author: Smith, J.,

text:
    Barton v. State.
    Opinion delivered October 24, 1927.
    1. Larceny — sufficiency of evidence. — Evidence held sufficient to sustain a conviction of grand larceny.
    2. Criminal law — cross-examination—harmless'eorror.—A question asked the witness on a cross-examination whether he was opening up a certain place to sell whiskey, and if that was what he was getting ready to do there, held harmless error, in view of his denial and the court’s instruction to the jury that his answer could be considered only as affecting his credibility.
    3. Witnesses — cross-examination.—A witness may be asked on cross-examination touching his recent and present residency, occupation and association for the purpose of enabling the jury to pass upon his credibility as a witness.
    4. Criminal law — discretion as to cross-examination of witness. —'Trial judges are intrusted with discretion in the examination of witnesses as to their present residence, occupation and association, and the exercise of such discretion will not be reviewed except for abuse thereof.
    5. Criminal law — refusal of instruction on circumstantial evidence. — Refusal to instruct on circumstantial evidence in a prosecution for larceny was not error where the prosecution did not rely wholly upon circumstantial evidence.

      Appeal from Miller Circuit Court; James H. McCollum, Judge;
    affirmed.
    STATEMENT BY THE COURT.
    Appellant was tried on an indictment charging him with having stolen five automobile casings and inner tubes, the property of Tom Burroughs. He was convicted, and given a sentence of one year in the State Penitentiary, and has appealed.
    The errors assigned for the reversal of the judgment are, (a) that the testimony is not sufficient to sustain the verdict; (b) that the court erred in permitting the prosecuting attorney to ask appellant, on his cross-examination as a witness in his own behalf, certain improper questions; and (c) that the court erred in giving and in refusing to give certain instructions.
    As to the sufficiency of the testimony to support the verdict, it may be said that the testimony on the part of the State was to the following effect:
    Burroughs testified that the casings and tubes were stolen from his place in Garland City, and were later found in the possession of one Orvil Richardson, and were later returned to witness. J. R. Whitlow testified that he found four of the casings and tubes at the home of Orvil Richardson, in the rear end of a Ford roadster, and that none of the tubes had any air in them at that time.
    The indictment did not allege that any rims'were stolen at the time the casipgs and inner tubes were taken, but Burroughs testified that some rims were also taken, and Whitlow testified that these rims were found at the home of J. D. Kyle, who is appellant’s father-ih-law. Lish Green testified he was with appellant on‘the night of May 28, the night the larceny was committed, in Garland City, and that appellant drove the car in which they had been riding to an alley which ran back of Burroughs’ house, between twelve and one o’clock at night. That appellant got out of the oar and went to the alley towards Burroughs’ house, and, in a short time, returned with the casings and inner tubes and some rims, which he placed in the back of his Dodge -roadster. Witness did not know, when appellant left the car, where he was going, or what he intended to do, or where he had got the casings, etc. After the casings, tubes and rims had been placed in the car they drove to the home of Orvil Richardson, where they spent the night and where they remained until the following afternoon, and appellant sold the casings and inner tubes to Richardson for twenty dollars cash. Witness did not get any part of the money and was not concerned in the larceny or sale.
    Richardson testified appellant told him he had some casings and tubes at the garage of John Kyle which he wished to sell, and that he bought them without knowing they had been stolen. That the casings were slightly worn, but were worth as much as $20, the price he paid for them.
    Appellant testified as a witness in his own behalf, and denied taking the property alleged to have been stolen, and denied having- any knowledge concerning it. He also testified that there was not room in his car to have carried all of the casings and tubes and rims alleged to have been stolen, and certain other witnesses gave testimony tending to exculpate appellant from any connection with the larceny. Among these witnesses was the mcther-in-law of the appellant, who testified that the rims found at her home were brought there by a man named Strong, who placed them in an out-house which they used as a junk room.
    During the cross-examination of appellant he was asked by the prosecuting attorney if he had not been convicted on the charge of selling whiskey, and he admitted that' he had. He was then interrogated concerning a house which he had built at Garland City, and which he said was intended for a filling station, short-eating orders and a little confectionery. The prosecuting attorney then asked appellant, “I want to ask you if you are not opening up that place to sell whiskey, and that is what you are getting ready to do there?” The court overruled an objection to the question, and appellant answered “No sir.”
    Appellant asked instruction number 10, which reads as follows:
    “10. If you believe from the evidence in this case that Lish Green and Orvil Richardson (or either of them) were accomplices in the commission of the offense for which defendant Barton is being tried, you cannot convict him upon their testimony, unless corroborated by other evidence tending to connect defendant with the commission of the offense, and (as in case of any other accomplice) the corroboration is not sufficient if it merely shows that the offense was committed, and the circumstances thereof. ’ ’
    The court struck* out the words inclosed in the parentheses, and gave it as modified, and appellant excepted to the modification.
    After thus modifying the instruction, the court gave an oral instruction which reads as follows:
    “The instruction No. 10 I have just read to you, with respect to an accomplice — that is, if you believe from the evidence the witness Lish Green or Orvil Richardson were accomplices, you.could not convict on their testimony, unless corroborated. With respect to an accomplice you are told that, if you find that either one of these witnesses were accomplices, then you must not convict the defendant-on the particular testimony of that witness, unless it is corroborated by other testimony tending to connect the defendant with the commission of the offense, and the corroboration is not sufficient if it merely shows the commission of the crime and the circumstances thereof.”
    Appellant also prayed an instruction number 7, which reads as follows:
    “7. Before you can convict defendant, all the facts and circumstances, when taken together, mnst be inconsistent with any reasonable hypothesis except that he is guilty. In other words, if all the facts and circumstances proved may be true, and cannot be explained in any reasonable way consistent with defendant’s innocence, ■ he .should be ‘convicted. But if they can be explained in any reasonable way consistent with defendant’s innocence, he is entitled to an acquittal. ’ ’
    The court refused to give this instruction, and an exception was saved to that action. Other facts will be stated in the opinion.

      Hamiter S Upton and McKay <& Smith, for appellant.

      H. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Smith, J.,

(after stating- the facts). In addition to the testimony stated above, two witnesses for appellant testified that they saw appellant in a Dodge roadster in and near Garland City at about midnight and at a later hour, in company with Green and Ernest Richardson, a brother of Orvil Richardson, and it was also shown that the casings had been recently removed from the rims found at Mrs. Kyle’s house, and that the casings sold Orvil Richardson fitted these rims perfectly. "We think this testimony legally sufficient to support the conviction.

The question asked appellant, on his cross-examination, touching the use which he proposed to make of the building- which he had erected at Garland City, should probably not have been asked, but we do not think it constitutes prejudicial error calling for the reversal of the judgment. The question was asked appellant on his cross-examination, and the court told the jury the answer could be considered only as affecting the credibility of the -witness, and, when he answered the question, he denied that he was about to open up the place for the sale of intoxicating- liquors.

A witness may be interrogated on his cross-examination touching his recent and present residence, occupation and association, for the purpose of enabling the jury to pass upon his credibility as a witness. Hollingsworth v. State, 53 Ark. 387, 14 S. W. 41. The court, in permitting the question to be asked, remarked that the answer could be considered for this purpose only, and, when the question was answered, the witness, denied he was about to engage in a violation of the law.

Trial judges must be intrusted with some discretion in examinations of this character, 'and we reverse only where an abuse of this discretion is shown. Care should be used- in the exercise of this discretion to see that the prosecuting attorney does not, by insinuation, ask questions which are not intended to show the present or recent association or occupation of the witness, but, as we have said, we think no abuse of this discretion appears.

According to the testimony of Green and Orvil Richardson, they were not accomplices, and, if they were not, their testimony did not .require corroboration, but, even though they were, we think there was sufficient testimony corroborating them to sustain the conviction. The court gave, at appellant’s request, an instruction defining accomplices. We think the court might very well have given instruction No. 10 as requested, but that no error was committed in the modification made, in view of the oral instruction set out above. The jury might have found that neither Green nor Richardson was an accomplice, or that Richardson was not an accomplice, even though Green was, and, if Richardson was not an accomplice, his testimony would not require corroboration, even though that of Green did. We think that the oral instruction makes it clear that a conviction could not be had upon the uncorroborated testimony of a witness found to be an accomplice, but that the corroboration would be required only as to the testimony of the witness found to be an accomplice.

No error was committed in the refus'al to give instruction numbered 7, set out above. We have held it was not improper to give such an instruction where a conviction was asked solely upon circumstantial evidence. Hazel v. State, 174 Ark. 1078, 298 S. W. 357. But the prosecution in this c-ase did not rely wholly upon circumstantial evidence.

We have held, however, that it is not improper to refuse to give such an instruction, even in Cases where conviction was asked wholly upon circumstantial evidence, where the jury was properly instructed as to the burden of proof resting on the State to establish the guilt of the accused beyond a reasonable doubt, and where reasonable doubt was properly defined. Rogers v. State, 163 Ark. 252, 260 S. W. 23; Bost v. State, 140 Ark. 254, 215 S. W. 615; Cooper v. State, 145 Ark. 403, 224 S. W. 726; Cummins v. State, 163 Ark. 24, 258 S. W. 622; Barker v. State, 135 Ark. 404, 205 S. W. 805; Garrett v. State, 171 Ark. 297, 284 S. W. 734; Rogers v. State, 163 Ark. 252, 260 S. W. 23.

Certain other errors are assigned which we think do not require discussion.

