author: Wood, J. Hart, J., McCulloch, C.J.,

text:
    Jones v. Adkins.
    Opinion delivered February 1, 1926.
    1.. Equity—reference of account to master.—Where plaintiff, a taxpayer, contended that defendant, as sheriff and collector, had received as fees large sums in excess of his salary, and asked for an accounting and that the excess be paid into the county treas- ■ • ury, and caused a mass of records and documents to be brought into court for examination, and defendant denied having received any sums in excess of his salary, it was proper for the chancellor to appoint a master to state the account.
    2. Equity—master’s fee—requirement of security.—The chancery court, under its general discretionary powers to adjust and allot costs, may adopt reasonable rules to protect and secure a master in the payment of the compensation for his services as a necessary part of the costs of the litigation.
    3. Equity—discretion as to costs—review.—.When the chancery court exercises its discretionary power over costs in an arbitrary and unreasonable manner and not according to equitable principles, the abuse of its discretion in a proper proceeding will be reviewed and corrected on appeal.
    4. Mandamus—exercise of discretion.—Where an inferior court has a discretion, and proceeds to exercise it, that discretion cannot be controlled by mandamus; but if it refuses to act or to exercise such discretion, mandamus lies to put it into motion.
    5. " Mandamus—absence of other remedy.—A party, to be entitled 'to the writ of mandamus, must show a clear legal right to the subject-matter, and that he has no other adequate remedy.

      Mandamus to Pulaski Chancery Court; Joseph W. House, Jr., Special Chancellor;
    mandamus denied.

      ArtJmr Jones, pro se.

      George W. Emerson and J. G. Marshall, for appellee.
   Wood, J.

On the 27th of January, 1925, Arthur J. Jones filed his complaint in the Pulaski Chancery Court against Homer M. Adkins, the Fidelity & Deposit Company of Maryland, the New Amsterdam Casualty Company, and the Maryland Casualty Company. Jones alleged in substance that he is a citizen and taxpayer of Little Rock, Pulaski County, Arkansas; that Adkins is the sheriff and ex-officio tax collector of Pulaski County, and has been since January 1, 1923; that the other defendants were sureties-on Adkins’ official bond; that Adkins is allowed the sum of $5,000' per year as salary for the performance of his official duties and is prohibited under the Constitution from receiving and keeping for his own use any more than that sum. He alleged in substance that Adkins had collected above his salary a sum amounting to over $50,000, which sum he refused to turn into the county treasury for the benefit of the plaintiff and other taxpayers. He alleged that a complete iteniized account of the moneys and emoluments received and kept by Adkins is shown ,by the report of one Frank Wittenberg, a public accountant, covering a part of defendant’s incumbency, part of which report he -attaches and makes a part of his complaint. He averred that Adkins was. required to keep a complete, accurate and itemized account of the fees received by him, and to account therefor, land to turn the same over to the county treasurer of Pulaski County. He alleged that Adkins had refused to place to the credit of Pulaski County the fees and perquisites collected by him, although demand had been made upon him by both the county and circuit judges of Pulaski County. Jones prayed, on his-'behalf and on behalf of all other taxpayers of Ptulaski County, that Adkins be required .to answer under oath and give an accurate statement of all fees, salaries and perquisites and other moneys coll ectedby him. during his term of office, and that.he show what portion thereof he had kept for himself and what portion he had turned over to the treasurer of Pulaski County, iand that an order ibe issued 'by the chancery court commanding him to play to Pulaski County all moneys received by him in excess of his salary of $5,000 per annum allowed under the Constitution and laws of the State of Arkansas; that, upon his failure to pay said amount into the treasury for the benefit of plaintiff and other taxpayers, a judgment be rendered against him and the sureties on his official bond in the complaint named for the amounts found to be due by him to Pulaski County, and for all proper and equitable relief.

Adkins filed a separate answer to the complaint, in which he admitted that he was the sheriff and ex-officio tax collector as therein alleged. He specifically denied all the other allegations of the complaint, and alleged that he has made due and proper report as required by law, of all moneys received and paid out by him, and has .turned into the county treasury all sums to which Pulaski County is entitled, and he prayed that he 'be discharged with costs.

The New Amsterdam Company filed a separiate answer, denying that it was a surety upon the bond of Adkins, and denied the other allegations of the complaint. The Fidelity & Deposit Company, and likewise the Maryland Casualty Company, filed their respective answers in which they adopted the answer of Adkins >so far as same was applicable to them, and prayed that they be dismissed with their costs.

On the 2d of May, 1925, Jones filed a motion in which he asked that a subpoena duces tecum be issued to Adkins requiring him' to produce before the court on M.ay 7, 1925, all books, records and papers in his office pertaining to the issues involved, which he designated in his motion as the sheriff and collector’s general ledger for the years 1923 and 1924, sheriff and collector’s cash journal for the yeans 1923 and 1924, and all books, papers, records or writings relating to the cost of feeding prisoners in the county jail for those years, and also all books, papers and records which may reflect the receipts and disbursements of all moneys received and disbursed by Adlans during those years.

On the first of May, 1925, la subpoena was issued out of the chancery court to the sheriff of Pulaski County, Arkansas, directing him to command William Eogers, of the county clerk’s office, to appear before the chancery court and to bring with him the audit of Pulaski County as made by Leathern & Co. up to January 1, 1925, and to bring with him the general ledger of the treasury department, the general ledger of the collector’s department, the warrant register, the receipt book covering the collection of delinquent personal taxes for the years 1923 and 1924; and also commanding him to summon Eugene Greenfield, in the county treasurer’s office, to bring with him the treasurer’s general ledger for 1923 and 1924; and to summon G. L. Mallory, United States marshal, .or his deputy, to bring the books in the' marshal’s office bearing the record of the support of the Federal prisoners for the yeans 1923 land 1924; and Albert Simms of the State Highway Department to bring with him the general ledger of that department for the years 1923 and 1924; and Leo Vaulkmer, Mayor Chas. E. Moyer, Judge John W. Wade, Dr. E. P. Bledsoe and Warden Clifton Evans to appear on the 7th day of May to testify in behalf of the plaintiff in the action. This subpoena was duly served on the 6th day of May, 1925.

On May 11, 1925, Adldns filed a motion in which he alleged that the issues involved in the cause required an audit of all receipts and disbursements by himself as sheriff and collector for the years 1923 and 1924, which amounted in the aggregate to approximately $8,000,000; that, to determine whether any sums were illegally received and retained by him, or whether any sum was due by him to the county, would require an audit of his entire account involving the above sum; that, at the instance of Jones, the plaintiff, a subpoena duces tecum had been issued for the defendant Adkins in which he was required to /bring into court the following:

■Sheriff and collector’s general ledger for Pulaski county for the years 1923 and 1924; sheriff and collector’s cash journal for Pulaski County for the years 1923 and 1924; any books, papers, records or other writing’s relative to the cost of feeding- prisoners in the Pulaski County jail for the years 1923 and 1924; and all 'books, papers ¡and records which may reflect the receipts and disbursements of any and all moneys received and disbursed by the said Homer Mi Adkins, sheriff and collector of Pulaski County, Arkansas, during the years 1923 and 1924.

Adkins alleged that an examination of the documents requested to be produced would require the services of an auditor especially skilled in the matters of accounting-, and that the hearing- of testimony of said auditor and other- witnesses as may be introduced by the plaintiff and defendant would require a period of not less than sixty days. He therefore prayed that the court appoint a master and auditor, with power to employ stenographers and incur such other expenses as might be necessary and incident to the taking of the necessary testimony. The court granted the motion and appointed Charles H. Orto master, and directed him to ascertain all fees received by Adkins both as sheriff and collector during the years 1923 and 1924 from all sources, including the amounts received from what is known as “jail fees” or fees for maintaining- the jail and feeding prisoners therein, and also all credits to which said sheriff and collector may be entitled as /against all of such fees and as against collections from said jail during said period of time. The court further ordered that each of the parties to the action deposit with the clerk of the court the sum of $1,000 in 'Cash, or a bond for said amount, with security to be approved 'by the clerk of the court within ten days from the date of the order, the s¡ame being as a guaranty for the payment of the expenses of ¡said master. The court further ordered that if, during the progress of the trial, it appeared that said sums were insufficient, said parties should deposit such additional sums as the court might deem necessary to-guarantee the full payment of the services of the master. The plaintiff Jones .objected and excepted to the action of the court in mailing the order.

In compliance with the above order, on the -20th of June, 1925, Jones filed his bond in the sum of $350 with J. M. Wells as surety thereon, which bond was duly approved by the clerk. The bond specified that it was for the payment of all costs not to exceed the sum of $350 for auditing as master the books of the defendant as sheriff and collector as per order of the Pulaski Chancery Court. 'The bond was signed by Wells and Jones. .

On August 6, 1925, J. R. Alexander filed a motion in which he stated that he had contributed to a fund required ¡as a deposit for expenses in the above entitled cause the sum of $350 in cash, which fund was in the hands of the clerk of the Pulaski Chancery Court, and he stated that, upon further consideration, he did not desire to contribute said amount to the fund, and asked the court to direct the clerk to return the same to him. Jones filed a response to the motion of Alexander, in which he alleged that Alexander, at the request of the plaintiff, had voluntarily deposited the sum of $350 in. the nature of a gift to the plaintiff, which the plaintiff-was to return to Alexander in the event plaintiff won the suit, and otherwise the money was to be a gift; that the plain tiff, relying upon the bond and the deposit of this monev had gone ahead with his work in the case, and had ceased to hunt for other bondsmen; that the matter was, at the time Alexander made the deposit, a live topic of public interest, since which time the interest of the public had abated, and it was then impossible for the plaintiff to secure another bondsman, and that the release of Alexander frpm the obligations of the bond would work a great hardship and loss to the plaintiff, and he therefore prayed that the motion be overruled.

