are designated by sections and parts of sections. The particular description complained of in section 1 of the act is as follows :
“All of the territory embraced within this district lies west of White River and shall include the following described property, to-wit:
“All of sections 2-36, both inclusive, township 4 north, range 5 west, west of White River. ’ ’
It is insisted by appellant that the description “2-36, both inclusive,” was intended to describe only two sections, 2 and 36. If appellant’s contention is correct, the effect would be to include section 2, two miles from the improvement, and exclude several sections between it and the improvement. Under the rule laid down in the recent case of Milwee v. Tribble, 139 Ark. 574, this would render the act void as being arbitrary and discriminatory on its face. Our construction of the description, however, is that it describes all of sections 2 to 36, inclusive, in said township and range, lying west of White River. A dash between figurse is defined in the Century Dictionary as follows: “Dash—The em or the en dash is often used to indicate the omission of the intermediate terms of a series which are to be supplied in reading, between thus often equivalent to ‘to * * * inclusive;’ thus, Mark iv, 3-20 (that is, verses 3 to 20, inclusive); the years 1880-88 (that is, 1880 to 1888).” Of course, if the dash were treated as a hyphen, appellant’s contention as to the meaning of the description would be correct. If by treating it as dash, instead of a hyphen, validity can be given to the bill, that is the proper construction to give it, for, where the language is susceptible of two constructions, the court will adopt the construction which will render the statute valid. Cunningham v. Keeshan, 110 Ark. 99.
It is manifest from the language used in the act that the Legislature only intended to include within the district lands west of White River. It is admitted in the answer that all or parts of sections 12 or 13, township 4 north, range 5 west, lie east of White River. On account of this admission the contention is made that the description “2-36” was not intended to include sections 12 and 13, and therefore must be construed as including sections 2 and 36 only. The logic of learned counsel for appellant would be sound if “2-36, both inclusive,” stood alone. In that event, it must either mean the two sections only or the entire 35 sections, one or the other. But when followed by the words, “west of White River,” as in this case, it clearly means all or such parts of the 35 sections in said township and range as lie west of the river. This interpretation is in keeping with the plain meaning of the language used. The language is: “All of sections 2-36, both inclusive, township 4 north, range 5 west, west of White River.”
It is also insisted that the act is void because the southern boundary of the district is indefinite and uncertain, in that the act fixes the one-half section line of sections 19, 20, 21, 22, township 2 north, range 5 west, and sections 23 and 24, township 2 north, range 6 west, as the southern boundary, and, at the same time, includes the'right-of-way of the Chicago, Rock Island & Pacific Railway Company, most of which is conceded to lie 100 yards south of said one-half section line. The descriptive language in the act, construed by counsel for appellant as rendering the southern boundary of the district indefinite and uncertain, is as follows: “ * * * and the north half of sections 19, 20, 21 and 22, township 2 north, range 5 west, including the right-of-way of the Chicago, Rock Island & Pacific Railway, * * * and the north half of sections 23 and 24, township 2 north, range 6 west, including- the right-of-way of the Chicago, Bock Island & Pacific Bailway Company.” We do not think the language of the act warrants such a construction. According to the map in the transcript, a part of the right-of-way of the Chicago, Bock Island & Pacific Bailway is north of said one-half section line; so, the reasonable interpretation and one in keeping with the plain wording of the act, is that only so much of the right-of-way of said railroad as lies in the north half of said sections is intended to be included in the district. Any other construction would lead to the conclusion that territory intervening between said right-of-way and said one-half section line was intended to be included, but omitted. Such construction would render the act void under the rule announced in Milwee v. Tribble, supra, and Heinemann v. Sweatt, 130 Ark. 70. Where a statute is susceptible of two constructions, the court will adopt the one that will sustain the validity of the act. While we think there is no ambiguity in the language referred to, and that the language clearly sustains the construction that only , such parts of the right-of-way as lie in the north half of said sections were intended to be included in the district, yet, under the rule last announced, applicable to the ambiguity of statutes, the statute is valid.
It is also insisted that the act is void because it provided for the improvement of a road running west along the half section line of section 19, township 2 north, range 5 west, to Livermore street in the town of Hazen, where there is no public road, and where it would be impracticable for the county court to open a road or street, on account of houses or other improvements obstructing the way. It is immaterial whether the route designated by the Legislature follows a public road, because it is provided by section 2 of the act that: “If any part of said roads has not been laid out as a public road, it is hereby made the duty of the county cóurt of the proper county to lay the same out in accordance with Act Ño. 422 of the Acts of the General Assembly of the State of Arkansas for the year 1911, entitled, ‘An act to amend section 7328 of Kirby’s Digest of the Statutes of Arkansas, ’ approved May 31, 1911. ’ ’
A like provision in a similar statute was upheld as constitutional in the recent case of Sallee v. Dalton, 138 Ark. 549. But it is said the Sallee case should not rule the instant case because it did not appear in the Sallee case that the way was obstructed by houses and other improvements. This, however, can make no difference, as there is no inhibition against the opening of public roads over improved lands. Again, it is provided in the act that the commissioners, with the approval of the county court, may vary the route. Even under the restricted construction placed upon a grant of such power in the case of Rayder v. War rich, 133 Ark. 491, 202 S. W. 831, the route might be varied so as to pass around houses or other obstructions. It goes without saying that the route, as varied, must remain within the boundaries of the district. Appellant has called attention to the fact that Livermore street, in the town of Hazen, is not open to the corporate limits, and that the county court has no jurisdiction to approve a plan for a new street or route within the corporate limits of a town, and, for that reason, it is contended the act is void. This conclusion is reached on the theory that the city council is vested by the Constitution, of the State with the exclusive jurisdiction to open highways through a town. No such exclusive power is granted to the agencies of towns.
It is insisted the act is void because the route or roads, designated for improvement, are separated for the distance of a mile by a road being constructed by another district from the southeast corner of section 10 to the northwest corner of block 25, W. S. Des Arc. It is said that the roads are so disconnected and remote from each other as to constitute separate or independent improvements, and that the legislative determination that they constitute a single improvement is an arbitrary exercise of power. The section of the act assailed is as follows: “It is found and declared by the General Assembly that the road now being constructed by Road Im provement District No. 4 of Prairie County, connects the roads hereinabove described, making a single improvement, and for the purposes of this act,, it is hereby declared that the connection extending from the southeast corner of section 10 to the northwest corner of block 25 W. S. Des Arc, shall operate to' constitute the lines of road mentioned in this act as a single improvement.”
A similar statute was before this court for review in the recent case of VanDyke v. Mack, 139 Ark. 524. In that case, it was held that a connecting road between the contemplated improvement, ten miles in length, in the course of construction by an independent improvement district, did not frustrate the design of the Legislature in creating the Jackson County Improvement District, even though the boundaries of the district were fixed by measurement from the route selected. In the instant case, the boundaries are not dependent on the route of the road constructed and the gap is only one mile in length, as compared to ten miles in the Jackson County district. The mere fact that roads to be constructed in an improvement district are tied together by other roads constructed, or being constructed by independent improvement districts, does not prove that the proposed district is a combination of independent districts. Even the boundaries of separate districts may overlap without without destroying the independence or singleness of each, if the lands in both derive a substantial benefit from either improvement. Cumnock v. Alexander, 139 Ark. 153; VanDyke v. Mack, 139 Ark. 524.
The last contention of appellants, that the broad powers conferred upon the Board of Commissioners is an infringement upon the exclusive jurisdiction of the county court over roads, is contrary to the doctrine announced in Sallee v. Dalton, supra, and approved by Cumnock v. Alexander, supra, and Reitzammer v. Commissioners of Desha Road Improvement District No. 2 et al., 139 Ark. 168.
No error appearing, the decree of the learned chancellor is affirmed.
HART, J., dissents.
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WOOD, J.
This is an action by the appellee against the appellant to recover damages for the alleged negligent killing of a Jersey heifer belonging to the appellee. The appellee alleged that the heifer was killed about three-fourths of a mile north of Ashdown by the southbound passenger evening train of the appellant. The appellant denied that it had killed the heifer, and set up that if the appellee had been damaged the loss was due to his own negligence and carelessness, and not to any negligence on the part of the appellant.
The appellee testified that about the 12th day of August his Jersey heifer was killed about three-fourths of a mile north of Ashdown. He knew that the evening passenger train killed her because he saw she was dragged in front of the train; found her on the right-of-way on the east side of the track right at the crossing; that on one side she had some skinned places and the left hind leg was broken. Witness had demanded of the agent of the appellant at Texarkana the sum of $75 as pay for the heifer, but the agent refused to pay. The heifer was worth $75.
Other witnesses corroborated the testimony of the appellee tending to prove that the heifer was killed by the said passenger train of appellant’s as alleged in appellee’s complaint, and that the market value of the animal was $75. The testimony tended to prove that the railroad track at the point where the animal was killed was straight for some distance; that one could see 150 yards north of that point.
The testimony of the engineer was substantially as follows: “He was an engineer and pulling the passenger train going south which killed the heifer in controversy. Witness could see the cows on the left-hand side of the track in plain view. There was a road crossing close to where they were, and the cow didn’t show any indication of being close to the track, or anything. Witness whistled for the road crossing, and then whistled for the semaphore signals, and applied the brakes, got the semaphore answer and went on down, and just as he got in seventy-five or eighty feet of the cow she raised her head and went for the track, and just before she got across she momentarily stopped and the train hit her. Witness couldn’t stop. She jumped on the track in front of witness, and with the train witness had it was impossible to prevent the same from killing her. If it had been witness’ own wife and child, he couldn’t have prevented the accident. The train had air-brakes in good order. The cows were one-half mile away when witness first saw the cattle. They were 25 or 30 feet away from the track on right-of-way. They made no attempt whatever to approach the train until witness got within 75 feet. The heifer jumped right up with her head up, and came right upon the track. Witness had already applied the brakes. He applied them about 1,500 feet from where the cattle were. He had reduced his rate of speed coming into the city limits and approaching semaphore and had applied brakes in service application, not a stop application. The service application is to check the speed of the train, in order to have it under control, approaching the semaphore. Witness drew off probably three or four pounds of air in order to check the momentum. It wasn’t to stop the appliance at all, but when he saw the cow going straight toward the track he went into emergency immediately. The cow started like she was coming across, and she got with her front feet upon the track and stopped. She was on the east side and was khocked off on that side.
The court gave the following instruction to the jury:
“It shall be the duty of all persons running trains in this State upon any railroad to keep a constant lookout for persons and property upon the track of any and all railroads, and if any person or property shall be killed or injured by the neglect of any employee of any railroad to keep such lookout, the company owning or operating any such railroad shall be liable and responsible to the person injured for all damages resulting from neglect to keep such lookout, notwithstanding the contributory negligence of the person injured, where, if such lookout had been kept the employee or employees in charge of such train of such company could have discovered the peril of the person injured in time to have prevented the injury, by the exercise of reasonable care after the discovery of such peril; and the burden of proof shall devolve upon such railroad to establish the fact that this duty to keep such lookout has been performed.”
The appellant objected specifically to the instruction on the ground that the evidence in the case did not warrant the court in giving the same and because the instruction, which is a copy of the act of May 25, 1911, commonly referred to as the “Lookout Statute,” is misleading because the facts recited in the statute are not supported by the evidence in the case.
The court also' instructed the jury as follows: “If you believe from the evidence in this case that if defendant’s servants had been keeping a lookout and could have avoided the killing of plaintiff’s cow by stopping its train, it was the duty of defendant’s servants to stop its train to avoid the injury.”
The appellant asked the court to instruct the jury to return a verdict in its favor, which request was refused. To which ruling the appellant duly excepted.
The court granted appellant’s prayers for instructions Nos. 2 and 3 as follows:
“2. The court instructs the jury that the engineer operating the locomotive pulling the train has the right to operate the train upon the assumption that any animal on the track will get off before being struck by the train. In this case,If the animal was upon the right-of-way, or if it was near enough to the track to be struck by the engine, nevertheless the engineer had the right to assume that the animal would move out of the way before the train arrived at the point where the animal was. If the animal started across the track in front of the engine suddenly, and if the animal remained still until the engine was only a short distance away, and then started suddenly to cross the track in front of the engine, and if, after the engineer realized that the animal would cross in front of the engine, he was unable to slow the engine down or stop it, so as to avoid the killing, in that event you will find for the defendant.”
“3. If the animal was in view, and was in a place of safety when first observed by the engineer, the said engineer in that event had a right to assume that the animal would not suddenly rush upon the track and had the right to operate his train accordingly. If said animal did remain in a place of safety until the engine, was so near that it could not be stopped, and then rushed suddenly in front of the engine and was injured, the jury will find for the defendant. ’ ’
The jury returned a verdict in favor of the appellee in the sum of $60, and from the judgment rendered in his favor against the appellant for that sum is this appeal.
In St. L. S. W. Ry. Co. v. O’Hara, 89 Ark. 120, we held: “Where the testimony of the engineer in charge of a locomotive engine was consistent, reasonable and uncontradicted, and showed that the killing of the animal was unavoidable, a judgment in plaintiff’s favor will be reversed.” See also other cases cited in appellant’s brief.
The appellant contends that the above doctrine is applicable to the facts of this record and calls for a reversal of the judgment. '
The engineer testified that he could see one-half mile away as he was coming around the curve; that he checked his train 1,500 feet away because he was approaching the city limits and semaphore; that the cow was three-fourths of a mile from the depot, his train being still further away; that the cow was 25 or 30 feet from the railroad track and showed no inclination to approach the track until his train got within 75 or 80 feet of the cow, “when she just raised her head and went for the track and just before she got across she just momentarily stopped with her front feet upon the track and the train hit her. ’ ’
The testimony of the appellee tended to prove that the heifer was knocked off on the east side of the track about six or seven feet from the railroad. She had skinned places on the left side and her left hind leg was broken. No injury was noticed about the head, except a little blood running out of her nose.
Now, taking into consideration the physical injuries to the cow as described by the witnesses and the position she was in on the track at the time the train struck her, the direction in which she was moving and the rate of speed at which she must have been moved; the distance from the track when she began to move towards it and the respective distances of the cow and the train from the point where the collision occurred at the time the cow first began to move towards the train, and the relative speed made by each, we conclude that it was.for the jury to say whether the testimony of the engineer was reasonable, consistent and uncontradieted.
The jury might have concluded that his testimony was not consistent with the physical facts as detailed by him and other witnesses. For instance, if the cow was on the east side of the track 25 or 30 feet away from the same and had fun towards the west, stopping with her front feet on the track and was struck by train going south as the engineer testified, the jury might have concluded that this testimony was wholly in conflict with the physical facts as to the injury of the cow as described by other witnesses.
If the cow was crossing the track from the east to the west and stopped with her front feet on the track while the train was going south, this would have thrown her right side, and the front part of her body, her head, in a position to be first struck by the train. But the testimony of the witness was to the effect that her horns were not broken; that he did not notice any skinned or bruised places about her head, and that the skinned and bruised places on her body and the broken leg were all on the left side.
These facts were at least sufficient for the jury to say whether or not the engineer’s testimony was reasonable, consistent and uncontradicted. Therefore, the doctrine announced in St. L. S. W. Ry. Co. v. O’Hara, supra, and other cases cited and relied upon by the appellant is not applicable to the facts of this record.
The testimony of the appellee tended to prove, and the appellant’s engineer testified, that the heifer was killed by the running of the train. This under the statute raised a prima facie presumption of negligence on the part of the appellant and cast upon the appellant the burden of overcoming the presumption. Kirby’s Digest, section 6607; St. L., I. M. & S. Ry. Co. v. Fambro, 88 Ark. 12; K. C. So. Ry Co. v. Davis, 83 Ark. 221.
The appellant did not overcome this presumption by testimony which can be said as matter of law to be “consistent, reasonable and uncontradicted,” and therefore the court did not err in refusing to instruct a verdict in its favor.
The credibility of appellant’s engineer was for the jury. Although the engineer testified that he was keeping a constant-lookout and observed the cow, nevertheless under the circumstances it was a question for the jury to determine whether or not he was keeping a lookout required by the statute, and whether or not he failed to do so, and, if he failed to do so, whether or not such failure resulted in the killing of the appellee’s heifer of which he complains.
The appellant’s seventh ground of motion for a new trial is that the court erred in giving, on the motion of plaintiff, instruction No. 3, which was the reading by the court to the jury section 8131, of Kirby’s and Castle’s Digest of the statutes.
The bill of exceptions recites the following: “The court on his own motion gives the following instruction to the jury, which is section 8131, Kirby’s Digest, which said instruction is in words and figures as follows: (Then follows the instruction which is in the exact language of section 8131 of Kirby’s and Castle’s Digest). Then follows the exception to the ruling of the court.
It was proper, under the issue of negligence raised by the pleadings and the testimony, to declare the law defining the duty of the employees of railroads running trains in this State to keep a constant lookout as prescribed by the statute. There was no issue before the jury as to what was the proper interpretation to be put upon this statute, nor is it a case where the statute is susceptible of more than one interpretation.
The only question was and is, whether the statute is applicable. The issue- raised made the statute applicable.
It is the better practice for the court to interpret for the jury the meaning of the statute in its instructions, rather than to read the same to the jury as a declaration of law. St. L., I. M. & S. Ry. Co. v. Elrod, 116 Ark. 514. But here, as we have seen, there was no issue as to what interpretation should be put upon the statute and the facts rendered the statute applicable. The mere reading of it could not have resulted in any prejudice to the jury.
The instructions as a whole correctly submitted the only issue, to-wit: “Whether or not the killing of appellee’s heifer was the result of the negligence of appellant in running its train.”
The judgment is correct, and it is affirmed.
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WOOD, J.
This action was begun by the appellant against the appellees on November 21, 1917, in the chancery court of Sevier County, Arkansas, to redeem a certain tract of land in Sevier County which was sold on November 30, 1916, by foreclosure proceedings not in the chancery court but under the power contained in the mortgage.
The complaint alleged that the foreclosure was void but this allegation was abandoned, as the appellant did not follow it up with a prayer to set aside the sale nor with any proof to the effect that the conditions of the mortgage had been complied with by him.
The land was purchased by J. L. Bales, who paid therefor the sum of $500. The appellant tendered this sum with interest, and prayed that he be allowed to redeem aiid be allowed credit for the rental value of the land for the time the purchaser had been in possession thereof.
The appellees answered, denying appellant’s right of redemption and setting up that they had expressly waived such right, but asked that, in case the redemption were allowed, they be permitted to recover certain sums for necessary repairs, improvements, insurance, taxes, etc., all of which are specifically set forth in their answer.
The court found that appellant had made default under conditions of the mortgage, and that the foreclosure sale in all things was in strict compliance with the terms of the mortgage, and that under the terms of the mortgage appellant waived all rights of redemption. A decree was entered dismissing the complaint for want of equity, from which is this appeal.
The mortgage contained the following provision: “All rights of redemption provided for by the laws of the State of Arkansas are hereby waived by the mortgagor herein.”
The act of March 17, 1879, section 1, p. 94, regulating the sale of property under mortgages provides: ‘‘ Real property sold hereunder may be redeemed by the mortgagor at any time within one year from the sale thereof by payment of the amount for which such property is sold, together with interest thereon and cost of sale.”
This section of the act of 1879 was amended in certain particulars, and among others giving the mortgagor, in any mortgage where the sole consideration of the mortgage is money loaned, the right to waive the privilege of redemption by a clause in the mortgage to that effect. Section 1 of the Acts of 1883, p. 157. This particular amendment to section 1 of the act of 1879 by section 1 of the act of 1883, supra, appears as section 4763 of Mansfield’s Digest. That section was expressly repealed by the act of February 26, 1887.
These various acts regulating the sale of property under mortgages show that the Legislature had in mind the subject-matter of granting to mortgagors the right of redemption from sales under mortgages, and finally left the law on the right to redeem to stand as it was originally enacted in section 1 of the act of 1879, supra, which is now digested as a part of section 5416, Kirby’s Digest.
This court, in Martin v. Ward, 60 Ark. 510-12, held “that a sale under a mortgage or trust deed was a sale by virtue of a power of sale contained in such instrument.” There is, therefore, no authority in the law for a waiver of the right of redemption from the sale made under power contained in the mortgage, which right of redemption is expressly, given to the mortgagor by the statute regulating such sales.
Inasmuch as the Legislature has given the absolute right of redemption from sales under mortgage and has not provided that such right may be waived in the mortgage itself, it cannot be so waived.
The granting of such right, however, is peculiarly for the benefit of the mortgagor, and as to whether he could waive such right by contract and for a consideration separate and independent of the mortgage is not before us.