As no prejudicial error' appears, the judgment of the court below must be affirmed, and it is so ordered.


source: Caselaw Access Project

author: Humphreys, J.

license: Public Domain

text:
    St. Louis-San Francisco Railway Company v. Robinson.
    Opinion delivered October 24, 1927.
    Carriers — diversion of interstate shipment. — Under the rules of the Interstate Commerce Commission, the request of a shipper for diversion of an interstate shipment must either be in writing or confirmed in writing, and the shipper cannot recover for the carrier’s failure to divert a car pursuant to his oral request.
    Appeal from Crawford Circuit Court; James Cochran, Judge;
    reversed.

      E. T. Miller and Warner, Hardin S Warner, for appellant.

      Roy Gea/n, for appellee.
   Humphreys, J.

Appellees brought this suit against appellant in the circuit court of Ckawford County to recover damages in the sum of $461.49 for a car of potatoes shipped from Wister, Oklahoma, to Minneapolis, Minnesota, instead of Indianapolis, Indiana, upon several alleged grounds of negligence, all of which were abandoned except the allegation that appellant negligently failed to divert the car to Indianapolis while enroute. To this ground of alleged negligence appellant interposed the defense that the shipment was governed by rules of the Interstate Commerce Commission, which pro: vide that “a request for diversion or reconsignment must be m'ade or confirmed .in writing, and that orders for diversion or reconsignment which specify that either rate is to be protected will not be considered as obligating carriers to protect other than the lawful rate in these rules. ’ ’

The undisputed testimony in the case was to the effect that the request to divert the shipment was oral, and that there was no written confirmation thereof. Based upon this testimony, 'appellant asked for a peremptory instruction, which was refused, over appellant’s objection and exception. The cause was submitted to a jury upon the testimony and instructions, resulting in a verdict and consequent judgment in favor of appellees for the full amount sought to be recovered, from which an appeal has been duly prosecuted to this court.

Appellees attempt to sustain the judgment on the theory that the tariff contained in the rules of the Interstate Commerce Commission governing the diversion of carload shipments enroute does not apply to perishable products, such as potatoes, onions, etc. They say that fresh or green fruits, fresh or green vegetables (including potatoes and onions) and fresh berries and melons are. excepted specifically from the tariff or rules. We do not so interpret • the tariff or rules. The exception referred to by appellees relates to rates and charges and not to diversion of shipments enroute. A request for diversion in shipments must be either in writing or confirmed in writing.

In Keogh v. C. & N. W. R. Co., 260 U. S. 156, 43 S. Ct. 47, 67 L. ed. 183, in discussing the legal rights of a shipper against an interstate carrier, the Supreme Court of the United States said:

. “The rights, as defined by the tariff, cannot be varied or enlarged by either contract or tort of • the carrier (citing numerous authorities). This stringent rule prevails because otherwise the paramount purpose of Congress — prevention of unjust discrimination— might be defeated.”

In Missouri Pacific v. Wellborn & Walls, 170 Ark. 469, 280 S. W. 18, this court held (quoting syllabus):

“The rights of a shipper as against an interstate carrier are measured by the published tariff filed with the Interstate Commerce Commission, and the rights as defined by the tariff cannot be varied or enlarged by either the contract or tort of the carrier.”

On account of the error indicated the judgment is reyersed, and the cause is dismissed.


text:
    Security Mortgage Company v. Bell.
    Opinion delivered October 24, 1927.
    1. Appeal and error — order sustaining demurrer — exception.-— Objection and exception to the court’s ruling sustaining a demurrer to portions of a complaint saves the point for review on final adjudication and appeal of the whole action.
    2. Appeal and error — premature appeal. — An appeal from an order dismissing a complaint as to certain paragraphs, but leaving the paragraph which presented a triable issue, held prematurely taken, since the issue should have been tried and objection to the demurrer urged on final appeal from the whole action.
    Appeal from Clark Chancery Court; C. E. Johnson, Chancellor;
    appeal dismissed.

      Gustavus G. Pope, for appellant.

      Joseph.Calloway, for appellee.
   Humphreys, J.

Appellant instituted this suit against appellees in the chancery court of Clark County to redeem certain lands described in the complaint from a sale by the Boss Drainage District of said land on October 3, 1922, in a foreclosure proceeding, to satisfy its lien for delinquent benefit taxes due for the year 1921. Omitting the caption and other formal parts the complaint is as follows. On October 2, 1925, appellants filed the following complaint:

“Comes the Security Mortgage Company, a corporation domiciled at Texarkana, Arkansas, and for their cause of action against James Bell, Lula Bell, Alfred. Terrell,.....................Terrell, his wife; the Cil meins’ National Bank, the Saunders Mercantile Company, a corporation, John F. Bevill,..............................Bevill, his wife, and 0. 0. Meek, and........................, his wife, defendants, allege:
“That, on February 20, 1919, James Bell and Lula Bell executed and delivered to the Security Mortgage Company their promissory note in the sum of $2,000, due March 1, 1926, with semi-'annual coupons covering the interest on said note, and said note provides that failure to pay either installment of interest when due shall, at the option of the holder, mature the entire indebtedness, principal and interest, a copy of which note is hereby attached, marked Exhibit A, and made a part hereof; that on said February 20, 1919, said James Bell and Lula Bell executed and delivered as security for the payment of said note a mortgage conveying the following-described lands, located in Clark County, Arkansas, to-wit: The south half of the northeast quarter of the northwest quarter; the south half of the northwest quarter, and the northwest quarter of the southwest quarter of section 34, township 8 south, range 20 west. Said mortgage provides that failure to pay any installment of interest, or the taxes and assessments for local investments, shall, at the option of the Security Mortgage Company, mature all of said indebtedness, principal and interest earned. A copy of said mortgage is hereto attached, marked Exhibit B and made a part hereof; that said James Bell and Lula Bell have failed and refused to pay the various installments of interest due to this date, as shown by the interest coupons attached to said note, and have failed and refused to pay the taxes and the assessments due Boss Drainage District when due and payable, and therefore the entire indebtedness, principal and interest, is declared due and payable.
“Section 1. Plaintiffs further allege that, on or about November 19, 1919, said James Bell and Lula Bell executed and delivered ia warranty deed to Alfred Terrell, in consideration of the assumption of the above indebtedness, conveying the following lands in Clark County, Arkansas, to-wit: The northwest quarter of the southwest quarter of section 34, township .8 south, range 20 west; said deed is duly recorded in the office of the recorder in and for Clark County, Arkansas, in record book 89, at page 437.
“Section 2. Plaintiffs further allege that, on June 8, 1922, in the case of B. F. Dooley, as trustee, the Saunders Mercantile Company and the Citizens’ National Bank, plaintiffs against James Bell, Lula Bell, the Security Mortgage Company, the Mclver Abstract Company, N. R. Franklin, and W. B. East, as trustee, defendants, a decree was rendered by the chancery court of Clark County foreclosing certain indebtedness due the plaintiffs in said suit, and declared same subject to the indebtedness due the Security Mortgage Company, as hereinbefore set out, and, said indebtedness not being due, and said defendant, Security Mortgage Company, electing not to foreclose their first lien, said lands were ordered sold subject to said mortgage; and that, under the decree, the following lands were sold to the Citizens’ National Bank and the Saunders Mercantile Company, located in Clark County, to-wit: the south half of the northeast quarter of the northwest quarter and the south half of the northwest quarter of section 34, township 8 south, range 20 west. A commissioner’s deed was duly executed December 7, 1922, conveying said lands to the Citizens’ National Bank and the Saunders Mercantile Company, and is now on record in the office of the recorder in and for Clark County, Arkansas, in record book 110, at page 259.
“Plaintiffs further allege that, on October 3, 1922, upon constructive service only, a decree Was rendered by the chancery court of Clark County, Arkansas, in the case of the board of directors of Ross Drainage District, plaintiff, against James Bell as the supposed owner of the following described lands located in Clark County, Arkansas, for the drainage assessments, to-wit: The south half of the northeast quarter of the northwest quarter and the south half of the northwest quarter of section 34, township 8 south, range 20 west; that neither the Saunders Mercantile Company nor the Citizens’ National Bank nor the Security Mortgage Company were mlade parties to said suit, although said decree of foreclosure above set out and under which the legal title was vested in them was entered long prior to the filing of said suit for the collection of the assessments due said Boss Drainage District. Said proceedings are therefore void for lack of legal service as provided by law.
“Section 3. Plaintiffs further allege that said lands were sold under the provisions of said decree to the marntL. Drainage District and the purported legal title "tested in said district; that said Citizens’ National Bank and the Saunders Mercantile Company, as owners of the legal title, subject to mortgage of plaintiffs herein, failed to redeem said lands from said decree of foreclosure in favor of said Boss Drainage District, as provided by the act creating said district; that Callaway & Callaway, attorneys at law, of Arkadelphia, Arkansas, were the attorneys for the Boss Drainage District, and were also the attorneys for.the Citizens’ National Bank, and that, through the connivance of said attorneys, said drainage district, upon payment of the assessments due, amounting to $75.75, conveyed said lands to one John F. Bevill for the use and benefit of said bank and said Saunders Mercantile Company, the owners as above alleged; that the purpose of said conveyance was to defeat the plaintiffs’ first mortgage hereinbefore set out as a lien against said lands; that said owners were collecting the rents and profits from said lands, and it was their duty to redeem same, and said transfer should be treated as a redemption.
“Plaintiffs further allege that the actual value of said lands is unknown to them, hut that same are worth at least the sum of $1,000.
“Plaintiffs further allege that thereafter, through the connivance of said attorneys with said bank and mercantile company, and for the purpose of further concealing the interest of said bank and mercantile company, and to. defeat the plaintiffs’ first lien, plaintiffs are informed and believe that said John F. Bevill and wife conveyed said lands to 0. 0. Meek for a nominal consideration, although his deed does not appear of record.
“Plaintiffs further allege that they are entitled to redeem said lands from the sale to the Ross Drainage District, said pretended sale being merely a redemption in fact for the benefit of the legal and equitable owners of said lands.
“Section 4. Plaintiffs further allege that thewAU?p,, entitled to redeem from said sale, under the decree (flKjfe court to the Ross Drainage District, by virtue of act NoT 43 of the Acts of the Legislature of Arkansas for the year 1915 (1915 Acts 123), which provides that plaintiff shall have five years in which to redeem from said sale, land they here offer to pay the amount necessary under the law for the redemption of said lands upon being informed of the correct amount.
“Wherefore plaintiffs pray that they have a judgment for the amount of principal and interest due said James Bell and Lula Bell, as herein set out, and for all costs; that they be permitted to redeem from the sale for the assessments due Ross Drainage' District, as herein set out, and that said lands be ordered sold for the satisfaction of the amounts due them, and for all other proper and equitable relief. ”

