text:
    Morgan v. State.
    Opinion delivered June 5, 1922.
    1. Criminal law — acts and declarations op accomplice. — Where . accused, together with another, was charged with burglary and grand larceny, it was error to admit evidence that the accomplice, after the offense was committed, stated that he had found stolen articles in his overcoat pocket which he loaned to accused before the offense and which accused returned after the offense.

      2. Witnesses — cross-examination of accused. — On cross-examination of the accused in a burglary and larceny case, it was proper to permit the State to ask him whether he had committed larceny on a prior occasion.
    3. Witnesses — cross-examination of accused — impeachment.—In a prosecution for burglary and grand larceny, in which the accused on cross-examination was asked whether he had committed larceny on a prior occasion, his answer that he had done so was binding on the State, and he could not be impeached by showing that he had done so.
    Appeal from Newton Circuit Court; J. M. Shinn, Judge;
    reversed.

      Ben E. McFerrin, for appellant.

      J. S. Utley. Attorney General, Elbert Godwin and Wm. T. Hammock, assistants for appellee.
   Humphreys, J.

Appellant was indicted jointly with Tom Carter, at the January term, 1922, of the Newton Circuit Court, for the crime of burglary and grand larceny. He was granted a severance and tried separately, which resulted in his conviction for grand larceny. Prom the judgment of conviction an appeal has been duly prosecuted to this court.

The first count of the indictment charges Tom Carter and appellant with burglarizing the store of S. M. Stacey & Son, at Jasper, on the night of the 10th of January, 1922. The second count of the indictment charged them with grand larceny of certain moneys and goods, particularly described, in said store on the same night, belonging to S. M. Stacey & Son. The next morning after the store had been entered and the larceny committed Tom Carter’s house was searched and a sack of pennies which had been stolen were found in the bottom of his trunk, and a part of the goods, including shaving brushes and tobacco, were found in his kitchen cupboard. In the course of the trial the sheriff, Sam Hudson, and Rosco Stacey were permitted to testify, over appellant’s objections and exceptions, that after their arrest Tom Carter stated to them that he found stolen articles in the pocket of his overcoat which he had loaned to appellant before the Stacey store was burglarized and which appellant returned to him the next day after the alleged burglary. It is conceded by the learned Attorney General that the trial court committed reversible error in admitting this testimony. The confession of error is based upon the rule announced by this court in the case of McCabe v. State, 149 Ark. 585, in the following language: “Where a person is charged as principal in the commission of a crime, the acts and declarations of a co-participant in his absence, and after the commission of the offense, are not admissible.”

Appellant also insists that reversible error was committed in admitting testimony tending to show that appellant was guilty of other larcenies. The introduction of this evidence came about in this way: Appellant testified in his own behalf. On cross-examination he was questioned as to whether he had not stolen a pair of shears or scissors out of the mail. (Appellant was a rural mail carrier). Appellant answered, denying that he had done so. These questions, on cross-examination of appellant, were proper as going to his credibility, but the State was bound iby his answer, and had no right to contradict him by other witnesses. Bogue v. State, 152 Ark. 378. The postmaster, J. H. Kilgore, was permitted, over appellant’s objection and exception, to give testimony tending to show that appellant had stolen a pair of scissors and a bridle out of the mail sack. Proof of the separate larcenies were not a part of a plan or scheme which would tend to convict appellant of the particular crime charged in this indictment. The admission of the evidence constituted reversible error.

For the errors indicated, the judgment is reversed and the cause remanded for a new trial.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Echols & Helton v. Lincoln County.
    Opinion delivered June 12, 1922.
    1. Counties — right op taxpayer to appeal prom allowance.' — Under the Constitution and statutes, a taxpayer of a county may appeal from an order of allowance against the county, whether he has previously been made a party to the proceedings or not.
    2. Highways — promise op county judge to make allowance.— Where contractors for construction of a road being built by a road improvement district were orally promised by the county judge, on their threatening to abandon the contract, that if they would perform it he would allow them all he could out of the county funds, such promise was indefinite and gratuitous and not binding on the county.
    Appeal from Lincoln Circuit Court; W. B. Sorrels', Judge;
    affirmed.

      Harry T. Wooldridge, for appellant.
    The county courts have exclusive original jurisdiction in all matters relating to county taxes,, roads, bridges, ferries, etc. Art. 7, sec. 28, Const.
    The act of the county court in ordering the warrant issued for the amount of plaintiff’s claims amounted to a ratification of the unauthorized act of the county judge. 72 Ark. 330; 117 Ark. 334; 122 Ark. 114; 122 Ark. 557; 103 Ark. 468; 127 Ark. 470.
    The Constitution confers upon county courts exclusive original jurisdiction in the matter of allowing claims and disbursing money for county purposes. Art. 7, sec. 28, Const.; 84 Ark. 329; 131 Ark. 211.

      Arthur J. Johnson and Henry W. Smith, for appellee.
    The county court had no jurisdiction or authority to allow the claims. The Legislature has provided the ways and means for building roads by these districts. C. & M. Digest, sec. 5412.
    The county court had no authority to enter into such a contract without an appropriation having first been made therefor. C. & M. Digest, see. 1976; 136 Ark. 209; 139 Ark. 502; 120 Ark. 476.

      The levying court had no authority to appropriate money to help an individual. C. & M. Digest, sec. 1982 sixth.
   McCulloch, C. J.

This is an appeal from a judgment on a •claim of appellants against Lincoln County. The claim was presented to the country court and was allowed, hut an appeal was prosecuted by A. J. Johnson, a citizen and taxpayer, and on the trial in the circuit court a judgment was rendered disallowing the claim.

Appellants were awarded a contract for the construction of a certain road in Lincoln County by a road improvement district created for that purpose. There was a written contract between appellants and the road district, specifying the price for the work, and a bond was given by appellants to the district and signed by certain citizens of that county as sureties. After the execution of the contract, and before the completion of the work, appellants threatened to abandon the contract, whereupon the county judge entered into an oral agreement with them to the effect that if they would go ahead and complete the construction of the'improvement in accordance with their contract with the road district, the county would pay towards the cost of construction whatever sum it might be able to pay.”

Appellants completed the construction of the road in accordance with their contract with the district, and then presented to the county court; for allowance, their claim against the county in the sum of $7,008.38, and asked that that sum be paid to them by the county in excess of the contract price paid by the road district. The county allowed the claim, but, as before stated, A. J. Johnson, a citizen and taxpayer, appealed to the circuit court.

Under the Constitution and statutes of this State a taxpayer of a county may appeal from an order of allowance against the county, whether he has previously made himself a party to the .proceedings or not. Van Hook v. McNeil Monument Co., 107 Ark. 292.

In the trial of the ease below, the fasts were undisputed, and the county judge testified that he made an oral agreement with appellants that if they would perform their contract for the completion of the improvement he “would allow them all he could in the way of building culverts and bridges. ’ ’ The judge stated that his reason for making this promise was that he knew that the contractors could not complete the road for the amount of their bid, and he concluded that, inasmuch as citizens of the county were sureties on the bond, it would be espe dient and in the interest of harmony to pay the contractors all that he could out of the county funds.

There were no elements of a valid contract in the oral agreement between appellants and the county judge. It was too indefinite to constitute a contract, because the only undertaking on the part of the judge was to “pay what he could,” or pay “whatever sum the county might be able to pay.” There was at that time no contractual relations between the county and appellants; on the contrary, appellants were under contract with the road district to construct the improvement for a stipulated price. The promise of the county judge was merely gratuitous. The first act of the county court which could operate with any binding force was the subsequent allowance of appellants’ claim, and this is the judgment from which the citizen has prosecuted an appeal, which he had a right to do.

The appeal brings up the question whether or not there was a valid claim against the county, and it is not difficult to reach the conclusion that there was no valid claim, for the county was not liable for the payment of any of the cost of the improvement. Of course, the county court has absolute control over the distribution of the road fund in the repair and maintenance of public roads, but that is not what is involved in the present controversy, for, as before stated, the appellants were under contract with the road district to construct the improvement, and the allowance from the county was a mere gratuity.

The circuit court was correct in refusing to allow the claim, and the judgment is therefore affirmed.


text:
    Priest v. State.
    Opinion delivered June 12, 1922.
    1. Continuance — absence op witness prom state. — It was not error, in a murder case, to refuse a continuance to enable defendant to secure the attendance of absent witnesses who had left the State to engage in farming, and of whose return there was no assurance.
    2. Homicide — evidence op motive. — In a prosecution for murder where there was .a conflict in the evidence as to who was the aggressor, proof that defendant was engaged in the illicit manufacture of liquor and of the relation of deceased and members of his family thereto was admissible as tending to establish a motive for the killing and defendant’s attitude towards deceased.
    3. Criminal law — bystanders’ bill op exceptions — time for filing. — Where the trial court gave defendant 60 days to present and file a bill of exceptions, a bystanders’ bill of exceptions not filed within the time allowed was ineffectual.
    4. Criminal law — bill op exceptions — extension op time. — A trial judge in vacation has no power to extend the time for filing a bill of exceptions. .
    Appeal from Bradley Circuit Court; Turner Butler, Judge;
    affirmed.

      Clary & Ball, Robt. L. Rogers and R. W. Wilson, for appellant.

      J. S. Utley, Attorney General, Elbert Godwin and Wm. T. Hammock, Assistants, for appellee.
   McCulloch, C. J.

Appellant was indicted by 'the grand jury of Bradley County for murder in the first degree, alleged to have been committed by shooting and killing Elmer Kennedy on October 21, 1921, and on the trial of the cause appellant was convicted of murder in the second degree.