Alexander filed an affidavit in support of his motion, in which he set forth thiat the sum of $360 deposited by him was not .given to the plaintiff conditionally, or otherwise, but was deposited as surety for the costs of the auditor; that, at the time of the filing of his motion, no service had been rendered by the auditor, and therefore the affiant was entitled to withdraw his deposit.

The court heard the isisue on the motion of Alexander and the response thereto by Jones, and the affidavit of Alexander, and the statement and argument of counsel of the respective parties, and entered the following order: “It is therefore considered, ordered, adjudged and decreed that the clerk of this court be and is hereby authorized and directed to refund to the said J, ft. Alexander the sum of $360', this order to have effect thirty days from this date, unless an appeal is duly prosecuted in that time.” The plaintiff excepted to the order of the court and prayed an appeal to the Supreme Court, which was granted.

On the 18th of September, 1925, J. M. Wells filed a motion in which he set up that he became a bondsman in the amount of $350 for the payment of the auditor’s expenses in the cause, and that at the time he signed the bond it was agreed that the suit should be pressed to an early hearing, which had not been done; that no auditor’s report had been filed, and no work had been done by the auditor, and therefore no liability had been incurred on the obligation of his bond; that at the time he executed the bond it wias agreed that J. R. Alexander should also be responsible in the sum' of $360 on the bond for the auditor’s expenses, and that it was upon these terms that the mover, Wells, had agreed to become surety in the sum of $350. He alleged that Alexander had since that time been relieved of his obligation on the bond in the sum of $350 which he had deposited, and the court had ordered the same restored to him. He prayed that he be .allowed to withdraw from the bond and be relieved from any further liability thereon. While this motion wlas pending, Jones, on the 17th of October, 1925, filed his motion to modify the order of the court made May 10,1925, requiring the parties to deposit the sum of $1,000, or, in lieu thereof, bond with the clerk of the court in such sum, and asked the court to strike out such order. He alleged in his motion that the action was brought for the benefit of himself and all other residents of Pulaski County, and that they were not required to execute a bond for costs to maintain an action in the courts of the (State. He set up that he was ready and able to produce before the master testimony to establish the allegations of his complaint; that his testimony would include the public and county records known as the official audit of county finances land records, which audit alone was sufficient to prove the allegations of his complaint, and to enable the master to make a definite finding and report to the court. He then alleged that the county records had been audited iby a firm of certified public accountants, and that its report was on file with the officials of the county, and contained the same information that a new audit would reveal, and that to require the plaintiff, under those circumstances, to put up a cash bond in the sum of $1,000 to pay his pro raita of the new audit was an unwarranted and arbitrary exercise of power by the court, and, if permitted to stand, would stifle the prosecution of the suit by the plaintiff, which had been brought by him in good faith. Plaintiff 'alleged that he was in a position to produce before the master the records of the county clerk’s office, the county treasurer’s office and the sheriff and collector’s office, which would establish beyond question that Adkins had received in emoluments large sums of money in excess of his salary under the Constitution. He alleged that the defendant was seeking to avoid meeting the issue fairly, and was undertaking to stifle the investigation and prohibit a competent court of inquiry to go into the matter on its merits. Plaintiff alleged that he is in position to offer competent testimony to establish the allegations of his complaint either before the master or before this court, and he therefore asked that the order requiring’ the bond be modified, and he be permitted to submit his proof in accordance with the rules of law and procedure established by the courts, and he agreed to pay all costs incurred by him in the event the issues were 'decided against him. The plaintiff then alleged that, according to an official audit prepared by a certified public accountant, the defendant had collected various amounts which he enumerated, and alleged that these amounts were far in excess of the defendant’s salary of $5,000; that he had made no accounting to the county for these sums; that, if the books of the county were properly kept, defendant would be able to render the county a financial -statement showing the gross cost to the county of feeding the prisoners and the profits earned by Adkins in the maintenance of the prisoners, and that the -county would be entitled to receive all in excess over and above the actual costs thereof. He therefore pbayed that the order requiring him to make bond or to put up' a cash deposit of $1,000 in lieu thereof, be rescinded, and that he be permitted to proceed with the cause and to establish the allegations of his original complaint and his motion to modify.

The defendant filed a demurrer and response to the motion to modify, in which he set up that the order requiring a deposit had been made at a previous term, and also alleged that the alleged official audit referred to in the motion to modify as affording sufficient information of the accounts of the sheriff and collector, was made without the knowledge of the defendants, and was an ex parte statement and not binding on them in any way; that said audit was wholly insufficient to determine any alleged liability of defendants; that it is not true that said audit contains the same information that an audit under order of the court would contain, or that the figures given would be the same in such new audit; that it is not true that requiring a deposit for an audit in this case is unwarranted or arbitrary, or that it would stifle prosecution of the action, nor was it true that the defendants were seeking to avoid meeting the issue fairly or trying to prohibit the court from going into the merits of the issue; nor that the plaintiff was in a position to establish the allegations of his complaint without an iaudit.

The court granted ¡Wells ’ motion, and entered an order October 2-2, 1925, adjudging that he be allowed to withdraw his name from the bond for costs, to which ruling the plaintiff excepted and asked that his exception be noted.

The court, on October 24, 1925, heard the motion of Jones to modify and rescind the order of May 10, 1925, and entered an order overruling the motion. Jones thereupon asked permission to withdraw the $300 which he had on deposit with the clerk of the court, and the court thereupon directed the clerk to pay him that sum. Jones then stated that he would not comply with the order of the court entered M,ay 10, 1925. The court thereupon ordered and decreed that no further steps be taken in the cause until the plaintiff should comply with the order of May 10, 1925, by depositing with the clerk of the court the sum of $1000. The plaintiff excepted to this ruling of the court, and prayed an appeal to the Supreme Court, which was granted.

The appellant Jones, in due time, filed his transcript in this court showing the above proceedings, and moved to advance the cause as involving the public interest. In response to this motion to advance, Adkins denied that the cause was one of public moment; denied that all citizens of Pulaski County are interested, and alleged that, as far as the record before this court is concerned, the appellant is the only person of the 150,000 inhabitants of Pulaski County who has asserted any interest in the matter whatever, and that the quorum court, the grand jury, and the county judge, representatives of the county, have repeatedly declined and refused to take any interest whatever in this alleged cause of action. He denied that he is withholding any funds whatever belonging to the county, and alleged that neither the transcript nor the appellant’s motion showed any state of facts authorizing the court to advance the cause. Appellee then moved to dismiss the appeal.

The motion of the appellee to dismiss the appeal was granted, but, in passing upon the motion, the court notified Jones that on the record presented he would be allowed to file a petition f'or mandamus. Jones, hereafter called petitioner, on the 28th of November, 1925, 'filed his petition for mandamus in which, after setting up and reviewing the proceedings had in the chancery court as above set forth, he alleged that the action herein was begun for the benefit of the citizens and taxpayers of Ptdaski County, and that there was no statutory authority for the requiring of a bond for costs from the appellant, and that the chancery court of Pulaski County had no inherent right to require said bond, and in doing so had exceeded its legal powers and jurisdiction. He alleged that he was willing to pay due and legal costs as the cause progressed, paying same in advance in cash, but was unwilling to give security for costs in advance in so large a sum where there was no lawful reason for so doing. Petitioner alleged that, under § 2 of act M5 of the Acts of 1917, and §§ 4633 and 4634 and 4637 of C. & M. Digest, the sheriff and collector was required to make iand keep at his own expense, at all times, a full and complete statement of all -fees .and emoluments received by him, and required a record of these 'accounts to be open to inspection ¡by the judges of the circuit and county courts of the county, and by all citizens, and that there was therefore no necessity for the chancery court to require any citizen to bear any expense of providing this official record which the sheriff wias required to keep. Petitioner alleged that the cause could be tried without incurring heavy costs, and without the necessity of an audit, and he offered to produce on the trial of the issues certified copies of the official audit to the county books, and the originals, if desired. He attached to his petition photostatic copies of such audit, and marked the same Exhibit “A”. He alleged that same would show what appellant desired to prove in the chancery court. He alleged that the decree of the court of ■May 10,1925, absolutely barred the petitioner from proving his case in the usual manner provided by law, and alleged that he had no other remedy than by mandamus to compel the chancery court to proceed with the trial of the cause. He therefore prayed that a writ of mandamus be issued by this court directing the special chancellor to proceed to try the cause without requiring the petitioner to execute the bond as previously directed by the special chancery 'court.

Adkins, hereafter called respondent, filed his demurrer and response to the petition for mandamus, in which he alleged that this court had no jurisdiction to issue mandamus, and for cause of demurrer alleged that the petition did not state facts sufficient to constitute the right of petitioner to mandamus or any other relief. The respondent then denied specifically the allegations of the petition for mandamus, and alleged that, “before the special chancellor could intelligently pass upon the issues in the case pending before him, he would have to have the testimony of a special master, an expert accountant, which testimony could not be given until a detailed examination was made of the books and accounts of respondent Adkins, as sheriff of Pulaski 'County, which would require an expense of approximately four thousand dollars; that the chancellor, in the exercise of his discretion, ordered that the petitioner and the respondent should each deposit one thousand dollars in cash or make a valid bond for that amount covering the costs of such audits; that appellee, respondent herein, complied with said order, but that the appellant, petitioner herein, has failed to comply with the order, and the special chancellor, in further exercise of his discretion, did not proceed with the cause until said order was complied with by petitioner. Respondent Adkins further stated that said chancellor has not declined to hear the petition and try the cause, and has only made such orders as were in the sound discretion of said chancellor; that therefore the petition filed herein does not state any -grounds which would justify the court in issuing a mandamus against said special chancellor, and this respondent respectfully prays that said writ he denied.”

