author: Butler, J.

text:
    Meriwether Sand & Gravel Company v. State ex rel. Attorney General.
    Opinion delivered March 3, 1930.

      Ned Stewart, Searcy S Searcy and McKay S Smith, for appellant.

      Hal L. Norwood, Attorney General, Walter L. Pope, Assistant, B. T. Boulware and Guy Amsler, for appellee.
   Butler, J.

The appellant, some years ago, secured leases on lands underlaid with gravel situated about four or four and a half miles from Bodcaw creek in Lafayette County, Arkansas. The water’s from the said lands, in their natural flow by means of depressions, sloughs and branches, entered said creek at a point above the lands of the appellees, F. M. Shewmake and E. D. Brown. The appellant erected on its leasehold equipment for the mining of the gravel and for washing a part of it so as to separate the sand and other foreign matter therein from the gravel. The gravel mined was sold by the appellant to. various persons, a considerable quantity being sold to the Highway Department of the State of Arkansas. A part of the gravel was sold in its natural state as when taken from the pits, some was sold after having been washed, and the sand extracted was also marketed for various purposes. As a part of appellant’s equipment, railway tracks were constructed for the purpose of bringing the gravel in its natural state to its washing plant and delivering it at points where it might be transported for use in the building of highways, etc.: A well was sunk from which water was procured. The total amount of money expended by the appellant in erecting and equipping its plant was a large sum. In washing the gravel the detritus held in suspension by the water flowed across the low-lying ground and finally was discharged into Bodcaw creek.

On the 13th day of July, 1929, the State, on relation of the Attorney General (F. M. Shewmake and E. D. Brown joining with it), filed a bill in equity asking that the appellant be permanently enjoined from discharging the washings from its gravel beds into Bodcaw creek— the State on the ground that said creek was a stream in which fish bred and were accustomed to frequent, and that same had been used as a public fishing and outing stream for many years by the citizens of Arkansas, and that the operation of appellant’s equipment had rendered the stream unfit for a spawning and breeding ground, and that the fish had been destroyed and driven from its waters; and Shewmake and Brown .on the ground that they were owners of a part of the stream, its pools and lakes, and the land adjoining the same for a considerable distance, and that the deposits from the washing of gravel were filling the stream, that silt and other material were being deposited in increasing* quantities and over increasing areas each season over their meadows and farms adjacent to the stream, and that the waters of the stream had been rendered unfit for domestic use or for the use of their horses and other domestic animals, and that their fishing rights in said waters were .valuable and had been destroyed.

The appellant filed its motion to strike the cause of action alleged by Shewmake and Brown because, as it said, they were improperly joined with the plaintiff, the State, and also filed a demurrer, which motion and complaint being overruled, defendant answered denying the allegations of the complaint and denying that it had violated any public or private right or encroached upon the property of plaintiffs by doing or omitting to do any act by which commission or omission an injury resulted.

The court heard the testimony on the evidence, which was sharply conflicting, and found the issues in favor of the plaintiffs and rendered a decree holding that the operation of appellant’s plant caused 11 slush, mud and silt to be discharged through natural drainage into the waters of Bodeaw creek which follows through and across the lands belonging* to the plaintiffs, Shewmake aud Brown, and that by reason of the same the waters of the stream were rendered unfit for domestic use for the watering of their animals and for other purposes, and that such discharge constituted a continuing private and public nuisance, and that appellant ought and should be restrained and enjoined from discharging any further quantities of silt, etc., into said creek or into any stream or drainage that would convey the same into the creek.”

For reversal of the decree as to the appellees, Shew-make and Brown, the appellant contends that their several causes of action are barred by the statute of limitation, and for further reason, that they have been guilty* of such laches as would bar the relief sought. Appellant further contends that the State is not entitled to the relief granted; that the damages are shown to be slight, while the relief sought would work great damage to the appellant and great inconvenience and loss to the public; that the relief ought not to have been granted because the operation of appellant’s plant was of importance to the State, and that a dangerous precedent would be set by the upholding of the judgment of the court below.

The testimony on the part of the appellant tended to show that the appellees, Shewmake and Brown, were the owners of the lands alleged to have been damaged, and of the stream at and before the time of the erection of the appellant’s plant; that they knew of the preparations made by the appellant and of the erection by it of its various equipment, and that it was laying tram-roads at great expense, making purchases of gravel in situ from the various landowners, and entering into extensive contracts with the State Highway Department and others for furnishing both washed and unwashed gravel; that its plant was erected and operations begun in the year 1925, more than three or four years before the date of the filing of the complaint in this case, and that shortly after the erection the detritus from the washing plant began to make its way down the lower lying lands and branches, and soon began to discolor the waters of the creek, and to load it -with quantities of various kinds of earth held in suspension, which gradually, as these substances settled, began to fill the stream and to deposit sediment on adjacent lands. These facts, it is argued, bring the case within the rule announced in Brown v. Arkansas Central Power Co., 177 Ark. 1064, and that the appellees’ cause of action is barred because of limitation. To this conclusion we cannot assent. In order for the rule announced in the Brown case, supra, to apply, the erection of the plant and its operation must have been of such nature that the consequences resulting therefrom could have been known and the damage ascertained and fully compensated at the time the injury first occurred. It is shown by the testimony that the injury to the stream was progressive in its nature, being greater or less with the recurring seasons. The -deposits of mud in the flats were precipitated in greater quantities in times of flood than under normal weather conditions. Therefore, it cannot be said that the full extent of the injury could have been foreseen or the damage ascertained at the time of the beginning of the operations of appellant’s plant.

In Brown v. Arkansas Central Power Co., supra, it is said: “If it was known -the damage was probable, or even though some damage was certain, the nature and extent of that damage could not be reasonably known and fairly estimated, but "would be speculative and conjectural,” then the rule announced by the court a-s applicable to the facts of that case would not apply. Bodcaw creek is a well-defined stream, and the owners of lands across which it runs are entitled to see it maintained in its natural state, and this right is a continuing one, and, by virtue of § 3663 of 0. & M. Digest, such right may be exercised by the landowner in removing from the stream' anything which tends to obstruct it in its natural flow and to have a cause of action against any one whose acts might have occasioned the injury. Having a continuing right, it follows that the appellees would not be barred by the statute of limitations. Beck v. State, 179 Ark. 102-110. We are of the opinion that the appellees, Shewmake and Brown, were not guilty of such laches as would prevent them from invoking the aid of a court of equity. “Laches signifies not only an undue lapse of time, but also negligence in failing to act more promptly. ' It is therefore of the essence of laches that the party whose- delay is in question shall have been blamable therefor in the contemplation of equity, ¿nd accordingly it must .appear that he had knowledge, actual or imputable, of the facts, which should have prompted a choice either diligently to seek equitable- relief or thereafter to be content with such remedies as-a court of law might afford; * * *” 10 ft. C. L.-, §153-. The knowledge necessary .to .be had before laches will be imputed is not only the knowledge of the commission of an act, but of the extent and effect of the consequences which would follow. In this case it could not reasonably be said that the riparian owners should have foreseen when the gravel plant of the appellant was erected in 1925 that the consequences of its operation would destroy the beauty and utility of the stream in question which watered their grounds and afforded, recreation for them and their friends. It is shown that a considerable quantity of gravel — indeed, the greater part — was sold and carried away in its natural state, and washing operations did not begin until some time after the erection of the plant. Under the facts in this case and the peculiar nature o’f the appellant’s operations it cannot be said that equity imposed upon the appellees, 'Shewmake and Brown, the duty to make complaint of anticipated evil, or that a court of conscience would bar them because of their silence. When the doctrine of laches is invoked, each case must be governed by its own peculiar facts. In this case the chancellor has found the facts against the contention of the appellant in this regard, and we cannot say that this finding is against the preponderance of the testimony.

It is next contended by the appellant that the State is not entitled to the relief sought because the injury to the stream in question and to the fish therein is slight, and the advantage to the public by the operation of its plant is great. It is also contended that great damage would be inflicted upon the appellant, and great inconvenience incurred by the public if the judgment of the lower court should be affirmed. We will consider these several contentions together.

As to what Bodcaw creek was before the appellant began its operations in 1925 or 1926 there can be little doubt; it took its rise some miles above the lands of Shew-make and Brown, and from the peculiar nature of the ground over which it flowed, the waters, from time to time, would disappear in the body of the stream to arise again a little further on, making disconnected pools, but, as it continued on its way gathering volume from its affluents, and from the springs along its shore, when it reached the lands of the appellees, it had become an ever-running brook rippling across the shallows and deepening into the pools, which in places reached the proportions of small lakes. This stream was, beyond the memory of the oldest inhabitant, the home of numerous fish of various species natural to the waters of southern Arkansas — several varieties of perch, the famed rook bass known locally as the goggle-eyed perch, and indeed, all other varieties of fish common to our streams. The creek meandered through the lands of the appellees and on below for many miles, taking its winding course into the State of Louisiana, and in all its length it was the resort of the inhabitants either for fishing or for disporting themselves in its waters. In short, as stated by one of the witnesses, “It was a very pleasant stream.”

The chancellor has found, and we think not against the preponderance of the evidence, that the operation of the appellant’s gravel plant has caused a marked change in the character of the stream in question and rendered it unfit for the propagation or habitat of fish. The water is no longer limpid and pure, but muddy and turbid, to the extent that fish are unable to live there, and those that reach this stream from below must come to the surface to obtain necessary oxygen, and after a time sink into the water only to die and be cast upon the shore. The pools and lakes in which the urchins and grown folks were wont to bathe are now so discolored and befouled by the foreign matter brought from the gravel plant above and held in suspension in the water, that they are no longer clean and clear, but discolor and coat the bodies of bathers with an unpleasant slime. Consequently, bathing is no longer indulged in. The fish have abandoned the waters and the fishermen can only make an occasional catch, where once fish abounded in plenty.

