text:
    Evans v. Hoyt.
    Opinion delivered May 1, 1922.
    1. Executors and administrators — verification of claims.— Crawford & Moses’ Dig., § 101, requiring claims against estates of deceased persons to be verified, applies only to specific money demands due or to 'become due, and not to inchoate and contingent claims.
    2. Executors and administrators — claim against deceased co-partner — verification.—A bill alleging that plaintiff’s and defendant’s intestates were partners, and that defendant’s intestate was indebted to plaintiff, and asking for the appointment of a master to state an account between such partners, is a suit on a contingent or inchoate claim, and need not be verified, as required by Crawford & Moses’ Dig., § 101.
    3. Partnership — settlement between copartners. — No specific money claim or demand can exist in favor of one partner against another growing out of the partnership affairs until there has been a settlement and some amount found due from the one to the other.
    4. Partnership — rights of partner. — Until the affairs of a partnership are wound up, the state of the account between the partners is inchoate and contingent.
    Appeal from Independence Chancery Court; Lyman F. Reeder, Chancellor;
    reversed.

      Samuel M. Casey, for appellant.
    This being a suit by a partner against his deceased partner’s administratrix, the probate court had no jurisdiction, and section 106, C. & M. Digest, requiring verification of the account, had no application. 57 Ark. 299; 117 Ark. 600.
    The account could not be allowed by the administratrix nor by the probate court, as this court had no power to try the question of title to property or to adjust partnership accounts and make a final settlement. 116 Ark. 353; 123 Ark. 313. Such jurisdiction is vested in the chancery court.
    To the effect that a verification of the claim, where one partner was seeking to recover property which the administrator had taken charge of unlawfully, see 19 Ark. 443; 11 R. iC. L. p. 279; 11 Ann. Cas. p. 1105; 50 Ark. 62.
    The estate of a partner who has used the firm’s assets for his own benefit becomes impressed with a lien in favor of creditors. 135 Am. St. 912.
    Appellee is estopped to deny verification of the account because she waited until the day of trial to mention the matter. She should have demanded this before filing answer.

      8. G. Knight and Ernest Neill, for appellee.
    Appellant’s claim should fail because not verified as required by statute (secs. 100 to 107, C. & M. Dig.), and as held in the following cases: 14 Ark. 246; 14 Ark. 237; 23 Ark. 604; 21 Ark. 519; 30 Ark. 756; 48 Ark. 304; 97 Ark. 546; 99 Ark. 523; 94 Ark. 60; 105 Ark. 95.
    Objection to authentication may be made at any time before final judgment. 30 Ark. 756; 48 Ark. 304 ; 66 Ark. 327.

      T. D. Crawford and Samuel M. Casey, for appellant, in reply.
    Appellant was not asking for a specific money judgment against the estate — but merely that a master be appointed to state an account between the parties, therefore the nonclaim statute is not applicable. The claim was contingent and excepted from the operation of the statute of nonelaim — at least until it became due. 14 Ark. 246; 9 Ark. 412; 73 Wis. 533; 63 Ark. 218. The term “claim” as used is generally understood to mean a money demand. 80 Ala. 177; 9 Cal. 636; 52 Cal. 577; 105 Ark. 95.
   Humphreys, J.

Appellant, A. A. Evans, filed a bill against appellee, Pearl Hoyt, in her capacity as administratrix of the estate of F. C. Hoyt, deceased, in the Independence Chancery Court, seeking to charge the estate with a large amount growing out of a partnership business for the purchase and sale of farm products, conducted under the name of F. C. Hoyt & Co., at Newark, Ark., which, was owned by E. C. Hoyt and appellant. The bill, in substance, alleged that A. A. Evans financed the concern and F. C. Hoyt managed it; that the partners were to share the profits and losses equally; that the business covered the years 1915, 1916, 1917, 1918, and until December, 1919, at which time F. 0. Hoyt died; that the firm account was carried in the firm name in the First National Bank, at Newark, Ark., that in the conduct of the business F. C. Hoyt drew about 175 checks on the firm account for his individual use which were not charged on the books of the company against him; 'that F. 0. Hoyt also used moneys belonging to the partnership to operate an individual business, and to purchase individual property, which was not charged to him on the books of the company; that he also used hay and feed belonging to the company for his individual purposes, which was not charged to him. A list of all the checks, giving the date, payee and amount of each, together with all the other items claimed, was filed as an exhibit to and made a part of the bill. The prayer of the bill was to charge the estate with the various sums and amounts used by F. C. Hoyt individually out of the partnership funds, and that a master be appointed to state an account between them.

Appellee filed an answer, denying each and every material allegation of the complaint. As additional defenses, she alleged settlements between appellant and her intestate from time to time during the period the business was conducted, and that appellant received from her intestate, or from the firm business, from time to time, sums aggregating more than appellant’s interest or share in said business. On the 10th day of December, 1921, appellee, by permission of the court, amended her answer by including an allegation to the effect that the bill had not been verified as required by law, and that a verified statement of the account sued on had not been presented to appellee, as administratrix, as required by law, and upon that ground praying that the bill of appellant be dismissed. Immediately thereafter, according to the record, the parties announced ready for trial, and the court treated the amendment to the answer as a motion to dismiss the hill, sustained the motion and dismissed the bill upon the ground that a verified statement of the account had not been filed in the action or presented to the appellee as required by law. From the decree dismissing the bill an appeal lias been duly prosecuted to this court.