The sale from which redemption was sought was under the power contained in the mortgage. The statute, according to which such sales must be conducted, grants the right of redemption without providing for waiver. The history of this provision, supra, shows that the Legislature, by the express language of the act giving the right of redemption from the sale under the mortgage, intended to exclude the idea that there could be a waiver of such right in the same instrument. Because when the Legislature in 1887 expressly repealed the provision of the act of 1883 granting to mortgagors the right to waive the privilege of redemption, by a clause in the mortgage to that effect, in cases where the sole consideration of the mortgage was money loaned, it evinced a purpose not to allow a right of waiver at all in the mortgage instrument and to leave the act of 1879 in this respect as originally enacted. This result follows under the familiar rule of “expressio unius est exclusio alter bus.” Watkins v. Wassell, 20 Ark. 40.
A sale under a decree of court is not a sale under a mortgage. Martin v. Ward, supra; Johnson v. Meyer, 54 Ark. 441. Therefore, the act of 1899 (section 5420, Kirby’s Digest), giving the right of redemption from such sales by foreclosure of mortgages in the chancery court and providing for a waiver of.such right is not applicable to the facts of this record since this was a foreclosure under the power contained in the mortgage.
It follows that the court erred in holding that appellant waived his right of redemption, and therefore had no right to redeem from the sale.
The trial court, having decided that the appellant had no right to redeem, did not pass upon the other issues, and we have not done so.
For the error indicated the judgment is, therefore, reversed and the cause will be remanded with directions to allow the appellant to redeem, with permission, if the parties so elect, to amend their pleadings and take further proof concerning the issues of tender, rents, improvements, etc.; and have further proceedings according to law and under the familiar rules of equity in regard to tender as announced by this court in Wood v. Holland, 53 Ark. 69; Wood v. Holland, 57 Ark. 198; Wood v. Holland, 64 Ark. 105; Danenhauer v. Dawson, 65 Ark. 129, and upon the issue as to rents, improvements, etc., as announced by this court in Daily v. Abbott, 40 Ark. 275; Robertson v. Read, 52 Ark. 584; Harrell v. Stapleton, 55 Ark. 1; Reynolds v. Reynolds, 55 Ark. 375; Danenhauer v. Dawson, supra.
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HART, J.,
(after stating the facts). Appellee has conducted and is conducting a telephone business in the town of Coming and other towns in the western district of Olay County, and in the country between said towns. Pursuant to the provisions of section 2934 of Kirby’s Digest, appellee has erected his poles and wires and has constructed his telephone lines along and over the highways between said towns. Under the provisions of this section of the digest, any person, or corporation organized for the purpose of transmitting intelligence by telephone may construct, operate and maintain its lines along and over the public highways and the streets of the cities and towns of the State, provided the ordinary use of such highways and streets be not obstructed by reason of their occupation by said telephone companies.
According to the testimony of appellee his telephone poles are from 16 to 18 feet high and the wires are stretched and are not allowed to sag. At various places where the lines cross the highways the wires are fastened to trees and are over 20 feet from the ground. The lines are properly inspected and when a wire falls to the ground or begins to sag or a pole becomes rotten, repairs are made at once. Nothing has been introduced in evidence to show that the telephone lines as constructed and maintained by appellee interfere with the public travel over the highways. Appellants did show that in two or three instances the wires had fallen down, but the testimony shows that they were immediately repaired by appellee. Appellant’s testimony tended to show that the wires sagged to such an extent that on four different occasions when they turned from the highway to go into wheat fields and then back to the highway again, the elevator which was attached to the separator caught in the wire and tore the line down. The separator and the engine were on the same truck, the engine being about 15 or 18 feet in front of the separator.
According to the appellants’ own testimony the engine was 10 feet high and the elevator 12 feet 1 inch high and in each instance the separator caught the wire. This shows that the wires were over 10 feet high at the places where the thresher left the highway to enter the wheat fields and where the wires were torn down. This was sufficiently high that the ordinary use of the highway would not be obstructed. Hence it may be said that it is clearly established that the telephone lines of appellee as constructed and maintained are legal structures. It follows that appellee did not so construct and maintain his telephone lines as to constitute a nuisance and the chancellor correctly held that appellants are barred of injunctive relief under their cross-complaint.
It also follows that appellee has constructed and maintained his lines as directed by the statute and has the right to so maintain them along the public highways. This brings us to a consideration of the question of what circumstances, if any, would entitle appellee to injunctive relief against anyone wilfully tearing down his telephone lines or threatening to do so.
It is well settled that equity will interfere to prevent irreparable injury, or in cases where the plaintiff has not an adequate remedy at law. An injury to be irreparable need not be such as to render its repair physically impossible; but it is irreparable when it cannot be adequately compensated in damages, or where there exists no certain pecuniary standard for the measurement of the damage. This inadequacy of damages as a compensation may be due to the nature of the injury itself, or to the nature of the right or property injured. 22 Cyc. 763-4.
In discussing the inadequacy of the legal remedy Prof. Pomeroy says that irreparable injury means a destructive act to property of such peculiar character or use that its loss would not be adequately recompensed by the damages the jury’s verdict would give. Pomeroy’s Equity Jurisprudence, vol. 6, sec. 544. See also 14 R. C. L., p. 346, sec. 48.
The chancellor found that the facts brings the case for appellee within the principles of law just announced. Is the finding of the chancellor against the clear preponderance of the evidence? The burden was upon appellee to establish his ground for injunctive relief.
According to the testimony of F. R. Sprague, he had trouble each season with the appellants about tearing down his telephone wires. Three other persons owned threshers operated in the same territory and they never tore down his wires at all.
Sprague talked with a relative of one of the appellants who ran the engine and he admitted that they had torn down his wires several times and said that he did not care a damn; that it did not cost him anything. Sprague met some of the appellants on the street one day and told them that if his lines were in their way not to tear them down, hut to call him and he would have them fixed. They told Sprague that he did not have any right to have his lines along the public highway; that they had been to see an attorney about it and that he had so advised them. After that they tore the lines down and never said anything to Sprague about it.
One of the appellants and two boys, each a relative of other appellants were witnesses for appellants. Each testified that he was with the thresher when the wires were broken down by coming in contact with the elevator and that the breaking each time was accidental.
Their testimony, however, is contradicted by the attendant circumstances. The proof shows that the wires were broken down three times before the temporary injunction in this case was granted and once afterwards. The time the wire was torn down after the temporary injunction was granted, appellants repaired it at once and it only took them about ten minutes to do so. This tended to show that they would know when the elevator came in contact with the telephone wire. On one- other occasion the wire and poles for a half mile were torn down and on another occasion the wire and poles were torn down for the distance of a quarter of a mile. This tended to show that the conduct of appellants in tearing down the wires was wilful, else they would have stopped as soon as the elevator caught on the wire, and would not have continued to move their threshing machine along until they had torn down the wire and poles for such a great distance. Each time the wire was torn down as the threshing machine was being driven into a wheat field from the highway or out of a wheat field back to the highway. In such case the telephone wire and posts would be in plain view. It would not be like the case -\yhere the machine was being driven along the public road where the wires only crossed the road at intervals. Appellants admit that they knew the wire was strung along the highway and when they turned out of the highway to go into a wheat field they knew they would either pass under the telephone wire or that their machine would come in contact with it. The fact that the engine did not come in contact with the wire shows that it was strung over 10 feet high from the ground where the thresher entered the wheat field. The testimony shows that this was enough for all ordinary use. The engine was 10 feet high and the elevator was 12 feet 1 inch. The wire was strung higher than the engine, so that appellants would have only had to have lifted it two feet when they entered a wheat field. Appellants, however, claim that only two men rode on the truck which carried the engine and separator and that one of them guided the machine and that most of the time of the other was taken up with the engine. It was not to be expected that they should keep a continual watch along the highway so as to keep from tearing the line down where it crossed over the highway while the thresher was being moved along the highway; but as we have just seen, they knew when they turned out of the highway into a wheat field they would likely come in contact with the wire and one of them might have climbed up on the elevator and lifted the wire clear of it instead of driving along and tearing down a quarter or a half mile of wire and poles.
The testimony shows that there were extra men on hand to help thresh the wheat and that in the case of the other threshers one of these men looked out to 'see that the thresher did not tear down the telephone lines. "When the line was torn down the business of the telephone company must necessarily be discontinued until the line was repaired. This showed that the injury was immediate and destructive and thus irreparable.
Therefore, under all the circumstances, we are of the opinion that the finding of the chancellor was not against the preponderance of the evidence and under the settled rules of this court cannot be disturbed on appeal.
What we have said on this branch of the case disposes of the appellee’s cross-appeal adversely to him.
It follows that the decree will be affirmed.
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McCULLOCH, C. J.
Plaintiff Hudgins Produce Company is a domestic corporation engaged in the wholesale mercantile business in the City of Texarkana, and instituted this action against the defendant Missouri Pacific Railroad Company and Varley & Company, a foreign corporation, to recover damages on account of delay in the delivery of a carload of seed potatoes purchased by plaintiff from defendant Varley & Company. Varley & Company were doing business in Minneapolis, and the contract with plaintiff for the sale of the potatoes was negotiated through L. F. Eck, a broker in Texarkana. The contract and the subsequent communications between the parties were conducted by telegraphic messages, except the last communication, which was a postal card from Varley & Company to the plaintiff, and those communications explain the whole transaction. The messages read as follows:
“2/13, 1918.
Varley & Company, Minneapolis, Minnesota.
Ship quick Hudgins Produce Company via C. Gr. Wabash and Iron Mountain car Triumphs 390 delivered.
(Signed) L. F. Eck.”
“Minneapolis, Minn., February, 13th. L. F. Eck, Texarkana. Would book Hudgins three ninety this low price. Varley & Company.”
“Mackay Telegraph-Cable Company,” “February 14, 1918, Minneapolis, Minn. L. F. Eck, Texarkana, Ark. Booking Hudgins Produce Company immediate shipment weather permitting car Triumphs. Varley & Company. ’ ’
“February 16, 1918, Varley & Company, Minneapolis, Minn. Rush Hudgins Triumphs; wire car number, initials; quote more. L. F. Eck.”
“Minneapolis, Minn., February 16, 1918. L. F. Eck, Texarkana, Texas. Hudgins car not loaded except equipment Monday unable to quote more until present orders filled. Varley & Company.”
The postal card reads as follows:
“Minneapolis, Minn., 2/20; Gentlemen: We ‘are today shipping Hudgins Produce Company at Texarkana, Arkansas, car 14636, routed Soo. E. JN. & E.-C. E. I. St. L. & I. M. from station 2/22 containing 240 sacks, 36,000 pounds Triumph. Thanking you for the order, we are yours very truly, Varley & Company.”
The car of potatoes was loaded and shipped by Varley & Company on February 22, 1918, from Webster, Wisconsin. The routing directions contained in the messages evidencing the contract were not followed by Varley & Company, and the shipment was over a different route entirely, except the last carrier, the defendant Missouri Pacific Railroad Company, being successor to the St. Louis, Iron Mountain & Southern Railway Company.. It was the custom of Varley & Company to make their shipments from the potato producing region to Peoria, Illinois, and then divert the shipments to place of destination under the contracts of sale, and that course was pursued in this instance. The potatoes reached Texarkana over the line of the Missouri Pacific Railroad Company on Saturday afternoon, March 9, 1918, but was not delivered to the plaintiff, nor notice of arrival given, until Monday morning, March 11th. The season for selling seed potatoes had then ended according to the proof, and it was too late to sell them for seed purposes, and the only available market was to sell them for eating potatoes. Under a ruling of the National Food Administrator the consignee of damaged or perishable produce was not permitted to reject a shipment and was required under the said ruling to accept it, and plaintiff was compelled under directions of the local repre sentative of the National Food Administrator to accept this shipment. The price of the car of potatoes under the contract between plaintiff and Varley & Company was $1,209.74, and the draft drawn by Varley '& Company on the plaintiff was attached to the bill of lading, the consignment being to shipper’s orders, and plaintiff paid this draft in order to obtain the possession of the bill of lading, and also paid the freight bill of $194.26, making an aggregate of $1,404. Plaintiff sold the potatoes for $380.67, and claims damage in the snm of $1,-023.33.
The suit is, as before stated, against Varley & Company and the railroad company. The court in its instructions told the jury, in substance, that under the contract whereby Varley & Company undertook to sell the potatoes to plaintiff and to ship to Texarkana to its own order for delivery to plaintiff, Varley & Company was liable for .any damages caused by its- own negligence in failing to deliver the potatoes to the carrier with reasonable diligence or for unusual delay caused by the carrier in transporting and delivering the potatoes. The court also gave the following instructions, among others, at the request of Varley & Company:
“If you find from the evidence that the plaintiff ordered through L. F. Eck, from Varley & Company, the potatoes in question, that the plaintiff was advised later that the shipment had not been made, and it was likely car for same could not be had till Monday, February 19th. and if you further find that, considering weather conditions, said car was loaded as soon after it was placed at the point of shipment as was reasonably practical and that Hudgins Produce Company did not then cancel order on receipt of such advice aforesaid, then you are advised that Hudgins Produce Company can not now complain of any such delay in loading said car of potatoes and can recover nothing on account thereof. ’ ’
“If you find there was unusual delay in this shipment after its delivery to the initial carrier and that the same has been unexplained in any way by defendant railroad, and if you further find that this delay caused damage, and that Varley & Company is liable to Hudgins Produce Company in any amount, then your verdict should be for the said Varley & Company against defendant railroad company, for such amount as you may find Hudgins Produce Company was damaged, if any, by reason of such unusual delay.”
The court also as a part of its oral instructions told the jury that if they should “find for plaintiff against Varley & Company then it will become the duty of the jury to determine whether or not there should be a verdict in favor of Varley & Company against the railroad company. ’ ’
The jury after deliberation returned into court and reported a verdict in the following form: “We the jury find for the plaintiff in the sum of $500 damages against Varley & Company and the Missouri Pacific Railway Company jointly.” Thereupon the attorney for Varley & Company objected to the verdict on the ground that it failed to state what part of the judgment should be against each defendant and because the jury had failed to make a finding on the question of liability as -between the two defendants. After a short colloquy between the court and counsel representing the various parties, the court directed the jury to return and make a finding as to the rights of the two defendants whether or not Varley & Company was entitled to a verdict against the railroad company. Objection to this was interposed by plaintiff and the defendant railroad company. The jury then retired and later brought in a verdict in the following form: “We, the jury, find for the plaintiff and assess the damages at $250 against Varley & Company and $250 against the Missouri Pacific Railway Company, each with interest at six per cent, per annum from March 13, 1918.” The court rendered judgment on the verdict in favor of the plaintiff for the sum of $250 and interest against each of the. defendants. The plaintiff and the defendant railroad company have appealed.
It is contended by counsel for plaintiff that the defendant Yarley & Company is liable for all of the damages found by the verdict of the jury and that the court should have rendered a judgment for that amount notwithstanding the form of the last verdict. Our conclusion is that this contention is correct and that the plaintiff is entitled to a judgment against Varley & Company for the sum of $500, with interest, as found by the jury. This is based on the undisputed evidence in the case that Yarley & Company did not obey the instructions of the plaintiff in selecting the route of shipment, but adopted a route of its own selection. Counsel debate the question whether or not the contract constituted an agreement on the part of Yarley & Company to assume responsibility for an expeditious delivery of the potatoes at Texarkana so as to make them responsible for any delay caused by the negligence of the carrier, and also whether or not the railroad company is liable to the plaintiff for damages to the potatoes consigned by Yarley & Company to its own order at Texarkana. "We do not, however, deem it necessary to go into a discussion of those questions, for if it be conceded that they should be decided against the contention of the plaintiff, the undisputed fact remains that Varley & Company violated the stipulations of the contract with respect to the selection of the route, which constituted a breach of the contract in that respect and rendered Yarley & Company responsible for damages caused by the negligence of the carriers. And, if defendant railroad company is responsible to the shipper for any part of the damage, the judgment is correct, for the finding of the jury is conclusive on the question of liability of the railroad company for that much of the damages, and no prejudice results for the reason that Varley & Company is entitled to a judgment over against the railroad company for the amount so found by the jury.
In the telegram proposing the purchase of the potatoes and specifying the terms, the plaintiff also specified the route of shipment and Varley & Company accepted the .proposal and undertook to comply with the contract according to stipulation. This constituted a contract to ship over the route indicated and a failure to do so was a breach of the contract. Plaintiff was compelled to accept the consignment when it arrived at Texarkana under penalty of having its license to do business revoked by the National Food Administrator. This imposed on the plaintiff the acceptance of the shipment, not according to the terms of the contract, but in violation of its terms, and the shipper is, therefore, responsible for the injury which resulted to the plaintiff, since it is settled by the jury upon sufficient evidence that the delay was unusual and must have resulted from the negligence of the carriers.
It is also insisted that according to the undisputed evidence plaintiff is entitled to recover a sum largely in excess of the .amount found by the jury, but upon consideration of all the testimony in the case we are of the opinion that there was sufficient evidence to sustain the finding of the jury in that regard. The testimony adduced by plaintiff tends to show that the damage amounted to the difference between the cost of the potatoes, with freight charges added, and the amount which plaintiff received on resale of the potatoes, but we think that the jury might have drawn the legitimate inference that all of the damage resulted from the negligent delay after delivery to the initial carrier for shipment. Plaintiff .acquiesced in the shipment on February 23, 1918, and was therefore not entitled to any damages accruing up to that time. The evidence shows the time required for the consignment from Minneapolis to reach Texarkana and the jury doubtless reached the conclusion that the delay caused by the negligence of the carrier did not justify the' assumption that all of the damages resulted from it. The market for seed potatoes did not end on any particular day.. In fact, plaintiff’s telegram to Yarley & Company shows that it was willing to accept the potatoes without claim of damages if the potatoes reached Texarkana during the week ending March 5, 1918. There was only a week’s delay after that time and the market for seed potatoes was drawing to a close. The jury had a right to take those facts into consideration in determining whether or not the whole of plaintiff’s loss was attributable to the delay in transportation. There was also a slight conflict in the testimony as to the market value of eating potatoes at the time plaintiff sold this car for,that purpose.
The railroad company asks for reversal prin-. cipally on the ground that the court rejected testimony tending to show the time when it received the car of potatoes from a connecting carrier. Mr. Trobaugh, who held the position of car accountant with defendant Missouri Pacific Railroad Company, in his testimony offered to produce the record made under his supervision showing the daily movement of cars over the rails of defendant company, but the court held that the records were not competent without direct proof of correctness. It appears from the testimony of Mr. Trobaugh that these records were made up of reports of car checkers over the system so as to keep track of the movements and location of cars. It is contended that this record was competent evidence, the same as train sheets compiled by the train dispatcher showing movements of trains. We have decided that such train sheets are competent evidence either for or against the public carrier under whose supervision the records are made. Bush, Receiver, v. Taylor, 136 Ark. 554, 207 S. W. 226. There is no analogy between the two systems whereby these records are kept. The train sheet is a record made at the time the transactions occur, that is the time that the movement of trains are ordered and reported, and this constitutes a sufficient guaranty of the authenticity of the records to justify the admission of them as testimony; but, as we understand the testimony of Mr. Trobaugh, the records made under his supervision constitute merely a narrative of past events as reported by the car checkers, and for that reason the record is not competent. The question, we think, is ruled by the case of St. Louis, Iron Mountain & Southern Ry. Co. v. Gibson, 113 Ark. 417, where it was held that in a suit to recover damages for personal injuries caused by the operation of a train, it was not competent to prove the time the train left a certain station by the testimony of the operator at another station to whom the information was telegraphed by the operator at the station in question. It is argued that a certain other record made by the train conductor, and called “wheel report,” which showed the progress of the car in question, was offered in evidence by the railroad company and improperly excluded by the court, that it was competent under the rule announced above and ought to have been admitted, but we can not discover definitely that such report was offered and what its contents were. We, therefore, do not pass on the competency of that report as evidence in the case. It is conceded that without the excluded testimony, there was nothing in the record to show when the carload of potatoes was delivered to defendant carrier, and the presumption arises that the delay occurred on its line as the delivering carrier. St. Louis, Iron Mountain & Southern Railway Co. v. Coolidge, 73 Ark. 112.
The judgment of the circuit court, will, therefore, be reversed, and judgment will be entered here in favor of plaintiff against Varley & Company for the sum of $500, with interest from March 18, 1918, as found by the jury, and the judgment in favor of plaintiff against defendant railroad company for $250, with interest aforesaid, is affirmed, but that amount is a part of the sum recovered against Varley & Company, the plaintiff being entitled under the verdict to the sum of $500, with interest aforesaid. The plaintiff will be entitled to judgment for the cost of appeal against both defendants. It is so ordered.
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HUMPHREYS, J.