These facts, we think, call for the exercise of, the regulatory power of the State so as to protect and restore this stream to its original state. Such power has been recognized from earliest times to inhere in the State. As has been stated in 11 R. C. L. 1047, cited in brief of appellee, “The regulatory power of a State extends not only to the taking of its fish, but also over the waters inhabited by the fish; its care of the fish would be of no avail if it had no power to protect the waters from pollution; it is immaterial whether the water is navigable or not; to the extent that streams are common passageways for fish to and from their breeding” and feeding grounds, they are public waters and subject to governmental regulations. Thus, for the preservation of fish, the casting of sawdust or other mill refuse into streams may be forbidden. Moreover, the placing of mill refuse in a stream inhabited by fish may be considered a nuisance, and the Attorney General of a State, without the information of a private relator, may procure an injunction against the continuance of such a pollution of the stream. When the unrestrained* right to run a sawmill on the bank of a stream conflicts with the right of the public to have fish live and increase in the water, the right of the mill proprietor must give way to the right of the public; nor can the owner of such a mill, by lapse of time, acquire a prescriptive right to discharge sawdust in the stream, so as to preclude the State from forbidding the practice. So the operator of a coal mine may be forbidden to drain sulphur or mine water into a stream though the stream be the natural receptacle of such drainage, and it is not practicable to drain the mine otherwise.”

Counsel for the appellant, in their very able brief, insist that this rule would not apply to the operations of the establishment for the recovery of natural resources at the place wdiere they are found, because the locality wdiere such resource exists determines the place of the operation, and that where a lawful business is properly operated, and is engaged in the recovery of natural resources, the courts will not enjoin the conduct of that business. In support of this contention, the appellant cites the case of Pa. Coal Co. v. Sanderson, 133 Pa. St. 126, 6 Atl. 453, 57 Am. Rep. 445, and the case of Barnard v. Shirley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 L. R. A. 568. These two cases may be distinguished from the case at bar in this particular; in Pennsylvania Coal Co. v. Sanderson, supra, the rights of the lower riparian owners to the use of the waters of a stream for domestic purposes was held to be inferior to the transaction of the business of mining coal where the operation of a mine in the ordinary and usual way polluted the stream b}^ reason of drainage along its natural courses from the lands on which the mine was situate to the stream, on the theory that the rights of a private individual must give way to the interests of the community. In Barnard v. Shirley, supra, an owner of an artesian well upon his own land, who used the water for his patients in a sanitarium upon his own premises was not liable to injunction on the part of his neighbors for allowing the water to flow in its natural course upon their lands. In both of these bases it was the right of the individual that was denied, while in the instant case it is the right of the State which is being asserted — it is the community that is seeking relief against the operations of an individual injurious to such community.

As to the appellees, Shewmake and Brown, these cases are in conflict with the general rule and the decided weight of authority. See case note, 27 R. C. L. 1214. The general rule as to the rights of riparian owners may be thus stated: Every such proprietor is entitled to the usual flow of a stream in its natural channel over his land, undiminished in quantity and unimpaired in quality, subject to the reasonable use by upper proprietors, and with the right to make any reasonable use of the water necessary for his convenience or pleasure, including in non-navigable waters, the exclusive privilege of taking fish from the stream. Riparian rights inhere in the owner of the soil and are part and parcel of the land itself, and are vested and valuable rights which no more may be destroyed or impaired than any other part of a freehold. 40 Cyc., p. 593 et seq.; Miss. Mills Co. v. Smith, 69 Miss. 299, 11 So. 26, 30 Am. St. Rep. 546; McLaughlin v. Hope, 107 Ark. 442, 155 S. W. 510, 47 L. R. A. (N. S.) 137; El Dorado v. Scruggs, 113 Ark. 239, 168 S. W. 846; Taylor v. Steadman, 143 Ark. 486, 220 S. W. 821, and cases cited in last case.

It is insisted, however, that the appellees have an adequate remedy at law by an action for damages. In this contention, the appellant errs for the reason that the injury, as shown by the testimony which was accepted by the chancellor, is a continuing and progressive one, and to remit them to their remedy at law would result in unnecessary expense and inconvenience to the litig’ants and lead to a multiplicity of suits. ‘ ‘ The remedy at law, to be adequate and complete, and attain the full end and justice of the case, must reach the whole mischief, and secure the whole right of the party in a perfect manner, in prae-senti and in futuro." Ex parte Conway, 4 Ark. 338. See also Lawton v. Herrick, 83 Conn. 417, 76 Atl. 986; Peterson v. Santa Rosa, 119 Cal. 387, 51 Pac. 557. But the appellant says the injury shown is slight and the resulting damage to it, by reason of the injunction, would be great. In this contention, appellant is concluded by the finding of the court below that the waters of Bodcaw creek have been so polluted as to destroy the fish therein and to render it unfit for the use or pleasure of the riparian proprietors. It would serve no useful purpose to detail the testimony of the several witnesses relative to this question. As before stated, it was conflicting, and we cannot say the chancellor’s finding was against its preponderance. Whether the damage to the appellees was great or slight depends largely upon the point of view. In the eyes of those who burrow into the earth for inert and dull ores, whose value lies only in use, it may so appear; but value lies also in something more, and that is valuable, whatever it may be, in proportion as it tends to promote not only a utilitarian purpose, but also contentment and rational pleasure. Certainly, a trout stream would add considerable value to a farm — the broolc alone with its shining- shallows and its deep quiet pools would necessarily add much to the charm of any farmstead, and considerably enhance its market value. Living- water has always been deemed a valuable and desirable thing, and when that is sullied, as in this case, the injury is not slight, but substantial, and of which a court of equity will take cognizance and remedy by its injunctive power. Where the injury is a recurring one, and the damages sustained are of a substantial nature, equity will restrain its continuance by injunction. Gus Blass Co. v. Reinman, 102 Ark. 287, 143 S. W. 1087; Lawton v. Herrick, supra; Peterson v. Santa Rosa, supra. Neither is it an answer to the contention of the appellees that the business engaged in by the appellant is a lawful and useful one which is being conducted in a proper and customary manner, for the maxim, “So use that which is thine own as not to injure the rights of another,” applies regardless of the character of a business. This rule is founded on good morals and natural justice, and applies to conflicting rights of every description (Hitchman Coal Co. v. Mitchell, 245 U. S. 229, 38 S. Ct. 65, referred to with approval in Local Union, etc., v. Stathakis, 135 Ark. 86-93, 205 S. W. 450, 6 A. L. R. 894), among- which are the rights of the State and riparian proprietors to have the waters of streams maintained free from pollution. 11 R. C. L. 1047, ante, and Drake v. Lady Ensley Coal Co., 102 Ala. 501, 14 So. 749, 24 L. R. A. 64, 48 Am. St. Rep. 77, 24 L. R. A. 64.

The contention of the appellant that the decision of the lower court would result in destroying its business to its very great damage is not justified. It is true that some additional expense must be incurred by which the water flowing from appellant’s plant must be freed from its impurities so that it might reach Bodcaw creek clear and pure. While the appellant’s manager stated, if the prayer of appellees’ bill was granted his company would be forced to abandon its works and move away, in view of the magnitude of the plant and its remunerative character and the relatively small cost of the installation of settling basins, taking into consideration the amount already invested, we think the conclusion hardly justified. If the appellant should cease the operation of its plant, it would perhaps be caused more on account of the exhaustion of the gravel beds or the lack of purchasers for its output than on account of the additional investment of $10,500, which is shown to be about the amount required to install the settling basins in which the sediment from the operation of appellant’s plant might be deposited. We recognize the importance of business enterprises, and where such are established at the only place where it is practical to operate such businesses, and they are conducted in .the only practical manner, their right to operate will not be destroyed for trivial causes or for slight damage resulting to others. Where such interference would cause serious injury to them or loss to the community, a lawful business ought not to be destroyed or seriously inconvenienced except for the most serious cause. Durfee v. Thalheimer, 85 Ark. 544, 109 S. W. 519. But, as is said in the case of Strobel v. Kerr Salt Co., 164 N. Y. 303, 58 N. E. 142, 51 L. R. A. 687, 79 Am. St. Rep. 643, “While the courts will not overlook the needs* of important manufacturing interests, nor hamper them for trivial causes, they will not permit substantial injury to neighboring property with a small but long established business for the purpose of making a new and great industry flourish. They will not change the law relating to the ownership and use of property in order to accommodate a great business enterprise. According to. the old and. familiar' rule, every man must so use his own property as not to injure that of his neighbor; and the fact that he has invested much money and employs many men in carrying on a lawful and useful business upon-his own land does, not change the rule.” •