1. A brief summary of the proceedings above set forth shows that, at the time application was made for the appointment of -a master in the cause, the plaintiff in the action, petitioner herein, was contending- that the defendant in the action, respondent herein, was indebted to Pulaski County in the sum of more than $50,000 in excess of his salary of $5,000 per annum in fees and perquisites allowed him under the Constitution and laws of the State. In order to establish his contention, the petitioner asked that a subpoena duces tecum, be issued summoning William Rogers of the county clerk’s office to bring into court the following records, documents, -books and papers, to wit: -sheriff and collector ’-s general ledger Tor Pulaski County for the years 1923 and 1924; sheriff and collector, is cash journal for Pulaski County for the ye'ars 1923 and 1924; any books, papers, records or other writings relating to the cost of feeding prisoners in the Pulaski 'County jail for 1923 and 19'24; any and all books, papers and records which may reflect the receipts and disbursements of any and all moneys received and disbursed by the said respondent, during the years 1923 and 1924. In addition to the above records and documents, Rogers was summoned to bring into court an audit of Pulaski County made by Leathern & Company to Jan. 1, 1925, the general ledger of the treasurer’s department; the warrant register, the receipt book covering colléction of delinquent taxes for 1923 and 1924. Gr. L. Mallory was summoned to bring the record in his office of the support of Federal prisoners; Albert Simms of the Highway Department to bring with him the general ledger of that department for 1923 and 1924.

The petitioner alleged that the report of one Frank Wittenberg, a public accountant, covering only a part of the respondent’s incumbency in office, which he attached and made an exhibit to his 'complaint, would show that, he had failed to account for moneys in excess of $5,000 per annum in a large amount. The petitioner was contending that the above records and documents, together with the report of Wittenberg and Leathern & Company, would furnish evidence to the court to prove his contention; land he asked that the respondent be required to -state an account under oath showing an accurate itemized statement of the fees, perquisites and moneys collected by him during his term of office, what portion he kept for himself and what portion he paid into the treasury of Pulaski County. On the other hand, the respondent denied that he should be required to make an -account, and alleged that he was not due 'the county any sum, and that to determine the issue it would require the services of an expert accountant for a period of not less than sixty days to examine the records, take testimony, and state the account, and he prayed that such an expert be appointed.

Our statute, chapter 118, C. & M. Digest, contemplates the appointment of a master in -chancery. Section 7153 of that chapter provides: “All matters of account pending in chancery may be referred by the court,,to the master, and he shall au-dit and adjust the same, and make report thereof to the court.” The petitioner was contending that the records and documents and the audits made by public accountants, which he would adduce,' would sustain his contention without the necessity of an audit. On the other hand, the respondent was contending that these records and documents would show, under a correct audit, that he was not indebted to Pula-ski County in any sum, and that the audits referred to by the petitioner were made without his knowledge, and were ex parte and not binding on him, and were not sufficient to determine the issue involved; that he had made proper reports of the moneys received by him as the law requires, and had paid into the county treasury all sums to which the county was entitled; that the records and papers in his office were open to inspection; and that the grand jury, the county judge, and quorum court of the county had repeatedly declined to report any delinquency or defalcation on his part.

Certainly, under the above issues and contentions, the court of chancery was fully justified in appointing a master to state the account of the respondent with the county. With these sharply conflicting issues, and the multitudinous array of records, books, and documents confronting it, doubtless the court concluded that it could not correctly determine the issues involved without a master. Any audit made and paid for by the petitioner or by the respondent would have been necessarily ex parte, and might have been considered by the court as partial. Therefore, it was most fitting, in order that an impartial statement of an account be made involving the matter in controversy, that the court appoint a master, an expert accountant, who should represent the court and both parties to the lawsuit—an impartial arbiter in the performance of ■■his duties.

In Claypool v. Johnston, 91 Ark. 349, 352, we said: “The court has the power within its sound discretion to appoint a master for the purpose of assisting it in the proceedings before it, as for example to take testimony or to state accounts, etc. * * . The master is the representative of the court in regard to the matter thus referred to him, and is wholly subject to the court’s control, and should follow its orders.”

It is obvious from the alleged facts of this record as above disclosed that the chancery court would have been greatly handicapped, unless the chancellor himself were an expert accountant, in undertaking to determine the issues involved without the aid of a master to take testimony and state the account. Doubtless the chancellor concluded that he was not sufficiently skilled, and was in other respects unequal to the task of taking the testimony and stating an account, and that it was peculiarly a case where he could exercise Ms discretion in calling to his aid an expert in such matters, and one who would be the alter ego of the court for that purpose. We conclude therefore that the court did not abuse its discretion in appointing a master to state the account.

2. Since the court had the power, and correctly exercised it, to appoint a master, it occurs to us that, in the absence of a statute to the contrary, it was also within the sound discretion of the court to require that the services of such officer be compensated, and that such compensation be secured in advance by the parties 'conducting the litigation. This court long ago announced the principle which, unless overruled, must control here in the case of Temple v. Lawson, 19 Ark. 148, 152, where we said: “1. The giving of costs in equity is entirely discretionary, as well with respect to the period at which the court decides upon them, as with respect to the parties to whom they are given. 2. It is said that, inasmuch as the giving of costs in a chancery suit is entirely discretionary, the exercise of that discretion cannot be reviewed or controlled on error, or, in other words, that it is not the subject of error. 3. But, when it is said that the giving of costs in courts of equity is entirely discretionary, it must not be supposed that these courts ¡are not governed by definite principles in their decisions relative to the costs of proceedings before them; all that is meant, it is said, by the dictum is that these courts are not, like ordinary courts, held inflexibly to the rule of giving costs of the suit to the successful party, but that they will, in awarding costs, take into their consideration the circumstances of the particular case before it, or the situation or conduct of the parties, and exercise their discretion with reference to these points.”

Our court also in a very early case announced the rule in regard to costs at law in conformity with the law generally as it obtains in this country and in England, and which rule, so far as we know, has never been departed from, that “the entire law of costs and fees is in substance statutory. The common law did not professedly allow any, the amercement of the vanquished party being his only punishment.” Thorn v. Clendenning, 12 Ark. 60; Jordan v. State, 102 Ark. 43; Burton v. Chicago Mill & Lbr. Co., 106 Ark. 296, 305. At the time this announcement was made by the court the Bevised Statutes, c. 34, § 12, C. & M. Digest, § 1833, which is still the law in our 'State, provided: “If the plaintiff recover judgment he shall have judgment for costs against the defendant.” But, notwithstanding this provision of the statute and the decision in Thorn v. Clendenning, supra, our court in the case of Temple v. Lawson, supra, announced the rule concerning- the question of costs as therein stated, to wit, that “the giving of costs in equity is entirely discretionary.” So the ruling of our court from this early day down to the present time in equity cases has been to construe the provisions of the statute to* apply only to cases at law, and not to cases in equity. For, in recent cases, we have held (quoting syllabus) “costs in equity are apportioned according to what the court regards as the applicable equitable principle.” Paving District No. 5 v. Fernandes, 144 Ark. 550; see also Fry v. White, 132 Ark. 606; Penix v. Pumphrey, 125 Ark. 332.

Mr. Freeman, in his note to Sawnders v. Frost, 16 Am. Dec. p. 394, at page 405, has an excellent statement of the rule in equity as it obtains generally and in this State. Says he: “In suits in equity the allowance or dis-allowance of costs depends largely on the facts and eir: cumstances of each particular case, and rests entirely within the discretion of the court, to be exercised upon principle, and with reference to the general rules of practice, and as equity may require. Prima facie, the prevailing party is entitled to costs, and it is incumbent upon the losing party to show the existence of circumstances sufficient to overcome the prima facie claim of the prevailing party; and if circumstances are proved which show that it would he inequitable to compel the unsuccessful party to pay costs, the court may, in the exercise of a sound judicial discretion, refuse costs to either party, or it may impose the same upon the prevailing party.”

Now “costs” mean “expenses pending the suit as allowed or taxed iby the court.” Corey v. Decker, 52 Ark. 103; Collins v. State, 57 Ark. 209; Philpot v. Jefferson County, 66 Ark. 243. In the last case cited, at page 247, we said: “Costs are an incident to all actions. An action cannot be prosecuted without it. ” ■ ■

•Section 2205 of C. & M. Digest confers power upon chancery courts “to adopt such rules as may foe found necessary for the conduct and determination of business in chancery in conformity with the rules and practice governing such courts.” Section 4580 provides that “masters in chancery shall be allowed a reasonable compensation for any services that may be required of them, the amount of such compensation to be audited and allowed by the court requiring .such services. ’ ’

When these statutes, giving fhe chancery court power to appoint masters in chancery, and to fix a reasonable compensation for their -services, and to adopt rules necessary for the conduct and determination of chancery causes in conformity to the rules and practice in such courts, are considered in connection with our decisions in Temple v. Lawson and other cases, the conclusion, it seems to us, is irresistible that the chancery court in this State has jurisdiction to appoint a master in chancery, to fix his compensation, and to require the parties litigant, where he deems the circumstances -justify it, to provide security for the master’s compensation to be paid as the court shall determine upon final adjustment and allotment. This discretionary power lodged in the chancery court to provide security, in advance, for the payment of the master’s compensation as a necessary part of the costs of the litigation, logically follows because there is no express -statute providing when, how, and by whom, the master’s compensation shall be paid. The rule, of course, should not apply to the other costs of litigation where there are express statutory provisions covering the same, and where the officers of the court, under the statute, may protect themselves in connection with fees allowed by law for services rendered, as in the case of sheriffs and clerks. These officers, in civil cases where the State and county are not plaintiffs, as to resident litigants may, if they so elect, require their fees for services rendered such litigants in advance. 'Sections 4574 and 4591, C. & M. Digest. And in cases of nonresident plaintiffs, or corporations other than banks created by the laws of this State, the .statute provides security for costs in advance. Section 1844, C. & M. Digest. But there are no statutes to cover payment of the compensation for masters in chancery for services rendered. Hence, the chancery court, under its general discretionary powers to adjust and allot costs, may adopt reasonable rules to protect and secure their masters in the payment of the compensation for their services allowed as a necessary part of the costs of the litigation. '

As the above authorities show, the discretionary power of the chancellor over costs is not absolute and unlimited, but is subject to control and correction by this court when it has been abused. When a chancery court exercises its power in an arbitrary and unreasonable manner and not according to equitable principles, then it abuses the discretion lodged therein, and this court, in proper proceedings, will review and correct the errors in the rulings of the chancery court. See Penix v. Pumphrey, supra; Fry v. White, supra.