Appellant was indicted, tried and convicted in the Hempstead Circuit Court at the April, 1919, term thereof, for exchanging or disposing of mortgaged property, in violation of sections 2011 and 2013 of Kirby’s Digest of the statutes of Arkansas, and his punishment fixed at six months in the penitentiary. From the judgment of conviction, an appeal has been regularly prosecuted to this court.
Attorneys for appellant have not favored us with a brief; so we are dependent upon appellant’s motion for a new trial for suggestions of error. The first three grounds of the motion are general, and embody the suggestion that the verdict is contrary to the law and evidence. The other grounds are as follows:
“4. That the court erred in its instruction to the jury, on its own motion, in behalf of the State.
‘ ‘ 5. That the court erred in refusing to give instruc: tion No. 1, asked by the defendant.
“6. That the court erred in refusing to give instruction No. 2, as asked by the defendant.
“7. That the court erred in amending instruction No. 2 as it had been prepared and requested by the defendant.”
The evidence on the part of the State showed that appellant executed a mortgage on December 18, 1917, to the Briant Store Company, a partnership in the general mercantile business at Hope, Arkansas, on two horses, one black and the other roan, and his future crop of 1918, to secure a loan of $50 and advances for supplies; that the mortgage was filed for record in the manner provided by law; that thereafter, supplies were furnished until the indebtedness amounted to $216; that, although demand was made for payment of the indebtedness, appellant failed to pay it, and, when questioned concerning the whereabouts of the roan horse, answered that he was in the range; that the roan horse was of the value of $100. Anthony Stewart, a brother of appellant, testified that he saw appellant trade off the roan horse. John and Dave Stewart, also brothers of appellant, testified that appellant told each he had traded off the roan horse.
It is apparent from the summary of the State’s evidence that every material allegation of the indictment was sustained by sufficient legal, substantial evidence; therefore, the verdict was not contrary to the evidence.
No exception was saved to the instruction given by the court on its own motion, so the assignment of error set up in the fourth ground of the motion for a new trial cannot be considered by this court.
The fifth assignment of error consists in the refusal of the court to give the following instruction requested by appellant, towit: “You are instructed that, before you can convict the defendant, you must find from the evidence, beyond a reasonable doubt, that he was indebted to the ©riant Store Company, that demand was made on him and payment refused, and that he disposed of the property with the intent to defeat the debt. ’ ’ This instruction is erroneous in two particulars: First, it stated that a demand for the debt or horse was necessary before appellant could have been convicted; second, that the mortgagor, appellant, must have refused to pay the indebtedness before he could have been convicted. The statute under which appellant was indicted and convicted does not require, as a condition to conviction for disposing of mortgaged property, that a demand must be made on the mortgagor for the debt or mortgaged property; nor a refusal of payment of the indebtedness on his part.
The sixth and seventh assignments of error are that the court erred in refusing to give instruction No, 2, as requested by appellant, and in amending it. The record before us does not support these assignments of error. The record fails to show any amendment or modification of the instruction by the court before it was given. It appears that the instruction was given in the form asked.
No error appearing, the judgment is affirmed.
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SMITH, J.
Appellant was convicted of the offense of transporting intoxicating liquors, and has prosecuted this appeal. There was testimony to the effect that he had employed Bill Carmoody and H. Harper to transport and to deliver the liquors to him over the public highways of Garland County, and that pursuant to this employment Carmoody and Harper were transporting intoxicating liquors over the highways of that county for delivery to appellant when Carmoody and Harper were arrested by the sheriff of that county and the liquors intercepted and the delivery prevented.
Over appellant’s objection the court gave the following instruction:
“2. In order that you may fully understand the principle involved, I will state to you that every person who aids and assists another in the commission of a misdemeanor, is deemed in law to be guilty of an offense himself, and while the law of this State permits a person to carry whiskey over the streets and highways for himself, it is unlawful for any person to carry it over the streets and highways for another, and if Carmoody or Jerome or the negro, Harper, carried it for Edwards, and he employed them, or aided, abetted, assisted or advised them in the commission of that offense he would be guilty, the same as they would, and it would be no defense in this case that the whiskey belonged to Edwards, and that he did not himself transport it for another.”
The court refused to give, at appellant’s request, the following instruction:
“Before you would be justified in finding the defendant guilty you must believe from the evidence beyond a reasonable doubt that he transported whiskey over the public highways of Garland County or streets of the City of Hot Springs for another.”
These instructions indicate the theory upon which the case was tried and the point to be decided. The conviction was had under section 8 of Act No. 13 of the Acts of 1917, page 41, commonly designated as the Bone Dry Law, the material portion of which reads as follows:
“That it shall be unlawful for any person, * * * to accept from another for shipment, transportation or delivery, or to ship, transport or deliver for another any of the liquors, bitters and drinks referred to in section 1 of this act, or any of them, when received at any point, place or locality in this State, to be shipped or transported to, or delivered to another person, * * * at any other point, place or locality in this State, or to convey or transport over or along any public street or highway any of said liquors, bitters or drinks for another.”
This court decided in the case of Rivard v. State, 133 Ark. 1, that it was not a,violation of the provisions of the act cited above to transport intoxicating liquors into this State, provided the transportation was not made for another, even though it was brought into this State for the purpose of sale. And in the case of Lacey v. State, 135 Ark. 470, it was held that it was not a violation of the law to transport intoxicating liquors over the highways of this State if the transportation was not made for another, even though the liquor was intended for illegal sale. In other words, the court has construed the act in question to mean that it is made unlawful for one to transport liquor for another but not when he does so for himself.
It is true, as stated in the instruction given by the court set out above, that every person who aids and assists another in the commission of a misdemeanor is deemed in law to be guilty of an offense himself. But as it was not unlawful for appellant to transport the liquor for himself he did not violate the law when he induced Carmoody and Harper to transport it for him. Carmoody and Harper violated» the law; but appellant did not. This is true because the act made unlawful so far as it is applicable to the facts of this case is “to convey or transport over or along any public street or highway any of said liquors, bitters or drinks for (mother.”
We have held that the purchaser of liquor illegally sold is not an accomplice of the seller (Springer v. State, 129 Ark. 106), although when, one buys, another sells, and there can be no seller without a purchaser. We so held because the act made unlawful was selling liquor and not buying it. So here the act made unlawful is transporting liquor for another, and as appellant did not cause liquor to be transported for another he is not guilty under the law. This being a criminal statute it must, of course, be strictly construed and all persons must be excluded from its operations who are not expressly included within its provisions. ■
The Attorney General has confessed error noon the ground stated, and the confession of error will be sustained and the judgment reversed and the cause dismissed.
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WOOD, J.
This action was begun by the appellee against the appellant in the justice court. The appellee filed before the justice court its account against appellant in the sum of $72. Judgment was rendered against the appellant in the justice court, and he appealed to the circuit court.
The bill of exceptions contains the following recitals: “The defendant files an affidavit just as the parties announced ready for trial and then objects to the plaintiff introducing a sworn itemized statement of the account; which objection was overruled by the court and defendant saved exceptions.”
The cause was sent to the jury under proper instructions and from a judgment in favor of the appellee is this appeal. There was testimony to sustain the verdict.
The appellant contends that the court erred in allowing the appellee to introduce the sworn itemized statement of the account. His contention being that the record shows that this was introduced as an independent ex parte affidavit. But the record, as set out above, does not sustain the appellant’s contention. The appellant says that the affidavit was not “duly taken and certified according to law that such account is just and correct.”' Section 3151, Kirby’s Digest. But the appellant did not in the court below raise the objection that the account “was not duly certified” as required by the above statute. He only objected to the plaintiff “introducing a sworn itemized statement of the account. ’ ’
Section 4565 provides that in ordinary actions before the justice of the peace “the plaintiff shall file with the justice the account or the written contract or a short written statement of the facts on which the action is founded.” It will be observed that the statute does not even require that the account shall be sworn to. There was no error, therefore, in the court permitting the appellee to introduce the sworn itemized statement of its account. This was the foundation of appellee’s action; and as the law did not require that it be sworn to, the fact that it was sworn to did not render the same invalid. It was appellee’s pleading, and was competent to be introduced as such.
Appellant relies upon the doctrine announced by this court in Smith v. Smeltz, 42 Ark. 355, and Western Union Tel. Co. v. Gilles, 89 Ark. 483-7, where we held that an ex parte affidavit could not be used as independent evidence. See also Johnson v. Johnson, 122 Ark. 276.
'But the doctrine of the above cases has no application to the facts as shown in the record under review here.
There is no error, and the.judgment is, therefore, affirmed.
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McCULLOCH, C. J.
Appellant owns and operates the street railway system in the City of Pine Bluff, and appellee’s intestate, R. J. Preston, died from personal injuries inflicted in a collision with one of appellant’s street cars. This is an action instituted by appellee to recover damages for the benefit of the estate and the next of kin, and in the trial of the case before a jury there was a verdict in appellee’s favor for the recovery of a small sum on each branch of the case.
The collision occurred at the intersection of Sixth Avenue and Oak Street. The street cars run along Sixth Avenue, and Preston was, at the time of the collision, going east on Sixth Avenue. He was a truck farmer, and was peddling vegetables in Pine Bluff, and was driving a wagon loaded with produce. He was walking along the street near the curb on the south side with the lines in his hand driving the horse, and, as he approached Oak Street, he turned to the left, or towards the north, to cross the car track so as to go north on Oak Street. The street car was behind him, coming from the west, and struck his wagon and knocked him and the wagon from the track. He was seriously injured and died a few days later. The collision occurred about noon, and several passengers on the car, in addition to the motorman testified concerning the facts of the case. The testimony adduced by appellee tends to show that the street car was from 100 to 150 feet distant when Preston started driving across the track, and that the motorman could have stopped the car and avoided the collision by the exercise of ordinary care. The testimony adduced by appellant tends to show that Preston drove on the track when the car was from 15 to 25 feet distant, and that the motorman made every reasonable effort to stop the car by applying the brakes. There is a slight conflict in the testimony as to the speed the car was going, but it appears to be undisputed that the car had stopped for a passenger at the corner of the street next to Oak Street and was not going at full speed when the collision occurred.
If the jury found the facts to be in accordance with the testimony introduced by appellee with respect to the distance of the car when Preston drove on the track, then the conclusion was warranted that he was not guilty of contributory negligence in attempting to cross the track under those circumstances, and that on the other hand the motorman was guilty of negligence in failing to exer cise ordinary care to stop the car in time to prevent the collision. There is no dispute in the testimony as to the fact that the motorman saw Preston when he drove on the track, the only dispute being as to the distance the car was from the wagon and team at that time. So the real issue in the case was practically narrowed down to the question of the distance between the wagon and the car at the time Preston drove on the track. We cannot say that the finding of the jury was not supported by sufficient evidence.
It is earnestly insisted that the court erred in giving the following instruction at the request of appellee:
“If you should find from the evidence that the deceased started to drive across defendant’s street car track when defendant’s car, approaching, was at such a distance as to lead a reasonable person, under the circumstances at the time, to believe he had sufficient time to cross over and get off in safety before the arrival of the car at said place; that the position of deceased was so noticeable and apparent that a reasonable person in the position of the motorman on defendant’s car approaching the deceased, and in the exercise of ordinary care in keeping a lookout for persons or property approaching or on the track, would have discovered the deceased, and that it would have been apparent to such person that the deceased was in a dangerous position; that said motorman, by the exercise of ordinary care, could have discovered the dangerous situation of deceased in time to have stopped his car and avoided injuring the deceased; and that defendant’s motorman did not use ordinary care with the means at his command to stop the car and prevent the collision, and did not use ordinary and reasonable care in keeping a lookout whereby he failed to discover the dangerous situation of the deceased, and did strike deceased’s wagon and injured deceased in consequence of his failure to use such care, then it is your duty to find for the’plaintiff.”
It is argued that this instruction ignored the duty of Preston to exercise ordinary care for his own safety, but we think, that, instead of ignoring that question, it expressly submitted it in the first part of the instruction. The instruction presupposes that Preston saw the approaching street car, but leaves it to the jury to say whether or not it constituted negligence for him to start across the track under the circumstances as the jury might find to exist. The right to use the crossing was a reciprocal one; and if the jury found that the street car was distant to the extent stated by appellee’s witnesses and in broad daylight the motorman could see the crossing, the inference would have been warranted that it was not imprudent for Preston to attempt to drive across under those circumstances. This instruction does not, as contended by learned counsel for appellant, impose on the motorman the sole duty to exercise care to avoid a collision, but merely defines the duty of the motorman in the event they found that Preston was in the exercise of ordinary care when he drove on the track. This instruction was in some respects too favorable to appellant, for, as before stated, it was undisputed that the motorman saw Preston when he drove on the track, and the only question left for the determination of the jury was whether or not he exercised ordinary care to avoid the collision after discovering the traveler’s peril.
Other instructions on the subject of discovered peril were correct, and no error was committed by the court in that respect.
The court gave all the instructions requested by appellant, except No. 6, which was modified by adding the italicized words, so as to read as follows:
“Contributory negligence means negligence on the part of the deceased—that is, a failure on the part of the deceased to exercise reasonable care for his own safety. If you find from a preponderance of the evidence that the deceased was guilty of some negligence which contributed to produce the accident which resulted in his injury, then plaintiff cannot recover damages for such injury, even though it may further appear that the motorman in charge of the car was also negligent. Unless you find that the motorman failed to exercise ordinary care after discovering the danger or peril of the deceased.”
Error is assigned in the modification, but we are of the opinion that the modification was correct so as to incorporate the doctrine of liability for negligence after discovery of peril.
It is unnecessary to discuss the other instructions in detail, for they are not in conflict with the law on this subject discussed in previous cases. Little Rock Railway & Electric Co. v. Sledge, 108 Ark. 95; Bain v. Fort Smith Light & Traction Co., 116 Ark. 125; Pankey v. Little Rock Railway & Electric Co., 117 Ark. 337; Karnopp v. Fort Smith Light & Traction Co., 119 Ark. 295; Pine Bluff Co. v. Crunk, 129 Ark. 39.
The recovery in this case was for a very moderate sum, and our conclusion is that the evidence was sufficient to sustain the verdict, both as to liability as well as to the extent of the compensation to be awarded, and that there was no error committed by the court in its charge to the jury. The judgment is therefore affirmed.
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WOOD, J.,
(after stating the facts). One of the grounds of motion for new trial is that the verdict “is contrary to and not supported by the evidence.”
Counsel for appellant, in both their brief and oral argument, strongly urge that the judgment be reversed, because there was no evidence to sustain the verdict, and because same was based only upon conjecture.
But, after a careful consideration of the facts which the testimony tended to prove, as above set forth, we have reached the conclusion that there was evidence to sustain the verdict. There was testimony that at the time the wreck occurred the train was making 20 to 25 miles an hour over the best track the company had, “just a little bit down grade, all new steel and on good ballast. ’ ’ The train was being operated in the ordinary manner. It was not proved by the appellant that there were any defects in the track or train. There was no evidence of negligence in the manner of the operation of the train. The appellee on the other hand proved by the undisputed evidence that there were two old breaks in the end sill, one from 4 to 6 inches long, and the other from 2 to 3 inches; that these cracks could not be discovered by the ordinary inspection which was made before the shovel car was received for shipment.
The appellee introduced evidence tending to prove that after the wreck occurred it was discovered that the end sill on the front end of the shovel car had pulled out; that a piece in the middle of the sill 38 inches long to which the coupler casting was attached had broken out on both sides and that the coupler casting had dropped down into the center of the track; that the two breaks in the sill, which caused the coupler casting to drop down, were on the line of the old cracks.
The conductor, who made an investigation of the cause of the wreck, said that he found that the drawbar casting of the steam shovel had come down between the rails and derailed the car. The assistant superintendent, who visited the scene of the wreck about two and a half hours after it occurred for the purpose of ascertaining its cause, says he “found the end sill of the steam shovel had broken out in the center, which permitted the draw-bar casting to drop in the center of the track and that was what we determined caused the wreck.”
Now these facts were sufficient to warrant the jury in finding that the cause of the wreck was old breaks in the end sill. The condition of the shovel car before and just after the wreck was fully described by the witnesses and the condition of the track and the train are also fully described. Photographs were duly identified and exhibited showing the condition of the shovel car and witnesses demonstrated before the jury where the break was and without objection stated their conclusion as to how the wreck occurred.
Without discussing the evidence further, it suffices to say that the testimony was sufficient to justify the jury in finding that the proximate cause of the wreck was the undiscoverable defect in the shovel car. The proof being sufficient to warrant the jury in so finding, it cannot be said that its verdict was grounded merely upon conjecture.
Learned counsel for appellant cite among others the case of Patten v. Texas Pacific R. R. Co., 179 U. S. 658. Syllabus 2 of the case is as follows: “Where the testimony leaves the matter uncertain and shows that any one of a half dozen things may have brought about the injury, for some of which the employer is resppnsible and for some of which he is not, it is not for the jury to guess between these half a dozen causes and find that the negligence of the employer was the real cause when there is no satisfactory foundation in the testimony for that conclusion. ’ ’
We fully approve of that doctrine, but it is not applicable to the facts of this record. Here the appellee adduced evidence which, as we have seen, warranted the jury in concluding that the wreck was caused by the old breaks or defects in the end sill which could not be, and were not discoverable by the thorough inspection which was made by the appellee. If the appellant had shown that the appellee was negligent in the handling of. the train or in failing to make a reasonable inspection or had shown that the track, rails, ties, or any of the train appliances were defective and as well calculated to have caused the injury, as the defective condition of the end sill, then there would be some reason for the application of the doctrine invoked by appellant’s counsel But in none of the cases from our own court or other jurisdictions cited by appellant are the facts the same or similar to those we now have under review.
The court in substance instructed the jury that the appellee did not insure the safe transportation and delivery of the “steam shovel outfit” against damages resulting “from the defective condition the same was in when it was delivered to the appellee for shipment.” That the appellee “was under no duty to search for concealed defects in the steam shovel.”
It is contended that the instructions in this form assumed that the shovel car was in a defective condition. There was no specific objection raising the point here insisted upon by counsel for appellant, and, even if there had been, the instructions, when taken together, are not susceptible of that construction because in other instructions the court clearly left the issue for the jury to determine whether “there were concealed or hidden defects” in any part of the steam shovel car, described in this case, and, if so, whether or not such defects “were the sole and proximate cause of the derailment and damage resulting therefrom.”
"When the instructions to the jury are considered as a whole, we find no conflict or inconsistency in the charge. It was the duty of the appellant, if it conceived that this language of the charge was incorrect, to call the attention of the court specifically to the proposition which he now urges for reversal. Moreover, even if the instructions assumed that the steam shovel outfit was in a defective condition and that the defects were concealed, these facts were established by the uncontroverted evidence. The instruction, therefore, in the form given could not have been prejudicial to appellant, and the giving of it was not reversible error. Pacific Mut. Ins. Co. v. Walker, 67 Ark. 147-154; St. L., I. M. & S. Ry. Co. v. Burrow, 89 Ark. 178.
It is also manifest that the court, when the instructions are considered as a whole, did not intend to tell the jury that the damages to the steam shovel outfit resulted from the defective condition the same was in when it was delivered to the appellee for shipment. An instruction in . this form would have been on the weight of the evidence and inherently defective. The instructions, when read together, declared the law to be that the appellee would not be liable for damages resulting from the steam shovel outfit caused by its defective condition, and submitted to the jury to determine the issue as to whether or not the damages were caused by the defective condition or whether same resulted from some other cause. The court plainly told the jury in other instructions that the appellee would be liable unless the jury found that the damage was caused solely from a defective condition of the steam shovel outfit. The charge, as a whole, left the jury to determine whether or not there was a defective condition of the steam shovel outfit, and, if so, whether or not this condition was the sole cause of the damage.
Counsel criticise other instructions which we have considered and find that the charge as a whole furnished the jury a correct guide for their deliberations.
The record shows no reversible error, and the. judgment is affirmed.
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HUMPHREYS, J.
Appellant was indicted, tried and convicted, in the Chickasawba District of the Mississippi Circuit Court, for permitting* a cow to run at large contrary to the provisions of Act No. 154, Acts of the General Assembly of the State of Arkansas of 1919, approved March 1, 1919.
Appellant defended on the ground that the act, as approved by the Governor, was not the same act passed by the two Houses of the Legislature.
The cause was submitted to the court, sitting as a jury, upon the following agreed statement of facts:
“That the defendant (appellant) John Perry did, on the first day of April, 1919, knowingly and intentionally turn out and permit to run at large in that part of the Chickasawba District of Mississippi County, Arkansas, lying east of Little River, one cow, in violation of the terms of Act 154 of the General Assembly of Arkansas, approved March 1, 1919.