We cannot say that the facts developed in this case would lead to the conclusion that any great injury would result to the appellant, or any loss to the State, by reason of the requirement of the court that the appellant cease to operate its business to the injury of others. The appellant complains that “the affirmance of this case would say, not only to the appellant, but to the entire world, , that, notwithstanding Arkansas has wonderful natural resources, when you come into Arkansas and invest large sums o.f money for the purpose of developing these resources, you can be enjoined if in the course of your operations you damage any landowner, however slight, or if because of the natural drainage you necessarily permit water to flow into any branch or any creek, however small, or unimportant. The world will be told that any landowner so damaged will not be required to seek redress at law,'but that he may go into a court of equity and restrain the operations entirely. Such a policy, if adopted in this State, would be ruinous, and would retard the very progress of the age.” This conclusion by no means follows, nor is it the effect of the principles herein announced as applied to the testimony before the chancellor. Neither are the authorities cited by the appellant (except perhaps the cases of Barnard v. Shirley, 135 Ind. 547, 34 N. E. 600, 35 N. E. 117, 24 L. R. A. 568, and Robb v. Carnagie Bros. & Co., 145 Pa. St. 324, 22 Atl. 649, 14 L. R. A. 329, 27 Am. St. Rep. 694) in conflict with the principles announced. The rules herein stated are neither novel nor dangerous; they recognize the rights of private or corporate enterprise, but do not overlook the rights of the humble and less important citizens. The maxim, “Sic tuo utere,’-’ etc., must still be the rule of conduct. In a case where the facts were similar in their more important particulars to those of the instant case, a farm was injured from sediment cast upon it, and the waters of the stream flowing through it were polluted from the washing of iron ore, the court, in granting relief, said: “Under the provisions of the Constitution private property cannot be taken for public use or by corporations without just compensation being first made to the owner, except by his consent. The courts — and it was never intended to be otherwise understood — are not the ‘masons’ to chisel away vested rights of property of private individuals, however humble and obscure the owner, for the benefit of the public or great corporations. It is the pride of this Republic that no man can be deprived of his property without due process of law, and the poorest citizen can find redress for an unlawful injury caused by his wealthy neighbor by appealing to the courts of this country.” Drake v. Lady Ensley Coal Co., 102 Ala. 501, 14 So. 749, 751, 24 L. R. A. 64, 48 Am. St. Rep. 77.

We are of the opinion that the finding of the court below was not against the preponderance of the testimony, and, applying the principles of law hereinbefore stated to the facts as found by the chancellor, we concur in the judgment rendered, and it will be affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Farmers’ Bank of Greenwood v. Mackey & Gillen Coal Company.
    Opinion delivered March 3, 1930.

      A. M. Dobbs, for appellant.

      Warner & Warner, for appellee.
   Butler, J.

Mackey & Gillen Coal Company, appel-lee, sold eleven cars of coal of the value of $1,663.50 to one W. C. Candle who was engaged in the business of buying and selling' coal. Caudle did business with tbe Farmers’ Bank of Greenwood, appellant garnishee. On May 25, 1929, the purchase price for the coal aforesaid remaining unpaid, the appellee brought1 suit against Caudle, and garnished the Bank of Greenwood, alleging that the garnishee was indebted to the defendant Candle in the sum of $2,100, and that it had in its hands and possession goods, chattels, moneys, credits and effect's belonging to said defendant of said value, and propounded interrogatories seeking to elicit proof of these allegations.

"On the -13 th of June; the garnishee filed its answer denying that it was indebted to Caudle in any sum, except $2;90, 'Or'that it liad in its hands any" credits and effects belonging tó the' defendant except the sum named. A denial ‘to the answer was filed on July ly 1929, and on said-'day the cahse came on for trial which resulted in a verdict in favor of the plaintiff'against the defendant and garnishee for the sum sued for. The garnishee defended on the ground that, while on the date of the issuance of the garnishment it had in its hands, or before thé'return-day for its answer to' the garnishment, a sufficient sum to the credit of Caudle on its books to pay the judgment, this was not in reality the property of Caudle, but was held by the bank as a special fund to secure the payment of. certain indebtedness due by Caudle for. money advanced in., the following manner: that in January preceding it had an arrangement with Caudle by which it was to handle the invoices of coal bought by Caudle, and by him sold to other parties; that these invoices were pledged as collateral security to the bank, the bank advancing 85 per cent, to Caudle at the time of their delivery with the understanding, that when the invoices were paid 85 per cent, should be applied to the payment of the indebtedness then existing, and 15 per cent, should be placed in a special account to secure the money advanced.for invoices, the amount of which'had hot yet been collected.

On trial of the case the cashier of the hank testified as to the above state of facts and understanding, and stated further that on the 24th day of May there was the sum of $1,477.05 in the special account, and that since that date he had collected $367.58, making a dotal of $1,844.63; that on the 18th day of June he checked against this special account to pay the bank for., the amount of the debt owed on the invoices; that he drew this because he thought he had a right to do so; that on the .day that he testified in court, July' 1, 1929, Caudle was not indebted to-the bank in the .matter of the invoices, and that he had on hand in the bank.belonging to Caudle invoices of the face value of $1,807.61, and cash sufficient to malee a total.of $1,974.55, and that the bank was not entitled to such invoices or such cash. . .

. . ^..There was other testimony tending to show thafi-.-at the time the appellee was about to sell the coal to Caudle, its representative called on.the bank, and the cashier stated, in reference to paying for the coal,, that the bank ..would-pay-it when it collected the bills of lading, and -that Caudle would have $2,100 to his credit -if nothing ¡was lost on the invoices. The cashier of the bank was asked how many ,of the invoices of the eleven cars of coal had been p;aid for, and stated that he-could not tell .without his books. . Later, after having got- the books, he -still did mot say whether any of these inv.oices for the eleven .cars of coal had-been paid, or, if -so,, how many. .Therefore, we cannot-gather-from the •testimony whether the.bank ever collected any of the invoices of appellee or ■not, but this, in view of the -statement of the cashier as to the state of Caudle’s account on July 1,1929, we deem unimportant., ,, ■ .

The court'gave the-following instruction for the .-plaintiff--:-;-‘-If.-you..find that the time of the service of the g’arnish-inent herein, or thereafter, the Farmers’ Bank hack in its-possession or under its control any goods, chattels, moneys*-credits or-effects belonging to the. said -defendant, or if-the said -bank was indebted to the said defendant in any sum or amount, then you are instructed that plaintiffs would be entitled to recover- from said :bank for the amount thereof, if any, not to exceed the amount of the indebtedness due from defendant to the ■plaintiff. ’ ’

The court refused to instruct the jury at the request of the defendant as follows: “You are instructed that you should find against the garnishee in whatever sum the bank admits that it has in its possession belonging to W. C. Caudle, but it is not your duty to find against the Farmers’ Bank in any sum for the money that/W. C. Caudle has stipulated and agreed that the Farmers ’ Bank shall hold to protect itself against any loss or claim that may be made against W. C. Caudle for the reason that under the law the -bank would be entitled to hold whatever per cent, that was agreed to between the defendant Caudle and the bank, in order to protect the bank until all cars shipped under this agreement were finally paid for under the contract above mentioned.”

The giving- and refusing of the above instructions the appellant assigns as error. We do not think, under the facts in this case, that the appellant’s position is well taken, nor do we think the authorities cited by the appellant have any application. The only question before the jury was, did the.garnishee bank have in its possession at that time any credits or effects to which the defendant Caudle was entitled? This question was answered by the garnishee bank itself in the testimony of its cashier to the effect that there were invoices in its hands amounting to more than $1,800, and cash making the total sum about $1,900. In view of this testimony, we think the instruction given for the plaintiff was correct, and that -requested by the defendant properly refused.

It is argued by the appellant that the invoices in the bank were not money, and that the court might, by some order, have impounded them for the benefit of the ap-.pellee, and that it would be manifestly unjust to render a money judgment upon assigned invoices which may never be collected. The answer to this argument is that the statute has provided for just such a contingency. Section 4914 of C. & M. Digest provides that the garnishee may surrender the chattels, moneys, credits or effects in its hands belonging to the defendant to the plaintiff, and in the case of Patterson v. Harland, 12 Ark. 158-163, the court, referring to this statute which was then in effect, said: “The last section quoted, it will be perceived, gives the garnishee an election either to surrender or to retain the goods and effects, and in case he shall choose to make the surrender, he is thereby entitled to a release from all responsibility in relation thereto. It is very clear that he makes his election at his peril, and that, in case he shall fail to avail himself of his privilege to surrender on the return day of the writ, he is liable for the value of the property found in his possession belonging to the judgment debtor, at least to the extent of the judgment in case it shall amount to so much. ’ ’ It will be seen that on the return day of the writ the appellant had in its hands credits, effects and cash more than sufficient to pay appellee’s claim, and indeed, it has not been shown that such invoices were not worth their face value.

Finding no error, the judgment will be affirmed.


text:
    Bieatt v. Echols.
    Opinion delivered March 3, 1930.

      ■ Bnmdidge <& Neelly, for appellant.

      Bogle é Sharp, for appellee.
   Butler, J.

Dr. R. B. James of Cotton Plant, Arkansas, was the owner in his lifetime of a large estate, consisting- of lands and personal property, of the aggregate válüe of $200,000. He executed a will, and, having died in 1926, the will was duly probated in the probate court of the Southern District of Woodruff County, Arkansas. In this will the Bank of Cotton Plant & Trust Company was named as executor and trustee. The bank duly qualified as-such executor, and proceeded to administer the estate until the 17th day of June, 1927, when it failed and was taken over by the State Bank Commissioner. On the 19'th day of September, 1927, the chancery court of the Southern District of Woodruff County appointed D. H. Echols trustee in succession, who qualified and proceeded with the administration of the trust created by the terms of the will.