3. Since it was within the discretion of the chancery court to require parties litigant to provide security for the compensation of the master, the court having exercised such discretion, the remedy of mandamus cannot be invoked to correct the ruling of the chancery court in requiring such security, even if it were conceded that, under the circumstances of the case, the chancery court had abused its discretion in the ruling. In the case of Gunn’s Admr. v. County of Pulaski, 3 Ark. 427, we held, quoting syllabus: “Where an inferior tribunal has a discretion, and proceeds to exercise it, that discretion cannot be controlled by mandamus; but, if it refuses to act or exercise the discretion, a mandamus lies to put it in motion.” That rule has been consistently adhered to by this court from that day until the present time.

• Among the earlier cases so holding is that of Union County v. Robinson, 27 Ark. 116, and among the later cases so holding see Callaway v. Harley, 112 Ark. 558, and cases there cited. The cases are collated in 3rd Crawford’s Digest, pp. 3343 and 3344. The record shows that, after the chancery court had refused to modify its order of Mjay 10, 1925, requiring the parties litigant to make a cash deposit, or bond in lieu thereof, to secure the payment of the master’s compensation, the petitioner asked, and was permitted, to withdraw the sum of $300 which he had deposited with the clerk for that purpose, and the petitioner announced that he would not comply with the order of the court. Whereupon the court ordered that no further steps be taken in the cause until the plaintiff complied with its order. The petitioner has applied to this court for a writ of mandamus to compel the lower court to proceed, without alleging that he was financially unable to comply with the order of that court, and without alleging that he could not make the bond required by the court’s order. The entire proceedings, in their last analysis, resolve themselves into a petition to have this court correct, by writ of mandamus, whlat the petitioner conceives to be the errors of the trial court in appointing a master to state an account, and in ordering the parties litigant to provide security for the payment of the master’s compensation.

It follows from what we have said that mandamus is not the petitioner’s remedy to correct these alleged errors in the rulings of the trial court. Mandamus is not a writ of right, but is one which the courts in their discretion may issue or withhold. Nevertheless, where the party seeking it has a specific legal right, and no other specific legal remedy for the enforcement of such right, he is entitled to the writ. "Where such is the case, the court abuses its discretion if it refuses to grant the relief sought. A party, to be entitled to the writ -of mandamus, must show a clear legal right to the subject-matter, and that he has no other adequate remedy. Snapp v. Coffman, 145 Ark. 1; Stephens v. Humphrey, 145 Ark. 172-178. See also Patterson v. Collison, 135 Ark. 105, 111. Such is not the case here. The writ therefore is denied, and the petition therefor is dismissed.

Hart, J.,

(concurring). It has been the recognized practice of courts of chancery to refer a cause involving long and complicated accounts to a master. The reason is that the manifold duties of the chancellor, the public interest, and the rights of litigants may prevent a detailed examination by the court of intricate and complex accounts.- The labors of a judge of a court of equity may be materially lightened by referring the consideration of a long account to a master, who is directed to investigate the same and report Ms opinion to the court. The general rule is recognized by § 7153 of Crawford & Moses’ Digest, which provides that all matters of accounts pending in chancery may be referred by the court to a master, and he shall audit and adjust the same, and make report thereof to the court.

In Bryan v. Morgan, 35 Ark. 113, it was said that, in complicated transactions, justice cannot well be done without reference.

Again in Carr v. Fair, 92 Ark. 359, it was recognized that a master may be appointed by the court on its own motion and without the consent of the parties. If the court has the power to order a reference on its own motion, it follows as a necessary incident that it might make provision for the payment of the master’s fee in whole or in part in advance. The master is the assistant to the. court, and it would be unreasonable that he should wait until the.end of a protracted litigation before receiving any part of Ms compensation. It would be unseemly that he should receive any part, of it from one of .the parties without the sanction of the court. The ■ whole matter of the costs of the case, including the master’s fee, could he settled upon the final decree, and, if the chancellor should err in the matter, his action could he reviewed along with the other proceedings in the case upon appeal.

McCulloch, C.J.,

(dissenting). It seems to me that, notwithstanding the lengthy discussion and the great array of authorities in the opinion of the majority, this case is reduced to the simple question whether or not the chancery court had the power to compel appellant, as a condition upon which he would continue the prosecution of his case, to pay into the registry of the court the sum of $1,000 and such further sums as the court mig'ht direct during the progress of the trial, to defray one-half of the expense of the audit of appellee’s account, which appellee himself had requested. If the court possessed that power, there is no further question involved, for, if the court had no power to impose such a condition, then it is proper for this court to compel the court to proceed with the trial of the cause, as appellant has no other remedy.

Appellant filed his complaint as a citizen and taxpayer, alleging that appellee, as a public officer, had wrongfully withheld large sums of money which should have been paid into the treasury in excess of' the amount which he is authorized by law to retain as salary and expenses, and the relief sought was to compel appellee to pay this excess, alleged to be about $50,000, into the county treasury. .There was an answer filed, and on the day set for trial appellant came into court, ready to introduce. testimony, documentary and oral, in support of his complaint, and the court, on the motion of appellee, appointed a “master and auditor” to audit the accounts of appellee, and ordered that each of the parties pay into the registry of the court the sum of $1,000 in cash or give bond for that amount for the payment of the expenses of the master, and, when appellant refused to comply with that order, the court made another order directing that no further steps be taken in the case until appellant should comply with the court's order by depositing with the clerk of the court the sum of $1,000.

The chancery court, with all of its extraordinary powers and flexible remedies, cannot make the. law. It can mold a remedy for any wrong which is irremediable in a court of law, but it cannot impose an unauthorized and burdensome condition upon the right to litigate. The only statute of this State requiring the plaintiff to give a bond for costs is in the case of a nonresident plaintiff. Any litigant must pay the costs which he incurs, and the final judgment of the court in a cause should include an award of costs. The award of costs is a final judgment, and must be rendered at the end of the litigation, not at the beginning or during its progress. C.ourts of equity are clothed with discretion in awarding the costs between the parties, but the award is nevertheless a final decree, which can only be rendered at the end of the litigation. The court has no authority, statutory or otherwise, to require the payment of costs in advance or give security for costs. No statute is referred to in the brief of counsel or in the opinion of the majority which confers any authority upon the chancery court to require security for costs other than against a nonresident, as provided by statute. Crawford & MJoses’ Digest, § 1844. The sole justification which the majority find for such a requirement is the statute authorizing the court to appoint a master. I do not think that the statute authorizes the court to make this appointment of its own motion, but it may do so upon the request of either party. At any rate, this appointment was not made by the court of its own motion, but upon request of the appellee. Appellant objected to the appointment, and proposed to proceed with the trial, and was in readiness to introduce his proof. The appointment was made at the sole instance of the appellee himself, and I fail to find any authority for the court to require security from appellant or require him to pay the expenses until the court has heard the evidence and renders a final decree settling the rights of the parties. The discretionary power of a court of equity in finally awarding the costs does not extend the power of the court so as to authorize it to require security in advance for the payment of the costs. If the chancery court has any such discretionary powers and a litigant must submit to them as a condition of the prosecution of his legal right, then he can never get to this court for relief without complying with the court’s order, and the effect is to give the chancery court, unrestricted authority in prescribing conditions upon which a litigant may prosecute his right of action. The fact that a litigant may or may not be able to comply with the court’s order is unimportant, for, if it is a wrongful or unauthorized imposition, he should not be compelled to submit to it.

It can scarcely be disputed that mandamus is the proper remedy if the order of the chancery court was made without authority. Appellant’s refusal to 'comply with the unauthorized order completely tied his hands, so that he could not proceed with his suit, and he has no remedy other than to compel the court by peremptory mandamus to proceed with the trial. That mandamus is the appropriate remedy in the case of a wrongful refusal of the trial court to proceed has been expressly settled by decisions of this court. Gilbert v. Shaver, 91 Ark. 231; Automatic Weighing Co. v. Carter, 95 Ark. 118.

My conclusion is that the order of the chancery court was not merely erroneous, but that it was void, and constituted no justification for the refusal of the court to proceed with the trial, and that the court ought to be compelled by peremptory mandamus to proceed with the trial in the ordinary .way. The costs, including the master ’s fee, can be awarded in the final decree in the exercise of the court’s discretion, subject, of course, to a review in this court on appeal.