“It is further agreed that for the purpose of testing the validity of said act, this cause shall be submitted to the court, a jury trial being waived, that all records of both Houses of the General Assembly shall be considered as offered in evidence, and that the record of journal entries of the Senate, certified to by Ira C. Langley, secretary of said body, is a true and correct copy of the journal of said body; also the records certified to by H. G. Combs, chief clerk of the House of Representatives, is a true and correct copy of said journal record of said House; also that all of said records, including the original enrolled bill as now filed with the Secretary of State and the original bill as introduced, together with- the indorsements thereon, are hereby made a part of the record of this case. ’ ’
The original bill, the act as signed, the journals and indorsements on the orignal bill were introduced in evidence under the terms of the stipulation.
The court sustained the validity of the bill, found the defendant guilty, assessed his fine at $5 and rendered judgment in accordance with the findings, from which findings and judgment, an appeal has been duly prosecuted to this court.
It is insisted by appellant that the bill passed by the Legislature provided for an election and a majority vote of the electors in the district before the bill should become effective, and that the bill approved by the Governor and filed in the Secretary of State’s office does not contain such provision; in other words, that the bill signed by the Governor and filed in the Secretary of State’s office was not the bill passed by both Houses of the Legislature. Act No. 154, Acts 1919, is the same act as Senate Bill No. 64. The challenged act and Senate Bill No. 64 are exactly alike. It appears, however, from the entries in the Senate journal and indorsements on the original bill that the following amendment was adopted and ordered engrossed on January 21,1919, and reported as engrossed on January 23, 1919, to-wit:
“Amend section 6 of Senate 'Bill No. 64 by adding at the close of section 6, the following: Provided, this act shall not become effective until it is voted on at a special election to be called by the county judge of said county, and receives the votes of the majority of those voting at said special election. And said special election shall be called by the county judge at least thirty days prior to the first day of September, 1919, and notice of said special election shall be published in some newspaper in each district in said county for at least thirty days prior to the date fixed by said county judge for holding said election.
“And provided further, that the expense of holding said election shall be paid out of the general fund of said county, and the judges and clerks who shall hold said election shall be selected by the sheriff, circuit clerk and county judge of said county.”
It also appears by an entry in the Senate journal and an indorsement on the original bill that the bill was read the third time and passed on January 24, 1919. It is argued from these entries on the journal and indorsements on the bill that the engrossed bill, incorporating the amendment aforesaid, was the bill that passed the Senate and House, and that the bill in its original form, as approved and signed by the Governor, was not the same bill passed by the two Houses of the Legislature. This conclusion would be true if the Constitution of the State required that every step in the course of the passage of bills or amendments thereto should be recorded in the journals or indorsed on the bills. The Constitution, however, makes no such exacting requirements. Vinsant v. Knox, 27 Ark. 266; Chicot County v. Davies, 40 Ark. 200; Harrington v. White, 131 Ark. 291. This court has adopted the following rule with reference to presumptions in favor of the validity of bills which have been signed by the Governor and deposited in the office of the Secrtary of State: “An act of the Legislature signed by the Governor and deposited with the Secretary of the. State raises the presumption that every requirement was complied with, unless the contrary affirmatively appears from the record of the General Assembly.” Harrington v. White, 131 Ark. 291. In support of the rule thus announced, the court in that case cited Chicot County v. Davies, 40 Ark. 200; State v. Corbett, 61 Ark. 226; State v. Bowman, 90 Ark. 174; Mechanics Bldg. & Loan Assn. v. Coffman, 110 Ark. 269. It is true that the record in the instant case affirmatively shows that the amendment in question was offered, adopted and ordered engrossed on January 21, 1919, and that on January 23, 1919, the bill was reported “correctly engrossed.” The next entry in the journal- and indorsement on the bill is that it was read a third time and passed on January 24, 1919. It does not appear affirmatively that the bill, as engrossed, was read a third time and passed. The indorsement appears on the original bill and not on an engrossed bill. After being engrossed, it was within the province and power of the Senate to have ordered the bill placed back on its second reading for amendment and to have receded from the amendment engrossed into the bill, or to have stricken the amendment from the bill, and, should such course have been taken, it would not have been necessary to its validity to have entered these steps, concerning the amendment, on the journal. The silence of the record in this regard would not conflict with the presumption that such course was pursued by the Senate. The silence of a legislative journal on matters not required to. be entered on the journal can not conflict with the presumption of the regularity of the passage of a bill. It is* only in matters where the journal does speak, or where it is required to speak, that it could conflict with such presumption. In the case of Harrington v. White, 131 Ark. 291, this court indulged the presumption of the regularity of the passage of a bill where the House and Senate journals were in conflict as to the inclusion of four counties in an exemption clause contained therein. The House journal recited that the four counties in question were included in the exemption by a Senate amendment. The Senate journal was silent on this point. There was no constitutional requirement that the amendment including the four counties should be entered on the journal, and the court said in this case: ‘ ‘ The mere silence of the journal of the Senate as to the inclusion of certain counties in the amendment to the exemption clause is not sufficient to overcome the presumption of regularity;” * * * meaning, of course, the presumption of regularity in the passage of the bill growing out of the fact that it had been signed by the Governor and deposited with the Secretary of State. Likewise, this court presumed the regularity of the passage of a bill, on account of it being signed by the Governor and deposited with the Secretary of State, where the journal showed that an amendment had been adopted in the House, which conflicted with the enrolled bill approved by the Governor. The presumption of the regularity of the passage of the bill was indulged on the theory that, before the final passage of the bill, the House receded from its amendment shown by the journal to have been adopted. In so holding, the court called attention to the fact that the Constitution of 1868 did not require amendments to be entered on the journals, and took occasion to say, in reference to journals and journal entries, that: “While the journals furnish evidence of legislative proceedings, so far as they go, yet courts are not bound to hold that nothing was done except what appears therein. Their silence is: conclusive only in those matters which the Constitution requires them affirmatively to show the action taken.” The journals in the instant case only go so far as to • show that the amendment was adopted and engrossed in the bill. It does not affirmatively appear that the engrossed bill passed, or that the Senate did not recede from the amendment. Under the rule announced in the cases referred to, the court must indulge the presumption that the Senate did recede from the amendment and, for that reason, the amendment adopted in the Senate did not appear in the enrolled bill. As suggested by the Attorney General, the Senate may have discovered, after the amendment was adopted, that, if added to section 6, as provided in the amendment offered and adopted, the whole section would be rendered insensible in meaning. Had the amendment been added at the end of section 6, the first part of the section would then have provided for the bill to go into effect without an election, and the latter part of the section would have provided for it not to go into effect until a majority of the electors in the district had voted in favor of the passage of the bill.
No error appearing, the judgment is affirmed.
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HABT, J.,
(after stating the facts). The plaintiff’s title was derived from the sale of the lands for taxes by virtue of a decree of the chancery court under the overdue tax law. The land was sold to the State in 1883, and no redemption was had within the time prescribed by the statute. The commissioner executed a deed to William Kilpatrick to the land on the 14th day of March, 1907. Kilpatrick conveyed the land to G-. W. Stover on October 17, 1911, and Stover in turn conveyed it to the plaintiff. Under these conveyances the plaintiff acquired a valid title to the land. McCarter v. Neil, 50 Ark. 188; Fiddyment v. Bateman, 97 Ark. 76, and Wagner v. Arnold, 91 Ark. 95.
Counsel for the defendant recognized the force and effect of these and other decisions of the court, holding that where the proceedings were regularly had under the overdue tax act of March 12,1881, resulting in a sale of the land for taxes under the orders of the court, which was confirmed, all persons interested in such land are thereafter precluded from attacking such sale on account of defenses which could have been set up in such proceedings. But they claim that the facts in the present' case make an exception to the general rule and bring it within the principles decided in Wallace v. Hill, 135 Ark. 353. We do not agree with counsel in this contention. The facts here are essentially different from those presented by the record in that case. There, the owner of the lands occupied them at the .date of the overdue tax sale. The owner presented the tax receipt of the proper officer showing that he had paid the taxes on the land for the year mentioned in the decree under the overdue tax law, and the court held that the owner was precluded in this respect by the decree' in the overdue tax pro ceedings. The landowner further showed, however, that the taxes were placed on the tax books for the next year and each succeeding year thereafter, and that the taxes were regularly assessed in his name. He exhibited tax receipts showing that he had paid the taxes for all these years. There was a finding of the chancellor in his favor, and the court held that under the circumstances the chancellor was warranted in finding that the owner had redeemed the land from the overdue tax sale, as he had a right to do under the statute. Here the lands were sold to the State in an overdue tax proceeding in 1883. The record does not show that any of the grantors of the defendant owned the land at this time. Nor does it show that either of them owned the land or paid the taxes thereon in 1884. It does show that one of the plaintiff’s grantors paid the taxes on the land for the year 1885. This, however, does not establish the fact that such person owned the lands in 1883, at the time they were sold and, consequently, had a right to redeem from the overdue tax sale.
It is true the record does show that the tax books for the years 1882, 1883 and 1884 were burned, but this fact did not prevent the defendant from showing that its grantors owned the land at the date of the sale under the overdue tax proceedings, and therefore had a right to redeem the land from such sale.
In the present case the claim of the plaintiff is made under a paramount title derived by me'sne conveyances directly from the State, and the court was right in holding that he had a valid title to the land and the timber thereon. In the decree not only was the title of the plaintiff quieted, but it was adjudged that she have and recover from the defendant the sum of one hundred dollars damages. It is, also, claimed that the decree should be reversed because the court awarded damages to the plaintiff. We do not think this position is sound. Plaintiff alleged that a few weeks before the filing of the complaint she was negotiating with E. R.. Buster and Clarence E. Griffin for the sale of timber on said land and that defendant through its agents forbade her from selling or cutting the timber and prevented her from selling said timber. That, by reason of the unlawful acts of defendant in claiming said timber and posting the same, she has been damaged in the sum of one hundred dollars. The proof shows that she and her husband lived on the land; that part of it had valuable growing timber on it.
The plaintiff, through her husband as her agent, sold a part of the timber to a corporation, of which E. R. Buster and Clarence E. Griffin were the principal stockholders, and controlled the corporation. Subsequently her husband for her made a sale to Griffin of the rest of the timber on the land, and he agreed to advance $135 for the purpose of paying a mortgage for the purchase money. The defendant then tacked upon the trees on the land large posters, some twelve by fourteen inches in size, as follows: “Postedproperty, owned by Chicago Land and Timber Co., Clio. Any person trespassing will be prosecuted.” After seeing this notice, Griffin refused to take the timber as he had agreed to do.
According to the testimony of C. E. Griffin, he offered to purchase the timber on the land for $5 per thousand delivered at his mill or pay $2 per thousand and haul it himself. He agreed to pay the amount of the mortgage indebtedness on the land, which amounted to $123.70. He thought the timber would pay $100, and agreed that the husband of plaintiff might work out the balance. After he saw the notices posted on the land, by the defendant, he refused to consummate the sale of the timber because he was afraid of getting into a lawsuit with the defendant. The contract had not yet been reduced to writing. The highest obtainable price for the land thereafter was $100, less than its market value. This testimony was not attempted to be contradicted. We think the allegations and proof sustained the finding of the chancellor as to the damages. The growing trees constituted a part of the realty, and their conveyance by the plaintiff to Griffin was a conveyance of an interest in the land itself. Graysonia-Nashville Lbr. Co. v. Saline Development Co., 118 Ark. 192, and oases cited.
It is true that the contract to sell the timber was a verbal one, but it was intended that it should be reduced to writing, and Griffin says that he would have carried out the contract if the defendant had not claimed the timber and have forbidden anyone from cutting and removing it. The notice went further and threatened the prosecution of anyone cutting the timber. The loss of the sale of the timber is alleged and relied upon as special damages. The complaint alleges a loss of a sale to E. R. Buster and Clarence E. Griffin. The proof shows that they were the principal stockholders of a corporation which had agreed to purchase the timber for $100, the amount of damages awarded by the chancellor. The complaint set out the name of the persons to whom the timber was sold, and the damage suffered from a loss of the sale. The defendant was put upon notice ofwhatitwas to meet. The special damages alleged was the natural and proximate cause of the posted notice set out above. The complaint alleged precisely in what way special damages would result from the posted notice. In the notice the defendant not only claimed the title but threatened to prosecute anyone interfering with it. The plaintiff was in the possession of the land and as shown in the opinion, according to the current of authority for many years, the defendant had no title to the land. The decisions on the conclusiveness of overdue tax sales have already been cited. The controlling principles of law above announced are supported by the following cases: Stevenson v. Love, 106 Fed. 466; Wilson v. Dubois (Minn.), 59 Am. Rep. 335; Harris v. Sneeden (N. C.), 7 S. E. 801; Hopkins v. Drowne (R. I.), 41 Atl. 567; Eberle v. Fields (Ala.), 62 So. 73; Hubbard v. Scott (Ore.), 166 Pac. 33, and McGuinness v. Hargiss (Wash.), 21 Ann. Cases 220.
From the views we have expressed, it follows that the decree must be affirmed.
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HART, J.
Geo. W. Davis & Company sued G. W. Bishop to recover damages which they alleged they sustained by reason of the breach of a contract by Bishop to sell and deliver to them a certain number of bales of cotton.
At the conclusion of the evidence, the court directed the jury to. return a verdict in favor of the defendant, and from the judgment rendered the plaintiffs have duly prosecuted an appeal to this court.
The only issue raised by the appeal is whether or not the trial court erred in directing a verdict for the defendant under the evidence adduced by the plaintiffs. Hence it will only be necessary to abstract the testimony of the plaintiffs.
C. G. Davis & Company is a firm of cotton buyers at Texarkana, Texas, and have been engaged in that business for several years. C. W. Bishop owned a large cotton plantation in Miller County, Arkansas, and usually planted about one thousand acres in cotton. About the 1st of August, 1917, C. G. Davis, the senior member of the firm, and G. W. Bishop had a conversation about the advisability of the latter selling at that time a part of the cotton which was being grown on his plantation during that year. They agreed that it would be a good thing for Bishop to do this. Bishop told Davis that he had one thousand acres in cotton and usually made five or six hundred bales, On the 1st day of August, 1917, they entered into a contract for the sale by Bishop to C. G. Davis & Company of three hundred bales of the cotton at 24% cents a pound. The cotton was already growing on Bishop’s farm in Miller County, Arkansas, and was to be delivered at Texarkana, Texas, during the months of October, November and December of that year.
In contracts of that kind it was the custom for the ■ planter to deliver the number of bales sold out of the first cotton picked by him. During the fall, Bishop picked two hundred and nineteen bales of cotton on his farm arid delivered the same to C. G. Davis & Company, who paid him the contract price therefor. Bishop failed to de liver to Davis & Company any more cotton, and they brought this suit in order to recover damages which they allege they sustained on account of his failure to deliver to them any more cotton. It was shown by Bishop that he delivered to them all the cotton that he grew on his farm in Miller County, Arkansas, during that year.
The court did not err in directing a verdict for the defendant. It is true, as contended by counsel for the plaintiffs, that the general rule is that when the contract is to do a thing which in itself is possible, the promisor will be liable for a breach thereof, notwithstanding it was beyond his power to perform it. The reason is that it was his own fault to run the risk of undertaking to perform an impossibility, when he might have provided against it by his contract. There are, however, well-known exceptions to this general rule, and one of them is that where from the contract it is apparent that the parties contracted on the basis of the continued existence of a given thing, a condition is implied that, if the performance became impossible from the perishing of the thing, that shall excuse the performance.
In the instant case, according to the evidence adduced by the plaintiffs, the defendant agreed to sell to the plaintiffs three hundred bales of cotton which were growing on his farm in Miller County, Arkansas. The contract was executed on the 1st day of August. The defendant had planted one thousand acres in cotton, and that number of acres usually made five or six hundred bales of cotton. The contract related to the crop to be grown by the defendant on the latter’s farm in Miller County. Under these circumstances, the performance of it, in the contemplation of both parties, depended upon the future growth and continued existence of the cotton.
The defendant delivered to the plaintiffs all the cotton that grew on the farm, and he was therefore excused from a further performance of the contract.
According to the plaintiff’s own testimony, it was the intention of the defendant to sell him a part of the crop which was growing on his plantation in Miller Comity, and under the circumstances the designation of three hundred bales was a mere statement of opinion as to the quantity and cannot be regarded as a warranty that the defendant would raise that number of bales. Of course, if the defendant, by the terms of the contract, had warranted that he would raise three hundred bales of cotton, he would be bound by the terms of his warranty, notwithstanding, on account of weather condi tions or other matters over which he had no control, he failed to raise the designated number of bales. Here we have already seen, it appears from the plaintiffs’ testimony that it was the intention of the parties that the cotton should be grown on the defendant’s own farm, and it is plain that the number of bales was specified in the contract for the purpose of limiting the quantity sold to that amount. Switzer v. Pin Conning Mfg. Co., 59 Mich. 488; Rice & Co. v. Weber, 48 Ill. App. 573, and Ontario Deciduous Fruit Growers’ Association v. Cutting Fruit Packing Co. (Cal.), 53 L. R. A. 681.
In the last-mentioned case the court held that, under a contract for the sale of the crop of a certain orchard, stating the minimum quantity of the fruit to be delivered, the seller cannot be held liable in damages for failure to deliver the specified quantity because of the failure of the crop due to unusual climatic conditions; nor can he be compelled to substitute other fruit for that contemplated in the contract.
In a case note to L. R. A. 1916F, at p. 63, in discussing the question of intervening impossibility of performance of a contract as a defense to an action for the breach thereof, it is said:
‘ ‘ Whether or not a contract for the sale of produce to be delivered at a certain future date contemplates that it shall be grown on a particular tract of land, so that a failure of the crop on that land will excuse non-delivery, is often a close question of construction of the particular contract. The rule appears to be that if the parties contemplate a sale of the crop, or of a certain part of the crop, of a particular tract of land, and, by reason of a drought, or other fortuitous event, without the fault of the promisor, the crop on that land fails or is destroyed, non-performance is to that extent excused; the contract, in the absence of an express provision controlling the matter, being subject to an implied condition in this regard; but that, if the contract does not specify or contemplate the crop of any particular tract of land, nonperformance will not be excused merely because it happens that, on account of a drought or other fortuitous event, without his fault, the promisor is unable to perform the contract, the cases following in this respect the general rule previously indicated that the mere inability of the obligor to perform will not generally excuse nonperformance. ’ ’
It follows that the judgment must be affirmed.
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HART, J.,
(after stating the facts). The trial court seemed to have been of the opinion that the lease comes within the principle of law that, when it is provided that it is terminable at the will of one of the parties, it is terminable at the will of the other. This construction undertakes to divide the lease into independent parts. We are of the opinion that the lease constituted an entire contract. According to the settled rule of construction, all parts of it must be given effect, if possible, and the intention of the parties must be gathered from the four corners of the instrument. -Mrs. Dunaway leased to Galbraith 1,200 acres of land for the sole purpose of mining and operating for oil and gas. She agreed that the lease should remain in force for five years from date and as long thereafter as oil or gas should be produced therefrom by Galbraith or his assigns. In consideration therefor Galbraith agreed to complete a well on the premises within one year or to pay a rental in advance at the rate of $360 per annum for the privilege of extending his time for drilling and bringing in a well on the premises. Section three of the contract further provides that the completion of such well shall operate as a liquidation of all rent under this provision during the remainder of the term of the lease.
Under a subsequent provision of the contract Galbraith reserved the right to surrender the lease for cancellation upon the payment of $25 to Mrs. Dunaway. The parties were capable of contracting and were contracting about a matter which was the legal subject of a contract. The covenant of Mrs. Dunaway to allow Galbraith to drill on her land for oil and gas, and the covenant of Galbraith in consideration therefor to bring in a well within a year, and in case he failed to complete the well to pay a stipulated sum in advance as rental for the privilege of drilling for a well for another year are, mutual covenants which prevent the contract from being unilateral. Each imposed a legal liability upon the party maldng it, and thus prevented the contract from being void for want of mutuality. The parties did not insert any forfeiture clause in the contract. The contract, however, does contain a clause allowing the lessee the privilege of surrendering the lease for cancellation at any' time upon the payment of $25. The land was unexplored for oil or gas. This clause was for the benefit of the les^ see, so that in case he did not discover oil or gas, or for some other reason should find it to his interest not to continue as lessee, he could terminate the lease by paying the stipulated amount.’ The payment of $25, the amount fixed for relieving the lessee from the necessity of continuing with the lease, is a substantial sum and not a mere nominal consideration; and, when construed with the other covenants, it sustains the entire lease; for Mrs. Dunaway gave 43-albraith the right to explore her lands for oil or gas and Galbraith obligated himself to complete a well on the land, or pay in lieu thereof $360 in advance as delay money, or to pay $25, a substantial sum, to be relieved from the necessity of continuing with the lease. Thornton on the Law of Oil and Gas (3 ed.), vol. 2, sec. 899; Beebe v. St. Louis Transit Co., 12 L. R. A. (N. S.) 765; Brewster v. Layton Zinc Co., 72 C. C. A. 213, 140 Fed. 801; Houssiere Latreille Oil Co. v. Jennings-Heywood Oil Syndicate, 115 La. 107, 38 Sou. 932, and case note to L. R. A. 1917 B. 1206 et seq. In so holding we have not overlooked the opinion of the majority in Brown v. Wilson (Okla.), L. R. A. 1917 B. 1184. That case is distinguished from the case at bar in that the consideration for the surrender clause was a mere nominal consideration. But, inasmuch as we do not approve the reasoning of the majority in that case, we decline to follow it, and for the reasons given above, are of the opinion that the contract in the present case is not void for want of mutuality, and that the circuit court erred in so holding.