Appellee, 0. 0. Meek, demurred in the lower court to numbers 2 and 3 and the first paragraph of § 4, each section being demurred to separately. The trial court sustained appellee’s demurrer to § No. 3 and the first paragraph of § No. 4, but overruled it as to § No. 2. Appellant refused to plead further, and said complaint was dismissed as to § 3 and the first paragraph of § 4, from which order plaintiff appealed. Appellees filed a motion to dismiss the appeal, on the ground that it was prematurely taken. After the demurrer was sustained to § 3 and the first paragraph of § 4 of the complaint and the complaint embracing these sections was dismissed, § 2 of the complaint remained, the demurrer having been overruled as to it. This section of the complaint tendered an issue as to the validity of the tax foreclosure sale, which should have been tried before an appeal was granted and perfected. An objection and exception to the ruling of the court sustaining a demurrer to the third section and first paragraph of the fourth section of the ¡complaint fully saved the point for review by this court on final adjudication and appeal of the whole action. This court said, in the case of Davie v. Davie, 52 Ark. on page 227, 12 S. W. 558, 20 Am. St. Rep. 170:

“The object of the limitation is to present the whole cause here for determination in a single appeal and. thus prevent the unnecessary expense and delay of repeated appeals.”

As the appeal must be dismissed for being prematurely taken, we refrain from passing upon the issues determined upon demurrer until the whole case is brought before us on appeal properly taken and prosecuted.

The appeal is therefore dismissed, and the cause is remanded- for proceedings not inconsistent with this opinion.


author: Kirby, J.

text:
    American Zinc Products Company v. Sanders.
    Opinion delivered October 24, 1927.
    1. Corporations — intervention in mortgage foreclosure. — An intervention in a mortgage foreclosure -suit to set aside and cancel the mortgage as fraudulent, and as giving preference to creditors of the insolvent corporation, must fail, where it was not commenced within: 90 days after execution of the mortgage, as required by Crawford & Moses’ Dig., §§ 1799, 1800.

      2. Corporations — dissolution of insolvent corporation. — The law relating to the dissolution and winding up of an insolvent corporation attempting toy execution of a mortgage to give preference to a creditor does not apply to a foreign corporation authorized to do business in the State.
    3. Fraudulent conveyances — sufficiency of evidence. — In an intervention in a foreclosure suit by one having a suit pending against the mortgagor, evidence held not to sustain a finding that the mortgage was executed without consideration and to hinder and delay creditors.
    4. Corporations — execution of mortgage.' — In an intervention in a foreclosure suit, wherein the intervener alleged that the mortgage was void because not executed by the mortgagor but rather by the mortgagee to itself, evidence showing that the mortgage was in fact signed by the president and secretary of the mortgagor corporation, and that the certificate of acknowledgment was executed by the same officers in their official capacities, held to show that the mortgage was in fact executed Iby the mortgagor, though by mistake the mortgagee’s name was signed as mortgagor.
    5. Corporations — evidence of execution of mortgage. — Recording of a mortgage and certificate of acknowledgment showing that the mortgage was in fact executed and acknowledged by the proper officers of the mortgagor corporation, though by mistake the mortgagee’s name was signed thereto, held sufficient to put third persons on inquiry and give notice of its existence and constituted a lien on the mortgaged property.
    6. Corporations — validity of mortgage. — In an intervention in a mortgage foreclosure suit to set aside a mortgage as fraudulent, the fact that the mortgagor and mortgagee were separate corporations, connected by officers and directors, did not make the mortgage fraudulent.
    7. Corporations — estoppel to deny existence. — One electing to treat a company as a corporation iby bringing suit against it as a corporation and alleging it to foe one, will not be allowed to deny its existence.
    Appeal from Sebastian Chancery Court, Fort Smith District; J. V. Bourl(M%d, Chancellor;
    reversed.
    STATEMENT OE FACTS.
    Appellant, American Zinc Products Company, brought this suit in the Sebastian Chancery Court to foreclose a mortgage against the Fort Smith Spelter Company, executed Dec. 14, 1922, securing a note for $’210,000.

      The appellee filed an intervention in said suit, alleging that he had a suit pending in the United States District Court since 1924, in which he was claiming damages to his lands by smoke from the operation of the Fort Smith Spelter Company in the sum of $16,000, and had caused an attachment to issue out of the Federal court and to be levied on the land and site belonging to said defendant spelter company, which was sought to be sold in the foreclosure of the mortgage. It is alleged in the intervention that both the zinc products company and the spelter company were organized under the laws of the State of Ohio, and “the intervener further says that the plaintiff and defendant have entered into a conspiracy to cheat and defraud this intervener and to hinder and delay him in the collection of his debt. That said conspiracy consists of a pretended loan made by the plaintiff to the defendant and an attempt to secure such pretended and fraudulent loan by the execution of a mortgage by the defendant to the plaintiff on all of the assets owned by the defendant, the same being the real property herein-before described. That said note and mortgage in controversy which are sought to be foreclosed in this action were made and executed a few days after the plaintiff instituted his above-mentioned suit in the Federal court, and were given without consideration and for the purpose of placing the property of the defendant beyond the reach of plaintiff, and for the purpose of securing a judgment by plaintiff against the defendant on said note and mortgage, and the sale of said property thereunder.
    The intervener further says that defendant is not indebted to the plaintiff in any sum, or in any manner whatever, and that the only consideration for said note and mortgage was an attempt to cover up defendant’s property so as to put it beyond the reach of this intervener. That, as a part of said conspiracy, the defendant executed to plaintiff its note sued on in this action, and a mortgage to secure same, which pretended mortgage was placed of record in the office of the clerk and recorder in and for the Fort Smith District of Sebastian County, Arkansas, a certified copy of said mortgage being attacked hereto, marked Exhibit A and made a part of this intervention.” And further, that the copy of the mortgage attached, as an exhibit to the complaint, was not a correct copy; and that the mortgage, as executed and recorded, shows that it was signed and executed by the plaintiff, who was the mortgagee; * * * that said purported mortgage was never signed nor executed by the mortgagor, but was executed by plaintiff, the mortgagee, to itself * * *; and “that said purported mortgage does not create a lien on defendant’s land in favor of the plaintiff, but does constitute a cloud upon the title to said defendant’s land, and that, if plaintiff is permitted to take judgment.in this action against the defendant and to foreclose said alleged mortgage, it will interfere with this intervener in the collection of his just debt and would be the means of putting the defendant’s property beyond the reach of its creditors, including this intervener.” Prayer was. made that the mortgage be canceled and set aside, that the alleged claim be held to be fictitious and void, and the note canceled.
    The reply denied that the zinc products company owned all the capital stock of the Fort Smith Spelter Company and that the corporations were one and the same, and alleged that they are separate and distinct corporations, each engaged in its own business, land denied that the Fort Smith Spelter Company was indebted to intervener in any sum or had damaged his crops' in any way. Denied that the attachment was legally issued in intervener’s suit in the Federal court against the property of the spelter company, and that it constituted a lien upon its property, and denied all the other allegations of the intervention. Alleged that the mortgage was executed by the spelter company in good faith and that the mortgage and notes were given for actual advancements in cash made to defendant company and used by it in payment of its debts and obligations. Alleged that the mortgage appears to be signed by the American Zinc Products Company, but in reality was signed by the Fort Smith Spelter Company, “although the name of the American Zinc Products Company was filled in as mortgagor;” that the mortgage was duly acknowledged by C. W. Martin, as president, and C. H. Stewart, as acting secretary, and all its provisions show that the spelter company was the mortgagor and the zinc products company the mortgagee; and that C. W. Martin, who was the president of the spelter company, and C. H. Stewart, who was its acting secretary, acknowledged the said mortgage as executed in their respective capacities as such, stating “that they were the president and acting secretary of the Fort Smith Spelter Company, a corporation, and were duly authorized in their respective capacities to execute the foregoing instrument for and in the name and behalf of said corporation,” etc.
    Prayer was made that the court reform the mortgage by adding lat the foot thereof “Fort Smith Spelter Company” instead of “American Zinc Products Company,” and that it be foreclosed, and that the intervention be dismissed. Motion to dismiss the intervention was also filed, because it had not been made until the time plaintiff was entitled to his judgment of foreclosure, and because the intervener had taken no testimony in the time allowed therefor in support of his intervention, which, it was alleged, was filed for delay, the plaintiff having continually insisted upon testimony being taken by the intervener, agreeing to waive notice and to take the testimony orally.
    The testimony shows that both the zinc products company and the spelter company are Ohio corporations, doing business in this State, the spelter company having been organized on the-day of-, some time before the organization of the zinc products company. It shows extensive dealings between the two corporations, the execution of the note and mortgage, and the advancement of the money for the payment of which the note was given by the spelter company, and secured by the mortgage.