Mr. Justice Smith concurs in these views.


source: Caselaw Access Project

author: Hart, J., Hart, J.

license: Public Domain

text:
    Frauenthal & Schwarz v. Bank of El Paso.
    Opinion delivered February 1, 1926.
    1. Parent and child—emancipation op child.—While it is the general rule that a father is legally entitled to the services of his minor child, it is equally well settled that he may voluntarily relinquish the right to his child’s earnings and may permitothe child to receive and appropriate his earnings at pleasure; and where-the father has emancipated his child, he is under no legal obligation, although he be insolvent, to claim such earnings for the benefit of his creditors.
    2. Mortgages—title to crop raised by mortgagor’s minor son.— Where a mortgagor conveyed all the crop to be grown ¡by him on his farm for the year 1923, and warranted that no member of his family should have any claim or lien on such crop, the effect of the mortgage was to embrace the crops grown by the mortgagor or any member of his family, and the mortgagor could not thereafter, as against the mortgagee, emancipate his minor son, while a member of his family, and rent to him any part of the farm, so as to give the son a title superior to that of the mortgagee.
    3. Appeal and error—conclusiveness of chancellor’s finding.— The finding of the chancellor that the mortgagee did not consent to the emancipation of the mortgagor’s son, so as to release the son’s crop from the mortgage, held not against the preponderance of the evidence.
    Appeal from White Chancery Court; Joím E. Martinecm, Chancellor;
    affirmed.
    STATEMENT OF FACTS.
    The Bank of El Paso brought this suit in equity against J. E. Baxter, Rose Baxter, his wife, and Frauenthal & Schwarz to recover a personal judgment against J. E. Baxter on a promissory note in the sum of $797.74, with the accrued interest, and to foreclose a mortgage on real estate and on personal property given to it 'by said Baxter to secure said indebtedness, and judgment agiainst Frauenthal & Schwarz for $150, the alleged value of a bale of cotton purchased by them and covered by the personal property mortgage above referred to.
    Judgment was rendered against J. E. Baxter for the amount sued for, and a decree of foreclosure of the real and personal property mortgaged was entered of record. No appeal was taken from the decree in this respect.
    On the branch of the case against Frauenthal & Schwarz, R. A. Kent, cashier of the Bank of El Paso, was the principal witness for it. According to his testimony, on the 25th of November, 1922, J. E. Baxter executed to the Bank of El Paso, to secure a past indebtedness due it, and for supplies to be furnished him during the year 1923, a chattel mortgage on certain personal property consisting of mules, cows, two wagons, plow tools, and-all the crop of cotton which should be grown and cultivated 'by J. E. Baxter, including all rents and share crops which he might have interest in on his farm and elsewhere in White County, Arkansas, during the year 1923. This mortgage contained la clause as follows:
    “And the party of the first part'does hereby warrant and guarantee to the party of the second part that no member of the family of the party of the first part nor any other person has any interest whatsoever in any of the above described property, and that no member of the family of the party of the first part has nor will have any claim or lien on or against any of the above described crop or property, for labor or otherwise.”.
    Frauenthal & Schwarz got one hale of cotton raised by J. E. Baxter in 1923, in White County, Arkansas, and the cotton was worth $130.35.
    E. L. Baxter, a son of J. E. Baxter, nineteen years old, was a witness for the defendants. According to his testimony, the bale of cotton in question weighed 395 pounds, and was sold by him to Frauenthal & Schwarz in payment of a debt he owed them. He had bought a buggy from Frauenthal & Schwarz, and gave them a mortgage on his crop for the purchase price. "When he gathered the bale of cotton in question, he turned it over to them. The witness did not hiave any land rented for that year, but, in the spring of 1923, he made an agreement with his father and brother and Mr. Kent that he was to make and helj) gather his father’s crop and have for his services the cotton grown on ten acres of the land. His father had about forty acres planted in cotton that year. This agreement was before the cotton crop was planted.
    According to the testimony of J. E. Baxter, his son E. L. Baxter had been working for himself since he was ■sixteen years old. The father had emancipated both of his boys, and they had been working for other people. The witness had somewhere .around forty or fifty ¡acres ■in cotton, and was not able to secure help to work all of it. R. A. Kent, for the Bank of El Paso, agreed that the witness might hire his son, E. L. Baxter, to help work and gather the crop, and in payment of his services give him the cotton grown on ten acres. The witness was to feed his son, and his son to clothe himself. Pursuant to this .agreement, E. L. Baxter worked in the crop all of the season and helped to make and gather it. The bale of cotton .sold by E. L. Baxter was grown on the ten acres set apart to him in payment for his services in making and gathering the crop. All of the crop grown on the remaining part of the land was turned over to the Bank of El Paso and applied toward the discharge of the indebtedness of J. E. Baxter. Henry Baxter, another son of J. E. Baxter, corroborated in every respect the testimony of his father and brother.
    R. A. Kent denied 'having entered into an agreement whereby. E. L. Ba'xter was hired to help make and gather the crop grown by his father, J. E. Baxter, and denied having released the mortgage of the Bank of El Paso on any part of the crop grown by J. E. Baxter in White County during the year 1923.
    It was ¡also shown that E. L. Baxter carried the cotton from the farm of J. E. Baxter in the night time and sold it to Frauenthal & Schwarz the next day.
    The chancellor found the issues on this branch of the case in favor of the plaintiff, and it was adjudged that the Bank of El Paso recover from the defendants, Frauenthal & Schwarz, the sum of $130.35. To reverse this part of the decree, Frauenthal & Schwarz have only-prosecuted an appeal to this court.

      R. W. Robins, for appellants.

      Brundidge <& Neelly, for appellee.
   Hart, J.,

(after stating the facts). A father can make la valid gift of his minor son’s services to himself so as to be beyond reach of his father’s creditors. Bobo v. Bryson, 21 Ark. 387; Fairhursi v. Lewis, 23 Ark. 435; Vance v. Calhoun, 77 Ark. 35; and Biggs v. St. L. I. M. & So. Ry. Co. 91 Ark. 122. An insolvent father may emancipate his minor child, even as against his creditors, and although the child remains at home and is hired by the father. 20 R. C. L., pp. 610 and 611; Wilson v. McMillan, 62 Ga. 16, 35 Am. Rep. 114, and case note at p. 117; McCloskey v. Cyphert, 27 Penn. St. Rep. 220; Beaver v. Bare, 104 Penn. St. 58, 49 Am. Rep. 567 and cases cited; Wright v. Dean, 79 Ind. 407; Hall v. Hall, 44 N. H. 293; McDaniel v. Parish, 4 App. Cas. D. C. p. 213.

"While the general rule is that a father is legally entitled to the services of his minor child, it is equally well settled that a parent may voluntarily relinquish the right to his child’s earnings and may permit the child to receive and appropriate his earnings at pleasure. Where the father has emancipated his child, he is under no legal obligation, although he be insolvent, to claim such earnings for the benefit of his creditors. Therefore, the father may himself contract to employ and pay the child for his services and be bound in consequence like any stranger to fulfill his agreement.

But it is claimed that this principle has no application to the facts in the case at bar, because the cotton in question was covered by the mortgage given by the father to the Bank of El Paso. While this is true, the bank had a right to release or waive its mortgage on a part of the ■crop, and this is what the defendants claim was done. The father claims that he was unable to secure labor with which to make and cultivate a cotton crop on the whole forty acres, and the bank agreed that he might hire his minor son to help make and gather the crop and pay him for his services the cotton grown on ten acres of the land. The parties had a right to make this agreement, even though the father had covenanted in the mortgage that no member of his family might have any claim or lien against any part of the crop or other personal property described in the mortgage. Under the authorities cited it is settled that the father might hire his minor son just as he might employ any other person to help make and gather the crop. The fact that E. L. Baxter was the minor son of J. E. Baxter was a circumstance tending to show fraud or collusion in t'he matter. Fraud may be established by circumstantial as well as by direct evidence, but it is not to be presumed. If the form and design of the transaction may be traced to an honest source, under ia preponderance of the evidence, the transaction must be allowed to stand.

It is true that the cotton was carried away from the farm of J. E. Baxter in the night time, and this, coupled with the fact that E. L. Baxter was the minor son of J. E. Baxter, is a circumstance pointing to fraud and collusion. ‘Suspicious circumstances, however, can not outweigh positive proof in the premises. The fact remains that J. E. Baxter and both of his sons testified that Kent agreed that E. L. Baxter should be given the cotton grown on ten acres of the crop in consideration of his help in making and gathering the crop. They testified that E. L. Baxter worked in the crop all the year aiid did most of the work in making and gathering it. Their testimony that E. L. Baxter did most of the work in making and gathering the crop is uncontradicted. Neither is their testimony contradicted as to the fact that J. E. Baxter could not get any one else to make the crop. It is a matter of common knowledge that J. E. Baxter himself could not work the whole forty acres in cotton in a husbandlike' manner. It was necessary for him to have help from somewhere, and the undisputed facts show that his minor son did help him.

Upon a careful examination of all the facts of the case we have reached the conclusion that la preponderance of the evidence shows that the parties in good faith made an agreement that J. E. Baxter was to give his minor son, E. L. Baxter, the cotton grown on ten acres of the land in payment of his services in making and gathering the crop of cotton, and that Kent, as the representative of the Bank of El Paso, assented to this agreement. The proof shows that the cotton in question was grown on the ten acres allotted to E. L. Baxter as his part of the crop.

It follows that the decree will be reversed, and the cause .remanded with directions to dismiss the complaint for want of equity.

ON REHEARING.

Hart, J.

Upon further consideration of this case we are of the opinion that, under the terms of the mortgage, which guaranteed to the mortgagee that no member of the family of the mortgagor had or would have any interest or claim or lien on the property mortgaged, the mortgagor could not, as against the mortgagee, emancipate his minor son, at the same time retaining him as a member of his family and give him part of the crops embraced in. the mortgage for his services in helping to raise them. Such is the effect of a decision of the Alabama Court of Appeals in Hughes & Tidwell Supply Co. v. Bussey, 70 So. 997.