It follows that the judgment must be reversed and the cause remanded for a new trial.
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WOOD, J.,
(after stating the facts). Under the contract, evidenced by the order and accepted by the appellant, the delivery of the car by the appellant to the railroad company at Memphis was a delivery to the consignee. The title to the coal under the contract passed to the consignee, the appellee. The appellant had the right under the contract to demand of appellee payment for the car of coal, and if not paid on the 10th day of the month succeeding shipment, the right to draw on the appellee for the amount, and appellee became liable to the appellant for the purchase money.
But that is not the question involved here, for the appellee admits that she is liable to the appellant for the purchase price of the coal, but she claims that through the fault of the appellant in not giving her notice of'the time when the car was shipped a demurrage amounting to $196.74 accrued which she paid under the directions of appellants, and which she would not have paid but for such instructions.
The testimony tended to prove that it was contemplated at the time the contract was entered into that the appellant should notify the appellee of the time when the car was shipped. The testimony tended to prove that the appellee received no such notice; that she was present through her agent at Thomwall looking for the car and ready to receive the same when it should arrive; that she received no notice from the railroad company at the time of its arrival at Thomwall until the demurrage in controversy had accrued; that she received no notice from the appellant by letter or otherwise that the shipment had been made and that after she ascertained that the car had finally arrived at Thomwall and demand for the amount of demurrage was made upon her she immediately communicated with the appellant by wire asking for instructions and received the answer set forth in the statement suggesting that she unload the car of coal promptly and release the ear.
The testimony further tended to prove that the appellant was informed by appellee’s agent and attorney, after the demurrage had accrued and before she paid the same, that she would not accept and unload the car and pay the demurrage, and “that it was the distinct understanding between the appellant and the appellee, acting through her attorney, that the appellant should pay this demurrage; that, after this agreement was arrived at between the appellant and the appellee, the appellee paid the railroad company the demurrage and took the railroad company’s receipt therefor, whereupon the car was released and accepted by the appellee.
The testimony thus adduced was amply sufficient to sustain the finding of the court that the appellant was liable to the appellee for the amount of the demurrage charges under its express agreement to pay the same, and the court did not err in so holding.
There is no error in the judgment, and it is therefore affirmed.
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HUMPHREYS, J.
On the 27th day of April, 1917, appellant, a foreign corporation, instituted suit against appellees in the Circuit Court of the Eastern District of Lawrence County, for $548.14, alleging that said sum was a balance due under the terms of a contract entered into by and between appellant, on the one part, and appellee, J. M. Mosley, together with his sureties, on the other part. The contract in all material parts was identical with the contract made in the case of J. R. Watkins Medical Co. v. Hogue, 138 Ark. 105, 210 S. W. 628.
Appellee defended upon the ground that the contract sued upon was entered into by appellant, a foreign corporation, for the sale of its medicines, extracts and other articles in the State of Arkansas, through its agent, J. M. Mosley, one of the appellees herein, before qualifying to do business in the State in accordance with Act No. 313, Acts 1907, of the G-eneral Assembly of the State of Arkansas.
The cause was submitted to a jury upon the pleadings, evidence and instructions of the court. By the verdict and judgment, appellees were exempted from liability, and an appeal has been duly prosecuted to this court.
The undisputed evidence disclosed that, on December 1, 1913, appellee, J. M. Mosley, was indebted to appellant in the sum of $588.97 for goods furnished by appellant and sold by appellee; that, on that date, the contract in question was entered into by and between appellant and appellee with his sureties, in which said amount was expressed as due for goods received and sold under a former contract; that appellee agreed to pay, and said sureties guaranteed the payment of said sum, together with all amounts that might accrue on account of shipments of medicines, extracts and articles furnished during the life of the contract; that all goods subsequently furnished by appellant and sold by appel lee were paid for,, and that $40 was paid on the old indebtedness, leaving a balance due of $548.14; that all goods received and sold under the contract in question were received and sold prior to November 30, 1915; that, on said date, and not before, the appellant qualified as a foreign corporation to do business in the State of Arkansas, under act No. 313, Acts of 1907 of the General* Assembly of the State of Arkansas. Over the objection of appellant, much evidence was introduced tending to show that, prior to the contract of date December 1,1913, appellee, J. M. Mosley, sold the goods and products of appellant in the State of .Arkansas for a number of years, as its agent. Under our view of the law, as applied to the undisputed facts above recorded, it is unnecessary to- set out that evidence.
The cause was sent to the jury upon the theory that appellant, being a foreign corporation and not having qualified to do business in the State of Arkansas, could not recover for the medicines, extracts and other articles shipped to appellee if they were furnished to him and sold by him as .the agent of appellant.
Appellant insists that it was entitled to recover for goods furnished and sold by appellee, even though received and sold by him as its agent.
In construing the statute law prescribing conditions upon which foreign corporations might do business in Arkansas, as it stood before the passage of the act in question, this court held in many cases .that the contracts of foreign corporations, made before complying with the conditions imposed by the statute, were not void, but unenforceable until the requirements in the statute were complied with, and that a foreign corporation might comply with the terms of the act after bringing suit to enforce its contracts. State Mutual Fire Ins. Assn. v. Brinkley Stave & Heading Co., 61 Ark. 1; Buffalo Zinc & Copper Co. v. Crump, 70 Ark. 525; Sutherland-Innes Co., Ltd. v. Chaney, 72 Ark. 327; Woolfort v. Dixie Cotton Oil Co., 77 Ark. 203. Contracts made by foreign corporations for the transaction of business in tlie State of Arkansas, after the passage of act No. 313, Acts 1907, commonly known as the ‘' Wingo Act,” were not rendered nugatory for failure to comply with the requirements of the act, but were rendered unenforceable unless the corporation complied with the provisions of the act before instituting suit on its contract. The act in question was before this court for interpretation in the case of Waxahachie Medicine Co. v. Daly, 122 Ark. 451. In construing the act, the court .said, through Mr. Justice Kirby, that: “The present statute (Act No. 313, Acts 1907, of the General Assembly of the State of Arkansas), after prescribing a penalty of a fine of not less than $1,000 for failure to comply with its provisions, provides: 'As an additional penalty any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid can not make any contract in this State which can be enforced by it either in law or in equity and the complying with the provisions of this act after suit is instituted shall in no way validate said contract.’
“This provision does not expressly declare the contract void, although it does say it shall be unenforceable either in law or in equity by the delinquent corporation, and that a compliance with it after suit is instituted shall in no way validate the contract. The use of this language as to the validation of the contract was made doubtless because of the court’s decision holding in the construction of the other statute that a compliance with the terms of the law by the foreign corporation after suit brought would enable it to prosecute the suit; but if the Legislature had intended that compliance with the terms of this act by a delinquent foreign corporation, after the entry into a contract and before suit brought, on its part, would not enable it to enforce such contract, then there was no use to add anything after the words 'which can be enforced by it either in law or equity.’
“Since the statute does not expressly declare the contracts void, we do not think, in view of the language •used, that the lawmakers intended to fix such additional penalty for the failure to comply with the terms of the statute. ’ ’
Under this construction of the statute, in force at the time the contract was made and the goods were shipped and sold, it is immaterial whether the contract was one of principal and agency or sale and; purchase. The amount due, under the terms of the contract, was undis- ■ puted. The trial court should have instructed the verdict for the appellant in the sum of $548.14, with interest at the rate of six per cent, from the 30th day of November, 1915, and it was error not to do so when requested.
The judgment is therefore reversed and judgment will be entered here in favor of appellant against appellees for said sum. It is so ordered.
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HUMPHREYS, J.
Appellants instituted suit against appellees in the Pulaski Chancery Court to prevent them from interfering with their membership in the Brotherhood of Locomotive Engineers and their property rights, consisting of insurance, traveling cards, etc., incident to their membership. In substance, they alleged that the Grand International Division of said Brotherhood, commonly known as the “G. I. D,,” was a duly organized Ohio corporation, located at Cleveland, Ohio, with power to do business in Arkansas, and possessing supreme authority in matters of said brotherhood; that, without authority, and contrary to the laws of the Brotherhood and the land, said G. I. D., while sitting in triennial session in Cleveland, on May 18, 1918, expelled appellants from the Brotherhood, thereby injuring them in their property rights; that said G. I. D. ordered local division No. 554, in which they held their membership, to put the order of expulsion into effect. Based upon these allegations, appellants prayed for cancellation of the order of expulsion, the non-enforcement thereof, and reinstatement as members.
Appellees admitted the expulsion and order for the enforcement of same but denied that it was without authority under the constitution and by-laws of the Brotherhood to expel them and direct the enforcement of the order.
The cause was heard upon the pleadings, depositions and exhibits thereto, from which the chancellor found that the Grand International Division of the Brotherhood of Locomotive Engineers possessed constitutional .authority to expel members of subordinate divisions of the Brotherhood and to order the division of which the expelled brother was a member, to enforce the order of expulsion; that appellants were charged, fairly tried and expelled for violating a by-law of the order. In keeping with the findings, the court dismissed the petition of appellants for want of equity. From the findings and decree of the chancellor, an appeal has been prosecuted to this court, and it is before us for trial de novo.
Several years before the institution of this suit, F. C. Stelter sued the Rock Island Railroad on account of injuries received while operating one of its envines. The railroad company compromised the suit with Stelter, but refused to re-employ him, contrary, Stelter claimed, to its contract with the order. He attempted to present these claims, first, to his local division, next to the Grand Chief Engineer, and then to the Grand International Division, bnt failed to get relief. In preparing and presenting the claims, he was assisted by J. C. Love, one of the appellants in this cause. In .an attempt to get the claims of appellant Stelter considered, appellants attended the convention of the G. I. D. in 1918. "While there, the following written charges were preferred against them by E. S. Pritchard, a delegate to the G. I. D.:
“To Officers and Members of the Grand International Division:
“Sirs: I herewith prefer charges against member J. C. Love and member F. C. Stelter of Division No. 554, for violation of obligation, and submit the attacking pamphlet hereto as evidence.”
The attacking pamphlet attached as evidence consisted in a bill of particulars and a complete statement of Stelter’s case and his fruitless attempts to obtain redress from the local division, the officials and the G. I. D. at its first convention. In substance, it charged that certain officers of the G. I. D., including the Chief Executive of the Order, prevented him from obtaining redress through deceit, falsehood, tyrannical influences, etc.
The charges were referred to a committee of five for trial and report. Appellants appeared before the committee and admitted that the attacking pamphlet was signed by J. C. Love of Division No. 554, and prepared and circulated by him with the consent .and approval of appellant F. C. Stelter.
The following report was filed by the committee:
“Sirs and Brothers: "We, your committee appointed in the case of J. C. Love and F. C. Stelter of Division No. 554, for violation of obligation, beg to report that after due consideration of all the evidence and examination of all the witnesses, we find that they .are guilty as charged, and recommend their expulsion.”
After refusing to allow appellants to appear before the body, the G. I. D. voted to expel them. The motion was then adopted conferring power on the Grand Chief Engineer and the Advisory Board to hear and reinstate parties who had been suspended.
The evidence on the. part of appellants tended to show that the sitting of the committee was an informal affair; that when they appeared before such of them as were present, they did not intend to appear for trial, but thought they were appearing for the purpose of presenting Stelter’s claims set forth in the attacking pamphlet, and had no idea that they were being tried on the charges preferred against them; that they did not undérstand that the questions propounded to them as to authorship and circulation of the pamphlet were propounded in the course of a trial; that they left the committee, or such members ,as were present, believing that, in case they were to be tried, they would receive a copy of the written charges and notice of the time and place of trial.
The evidence on the part of the committee tended to show that appellants were present and understood the nature of the charge against them; that they were being tried on it; and that on the trial they admitted authorship and responsibility for the circulation of the pamphlet.
Appellants first insist that the constitution of the Grand International Brotherhood of Engineers did not invest the G. I. D. with original jurisdiction to expel the members of the subordinate divisions thereof, but in that respect, with appellate jurisdiction only. It is provided in the third section of the constitution of the Order that: “The G. I. D. shall have exclusive jurisdiction over all subjects pertaining to the Brotherhood, and its enactments and decisions upon all questions are the supreme law of the Brotherhood, and all divisions and members of the Order shall render true obedience thereto.
“It shall also have full power to order the expulsion of a member of any division, and in the event of such division failing to comply with such order, the Grand Chief shall recall their charter and shall hold' the same until the order is complied with or decision is reversed by the Gr. I. D.; and such expelled member shall not be reinstated except by action of the G. I. D.”
It would indeed be a restricted construction to hold that only appellate jurisdiction was conferred upon the G. I. D. by this section of the constitution. It is hard to conceive what broader or more specific language could be invoked in an attempt to confer all power upon a body, than was utilized in this section. The first clause confers jurisdiction on the G. I. D. over all subjects pertaining to the Brotherhood; the next makes the enactments and decisions the supreme law of the Brotherhood, and the next exacts complete obedience of every member of the Order to the laws enacted, or decisions made by the G. I. D., touching any subject concerning the Brotherhood. If this is not an investment of all power in a body by plain, unambiguous language, we are unable to detect the restriction or limitation. Touching upon the unlimited power vested in the G. I. D. by the first paragraph of this section of the constitution of the Order, it-was said by the court in the case of Simpson and Smith v. Grand International Brotherhood of Locomotive Engineers, 98 S. E. 580, that: “The powers thus vested in it expressly exclude any presumption of intent to adopt the limitations and rules of the civil laws, respecting either procedure or substantive rights in the Order.”
Again, in the latter clause of the same section, full power is vested in the G. I. D. to order the expulsion of a member of any division. Ample authority is granted the subordinate divisions of the order by other sections of the constitution to expel their members without an order from the G. I. D. In case of an affirmance of an expulsion on appeal to the G. I. D., an order to the division to expel the member would therefore be an unnecessary or superfluous order. In case of reversal of an expulsion on appeal to the G. I. D., certainly no such order would, or could, be issued. Consequently, it is plain that the authority conferred on the G. I. D. to order a division to expel a member grows out of an exercise of its original jurisdiction. Had the power thus conferred related to other than an exercise of original jurisdiction, the authority would not have been to order expulsion but to order the trial .and expulsion of a member, if found guilty. The order for the imposition of the penalty presupposes a trial and conviction.
Again, it is insisted by appellants that there was no by-law establishing the offense charged and fixing expulsion as the penalty. Section 92 of the constitution of the Order provides that: “All divisions, or members of divisions, are prohibited from issuing circulars or signing any form of petition relative to Brotherhood business among members of the Brotherhood or others. If issued by a division its charter shall be suspended, and the length of such suspension shall be at the discretion of the Grand Chief Engineer. If issued or signed by a member, he shall be suspended or expelled; provided that the foregoing shall not prevent or hinder in any manner any official or division of the Brotherhood in properly conducting the business of the organization as to sending out notices, reports, etc., for the purpose of securing or giving information.”
This by-law prevents lay members of the Order from issuing or signing circulars, or any form of petition in relation to the business of the Brotherhood among the members or others. The attacking pamphlet was a circular or petition relating to Brotherhood business, and, therefore, clearly inhibited by the law of the Order.
Appellants also insist that the charge was not sufficiently definite to bring it under section 92 of statutes, or any other by-law of the Order. The charge, in substance, is the violation of obligation, evidenced by the attached attacking pamphlet. Owing to the length of the pamphlet, it is impracticable to incorporate it in this opinion. Suffice it to say that it is a circular or petition relative to the conduct of Division No. 554, the Grand Chief Engineer and the first triennial convention of the G. I. D. in relation to the claim of appellant F. C. Stelter, concerning an alleged violation of a contract be tween the Rook Island Railroad and the Order, in reference to the railroad’s refusal to re-employ him, after his suit against it was compromised. The subject matter contained in the pamphlet related to the business of the Brotherhood among the members as well as others. The charge was sufficiently definite and specific.
It is also insisted by appellants that the mode of procedure adopted by the Gr. I. D. in the trial was contrary to the by-laws of the Order. We have examined the statutes of the Order and find that the mode of procedure provided in them for trial of members relates to trial by subordinate divisions. No method of procedure is specified in the laws of the Order for trials of members by the Gr. I. D. Under these circumstances, it was within the power of the Gr. I. D. to adopt a fair method of procedure, even though it did not conform to the method governing trials of the members before subordinate divisions. Gray v. Christian Society, 137 Mass. 329; Spillman v. Supreme Council of Home Circle, 157 Mass. 128, 31 N. E. 776.
It is also contended by appellants that the Gr. I. D. had no right to delegate the investigation of the charges to a committee. It is asserted that the Gr. I. D. itself should have investigated the charges. In conventions of this character, composed of delegates from subordinate divisions, sitting triennially, it is hardly practicable to conduct investigations otherwise than through committees. This method was approved in the case of Spillman v. Supreme Council of Home Circle, supra, which was an organization quite like the Brotherhood of Locomotive Engineers. In commenting on this method of procedure in that case, Justice Allen took occasion to say: “It (referring to the Supreme Council) was, in short, a body of the highest, and apparently unrestricted, authority. The trial of members or officers of grand or subordinate councils might be had before a special committee of one or more members of the Order named by the supreme leader. This committee need not consist of members of the Supreme Council. The Supreme Council is a body whose will is a law unto itself. It was to have original jurisdiction in all cases of its own officers and members, but no mode of procedure was provided for their trial. It would seem, therefore, that it might adopt such mode of trial as it pleased, subject only to the implied limitation that it must be fair.”
Lastly, appellants insist that they did not obtain a fair and impartial trial. On sharply conflicting evidence, the chancellor made a special finding to the contrary, which finding seems to be supported by the evidence.
No error appearing, the decree is affirmed.
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WOOD, J.,
(after stating the facts). It appeal’s from the allegations of the complaint that the Board of Assessors provided for in act 97 of the Acts of the General Assembly for the year 1911, creating appellee levee district, assessed the benefits to be derived from the protection afforded by the levee improvements contemplated, at $15 per acre. It further appears that the Legislature of 1919, by section 2 of Act No. 166, “passed for the pur pose of aiding the White River Levee District,” “increased the benefits to the real estate therein at the rate of six per cent, per annum.” The act specified that: “Such increase shall be cumulative, and shall continue from year to year until the present indebtedness of the district is fully matured and paid.”
Section 5 of act 97, creating the district, provides that the assessments of the Board of Assessors “shall be the assessments of the district until the next assessment shall be ordered by the Board of Directors. ” It is argued that section 2 of act 166, supra, alters and extends the provisions of section 5, supra, of the original act, creating the district, without re-enacting and publishing at length that section, and thus violates section 23, article 5 of the Constitution, which provides: “No law shall be revived, amended or the provisions thereof extended or conferred by reference to its title only, but so much thereof as is revived, amended, extended or conferred, shall be re-enacted and published at length.” Section 2 of act 166, supra, does not purport to, and does not in fact, amend or extend the provisions of section 5 of Act 97 of the Acts of 1911, “by reference to its title only or in any other way.” The title of the act under review is “An act entitled an act in aid of the White River Levee District.” It is a wholly independent enactment. True its effect is to repeal that part of section 5 of Act 97 of Acts of 1911 which reads: ‘‘ And their assessment as equalized shall be the assessment of said levee district until the next assessment shall be ordered by the Board of Directors.” But this is so because section 2 of act 166, supra, is a direct assessment of benefits by the Legislature and is in invincible conflict with that part of section 5 of act 97 last above quoted, which continues the assessment of benefits made by the Board of Assessors “until the next assessment shall be ordered by the Board of Directors.” In Scales v. Slate, 47 Ark. 131-134, Chief Justice Cook-rill, speaking of the provision of the Constitution now under consideration, said: “It is well settled that this provision does not make it necessary, when a new statute
is passed, that all prior laws modified, affected or repealed by implication by it should be re-enacted.” See also the opinion by him in Watkins v. Eureka Springs, 49 Ark. 131-131. The act therefore is not in conflict with section 23, article 5 of the Constitution.