      The terms of the mortgage, as written, show unmistakably that it wias executed to the zinc products company by the spelter company, and the acknowledgment also shows it. was so executed by the officials of the spelter company authorized to execute it by said company, notwithstanding it was signed, by mistake, as for the American Zinc Products Company, C. H. Martin being the president of both corporations.
    The testimony shows that, in the course of dealings between the corporations, the greater part of the output of the spelter company was sold and delivered to the American Zinc Products Company, but the collections were made and the money paid therefor to the spelter company upon drafts with bills of lading attached through its bank in Indiana.
    The American Zinc Products Company became the owner of most of the stock of the spelter company, but left enough outstanding to qualify the holders as directors and officials to continue the corporation’s existence.
    The chancellor denied the foreclosure of the mortgage, held it to be fraudulent, and canceled it, and appointed a receiver to take charge of the property, and from the decree this appeal is prosecuted.

      James B. McDonough, for appellant.

      Warner, Hardin £ Warner, and Hill & Fitehngh, for appellee.
   Kirby, J.

If this intervention, as appears to be the case from the allegations of the petition, be considered a proceeding to set aside and cancel the mortgage from the Port Smith Spelter Company to the American Zinc Products Company as fraudulent and giving a preference to the creditors of an insolvent corporation, it must fail, as not having been commenced within 90 days after the execution of the mortgage complained of, as the law requires, since the mortgage sought, to be foreclosed was recorded on June' 24,1924, as alleged in the intervention, which was not filed until October 14, 1925, more than a year after the execution and recording of the mortgage. Sections 1799 and 1800, C. & M. Digest; Nedry v. Vaile, 109 Ark. 584, 160 S. W. 880.

The chancellor held the mortgage void as fraudulent, denied appellant’s right to foreclosure thereof, and took charge of the mortgaged property by his receiver, under a $2,000 bond, and directed a sale thereof and that the receiver make prompt report of his action in the matter, and apply for orders with respect to the disposition of the proceeds realized from such sale, and retain jurisdiction to make orders for distribution thereof. The chancellor was without authority to order a sale of the property for winding up its affairs, as an insolvent corporation attempting, by the execution of the mortgage, to give preference to one of its creditors, as he held to be the case, since the law relating to the dissolution and winding up of an insolvent corporation, under such conditions, does not apply to a foreign corporation authorized to do business in the State. Dickey v. S. W. Surety Insurance Co., 119 Ark. 17, 273 S. W. 398, Ann. Cas. 1927B, 634; Macon v. LeCroy, 174 Ark. 228, 295 S. W. 31.

The evidence not only does not support the court’s findings that the mortgage was executed without consideration and to hinder and delay creditors in the collection of their debts and in the enforcement of their rights, but is contrary thereto, the great preponderance thereof being against such finding. The testimony is voluminous, but, notwithstanding strenuous efforts made to show that improper motives prompted the execution of the mortgage between the two corporations, we do not find anything in the evidence warranting the conclusion that the transaction was tainted with fraudulent intention, or that the effect of it was to hinder and delay creditors of the mortgagor corporation. It was not shown that there were any other creditors, or that the mortgagor corporation was indebted except to the mortgagee. The intervener was not a creditor of the mortgagee corporation in fact, but only had an alleged claim for damages to his lands, because of the operation of its plant, and for securing the enforcement of any judgment recovered an attachment had been levied, after the execution and recording of the mortgage, upon the mortgaged property. His claim was only for $16,000, and upon the first hearing thereof a mistrial resulted. Certainly the court could not have found necessity for denying the foreclosure of appellant’s mortgage, under the circumstances, and the sale of the mortgaged property, of the probable value of a half million dollars, and the taking charge of such property for selling it by a receiver, for the protection of an alleged claim for damages to the intervener, that might never be reduced to judgment, and could not exceed $16,000 in any event. The attachment issued would have protected any valid claim the intervener could have against the property attached, if the allegations of the intervention were true relative to its fraudulent conveyance, without any seizure and sale by the court’s receiver in this proceeding.

Neither do we agree with the contention that the mortgage of the Port Smith Spelter Company to the American Zinc Products Company was void, as not having been executed in fact by the spelter company, but rather by the zinc products company, as mortgagee, to itself. The entire instrument, as recorded and exhibited to this court, shows unmistakably that it was intended as a mortgage by said spelter company to the zinc products company, given to secure the payment of the note executed for advancements of money to said mortgagor, the note being correctly described in the recitals of the mortgage as the indebtedness of the spelter company, which the mortgage was executed to secure, the mortgage, in fact, being signed by the president and acting secretary of the mortgagor corporation, who, by obvious mistake, signed the name of the zinc products company instead of the spelter compa*ny, as the evidence discloses should have been and was intended to be done. The seal of the mortgagor corporation was attached with the signature, the indentation or impression showing it to. be such and containing the words “Port Smith Spelter Company,” and the certificate of acknowledgment shows that it was executed by the president and the acting secretary of the Fort Smith Spelter Company, who acknowledged that they had executed it in their respective official capacities by authority of the corporation for the Fort Smith Spelter Company, etc.

The recording of the mortgage, as executed, the whole of the writing, and the certificate of acknowledgment, showing conclusively that it was, in fact, executed and acknowledged by the proper officers of the corporation, who intended to, but by obvious mistake did not, sign its name as mortgagor, was sufficient to put third persons upon inquiry and give notice to all persons of its existence, and constituted a lien upon the mortgaged property.

The undisputed testimony established the fact that the directors of the two corporations were not always the same, that the stockholders were never the same, and, when this mortgage was executed, although C. W. Martin was president and treasurer of both companies, and C. H. Stewart was secretary of the spelter company and vice president of the zinc products company, the two companies remained separate corporations, and, even though they were so connected by the officers and directors, that fact did not make the transaction between the corporations fraudulent. They could have dealings and lend money to each other. Jones Lbr. Co. v. Wisarkana Lbr. Co., 125 Ark. 65, 187 S. W. 1068; Twin Lick Oil Co. v. Mabury, 91 U. S. 587, 23 L. ed. 328.

Both of the corporations were organized under the laws of Ohio, where it appears the Fort Smith Spelter Company was a de jure as well as a de facto corporation, as would have been held to be the case under our court’s ruling, and where a de facto may act as though it were a de jure corporation, and its corporate existence cannot be attacked in an action by or between private individuals. Perun v. Cleveland, 43 Ohio St. 481, 3 N. E. 357; Arlington Hotel Co. v. Rector, 124 Ark. 90, 186 S. W. 622.

Sanders having brought his suit in the Federal court against the Fort Smith Spelter Company as a corporation and his intervention in the chancery court alleging it was a corporation, he has elected to treat such company as a corporation, and should not be allowed to deny its existence. Petroleum v. Ware, 27 Ohio St. 343.

There is no reason in law why, under the circumstances of this case, there being no evidence tending to show that the mortgage was made to defraud or injure intervener and other creditors, the spelter company could not borrow money from the zinc products company and secure the payment thereof by a valid mortgage. Goodbar v. Locke, 56 Ark. 314, 19 S. W. 924; Galkins v. Lockewood, 16 Conn. 276, 41 Am. Dec. 143.

If the spelter company was insolvent at the time, and there was no real evidence to show that it was, the borrowing of $250,000 more, for which it executed said mortgage to secure the payment of, could not have proved injurious, in any event, to the intervener nor rendered the corporation insolvent. Cain v. Lane, 165 Ark. 205; 263 S. W. 399; McKee v. Hendricks, 165 Ark. 369, 264 S. W. 825, 952.

It follows that the chancellor erred in not reforming the mortgage as prayed, and in holding it a fraudulent conveyance, executed to hinder and delay creditors in the collection of their debts, and also in sustaining the intervention, which should have been dismissed for want of equity, and in appointing a receiver to take charge of and sell the mortgaged property. The decree is accordingly reversed, and the cause remanded with directions to reform the mortgage and foreclose same and sell the property for the payment of the indebtedness, and to dismiss the intervention for want of equity, and for all further necessary proceedings in accordance with the principles of equity and not inconsistent with this opinion.

Mehaeey, J., not participating.


text:
    Harris v. Columbia County Bank.
    Opinion delivered October 24, 1927.
    1. Infants — validity of release by infant. — Crawford & Moses’ Dig-., § 701, allowing a minor to make a valid receipt for the return of money withdrawn from a bank by check, does not validate a release to the bank executed by the minor, absolving the bank from responsibility for the acts of a third person.
    2. Infants — right to recover deposit in bank. — 'Under Crawford & Moses’ Dig., § 701, relating to deposits by minors, where the undisputed evidence showed that a minor deposited money in the bank which the bank refused to return on demand, because- the money had been withdrawn by another by forged check and the minor had executed an agreement to release the bank from responsibility in regard to the money, the minor was entitled to recover the amount of the deposit, and the court erred in not directing a verdict for it.
    Appeal from 'Columbia Circuit Court; L. 8. Britt, Judge;
    reversed.

      Wade Kitchens, for appellant.

      Paul Grumpier, for appellee.
   Kirby, J.

This suit was brought by Warnock Harris, a minor, by next friend, to recover a sum of money deposited by him in the appellee bank.

The undisputed testimony shows that appellant, a minor, 19 years of age, made a deposit of $39 in the appellee bank in August, 1924, for which he was given a deposit slip or ticket; thereafter he returned to the bank and talked with the officials, and desired to draw some of his money out; that the bank teller told him his account was closed and his money had already been drawn out. He inquired “How come?” and stated he had not drawn any money out. An examination of the cheek disclosed that it was a forgery, for which Claude Burton had already been arrested. The bank refused to pay him the money, and pleaded a release from liability executed by him on September 5, reading as follows:

“Magnolia, Arkansas, September 5, 1924.
“Owing to the fact that Claude Burton and his mother has agreed to refund the money that Claude Burton drew from my account at the Columbia County Bank, I agree to release the Columbia 'County Bank from any responsibility in regard to this money.
“Warnock Harris.
“Witness: R. C. Runyan.”