Appellant was the owner of a farm in Bradley County, and the deceased, Elmer Kennedy, a young man about twenty years of age, was a tenant, or share-cropper, on appellant’s place. The deceased, his mother and his brothers were working together as share-croppers, or tenants, on appellant’s farm.

The killing occurred on the public road along that part of the farm where the Kennedys lived. It appears from the testimony that .there had been more or less ill feeling between appellant and Elmer Kennedy since the latter came on the farm during the month of May. Eor a short time before the day of the killing there had been a controversy about the division of the corn crop, and Norris, another tenant on the place, was sailed in as an arbitrator between them.

Appellant went to the farm with wagons, in company with Norris, for the purpose of gathering and dividing the corn. He was also accompanied by Young, another tenant on the place, and his son. There were two wagons, and they drove into the field, and the Kennedys, including Elmer, joined the party for the purpose of of assisting in gathering the corn and dividing it. After the two wagons had been loaded with corn they were driven outside of the field and were halted near each other on the public road. Appellant was in one of the wagons at the time, and the Kennedys, or some of them, including Elmer, were in the other wagon.

Elmer Kennedy went to the' wagon containing the corn which had been assigned to him and his mother and brothers, and gathered a few of the 'best ears and placed them in the other wagon to repay the quantity of corn that had been used for roasting ears. After doing this, Elmer, according to the evidence, accosted Priest by asking him to go back into the field for the purpose of ascertaining the extent of damage done to the crop by hogs, so that there could be a settlement of that difference between them.

According to the testimony of the witnesses, Elmer Kennedy was standing leaning against one of' the wagons at that time. He was totally blind in’ one of his eyes. Witnesses stated that either Norris or Young was heard to say to appellant, “Now is your time,” and that appellant thereupon got out of the wagon and approached Elmer Kennedy on the blind side and drew his pistol and shot him. The witnesses state that Kennedy was making no demonstration, and that the killing done by appellant was without provocation or justification.

There is a conflict in the testimony, but the evidence adduced by the State was sufficient to justify the finding of the jury that the facts were as just stated.

Appellant and the witnesses he introduced testified that Elmer Kennedy assaulted appellant with a knife and that his mother urged her sons to “clean him up,” referring to appellant.

The issues were submitted to the jury upon instructions conceded to be correct, and there is no assignment of error with respect to the court’s charge either in giving or refusing instructions.

It is first contended that the court erred in refusing to grant a continuance until the next term to enable appellant to procure the attendance of two absent witnesses, who were shown to be in the State of Mississippi. The court, after hearing evidence from which it appeared that the two witnesses had removed from Bradley County, Arkansas, to the State of Mississippi for the purpose of engaging in farming, announced the conclusion that it was not shown that the witnesses would probably return, and for that reason overruled the motion for a postponement. There was no request for a short postponement to give time for taking the depositions of the witnesses.

The circumstances were such, we think, that they justified the conclusion of the court that there was no reasonable probability of the absent witnesses returning into the jurisdiction of the court, and as a trial court is vested with discretion in such matters, we cannot say that there was any error in refusing to grant the continuance. The two absent witnesses were farmers, and left the State in September for thé purpose of engaging in farming in the State of Mississippi. There was nothing shown which would give rise to the conclusion that the witnesses would come back into the State until such time in the future as they might decide to make a visit or to move back here.

It is next contended that the court erred in permitting the State to introduce testimony concerning appellant’s conduct in making, selling and transporting intoxicating liquors.

It was drawn out from some of the witnesses that appellant operated a still on the farm and that he clandestinely sold the output of the still, and that he proposed to deceased and his brothers to employ them on commission to assist him in disposing of the product. There were numerous circumstances proved concerning appellant’s connection with the illicit manufacture and sale of liquor, but all of the testimony had reference to the relations between appellant, on the one side, and the deceased and his brothers on the other.

There is other testimony that there was a statement made at one time by appellant to a companion, in substance, that Elmer Kennedy was likely to tell wha.t he knew about the illicit manufacture and sale of liquor by appellant. Elmer’s father testified that about two weeks before the killing he met appellant at the gin where they had carried cotton, and that appellant asked, referring to Elmer, “What did you bring that damn boy up here for?.” and added, “If you don’t keep that boy away from here, I’m going to kill him.”

Appellant introduced testimony tending to show that Elmer Kennedy had assaulted him several weeks before this occurred.

This testimony concerning the manufacture and sale of liquor by appellant was introduced, not for the purpose of proving other crimes committed by appellant, but to show the relations between the parties and the probable motive for the killing.

There was a conflict in the testimony as to which of the parties was the aggressor, and it was competent for the State to prove appellant’s mental attitude toward the deceased, as reflected by their prior relations, friendly or unfriendly. Appellant would' have been entitled to an instruction limiting the testimony to that purpose, but no such instruction was asked.

There is an assignment of error based on references made to this testimony by the prosecuting attorney in the argument before the jury, but since the testimony was competent, it was not improper for reference to be made to it in the argument.

Impeaching testimony was used very freely by both sides. The appellant introduced witnesses impeaching nearly every witness introduced by the State, and after eliciting from each witness the statement that the reputation of the witnesses sought to be impeached was bad, the following question was propounded: “Basing your answer upon their general reputation for truth and morality, would you believe them under oath in a matter in which they are interested?” The court sustained objections to this question, but it is not properly shown in the record what the answer of either of the witnesses would have been to this question. In fact, the record shows nothing except that the question was asked and that exceptions were saved by appellant’s counsel.

Since the filing of the State’s brief in this court, counsel for appellant have attempted to bring up an additional record by' certiorari showing the exceptions certified by bystanders.

The motion for a new trial was filed and overruled on February 11, 1922, and_the court gave appellant sixty days from that date within which to present and file a bill of exceptions. The bill of exceptions was signed by the court and filed within the time allowed, but it contained no reference to the subject-matter of the present exceptions; that is to say, it did not contain any reference to the substance of what the witnesses would have stated in response to the excluded question. It appears from the additional record now brought up that on May 31 appellant procured the affidavits of two bystanders and presented the same to the- the trial judge for approval as part of the bill of exceptions in the case, and, after obtaining from the judge a signed statement to the effect that he refused to approve what the affiants stated, the affidavits, with the certificate of the judge, were filed with the clerk and brought up here by certiorari. This was, as before stated, all done long after the expiration of the time for filing the bill of exceptions.

It has been established by a long line of decisions of this court, beginning with the case of Fordyce v. Jackson, 56 Ark. 564, that where an appellant attempts to add exceptions based upon the affidavits of bystanders, such exceptions must first be presented to the trial judge for allowance and rejected by him. This must, of course, be done within the time allowed by the court for filing the bill of exceptions. The trial judge has no power in vacation to extend the time allowed by the court for filing the bill of exceptions, and it is too late after the expiration of the time allowed to present the exceptions to the judge or to file the affidavits of bystanders. In other words, an exception certified by the affidavit of bystanders must be filed within the time allowed by statute or the order of the court, otherwise it is ineffectual.

This completes the discussion of all the assignments of error argued in the brief of counsel.

The instructions were, as before stated, free from any objections, and there is no assignment here with reference to them.

The evidence is abundant in support of the verdict.

Judgment affirmed.


author: Wood, J.

text:
    B. F. Goodrich Rubber Company v. Presley.
    Opinion delivered June 12, 1922.
    1. Exceptions, bill op — effect of stipulation. — Crawford & Moses’ Dig., § 1323, provides that where the parties to an action agree upon the correctness of a bill of exceptions by indorsement signed by counsel of record, the clerk shall file such agreed bill, and it shall become a part of the record. In a transcript on appeal there was no entry designating any part of it as a bill of exceptions. Twelve days after the clerk had certified the transcript, a stipulation of counsel that the transcript was a complete transcript of the proceedings, and that same might be filed in the Supreme Court. Held, there being no compliance with § 1323, the stipulation does not embody the essentials of an agreed bill of exceptions.
    2. Appeal and error — necessity of bill of exceptions. — Where errors complained of do not appear in the record proper, they can only be presented for review through a duly authenticated bill of exceptions, according to some one of the methods required by Crawford & Moses’ Dig., §§ 1321-3.
    Appeal from Pike Circuit Court; James S. Steel, Judge;
    affirmed.

      O. A. Featherston, for appellant.

      W. T. Kidd, for appellee. .
   Wood, J.

This is an appeal from a judgment in favor of the appellee against the appellant in the sum of $10.70. The action arose on an account filed by the appellant against the appellee before a justice of the peace. The appellant /claimed that the appellee was due it the sum of $130.48 for automobile casings which the appellant had sold to the appellee. The appellee filed a cross-complaint and alleged that he had a contract with the appellant whereby the appellant guaranteed that its casings would run six thousand miles, and that all casings which did not run that distance the appellant would adjust the claim with the party who had purchased the easing from the appellee; that the appellant had appointed appellee its agent for the purpose of making these adjustments; that appellee had been purchasing casings from the appellant and making adjustments on defective casings since 1917, and that appellant was due the appellee the sum of $141.18. Trial was had in the court below before a jury and a verdict and adjustment rendered in favor of the appellee in the sum above mentioned.

The appellant contends that the court erred in not granting its prayer for instruction No. 1 for a directed verdict in its favor, and also in refusing certain other prayers of appellant for instructions and in modifying these instructions and giving them as modified, and also in giving appellee’s prayers for instruction No. 1.