The will, after making a number of specific bequests, left the residue of the estate to the wife of the testator for life. By paragraph VI of the'will, after the death of the wife, all of the remainder of the estate of whatever kind was devised and bequeathed to the Bank of Cotton Plant & Trust Company, as trustee, for the uses thereafter set forth, and the testator, after naming the trustee, made the following provision: “I hereby direct'that the said trustee shall hold and manage said property for a period of twenty years, and that said trustee shall annually distribute all income derived from said property as follows: ■

• “It shall pay to the said Bank of Cotton Plant & Trust Company twenty per cent, of said income as payment for its services in administering this trust; second, to pay to the trustee of G-alloway College fifteen per cent, of the said income; third, to pay to the trustees of Hendrix College fifteen per cent, of said income; fourth, to pay to the trustees of the Methodist Episcopal Church South of Cotton Plant, Arkansas, ten per cent, of said income; fifth, to pay to the trustees of the Methodist Orphanage at Little Eock, Arkansas, ten per cent, of said income, and ten per cent, of said income shall be held by said trustee for the benefit of the poor people of the town of Cotton Plant, Arkansas, to be paid out and distributed by said trustee as it may deem best, and at such times as it may deem proper.
“I direct that twenty per cent, of said income shall be paid to John M. James during his life or until the termination of this trust, but, if the said John M. James should die before the termination of this trust, then in that event this payment shall cease, and the said twenty per cent, shall be distributed pro rata to the other beneficiaries named above in this paragraph.

Section YII of the will is as follows: “I direct that at the end of each year that the said trustee shall file with the chancery court for the Southern District of "Woodruff Count}7', State of Arkansas, a report showing in full all amounts received by it, and the amounts disbursed by it, with the proper vouchers therefor.

“After the end of said twenty years the said trustee shall file in said court a report in full showing a complete inventory of all property held by it as such trustee under this trust and the conditions of the same. And if it shall appear to said court that it would be for the best interest of the beneficiaries in this trust to terminate the same, iben the same may be done under the order and directions of said court, but if it shall appear to the court that it will be for the best interest to continue this trust, then the same may be done under a proper order of said court. When this trust is terminated and the property sold, I direct that the proceeds arising from the sale shall be distributed as follows: Forty per cent, of same shall be paid to the trustees of Calloway College, and forty per cent, shall be paid to the trustees of Hendrix College, and twenty per cent; shall be paid to the trustees of the Methodist Orphanage at Little Bock, Arkansas. ”

Section VI1.T of the will provided that: “If, at any time during the-life of the trust above provided for, it shall appear to the trustee that any property held by it under this trust is not profitable to hold, and that it would be for the best interest of the trust to sell the same, then the said trustee shall have the right and power to sell the same in such manner as «may «be deemed best. And said trustee shall have the right to sell the same and convey the legal title thereto, and do all things necessary to be done to complete the sale of said property.

“When any property held by such trustee shall be sold, as above provided, the said trustee shall make a report of such sale to the chancery court above designated, and shall set forth the reason for said sale.”

Section IX of the will is as follows: “I request and desire that the Bank of Cotton Plant & Trust Company shall accept this trust and execute the same, but if the said Bank of Cotton Plant & Trust Company shall fail or refuse to accept and execute the same, or if, after having-accepted the same,”it should resign, it shall make a report to the said chancery court, and the said court shall appoint a trustee to carry out the purpose of this trust.

“I hereby nominate and request the Bank of Cotton Plant & Trust Company, of Cotton Plant, Arkansas, to act as the executor of this, my last will and testament. ’ ’

After the failure of the bank, the probate court of Woodruff County appointed D. H. Bieatt administrator of the estate on the............day of January, 1928. This case involves the power of the chancery court to restrain the administrator de bonis non from interfering with the trustee in the management of the estate. The chancery court of Woodruff County, on complaint of the trustee, rendered judgment enjoining the administrator from taking charge of any of the property belonging to said estate, or interfering with the trustee in the management of the same. . The 'case was tried on an agreed statement of facts which, as far as they are material to the question presented to this court, are as follows:

After reciting the execution of the will and the death of James, the partial administration of the estate'by the trustee and executor bank, its failure, the appointment of Echols trustee and successor, his giving bond, and that his appointment “was made by the chancery court over the objection of a majority both in number and interest of the legatees in said will,” the appointment on January 17, 1928, by the probate court of Woodruff County of Bieatt, administrator, his qualifying and giving bond, the filing of siiit by the trustee, and the issuance of a temporary injunction, the statement of facts continued as follows: “That assets of the said R. R. James estate, consisting not 'only of land, but of several thousand dollars of notes and accounts due said estate; that several thousand dollars of said notes and accounts, some of them secured and many of them unsecured, are still due and uncollected; that all of the claims probated against said estate at the time the trustee. D. H. Echols, took charge of same have been paid, but the trustee has paid several thousand dollars of indebtedness against said estate for claims not probated against said estate, the amount of payment made by him, together with the assets coming into his hands, are shown from his settlement filed with the chancery court on the 14th day of September, 1928, a copy of which is hereto attached as part hereof. That there are still claims against said estate outstanding and unpaid. That all claims now outstanding which are due and owing by the estate, and all claims which have been paid that were not probated are those which have arisen in the administration of the estate by the trustee or which have come into existence since the time for probating claims against the estate expired, and which are made a charge against the estale by law. That the trustee, D. H. Echols, at the time he was appointed trustee of said estate, owed said estate, as evidenced by his promissory note, in the sum of $11,888; that said trustee was co-indorser with E. E. James on the following notes probated, and held against the estate of the said E. E. James (here are listed the notes, one of the International Coal Company, upon which there appeared no' indorsement, four other notes of said coal company indorsed by E. E. James and D. H. Echols, aggregating- the sum of $17,-303.58). That the said trustee has not paid his pro raía part as indorser on said notes, and the trustee is still due the estate, on his own individual note, in the sum of $.....+............”

It is the theory of the appellant, Bieatt, administrator, that by the order and judgment of the chancery court that court has usurped the duties and powers of the probate court to proceed with the administration of the estate, which power rests solely in the probate court. The appellant contends that, when the Bank of Cotton Plant & Trust Company failed, it left the estate in the same condition that it would have been had Dr. James named an individual as executor in the will, and that he is entitled to take over the administration of the estate by virtue of the provisions of § 42 of Crawford & Moses’ Digest, which provides, “If all of the executors or administrators of any estate die or resign, or their letters be revoked, in cases not otherwise nrovided for, letters of administration in succession shall be granted to the persons to whom administration would have been granted if the original letters had not been obtained, or the person obtaining them had renounced the administration or to such other person as may be appointed by the court; and such administrator shall perform the like duties and incur the like liabilities as the former executor or administrator.” This contention would be unassailable but for the fact that, since all of The claims existing at the time of the death of the testator have been probated ánd paid, there is no longer any necessity for .an administration. There are a number of claims, that are now due by the trustee which have been incurred in the management of the estate, but these are not such claims against the estate as would require the intervention of the probate court, but are such as should be paid by the trustee under the orders of the chancery court in the administration of the trust. Upon the death of a person his estate passes into the hands of the law to be administered for the benefit of creditors (Merrick v. Blitton, 26 Ark. 496), and when that purpose has been accomplished and there remain no debts, there is no longer need of an administrator. Rainwater v. Harris, 51 Ark. 401, 11 S. W. 583, 3 L. R. A. 845; Adamson v. Parker, 74 Ark. 168, 85 S. W. 239.

Since all of the claims probated against said estate had been paid at the time the trustee first named had ceased to function; as the time for probating claims when the appointment of Bieatt as administrator had lapsed, there was nothing further to be done regarding the estate except to administer the same under the trust and in the manner prescribed by the will. By the terms of the will an express trust was created for the benefit of certain named beneficiaries, and the trustee clothed with wide power for carrying into effect the purposes of the testator. He was given authority to hold and manage all of his property. This necessarily included all debts of every kind which might be due the-estate, no matter in what way they might be evidenced, and impliedly he had the authority to collect the same and to invest the proceeds. In fact, by paragraph VIII of the will express power was given to make sale of any property held under the trust not profitable to hold, and which it would be to the best interest of trust to sell. The will provided that the trustee should administer the trust under the direction of the chancery court, and account to said court at stated times by a report showing all amounts received and disbursed in the administration of the trust; and, in addition, the chancery court was clothed by the testator with authority to name a trustee in the event the one named in the will should fail or cease to act.

Independent of any provision in the will, the chancery court was clothed with the power to appoint a trustee in succession, and to supervise his conduct. “Courts of equity have always claimed and exercised exclusive jurisdiction in cases of trust, and over the conduct of those appointed to execute them. This has never been disputed ground. No other tribunal can so properly direct the manner of executing or inquiring into or correcting abuses where there has been or is likely to be a mismanagement by the trustees.” 10 R. C. L., § 99.

This court has always recognized and from time to time announced the above rule. In Ex parte Conway, 4 Ark. 337, it is said: “It has ever been held that the most appropriate remedy in all trusts is to be found in a court of equity. * * * The jurisdiction of courts of equity, if not created, was soon afterwards extended, for the purpose of protecting and enforcing the execution of trusts,” and, after quoting a number of authorities, the court continued as follows: “It is the duty of the trustees to preserve the estate, and every.assistance will be granted by the court of equity in support of the trusts, and to aid them in its due performance. These authorities unquestionably show that courts of equity entertain jurisdiction to protect the trust, and that they will assist the trustees in its management and execution. Now, according to the authority of Garth and Cotton, equity makes it the ex- . press duty of the trustees to preserve the estate. If it is their duty to preserve the estate,- how can they do this, unless they can acquire possession of the property? We ask, how is the trust to be protected or upheld if the funds or assets that constitute the estate are not delivered into their hands and placed under their management? This is all that is asked for in the present instance.”