He denied having given any release, and stated that no money had been returned to him by Claude Burton, his mother, or any one else.- He explained the writing by saying, after the boy had drawn the money, he asked the bank for it, and was told that he could not get it until after the trial, and also that the boy’s mother wanted to see him and fix the matter up; that she later saw him, and he went with her to the bank, where she asked the teller if they had told appellant that she wanted to see him, and he .replied “Yes,” “and they told her if she would pay the money back they would release the boy, and the banker asked me if that would be all right, and I said 'Yes, sir, all I want is my money.’ ” He stated he had never received any money; that the bank refused to pay him, and told him that he could not get it until after the trial, and that the boy pleaded guilty.

One of the employees in the bank stated that he had never seen the appellant until he came in the bank and made the deposit of $39; that another boy, Claude Burton, was with him at the time, and that they stood out in front of the window counting the money, and “Warnock Harris brought the money and said that he wanted it in his name, and the witness wrote out 'a deposit slip to Warnock Harris for $39; that he also witnessed the instrument identified as a release; that the money was paid out by the bank during his absence from the bank, and, when Harris came in after his money, he looked in the books and told him that the account was closed,' that he had already got the money, and he replied no, he had not. Several days later he and Claude Burton’s mother came into the bank with George Harris, and the written agreement was made about the release of the bank, as set out above.

Appellant requested a peremptory instruction and three others, all of which were refused, and the court gave a peremptory instruction for appellee, directing a verdict in its favor, and from the judgment this appeal is prosecuted.

The undisputed testimony shows that the appellant deposited his money in the bank, which refused to return it to him on demand, and claimed a release from liability to its payment, upon suit brought, which it insists was valid under the banking laws, notwithstanding appellant was a minor at the time of its execution.

Section 701, 0. & M. Digest of the Statutes, provides: “ * * * when any deposit is made in any bank by a person who is a minor, it may pay to such depositor such sums as may be due him or her, and the receipt or check of such minor shall be in all respects valid in law.” This statute only relieves against the disability of the minor depositor, allowing him to make a valid receipt for return of his money withdrawn from the bank by check, and necessarily does not extend to validating such an instrument as this so-called release purports to be. It is neither a check nor receipt for money due or paid the minor, but at most only an agreement to release the bank from “responsibility in regard to this money,” in view of the fact that Claude Burton and his mother had agreed to refund the money drawn from his account at the bank on the forged check, which admittedly was never done.

The court erred in not directing a verdict upon the undisputed testimony for appellant upon his request for a peremptory instruction, and 'in directing the verdict against him. For these errors the judgment is reversed, and judgment will be entered here in appellant’s favor for the amount of the deposit, with interest. It' is so ordered.


author: Mehaeey, J.

text:
    Gravette v. Williams.
    Opinion delivered October 24, 1927.
    1. Statutes — construction of statutes on same subject. — All statutes relating to the same subject must be construed together in arriving at the legislative intent.
    2. Guardian and ward — liability for proceeds unaccounted for.— It is immaterial when an interest-bearing note for land sold by a guardian was collected on the question of surety’s liability upon the sale bond, since, if collected after maturity and not re-loaned, the guardian would be required, by § 5060, Crawford & Moses’ Dig., to pay interest.
    3. Guardian and ward — liability on sale bond. — The surety sued on a sale bond given by a guardian under Crawford & Moses’ Dig., § 5046, cannot complain of failure to sue sureties on sale bond and general bond, given under § 5013, where the sureties on the general bond had paid all but a small part of amount of sale bond, in satisfaction of judgment recovered in a suit on a general bond only.
    4. Guardian and ward — accounting of purchase-money note. — To account for the amount of purchase-money note paid to a guardian, as required by a sale bond given under Crawford & Moses’ Dig., § 5046, the guardian must not only charge himself therewith, but must safely keep and disburse it according to law; the object of the statute being to provide additional security for safe-keeping and proper disbursement of the proceeds of sale.
    5. Guardian and ward — liability of surety on sale bond. — The fact that a portion of the proceeds of the guardian’s sale of land was collected from the sureties on the guardian’s general bond, given pursuant to Crawford & Moses’ Dig., § 5013, does not . release the surety on the special sale bond, given under § 5046, from liability for proceeds unaccounted for.
    Appeal from Mississippi Circuit Court, Chickasawba District; G. E. Kecli, Judge;
    affirmed.

      E. E. Alexander and T. J. Crowder, for appellant.
    • Hamilton E. Little and Holmes, Canale, Look S Glanlc'er, for appellee.
   Mehaeey, J.

B. H. Williams and L. M. Moody, administrator of the estate of John B. Williams and Joe Williams, deceased, filed suit in the Mississippi Circuit Court against the appellant, W. D. Gravette, alleging that’ H. M. Haynes, as guardian of the person and estate of B. H. Williams, John Williams and Joe Williams, minors, obtained an order of the probate court of Mississippi County to sell certain lands, and that said Haynes, as guardian, was ordered by the probate court to make the sale and to execute a bond in the sum of $1,000 conditioned that he would truly account for the proceeds of the sale according to law and as the order might require. That he executed this bond, and W. D. Gravette was one of the sureties on said bond. That the sale was made of said land for the sum of $760, after same had been appraised, and that a deed was made and the purchasers executed a note and mortgage to the guardian, the note being payable twelve months after date and bearing 8 per cent, interest. That the accounts of the guardian were settled by the probate court of Mississippi County, showing a balance owing to said minors of $1,228.02. The sureties on the guardian’s general bond had paid all but $228.02. J. B. Williams and Joe Williams had died, and Moody was their qualified and acting administrator, and B. H. Williams has attained his majority.

There was a prayer for judgment for $228.02, with interest and cost.

The answer denied all the material allegations of the complaint, and alleged that plaintiffs had filed suit against A. M. Butt and Josie Sudberry, executrix of the estate of J. G. Sudberry, alleging that they were sureties on the bond of Haynes as guardian, and that plaintiffs had procured a judgment against them for $1000. Defendant denied that he was indebted to plaintiff in any sum.

It was agreed that the question should be submitted to the court sitting as a jury, and should be heard upon the pleadings and evidence introduced. Letters of guardianship issued to H. M. Haynes in 1910 and the guardian’s bond executed by Haynes with Sudberry and Butt as sureties were introduced. Also order of the probate court for the sale of certain lands and order directing the'guardian to give a special bond of $1,000, and there was also introduced the bond for $1,000 signed by the guardian and D. W. Hieles and W- D. Gravette, the appellant. There was also a report of sale showing that the property was sold for $760, which was more than three-fourths of its appraised value. There was introduced also the order of the probate court approving the sale and a guardian’s deed to the purchasers of the land, and deed of trust from the purchasers to secure the payment of the purchase money. Also the petition of B. H. Williams and the order of court finding that Haynes was indebted in the sum of $1,228.02 as guardian. *

The complaint of plaintiffs in the chancery court in Mississippi County against the sureties on both the general and special bond was introduced. Also the amended complaint, which was against the sureties of the general bond only. Also answer to the amended complaint, decree of chancery court against the sureties on the guardian’s general bond, and the deposition of Mr. Ramsey Duncan, who testified, in substance, that he was trustee in the deed of trust, and that the note which was given for the purchase of the land sold by the guardian was exhibited to him as paid, and he satisfied the record.

After hearing the evidence above mentioned, the court made the following finding of fact:

“In this case the court doth find the facts to be: 1. That on January 23, 1911, W. D. Gravette, as surety for H. M. Haynes, the guardian of Bolden (B. II.) Williams, John B. Williams, and Joe Williams, minors, executed the bond mentioned in and exhibited with the complaint.
“2. That, on December 3, 1910, the said H. M. Haynes, guardian as aforesaid, did, in pursuance to the orders of the probate court for the Chickasawba District of Mississippi County, Arkansas, sell to A. T. Cloar and R. T. Lipscomb, upon a credit of twelve months, for the sum of $760, tog-ether with interest at the rate of 8 per cent, per annum, the following described real estate belonging to his minor wards, to-wit: northwest quarter of the southwest quarter of section 28, township 15 north, range 10 east, Mississippi County, Arkansas; and that said sale was had under and in pursuance to §4 5044 to 5046, both inclusive, of Crawford & Moses’ Digest for the purpose of reinvestment.
“3. That the proceeds of the sale of the aforesaid land belonging to said minors, to-wit, the sum of $820.80. were duly received by the said H. M. Haynes, guardian as aforesaid, on December 3, 1911; that the accounts of the said guardian were duly settled by the probate court for the Chickasawba District of Mississippi County, Arkansas, on November 29, 1924, and that out of the proceeds of the aforesaid sale there now remains a balance of $228.02, together with interest from November 29, 1924, at the rate of six per cent, per annum, justly owing bj- the said H. M. Haynes, guardian as aforesaid, to his said wards.
“4. That the condition of said bond has been broken, and that the plaintiffs in this case are entitled to judgment against the defendant, W. D. Gravette, as surety on said bond, in the sum of $228.02, together with interest from November 29, 1924, at the rate of six per cent, per annum, making a total of $250.17 now due and owing.”

Judgment was given against the appellant for $250.17. A motion for a new trial was filed, overruled, and appeal taken to this court.