In that case the mortgage embraced “the entire crop of cotton * * * raised or to be raised by us (the mortgagors) or our family, during' the year 1912.” In discussing a precisely similar case to the present one, the court said:

“As against the plaintiff, to whom the father had thus mortgaged, not only the product of his own labor that might materialize in crops grown on the mentioned premises during the year 1912, but also the product of the labor of his minor son that might so materialize in crops grown on said premises during said year, the father could not subsequently make a valid agreement with the son whereby the crops resulting from the labor of the son on said premises during said year should become the son’s property to the exclusion of the plaintiff, when it appears, as it does from the evidence here, that the son remained during the year a member of his father’s family and was cared for as such and used his father’s property in making the crop.” •

It was urged that the holding was in conflict with a recent decision of the Supreme Court of Alabama in Maybank v. Lumpkin, 66 So. 584. In that case the court held that a father might, as against the mortgagee, emancipate his minor son after the execution of a mortgage and rent to him a part of the premises upon which the mortgaged crops were grown, so as to confer on the son, even as against the mortgagee, the title to that part of the crops the son might raise on the portion of the premises so rented to him. In that case, however, the mortgagor did not attempt to convey to the mortgagee the entire crop of his family.

In the case before us the effect of the mortgage was to embrace the crop grown by the mortgagor or any member of his family. Therefore it seems to us that the mortgagor could not, as against the mortgagee, emancipate his minor son, at the same time retaining him as a member of his family, and rent to him any part of the premises on which the crops mortgaged were to be grown, so as thereby to give the son a title superior to that of the motgagee to such part of the crops as the son might raise. It is admitted that the minor son in the case before us lived with his father as a member of his' family, and it is also shown that the food which he ate was purchased by the money obtained by executing the mortgage. The father, under such circumstances, being obliged to support his minor child, would be entitled to his services and to the product of his labor so long as he remained a member of his family. If the father had not seen fit to mortgage any crop which his minor son might grow, we think that he might have emancipated him and allowed him to work the crop in any way he might contract with any third person to do it.

In Holst v. Harmon, 26 So. 157, in an opinion rendered by Chief Justice McClellan, the .Supreme Court of Alabama held that a 'mortgage embracing all the crops grown by the mortgagor, 'or under his direction, on his plantation, includes cotton grown by the mortgagor and his sister, who was a member of his family, and who subsisted on the supplies furnished by the mortgagee under the mortgage.

It is true that there was proof in the case at bar tending to show that subsequently the cashier of the’bank agreed that the mortgagor might emancipate his son and make a contract with him to grow the crop, but this the cashier denies to be the case, and, when the terms of the mortgage to the contrary and the surrounding circumstances are considered, we do not think that the finding of the chancellor in favor of the mortgagee is against the preponderance of the evidence.

The result of our views is that a rehearing should be granted, and that the decree of the chancery court should be affirmed.


author: Smith, J.

text:
    Wawak and Vaught v. State.
    Opinion delivered February 1, 1926.
    1. Conspiracy-—liability op conspirators.—A party coming into a conspiracy after its formation is deemed in law a party to all acts done by any of the other parties, either before or after, in furtherance of the common design.
    2. Witnesses—extent op cross-examination.—The extent to which a cross-examination of a witness is allowed to proceed is a matter largely within the discretion of the trial judge.
    3. Witnesses—credibility—impeachment on cross-examination. —It was not improper to permit a witness to be asked on cross-examination as to whether her husband had not killed a man on account of her immoral relations with that man.
    4. Witnesses—impeachment.—While it is improper to ask a witness on cross-examination whether her father had not been confined in the penitentiary, the error was waived where no objection was saved.
    5. Criminal law—instructions as to reasonable doubt.—It was not error to refuse an instruction that “if any of the testimony in the case is susceptible to two constructions, one of guilt and one of innocence, then it is your duty to give it the construction of innocence”; the court having given a correct charge upon innocence and reasonable doubt.
    6. Criminal law—instruction in absence op dependant’s counsel.—Whefe, after being instructed, the jury returned into court and asked certain instructions, whereupon the court re-read the instructions previously given, the error of doing so in the absence of defendant’s counsel was waived where they were informed of what the court did before the jury retired but offered no 'objection to the language of the charge.
    Appeal from Perry 'Circuit Court; Richard M. Mann, Judge;
    affirmed.

      Isgrig £ Dillon and Walter A. Isgrig, for appellant.

      II. W. Applegate, Attorney General, and Jolm L. Carter, Assistant, for appellee.
   Smith, J.

Alfred Wawak was indicted for carrying’ a pistol, and for the crime of murder, alleged to have been committed by shooting- one Floyd Parker with a gun, and for the crime of .assault with intent to kill, alleged to have been committed by shooting at Fred Parker with a pistol. Clarence Vaught was separately indicted for murder, which offense was alleged to have been committed by shooting Floyd Parker. By consent the defendants were jointly tried, Wawak being placed on trial on all three of the indictments against him. Both defendants were convicted of involuntary manslaughter and given a sentence of one year in the penitentiary. Wawak was also found guilty of carrying a pistol, and was fined $50 for that offense. He was acquitted of the charge of assault -with intent to kill Fred Parker.

It was the theory of the State that Floyd Parker, who was a married man, but whose wife was. a patient in the State Hospital, was paying attention to Lois Booher, a sister of Pink and Hubert Booher. These brothers not only resented the attention of Parker to their sister, but were, suspicious ¡also of two unmarried men.

Parker was killed on .Sunday morning, and on the Friday night immediately preceding, these young men, whose names were Kelly and Nevells, went to the home of Parker in an automobile, where they were joined by Lora Parker, a sister of Floyd Parker. They then drove to the home of Pink and Hubert Booher for Lois Booher, the sister of the Booher brothers. Hubert Booher objected to his sister going with the young men, and attempted by force to compel her to get out of the car, and when he failed in this he went into his house, and the car was driven away, and as it was driving away one of the Booher brothers fired two shots at the retreating car.

When Kelly and Nevells and the two young ladies returned, the girls got out of the car at the home of Floyd Parker, and Lois Booher spent the night there. This angered Hubert Booher, and he told Kelly, in the presence of his brother Pink, that he would get his .sister or kill Parker before morning. Neither of the appellants were present at the time this threat was made, and the admission of this testimony is assigned as error. All parties concerned ¡appear to have known that Pink and Hubert Booher were suspicious of their sister’s conduct and objected to the company she was keeping. Lois Booher did not return to her home where her brothers lived on Saturday, but spent that day and night also at the home of F-loyd Parker. On Sunday morning Pink and Hubert Booher, accompanied by appellants, went to Parker’s house. Appellant Vaught was armed with a shotgun, and appellant Wawak had two pistols. When Parker saw the party in his yard he ordered them to leave, and they began cursing him. Parker stated to the Booher brothers that he did not want to fig’ht them, as they were minors. Vaught said, “I am twenty-one; fight me.” Parker accepted the challenge, and picked up a single-tree and. advanced on Vaught, who shoved Parker off with his shotgun, but Parker got near enough to Vaught to strike him with the single-tree, and Vaught was knocked down and rendered unconscious. Parker siaw Wawak draw one of the pistols, whereupon Parker turned and started into the house, but just as he reached the door he was shot in the back with the shotgun and killed. The State contended that about this time Wawak also fired at Fred Parker, who had come upon the scene of the killing, but, as we have said, he was acquitted*on this charge of assault with intent to kill.

One of the errors assigned for the reversal of the judgment is thiat the testimony is not sufficient to sustain the verdict of the jury. But we think the contrary appears from the facts just stated.

Exceptions were saved to the admission of testimony showing that Hubert Booher had made threats against Floyd Parker, neither of the appellants being present at the time. Appellants denied that they had conspired with the Booher brothers to do Parker any harm, and also denied that they had any such intention on the 'Sunday morning when the killing occurred, and denied knowing anything about any previous trouble between the Boohers and Parker. Vaught testified that he had borrowed the shotgun to go hunting later, and Wawak testified that he went to Parker’s house to employ Parker’s brother Fred to haul logs, and they both testified that they had no part in the quarrel -and killing, and only attempted to prevent the parties from fighting. These defenses were submitted to the jury under instructions correctly. declaring the law, and their statements as to their part in the fatal encounter were evidently not believed by the jury. The truth of these statements was, of course, a question for the jury.

Upon these questions the court charged the jury as follows: “You are instructed to disregard all the testi.mony as to the occurrences Friday night, and also all testimony as to the Sunday morning occurrences, unless you find from the evidence, beyond a reasonable doubt, that the defendants were parties to the same, or that they knew of the said occurrences, and were actuated by them. ’ ’ This instruction submitted to the jury the question whether appellants were parties to the unlawful purpose of the Booher brothers to assault Parker, and whether they were actuated in their conduct by the knowledge of their intention to do so. It was relevant to show the purpose for which the party, consisting of the Booher brothers and appellants, went to Parker’s house on- Sunday morning, and for this reason the testimony of Kelly as to the thrqat made the preceding Friday night by Hubert Booher in the presence of his brother Pink was admissible. It is true that appellants were not present, but the threat was to kill Parker or to get his sister from Parker’s home. This sister had not returned home since the threat was made, and it is the theory of the State that appellants had joined the Booher.brothers in their purpose to do Parker bodily harm.

Appellants insist that there was no proof of any conspiracy to do Parker harm before Sunday morning, and that it was therefore erroneous and prejudicial to admit testimony showing threats on Hubert Booher’s part, in the absence of a showing that a conspiracy had been previously formed. But, as we have said, we think it was a question for the jury whether the four persons present when Parker was killed had conspired to do Parker bodily harm.