It is also urged that the Legislature has no power to increase the benefits assessed by the Board of Assessors at the rate of six per cent, per annum and to make same cumulative and continuous until the existing indebtedness matured and was paid. It is the settled law in this State that the Legislature may act directly in assessing benefits to accrue from local improvements which it has authorized, and the “legislative determination should be and is conclusive unless it is arbitrary and without any foundation in justice and reason.” Salmon v. Board of Directors, 100 Ark. 366; Moore v. Board of Directors of Long Prairie Levee District, 98 Ark. 113, 116-117; Board of Improvement v. Pollard, 98 Ark. 513, and cases cited. Since under these decisions the Legislature has the power primarily to determine the value of the benefits to be derived from a local improvement, it follows as a necessary corollary to this doctrine that the Legislature may increase the original amount of the benefit assessment whether same was made directly by it or by a board of assessors to which the power had been delegated. The exercise of the power in the first instance did not exhaust it. The Legislature could continue to exercise the power until the purpose in creating the levee district had been consummated. The method prescribed in section 2 of act 166, supra, by which the Legislature determined that the amount of the value of the benefits which would accrue to the lands; by reason of the improvement, would be represented by a sum consisting of the original assessment of $15 per acre at rate of 6 per cent, per annum thereon, to be cumulative and to continue from year to year until the indebtedness of the district was mature, was within the province of the Legislature. The amount of the value of the benefits could be easily and definitely ascertained by this method, because it fixed with cer tainty the time of the interest to run as the date when the then indebtedness of the district matured. In Oliver v. Whittaker, 122 Ark. 291, the court held that assessments of benefits could be made to bear interest at the rate of 6 per cent, per annum, under a statute which provided that “the deferred installments of the assessed benefits shall bear interest at the rate of 6 per cent, per annum and should be payable only in installments as levied.” In construing this provision, the court said that it was not intended “to authorize the imposition of any burden in excess of the actual value of benefits to the property together with interest on deferred payments. ” So it may be said here that there was nothing in the language of the act that reveals any intention on the part of the Legislature to impose any burden upon the property in excess of the value of the benefits to the lands.
The appellant further contends that the board had no authority to issue bonds under the third section of Act 166, supra, for the reason that at the time of its passage there were no certificates of indebtedness outstanding, inasmuch as the work contemplated by the act of 1917 was never performed and no certificates of indebtedness were actually issued under the authority of such act. But the language of section 3 of act 166, supra, shows that the board was authorized to issue certificates of indebtedness in the sum of $100,000 not only for the indebtedness of the district “incurred during the overflow of 1918,” but also “for the purpose of raising funds to pay for the present necessary work of raising, strengthening, and repairing the levee of said district. ’ ’
Although it appears from the allegations of the complaint that the Legislature made a mistake in finding that there was a present indebtedness against the district for work done during the overflow of 1918, yet the language of the third section of the act shows that the Legislature was not under any misapprehension as to the existing necessity of raising, strengthening, and repairing” the levee of the district. There are no allegations of fact in the complaint showing, that the necessary work to be done, in order to effectuate the purpose in building the levee, namely, to protect the lands from overflow, would cost less than the sum of $100,000. To be sure, the Legislature would have no power to authorize the issuance of bonds to liquidate an indebtedness which had not been, and which would never be, incurred. But taking the language of the act as a whole it clearly evinces the purpose to provide a fund to be expended in necessary work on. the levee.
'Being convinced that such was the intention of the Legislature from the language employed, it is our duty to give effect to the statute, even though some of the language indicates that it was used under a mistake of fact. The words “incurred during the overflow of 1918” should be treated as surplusage, and could and should, be eliminated in order to carry out the manifest purpose of the Legislature. This view is in accord with recognized canons for the correct interpretation of statutes, as announced by the best authors on the subject, and often approved by our own court. See Lewis’ Sutherland on Stat. Con., secs. 363 to 384, inclusive, also secs. 489, 490; Endlich on the Int. of Stat., sec. 365, chap. 4, sec. 73, sec. 264, 265; Bowman v. State, 93 Ark. 168; Garland Power & Dev. Co. v. State Board of R. R. Incorp., 94 Ark. 422; Snowden v. Thompson, 106 Ark. 517; State v. Trulock, 109 Ark. 556; Nakdimen v. Ft. Smith & Van Buren Bridge Dist., 115 Ark. 194; and other cases cited in 4th Crawfords’s Digest, p. 4677, sections 53, 54, 55.
It is alleged in the complaint that the issues of bonds under Acts'166 and 178, supra, will cause the indebtedness of the district to greatly exceed the benefits assessed against the lands of the district, but no facts are allege'd to show that such is the case. In Moore v. Board of Directors of Long Prairie Levee Dist., supra, we held that the courts cannot review “merely on general allegations that the assessments are arbitrary, excessive, and confiscatory.” Facts must be pleaded which show that the decision of the law makers was not merely erroneous, but that it was manifestly outside of the range of the facts.
■ In disposing of the allegations of the complaint on demurrer and ruling that act 178 of the Acts of 1919, supra, is not open to the objection here urged against it, we reserve our decision as to its validity if its constitutionality should be challenged on other grounds.
Finding no error in the ruling of the court, its judgment is affirmed.
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WOOD, J.,
(after stating the facts). The lands in suit are part of section 16, township 15 north, range 11 east, immediately south of and adjacent to the town of Blytheville, which were granted to the State of Arkansas by the act of Congress, approved June 23, 1836, supplementary to the act for the admission of the State of Arkansas into the Union.
The act provided: “That the section numbering 16 in every township, and when such section has been sold or otherwise disposed of, other lands equivalent thereto, or as contiguous as may be, shall be granted to the State, for the use of the inhabitants of such townships for the use of schools.”
By an ordinance of the Legislature approved October 18, 1836, the General Assembly of the State of Arkansas “freely accepted, ratified, and irrevocably con firmed as articles of compact and union between the State of Arkansas and the United States” the act of Congress containing the above grant of lands.
The language of the act of Congress, to-wit: “For the use of the inhabitants of such townships for the use of schools,” shows clearly that the purpose of the grant was to convey to the State absolute title to the sixteenth section in every township to be held in trust for the benefit of the inhabitants of the townships iii which such sections are situated for the use of the schools.
The act of Congress of February 15, 1843, conferred upon certain States, among them Arkansas, the right to provide for the sale of lands reserved and appropriated by Congress for the use of schools within those States “and to invest the money arising from sales thereof in some productive fund, the proceeds of which shall be forever applied under the direction of said Legislature to the use and support of schools within the several townships and districts of the county for which they were originally reserved and set apart, and for no other purpose whatever.”
There is also other language in the act of 1843 showing that Congress interpreted the language of the original grant in the act of 1836 to mean that the money arising from the sale of the sixteenth section should be invested in some productive fund for the use and support of the schools within the townships where the sixteenth sections are situated.
While the act of Congress of 1843, supra, was declared by this court, in Mayers v. Byrne, 19 Ark. 308, not binding upon the State as to the disposition of the land, the act nevertheless is a construction by Congress of the meaning of the terms of the original grant as to how the money derived from the sale of the sixteenth sections should be used by the State to which such lands were granted.
The Legislature as early as 1853 provided that the accruing annual interest on the money arising from the sale of the sixteenth section of land in any township shall be a perpetual fund to be appropriated to the support of a school or schools in the respective townships, but no part of the principal shall ever be expended for any purpose whatever and shall be loaned out at an interest of not less than 8 per cent, per annum.” Act of January 11, 1853.
Section 2 of the act of 1885, section 7488 of Kirby’s Digest, provides as follows: “The principal arising from the sale of the sixteenth section of land shall never be apportioned or used.”
While the later interpretation by Congress and by the Legislature of the meaning of the terms of the act contained in the original grant are not binding on the court, they are persuasive, and indeed we are convinced that they correctly construe the meaning and purpose of the original act of Congress of 1836, and the ordinance of the State accepting the grant.
Now, the word “use” employed in the act of Congress has a well-defined legal meaning, and the State by its ordinance accepting the terms of the grant of the United States entered into the compact and accepted the trust imposed thereby which her sovereign power, the Legislature, must observe in executing the trust.
“As a general rule,” says the Supreme Court of Indiana, “the use of a thing does not mean the thing itself, but means that the user is to enjoy, hold, occupy, or have in some manner the benefit thereof. If the thing to be used is in the form or shape of real estate, the use thereof is its occupancy or cultivation, etc., or the rent which can be obtained for its use. If it is money or its equivalent, generally speaking, it is the interest which it will earn." Brunson v. Martin, 152 Ind. 111-118; Lin v. Howard, 163 Mich. 556, 128 N. W. 793-5; In re Moor’s Estate, 163 Mich. 353, 128 N. W. 198; Candee v. Conn. Savings Bank, 81 Conn. 372-74.
It will be observed that the act of Congress granted the sixteenth section to the State absolutely and unreservedly and without prescribing the manner in which the lands should be used if retained by the State, or, if sold, how the proceeds should be invested or put to use. In these respects the power of the Legislature is plenary., It is wholly within the province of the Legislature to determine whether the lands shall be leased or whether, they shall be sold or how and by whom they shall be managed and sold. Widner v. State, 49 Ark. 172; School Dist. No. 36 v. Gladish, 111 Ark. 329.
As is said in Mayer v. Byrne, 19 Ark. 308-18: ‘ ‘ The State, as a sovereign, not as an individual, took upon herself a trust, which she was to execute, and could only execute, by such municipal legislation as her General Assembly might deem necessary and expedient to carry into practical effect the objects of the grant. The land was to be appropriated to the support of schools for the benefit of the inhabitants of the township in which it was situated, but whether this was to be effected by leasing the land, or selling it, and putting the proceeds upon interest, was not prescribed by the act of Congress making the grant, and, of course, was left to the discretion and good faith of the State.”
But there is a limitation upon the power of the Legislature to dispose of the corpus of the trust; that is, the land itself, or, if sold, the proceeds thereof, in a manner which would defeat the trust by appropriating the land or the proceeds thereof to a purpose contrary to that expressed in the compact. The State is under a sacred obligation to carry out the purpose of the grant as clearly expressed in the act of Congress.
We conclude, therefore, that the words “for the use of the inhabitants of such township for the use of schools” contained in the grant of Congress limit the State in her execution of the trust, through her sovereign agent, the Legislature, to the purposes indicated by the meaning of the word “use.” This word has a potential significance and shows that the parties to the compact never intended that the sixteenth section, the land itself, or the proceeds thereof, if sold, should be turned over to the inhabitants of the township, the beneficiaries of the trust, but, on the contrary, that the lands or its proceeds should be put to use for the maintenance and support of schools.
The act under review provides that the funds derived from the sale of the sixteenth section shall be reinvested in a building and equipment in Blytheville, to be used for high school purposes. By the act in question the property itself, or the corpus of the trust, is exhausted and used in a building for the benefit of students living in School Districts Nos. 33, 42, 49 and Special School District No. 5. The act thus violates the plain terms of the contract or 'compact between the United States Government and the State as evidenced by the act of Congress of 1836 containing the grant, and the ordinance of the State accepting the same, and is, therefore, void. Article 2, section 22, Constitution of 1874.
But, even if the compact contemplated that the corpus of the trust might be appropriated for high school buildings, etc., the act under consideration is further void because it is .discriminatory against part of the inhabitants of the township in which the sixteenth section is situated, which violates the terms of the compact. The plain language of the-act of Congress “for the use of the inhabitants of such township” refers to -all the inhabitants of such township. The grant of land “for the use of the inhabitants of the township” created a vested right in the usufruct of the sixteenth section in all the inhabitants of the township in which that section is situated.
It is shown by a stipulation in the record that School Districts Nos. 4, 6, 22, 32 are partially within township 15, in which the sixteenth section is situated.
Section 4 of the act of the Legislature under consideration provides “that the building so constructed shall be for the benefit of students living in School Districts Nos. 33, 42, 49 and Special School District No. 5, who may attend the school without paying tuition.
All the inhabitants of township 15 have a usufructuary proprietorship of the sixteenth section. This is really the more important estate than the naked legal title which the State has pledged her good faith to hold for the benefit of all the inhabitants of the township and to be administered uniformly and impartially to the benefit of all. Any act which could have the effect of depriving any of the inhabitants of the benefit of the use of the lands or the proceeds thereof for the use of schools would violate the provisions of the compact and would be a taking of their property without compensation.
In Dickinson v. Edmonson, 120 Ark. 80, speaking of the disbursement of the common school fund, we said: “The Legislature had no authority to select an arbitrary basis for the disbursement of the funds, but must do so upon some just basis relating either to the scholastic population or the general population of each locality or the amount of taxes paid, or some such equal and uniform basis of distribution. The Constitution expressly provides for uniformity of taxation, but there is no express provision with respect to the uniformity of disbursement. However, in the very nature of the subject, there must be uniformity, otherwise' the use of the fund would not be for the common benefit of the people. * * * The common school funds cannot be distributed in a partial manner so as to discriminate between different localities.” The above doctrine is applicable here.
The funds derived from the use of the sixteenth section or from the use of the proceeds of the sale of such section, were manifestly intended by the grant from the United States Government, to be used for the benefit of the inhabitants; that is, all the inhabitants, for the support and maintenance of schools without discrimination against any inhabitants of any class or locality. Therefore, the decree of the chancery court declaring the act under review void and perpetually enjoining the directors of Special School District No. 5 from selling the land is correct, and it is affirmed.
McCULLOCH, C. J., not participating.
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SMITH, J.,
(after stating the facts). The Constitution imposes no limitation upon the number of amendments which may be made to a bill as it passes through one or both branches of the Legislature. The only limitation in that respect is that “no bill shall be so altered or amended on its passage through either house as to change its original purpose.” No attempt is made to show that the original purpose of the bill was altered by the House amendment. Indeed, it is shown that this was only a method of embracing a number of amendments in the form of one amendment and that many sections of the act remained unchanged and that the sections ■ as amended are entirely germane to the original purpose of the bill.
There is no constitutional objection to embracing-lands in more than one road district if the lands are benefited by the roads constructed in each of the districts. If the lands receive benefits from improvements being constructed in more than one district they become subject to the tax in each district. Lee Wilson & Co. v. Compton Bond & d Mortgage Co., 103 Ark. 452.
We think the provision of the act that the commissioners may select their own successors does not encroach upon, the jurisdiction of the county court. If there was any constitutional requirement that the commissioners be selected by the county court, it would have been improper for the Legislature to name the original commissioners— and that objection to the act is not made. Indeed, many acts of the Legislature have been approved by this court in which commissioners were therein named to supervise the construction of the improvement therein authorized. Whether the commissioners who act are the ones named by the Legislature or are the successors of such commissioners their plans are subject to the approval of the county court. These districts are organized for the purpose of aiding the county court in the construction .of internal improvements, and the court may approve or reject the plans through which this aid is offered; but it does not invade the jurisdiction of the county court for the Legislature to appoint or to designate these agencies.
We think there is no constitutional objection to making the county judge ex-officio a member of the board of commissioners. His freedom of action in the approval or disapproval of the plans is untrammeled by the fact that he is a member of the board which made them. Whether the plans were made with or without his approval, and whether the judge’s membership on the board gives him a more comprehensive view of the plans proposed or not, the fact remains that he has the same right of approval or disapproval that he would have if he were not a member.
Section 14 of the act provides that the commissioners shall designate a date for a hearing on assessments of benefits, and shall cause notice thereof to be given, the form of which is therein set out. Pursuant to this notice the commissioners are required to meet for the purpose of hearing any complaints against assessments, and when these complaints have been heard and the assessments equalized a copy of the assessment book is filed with the county clerk, and thereafter any aggrieved landowner has thirty days within which to bring “legal proceedings to contest any of said assessments of benefits,” after which time—in the absence of any such proceeding—the right to objection shall be deemed to have been waived.
It does appear from section 9 of the act that subdistrict No. 5 is created for the purpose of taking over the affairs of an existing road district created under the Alexander road law to improve the road lying in that subdistrict. The act provides that the district therein created “ shall not begin any work of improvement thereon unless and until a majority of the commissioners of such other -district shall file with them a writing stating that the project under their control has been abandoned, and they are hereby given power to abandon said project and terminate the existence of the district, and turn over their surveys to this district when paid therefor by it. ’ ’
We know of no valid reason why a district organized under either a general or special act of the Legislature may not be dissolved, provided the validity of no contract outstanding at the time of the dissolution is impaired, and no such objection is made to the act under consideration. Special School Dist. No. 33 v. Howard, 124 Ark. 475.
The objection to the manner of the passage of the act is not well taken. The constitutional requirement that a bill shall be read on three different days in each house is subject to the qualification that by a two-thirds vote the rules may be suspended when the bill may be read the second time or the third time on the same day, and the rules were suspended for the second reading in each house. A bill cannot be read more than twice in either house in one day, but express authority is given for reading it in either house on the same day a first and second or a second and third time, provided the rules be suspended for that purpose by a two-thirds vote. The requirement of the Constitution having been met by a suspension of the rules, it cannot be said that the act was passed with a haste which makes it unconstitutional.
Upon the whole we find no valid objection to the constitutionality of the act, and the decree of the court below holding it constitutional is, therefore, affirmed.
HAET, J., dissents.
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HAET, J.,
(after stating the facts). The plaintiff alleges the act to be unconstitutional and void on various grounds, all of which have been decided against him by the recent decisions of this court. Therefore we will proceed to state his grounds of complaint and cite without additional discussion the cases, or some of them, which have put at rest the contentions now made by the plaintiff.
It is contended that the land of the plaintiff will receive practically no benefit from the proposed improvement because his land lies one and one-fourth miles from the road.
Section 4 of the act specifically declares that all lands located within the district will be benefited by the construction of the road and proceeds to state definitely the amount of benefits that each tract of land will receive. The various tracts of lands are divided into different zones for the express purpose of the Legislature fixing the benefits that each tract will receive. The Legislature provided that the lands in the different zones are benefited a certain per cent, of the assessed value of the lands as shown by the last assessment thereof for State and county purposes. A different per cent, is fixed for each separate zone.
The act further provides for the filing of a plat of the district by the county surveyor showing the zone of each subdivision of land as defined in the act and directs the county clerk to extend an assessment in a book provided for that purpose against each tract of land in the district, according to the percentage 'fixed by the act and the zone as shown on the map filed by the county surveyor. This is a legislative assessment of benefits.
In the case of Moore v. Bd. Dir. of Long Prairie Levee Dist., 98 Ark. 113, the court said: “Nor can the courts review merely on general allegations that the assessments are arbitrary or excessive and confiscatory. Facts must be pleaded, which show that the decision of the lawmakers was not merely erroneous, but that it was manifestly outside of the range of the facts, so as to amount to an arbitrary abuse of power; for nothing short of that will authorize a review by the courts.” See, also, Alcorn v. Bliss-Cook Oak. Co., 133 Ark. 118.
The same view has been expressed in several other eases, notably in the recent cases of Cumnock v. Alexander, 139 Ark. 153, and Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168. In these last two cases the legislative assessment of benefits were sustained where the lands were situated farther away from the proposed road than the land in question.
It is insisted that the act is void because other lands in the district which have been assessed for the construction of the road are in the same situation as to inaccessibility to the road as are the lands of the plaintiff. It is conceded by the plaintiff that, if his contention in this respect as to his own lands is not sustained, the ruling would apply with equal force to other lands similarly situated. It is perfectly manifest that the same ruling should obtain in both cases.
It is contended that the act is contrary to article 7, section 28, of the Constitution, which vests in the county court exclusive original jurisdiction in all matters relating to roads. This question under a similar statute was recently thoroughly considered by the court and decided adversely to the contention of the plaintiff by a divided court. The reasons for the holding were given in an opinion by the chief justice and the dissenting opinion prepared by the writer and concurred in by Mr. Justice Wood, gives the reasons for the contrary view. Therefore it would be useless to again open and discuss this question. Sallee v. Dalton, 138 Ark. 549.
It is next insisted that the act is unconstitutional because a certain part of the road which is proposed for improvements constitutes a street in the city of Conway. It is claimed that this violates article 19, section 27, of the Constitution relative to the formation of improvement districts in cities and towns. This court has expressly held several times that the Legislature may create a road district and authorize the commissioners to improve the road through an incorporated town or city. Cox v. Road Imp. Dist. No. 8 of Lonoke County, 118 Ark. 119; Bennett v. Johnson, 130 Ark. 507; and Cumnock v. Alexander, 139 Ark. 153, and Reitzammer v. Desha Road Imp. Dist. No. 2, 139 Ark. 168.