The appellant states that this suit involves the construction of §§ 5044 and- 5046 of Crawford & Moses’ Digest. Said sections read as follows:

“Section 5044. When it shall appear that it would be for the benefit of a ward that his real estate, or any part thereof, be sold or leased and the proceeds put on interest., or invested in productive stocks, or in other real estate, his guardian or curator may sell or lease the same accordingly upon obtaining an order for such sale or lease from the court of probate of the county in which such real estate or the greater part thereof shall be situate.”
‘ ‘ Section 5046. If, after a full examination, on the oath of credible and disinterested witnesses, it appears to the court that it would be for the benefit of the ward that the real estate, or any part of it, should be sold or leased, the court may'make an appropriate order for such sale or lease, under such regulations and conditions, subject to the provisions of this chapter in relation to the sale of real estate of minors, as the court shall consider suited to the case, first requiring the guardian or curator to enter into good and sufficient bond to make such leases and conduct such sale with fidelity to the interest of his ward and faithfully to account for the proceeds of such sale and lease according to law and as the order of the court may require.”

The appellant then contends that § 5046, above quoted, does not contemplate that the guardian shall continue to loan the money derived from the sale of lands.

It is unnecessary to decide in this case whether that is a proper construction of § 5046 or not, because there is no evidence in the record that hó did continue to loan the money derived from the sale of lands. The evidence conclusively shows that he collected the money, charged himself with it, but never did pay it over or account for it.

We agree with the appellant that it is the settled law in this State that all statutes relating* to the same subject shall be construed together in arriving at the legislative intent. The statute provides for the probate court to appoint guardians and curators, and § 5013 of Crawford & Moses’ Digest provides that guardians and curators appointed by the court shall, before entering on the duties of their offices, give bond with security to be approved by the court, before they shall be appointed, to the State of Arkansas, for the use of the minors, respectively, in double the value of the estate or interest to be committed to their care, conditioned for the faithful discharge of their duties according* to law. That is the condition of the guardian’s general bond. The bond given in this case is under § 5046, and provides that the courts shall require the guardian or curator to enter into a good and sufficient bond, not only that he will conduct such sales with fidelity to the interest of his ward, but that he will faithfully account for the proceeds of such sales according to law and as the order of the court may require. It is also provided in § 5060 of Crawford & Moses’ Digest that, if any guardian fail to loan the money of his ward on hand, he shall be accountable for the interest thereon.

Considering' all these statutes together, as suggested by the appellant, it appears that the guardian, when appointed, is required to give a general bond for the faithful discharge of his duties, that in sales of land, as in this case, he is required to give an additional bond, not only for good faith in making the sale, but to account for the proceeds of such sale, and, if he does not lend the money under the order of the court (and it does not appear in this case that he did), or if he should lend the money without an order of the court to do so and without the approval of the court as to his sureties, then in either event he would himself be liable for the interest.

The probate court made the order to sell the land, it was sold on a credit of twelve months, and a deed was executed by the guardian and approved by the court and a deed of trust executed by the purchasers to secure the payment of the purchase money, $760, and this action was approved by the court. This note was then collected by the guardian, and it does not appear that he ever accounted for it.

It is true, as argued by appellant, that the only assets ever coming into the hands of the guardian, so far as the records show, were the proceeds of the sale of the land. It is also true that this sale was made in conformity with the orders of the court, and, so far as the record shows, was free from fraud or bad faith in any way. Some of his actions seem to have been reported to the court, but we think the appellant is in error when he says he accounted to the court for the proceeds. It is true he took a note and deed of trust to secure the payment of the note, as ordered by the court, but he collected this note and did not account for the money collected. It is true that it is not shown by the record when it was collected, but we think that immaterial, because the note itself was an interest-bearing note, and, if lie collected it after maturity, lie would necessarily collect the interest on it, and then he would be required to pay interest if he did not lend it again from that time on. These bonds were given for this purpose.

It is unnecessary to decide whether a suit could have been maintained against the sureties on both bonds and $1,000 only recovered, because, if that had been done, the appellant would have had to pay more than he is now called upon to pay, and he cannot complain because the procedure was such that his obligation was less than it would have been if plaintiff had proceeded as suggested by appellant.

In a Missouri case it was said by the court:

‘ ‘ It can hardly be maintained that an administrator or guardian has faithfully accounted for money received by him as such, Avithin the meaning of the statute or bond requiring' him to fully account therefor, when he simply charges himself therewith before the proper officer, and, at the time, has the same in his possession.” State v. Coleman, 73 Mo. 684.

In this case it is not disputed that the. purchase money note Avas paid to the guardian, but that he simply charged himself with it before the proper officer, the probate court, and, as said in the case last mentioned, in order to faithfully account for such money, he must not only charge himself with it, but he must safely keep and disburse the same according to law. The object of the statute was to provide additional security for the safekeeping and proper disbursement of the proceeds of the sale of the land.- That was the purpose of requiring the bond. Not simply that the sale should be fairly made and that the guardian should report it, but that he should pay it over to the persons entitled to it. That is what is meant by accounting for it.

There are numerous authorities cited in appellee’s brief, but it is unnecessary to repeat them here. The bond, as we have said, was given for the specific purpose of requiring a proper sale and accounting for the proeeeds of tlie sale of this particular land, and the fact that a portion of the proceeds had been collected from the sureties of the general bond does not release the surety on this special sale bond. In fact, the appellant was liable on his bond for $1,000, for there was that amount of the proceeds unaccounted for.

There is no dispute about the facts, and, while the appellant says that the court erred in its finding of facts and declarations of law, yet he does not point out in what respect it erred in either, except in the matters we have above discussed. We find no error in the findings of fact or law, and the judgment of the circuit court is affirmed.


author: McHaney, J.

text:
    Doyle Dry Goods Company v. Doddridge State Bank.
    Opinion delivered October 24, 1927.
    1. Corporations — liability on note executed by officers. — In an action to establish, as the debt of a corporation, a note executed by its president and one of its directors, evidence held to sustain the chancellor’s finding- that the note was an obligation of the corporation.
    2. Banks and banking — loan made in violation of banking law. —The fact that the amount of a loan to a corporation was split into two notes, one signed by the corporation and the other by its president and one of its directors, in order to circumvent Crawford & Moses’ Dig., § 698, prohibiting a loan by a bank exceeding 80 per cent, of capital stock, held not to relieve the corporation of liability on both notes, since § 698 carries with it no penalty.
    Appeal from Pulaski 'Chancery Court; John E. Mart-mean, Chancellor;
    affirmed.

      Trieber <& Lasley, for appellant.

      Framh S. Quinn and Shaver, Shaver & Williams, for appellee.
   McHaney, J.

This'is an action to establish as the debt of appellant a $3,500 note executed by R. A. Doyle and H. W. Doyle, originally executed December 4, 1922, and renewed thereafter every 90 days, the last renewal being August 19,1925, and for a judgment in said amount against appellant, -with interest. In 1922 appellant negotiated a loan from appellee in the sum of $7,000, through Mr. Milton Winham, president of appellee, and a director in appellant company. This amount being in excess of the amount appellee could lawfully lend to anx one borrower, it was arranged between appellant and appellee that they would split the loan into two notes, one to be executed by appellant, with personal indorsers, and the other to be executed by said Doyles, with $7,000 stock in appellant as collateral. Accordingly, on November 29, 1922, Mr. Winham, acting for appellee, wrote Mr. J. P. Blanks, vice president of appellant, and who was acting for appellant, in part as follows:

“In accordance with our talk a few days since about the loan from the Doddridge State Bank of Doddridge, Arkansas, I am herewith handing you two notes for $3,500 each. One of these is for a loan to the company, properly executed by same, and the other to be loaned to the company through one of the men in the house, and secured by twice the amount of stock in the company, properly executed, with' the releases, as you stated. You know just how to fix these up legally, and I will ask that you do all this and send same to me at Texarkana, and I will have exchange sent to the company according to your directions. * * *”

And in concluding the letter, said: “Kindly have it all fixed up so that we can get by the Bank Commissioner without criticism, and mail to me here, and I will attend to it.”

In response to this letter, Mr. Blanks, on December 1, wrote Mr. Winham two letters; one in which he inclosed the note signed by appellant and indorsed by certain individuals, and in the other he inclosed the note signed by the Doyles, with the stock as collateral; Both notes were executed on the same date, to-wit, December 4, 1922, and, on receipt of said notes and collateral, executed and indorsed in accordance with said agreement, appellee mailed exchange to appellant in the sum of $7,000. Thereafter, from time to time, as the notes became due and were renewed, notices were sent to appellant and remittances were made by it for the interest on both notes, and several letters-passed between appellant and Mr. Winham, acting for appellee, regarding the matter. On August 19,1925, the last renewal was made, and neither of the notes was paid at maturity, but finally appellant paid the note executed by it, and on February 4, 1926, Mr. Blanks wrote a letter to Mr. Winham, in which, for the first time, he intimated that the note executed by the Doyles was not in fact an obligation of the company. Mr. Winham answered this letter immediately, on February 6, and advised Mr. Blanks that he would not agree with his interpretation of the matter, and in which he asserted that the Doyle note was a note of the company, and that it was arranged that way by Mr. Blanks; that the company got the money, paid the interest, and that the company would be expected to pay. Thereafter suit was brought in the Pulaski Chancery Court to have this note declared the indebtedness of the company, and to impound the funds of appellant in the hands of R. C. Wilkins, who was placed in charge of the business of appellant as a creditors’ manager, or liquidating agent, and to enjoin him from disposing of the funds without taking this note into consideration. On a hearing the chancellor found that the note in question was an obligation of the company, and rendered judgment against it, with interest, amounting to $3,729.60, from which comes this appeal.