This court has reiterated this doctrine from time to time. Robinson v. Robinson, 45 Ark. 482; Bland v. Talley, 50 Ark. 71, 6 S. W. 234; Spradling v. Spradling, 101 Ark. 451, 142 S. W. 848; McClelland v. Linton, 121 Ark. 85, 180 S. W. 482; Hall v. Webb, 150 Ark. 71, 233 S. W. 821. mile the chancery court had the inherent power, as well as that expressly given by the will, to appoint a trustee, this was not one to be used arbitrarily but with sound legal discretion.

The appellants complained that Echols was appointed over the protest of the majority in number and interest of the beneficiaries, and set up, as a further reason why he should not have been appointed, that he himself was a large debtor of the estate. The chancellor, for reasons given by him, ignored the request of the beneficiaries, but this question is not now before us, the only question before us being whether the court, after having appointed the trustee, could by injunction restrain the administrator cle bonis non from interfering with the administration of the trust. But, see on this question, the following authorities, Re Timpest, 14 Law Times Rep., N. S. 688; Re Cramer, 31 Nova Scotia 477; Re Welch, 20 App. Div., N. Y., 412, 46 N. Y. S. 689, affirmed in 154 N. Y. 774, 49 N. E. 1145; and Re Lafferty, 198 Pa. 433, 48 Atl. 301. We do not think that the action of the court below was to lift the administration of the estate out of the probate court. This it did not do or attempt to do, for the reason that there Avas nothing to administer in that court. The effect of its judgment was merely to protect its officer in the discharge of his duty.

No error appearing, the judgment of the trial court will therefore be affirmed.


text:
    Bank of Shirley v. Smith.
    Opinion delivered March 3, 1930.

      Brundidge ■& Neelly and Opie Rogers, for appellant.

      Garner Fraser and Williamson $ Williamson, for appellee.
   Butler, J.

We adopt the statement of facts set out by the appellant in its brief as a fair presentation of the same. On the 22d day of February, 1924, the ap-pellee, J. T. 'Smith, who had worked for the appellant bank a short time prior to that date, made an agreement with Albert Couch, cashier of the Bank of Shirley, that he would pay the Bank of Shirley $1,000, and that Couch would select $1,000 worth of notes for Smith and collect them for him; that on that day, at the time the arrangement was entered into, Couch delivered to the appellee a memorandum in writing as follows: “I have this day selected notes aggregating $1,000 for you, said notes bearing interest at the rate of 10 per cent, which notes are to be collected by this bank for you. Yours very truly, Albert Couch, Cashier.”

On or about the same date for the years 1925 and 1926 following, Smith would collect from the bank $100 as interest and Couch would redate the memorandum, making it1 the same day of the month and changing the year. Some time in June, 1926, Couch left the employment of the Bank of Shirley, and when Smith presented himself to the new cashier to collect the interest on the $1,000 he was told that there was no record of any such transaction in the bank, and payment of the annual interest due was refused. The president and some of the other officials of the bank were also interviewed by Smith regarding the transaction, all of whom denied any knowledge of it, and refused to recognize it. Afterward Smith went to Morrilton, to which place Couch had removed, and there Couch paid him $15.

There is no dispute about the transaction except as to what took place at that time and at the time the interest payment in February, 1926, was made. Smith testified that there was no change at all in the arrangement, while Couch testified as follows: “Later he (Smith) was there at the bank and said he would like to continue the arrangement, and I told him it was an unusual transaction, and that I didn’t know whether we could handle it on that basis or not, and he said, if we couldn’t, that he would be glad if I could handle the money myself for him. I agreed that I could use the money. He came to Morrilton to see me, said that he would like to have the interest, but that I might continue to use the money, but would like for me to make a note. I paid him $15 interest. He said that that was all right.” Couch further testified, “The personal deal was made with him some three or four months before I went out of the hank.”

Smith testified that in accordance with the agreement first made he drew a check on the First State Bank of Marshall for $1,000, payable to the Bank of Shirley, the proceeds of which were collected by the latter bank. The notes were never delivered to witness but were kept in the bank. When he made the arrangement with Couch he looked over the notes that were to be given him. These were notes made payable to the Bank of Shirley, but he never saw them any more, and he did not know where they were. He had never received them or collected them, and didn’t know whether they were good or bad.

The cashier Couch testified that he was not positive whether the $1,000 worth of notes were ever delivered to Smith or not, or whether they were left at the bank for safe-keeping. Later on in his testimony, the witness stated, “I did not collect the notes — just interest — or some of the notes might have been collected — I don’t remember. T suppose I made a record of it — do not remember. I do not know whether the notes selected in 1923 were collected, or just the interest. The notes were originally selected at the time he put the money in the bank and as they would be collected or renewed other notes were substituted in their place. The notes in 1924 were collected or renewed, as were the ones in 1925.” Couch further stated, “I never made a loan of this kind before, and the bank never made one that I knew of.” Witness stated that he was at that time under indictment, but did not know whether the Bank of Shirley or the prosecuting- attorney had had him indicted; that before the transaction out of which this suit arose Smith had worked for a short time in the Bank of Shirley, and was well acquainted with witness, and witness never knew or heard of the bank making a deal similar to the one made with Smith.

■Stevens, the president of the Bank of Shirley, and Williams, its cashier who succeeded Couch, testified to the effect that the records of the bank did not disclose the transaction between Smith and Couch, and that they had no knowledge of such transaction until the early part of 1927 when Smith asked for the payment of the interest; that there was no resolution passed by the board of directors of the bank authorizing- the sale of the notes to Smith.

The jury returned a verdict for the plaintiff, and the appellant bank contends that the case should be reversed because the testimony is insufficient and that the court should have given a peremptory instruction for the appellant. Appellant also contends that the court .erred in refusing to give instructions Nos. 6, 3 and 5, as follows:

“No. 6. I instruct you that you are the judges of whether or not the instrument sued on was a pledge of the notes of the bank or a sale, and if you find said transaction was a pledge same would be void; and your verdict will be for the defendant.
“No. 3. The jury are instructed that if you find from a. preponderance of the testimony that Albert Couch, cashier of the Bank of Shirley, was authorized to sell to the plaintiff $1,000 worth of notes, and that he did sell said notes to the plaintiff on February 22, 1923, plaintiff would only be entitled to recover the value of the notes sued for at this time, unless the plaintiff has proven by a preponderance of tbe testimony the value of the notes, then your verdict will be for the .defendant.
“No. 5. The jury are instructed that if you find from the testimony in this case the transactions between Couch and the plaintiff, Smith, relates to the sale or pledge of the notes, was out of the ordinary and not customary with the bank, and that the bank had no notice of said transaction and did not ratify the same, then your verdict will be for the defendant.”

Appellant cites the rule laid down in 7 C. J., p. 527, and in 3 R. C. L., at page 78, in support of the position taken. The jury, by their verdict, found the issues of fact for the appellee, which we must now treat as true and give to them their strongest probative force. From the facts set forth, we conclude that the bank received $1,000 for a number of' its notes aggregating in face value that amount, which face value is.prima facie measure of their real value, and, in the absence of testimony ,to the contrary, we must indulge the presumption that they were in fact worth the amount which the makers of said notes agreed to pay to the bank, i. e., $1,000. Second National Bank v. Bank of Alma, 99 Ark. 386, 138 S. W. 472. It anight also be said that it has not been shown by the appellant-bank that the notes had not been collected and; certainly, it would be the duty of the bank, having retained the motes for collection, to show that they were not collected or that they were uncollectable.

In Arrington v. King, 179 Ark. 587, 17 S. W. (2d) 302, we said: “There is nothing- in the appellant’s contention that the sale and indorsement of the note to the appellee was. void, being made by the cashier without written authority from the board of directors authorizing it. Under the law as amended the cashier could sell and indorse this note owned by the bank, in due course, without any authority first given by the board of directors of the bank and reflected in a written record made thereof. Section 700, C. & M. Digest, § 34 of act 113 of 1913,. was amended by § 18, act 647 of 1923. * * *” It will be seen therefore that Couch, in selling the notes to Smith, was acting-within the scope of his authority. Moreover, having received the benefit of this transaction by accepting and appropriating- the $1,000 paid to the bank by the appel-lee, and having retained the custody of the notes with the agreement to collect the same, and having failed to account for the same, the appellant bank is in no position to deny the authority of its cashier. Wilson v. Davis, 138 Ark. 111, 211 S. W. 152; Bank of Booneville v. Clements, 172 Ark. 1023, 291 S. W. 439. See also, State National Bank v. First National Bank, 124 Ark. 531, 187 S. W. 673; Morgan v. State, 162 Ark. 257, 257 S. W. 364; Bank of Rison v. Layne & Bowler Co., 173 Ark. 368, 292 S. W. 126; James v. Board, etc., 173 Ark. 517, 292 S. W. 983. We are therefore of the opinion that the trial court did not err in refusing to give the instructions requested as above set out, and that the testimony was sufficient to warrant the submission of the case to the jury.

It is insisted that the appellee should have made demand for the delivery of the notes, and should be required to show the value of the notes purchased from the bank in 1926, what the notes were, and that the bank still had the notes, and that they were valuable, before he could recover. A part of this contention has been already answered by the authorities hereinbefore cited, and it may be further said that when demand was last made by the appellee for the interest, he was informed that the bank knew nothing of the transaction, that its records disclosed no such transaction, and liability was denied. Any further demand would have been futile. It may be true, as claimed by the appellant, that the bank was -in reality not benefited by this transaction, but, if such was the case, it was not the fault of the appellee who paid the money into the bank but the fault of its agent, for which the appellee is in no-wise responsible.