In 12 C. J., page 579, at § 88 of the chapter on conspiracy, it is said: “All who accede to a conspiracy after its formation and while it is in execution, and all who, with a knowledge of the facts, concur in the plans originally formed and aided in executing* them, are fellow conspirators. They commit an offense when-they become parties to the transaction or further the original plan. A person coming into a conspiracy after its formation is deemed in law a party to all acts done by any of the other parties, either before or after, in furtherance o*f the- common design. Whenever conspirators act, by lawful intendment they renew or continue their agreement, and it is renewed or continued as to all whenever either of them acts in furtherance of the common design. ’ ’

In 1 Greenleaf on Evidence (16 ed.) page 305, § 184a (111), it is said: “The 'connection of the individuals in the unlawful enterprise being thus shown, every act and declaration of each member of the confederacy, in pursuance of the original concerted plan, and with reference to the common object, is, in contemplation of law, the act and declaration of them all; and is therefore original evidence against each of them. It makes no difference at what time any one entered into the conspiracy. Every one who does enter into a common purpose or design is generally deemed, in law, a party to every act which had before been done by the others, and a party to every act which may afterwards be done by any of the others in furtherance of such common design.” See also People v. Stokes, 89 Pac. 997; Baker v. State, 7 Tex. App. 612.

On the cross-examination of appellant Vaught, he was asked about a difficulty he had had with a boy, and it is insisted that the cross-examination was permitted to proceed to an unreasonable length. This, however, was a matter largely within the discretion of the trial judge, and it does not appear that an abuse of this discretion was shown, inasmuch as Vaught exonerated himself, and his answers, whether true or false, were conclusive of this collateral matter.

A witness named May Bradshaw was called as a witness for appellants, and on her cross-examination was asked where her father was, and she answered that he was in the penitentiary. No objection was made to this question. The witness was then asked where her husband was, and when the witness answered that she did not know, that he had been gone for quite awhile, she was then asked why he had left her. Objections were made and exceptions were saved to all questions and answers relating to the whereabouts of witness’ husband and the cause of his absence. These questions tendedto show that the husband, of witness had killed a man on account of the immoral relations of the man killed with the witness, and in overruling the objection to this testimony the court said: “The State has the right to ask about her personal conduct as going to her credibility only. ’ ’ This examination was admissible for the purpose stated, and we cannot say the court abused its discretion in the extent to which the cross-examination was carried in regard to the husband of the witness. No theory appears, however, on which it was proper to ask the witness about the confinement of her father in the penitentiary. In the case of Lee v. State, 66 Ark. 286, a witness was asked if her son had not been sent to the penitentiary, and she answered in the affirmative. In holding that the cross-examination was improper and prejudicial Mr. Justice Battle said: “This mode of impeachment was improper, and the testimony elicited was inadmissible. Witnesses may be impeached by cross-examination as to their associations which affect their credibility, but such associations must be voluntary. They are not responsible, legally or morally, for the acts of their kin, with which acts they are in no wise connected. It does not follow that a witness is unworthy of belief because a relative has committed a felony. Worthy credible witnesses may have felons for kindred.”

The question asked the witness May Bradshaw, in regard to her father, was therefore improper, but no objection was made to this question, and the error must therefore be treated as having been waived.

Objections were saved to certain instructions given by the court; but, after considering these instructions and the objections thereto, we have concluded that they announce correct and familiar principles of law as applied to the respective theories of the case, and no useful purpose would be served by discussing them.

Appellants saved an exception to the refusal of the court to give the following instruction: “If any of the testimony in the case is susceptible to two constructions, one of guilt and one of innocence, then it is your duty to give it the construction of innocence.”

In the case of Lasater v. State, 77 Ark. 468, Mr. Justice Riddick said: “The doctrine of reasonable doubt

does not apply to the different items that make up the proof of guilt.” This is a question which arises upon a consideration of all the testimony in the case. The court gave a full and correct charge on the questions of presumption of innocence and reasonable douibt, and no error was committed in refusing this instruction.

It is recited in the transcript that, after the jury had retired to consider of their verdict, they returned into the court room, when the foreman said: ‘ ‘Ve want the lowest degree of punishment—this aggravated—.”

Under the indictment against appellant Wawak for assault with intent to kill the court had charged the jury in regard to the offense of aggravated assault and the punishment therefor, but when the question quoted above was asked by the foreman the judge inquired “if the jury wanted to know the different degrees of punishment for the offense charged,” and the jury signified their assent. The court then re-read the instructions defining the punishment prescribed by law for the various offenses charged in the indictments.

The foreman of the jury then inquired: “What is the penalty of a man for an accessory to a crime?” And in answer to this question the court replied: ‘ ‘That is covered by thejnstructions.”

It is then recited in the transcript that “at this point the attorneys for the defendants appeared before the court and stated that they were not present in court when the court instructed the jury as above, and saved their exceptions to the court giving any additional instructions in their absence.”

To this statement the court responded that he was under the impression that counsel for defendants were present in the court room at the time, and that he would not have given the jury any additional instructions had he known counsel were absent.

■Counsel for appellants say this action of the court in instructing the jury in their absence was in violation of § 3192, C. & M. Digest, and constitutes reversible error. This section reads as follows: “After tbe jury retires for deliberation, if there is a disagreement between them as to any part of the evidence, or if they desire to be informed on a point of law, they must require the officer to conduct them into court. Under their being brought into court the information required must be' given in the presence of, or after notice to, the counsel of the parties.”

If 'counsel for appellant are correct in their application of this statute to the facts stated, there would have been nothing for the court to do but enter a mistrial and discharge the jury when the exception was saved to what had been done. The court was in error in charging the jury in the absence of counsel for appellant, but the error was discovered in ample time to have been corrected. There was no question about what the court had charged the jury, and there is no contention that the charge was erroneous. Had counsel been unaware what the charge was, the court would, no doubt, have repeated it, and counsel were in position, before the jury retired to further consider of their verdict, to have suggested any modification in the charge which they thought proper, or any additional charge, had they deemed one advisable, and to have excepted to the court’s refusal so to do had the request been refused. Under the circumstances we think the error was not prejudicial, and does not cull for the reversal of the judgment, because, as we have said, the error could easily have been corrected before the jury retired from the courtroom.

Upon a consideration of the whole case, we find no prejudicial error, and the judgment of the circuit court will therefore be affirmed.


text:
    Shaw v. Merritt.
    Opinion delivered February 1, 1926.
    1. Corporations—lien on stocks.—The effect of Acts 1923, p. 515, amending § 1720 of Crawford & Moses’ Digest, is to deprive corporations, including banks, of the lien which they theretofore had on the shares of their shareholders to secure any indebtedness due from the shareholders to the corporation itself.
    2. Constitutional law—impairment op obligation op contracts. •—Acts 1923, p. 515, amending § 1720, Crawford & Moses’ Dig., in providing that such amendatory act should he deemed to be retroactive, is invalid, in so- far as it attempted to affect existing liens -of banks on the shares of their shareholders.
    3. Banks and banking—lien on stock for debts due.—Under § 687, Crawford & Moses’ Dig., giving a bank a lien on the stock of its shareholders for all debts due to the bank, the word “due” refers to any enforceable obligation to pay money, whether matured or not.
    4. Banks and banking—-lien on stock—-waiver.-—The fact that a bank, having a lien on a shareholder’s stock for a debt due to it, waived its lien as to one creditor of such shareholder does not estop it from claiming its lien against another creditor.
    Appeal from Craighead Chancery Court, Eastern District; J. M. Futrell, Chancellor;
    affirmed.

      Lamb & Frierson, for appellant.

      Hawthorne, Hawthorne & Wheatley, for appellee.
   Smith, J.

This appeal is from a decree rendered on an agreed statement of facts, from which we copy the following recitals:

Mrs. Jennie Shaw recovered a judgment at the February, 1923, term of the circuit court for the Lake City District of Craighead County against T. M. Merritt for the sum of $500, with costs and interest from January 13, 1921, that being the date of the note sued on, and in an effort to collect the judgment caused execution to be levied on fifty shares of the capital stock of the Bank of Black Oak (hereinafter referred to as the bank) as the property of Merritt. At the sale of this -stock under the execution Mrs. Shaw became the purchaser, and, upon the bank refusing to transfer the stock on its books to her, she brought this suit to compel that action. The court found that on January 1,1923, Merritt was indebted to the bank in a sum exceeding $4,000, a sum largely in excess of the value of the stock, and that the bank had a lien upon said stock to secure the payment of the obligations of Merritt to it.

Upon this finding the court decreed that the bank had a lien on the stock which was prior in time and equity to that which Mrs. .Shaw obtained by the levy of the execution, and that Mrs. Shaw was entitled to the stock under the execution sale, but that she took it subject to the bank’s lien, 'and this appeal is prosecuted by Mrs. Shaw to reverse that decree.

For the reversal of the decree appellant cites act 627 of the General Acts of 1923, page 515, which amends the general banking act. 'Section 16 of this amendatory act repeals §§ 685, 687, 726, 727, 1732, 1733, 1734, 1735, and 1736, C. & M. Digest, and amends § 1720, C. & M. Digest, to read as follows: “Section 1720. The stock of every such corporation shall be deemed personal property, iand be transferred only on the books of such corporation in such formas the directors may prescribe.”

The section amended prior to the amendment read as follows: “'Section 1720. The stock of every such corporation shall be deemed personal property, and be transferred only on the books of such corporation in such form as the directors shall prescribe; and such corporation shall at all times have a lien upon all the stock or property of its members invested therein for all debts due from them to such corporation.”

Without commenting on the entire effect of this amendatory act, it may be said that it deprives corporations, including banks, of the lien which they theretofore had on the stock of the shareholders to secure any indebtedness due from the shareholders to the corporation itself. *

In addition, § 20 of the amendatory act provided that each and every part of the amendatory act shall be deemed to be retroactive to the date when act 113 of the Acts of the General Assembly of 1913 took effect, except only in so far as any part of the act was expressly made to take effect at a subsequent date, with an exception in favor of the ex parte liquidation of the affairs of an insolvent 'bank.

The indebtedness of Merritt both to the bank and to appellant, Mrs. Shaw, was incurred long since the act of 1913 became effective, so that the amendatory act of 1923 applies' to these transactions if the amendatory act can be given a retroactive effect in regard to them.