The appellee contends that these alleged errors cannot be reviewed here for the reason that there is no bill of exceptions setting forth the testimony and the purported instructions of the trial court upon the giving of which appellant predicates error. There is in the transcript what purports to be the proceedings had before the justice of the peace, resulting in a judgment from which an appeal was taken to the circuit court, and what purports to be the proceedings had in the circuit court; resulting in a judgment in that court in favor of the appellee in the sum above mentioned. The transcript contains a record of the judgment, the motion for new trial, the order of the court overruling the same, the prayer of appellant for an appeal, and the order granting the same. Then follows what purports to be the testimony that was adduced at the trial and the purported instructions, with an entry on the margin opposite each instruction purporting to show the ruling of the court on the prayers for instructions. Then follows a supersedeas bond, and the clerk concludes the record as follows: “Clerk’s Certificate. State of Arkansas, County of Pike. I, Geo. W. Neal, clerk of the circuit court in and for the county and State aforesaid, do certify that the foregoing forty-six pages of typewriting contain a true and complete transcript of the records and proceedings in the circuit court of said county, in the cause therein stated. In testimony whereof, I have hereunto set my hand and affixed the seal of said court this 8th day of November, 1921. (Signed) George W. Neal, Circuit Clerk.” The seal of the clerk is attached to the certificate. Then follows the fee bill, with the certificate of the clerk showing the same to be correct. After the clerk’s certificate and on the last page is the following: “It is agreed by and between O. A. Featherson, attorney for plaintiff, and W. T. Kidd, attorney for defendant, that the foregoing transcript is full and complete as the transcript of- the proceedings had in the cause named in caption thereof, and that same may be filed by our consent and approval in the Supreme Court of Arkansas. This Nov. 12, 1921. (Signed) O. A. Featherson, Atty. for plaintiff. W. T. Kidd, Atty. for defendant. ’ ’

There is no -bill of-exceptions in the record signed by the trial judge, as required under the provisions of sec. 1321, C. & M. Digest. Nor is there any bill of exceptions established by bystanders under the provisions of Sec. 1322, C. & M. Digest.

Sec. 1323 of C. & M. Digest provides as follows: “In all cases, except indictments charging a felony, where the parties to an action agree in writing upon the correctness of a bill of exceptions by indorsement thereon, signed by one or more counsel of record of the respective parties, it shall be the duty of the clerk of the court in which the case is pending to at once file such agreed bill of exceptions, and the same shall become a part of the record as fully, completely and effectively as though approved, signed and ordered filed by the order of the court or judge trying the cause. Provided, said bill of exceptions is filed within the time fixed by the court for filing the same.”

There is no entry in the purported transcript of the proceedings designating any portion of the transcript as a bill of exceptions. It will be observed that the agreement signed by counsel for the plaintiff and the defendant does not comply with the requirements of sec. 1323 of C. & M. Digest, swpra, providing for an agreed bills of exceptions. The purported agreement of counsel was made twelve days after the clerk had completed the transcript of the record of the proceedings and' certified thereto. The clerk does not certify that this agreement of counsel was filed and made a part of the record of the proceedings. There is nothing in the agreement to show that it designates any portion of the transcript of the record as a bill of exceptions and that the same was filed with the clerk of the' court. See Hodges v. Collison, 116 Ark. 420. There is nothing in the agreement signed by the counsel for the parties, nor in the certificate of the clerk, to show that counsel for respective parties had agreed on what should enter into and constitute the bill of exceptions in the cause before the clerk had made up his transcript of the record. The agreement signed by the counsel, as we have stated, was after the clerk had made up the transcript, and the agreement was to the effect that the transcript was full and complete of the pr oceedings in the cause,(and that the same mightbe filed in the Supreme Court. But this falls far short of being in compliance with the statute as held by this court in the case of O. K. Houck Piano Co. v. Primm, 112 Ark. 80, where we said: “The act approved April 28, 1911, does not contemplate that the parties may agree upon a bill of exceptions after the clerk has made the transcript and fixed his certificate thereto. It contemplates that the bill of exceptiohs shall first be agreed upon by counsel for the respective parties, and that then the agreed bill of exceptions should be filed by the clerk and thus become a part of the record in the case.” The stipulation of counsel does not purport to show what objections, if any, were made to the rulings of the court concerning the admission or exclusion of testimony before the jury, nor what objections were made, if any, to the ruling of the trial court in granting or refusing prayers for instructions, nor what exceptions,- if any, were preserved to the rulings of the court. The stipulation, therefore, does not embody essentials of an agreed bill of exceptions under the statute. Barry v. White Drug Co. 109 Ark. 120. See also Williams v. Griffith, 101 Ark. 84.

The errors complained of do not appear in the record proper and can only be presented for review before this court through a duly authenticated bill of exceptions according to some one of the methods required by our statute, supra. See Madison County v. Maples, 103 Ark. 44; Carnehan v. Parker, 102 Ark. 439; Huff v. Citizens’ National Bank, 99 Ark. 97. Since there was no bill of exceptions, it must be presumed that the rulings of the trial court were in all things correct, and the judgment must therefore be affirmed.


author: Smith, J.

text:
    Dickson v. Jonesboro Trust Company.
    Opinion delivered June 12, 1922.
    1. Husband and wife — estate by entirety in personalty. — An. estate by the entirety may be created in personal property.
    2. Husband and wiffe — estate by entirety in bank deposit. — A bank deposit in the name of “D. and wife” held to create an estate by the entirety, though the name of the wife is not mentioned, and she never draws any checks against the account, and D. reserves the right to check against the account and to add to the balances from time to time.
    3. Husband and wife — husband’s separate property. — Where a husband, with his wife’s knowledge and consent, withdrew portions of bank deposits kept in the name of himself and wife and reduced the sums withdrawn to his separate possession, Liberty Bonds and Thrift Stamps purchased therewith and notes made to him in his individual name, with his wife’s consent, were owned by him alone, and not jointly with his wife as tenants by the entirety.
    Appeal from Craighead Chancery Court, Western District; Archer Wheatley, Chancellor;
    reversed in part.

      Horace Sloan for J. S. Dickson, appellant and appellee.
    An estate of tenancy by the entirety does not exist in personal property in this State. This case is distinguished from that in 147 Ark. 7, on the facts,

      There was not a sufficient designation of the wife to render Sarah L. Dickson a tenant by the entirety of this fund with her husband.
    Even though the widow be held to be a tenant by the entirety in the bank account, it does not follow that she is entitled to the bonds, stamps and notes, as these were the individual property of Q-. B. Dickson and now the property of his administrator. See 147 Ark. 7; 8 A. L. R. 1017.
    The charge of fraud and collusion made against the administrator in the case in which he is appellee is a general allegation and not legally sufficient. 77 Ark. 355; 51 Ark. 1; 45 Ark. 505; 42 Ark. 186; 34 Ark. 631; .33 Ark. 727.
    A court will not reopen a judgment when the application does not disclose some defense on the merits. Crawford’s Digest, “Judgments” secs. 46, 100. On the ground of fraud, such fraud must have existed in the procurement of the decree, and the existence of fraud in the original cause of action is insufficient to vacate a decree in equity. 90 Ark. 261. Here no fraud is alleged or pointed out. Only the administrator had the right to bring the suit. 45 Ark. 299; 35 Ark. 289.

      Gautney, Caraway & Dudley, for Crowder et al, appellants.
    Under secs. 1101 and 1102 C. & M. Digest, the grandchildren having an interest in the property should have been allowed to become parties. See also 49 Ark. 100; 74 Ark. 54; 86 Ark. 304.
    An estate by the entireties in the funds in bank was not created. There is no presumption that such a result is intended, but there must be something said or done at the time of making the deposit to call for such a rule, or there must be a statute to that effect. See 148 N. Y. S. 302; 146 Pac. 647; 3 R. C. L. 527, sec. 155; 128 A, S. R. 543; 51 A. S, R, 473; 17 A. S, R, 524,

      Arthur L. Adams, for appellee Sarah L. Dickson.
    The estate of tenancy by the entirety in personal property exists in this State. 147 Ark. 7; 8 A. L. R. 1017; 13 R. C. L. 1106, sec. 129; 21 Cyc. 1197.
    Making the deposit in the name of Gr. B. Dickson and wife as fully identifies Sarah L. Dickson .as if her name had been used. Had Mr. Dickson intended to be the sole owner of the deposit he would have used only his own name. Freeman on 'Cotenancy and Partition (2nd Ed.), sec. 68. Changing the form of the property from cash deposit of bonds, notes, etc., taken in the name of one, does not extinguish the rights of the other tenant. 8 A. L. R. 1014; 7 Tenn. Civ. A. 277; 147 Ark. 7. The wife must have known of such intent and acquiesced therein.
    The intervention of Crowder et at. was properly de'nied because jurisdiction of the lower court had been terminated by perfecting the appeal to this court before any action was taken by them. 2 Stand. Ency. Proc. 324; 72 Ark. 475; 88 Ark. 391; 107 Ark. 415; 150 U. S. 31; 29 Ark. 85.
    A deposit by a husband to the credit of himself and wife creates a presumption of tenancy by the entirety. 153 Mo. 586; 108 N. Y. Supp. 493, 87-N. E. 1130.
   Smith, J.

On December 31, 1921, the Jonesboro Trust Company filed its bill of interpleader against J. S. Dickson, as administrator of the estate of Gr. B. Dickson, and Sarah L. Dickson, the widow of Gr. B. Dickson. On the same day the Bank of Jonesboro filed a similar bill. The administrator filed an answer, as did also the widow; and each claimed the funds there described. On January 6, 1922, these causes were consolidated by consent of parties and were heard on an agreed statement of facts, from which we copy the following recitals: Gr. B. Dickson died intestate November 24, 1921, and was survived by his widow and their sons and by the children of a deceased son and two deceased daughters. On November 28, 1921, J. S. Dickson, a son, was appointed and qualified as administrator, and is now serving as such. G-. B. Dickson and Sarah L. Dickson were married in 1886, and all of Gr. B. Dickson’s children were born of this union.