The judgment of the trial court must therefore be affirmed. It is so ordered.


author: Per Curiam.

text:
    Howell v. Todhunter.
    Opinion delivered March 3, 1930.
   Per Curiam.

This is an original petition for a writ of mandamus filed in this court on behalf of W. H. Howell, who is under sentence of death for murder, and is now confined in the State Penitentiary awaiting execution, to compel S. L. Todhunter, a.s warden of said penitentiary, to summon a jury under the authority given him by § 3251 óf Crawford & Moses’ Digest to inquire into the sanity of said Howell. The petitioner alleges that Dr. L. R. Brown, State Superintendent of the hospital for nervous diseases, has stated and is of the opinion that said Howell is now insane. Petitioners further allege that the warden of the penitentiary has already summoned a jury on the 24th day of January, 1930, for the purpose of inquiring* into the insanity of said Howell, and that the jury was divided, seven being* of the opinion that he was sane and five finding that he was insane. Petitioners allege that said warden has refused to empanel another jury for the purpose of inquiring into the present insanity of said Howell and presenting its finding thereon.

We are of the opinion that we have no jurisdiction in the matter. Under our Constitution, the Supreme Court has a general superintending control over all inferior courts of law and equity: and, in aid of its appellate and supervisory jurisdiction, it has the power to issue remedial writs, including* writs of certiorari, habeas corpus, mandamus, and others specifically named. Art. 7, § 4, of the Constitution.

In Ex parte Dame, 162 Ark. 382, 259 & W. 754, it was held that the Supreme Court has no authority to supervise or control the action of courts inferior to the circuit court except by reaching back through the decisions of the latter court. The court expressly held that a hearing on habeas corpus before a judge is the exercise of judicial power which may be reviewed on certiorari, hut that the proper forum to review the exercise of this judicial power by a county judge was in the circuit court and not in the supreme court. Hence we would have no power by writ of mandamus, or otherwise, to review the discretion of the warden of. the State Penitentiary under the authority given him by § 3251 of Crawford & Moses’ Digest, as construed in the case of Howell v. Kincannon, ante p. 58.

It does not follow, however, in a ease like this that there is no remedy in behalf of an insane prisoner. A suggestion of insanity after conviction and sentence and the lapse of the term at which the defendant was tried only appeals to humanity to have the punishment postponed until sanity is recovered. The guilt of the prisoner has already been determined. In Howell v. Kincannon, supra, this court held that under the provisions of § 3251 of the Digest the warden as custodian of a prisoner sentenced to death, if he has reasonable grounds for believing that the defendant is insane, may summons a jury of twelve persons to inquire into the sanity of said defendant, that this statutory remedy excludes the jurisdiction of the trial court with proceedings of this nature, and that the trial court no longer has jurisdiction in the proceeding to inquire into the insanity of the prisoner after sentence.

In a proper case, however, the circuit court of the county where the State warden holds such prisoner would have jurisdiction to review the action of the warden according to the practice laid down in Hall v. Bledsoe, 126 Ark. 125, 189 S. W. 1041, and other cases.

This brings us to a consideration of the question, whether the facts alleged in the petition call ’ for the exercise of jurisdiction by the circuit court. It will be observed that § 3251 provides that, when the custodian of the prisoner is satisfied that there are reasonable grounds for believing that the defendant is insane, he may summons a jury of twelve persons to inquire into the present insanity of the defendant. This does not mean that there shall be such an innuic,i"+!'vn on the suggestion of the insanity of the defendant. If it were true that a suggestion of insanity, after the death sentence had been pronounced, created ¡on the part of the convicted person an absolute right to an inquisition for insanity, it would be within the power of the convicted person, or his friends, to indefinitely delay the execution of the sentence of death by repeated suggestions of insanity, followed by .inquisitions in each instance. Hence the statute has given the custodian of the prisoner a discretion in the matter, and he is only required to act when he thinks there are reasonable grounds for believing the prisoner to be insane.

In the present case, however, the allegations of the petition show that the warden has already acted in the matter under the provisions iof § 3251 of the Digest, and that the jury were divided in opinion as to whether the defendant was insane or not. The warden of the Penitentiary hy acting in the premises declared that he had reasonable grounds for believing that the defendant was insane, and it became his duty to impanel another jury for the purpose of securing a verdict on the question.

We have gone thus fully into the practice in the matter, because our law in the interest of humanity does not allow an insane person to be executed, and because of the public interest in the matter. For the reasons above given, however, the writ of mandamus in this court will be denied.


author: Hart, C. J.

text:
    (1) Special School District No. 60 v. Special School District No. 2 (2) Elkins v. Union Consolidated School District
    (No. 1483).
    (No. 1558).
    Opinion delivered March 10, 1930.

      ,7. O. A. Bush and Dexter Bush, for appellant.

      George M. Booth, for appellant.

      Tom W. Campbell and Rose, Hemmgway, Cantrell S Loughborough, for appellee.
   Hart, C. J.

These two cases were consolidated for hearing on appeal because the issues of law are the same. In case No. 1483 a patron of one of the school districts seeks to reverse a judgment of the circuit court' affirming an order of the county board of education consolidating two school districts in Nevada County, Arkansas. In case No. 1558, a patron of one of the school districts seeks to reverse a judgment of the circuit court affirming an order of the county board of education consolidating four school districts in Randolph County, Arkansas.

The correctness of the judgment of the circuit court in each case depends upon the construction to he placed upon Act 156 of the Acts of 1927, authorizing the county board of education to consolidate school districts. The first, two sections of the act reads as follows:

“Section 1. That § 8823 of Crawford & Moses’ Digest of the Statutes of the State of Arkansas be amended to read as follows:
“Section 8823. Upon a petition being filed with the county hoard of education signed by a majority of the qualified electors in the territory to be affected, said county board of education of any county within the State of Arkansas' shall have the right to forip new school districts and to change the boundary lines between any school district heretofore formed where, in the judgment of such board of education, it would be for the best interest of all parties affected, provided, however, that no change shall be made that would impair any outstanding indebtedness of any school district now formed.
“■Section 2. This act shall not repeal or affect Act 247 of the Acts of the G-eneral Assembly of 1915. And is cumulative to all other laws and parts of laws defining the powers and prescribing the duties of county boards of education and of school districts, boards of directors thereof, and all other officers and persons mentioned in this act; and, except in cases of irreconcilable conflict herewith, it shall not be so construed as to repeal any other law or part of a law; and any and all acts and proceedings heretofore done and had by county boards of education are hereby ratified and declared valid. ’ ’

Section 3 provides that all laws and parts of laws in conflict with it are repealed.

The act was approved March 18, 1927. See Acts of 1927, p. 549.

At the outset, it may be said that it is the settled rule in this State that the statute creating the county board of education substituted-the board for the' 'county court, and only transferred the power to the board without repealing or in any way affecting- ,the statutory procedure with respect to matters theretofore within the power of the county court with regard to the formation, changes, and the regulation of school districts. Mitchell v. School District No. 13, 153 Ark. 50, 239 S. W. 371; Acree v. Patterson, 153 Ark. 188, 240 S. W. 33; and Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281; Swift v. Common School District No. 8, 163 Ark. 150, 259 S. W. 375.

It is earnestly insisted, however, that the act is a local or special 'act, and is therefore unconstitutional under the principles of law declared in Webb v. Adams, 180 Ark. 713, 23 S. W. (2d) 617. This contention is based upon the first clause of the second section of the act which provides that it shall not repeal or affect act 247 lof the Acts of 1915. This latter act by its terms organizes and provides for the operation of a special school district in Lonoke County. We do not agree with contention of counsel. In the ease cited, two counties were expressly excepted or exempted from the provisions of the act in ,tilie enacting clause of it.- The Legislature, by so doing, exempted these two counties from the provisions of the act; and they could never by any act of their own take advantage of its provisions. The clause exempting them from the terms of the act was so interwoven‘with the remainder of the enacting clause as to become and constitute a part of the act itself. Hence we held that the act under consideration in that case was a local or special act and in violation of amendment No. 17 of our Constitution, prohibiting the passage of local or special acts.

In the case now under consideration, no exemption or exception of any part of the territory of the State is made in the enacting clause of the statute. Indeed, there is nó exemption of territory from the provisions of the act in the second section. All parts of .the State fall within the provisions of the act and may take advantage of its provisions. The act is framed in general terms, and is not restricted in locality, bnt operates equally and uniformly throughout the State. The second section only provides that an act of the Legislature of 1915 creating a special school district was not repealed. This simply left the special act in force. It'is one thing for the Legislature to say that a part of the territory of the State is expressly exempted from the provisions of an act, and quite a different thing to say that a special act, passed at a time when it was lawful to do so, was not repealed. We are of the opinion that the act under consideration is a general and not a local or special act, because the act applies to and affects alike all persons and things of the same class and condition who elect to bring themselves by proper procedure within the terms of the act.

It is next insisted that the act is invalid because no method has been provided for the appointment of directors after the consolidated school district is formed by the’ county board of education under the provisions of the act. Our Constitution makes it the duty of the Legislature to provide by general laws for the support of common schools by taxes. Article 14, § 3, of the Constitution. This court has always recognized that the Legislature has full and complete power in the matter except as restricted by the Constitution. No useful purpose could be served by reviewing the numerous and changing laws of the State upon the subject of public schools, their management, the means of selecting their boards of directors, and the various modes of creating and changing school districts and apportioning territory and pupils among them. Our Legislature acts for itself, having in view the changing standards of education and the means of providing for the comfort and health of the pupils. All of the various acts relating to these matters must stand unless they are expressly repealed or are plainly repugnant to the provisions of a later act.