We think the chancellor was right in so holding. The very great preponderance of the evidence shows this to be the fact, and the letter written by Mr. Winham on November 29 conclusively, to our minds, shows this to be true. At any rate, we cannot say that it is against the preponderance of the evidence. This being true, the contention of counsel for appellant that this is a suit for the reformation of a written contract, and that therefore the rules of evidence applicable to reformation apply, cannot be sustained. It was simply a suit by appellee to have this note established as the obligation of appellant. An action for reformation is usually based on a mutual mistake, or a mistake of one party accompanied by fraud or other inequitable conduct on the part of the other party. American Alliance Ins. Co. v. Paul, 173 Ark. 960, 294 S. W. 58; Welch v. Welch, 132 Ark. 227, 200 S. W. 139. There are no allegations to this effect in this complaint, and the only issue made by the complaint was whether or not appellee loaned appellant $7,000 and took notes in evidence of the transaction, as charged in the complaint. This court has heretofore held that a note ■ executed by one person may be in fact shown to be the real debt and obligation of another person. Richeson v. National Bank of Mena, 96 Ark. 594, 132 S. W. 913. And it'is only necessary to show this fact by a preponderance of the evidence. It was not even necessary that the contract be in writing. It was not within the statute of frauds, and the same rule of evidence would obtain.

Appellant next insists that appellee is not entitled to recover, irrespective of reformation, for the reason that the loan was made in violation of the law, and that, of necessity, in mailing out his case he is forced to rely on an illegal transaction, and that in such cases relief will be denied. This contention is based on § 698 of O. & M. Digest, which is as follows:

“No bank in this State shall lend its money to any individual, corporation or company, directly or indirectly, or permit any individual, corporation or company to become, at any time, indebted or liable to it in a sum exceeding thirty per cent, of its capital stock actually paid in, or permit a line of loans or credits to any greater amount to any individual or corporation; a permanent surplus, the setting apart of which shall have been certified to the Commissioner, and which cannot be diverted without due notice to said officer, may be taken and considered as a part of the capital stock for the purposes of this section. Provided, that the .discount of the following classes of paper shall not be considered as money borrowed within the meaning of this section. * * *”

This provision of the banking law was enacted for the protection of depositors, creditors and stockholders. It carries with it no penalty. It has no provision making an excessive loan void or unenforceable as against the borrower. This section was amended in 1927 in many particulars, none of which are applicable to this case; but, in the third section of the amendatory act, a penalty is fixed for the violation thereof by the officers and directors knowingly permitting excess loans, making them personally liable for the excess amount of the loan in the event the bank should sustain loss by reason" of such excess. See act 174, Acts 1927, page 612.

It was not the intention of the Legislature enacting this law, as more plainly appears in the amendatory act, to relieve the borrower from liability on account of the violation of the law by the officers of the bank, and, as was said in the case of Richeson v. National Bank of Mena, supra, “It has been held by the Supreme Court of the United States that the action of a national bank in making an excessive loan contrary to the national banking law could only be objected to by the Government, and that the debtor could not urge the prohibitive provisions of the national statute ag’ainst a recovery of such excessive loan.” Nat. Bank v. Matthews, 98 U. S. 621, 25 L. ed. 188; Nat. Bank v. Whitney, 108 U. S. 99, 26 L. ed. 443; Gold Mining Co. v. Nat. Bank, 96 U. S. 640, 24 L. ed. 648. Section 745 of C. & M. Digest only provides a penalty for overdrafts and 1ms no relation to § 698. The only penalty we have been able to find fixed by law for a violation of the excessive loan act is that contained in the act of 1927, above referred to.

We therefore hold that, although this was an excessive loan and made in such a way as to avoid criticism of the Bank Examiner, yet it could not have the effect of destroying the obligation to pay, and that the only person who could question the matter at all would be the State, through the Bank Commissioner. The decree of the chancery court is therefore right, and is in all things affirmed.


text:
    D. C. Goff Company v. First State Bank of DeQueen.
    Opinion delivered October 24, 1927.
    Fraudulent conveyances — bulk sales law. — A restaurant keeper, whose business it is to serve food and drink to the public, and who incidentally sells such merchandise as cigars, cold drinks and confections, is not a-merchant within the bulk sales law, Crawford & Moses’ Dig., § 4870, et seq., as amended by Laws 1923, p. 340, and a chattel mortgage on his furniture, fixtures and equipment need not comply with such statute to be valid.
    Appeal from Sevier 'Chancery Court; Abe Collins, Special Chancellor;
    affirmed.

      La-Ice, Lalce & Carlton, for appellant.

      Steel & Edwards, for appellee.
   McHaney, J.

This appeal is prosecuted from a decree of the cha.ncery court of Sevier County holding valid a mortgage on the furniture, fixtures and equipment of a restaurant or cafe known as the Bon Ton Cafe. Appellant is a creditor of this concern and appellee is the holder of a mortgage given to secure a valid indebtedness. In connection with its restaurant business, the Bon Ton Cafe had a soda fountain, sold cold drinks, cigars and confections. This was, however, incidental to its main business, that of serving foods to its customers. Appellant concedes appellee’s indebtedness, but seeks to have its mortgage declared void under act 374, Acts of 1923, which is amendatory of § 4870 et seq., C. & M. Dig., commonly known as the “Bulk Sales Law.” The first section of said act reads as follows:

“The sale, transfer, mortgage or assignment, in bulk, of any part of or the whole of a stock of merchandise, or merchandise and fixtures pertaining to the conduct of any such business, otherwise than in ordinary course of trade and in the regular prosecution of the business of the seller, transferrer, mortgagor or assignor, and the purchaser, transferee, or assignee shall, at least ten days before the sale, or the giving of said mortgage, make a full detailed inventory and preserve the same, showing the quantity and, so far as it is possible with the exercise of reasonable diligence, the cost price to the seller, transferrer and assignor of each article to be included in the sale; and also, unless the purchaser, transferee or assignee demands and receives from the seller, transferrer or assignor a written list of the names and addresses of the creditors of the seller, transferrer or assignor with the amounts of-the indebtedness due or owing to each, certified by the seller, transferrer or assignor, under oath to be a full, accurate and complete list of his creditors and of his indebtedness; and also unless the purchaser, transferee or assignee shall, at least ten days before taking possession of such merchandise and fixtures or paying therefor, 'notify, personally or by registered mail, every creditor whose name and address is stated in said list, or of whom he has any knowledge, of the proposed sale and the price, terms and conditions thereof. Sellers, transferrers, mortgagors and assignors, purchasers, transferees, mortgagees and assignees under this act shall include corporations, associations, copartnerships, and individuals. But nothing contained in this act shall apply to sale by executors, administrators, receivers, trustees in bankruptcy, or any public officer under judicial process. Any purchaser, transferee, mortgagee or assignee who shall not conform to the provisions of this act shall, upon application of ¡any creditor of the seller, transferrer or assignor, become a receiver and be held accountable as such to creditors for all goods, wares, merchandise and fixtures that have come into his possession by virtue of such sale, mortgage, transfer, or assignment; provided, however, that any purchaser, transferee, mortgagee or assignee who shall conform to the provisions of this act shall not be held in any way accountable to any creditors of the seller, transferrer or assignor for any of the goods, wares, merchandise or fixtures that may come into his possession by virtue of such sale, transfer or assignment.”'

In the case of Ramey-Milburn Co. v. Sevick, 159 Ark. 358, 252 S. W. 20, this court held that the bulk sales law “has no application to a manufacturing plant which sells its product merely as an incident to the business.” In Fiske Rubber Co. v. Hayes, 131 Ark. 248, 199 S. W. 96, an automobile agency and accessory business was held not to be within the bulk sales law. See also Robbins v. Fuller, 148 Ark. 173, 229 S. W. 8. In State Bank of Siloam Springs v. Marshall, 163 Ark. 566, 260 S. W. 431, 34 A. L. R. 202, this court, in defining a merchant or trader, said:

“One engaged in the business of running a boarding and rooming-house is not engaged in the purchase and sale of merchandise or chattels, but is engaged in furnishing the traveling public with a temporary home and with food. It is true that groceries and other merchandise are purchased for use in running rooming-houses and feeding the boarders, but the articles are used by the roomers, and served to the .boarders in a changed form. It has been well said that to say that such a business is that of a merchant or trader is giving those words an elasticity of meaning not according to common usage” (citing cases).

It will be noticed from the language of the act that it pertains only to the business of merchandising — the business of a merchant or trader' in merchandise — and the prohibition is leveled against the sale or mortgage in bulk of a “part of or the whole of a stock of merchandise, or merchandise and fixtures”, of a merchant. Clearly, we think, a keeper of a restaurant, whose business it is to serve food and drink to the public, is not engaged in the mercantile or merchandising business, nor is he a merchant, within the meaning of the bulk sales law. Even though he may keep some merchandise which is used or useful in his business, including cigars and cold drinks, still we are of the opinion that this does not change the character of the business, but is only incidental thereto.