It is next urged that the assessment of benefits upon the land of the plaintiff was unreasonably high and amounted to confiscation of his property. The act provides that the map and plat showing the different zones in which the property was situated should be filed within 30 days after the passage of the act, and that any landowner who thinks himself aggrieved by any incorrect showing of his land thereon may file a petition in the county court within 10 days after the filing of said map asking for a correction thereof. The act further provides that the landowner may appeal from the judgment of the county court if he feels aggrieved by its action in the matter. It is also provided that within 10 days after the filing of the assessment book any landowner deeming himself aggrieved by the assessment may file a petition in the chancery court for a correction thereof. These provisions afforded the landowners a day in court for the hearing of any complaint against the assessments.
In the case of Coffman v. Road Imp. Dist No. 6 of Lawrence County, 134 Ark. 411, the court held that, under the act in question in that case, property owners might appeal from an order of the county court approving the assessment of benefits by following the only requirement of the statute, namely by filing an affidavit for appeal within 10 days. This period of time was recognized by the court in that case as not unreasonable. Several other cases have sustained statutes in cases of this kind, allowing a short period of time for the landowner to act in the premises.
The writer dissented in some of these cases on the ground that the time was unreasonably short, but our previous decisions have closed the door to further inquiry on this question.
The plaintiff failed to avail himself of the remedy provided by the statute within the ten days allowed him, and cannot now question the validity of the assessment on the ground that it is excessive.
It follows that the decree will be affirmed.
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HART, J.,
(after stating the fact's). Chancery was the proper forum in which to bring the suit. Section 8062 of Kirby’s Digest provides that whenever any will shall be lost or destroyed by accident or design, a court of chancery shall have the same power to take proof of the execution of such will, and to establish the same, as in the case of lost deeds. The power of a court of chancery to establish lost instruments is one long recognized and the practice under it requires that all those interested in the deed or will should be made parties and have notice of the proceeding. Waggenet et al. v. Lyles et al., 29 Ark. 47, and Dudgeon v. Dudgeon, 119 Ark. 128.
Sections 48-51 of the Revised statutes, now section 8065 of Kirby’s Digest, reads as follows:
“No will of any testator shall be allowed to be proved as a lóst or destroyed will, unless the same shall be proved to have been in existence at the death of the testator, or be shown to have been fraudulently destroyed in the lifetime of the testator, nor unless its provisions be clearly and distinctly proved by at least two witnesses, a correct copy or draft being deemed equivalent to one witness.”
The first question for our consideration is whether or not the execution and contents of the will are established according to the provisions of this statute. We think the proof clearly shows that this question should be answered in the affirmative. Mr. Cockrill dictated the will to his stenographer. She took it down in shorthand and transcribed her notes on the typewriter, making the original draft of the will and a carbon copy of it at the same time. She exhibited the carbon copy with her deposition and testified that it was the copy she made when she transcribed her stenographic notes as dictated to her by Mr. Cockrill. Mr. Cockrill identified the copy as being an exact copy of the original with the exception of filling certain blank spaces with the name of the executrix and the names of the trustees. He stated that he filled in the blanks with these names in the original with a pen and in the copy with a pencil.
Thus it appears from his testimony, that the copy exhibited with the deposition of the stenographer was an exact copy in all respects of the original will. It appears from the testimony of the stenographer that the copy was an exact one in all respects except that in transcribing the will she left a blank space for the name of the executrix to be inserted and also for the names of the trustees. It appears from the testimony of both these witnesses that as far as the devises and bequests are concerned the carbon copy exhibited is an exact copy of the will executed by Joseph Kendrick.
In addition to this Miss Fannie Mitchell testified that Joseph Kendrick stated to her in detail how he wanted his property disposed of and that she at the time made a written memorandum from his dictation. She refreshed her memory from this memorandum and testified in detail about how Joseph Kendrick had directed his property to be disposed of in his will. Her testimony in this regard was in all essential respects similar to the disposition of his property as shown by the carbon copy of the will. She testified that the memorandum she had written down at the time from his dictation showed that he wanted to give a house and lot in the city of Little Rock to Henry Condell. She gave the number of the lot. She testified further that Mrs. Bradway was t<5 have the interest on $2,000 in money and that the principal at her death was to go to the establishment of an orphan’s hospital; that all the balance of his property which was estimated at about $40,000 was to be used in erecting a hospital for orphan children. She stated further that the will was prepared by Mr. Cockrill from the memo-random which she had furnished him. The witnesses to the will, also, remembered that he had devised a house and lot to Henry Condell and the interest on a certain sum of money to' Mrs. Bradway. They did not remember the amount. They stated that the residue of the estate was to be given to C. H. Rosseau, E. G. Thompson and W. W. Wilson in trust to erect a hospital for orphan children. All the above named witnesses except the stenographer, who was not present at the time, testified that the will was read over line by line to Joseph Kendrick and carefully explained to him before he signed it. He expressed himself as greatly pleased and left the office with the will in his hand. There is no testimony tending to show that he ever executed but one will.
It is shown by the testimony of disinterested witnesses that he executed this will in the office of Ashiey Cockrill. These witnesses also clearly established the provisions of the will. Therefore we are of the opinion that the execution of the will and its contents have been clearly and distinctly proved with the formality and solemnity prescribed by the statute.
Ashley Cockrill, the attorney who prepared the will under the instructions given him by the testator, was one of the witnesses to prove the execution of the will and its provisions. It is true subdivision 5 of section 3095 of Kirby’s Digest provides that an attorney shall be incompetent to testify concerning any communication made to him by his client in that relation or his advice thereon, without the client’s consent. But the privilege in the statute is simply declaratory of that existing at common law. It is strictly personal and may be waived by the client. The waiver may be express or implied. The attorney was employed to draft the will in statutory form and the object of it was to enable the testator to dispose of his property according to his own wishes. While the testator lives, the attorney drawing his will would not be allowed, without the consent of the testator, to testify to communications made to him concerning it, or to the contents of the will itself, but after his death, and when the will is presented for probate the reason for the rule ceases and public policy requires that the attorney should be allowed to testify in order that the will of the testator may be carried out according to his intentions. A different result would be inconsistent with the objects of the will and in direct conflict with the reasons upon which the privilege is founded. Glover v. Patten, 165 U. S. 394; In re Young’s Estate (Utah), 14 Ann. Cas. 596 and case note; Doherty v. O’Callaghan, 157 Mass. 90, 31 N. E. 726, and In re Layman’s Will (Minn.), 42 N. W. 286.
In discussing the question of privileges as applicable to an attorney in case of will contests, Professor Wig-more said: “But for wills a special consideration comes into play. Here it can hardly be doubted that the execution and especially the contents are impliedly desired by the client to be kept secret during his lifetime, and are accordingly a part of his confidential communication. It must be assumed that during a, part of that period the attorney ought not to be called upon to disclose even the fact of a will’s execution, much less the tenor. But, on the other hand, this confidence is intended to be temporary only. That there may be such a qualification to the privilege is plain.” 4 Wigmore on Evidence, section 2314.
At the conclusion of the section the learned author said: “As to the tenor and execution of the.will, it seems hardly open to dispute that they are the very facts which, the testator expected and intended to be disclosed after his death; and, with this general intention covering the whole transaction, it is impossible to select a circumstance here or there (such as the absence of one witness in another room) and argue that the testator would have wanted it kept secret if he had known that it would tend to defeat his intended act. The confidence is not apportionable by a reference to what the testator might have intended had he known or reflected on certain facts which now bear against the will.”
Joseph Kendrick kept the. will in his possession and after his death a diligent search was made for it and it could not be found. The presumption- is that he destroyed it with the intention to revoke it, but the presumption may be rebutted. 40 Cyc., p. 1281; Schouler on Wills, Executors and Administrators (5 ed.)-, vol. 1, sec. 402; and Underhill on Wills, vol. 1, sec. 272.
According to the uniform current of decisions the fact that a will which is proved to- have been properly executed by the testator, and which was last seen in his custody cannot be found at his death, raises a presumption that it was destroyed by him with the intention of revoking it. It is equally well settled that the presumption may be rebutted by evidence that the testator has not revoked his will. This brings us to the question of whether or not the declarations of the testator may be received for that purpose. Although there is some conflict among the authorities upon this question, the great weight of authority is that, if the execution of a will is properly shown, and its provisions established, and the will appears to have been last seen in the possession of the testator, his declarations tending to show that he has or has not destroyed it, or which'show that it was not in existence at his death, are received to strengthen or to rebut the presumption of revocation which arises from its disappearance. Underhill on Wills, vol. 1, see. 277; Schouler on Wills, Executors and Administrators (5 ed.), vol. 1, sec. 403; 40 Cyc., p. 1317; Jones Commentaries op Evidence, vol. 3, par. 484; Weeks v. McBeth, 14 Ala. 474; Spencer’s Appeal, 77 Conn. 638, 60 Atl. 289; Patterson v. Hickey, 32 Ga. 156; McDonald v. McDonald, 142 Ind. 55, 41 N. E. 336; Steel v. Price (Ky.), 5 B. Mon. 58; Collaghan v. Burns, 57 Me. 447; Boyle v. Boyle, 158 Ill. 228; Pickens v. Davis, 134 Mass. 252, 45 Am. Rep. 322; Ewing v. McIntyre, 141 Mich. 506; Tucker v. Whitehead, 59 Miss. 594; Williams v. Miles, 68 Neb. 463; Hildreth v. Schillenzer, 10 N. J. Eq. 196; Behrens v. Behrens, 47 Ohio St. 323, 21 Am. St. Rep. 820; Gardner v. Gardner, 177 Pa. St. 218, 35 Atl. 558; Banskett v. Keitt, 22 S. C. 187; Allen v. Jeter (Tenn.), 6 Lea, 682; Tynan v. Paschal, 27 Tex. 286, 84 Am. Dec. 619; Yerby v. Yerby (Va.), 3 Call. 334, and In re Valentine, 93 Wis. 45.
In Reel v. Reel, 8 N. C. 248, at p. 268, Judge Henderson sums up the conclusion of the court in the following strong language: “To our minds, to reject the declarations of the only persons having a vested interest and who was interested to declare the truth, whose fiat gave existence to the will, and whose fiat could destroy, and in doing the one or the other could interfere with the rights of no one, involves almost an absurdity; and (with due deference to the opinions of those who have decided to the contrary, we say it) they are received, not upon the ground of their being a part of the res gestae, for whether they accompany an act or not, whether made long before or long after making the will, is entirely immaterial as to their competency; those circumstances only go to their weight or credit with the tribunal which is to try the fact, and the same tribunal is also to decide whether the declarations contain the truth or are deceptive, in order to delude expectants and procure peace.”
Joseph Kendrick executed the will on the 16th day of May, 1918, and died July 26, 1918, in the city of Little Rock where he had lived for many years. He carried the will home with him and placed it in a drawer for safe keeping. He expressed great satisfaction that he had executed the will both at the office where it was executed and just after he left there. In a short time thereafter he told C. H. Rosseau, a friend of 35 years standing, about the execution of the will and the likelihood of its displeasing his relatives. He stated to his friend that he thought he had a right to dispose of his property as he wished, notwithstanding his action would be disapproved by his relatives. He told Mr. Rosseau in the presence of his wife where he kept his will and that the first time Rosseau was at his house he would show him the place where he kept it, so if anything happened to him, Rosseau would know where to find the will. Kendrick was old and was fast losing his health at this time.
Mrs. Rosseau corroborated the testimony of her husband as to the satisfaction Mr. Kendrick expressed at having made a will. At first she also corroborated her husband to the effect that she told Mrs. Bradway where Mr. Kendrick said he kept the will. After Mrs. Brad-way had denied that she had any knowledge where Mr. Kendrick kept the will and denied that Mrs. Rosseau had told her where he said he kept it, Mrs. Rosseau testified that she could not remember whether or not she had told Mrs. Bradway where Mr. Kendrick said he kept the will, but she did tell Mrs. Bradway that he had executed a will. Mr. Rosseau said that his wife did tell Mrs. Brad-way over the telephone where the will was kept and that he told her after the death of Mr. Kendrick where he had kept it. So it may be taken as established by disinterested witnesses that Mrs. Bradway knew before Mr. Kendrick died that he had made a will and by one of them that he told her where it was kept after Mr. Kendrick’s death. Mrs. Bradway was in and out of the house every day and had the opportunity to have searched for and found it before Mr. Kendrick’s death even if Mrs. Rosseau did not tell her where it was kept.
Of course opportunity to destroy the will is not sufficient testimony to establish that fact, but it is a circumstance to be considered in determining whether the will was in existence at the time of the death of the testator or had been destroyed during his lifetime. Mr. Kendrick only lived four days after he was carried to the hospital. Mr. Rosseau and another old friend named Rob inson visited him while there. Mr. Bosseau asked Mr. Kendrick if he had left anything undone which a friend could do for him and he remarked that he had left everything all right.
Miss Fannie Mitchell, who was consulted by Mr. Kendrick about making the will, visited him while he was in the hospital. Mr. Kendrick realized that he was a very sick man and seemed as if he wanted to talk to her about something but refrained because his nurse was present-. Miss Fannie finally leaned over him and said: “Mr. Kendrick have you done something that you wish me to undo?” She was referring to the part she had taken in the preparation and execution of his will. Mr. Kendrick replied: “No, Miss Fannie, not that; I am perfectly satisfied with that. ’ ’ About that time his physician came in and no further conversation was had between the parties.
It is contended by counsel for appellants that he was referring to the fact that he had destroyed the will with the intention of revoking it. We think this is a strained construction to put on his language, because Miss Mitchell had not seen him since the execution of the will and he must have known that she referred to the part she had taken in that. This was the only transaction she had ever had with Mr. Kendrick. She was not interested in the provisions of the will in any way and evidently intended to help him undo what she had helped him to do if he had so wished it. He told her that he was perfectly satisfied with his action, evidently referring to the only transaction they had ever had—her assistance in the preparation of his will.
Henry Condell also testified that Mr. Kendrick, after he became sick and within five days of his death, told him, about the execution of the will and expressed himself as satisfied at having executed it. There was no contradiction of any of these witnesses. None of them except Henry Condell had any interest whatever in the result of the suit. There is no circumstance tending to affect the veracity of any of them. There is no evidence tending to show dissatisfaction on the part of'Mr. Kendrick that he had executed the will or any wish or attempt to change it. On the contrary he made declarations of satisfaction at having executed it in the hospital when he knew he was facing death. The will was made within two months of the testator’s death and after deliberation on his part. It was.proved by several disinterested witnesses, who had known Joseph Kendrick well for many years, that he was a man of great force of character ; that he was slow to make up his mind; but that, once having determined upon a course of action, he never changed his mind. After its execution he made repeated declarations of his satisfaction at its execution and the provisions of- it up to within a few days of his death. Thus he recognized its continued existence. There was no excuse whatever for him to have spoken falsely in this respect. The witness who could have benefited directly by him making a will was his wife’s nephew who was absent in the army. None of'the other persons who assisted him in the preparation and execution of the will had any interest in the matter except to carry out his wishes.
The chancellor after weighing the evidence was of the opinion that the facts justified him in establishing the instrument as a lost will to the end that it might be admitted to probate as provided by the statute. It was not indispensable that he should determine what became of the will. It was enough that he should- find that it was not revoked or canceled by the. testator.
It is our duty to uphold the findings made by the chancellor unless the court is of the opinion that they are not sustained by a preponderance of the evidence. This we cannot do. It is not a question of whether the testator should have recognized that his blood relatives were objects of his bounty and should have given his property to them. It is not claimed, that he was not competent to make a will and he had- the right to dispose of his property as he wished. It does not make any difference that we might think that the testator should have disposed of Ms property to Ms relatives as being in accord with the principles of natural justice and affection. No court bas a right to dispose of a man’s property contrary to his intentions or to change or revoke a will which he has deliberately made. After reading and considering all of the evidence, we are of the opinion that it cannot be said that the findings of the chancellor are against the preponderance of the evidence, and the decree must be affirmed.
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HUMPHREYS, J.
Appellee instituted suit against appellant in the Nevada Circuit Court to recover damages to a car load of cattle shipped by him from Prescott, Arkansas, to his consignee, Woodson-Fennewald Commission Company, at National Stock Yards, Illinois, to be sold on the market. It was alleged in the complaint that the shipment was made under a contract binding appellant to safely carry and deliver the cattle, to the consignee, bnt, upon reaching their destination, it was discovered that fifteen head were dead, three crippled, and a number bruised, to the damage of appellee in the sum of $880; that, by the negligent delay of appellant in transportation, appellee was damaged in the sum of $131 on account of extra feeding and shrinkage in weight of cattle; that appellee gave due notice of his claim for damages to appellant.
Appellant filed answer, denying all material allegations in the complaint, and invoked, by way of further defense, failure of appellee to notify it, in writing, of the loss or injury in time to examine the cattle before being removed from the unloading pens or permitted to mingle with other cattle, or to give notice of an intention to file a claim for loss or damage within ninety-one days, or to file a verified, itemized claim within 125 days, according to the requirement of section 7 of the contract of shipment.
The cause was submitted to a jury, upon the pleadings, evidence and instructions of the court, and a verdict returned and judgment rendered for $750, from which judgment an appeal has been duly prosecuted to this court.
The undisputed evidence disclosed that forty-nine head of cattle were shipped at 12:30 p. m., on November 20, 1917, over appellant’s railroad, by appellee, from Prescott to his consignee at National Stock Yards, Illinois, under contract with appellant to safely carry and deliver them; that they reached their destination at 1:10 p. m., on November 23, 1917, too late for the market, and consequently held over until the 24th of November for sale; that on the 24th, the market was lower than on either the 22d or 23d; that when they arrived at National Stock Yards, fifteen of them were dead, three crippled, six bruised, and the others depreciated in value by reason of shrinkage, etc.; that the following claim for damages was presented to the company on the 27th day of November, 1917, and bears the rubber stamp of the Missouri Pacific freight claim department of date November 28, 1917, towit:
“National Stock Yards, 111., Nov. 27, 1917. “Mo. Pac. R. R-. Co., Dr.
“To Woodson-Fennewald L. S. Com. Co., a/c A. Martindale, Prescott, Ark., to loss and damage on a car of cattle sold November 24.
To 12 average cattle 7,560 lbs. at av. pr. $6.80.........$514.08
Less amount of deads sold for___________________________________________ 46.15
$467.93
To 3 dead yearlings, 900 lbs. av. pr. 6c......$ 54.00
Less amount deads brought........................... 7.00 $ 47.00
To one crip. ylg. 300 lbs. at 6c......................... 18.00
To 2 crip, steers, 1,260 lbs. at $6.80............ 85.68
$103.68
Less amount crips, brought................................ 21.00 82.68
To $1.00 a cwt. depreciation on 14,000
lbs. cattle.......................................>.......................... 140.00
Total............................................................................... $737.61”
That the natural shrinkage of cattle in transit was 4 per cent, of their weight the first day, 3 per cent, the second day and 2 per cent, each day thereafter; that the cattle were in good condition when loaded at Prescott, and that appellee accompanied them as far as North Little Rock, where they were unloaded and fed, at which time he returned to his home; that the cattle were properly loaded at North Little Rock and again unloaded and reloaded at Hoxie in order to get up about ten head that were then down and being trampled on by the other cattle in the car; that three bulls were contained in the shipment and that it was customary to tie them, which custom was complied with at Prescott, North Little Rock and Hoxie; that afterwards it was discovered that the bulls were untied and remained untied until the car reached its destination. The evidence on the part of appellee tended to show that the average schedule time for the transportation of cattle from Prescott to the stock yards in question was about forty-two hours, and that there was an unreasonable delay in the transportation of this particular car. The evidence on the part of appellant tended to show that there was no delay in the transportation of said shipment.
Over the objection and exception of appellant, the court instructed the jury, in substance, that if they found that the transportation of the cattle was unreasonably delayed and that the cattle arrived at their destination in a damaged condition, they should find for the appellee, unless they found that the delay was not due to appellant’s negligence. Appellant insists that the instruction was erroneous and prejudicial for two reasons; first, because it did not instruct that, before a recovery could be had, the jury must find from a preponderance of the evidence that the delay caused the damage to the cattle; second, because it failed to tell the jury that before a recovery could be had it must appear from the weight of the evidence that the damage resulted from a negligent delay in transportation on the part of appellant. It is insisted by appellant that, under the law, appellee must have shown a negligent delay by the weight of the evidence and that the burden was upon him to do so; else, no recovery could be had. Appellant is in error in this contention. To recover damage to cattle in transit, it is the shipper’s only burden to establish by a preponderance of the evidence an injury to the cattle and the amount thereof. St. L., I. M. & S. R. Co. v. Pape, 100 Ark. 269; K. C. Sou. Ry. Co. v. Morrison, 103 Ark. 522; K. C. Sou. Ry. Co. v. Mabry, 112 Ark. 110. Appellant has cited the case of St. L. S. W. Ry. Co. v. Burnett, not reported in the Arkansas Reports, but reported in 174 S. W. 1165, in support of its contention that a shipper must prove damage to the cattle shipped, resulting from negligent delay by the carrier, before a recovery can be had. The rule announced in that case had application to damage resulting after delivery, and not in transit, and is therefore not ah authority in the case at bar.