For a great many years prior to the death of Gr. B. Dickson a general deposit bank account was kept in the Bank of Jonesboro in the name of “Gr. B. Dickson and wife.” During the lifetime of Gr. B. Dickson checks drawn on this account and signed “Gr. B. Dickson” were honored. At the time of the death of Gr. B. Dickson the amount of this general deposit account in the Bank of Jonesboro was $5,526.87.

On March 12, 1918, Gr. B. Dickson withdrew from the Bank of Jonesboro the sum of $5,000 and deposited this amount in the Jonesboro Trust Company as a general deposit to the credit of “Gr. B. Dickson and wife.” Other deposits were made to this same account from time to time, and certain withdrawals from the account were also made. At the time of the death of Gr. B. Dickson the amount of this general deposit in the Jonesboro Trust Company was $6,992.94.

The Jonesboro Trust Company had in its possession certain Liberty bonds and Thrift stamps which were purchased from time to time prior to the death of Gr. B. Dickson and were all paid for by checks drawn by and signed “Gr. B. Dickson” on the bank deposits in the Bank of Jonesboro and in the Jonesboro Trust Company, both of said deposits being, as above stated, in the name of “Gr. B. Dickson and wife.” The bonds and stamps are all payable to bearer and negotiable by delivery. Said bonds and stamps were delivered to the bank for safekeeping, without any designation as to whether “Gr. B. Dickson” or “Gr. B. Dickson and wife” were the owners thereof. Interest collected from time to time on the Liberty bonds was deposited by Gr. B. Dickson during his lifetime in the Jonesboro Trust Company in the deposit account above referred to as being in the name of “Gr. B, Dickson and wife,”

The trust company also had in its possession two notes payable to the order of G-. B. Dickson, both being executed by his sons, and representing money they had borrowed from their father. The money represented by the notes was advanced on checks drawn on the Bank of Jonesboro and payable to the order of E. F. Dickson, and were paid by said bank out of the joint bank deposit held by said bank in the name of “Gr. B. Dickson .and wife.” Gr. B. Dickson did not have any interest in any other bank account in the Bank of Jonesboro except the one made and kept in the name of “Gr. B. Dickson and wife.”

All funds forming the bank deposit accounts, before being deposited in said account of “Gr. B. Dickson and wife,” were the earnings of Gr. B. Dickson, and not the separate property of his wife, nor did. they comprise any portion of her separate estate. The bank account in the Bank of Jonesboro was started over thirty years ago in the name of “Gr. B. Dickson and wife”. An indeterminable part of the bank deposits in controversy represents the remainder, including interest and profit accumulations on the deposits so made from time to time.

On this agreed statement of facts the court, on January 6, 1922, a regular day of the January 1922 term, adjudged that the widow, as the surviving tenant by the entirety, is the sole and exclusive owner of the bank deposits, and also the bonds and stamps and notes. From this finding and decree the administrator, who claimed the title to the property described for the benefit of the estate, prayed and was granted an appeal to this court.

On March 10,1922, the same being an adjourned day of the January 1922 term of court, the grandchildren of Gr. B. Dickson filed an intervening petition, in which they alleged their relationship to Gr. B. Dickson, deceased, and alleged that J. S. Dickson, the administrator, and Sarah L. Dickson, the widow, had fraudulently colluded together for the purpose of enabling Sarah L. Dickson to claim said personal property and of procuring the decree awarding the personal property to her. This petition also alleged that Sarah L. Dickson was old and infirm and without business experience, and that she had no knowledge of the filing of the complaints herein or of the rendition of the decree until after the same had been rendered. That prior to the death of G. B. Dickson he had made advances to his sons who survived him in'the sum of $15,000, and that said sons had control of their mother and are inducing her to' set up a claim to the personal property in order to defeat petitioners in their claim to their pro rata part thereof as heirs of G. B. Dickson, and will induce her to make a will excluding her grandchildren from participation in her estate, and that said grandchildren had no notice of this proceeding until after the rendition of the decree herein.

On March 10th this motion coming on to be heard, the administrator and widow filed responses to said petition; and the court denied the petition of the grandchildren to be made parties to the litigation, and they have appealed from that order.

We have therefore two appeals before us, that of the administrator from the original decree, and that of the grandchildren from the order of the court refusing to reopen the decree and make them parties to the litigation.

A. number of questions of pleading are discussed, which, in our view of the case, we find it unnecessary to decide. We may treat the grandchildren as having properly made themselves parties to this litigation, and we may assume they have shown the influence of the sons over the widow, although that fact was denied in the response which she filed in the court below;, yet it is not shown that the agreed statement of facts upon which the .cause was submitted omits any material fact or contains any statement which is not true. The showing is not made that the administrator is not defending the interests of the estate faithfully and efficiently, and the case may be finally decided on its merits.

It is admitted that ordinarily the title to the personal property would vest in the administrator for purposes of administration; and the administrator has appealed from the order of the court vesting title to the personal property in the widow.

Treating all parties in interest as having properly made themselves parties to this litigation, it may he said that the verity of the agreed statement of facts has not been impeached. The grandchildren allege that advancements were made to their uncles by their grandfather, and that their uncles have an undue influence with their grandmother, and will induce her to prefer her children to her grandchildren in the disposition of her estate. But these allegations, if true, cannot arrest or alter the devolution of the property, the controlling facts in relation thereto as recited in the agreed statement of facts being unchallenged.

The question, therefore, to be decided is whether the court below properly decreed the widow to be the owner as surviving tenant by the entirety of the property in litigation.

There is much contrariety in the adjudged cases as to whether an estate by entirety can exist in persona] property; but this court, in the case of Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, after a careful consideration of the authorities and of the adjudged cases on the subject, announced the law to be that such an estate can be created and can exist in personal property in this State.

It is argued that the facts recited in the agreed statement do not evince an intention to create an estate by the entirety. We think they do. The name, Sarah L. Dickson, does not appear with that of Gr. B. Dickson; but Gr. B. Dickson’s wife name does appear as one of the persons for whose benefit the deposit was made. Dickson was never married but once, and there is no question about the identity of his wife. Deposits made in the name of “Gr. B. Dickson and wife” as certainly identify her as would deposits in the names of Gr. B. Dickson and Sarah L. Dickson. Parrish v. Parrish, 151 Ark. 161. It is shown that Mrs. Dickson never drew any checks .against this account; but no effort was made to show that such checks would not have been paid. The testimony, as we understand it, shows an intention on the part of Dickson to create an estate by entirety in his bank balances; that his balances at any time should be so owned. He reserved and exercised the right to check against and to add to these balances from time to time; but the balances, whatever they might be at any particular time, belonged to “Gr. B. Dickson and wife,” and the balances were therefore owned by them as tenants by entireties.

Gr. B. Dickson from time to time withdrew by check portions of the bank deposits, and the sums thus withdrawn were, with the knowledge and consent of his wife, reduced to his separate possession. U. & M. Trust Co. v. Hudson, 147 Ark. 12. The estate by entirety was thus destroyed in the funds so reduced to possession by Dickson, and as he took the title to the bonds, stamps and notes in his individual name with his wife’s consent, the court erred in holding that the bonds, stamps and notes were owned by Dickson and his wife as tenants by entirety.

It follows therefore that the decree of the court awarding to the wife the bank balances as surviving tenant by entirety is correct, and will be affirmed; but the decree so adjudging the title to the bonds, stamps and notes will be reversed and judgment entered here in favor of the administrator.


author: Humphreys, J.

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    Walden v. Berry.
    Opinion delivered June 12, 1922.
    Trial — instructions foreign to issue. — Where the gist of an action was deceit and fraud of defendant in the sale of hogs to plaintiff, and all the evidence was directed to that issue, it was proper to refuse instructions regarding the good faith due from an agent to his principal.
    Appeal from Madison Circuit Court; W. A. Dickson, Judge;
    affirmed.

      W. N. Ivie, for appellant.
    J. .8. Combs, for appellee.
   Humphreys, J.

This suit was brought in the Madison County Circuit Court, by appellant against appellee, to recover $100.75 alleged to have been overpaid by appellant to appellee in a hog transaction, through the deceit and fraud of appellee in misrepresenting the number of hogs which would weigh one hundred pounds, as well as the total weight of the hogs. It was alleged in the •complaint that appellee agreed to buy a lot of hogs for appellant and deliver them to him at the railroad stock yards in Eureka Springs, at twelve cents per pound for all hogs that weighed over one hundred pounds, and eleven cents per pound for all that weighed less than one hundred pounds; that on the false representations of appellant that half of the hogs delivered weighed more than one hundred pounds each, and all weighed 5,855 pounds, appellant paid appellee eleven and one-half cents per pound for the entire lot, to his damage in the sum of $29.27; that on the false representation of appellant that the lot of hogs weighed 5,855 pounds, when in fact they weighed only 5,255 pounds, he was induced to overpay him $71.50, and thereby was defrauded' out of said sufn.

Appellee filed an answer admitting the contract but denying that he misrepresented the total weight of the hogs delivered to appellant or the number of hogs in the lot which would weigh over one hundred pounds each.

The cause was submitted upon the pleadings, evidence, and instructions of the court, which resulted in a verdict and judgment for appellee, from which an appeal has been duly prosecuted to this court.