It is argued by appellant that the act of 1923 should be sustained, and that, when .sustained, it displaced or destroyed the lien of the bank. In support of the validity of the retroactive feature of the act, it is argued (a) that the right to change the charter of a corporation exists, provided no injustice is done the corporation; (b) that a lien is merely a part of the remedy, and may be changed or abolished even by a retroactive statute; (c) that banks are so far subject to the police power, because of the important public character of the business in which they engage, that it is not a disturbance of vested rights to deprive a bank of a lien on the stock of its shareholders securing debts due itself.

We do not agree with learned counsel for appellant in these contentions. There is no question about the right of the General Assembly to enact that corporations shall not hereafter have a lien on the stock of the shareholders; but it is an entirely different matter to say that such legislation may disturb rights which have already vested. That a bank had a lien on the stock of the shareholders to secure an indebtedness due it prior to the amendatory act of 1923 is unquestioned. 'Section 1720 of the chapter on corporations, in C. & M. Digest, gave this lien to all corporations, and in the case of OlipMnt v. Banh of Commerce, 60 Arle. 198, it was held that the corporation’s lien is superior to that acquired by an execution creditor, and in the case of Springfield Wagon Co. v. Bank, 68 Ark. 235, it Was held that the lien of a bank was not displaced by subsequent levy of execution on the owner’s stock. See also Young Coal Co. v. Hill, 112 Ark. 180; Merchants’ & Farmers’ Bank v. Citizens’ Bank, 125 Ark. 131; Bank of Searcy v. Merchants’ Grocer Co., 123 Ark. 403.

„ In addition, § 687 of the chapter on banks and banking, C. & M. Digest, gave any bank a lien on the stock of its shareholders for all debts due from them to such bank.

At the time the indebtedness from Merritt to the bank was incurred this lien was a security given by law to enforce payment, and was, of course, a right of value to the bank. This lien was of statutory creation, but it existed, and was an enforceable right, with reference to which banks contracted in making loans to its stockholders.

Section 687, C. & M. Digest, a section of the chapter. or. banks and banking, repealed by the amendatory act o’f 1923, provided that this lien could not be waived in favor of third parties except in writing, .signed by one of the executive officers of the bank, who was in no way interested in the waiver.

In the case of Robards v. Brown, 40 Ark. 423, it was said: “The laws which are in force at the time when, and the place where, .a contract is made and to be performed, enter into and form part of it. * * * But the Legislature cannot, under the guise of legislating upon the remedy, in effect impair the obligation of contracts. The idea of right and remedy are so intimately associated as often to be inseparable. Now, any legislation which deprives a party of a remedy substantially as efficient as that which existed at the making of the contract does. impair its obligatory force.”

We perceive no reason why banks, because of the character of their business, should be denied the protection of the law against the impairment of their contractual rights, and we conclude therefore that the lien of the bank on the stock of Merritt has not been displaced by the act of 1923.

Appellant insists that the lien of the statute referred to did not inure to the benefit of the bank because that indebtedness had not matured and become payable at the time of the levy of the execution on the stock.

The agreed facts are that Merritt’s indebtedness to appellant, Mrs. Shaw, was evidenced' by a note dated in 1921, and matured before indebtedness to the bank had matured, but it was also agreed that on January 1, 1923, Merritt was largely indebted to the bank, although the indebtedness did not mature and become payable until the fall of that year. But, notwithstanding the fact that the indebtedness from Merritt to the bank had not matured at the time of the sale of the stock under the execution, the indebtedness was nevertheless “due” the bank within the meaning of the statute giving the lien, for the indebtedness was due the bank from the time it was incurred.

In 19 C. J., page 818, are found citations to many eases defining the word “due.” The text reads as follows: “According" to the consensus of judicial opinion, the word has a double meaning: (1), that the debt or obligation to which it applied has by contract or operation of law become immediately payable; (2), a simple indebtedness, without reference to the time of payment, in which it is synonymous with ‘owing’, and includes all debts, whether payable in praesenti or in futuro. In its larger sense, the word is often used to cover liabilities, matured and unmatured, or as importing an existing obligation, whether the time of payment has arrived or not. This distinction being observed, the word has been defined variously as meaning indebted; owed; justly owed; owing; owing and demandable; owing and immediately payable; owing and now payable; owing and unpaid; owing, although not presently payable; owing to; payable; payable now or hereafter; presently payable; remaining unpaid; mature; overdue; capable of being justly demanded, or justly claimed. Also it may mean fulfilling obligation; just and proper; proper; suitable; appropriate; fit; or according to rule or form.”

The note to the text quoted gives citation to oases which lead us to the conclusion that the word “due”, used in onr statute giving a lien, refers to any enforceable obligation to pay money. The lien at all times existed to secure the indebtedness, although the lien did not become enforceable until the obligation matured.

It is finally insisted that the bank had waived its lien, and is estopped to assert it against appellant. The basis of this contention is that Merritt had used a portion of his stock in appellee ¡bank as collateral to a loan which he obtained from the First National Bank of Monette, and when that loan matured appellee bank paid it, and had Mierritt’s stock surrendered to it by the Monette bank.

The chancery court held that appellee bank had no lien on the stock to secure the sum paid the Monette bank to obtain its release. But appellee does not complain of this holding, and we need not therefore consider whether it was in fact entitled to a lien to secure this sum. Other indebtedness from Merritt to appellee bank largely exceeds the value of the stock. Appellee bank’ had collateral from Merritt for this loan, but it has proved to be largely worthless.

We do not think this transaction or any other testimony in the record sustains appellant’s contention that the bank had waived its lien, or had estopped itself from asserting it. As we have seen, § 687, C. & M. Digest, prohibited waiver of the lien in favor of third parties except in writing, signed by an executive officer of the bank; and that was not done here.

If it be said that appellee bank, by paying’ the bank of JMonette the sum due that bank and secured by the stock deposited with it as collateral, thereby waived its lien in favor of the Monette bank, it may be answered that, if this be true, such waiver would not inure to appellant’s advantage. The payment to the Bank of Monette by appellee bank was made May 15,1923, which was long after the. indebtedness due her by Merritt was incurred, and there is no showing that she knew of this transaction, or was in any manner influenced by it.

We conclude therefore that the decree of the court below is correct, and it is affirmed.


author: Humphreys, J.

text:
    Fleming v. State.
    Opinion delivered February 1, 1926.
    1. Malicious mischief—cutting wire fence—malice.—Under Crawford & Moses’ Dig., § 2527, imposing punishment upon “any person who shall wilfully and maliciously cut or otherwise destroy any barbed or woven wire fence”, etc., held that, while malice is a necessary ingredient of the crime, it was unnecessary for the State to prove express malice against the owner of the premises, as the circumstances might be sufficient to justify the inference of malice.
    2. Evidence—competency.—In a prosecution for wilfully and maliciously cutting a wire fence on certain premises, it was not error to refuse to permit the introduction of a lease from a third person, where the lease did not describe the premises.
    3. Malicious mischief—cutting wire fence—crops.—Crawford & Moses’ Dig., § 2527, providing punishment for wilfully and maliciously cutting ,any barbed or woven wire fence, intended to prevent such cutting or destruction of wire fences inclosing the owner’s premises, whether crops had been planted thereon or not.
    Appeal from Izard Circuit Court; John C. Ashley, Judge;
    affirmed.

      J. Paul Ward, for appellant.

      H. W. Applegate, Attorney General, and Barden Moose, Assistant, for appellee. *
   Humphreys, J.

Appellant was indicted, tried and convicted in the circuit court of Izard County for the crime of malicious mischief, under § 2527 of Crawford & Moses’ Digest, and was adjudged to pay a fine as punishment therefor, from which is this appeal.

Appellant’s first assignment of error is that the verdict is not supported by any evidence of a substantial nature. Thurman Smith was the owner and in possession of adjoining lots 9 and 10 in the town of Boswell, each of which was 62 feet wide. They fronted on the railroad right-of-way, and were inclosed by a wire fence. The State’s testimony tended to show that the lots were fenced, and that the fence was cut in the night time by appellant. This testimony was of a substantial nature, and sufficient to support the verdict, unless it was incumbent upon the State to prove express malice by appellant against Tliurmian Smith, as a necessary ingredient of the crime. The statute under which appellant was indicted is as follows:

“Any person who shall wilfully and maliciously cut or otherwise destroy any barbed or woven wire fence or break or burn the posts thereof shall be guilty of a felony if the damage done to fence and crops amounts to $10 or more, and a misdemeanor if the damage is less than $10. * * *”

This court construed a statute prohibiting malicious injury to animals to mean malice against the owner, and not against the'animals, but ruled that malice against the owner might ¡be presumed or inferred from the circumstances attending the killing. Chappell v. State, 36 Ark. 345. The statute was similar to the one under which appellant was indicted. We therefore interpret the statute under which appellant was indicted to mean that malice against the owner is a necessary ingredient of the crime, but hold, as the court did in Chappell v. State, supra, that it was unnecessary for the State to prove express malice against the owner of the lots, as the circumstances attending the cutting of the fence were sufficient to justify the .jury in finding that the fence was cut on account of malice against Thurman Smith, the owner of said lots.

Appellant’s second assignment of error was the refusal of the trial court to permit the introduction of a certain lease from the Missouri Pacific Railroad Company to appellant. This lease did not attempt to describe said lots 9 and 10, and could not therefore justify appellant in cutting a wire fence upon said lots. For this reason the lease was properly excluded from the jury.

Appellant’s final assignment of error is that the statute under which he was indicted did not relate to the destruction of wire fences unless crops were inclosed by them. This would indeed be a very narrow construction of the statute. We think the purpose of the statute was to prevent the cutting or destruction of -wire fences, including the owner’s premises, irrespective of whether crops had been planted thereon.

No error appearing, the judgment is affirmed.