But, aside from the question of whether the instruction in question was erroneous, appellant carrier was responsible under the undisputed facts in the case by virtue of its contract to safely carry and deliver, and by virtue of its responsibility fixed by law as an insurer of the cattle against all loss of every kind, except that occasioned by ‘ ‘ the act of God, of the public enemy, of public authority, of the shipper, or from the inherent nature of the” cattle. St. L., I. M. & S. R. Co. v. Pape, 100 Ark. 269. We think the instruction in question requested by appellee, basing his right to recover on unreasonable delay in the transportation by appellant, was more favorable to appellant than the facts warranted, and therefore not prejudicial to its rights.
Appellant suggests that appellee is not entitled to have the judgment affirmed on the ground that appellant was an insurer of the safe carriage and delivery of the cattle under the contract and the law, because, had ap- ■ pellee asked for a verdict on that theory of the case, it might have introduced evidence to bring it within one of the exceptions under the contract or law. The contractual and common-law liability of appellant was pleaded, and appellant made all the proof necessary to sustain his case on that theory and appellant was not prevented from introducing evidence to exempt itself from liability. It can not now be heard to complain when the undisputed facts in the record fix its liability under the contract and law.
Again, appellant insists that the verdict is unsupported by testimony in that the record fails to show that there was an unreasonable delay in the transportation of the cattle. It is suggested that, on account of the condition of the cattle, it was necessary for them to be unloaded at Hoxie, and, for that reason, it can not be said that the time consumed in transporting the cattle was ■unreasonable. The fact that the cattle were unloaded at Hoxie is perhaps a circumstance tending to show the necessity of some delay, but it does not conclusively show that there was no unreasonable delay in the transporta tion of the cattle. There is evidence tending to show that the cattle should have been transported in about forty-two hours, and that the shipment was in transit about seventy-two hours. Both A1 "Weaver and A. M: Denman, men experienced in shipping cattle, testified that, under ordinary circumstances, the cattle should have been transported in about forty-two hours. We think the evidence was sufficient to warrant the jury in finding that the time consumed in the transportation of the cattle was unreasonable.
Again, it is contended by appellant that the provision in its contract requiring appellee to give written notice of the loss or injury in time to have examined the cattle, before they were removed from the unloading pens, was binding upon appellee as to damages for injuries and shrinkage in weight, and that his failure to give such notice must work a reversal of the judgment. Appellant has cited Arkansas cases upholding such provisions in contracts as reasonable and that shippers of stock must comply with them as a prerequisite to recovering damages for loss occasioned by injuries and shrinkage in weight of the cattle while in transit. These cases were predicated upon the law as it stood prior to the Cummins amendment of August 9,1916, to the Interstate Commerce Act, which is as follows:
“That it shall be unlawful for any such common carrier to provide by rule, contract, regulation or otherwise a shorter period for giving notice of claims than ninety days and for the filing of claims for a shorter period than four months, and for the institution of suits than two years; provided, however, that if the loss, damage or injury complained of was due to delay or damage while being loaded or unloaded, or damaged in transit by carelessness or negligence, then no notice of claim nor filing of claim shall be required as a condition precedent to recovery.”
Our interpretation of this amendment is that it prevents the carriers on interstate shipments from contracting with shippers for notice of claims on account of loss, damage or injury to the subject-matter of the shipment in a shorter time than ninety days, or for filing claims in a shorter period than four months, or for the institution of suits on claims for- a shorter period than two years. The language is plain and unambiguous. The object and purpose of the act was to protect shippers against the short time for giving notices of claims on account of loss, damage or injury to the subject of shipment imposed by carriers on them in bills of lading or contracts of shipment. Appellant, however, seeks to uphold the contract clause in the instant case because it applies to a notice regarding loss or injury and not to a notice of claim. In other words, it is asserted that the Cummins amendment only prevents carriers from contracting for a notice of the claim in a shorter period than ninety days, and does not affect their right to contract for a notice regarding loss or injury. The claim must necessarily be founded upon the loss or injury and the word “claim” used in the amendment is broad enough to cover loss or injury. Any other construction would deprive the shipper of the protection intended by the act. We can see no good reason for preventing a carrier from contracting for a notice of claim in a shorter period than ninety days and permitting it to contract for notice of loss or injury when the shipment reaches its destination. We do not think the statute intended such a distinction.
Lastly, appellant contends that the contract provides that notice of the claim shall be filed in ninety-one days, and the judgment should be reversed because appellee did not give this notice. The undisputed evidence shows that the notice was given and received by the Missouri Pacific freight claim department on November 28, 1917, within four days after the cattle reached their destination.
No error appearing in the record, the -judgment is affirmed.
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HART, J.
C. W. Pool, a citizen and property owner of a proposed road district, brought this suit in equity against the commissioners of the district to enjoin them from proceeding to construct the road under the act on the ground that the act was void for uncertainty. The commissioners filed a demurrer to the complaint which was sustained by the court. The plaintiff elected to stand upon his complaint, and it was dismissed for want of equity. The case is here on appeal.
The district in question was created by Special Act No. 281, approved March 17,1919, for the purpose of constructing a road from a point in the town of Danville to a point in the town of Walnut Tree in Yell County, Arkansas.
The plaintiff alleges in his complaint that the act is unconstitutional and void for the reason that its provisions are too uncertain to be capable of enforcement. It is claimed that the uncertainty is that section 11 of the act undertakes to provide for a revision of the assessment in language which is so uncertain that the intention of the Legislature can not be carried out. Section 11 reads as follows: “It shall be provided by a resolution of the board of commissioners that the assessment of benefits shall be paid in successive installments, so that no local assessment of benefits shall be paid in successive installments, so that no local assessment shall in any one year exceed ten per centum of the assessed benefits accruing to said real property.
“The commissioners may require the assessors to revise their assessment not oftener than once per annum, increasing or diminishing the assessment against particular pieces of property as justice requires, provided that the total amount of benefits shall not be diminished if the district revised assessment shall be given as in cases of the original assessment, and it shall be equalized in like manner.”
The first paragraph of the section repeats certain words, but it is not claimed that the repetition of these words renders the act void for uncertainty. It is manifest from reading the paragraph that the repetition of the words does not obscure its meaning. Any one read ing the act would treat them as surplusage and could readily ascertain the legislative intent from the language used.
It is claimed by counsel for the plaintiffs that the uncertainty arises from the language used in the last paragraph of the section. The first part of this paragraph reads as follows: “The commissioners may require the assessors to revise their assessment not oftener than once per annum, increasing or diminishing the assessment against particular pieces of property as justice requires, provided that the total amount of benefits shall not be diminished.”
It is manifest that this much of the concluding part of the section is definite and certain. There can be no mistake in the meaning intended by the Legislature. Section 17 of the Declaration of Rights in our Constitution provides that no law impairing the obligation of contracts shall ever be passed. The manifest intention of the Legislature in putting in the proviso “that the total amount of benefits shall not be diminished” was for the purpose of not conflicting with the clause of the Constitution just referred to. Of course, the property can only be assessed to pay for the whole cost of the improvement, but, the assessment having once been made and a contract for the construction of the improvement having been made on the faith of it, the commissioners could never reduce the total amount of benefits assessed so as to impair the obligation'of the contract. This is perfectly manifest from reading the whole act. It contains twenty-five sections, and no useful purpose could be served by setting them, out in connection with what we have already said. All the concluding part of the section after the words “shall not be diminished” have no meaning at all. The fact, however, that they are words jumbled together without any certain meaning does not in any wise impair the meaning of the words that go before them. There are evidently words left out of the concluding part of the section, but it is not within the province of the court to insert these words. The words in the concluding part of the section, which as joined together have no definite meaning must be treated as surplusage.
It follows that the act is not void for uncertainty, and the decree will be affirmed.
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HUMPHREYS, J.
Appellee instituted suit against appellant in the St. Francis Circuit Court to recover $4,174, alleging that appellant had unlawfully converted certain property of that value belonging to appellee.
Appellant filed answer, denying that the property described in the complaint belonged to appellee; that he wrongfully took possession thereof; or that it was of the value alleged.
The cause was submitted to a jury on the pleadings, evidence and instructions of the court, upon which a verdict was returned and judgment rendered against appellant for $800. From the judgment an appeal has been duly prosecuted to this court.
The substance of the evidence is as follows: On the 24th day of January, 1910, the Heth Cooperage Company, a partnership consisting of J. W. Boyer, S. I. Thompson and M. E. "Williams, leased a tract of land in Heth, Arkansas, from the Heth Improvement Company, for the purpose of establishing a cooperage and lumber factory. The lease was for 15 years, signed “Heth Improvement Company, by C. C. Bird, Secretary,”on the one part, and “Heth Cooperage Company, by S. I. Thompson, J. W. Boyer and M. E. Williams,” on the other part, and contained a provision that the Heth Cooperage Company might remove all buildings and machinery placed thereon at any time on or before the expiration thereof. Appellee testified that the Heth Improvement Company was Bird and Morrison; that they executed the lease to them, and, according to his understanding at the time, were the owners of the land. The lease was introduced in evidence over the objection and exception of "appellant. In the year 1910, C. A. Shue constructed a heading plant on the land for the Heth Cooperage Company and placed therein an engine, boiler and all necessary machinery and connections, and a dry kiln about 100 feet from the main shed. The engine was set on a concrete foundation about four feet in the earth, and was securely bolted thereto with bolts six feet long. The boiler was encased in a brick wall resting on a concrete foundation about 13 inches below the surface. The Heth Cooperage Company operated the heading plant until January 1, 1913. S. I. Thompson, in charge of operation, died, and the mill was not thereafter operated. It remained there intact until the spring of 1915, when it burned. During the period of operation, J. W. Boyer visited the plant about once a year. After it ceased operation, he visited the town of Heth in January, 1917, and inspected the property. He returned again in January, 1918, at which time he ascertained that the property had been sold, and appropriated by appellant. Appellee was the surviving partner and entitled to the assets of the Heth Cooperage Company. Appellant purchased the real estate in 1916, from Abston, Wynne and Jackson. Appellant testified that at the time of his purchase he inquired of his grantors concerning the engine, boiler and other heading machinery which had remained in place after the fire, and was told by them that it was a part of the real estate; that he bought the machinery along with the land without notice of appellee’s claim to the machinery. The following stipulation appears in the record: “By agreement of counsel, it was admitted that the defendant, Salmon, purchased the land from Abston, Wynne and Jackson; and Abston, Wynne and Jackson purchased it from........■..........Hairgrove, and........._....... Hairgrove from the Heth Plantation Company, and that Salmon was the owner of the land.” Appellant sold a part of the machinery, and converted the other part to his own use. Some of the witnesses valued it at more than the amount recovered, and others at less.
The cause was sent to the jury upon the assumption that the undisputed evidence showed that appellee was the owner of the engine, boiler and other machinery of the heading plant sold and converted by appellant. The court instructed the jury that the sole issue to be deter- rained by them was the market value of the property at the time it was converted by appellant. This was error because, if it be conceded that the execution of the lease, which was not acknowledged and recorded, was proved and admissible as evidence, still the undisputed evidence does not show that the lessor, Heth Improvement Company, was the owner of the land at the time the lease was executed, or thereafter. Appellee testified that he understood the Heth Improvement Company was the owner. This, together with the construction of the plant and the occupancy under the lease for several years, was the only evidence tending to show ownership of the land in the Heth Improvement Company. It was agreed that the appellant was the owner of the land through mesne conveyances from the Heth Plantation Company, a corporation. This agreement tends to prove that the Heth Improvement Company was never the owner of the land. The ownership of the land on the date of the lease was a disputed question of faet for the determination of the jury, under the pleadings and evidence.
It was also error to instruct the jury that the undisputed evidence showed that appellee was the owner of the engine, boiler and other machinery, because, even if it be conceded that the Heth Improvement Company was the owner of the land at the time the lease was made, and that the appellee, as the surviving partner of Heth Cooperage Company, had the right, under the lease, to remove all machinery attached to the soil, on or before the expiration of the lease, there was evidence in the record tending to show the abandonment of the reserved right. A part of the consideration of the lease was the operation of the plant. Appellee ceased to operate the plant on the first day of January, 1913, after the death of his partner. The plant was destroyed by fire in the spring of 1915, and the engine, boiler and other machinery left in an exposed condition on the ground, without anyone in charge thereof. Appellee inspected the fixtures in January, 1917, to ascertain whether they were all there. In this state of case, it was a question of disputed fact whether or not appellee had terminated the lease and his right to remove the fixtures, as surviving partner, by abandonment.
It is also exceedingly doubtful whether the execution of the lease was sufficiently proved to admit it as evidence. If the Heth Improvement Company was a partnership, the lease being signed by one member of the firm, even though signed as secretary, would be sufficient proof of the execution of the instrument to admit it as evidence. The signature on its face, however, would indicate that the Heth Improvement Company was a corporation. If so, it was necessary to show that Bird, as secretary, had authority from the corporation to execute the lease.
It is also insisted by appellant that the court erred in refusing to instruct the jury, in effect, that, if they found-the engine and boiler were securely fastened into the soil and that appellant had purchased the land for a valuable consideration, without notice of appellee’s claim under his lease, they should return a verdict for appellant. This instruction excludes the idea that it was the duty of appellant, in order to bring himself within the doctrine of innocent purchaser, to make inquiry concerning the ownership of fixtures of this character, even though substantially fastened into the soil. It is true appellant testified that he inquired from his vendor concerning the ownership of the fixtures and was informed that they were. a part of the real estate. He was an interested party, and facts established by his testimony alone cannot be said to be established by the undisputed evidence. Skillern v. Baker, 82 Ark. 86; Briggs v. Collins, 113 Ark. 190.
The instruction also makes the sole test of whether fixtures of this character retain their nature as chattels or become irremovable fixtures depend on the manner in which they are-affixed to the soil. This court has laid down other tests, to-wit: “Appropriation or adaptation to the use or purpose of that part of thé realty with wíiich it (the fixtures) is connected.”
“The intention of the party making the annexation to make the article a permanent accession to the freehold.” Choate v. Kimball, 56 Ark. 55; Bemis v. First National Bank, 63 Ark. 625; Ozark v. Adams, 73 Ark. 227.
According to Ewell on Fixtures, the tendency of the times is to attach the most importance to the test of intention, the first two tests being.in the nature of evidence by which the intention may be ascertained. For the reasons suggested, the court properly excluded the requested instruction.
As the case must be reversed for the errors indicated, it is unnecessary to discuss the insistence of appellant that the verdict was not supported by any substantial evidence.
The judgment is reversed, and the cause remanded for a new trial.
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SMITH, J.
Appellee brought suit in the Monroe Chancery Court against appellant and the sheriff and collector of that county, and for cause of action alleged the following facts: That he was the owner of a certain forty-acre tract of land situated in that county, having obtained a deed therefor on February'27, 1890, from the State Land Commissioner, and that under this deed he had paid the taxes on said land for the years 1912, 1913, 1914, 1915, 1916 and 1917. That on January 6, 1919, the same being the first Monday in January, he applied to the collector to pay the State and county taxes then due, but the tax books were not at the time in the office of said collector, and that on Tuesday, January 7, 1919, he tendered to the collector the full amount of all taxes due on said land, but the tender was refused because the taxes upon said land had been paid by the appellant on the first day of January, 1919, and the taxes assessed against said lands were marked paid on the tax books. That said payment was in fraud of appellee’s right to pay taxes upon said land, and was done for the purpose of defeating appellee’s title to said land, and was made prior to the date fixed by law for the payment of taxes, and was a fraud upon the rights of appellee.
An answer was filed by appellant, in which he alleged his ownership of the land under a deed to him from the county clerk of that county based upon a sale for the taxes due thereon for the year 1901. It was further alleged in the answer that the deed to appellee from the Land Commissioner was void because it was based upon a sale for taxes which was void for a number of reasons there stated, and that appellee was seeking to perfect a void tax title by making seven consecutive payments of taxes.
A demurrer to this answer was sustained, whereupon, appellant declining to plead further, a decree was entered canceling the tax receipt issued on January 1, 1919, to appellant and directing the collector to accept the tender of the taxes made by appellee and to issue a receipt therefor, and from that decree this appeal has been prosecuted.
In support of the decree of the court below, appellee relies upon Act No. 115 of the Acts of 1911, page 361, which provides that “All taxes levied on real estate and personal property by the several county courts of the State, when assembled for the purpose of levying taxes, shall be deemed to be due and payable at any time from the first Monday in January to and including the 10th day of April in each year. * * * ” And it is argued that inasmuch as appellant paid these taxes before they were legally due and payable the payment should be treated as a nullity.
But appellee is in no position to raise this question. Under the allegations of the answer, the truth of which is confessed by the demurrer, appellant is the owner of the land, and, as such, the only person who had the legal right to pay the taxes upon issue joined on that question. While appellee is not a mere volunteer, he has no such interest in or title to the land as gives him a preferential right over the true owner to pay the taxes. This seventh payment which he seeks to make may have perfected his title, and his desire to pay was evidently prompted by a consideration of that fact. But this seventh payment had not been made, and the benefit of section 5057 of Kirby’s Digest did not inure because of the six payments which had been made, .as that statute inures to the benefit of him only who has paid taxes for seven consecutive years under color of title. The tax books had been marked paid, and no taxes for 1918 were charged against the land when the suit was brought. Under these circumstances it was not proper to adjudge that appellee had the right, as against appellant, to pay the taxes, and the court should not have lent its aid to appellee to make a payment of taxes which would have given him the benefit of the provisions of section 5057, which he would not otherwise have had.
The decree of the court below is therefore reversed, and the cause remanded, with directions to dismiss the complaint.
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SMITH, J.
Appellant is a domestic corporation and has a considerable portion of its assets invested in lands in the State of Louisiana upon which it pays taxes according to the laws of that State, and it is out of that fact that this litigation arises. In the assessment of the value of its capital stock the assessor refused to take that fact into account in determining the intangible value of this capital stock. In other words in determining the intangible value of the capital stock the assessor refused to deduct the value of the Louisiana lands in which a por tion of the company’s assets had been invested. Complaint against this action was made in the county court where the relief prayed was denied, and relief was again denied on appeal to the circuit court and this appeal has been prosecuted from that judgment.
The question presented is not a new one. On the contrary, the identical question received the most careful consideration by us in the case of State ex rel. Atty. General v. Bodcaw Lumber Co., 128 Ark. 505, and in the decision of that question it was there said: ‘ ‘ The valuation of the property outside of the State must be omitted when the property of the corporation itself is sought to be taxed, but when the effort is to assess the values of the shares of stock it should not be deducted, for those shares of stock have a separate valuation existing here within the jurisdiction of the State and upon which the State has a right to take its toll of taxation.”
It is asserted, however, that this case has been overturned by the enactment of Act No. 262 of the Acts of 1917, page 1355, entitled “An act to provide for the assessment for the taxation of companies, associations and corporations engaged in all kinds of insurance, security, guaranty and indemnity business, and assessing for taxation the intangible property of all corporations.”
The argument to that effect is based upon the fact that industrial corporations like appellant are required by paragraph 6 of section 2 of this act to make return of “the assessed value of all real estate owned by the corporation,” it being asserted that the purpose of this requirement was to ascertain the value of the intangible property of the corporation and to allow the corporation credit for its lands which were separately assessed.
In answer to this argument it is pointed out that the opinion in the Bodcaw case was handed down by the court on March 12, 1917, and Act No. 262 was approved by the Governor five days later. But the act had been passed by the House on February 5th and by the Senate on February 28th and was delivered to the Governor for his approval two weeks prior to the rendition of the opinion in that ease.
But a second answer to this argument is made, which we regard as more conclusive, and that is that the section of Kirby’s Digest (section 6936) under which the property of the Bodcaw Lumber Company had been assessed required that corporation to make a return of “the true valúe of all tangible property belonging to such company or corporation.” The term “tangible property,” found in the old statute, is certainly as comprehensive as the term “all real estate,” found in Act No. 262, and substantially the same argument was made there as the one made now; so that we conclude there is nothing in this Act No. 262 to impair the authority of the Bodcaw Lumber Company case as a guide to the correct method of assessing the capital stock of domestic corporations, even though portions of it may be invested in lands lying in another State which are there assessed and paid on as such. In other words, if a corporation cannot be allowed to deduct from its assessment its tangible property in another State it cannot be allowed to deduct the value of its real estate situated in another State. State ex rel. Atty. Gen. v. Ft. Smith Lumber Co., 131 Ark. 40.
The court below, therefore, properly refused to allow the appellant to deduct from its assessment the value of its lands in Louisiana and that judgment is, therefore, affirmed.
|
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