The testimony was directed to the issues of whether appellee misrepresented the total weight of the lot of hogs, and the number in the lot which would weigh more than one hundred pounds, thereby inducing appellant to pay him $100.75 more than he should have done. The testimony responsive to the issues was in conflict. The court instructed the jury, in substance, to find for appellant if fifty per cent, in weight of the lot of hogs did not weigh one 'hundred pounds or more each, as represented by appellee; also, if the total weight of the hogs was less than 5,855 pounds, represented by appellant to be their correct weight, giving the rule or measure of recovery in the event they found for appellant on either or both issues. The instruction was concrete and clearly defined the issues presented by the pleadings and testimony. As we construe the pleadings and testimony, the only issues joined were, whether appellee induced appellant to overpay him for the hogs, through deceit as to their total weight, or as to the number which weighed over one hundred pounds each.

Appellant sought, by two instructions requested and refused by the court, to inject into the case the good faith and loyalty due from an agent to his principal in the transaction of business for him, and an agent’s responsibility for his misconduct which operates to the injury of his principal. We do not think the doctrine of agency invoked has any application in the instant case. The gist of the complaint is for a recovery on account of alleged misrepresentations concerning the total weight of a lot of hogs and the number weighing over a hundred pounds. The claim was not bottomed upon the unfaithfulness, disloyalty, or misconduct of appellee as an agent, but upon specific allegations of deceit and fraud. All the testimony was directed to the issue of deceit and fraud, and not to duties growing out of any fiduciary relationship existing between appellant and appellee. We think the instructions asked and refused announced doctrines governing between principal and agent entirely foreign to the issues involved in this case. It was proper therefore to refuse to give them.

No error appearing, the judgment is affirmed.

Hart, J., dissenting.


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    Vaughan v. Odell & Kleiner.
    Opinion delivered June 12, 1922.
    1. Brokers — right to commission — instruction.—In a broker’s action for commissions, under a contract providing that the broker should receive all over a stipulated price for selling a tract of land, the refusal to give an instruction that, under the terms of the contract, the broker was entitled to commissions, whether the purchase money was paid or not unless the broker warranted the financial ability of the purchasers, held not error.
    2. Brokers — right to commission. — Under a contract for the sale of timber which provided that the broker should be paid all over a stipulated price, the broker must procure the consummation of a sale, and not merely á contract of sale.
    3. Brokers — right to commission. — Where a broker has furnished a purchaser who is ready, able and willing to purchase the timber at the owner’s terms, the latter is responsible for the broker’s commission should he refuse to convey the property.
    Appeal from Arkansas Circuit Court, Northern District; George W. Ciarle, Judge;
    affirmed.

      Hogue & Hogue and J. E. Ray, for appellant.
    This is not a case where there was any duty resting on the broker to show the production of a purchaser ready, able and willing to buy. That point had been passed. The purchaser was produced and a binding contract was entered into between the owner and the purchaser, and a payment on purchase price had been made. The broker’s commission was then earned. 89 Ark. 289, 293, 394; 107 Mass. 550, 44 L. K. A. 503; 128 Ark. 30.

      John P. Lee and John L. Ingram, for appellee.
    In this case both parties had to look to the same fund, the owner for his pay for the timber and the broker for remuneration for his services. It was the duty of both to help create that fund, and appellant, whose- duty it was to find a purchaser able to buy, failed in his undertaking. Walker on Real Estate Agency 301, § 456; 78 N. E. 106; 81 Ark. 96.
   Humphreys, J.

This is the second appeal in this case. On the first trial, the circuit court erroneously instructed a verdict for appellees, which resulted in ,a reversal of the judgment and remand of the cause for a new trial. The issues joined, and the substance of the testimony responsive thereto, were fully stated in the opinion reversing the judgment, so reference is made to the case, under the same style, reported in 149 Ark. at page 118, instead of restating it. On the former appeal, this court construed the contract between appellant and appellee for the sale of a large body of timber owned by appellee to mean that appellant, as a broker or real estate agent, was entitled to a commission for effecting the sale thereof of Carver & Russell, if the non-performance of the contract was occasioned by appellees, the owners of the timber. Under the contract, appellant was to receive, as a commission, the excess above a certain net price to the owners; according to the testimony of appellant, all above $6 per acre, and according to the testimony of appellees, all above $7.50 per acre, for which he might sell the timber. Through the instrumentality of appellant a written contract for the sale of 1040 acres of timber was entered into between appellees and Carver & Russell, for $8 per acre, or a total of $8,320, of which $4,000 was to be paid in cash when the deed was signed; $2,000 in 90 days, and $2,320 in four months. The trial court, in peremptorily instructing a verdict for appellees on the first trial, proceeded upon the theory that, unless the purchase money was finally paid, appellant was not entitled to any compensation under his contract with appellees for the sale of their timber. This theory did not take into account that the owners of the timber would be responsible for a commission if they were to blame for the nonpayment of the purchase money. There was a conflict in the testimony as to whether the fulfillment of the contract was prevented through the fault of appellees. The judgment was reversed and a new trial directed, in order that the issue of whether the sale failed because Oarver & Russell, the purchasers, were unable to comply with the conditions of the contract, or whether appellees wrongfully refused to convey the timber. Upon remand, the cause was submitted to the jury in accordance with the directions given, which resulted in a verdict and judgment against appellant.

Appellant insists that the court committed reversible error in refusing to instruct the jury that appellant was entitled to a commission, under the terms of the contract, whether the purchase money was ever paid or not, unless they found that appellant warranted the financial ability of the purchasers, Carver & Russell, procured by him. The law did not warrant this request. An agreement by an owner to pay a broker or real estate agent all over a stipulated price for selling his property, necessarily implies that the agent shall procure the consummation of a sale and not merely a contract of sale. The owner, of course, would be responsible for the commission should he refuse to convey the property in accordance. with the terms of the contract. Munroe v. Taylor, 78 N. E. (Mass.) 106; Lewis v. Briggs, 81 Ark. 96.

The court’s refusal to give appellant’s request was not error. The judgment is affirmed.


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    Suckle v. Missouri Pacific Railroad Company.
    Opinion delivered May 29, 1922.
    1. Carriers — loss of goods — market value. — In an action for value of goods lost or destroyed in transit, where both parties adopted the theory that the goods were worth as much at the place of shipment as at destination 30 miles distant, and that the proper criterion of value was the original cost thereof at the place where they were purchased, an instruction limiting recovery to the market value at the place of destination was not erroneous, though the proof established the value, and the bill of lading provided for its computation, at the place of shipment.
    2. Appeal and error — submission of issue on undisputed evidence. — In an action against a carrier for the value of boxes of goods lost in transit, where undisputed evidence showed the contents of the boxes and their value, submission to the jury of the question as to the contents of the lost boxes and their value was reversible error.
    3. Carriers — loss of goods — evidence of contents and value.— In an action against a railroad for the value of goods lost or destroyed in transit, the undisputed testimony of plaintiff’s shipping clerk that the invoices contained in a book, in which an itemized statement of each article packed and the value thereof was entered, were correctly made, and that the goods specified as being in each box were placed there under his supervision and were contained therein when shipped, constituted such definite proof of the contents of the boxes and value of the goods therein as rendered the submission of such questions to the jury reversible error.
    4. Trial — effect of undisputed testimony of employees. — Mere employees or clerks cannot be said to be interested in the result of litigation between their employer and third parties, so as to render permissible submission to the jury of issues as to facts definitely established by their undisputed testimony.
    Appeal from Nevada .Circuit Court; George R. Ha.ynie, Judge;
    reversed.

      II. E. Rouse, for appellant.
    The measure of damages where goods are lost is the invoice price of the goods at point of shipment, and not at destination. 127 Ark. 246.
    Plaintiff’s proof that the invoice price of the goods lost was $1,448.90 was uncontradicted. Juries have no right to- disregard uncontradicted evidence. Plaintiff was entitled to a directed verdict. 145 Ark. 399; 84 Id. 369; 80 Id. 397; 67 Id. 514; 66 Id. 439; 53 Id. 96; 87 Id. •70; 101 Id. 532; 96 Id. 37.
    The court had no right to limit plaintiff to proof of actual market value at Pulton. The invoice price of the goods at Prescott was his measure of damages. Supra; 10 C. J. 176-177, § 222; Id. 397, § 607; 192 S. W. (Ark.) 212 et seq.; 110 Ark. 619; 159 Fed. 974. The court’s instruction on this subject call for reversal, since it without doubt caused the jury to return the inadequate verdict. 82 Ark. 510; 58 Id. 199, 230 S. W. (Ark.) 10; 229 Id. 737, 738; 226 Id. 168; 110 Ark. 557; 80 Id. 455; 70 Id. 79. See also 136 Id. 357 204 S. W. (Ark.) 618; 115 Ark. 259; 116 Id. 238; 82 Ark. 131; Id. 381; Id. 603; Id. 424; 89 Id. 105; 131 Id. 369.

      E. B. Kinsworthy and B,. E. Wiley, for appellee.
    1. The market value at destination was the correct measure of damages. 253 U. S. 97, 64 Law. Ed. 801; 73 Ark. 112; 115 Id. 20; 147 Id. 109; 127 Id. 246; 110 Id. 58.
    2. The amount of damages was a question for the jury. 86 Ark. 29; 82 Id. 86; 95 Id. 144; 124 Id. 490-495 ' 54 Id. 214; 80 Id. 284; 85 Id. 121; 139 Id. 255.
   Humphreys, J.