Tested by this rule, we do not think that the act under consideration must fail because there is no express provision in it for the appointment of directors when two or more districts are first consolidated. In such cases the provisions of § 8847 of the Digest would apply, and between the date of consolidation and the first annual election thereafter the consolidated school district would be governed by a board-of directors composed of all of the directors of the several school districts entering into the consolidation. After the first annual election, the consolidated school district shall be governed by a board of six directors to be elected in the manner provided for in § 8953 of the Digest by the qualified voters of the consolidated district.

. It is next insisted that in case No. 1558, the judgment must be reversed because under the order of the board of education whereby common school districts No. 49, 61 and 83, and Rural Special School District No. 5 were consolidated, it was ordered that the consolidated school district should assume and pay the bonds of Rural Special School District No. 5 as they mature. The order also recites that Rural Special School District No. 5 is indebted in the sum of $6,500 on some bonds issued by it payable $500 annually from January 1, 1930. The order recites that the owner of the bonds is willing to surrender them and accept the principal and interest thereon as of this date. The order further recites that there is enough money on hand belonging to Rural Special School District No. 5 to pay all of said bonds and the interest thereon.

■ This court has held that the power of the Legislature in enacting laws for the formation or dissolution of school districts is plenary, provided the obligations of their contracts are not impaired. Special School District No. 33 v. Howard, 124 Ark. 475, 187 S. W. 444; Krause v. Thompson, 138 Ark. 571, 211 S. W. 925: and Chicago Title & Trust Co. v. Hagler Special School District, 178 Ark. 443, 12 S. W. (2d) 881.

There would seem to be no violation of any principle of law in the order made by the board. The act itself provides that no change shall be made that would impair any outstanding indebtedness of any school district now formed. No effort was made to impair the outstanding' indebtedness of any of these districts. On the .other hand, the board expressly intends ,to take care of 'the indebtedness of one of the districts of the consolidated district. An agreement to that effect has been made with the holder of the indebtedness. The board in its discretion might provide for the present payment of the indebtedness out of the funds on hand belonging to the district which was indebted, or it might have made the consolidated district liable for the indebtedness of one of the districts which had become a component part thereof.

In case No. 1483, it is sought to reverse the judgment because several signers of the petition for consolidation had asked to have their names withdrawn from the petition after it had been filed. On this question but little need be said. We are of the opinion that the circuit court was right in holding that no good or sufficient reason was given by the petitioners for withdrawing their names. The only excuse they gave was that they would not have signed the petition if they had thought that a majority of the patrons of the school did not want consolidation. That was a matter left to their own judgment and discretion, and to ascertain what .the majority wanted was the object of preparing the petitions and submitting them to the county board of education.

In conclusion it may be said that! the validity of act No. 156 now under consideration has been upheld in previous decisions of this court, and s.ome of its provisions construed. Manley v. Moon, 177 Ark. 260, 6 S. W. (2d) 281: School District No. 14 v. County Board of Education, 177 Ark. 734, 7 S. W. (2d) 798; and Consolidated School District No. 2 v. Special School District No. 19, 179 Ark. 822, 18 S. W. (2d) 349.

We find no reversible error in the record, and the judgment in each case will be affirmed.


author: Hart, C. J.,

text:
    Quinn v. Murphy.
    Opinion delivered March 10, 1930.

      J. D. Gooh, Sr., mid F. S. Quirm, for appellants.

      Will Steel, for appellees.
   Hart, C. J.,

(after stating the facts). We are of the opinion that the decision of the chancellor was correct. Prior to the bringing' of this suit, another suit had been brought to enforce the stockholders’ agreement for contribution to pay the losses of indorsers on the paper of the old corporation, and this case is reported in 175 Ark. 10, 299 S. W. 361, under the style of Murphy v. Winham.

' By stipulation of the parties, the record of the testimony in that case is made a part of the present suit.Upon appeal, it was said that the chancery court in that case correctly held that the value of the assets of the old corporation was duly made and free from fraud, and that the price obtained $100,000 was .the reasonable value thereof. The court stated further that this was the fair market value of the assets of the corporation at the time of the sale. It was further stated in the opinion that the organization of the new corporation was not made under such circumstances as to show that it was a continuation of the old corporation. It was stated that the facts showed it to be a separate corporation, and that the conveyance was made to1 the new corporation instead of to the ■ liquidating agent for the sake of convenience, and that there was no fraud in organizing the new corporation for the purpose of buying the assets of the old corporation-at a fair market price.

. Several of the directors and stockholders of the old corporation testified in the present suit. Each of them stated that $100,000 was the reasonable market value of the assets of the old Corporation, and that it was intended.' by them that, if any one should bid more than the sum of $100,000 for the assets of the old corporation, they would-not bid higher, and that such purchaser might have all of the assets of the old corporation for the sum so paid/ The sum of $100,000 which was the capital stock of the new corporation was paid and used by the directors of the old corporation in paying off its debts. The directors and stockholders of the old corporation were liable for the balance of the indebtedness of that corporation in the sum of about $139,000. There is nothing whatever to show that they were actuated by fraud in liquidating the affairs of the old corporation, and they merely organized the new one for the purpose otf purchasing the assets of the old corporation at a fair price and reimbursing themselves, if possible, for losses to the management of the-old corporation. They testified that all of the stockholders were given an opportunity to take stock in the new corporation in the same proportion to that owned by them in the old corporation. Some of them testified that they were willing now to sell their stock to appellants at par value with -six per cent, interest added. Two of them testified that they were willing to let appellants have their stock at par value without interest, and that the amount of stock owned 'by them in the new corporation was more than that owned by appellants in. the old corporation. Therefore, we are of the opinion that the chancellor properly decided the issues in favor of appel-lees on the complaint of appellants.

Appellees have prosecuted a cross-appeal, and-but little need be said on that phase of the case. The court properly held in favor of appellants on the issues raised by the cross-complaint of appellees. The cause of action of appellees against appellants arose from the stockholders’ agreement in the old corporation which was signed by Mrs. Isabella Quinn, the widow of Thomas Quinn, after his death. Of course, the remaining appellants, who were children and heirs at law of Thomas Quinn, were not bound by any agreement signed by his widow. Mrs. Isabella Quinn signed the agreement as administratrix of her husband’s estate. The stockholders’ agreement which she signed is copied in full in the transcript, but is too lengthy to be inserted in this opinion. We deem it sufficient to state that we have read and considered it in its entirety; and from it, and from the testimony of Mrs. Isabella Quinn, we are convinced that she did not sign it for the purpose of becoming personally liable, but only signed it in order to pledge her husband’s interest in the assets of the old corporation, in so far as his interest would go for the payment of its debts. We are of the opinion, when the stockholders’ agreement, the testimony of Mrs. Quinn, and all the surrounding circumstances are considered together, that the chancery court was warranted in holding that the admin-istratrix was not liable personally by signing the stockholders’ agreement. This would have been to make her liable on a promise which she never intended to make and which the parties to the stockholders’ agreement never intended she should make. It is clear that it was only intended that she should pledge her dead husband’s interest in the assets of the old corporation to the payment of its debts. Altheimer v. Hunter, 56 Ark. 149, 19 S. W. 496.

Finally, it is contended that the court erred in transferring the case to equity and in not retransferring it to the circuit court. We cannot consider this question. After the case was transferred from the circuit court to the chancery court, a motion was made to retransfer it to the circuit court. This motion was overruled by the chancery court, and no exception was taken to the ruling of the court. Therefore any alleged error in refusing to transfer the case back to the circuit court was waived, and the chancery court had jurisdiction to determine the issues raised by the pleadings.

We have carefully examined the record. It shows that the old corporation was duly organized and prosecuted its business in the State of Texas. When it became involved in financial difficulties, its affairs were wound up under the laws of the State of Texas, and no fraud in doing so has been established. The new corporation was duly organized and purchased the assets of the old corporation at a fair valuation. No fraud is shown either in the liquidation of the affairs of the old corporation or in the organization of the new corporation to purchase the assets of the old one. A careful consideration of the whole record leads us to the conclusion that the decision of the chancery court was correct, and it will therefore be affirmed.


author: Smith, J.

text:
    A. B. Jones Company v. Davis.
    Opinion delivered March 10, 1930.

      Hawthorne, Hawthorne S Wheatley, for appellant.

      Aline Murray and N. F. Lamb, for appellee.
   Smith, J.

C. H. Davis sued the A. B. Jones Company, a corporation, alleging- that he had an exclusive contract for the distribution of the Anheuser-Busch products in the Jonesboro, Arkansas, territory, and that he thereafter ■ entered into a contract with, the Jones company, whereby the company was to handle the products and divide the net profits equally with him in consideration of his transferring his agency contract to the Jones company.

Davis offered testimony supporting these allegations. The contract was made in June, 1916, and for four and one-half years the profits were equally divided, except that in one year no profits were made. In February, 1921, Davis received a letter from the corporation, written by Jones, its president, in which it was proposed that thereafter, instead of dividing the profits equally, a royalty of $500 per year be paid. This proposition was accepted by Davis, and the royalty agreed upon was paid annually up to and including the year 1926.

Payment of the 1927 royalty was refused, and this suit was brought to collect it. Liability was denied upon the grounds that (a) that was no such contract, and (b) if made, it was void as having been made without the knowledge or consent of the corporation, and its execution was in excess of the power of the president, without authority so to do having been conferred by the corporation. By way of counterclaim, the corporation prayed judgment for the amount of the payments which had been previously made Davis.