We therefore conclude that appellee’s mortgage is valid, and that the' chancery court correctly so held. The decree is accordingly affirmed.


author: Hart, C. J.,

text:
    Daily v. Daily.
    Opinion delivered October 31, 1927.
    1. Divorce — provision for maintenance of minor child. — Where a divorce decree was silent respecting the maintenance of a daughter 15 years of age, a divorced wife could maintain an action against the husband for her future support and education, until she arrived at full age.
    2. Divorce-^support and maintenance of minor child. — An agreement between parents as to the custody and support of their minor children does not affect the right of equity to award the custody of a child to either parent and to make reasonable provision for its support and education.
    8. Divorce — allowance for support and education of minor child. —Where a divorce decree was silent as to the custody and maintenance of a daughter 15 years of age, in a divorced wife’s action against her husband, an allowance of $20 a month while the daughter was attending school held reasonable, notwithstanding defendant’s evidence that he only received the income of. $20 a month from his property.
    4. Divorce — allowance for past support. — In a divorced wife’s action to recover for money paid by her for the support of a minor daughter, a judgment against the husband for $100 for past support was error,, where an allowance of $20 a month against him was sufficient, in view of his health and financial ability.
    Appeal from Benton Chancery Court; Lee Seamster, Chancellor;
    modified.
    STATEMENT OE FACTS.
    This action was brought in the chancery court of Benton County, Arkansas, -by Elizabeth Daily, the divorced wife of W. B. Daily, against him to recover for money paid by her for the support of their minor daughter and to obtain judgment in the sum of fifty dollars per month for the future support and education of said daughter. W. B. Daily defended the suit on the ground that their daughter refused to live with him, and that he is not able to pay anything like the sum required for her maintenance and education.
    The record shows that, on the 6th day of January, 1926, Elizabeth Daily obtained a divorce from W. B. Daily in the chancery court of Benton County, Arkansas. At the time the parties made an estimate of the value of the property owned hy W. R. Daily, and he gave Elizabeth Daily a deed to property valued at one-third of the whole in settlement of all property claims she might have against him. At the time of the divorce they had a daughter who was nearly fifteen years of age. The decree of divorce was silent with respect to her custody, support and education.
    According to the evidence of Elizabeth Daily, it was agreed between the parties that their daughter, Anna, should be left in her custody and that she should support her until school should be out in the following May. After that time W. R. Daily agreed to contribute towards her support and education. Though requested to do so, the defendant had not contributed anything for the support of their daughter, except eleven dollars. In the property allotted to the defendant there were two bearing apple orchards. The defendant married about a month after Elizabeth obtained a divorce from him, and lives with his present wife on her farm. She has three children, the oldest of whom is nearly grown, and lives away from home most of the time. Her other two children are small, and live at home with their mother and stepfather.
    According to the testimony of Anna Daily, she prefers to live with her mother because her father has remarried. If he had not married again, she would just as soon live with him as with her mother. It was also shown by the mother that the daughter was in school, and that her expenses for support and education would amount to fifty dollars per month, and that the mother was not able to pay all of that amount.
    According to the testimony of W. R. Daily, his apple orchards have greatly deteriorated in value, and, at the present time, do not yield him any income. His property only yields him an income of twenty dollars per month. He is not strong, and can do but little except to manage the farm of his present wife and work on it to some extent.

      It was decreed that Elizabeth Daily should receive from W. E. Daily the sum of one hundred dollars, which she had paid for the support and education of their minor daughter since the decree of divorce, and that she should have judgment against him for the sum of twenty dollars monthly, coinmencing on the 15th day of November, 1926, which sum was to be used for the support and education of their minor daughter, Anna Daily. It was further decreed that the custody of said minor be awarded to the mother. The case is here on appeal.

      W. 0. Yoimg, for appellant.

      Duty & Duty, for appellee.
   Hart, C. J.,

(after stating the facts). In Holt v. Holt, 42 Ark. 495, it was held that a court of equity will, at a subsequent term, entertain the petition of the mother to recover from the father her reasonable and proper advances for the support of their minor children since the divorce and for an order for their future support. In that case, at the time of the rendition of the decree of divorce, the care and custody of the two younger children was awarded the mother, but no provision was made in the decree as to who should defray the expenses of their support and education while they were in charge of the mother. The court held that the father was bound to maintain the children as long as they were too young to earn their own livelihood, and that the fact that the mother had been awarded their custody in the divorce decree did not relieve the father from his obligation to support them.

In a case-note to Spencer v. Spencer, 97 Minn. 56, 7 Ann. Cas. 901, at page 903, 105 N. W. 483, 2 L. R. A. (N. S.) 851, 114 Am. St. Rep. 695, it is said that a majority of the cases hold that, where the divorce decree awards the custody of the children to the mother but makes no provision for their maintenance, the father’s legal liability to support his children still continues, and a reasonable sum may be recovered for their support.

It follows that the plaintiff had a right to maintain this action against the defendant for the custody of their minor child and for her fntnre support and education until she arrived at full age. In this connection it may he said that, whatever the result of the agreement between the husband and wife with respect to the custody and support of their minor child, such agreement does not affect the right of a court of equity to award the custody of the child to either parent and to make reasonable provision for its support and education. The reason is that the public has an interest in the matter, and that the interest of the child is the paramount consideration of the court.- In this view of the matter the court did not err in awarding the custody of the child to the mother, for she had arrived at an age when her wishes should be considered in the matter, and she preferred to live with her mother because her father had married again.

On the question of support and education of the minor, we are of the opinion that the allowance of twenty dollars per month, as fixed by the chancellor, for the future support and education of the minor while she is attending school, was reasonable, and it will be allowed to stand. The father testified that his orchards had depreciated in value so that at present they did not yield him any income. He stated that he only received an income of twenty dollars per month from his property. This, we think, is a reasonable sum to be devoted to the education of his daughter during her minority, leaving him to support himself.

We think, however, that the chancellor erred in rendering judgment against him for one hundred dollars for past support, for the reason that we think that the allowance of twenty dollars against him was a sufficient consideration, when his state of health and financial ability is considered.

The result of our views is that the decree of the chancery court will be modified so as to require the defendant to pay to the plaintiff the sum of twenty dollars monthly, commencing on the 15th day of November, 1926, for the support and education of said minor, Anna Daily, and the decree of the chancery court awarding, the custody of said minor to the plaintiff will he affirmed. The cost of this appeal willbe taxed against the defendant.

It is therefore ordered that the decree of the chancery court he modified in accordance with this opinion, and, as modified, it will be affirmed.


author: Hart, C. J.

text:
    Feaster v. State.
    Opinion delivered October 31, 1927.
    1. Criminal law — -liability of accessory. — An accessory cannot be guilty if the principal is not guilty, and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty.
    2. Criminal law — accessory before the pact. — The offense of an accessory before the fact may be included in the crime of which the principal is guilty.
    3. Criminal law — order of trial of accessory.- — Where principals charged with murder were present and ready for trial, and the State was also ready for trial, and no reason was assigned for trying defendant charged with being an accessory before the fact, before the principals were tried, denial of the defendant’s motion to require the State to try the principals first held an abuse of discretion.
    Appeal from Clark Circuit Court; James H. McCollum, Judge;
    reversed.

      Jones $ Kibbler, R. W. Kuie, Jr., and McMillan & McMillan, for appellant.

      K. W. Applegate, Attorney General, and Darden Moose, Assistant, for appellee.
   Hart, C. J.

Ida Feaster was indicted for being accessory before tbe fact to the murder of Elmo Hames, charged to have been committed by Charles Bell and Terrell Austin. A trial resulted in a verdict of guilty, and the jury fixed her punishment at imprisonment for life in the penitentiary. The case is here on appeal.

The first assignment of error is that the court erred in overruling the motion of the defendant to require the State to try the principals before forcing her to trial, and in this contention we think counsel for the defendant are correct. At common law an accessory cannot be tried, without his consent, before the trial and conviction of the principal, unless they are tried together. 16 C. J. p. 141, par. 150 (2); and Brill’s Cyclopedia of Criminal Law, vol. 1, par. 254, p. 455. ■

In this State the rule has been changed by statute, which provides that an accessory before or after the fact may be indicted, arraigned, tried and punished although the principal offender may not have been arrested and tried, or may have been pardoned, or otherwise discharged. Crawford & Moses’ Digest, § 2314.

The statute serves a very useful purpose. The principal may have fled the State, and be beyond the jurisdiction of the court'. He may have become insane, and for that reason the trial of his case be postponed. There might be other good reasons for a continuance of his case. In all of these contingencies the trial of the principal would be postponed through no fault or action on the part of the prosecution. In this connection it may be said that the accessory cannot be guilty if the principal is not guilty, and he can be guilty of no other or higher grade of crime than that of which the principal is also guilty. Ray v. State, 102 Ark. 594, 145 S. W. 881. This court has also held'that, where the defendant is being* tried as an accessory before the fact to the crime of murder, the State may prove the conviction of the principal. Jones v. State, 108 Ark. 447, 158 S. W. 132, and Tiner v. State, 110 Ark. 251, 161 S. W. 195. Hence the offense of an a-coessorv before the fact is included in the crime of which the principal may be guilty.

The holding* in these cases shows that it is the better practice to try the principal before the accessory. Then, too, .the defendant has some rights in the matter. Tn the case at bar the principals were indicted first. On March 14,1927, at the term of the court at which she was tried, the defendant filed her motion to require the State to try the principals before the accessory. Charles Bell and Terrell Austin, charged to be the principals, were present 'and ready for trial. The defendant alleged that she was informed and believed that the State was ready for trial in the cases against the principals. The deceased was found dead in his home, at eight o’clock in the morning on September '23,1926. It was the theory of the defendant that he committed suicide, and her defense was bottomed on that theory. No reason was assigned for trying the accessory before the principals, and we can perceive none. Under the circumstances we think the court abused its discretion in trying the accessory before the principals, and his action calls for a reversal of the judgment.

It is also earnestly insisted by counsel for the defendant that the evidence is not legally sufficient to support the verdict. Inasmuch as the case may be further developed, and additional evidence may be secured before a retrial of the case, we refrain from discussing or determining this assignment of error.

Other assignments of error are urged for a reversal of the judgment, but, inasmuch as they are not likely to arise on a retrial of the case, we do not pass upon them.

For the error in refusing to grant the motion of the defendant to postpone the trial of her case until after the trial of the principals, the judgment is reversed, and the cause remanded for a new trial.