Appellant instituted suit against appellee in the Nevada Circuit Court to recover $1,448.90, the alleged value of two cases of dry goods, consisting of clothing, underwear, etc., and one case of coat racks, shipped over appellee’s railroad from Prescott to Fulton, a distance of 30 miles, which were never delivered, but were lost or destroyed in transit. It was alleged the lost goods were included in the bill of lading issued and delivered at the time of the shipment by appellee to appellant, which is in part as follows:

“Missouri Pacific Railroad Company.
“Issued at Prescott, Ark., 9-28-20, consigned by J. Suckle to J. Suckle, Fulton, Ark. Hoods received and accepted for shipment; 2 rolls paper, 2 cs. shoes, 1 crt. coat racks, 1 cs. rubber shoes, 9 cs. dry goods, weight 1,990 lbs., on which freight and war tax was $10.56.
“ (Signed) G-. A. Hays, Agent,
“J. Suckle, Shipper
“Per C. O. Carrington.”
On back of which the following appears: “Section 1. The carrier or party in possession of any of the property herein described shall be liable for any loss thereof or damage thereto, except as hereinafter provided.”
“Sec. 3. The amount of 'any loss or damage for which any carrier is liable shall be computed on the basis of the value of the property at the place and time of shipment under this bill of lading, including the freight charges, if paid. ’ ’

The allegations in the complaint were denied, and the case was submitted to the jury upon the pleadings, evidence and instructions of the court, which resulted in a verdict and judgment in favor of appellant for $750, from which is this appeal.

At the conclusioni of the testimony appellant requested the court to direct a verdict in his favor for the full amount claimed, which the court refused to do, over his objection and exception. When the verdict was returned, appellant moved the court to render a judgment in his favor for the full amount claimed, notwithstanding the verdict of the jury, which motion was overruled, over his objection and exception. Appellant’s requests proceeded upon the theory that the undisputed evidence showed the shipment and loss of the goods of the value of $1,448.90. Appellee’s theory was that there was a dispute in the evidence as to the quality of goods contained in the lost boxes and the value thereof. The court adopted the theory of appellee, and, over the objection and exception of appellant, instructed a verdict in his favor for the market value of the goods at Fulton, the point of destination. In addition to the general objection, appellant specifically objected to the instruction because it limited the market value to Fulton, whereas the proof established the value at Prescott, and because the bill of lading provided for its computation, in case of loss, at the place and time of shipment. In the course of the examination of witnesses concerning the market value of the goods attention was directed to the cost or invoice prices thereof in New York and Chicago, where the goods were purchased. Neither party attempted to show any difference in the market value of them at Prescott and Pulton. Both adopted the theory that they were worth as much at one point as the other, and that the proper criterion of value was the original cost of the goods. This character of proof was introduced by appellant, relating to the value of the goods, and appellee offered no objection to the' manner in which the market value was established. Again, Prescott and Pulton are so near to each other that no material difference could exist in the market value of the goods at either place. No error resulted on account of this phase of the instruction given by the court. Reversible error, however, was committed in submitting the question of the contents of the lost boxes and value thereof to the jury. The trial court should have instructed a verdict in favor of appellant for $1,448.90. The undisputed evidence showed that the goods, which cost that amount in New York and 'Chicago, were contained in the boxes which were lost. The major portion of the goods came from New York and had been purchased and received only a short time before shipment. The remaining portion had been brought over from the year before, but were worth the invoice or cost price. After a careful examination of the testimony we find no material conflicts or discrepancies therein, and no circumstances from which an inference might be drawn either that the boxes did not contain all of the goods or that the value of the goods was less than claimed. Thirteen boxes of goods were shipped in the first shipment, numbered from 1 to 13. Ten of the boxes were delivered and three lost. The lost boxes were numbered 3, 5 .and 7. In packing the boxes preparatory to shipment appellant’s clerks used a record called an invoice book, in which an itemized statement of each article placed in the box and value thereof was entered. Joe Hubbard, the clerk who did the principal part of the work, testified that the invoice was cerefully made, and that the -goods specified as being in each box were placed therein -by him or under his supervision, and were contained in the respective boxes when shipped.' It appears to us that this is about as definite as proof could be -made concerning the contents of the boxes and the value of the goods therein contained. Appellant and his clerk testified where the goods came from that were shipped in these boxes. No. attempt was made to deceive the jury as to the character of the goods shipped. They testified that a part of them had been recently purchased in New York, and that a part of them had been brought over in the stock from the previous year. They testified that those brought over which were in the shipment were worth the invoice price. Appellee insists, however, that the evidence cannot be regarded as undisputed because the witnesses testifying to the facts are interested in the result of the case. There is nothing in the record showing that Joe Hubbard or Claude Carrington, two witnesses introduced in behalf of appellant, in addition to himself, were interested in appellant’s business. The cases cited in support of appellee’s contention upon this point are not applicable, because in those cases the facts were established by witnesses interested in the result of the cause. Employees or clerks cannot be said to be interested in the result of litigation between their employers and third parties from the mere fact that they are employees or clerks.

For the error in refusing to peremptorily instruct a verdict in the amount claimed in favor of appellant, the judgment is reversed, and judgment is directed here in favor of appellant of $1,448.90 and interest thereon.


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    Phillips v. Mosaic Templars of America.
    Opinion delivered June 5, 1922.
    1. Insurance — prospective statute — Acts 1917, p. 2087 ('Crawford & Moses’ Dig. § 6071), providing that fraternal benefit societies shall be exempt from all provisions of the insurance laws unless they be expressly designated therein, is prospective and applies only to policies thereafter issued.
    2. Insurance — benefit certificate — limitation — Crawford & Moses’ Dig., § 6153, providing that an action on an “insurance policy” may be maintained against the company issuing it at any time within the period prescribed by law for bringing action on promises in writing, and declaring that any stipulation in such policy requiring an action to be brought within any shorter time or be barred shall be void, does not apply to benefit certificates, and a limitation in a benefit certificate requiring suit to be , brought within one year after the cause of action accrued was valid.
    Appeal from Nevada Circuit Court; George B. Haynie, Judge;
    affirmed.

      J. D. Shackleford, for appellant.
    The stipulation in the policy shortening the time within which suit may he brought is squarely in the face of sec. 6153, C. & M. Digest.

      Scipio A. Jones and Carmichael & Brooks, for appellee.
    Section 6153, C. & M. Digest, is supported, so far as fraternal benefit societies are concerned, by sec. 6071, C. & M. Digest, and the limitation in the policy as to time of bringing suit is controlling. 78 Ark. 32.
   Smith, J.

This is a suit on a benefit certificate issued June 11, 1914, on the life of Virgil G-odbolt by appellee, a mutual fraternal insurance company. The insured died December 8, 1918, and under the terms of the certificate a cause of action accrued thereon ninety days thereafter. The certificate required the suit to be brought within one year after the cause of action accrued; but the suit was not commenced until March 27, 1920. A verdict was directed against the plaintiffs; and that action of the trial court is defended upon the ground, among others, that the cause of action was barred when the suit was instituted; and as we think this point is well taken we do not consider the other defenses raised.

Appellants insist that the cause of action is not barred, because of the provisions of section 6153, C. & M. Digest, that an action may be maintained on a policy of insurance against the company issuing it at any time within the period prescribed by law for bringing’ actions on promises in writing, and that ‘ ‘ any stipulation or provision in any such policy of insurance requiring such action to be brought within any shorter time or be barred, shall be and the same is hereby declared to be void. ’ ’ The section quoted is a part of the act of March 12,1901 (Acts 1901, p. 93).

Counsel for appellee insist that the section quoted has no application to the policy sued on, because of section 6071, C. & M. Digest, which provides that fraternal benefit societies shall be exempt from all provisions of the insurance laws of the State, unless they be expressly designated therein; and that, as they are not so designated in section 6153, they are not subject to its provisions.

Section 6071 is prospective and applies only to-policies thereafter, and not to those theretofore, issued. Mosaic Templars of America v. Bean, 147 Ark. 24. See also, Wells v. Union C. L. Ins. Co., 81 Ark. 145.

Section 6071, C. & M. Digest, is a part of the act of March 28,1917 (Acts 1917, p. 2087); and it does not apply, therefore, to the benefit certificate in suit for the reason, as stated, that it was issued June 11, 1914. -

We think, however, that section 6153, C. & M. Digest, does not apply to the benefit certificate sued on, and that the limitations as to the time within which suit might be brought is valid. This is the effect of the decision in the case of Knights of Maccabees v. Anderson, 104 Ark. 417. In that case a judgment had been rendered, under the authority of section 6155, C. & M. Digest, (act March 29, 1905, Acts 1905, p. 307), for attorney’s fees in a suit on a benefit certificate issued by a fraternal beneficiary association. That section provides that, in all cases where loss occurs, and the insurance company liable therefor shall fail to pay the same within the time specified in the policy, after demand made therefor, such company shall be liable for an attorney’s fee upon judgment being recovered on the policy. Construing that section in the case of Knights of Maccabees v. Anderson, supra, the court said: “The appellant is a fraternal beneficiary association, and was doing business in pursuance of sections 4351 et seq. of Kirby’s Digest. The act of 1905 imposing damages and attorney’s fees upon insurance companies under certain conditions only applies to fire, life, health and accident insurance companies; and the question is, whether a fraternal beneficiary association issuing certificates of insurance upon the lives of its members is an insurance company within the terms of said act. It has been held that this act is highly penal, and does not apply to any loss or company not therein expressly named. * * * By the act of the General Assembly of Arkansas, approved May 8,1899, it is provided in reference to fraternal beneficiary orders of the character of appellant, that ‘such orders, societies or associations shall be governed by this act, and shall be exempt from the provisions of all insurance laws of this State, and no law hereafter passed shall apply to said societies, orders or associations unless it be expressly designated therein.’ Kirby’s Digest, sec. 4352. * * * A benefit society, such as appellant’s order, has a dual nature; while it is a business organization, it is also a social organization or club of congenial associates. In the majority of the States such societies are exempted from the operation of laws applicable to stock insurance companies. The Legislature enacting the statue of 1905 knew of the provision of the prior statute exempting these societies and orders from the provisions of laws relating to stock insurance companies. By failing to expressly name such societies, orders or associations in the act of 1905, we are of the opinion that it was the intention of the Legislature not to make said act applicable to them. See also Cooley’s Briefs on the Law of Ins., 3886; Supreme Council American Legion of Honor v. Larmour, 81 Tex. 71.”