We think the testimony clearly shows there was such a contract. The payments under it are reflected by the books of the corporation extending over a period of about twelve years, and these books had been audited annually.

Jones ceased to be in active charge of the business of the corporation about August 1, 1927, and was succeeded as manager by J. S. Long, who had previously been the credit manager of the corporation. Long testified that he had been with the Jones company continuously since its organization, and that he knew nothing of the contract. ■He admitted, however, that the books of the company show the payments which had been made under it, and that he had himself drawn these checks under the direction and upon the order of Jones, the president. Two directors of the corporation testified that they were directors at the time the alleged contract was made, and' that no such contract had been submitted to or acted upon by the directors, and no authority had been conferred upon Jones to make it.

The court rendered judgment for the amount sued for, to-wit: one year’s royalty amounting to $500, and dismissed the counterclaim.

For the reversal of this judgment it is insisted that the contract, if made, between Davis and the corporation, created, in effect, a partnership between Davis and the corporation, and was therefore an ultra vires act and void.

We do not agree that the effect of the contract was to create a partnership, as by its terms Davis merely assigned his agency and thereafter had no control over it. For this assignment he was to be paid one-half of the net profits of the agency, and later he was promised a royalty of $500 per annum, without liability for any losses that might be sustained. ..!■

We do not find it necessary to determine whether the contract was an -ultra vires one or not. Browne-Brun Wholesale Grocery Co. v. Hinton, 179 Ark. 831, 18 S. W. (2d) 369. But, even if so, it has, so far as this lawsuit is concerned, been fully performed, and the corporation has received the benefits of its performance,’ and it cannot now repudiate the contract after having received the profits derived from its performance. Ouachita Valley Bank v. Pullen, ante p. 38; Wilson v. Davis, 138 Ark. 111, 211 S. W. 152; Richeson v. National Bank of Mena, 86 Ark. 594, 132 S. W. 913; Bloom v. Home Ins. Agency, 91 Ark. 367, 121 S. W. 293; Western Dev. & Inv. Co. v. Caplinger, 86 Ark. 287, 110 S. W. 1039; Arkansas La. R. Co. v. Stronde, 77 Ark. 109, 91 S. W. 18, 113 Am. St. Rep. 130; Arkadelphia Lbr. Co. v. Posey, 74 Ark. 377, 85 S. W. 1127; Minneapolis F. & M. Mut. Ins. Co. v. Norman, 74 Ark. 190, 85 S. W. 229, 109 Am. St. Rep. 974, 4 Ann. Cas. 1045; El Dorado Pipe Line & Supply Co. v. Penguin Oil Co., 174 Ark. 843, 296 S. W. 713; Layton v. Central States, etc., Co., 147 Ark. 355, 227 S. W. 415.

The decree is correct, and is therefore affirmed.


text:
    Collatt v. Bowen.
    Opinion delivered March 10, 1930.

      N. A. McDaniel, for appellant.

      Arthur C. Thomas, for appellee.
   Smith, J.

This suit was brought to cancel a deed executed by J. A. Bowen to his sons, Clyde and Luther, and his daughter, Mrs. Lera Opitz, as having been executed in fraud of the grantor’s creditors. It was alleged in the complaint that plaintiffs and J. A. Bowen were formerly partners in the mercantile business, and that plaintiffs sold their interest in the partnership to Bowen on February 1, 1926, for a cash payment and a deferred payment of $1,401.29, which was to be paid in the fall of that year. The time of payment was not more definitely fixed. That default was made in the deferred payment, ’ and. suit was filed on August 26, 1927, in the chancery court, in which a judgment was prayed for the balance due, and that this balance be decreed to be a lien on the partnership property, and that it be ordered sold in satisfaction thereof. There was a controversy as to whether Bowen had bought certain real estate held as partnership assets, and this issue was decided in Bowen’s favor. But the court found that Bowen was indebted to plaintiffs in the sum of $928.81, and decreed that a lien be declared upon the one-half interest of Bowen in certain real estate, and upon the three-fourths interest in the furniture and fixtures, and a commissioner was appointed to make a sale if the judgment was not, paid, and, as it was not paid, a sale was made and duly reported by the commissioner. The proceeds of the sale amounted to $250. . Thereafter an execution issued for the balance then due, and on the.........day of May, 1928, a return nulla bona was made.

The complaint further alleged that at the time of the .sale of the partnership business Bowen owned certain lots in the town of Haskell and a seventy-four-acre farm, which he undertook to convey to his sons, Clyde and Luther, and his daughter, Mrs. Lera Opitz, by a deed dated November 6,1926. It was alleged that there was no consideration for this deed, and that it was executed in fraud of the grantor’s creditors. An error was made in the description of the land conveyed, to correct which a second deed was executed February 19, 1927. It was prayed that both these deeds be canceled.

The answer admitted the execution of-the deeds, but denied that they were fraudulent. It was alleged in the answer that Bowen was solvent when the first deed was made, and that it was executed upon a valuable and sufficient consideration.

Depositions were taken, and, upon the final submission of the cause, it was dismissed as being without equity, and this appeal has been prosecuted to reverse that decree.

The testimony establishes the fact that before the purchase of the plaintiff’s interest in the partnership business Bowen agreed with his children to divide his real estate among them, and, pursuant to this understanding, he conveyed twenty acres of the land to his son, Clyde. This deed is not questioned, but the agreement to convey appears to have been voluntary and was never further consummated for the reason that Bowen was unable to agree with his wife, who was the stepmother of the children, as to the apportionment of her homestead and dower rights. She was later placated by the payment of a sum of money and joined in the execution of the deeds here sough! to be canceled. These deeds conveyed all the real estate owned by Bowen except his homestead, and it is admitted that Bowen is now insolvent. If the lands conveyed by Bowen to his children cannot be subjected to the payment of plaintiff’s judgment, it cannot otherwise be' collected.

The deed to Clyde Bowen for the twenty-acre tract of land was not offered in evidence, but we do not understand that plaintiffs question its execution or validity. This tract of land was excluded -from the conveyances sought to be canceled, and it appears that it was an error in its description which made the deed dated February 19, 1927, necessary to correct the description employed in the deed of-November 6, 1926. The suit therefore involves only the lands conveyed by these deeds.

After a careful consideration of the testimony* we have concluded that the conveyances were voluntary, and that the relief prayed should be granted. The present insolvency of the grantor is unquestioned, and we are convinced that he was insolvent when these deeds were made, and, if not, their effect was to make him so.

It is true the foreclosure suit was not filed until August 26,1927, and that the first deed was made November 6, 1926, but this was in the fall, and the payment of the balance on the pui'chage price of plaintiffs ’ interest in the partnership business was then due, and plaintiffs were insisting on payment. Bowen had taken his son, Luther, into the partnership business, which had not prospered, and an offer was made to return this property in satisfaction of the debt, and the offer had been refused. An offer had also been made to pay the debt by the assignment of certain accounts, and this offer had likewise been refused. Tbe value of tbe accounts was not shown. If they were collectible, no reason is given why Bowen did not collect them and pay the debt which the court found was due the plaintiffs.'

The deeds were to the children as tenants in common, and there was no conveyance to any one of the children of any particular portion of the land. They recited a consideration of one dollar and love and affection. The grantees testified that they paid the dollar, which was, of course, a mere nominal consideration, and the testimony is not at all satisfying that they paid anything more. The value of the land was variously estimated at from one thousand to three thousand dollars. Clyde Bowen testified that his father owed him $500^ but he gave no detailed account as to how or when this indebtedness was incurred. He was asked if he would accept the $500 due him and surrender his interest in the land, and he stated that he would not. Luther Bowen testified that his father was indebted to him in the sum of $1,000, but his explanation of this indebtedness was more vague and less satisfying than was the testimony in regard to the indebtedness due Clyde. Luther testified that he had dune some work for his father, but he did not explain when it was done, or the amount thereof, or the price therefor. He did admit, however, that he had made no charge for this work when it was performed. Bowen, the grantor, testified that he was also indebted to his daughter, Mrs. Opitz, but she did not testify in the case, and there was no testimony as to the amount of this indebtedness or as to how or when it was incurred.

It also appears that there was no change in the possession of the land, and the tenants continued to attorn to the g’rantor. His sons, the grantees, testified that it was understood between them and their father that he might collect and appropriate the rents as long as he wished after paying the taxes and repairs.

The law of this subject has been so often stated and restated that it would be a work of supererogation to review the cases on the subject. A single quotation from the opinion in the case of Norton v. McNutt, 55 Ark. 59, 17 S. W. 362, will suffice. In that case Mr. Justice Hemingway, speaking- for the court, said: “Every gift of property by one indebted is presumptively fraudulent as to existing creditors; and upon proof of the gift, the burden is cast upon those asserting it to show that the donor’s intentions were innocent, and that he had.abundant means left to pay all his debts. Wait, Fraudulent Conv., 93-5; Bump, Fraudulent Conv., 276; Pratt v. Curtis, 2 Lowell 90. The plaintiff was a creditor prior to the asserted transfer of the mule, and the jury was warranted in finding that it was made without any valuable consideration. In that case it was presumptively fraudulent; and, as'there is no evidence that the donor retained sufficient property to satisfy his creditors, the presumption becomes conclusive. Driggs v. Norwood, 50 Ark. 42, 6S. W. 323.”

Under the 'facts as we find them to be, and under the law as thus declared, the deeds were fraudulent, and the decree of the court below will therefore be reversed, and the cause remanded with directions to cancel them as having been executed in fraud of the grantor’s creditors.