The portion of section 4352, Kirby’s Digest, quoted above, is substantially copied into the act of March 28, 1917, supra, as section four of that act, and is found in Crawford & Moses’ Digest as section 6071.

In the case of Knights of Maccabees v. Anderson, supra, this court followed the decision of the Supreme Court of Texas in construing section 6155, C. & M. Digest, as the statute was borrowed from Texas; but it appears from the language quoted that this was but an addittional reason for the construction given the statute, as the same construction was placed upon it by this court upon a consideration of our own legislation on the subject.

Sections 6155 and 6153, C. & M. Digest, apply only to insurance companies. The sections are alike in that respect, and as the Anderson case, supra, held that fraternal benefit societies are not insurance companies within the meaning of section 6155, it must be held that they are not insurance companies within the meaning of section 6153.

If section 6153 does not apply, then the limitation as to the time within which suit must be brought contained in the benefit certificate is valid and must be given effect. McCulloch v. Mutual Reserve Fund Life Assn., 78 Ark. 32. The court below, therefore, properly held that the action could not be maintained, and the judgment is affirmed.


text:
    State v. School District No. 16.
    Opinion delivered June 5, 1922.
    1. Mandamus — conclusiveness of court’s finding. — In mandamus against a school hoard to permit relator’s children to attend a white school from which the hoard had excluded them as being negroes, a finding that they had negro blood, being supported by substantial evidence will not be disturbed on appeal.

      2. Schools and school districts — authority op directors. — The .directors of a school district have authority to determine whether or not the different children in the district are white or colored, and the duty of providing a school for each class and assigning-substantial evidence, will not be disturbed on appeal.
    3. Mandamus — action op school directors. — The action of school directors in determining whether a child in the district is white or colored, and assessing it to the approporiate school, is not subject to mandamus unless the directors are shown to have acted arbitrarily.
    4. Schools and school districts — action op school directors.— Under Crawford & Moses’ Dig., § 8915, providing for segregation of white and negro children into separate schools, the directors of a school district are not required to have a formal investigation or proceeding to determine their action in excluding negro children from a school for white children, it being immaterial how they received the information, provided they act reasonably on information before them.
    5. Schools and school districts. — “colored” defined. — Under Crawford & Moses’ Dig., 8915, providing for separate schools for white and colored children, the word “colored” means any person having any trace of negro blood, whether visible or not.
    Appeal from Montgomery Circuit Court; Scott Wood, Judge;
    affirmed.

      R. G. Davies, for appellant.
    The term negro is not defined in the statute referring to separation of schools. The only definitions we have are contained in secs. 996 and 2603 C. & M. Digest, the former relating to separation of negroes and whites in passenger coaches, the latter being an act to prevent and punish concubinage. The first definition is more suited to the present circumstances, as being more nearly alike. ■There a negro was described as one in whom there is a visible and distinct admixture of African blood. The court specifically found that there was no such visible admixture here. Holdings of other courts on the question are “so long as the negro blood is traceable.” 31 L. E. A. (N. S.) 1911; 2 Hill 614; 125 La. 300. A distinct admixture 2 Hill 614; 134 S. W. 1151; 9 Ohio 665; 14 Mich. 414; 29 Conn. 408. See also our own holding as to “all those who, as classes, were apparently white and likely to be so regarded by men generally” in 19 Ark. 121, -as a test of the matter. See also 24 L. EL A. (N. S.) 447.

      Gibson Witt and Earl Witt, for appellee.
    A negro is a person who has any negro blood, whatever, in his veins. Sec. 2603, C. & M. Digest. Using this as the test the children of appellant were properly excluded from the white schools.
   Humphreys, J.

Appellant, in his own behalf and as father and next friend of his three children, instituted an action for mandamus in the Montgomery Circuit Court to compel appellees, directors of School District No. 16 in said county, to permit his children to attend the school provided for white children in said district. It was alleged in the petition that the relator and his children are members of the white or Caucasian race, and that his wife, the mother of said children, is also with a trace of Cherokee Indian blood in her veins; that said board excluded the children from attendance upon the white school on the ground that they had negro blood in their veins. The case was submitted on the issue tendered by the complaint, and the testimony adduced by each party, which resulted in a finding that the evidence tended to show a trace of negro blood in said children; and a declaration of law that, for this reason, the school directors had authority to exclude said children from attendance upon the white school in the district, the exercise of which could not be controlled by mandamus, it not appearing that they arbitrarily exercised such power.

Appellant’s first insistance for reversal is, that there was no substantial evidence in the record to support the court’s finding of fact. A large number of witnesses testified pro and con in the 'case and, should an attempt be made to set out the testimony of each, it would extend this opinion to great length. Suffice it to say that the witnesses introduced in behalf of the appellant testified, in substance, that the children and their ancestors belonged to the white race; that Ophelia James, the grandmother of the children, and her reputed mother, Maria G-ocio (nee Chairs) had a small strain of Cherokee Indian blood in their veins, but no African or negro blood; that there was some doubt as to whether Ophelia James was a daughter or an adopted child of Maria Grocio; and that the witnesses on behalf of appellee testified that said children belonged to the negro or African race; that Ophelia James, their grandmother, and Maria Grocio, their great grandmother, were negro women. In view of this latter testimony, it cannot be said there was no substantial evidence tending to show a trace of negro blood in the veins of said children.

Applicant’s next insistence for reversal is that the court erred in its third and fourth declarations of law which are as follows:

“The directors are given the right and authority to determine whether or not the children in their district are white, or whether or not they have negro blood in them, and it is their duty to assign them to the proper school and to provide a school for each class of children without discrimination. ’ ’
“The action of the directors cannot be controlled by mandamus because the evidence fails to show that they acted arbitrarily and without, evidence to support their action in determining • that petitioner’s children have negro blood.”

Educational interests and school affairs, in each school district, in this State are placed by statute' under the control and management of the school directors and they are required by law to maintain separate schools for white and colored children and youth. Sections 1915 and 1916, Crawford & Moses’ Digest. In order to' effectively exercise this authority, a broad discretion must be accorded them. In defining the authority conferred upon the board, this court took occasion to say in the' case of Maddox v. Neal, 45 Ark. 121, that, while their authority is not without limit, yet ‘ a wide range of discretion is vested in these boards by the statute in the matter of the government and details of conducting the common schools.” Courts will not interfere in matters of detail and government of schools unless the officers refuse to perform a clear, plain duty; or unless they unreasonably and arbitrarily exercise the discretionary authority conferred upon them. We think the correct rule was laid down in the case of Watson v. Cambridge, 157 Mass. 561. It was said by Mr. Justice Knowlton, in rendering the opinion in that case, that “under the law the school committee has the general charge and superintendence of all the public schools in the town. The management of the schools involves many details, and it is important that a board of public officers, dealing with these details and having jurisdiction to regulate the internal affairs of the schools, should not be interfered with, or have their conduct called in question before any other tribunal, so long as they act in good faith within their jurisdiction.” Appellant insists, however, that the board in the instant case acted in bad faith, or arbitrarily, and for that reason the court should have granted the writ of mandamus. Had the undisputed evidence in the instant case shown that the children were white, then it would have been unreasonable or arbitrary in the board to exclude them from attendance on the white school, but not so, when there was substantial evidence tending to show otherwise. Appellant’s other suggestion, that the board erred in excluding said children without a formal investigation or proceeding, is not sound. We find no- such requirement in the statute. It is immaterial how the board obtained its information, if they possessed knowledge or information which warranted their action as reasonable men. As there is testimony in the record tending to show a trace of African blood in the children, we think the court’s third and fourth declarations of law are correct.

Appellant contends that the word “colored,” as used in the statute pertaining to the maintenance of separate schools for white and African races, means a visible admixture of African blood. The court, in the instant case, made the following special finding of fact: “Petitioner’s children in appearance, show no sign of negro blood, and, judged from their appearance alone, would pass for persons of pure Caucasian blood.” Based upon this finding of fact, it is insisted that the court should have compelled the school directors to admit the children to the school, maintained for white children in the district. Section 8915 of Crawford & Moses’ Digest, in relation to the maintenance of separate schools for whites and blacks, is as follows: “The said board shall make provisions for establishing separate schools for white and colored children and youth, and shall adopt such other measures as they may judge expedient for carrying the free school system into effectual and uniform operation throughout the State, and providing as nearly as possible for the education of every youth.” The purpose and intent of the statute was to prevent social equality or intermingling of the white and African races, thereby maintaining harmony and peace in the schools. As much confusion and disorder would result from admitting children in the white schools who have a trace of negro in them, though not disclosed by their appearance, as from admitting children who possess a visible and distinct admixture of African blood. We think the interpretation placed upon the statute by the court is correct. The language is broad, and has no relation to the degree in blood.

No error appearing, the judgment is affirmed.


text:
    Goodwin v. Plant.
    Opinion delivered June 5, 1922.
    1. Appeal and error — conclusiveness of verdict. — In trespass for cutting and removing timber, verdict and judgment for defendant will not be disturbed where the evidence was conflicting.
    2. Trespass — question for jury. — In trespass for cutting and removing timber, whether any of the timber taken from plaintiff’s land was cut by defendant, held, under conflicting evidence, to raise an issue for the jury.
    3. Trespass — recovery of one-half of value of line trees. — Plaintiff was not entitled to recover one-half of the value of line trees cut by an adjacent landowner, where the number and value thereof was not proved, and where the action was for trespass instead of for an accounting between cotenants.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Brundidge & Neelly, for appellant.
    There is no substantial evidence to sustain the judgment, and the same should be reversed under the rule laid down in 112 Ark. 450.
    Appellee was liable to appellant in any event for one-half the value of the line trees which he admits he cut. 100 Ark. 329; 93 Pac. 383.

      John E. Miller and G. E. Yingling, for appellee.
    This court is not a trier of facts in law cases, and, there being legally susfficient evidence to 'sustain the judgment, the same will not be set aside. 130 Ark. 465; 142 Ark. 159; 142 Ark. 358; 142 Ark. 378; 145 Ark. 269; 148 Ark. 209; 123 Ark. 428.
   Humphreys, J.

Appellant instituted suit in trespass against appellee, in the White County Circuit Court, to recover three times the value of timber alleged to have been unlawfully cut and appropriated by appellee on certain lands in township 7, range 4 west, in said county, belonging to appellant.

Appellee filed an answer denying the material allegations of the complaint.

The cause was submitted upon the pleadings, the testimony of the several witnesses introduced in behalf of the respective parties, and instructions of the court, which resulted in a verdict and judgment against appellant, from which is this appeal.

The only contention made by appellant for reversal is that the evidence was insufficient to support the verdict and judgment. The rule on appeal, as frequently announced by this court, is that verdicts returned and judgments rendered in courts of law will not be reversed if there is any substantial evidence to support them. Leach v. Smith, 130 Ark. 465; Hines v. Rice, 142 Ark. 159. We have carefully read the evidence with a view to ascertaining whether there is substantial evidence tending to show that appellee did not cut and appropriate timber growing upon appellant’s land. Appellant introduced evidence tending1 to show that appellee, who owned adjoining lands to his in sections 19 and 23, while cutting his own timber, crossed the division lines, and cut timber on appellant’s lands.

Two of appellant’s witnesses, I. N. Lake and L. A. Smith, admitted his partner had cut some of appellant’s timber, and agreed to adjust and settle the matter. In contradiction of this evidence appellee introduced three witnesses besides himself.

One of the witnesses, ft. H. Pietz, supervised the cutting of appellee’s timber in section 23. He testified that he went around the lines, already plain, and as a matter of precaution blazed them anew, to prevent his crew from getting over on adjoining lands; that he was on the job every day until completed, and knew that no one working for appellee cut timber on appellant’s land. Another witness, Carl Steel, who assisted in cutting and hauling appellee’s timber in section 23, testified that the lines around appellee’s land were plainly blazed and that the crew did not cross the lines and cut any timber, on appellant’s land.

The third witness, Ross Reynolds, who owned the timber jointly with appellee in section 19, testified that he supervised the cutting of the timber in that section during the time they owned it jointly; that, before they began cutting, the division lines were established, and that they did not cross the lines and cut any timber on appellant’s adjoining land; that later he and appellee sold their timber to Herbert Plant and Bill Knight, and after the sale had nothing to do with cutting and removing the timber.

Appellee testified that no timber was cut by his crews upon appellant’s land; that the corners and division, lines were plainly marked so that his men. would not trespass upon adjoining lands; that he never admitted to I, N. Lake in the presence of L. A. Smith that his partner had cut any of appellant’s timber; that I. N. Lake claimed he had cut timber on appellant’s land and demanded pay for it; that he offered to go with Lake and investigate the matter, agreeing, if the investigation showed that his men had gotten over the lines and cut any of appellant’s timber, to pay for same; that Lake would never go with him; that thereafter he made an investigation himself and found a few line trees cut but none cut beyond the division lines between him and appellant, except some which had been cut long before his men began cutting and removing timber in said sections.

We think the testimony was in conflict upon the issue involved, and therefore presented a question for determination by the jury. Appellant’s final argument, that he should have recovered in any event for one-half the value of the line trees cut and removed, is not sound. In the first place, the number and value of them was not proved. In the next place, this is a suit in trespass and not for an accounting between cotenants.

No error appearing, the judgment is affirmed.


text:
    Independence County v. Wright.
    Opinion delivered June 12, 1922.
    Taxation — pees of tax collector. — Under a special act (Acts-1917, No. 48), the tax collector of Independence County is entitled to “receive for his compensation one and one-fourth per cent, of all moneys collected by him as such collector.” Under the general act (Crawford & Moses’ Dig., § 10071), tax collectors are entitled to receive a larger commission on money collected by him. The State Auditor settled with the. tax collector on the basis of the general act, instead of the special act, thereby leaving in his hands a sum as commission on the State taxes to which he was not entitled under the special act. Held that the county was not entitled to-such surplus; Const. Art. 16, § 11, providing that “no moneys arising from a tax levied for one purpose shall be used for any other purpose.”

      Appeal from Independence Circuit Court; Dene H. Coleman, Judge;
    affirmed.

      I. J. Matheny, for appellant.

      Ernest Neill, for appellee.
   Wood, J.

This cause was, by consent, tried before the court below upon the following agreed statement of facts: “O. O. Wright is the tax collector of Independence County, and duly made settlement with the county court for all the county taxes collected by him for the year 1920, deducting his commissions thereon as provided by Special Act No. 48 of the General Assembly of 1917, which settlement, in so far as the county taxes are concerned, was duly approved by said county court; that, as to the taxes collected for the benefit of the State of Arkansas for the said year, said collector tendered his settlement to the 'State Auditor, after having dedusted his commissions as provided by said Special Act No. 48, after his entire settlement had been approved by the county court, but that the same was by the State Auditor rejected and said collector required or permitted to settle with the State, in so far as his commission was concerned, under the provisions of section 10071 of Crawford & Moses’ Digest, the result of which was to leave in the hands of said collector the sum of $521.61, the same being in excess of commissions allowed said collector under the provisions of see. 10071 of Crawford & Moses’ Digest on funds derived wholly from levies of taxes made for State purposes, over and above the commissions he would have received had the same been computed according to the provisions of said special act No. 48, the said State Auditor having on the part of the State disclaimed said sum of $521.61. It being further agreed that the only issue involved in this action is whether the sum of $521.61 is the property of Independence County and should be by the collector paid into the county treasury as directed by the order of said county court appealed from herein.”

Upon the above agreed statement of facts the trial court found the facts in favor of O. O. Wright, the collector. The trial court declared the law to be that, in view of the fact that said sum of $521.61 was derived wholly from a fund created by taxes levied for State purposes, the county of Independence is entitled to no portion thereof. Upon the above finding of fact .and declaration of law the court rendered a judgment dismissing the action of the county against the collector and. in his favor for costs, from which is this appeal.

Act No. 44 of the Acts of 1893 created the office of tax collector of Independence County and provided that he should ‘ receive for his salary for collecting the taxes of Independence County, Arkansas, a sum not to exceed. $1,000 per annum, and out of such sum shall pay his deputies and assistants.” The act further provided that the collector ‘‘ should make a settlement with the county court by paying in all amounts in excess of the amounts of salary due them to that date (date of settlement) into the county treasury.” See Independence County v. Young, 66 Ark. 30.

The above provision of the act of 1893 and the amendments thereto requiring the collector to pay into the county treasury all amounts in excess of fees or commissions due him was expressly repealed by act No. 48 of the Acts of 1917, page 220. The latter act provides that the tax collector of Independence County “ shall receive for his compensation one and one-fourth per cent, of all moneys collected by him as such 'collector, and out of such sum shall pay his deputies and assistants.” But there is no provision in the latter act, as there was in the act of 1893, supra, requiring the collector to pay the amounts in excess of his salary into the county treasury. On the contrary, as we have said, this requirement of the act of 1893 is expressly repealed by the latter act.

The agreed statement of facts shows that the amount of $521.61 in the hands of the collector was derived wholly from the collection of taxes for State purposes. The agreed statement further shows that the collector tendered a settlement to the State Auditor after deducting Ms commissions as provided by act No. 48, after Ms settlement bad been approved by tbe county court, and that tbe Auditor rejected sucb settlement and permitted tbe collector to settle with tbe State, in so far as bis commissions were concerned, under tbe provision of sec. 10071 of Crawford & Moses’ Digest.

Tbe issue here is not whether tbe Auditor should have allowed tbe collector fees under tbe special act of 1917' instead of under § 10071 C. & M. Digest, supra, for collecting State revenues. Tbe only issue here is whether or not tbe sum of $521.61, tbe same being a portion of tbe revenues in tbe bands of tbe collector derived wholly from tbe levy of taxes for State purposes, should be paid by him into tbe county treasury. It suffices to say that there is no statute requiring him to do so.

The question as to whether tbe above sum in tbe bands of tbe collector is tbe property of tbe collector which be should receive as a part of bis commission for collecting the State revenues, or whether it is the property of the State representing an amount in excess of the commission allowed tbe collector under tbe law, is not before us, and hence is not denied. It is clear, under tbe agreed statement, that the money is not tbe property of Independence County. Art. 16, sec. 11, Const. See Gray v. Matheny, 66 Art. 36. Hence let it suffice to say that tbe court was correct in bolding that tbe collector, under tbe agreed statement of facts, was not required to pay tbe above sum into tbe county treasury of Independence County. Tbe judgment is therefore affirmed.