Appellant insists that liis claim was not that character of demand embraced in section 101 of Crawford & Moses’ Digest which must be authenticated by the affidavit of the claimant before suit could be brought upon it in the courts of this State. Section 101 of Crawford & Moses’ Digest, in so far as it requires the claimant himself to verify a demand presented against an estate, is as follows: “The claimant shall append to his demand an affidavit of its justice, which may be made by himself or an agent, attorney or other person. If made by the claimant, it shall state that nothing has been paid or delivered toward the satisfaction of the demand, except what is credited thereon, and that the sum demanded, naming it, is justly due.” The statute is dealing with the probation of claims against estates of deceased persons, and necessarily includes only claims susceptible to probate. The statute includes only specific money demands, due or to become due, and does not cover “inchoate and contingent” claims. Walker v. Byers, 14 Ark. 246. Appellant’s insistence is that the claim sought to be recovered in the instant case was not for a specific money demand, but was dependent upon an accounting between the parties, and hence an inchoate contingent claim, and for that reason did not require authentication or verification as a prerequisite to the assertion of same in the courts of this State. Appellee’s insistence is that the action brought is for the purpose of enforcing specific claims or items against the estate. A careful analysis and consideration of the bill has convinced us that it is an action for a partnership settlement, and not for the purpose of enforcing a specific money claim. It alleged that appellant and appellee’s intestate were partners; that appellee’s intestate withdrew a large amount of money from the partnership fund for individual purposes with which he failed to charge himself on the books of the firm kept by him. The prayer of the bill was for the appointment of a master to state an account between appellant and appellee’s intestate, and not for a judgment for any specific amount. The answer filed by appellee treated the bill as on'e for a partnership settlement. The allegations therein clearly indicate this, especially the allegation in reference to the settlements from time to time during the conduct of the partnership business, and also the allegation to the effect that appellant received from appellee’s intestate, or from said firm business, from time to time, sums aggregating more than his interest or share in said business. The prayer of her answer not only asked for a dismissal of appellant’s bill, but that it be treated as a cross-complaint and that the estate represented by her be allowed such amount as the court might find due her intestate. Our conclusion is that section 101 of Crawford & Moses’ Digest, defining the mode of exhibiting demands against estates, has no application to actions between partner's for partnership settlements. No money claim or demand can exist in favor of one partner against another until there has been a partnership settlement and some amount found due from one to the other. This is evident from the fact that a surviving partner has a right to wind up the affairs of the partnership without the intervention of proceedings in court. Until the affairs of the partnership are wound up, the state of the accjount between them is inchoate and contingent. Such claims are excepted from the requirements of the section of the statute pertaining to the presentation of claims against an estate to an executor or administrator.

The case of Walker v. Byers, 14 Ark. 246, cited and relied upon by appellee as controlling’ in the instant case, with reference to the necessity of authenticating the claim, is inapplicable, for the reason that the partnership in that case had been dissolved and an account had been stated. Not- so in the instant case; the action is for a partnership settlement.

For the reasons given, the decree dismissing appellant’s bill is reversed and the canse remanded with directions to overrule the motion and reinstate the case.


source: Caselaw Access Project

author: Smith J.

license: Public Domain

text:
    Holmes v. State.
    Opinion delivered May 8, 1922.
    1. Intoxicating liquors — evidence to sustain conviction. — Evidence held sufficient to sustain conviction of selling intoxicating liquor.
    2. Criminal law — remarks op court. — Where the State’s witness, in a prosecution for selling liquor, was asked whether he had seen defendant deliver whiskey at any other time or place, and in overruling an objection the court said that the testimony was admissible “as a circumstance to show that he was probably engaged in the business of selling liquor at the time this occurred, if it did occur; it goes to the jury in that way, and that way alone, and of the weight and effect thereof the jury is the sole and exclusive judge,” the remarks did not constitute a comment on the weight of the testimony.
    3. Criminal law — general objection to instruction. — The court instructed the jury as follows: “If you find that any witness has wilfully sworn falsely as to any material fact in issue in the case, then you may disregard all the testimony of such witness, or you may give regard to that portion which you believe to be true, and disregard that portion which you believe to be false.” Held not open to a general objection.
    4. Criminal law — failure to object to improper remarks op court.- — Where no objection was made to the remarks of the court on the failure of the jury to reach a verdict, the error was waived.
    5. Criminal law — remarks op court.- — The trial court’s remarks to the jury, upon report of a disagreement, that they had not considered the case long enough, that he was going to keep them together the rest of the week, and towards the end of the week . would put them on bread and water, were improper.
    Appeal from Mississippi Circuit Court, Chicha- • sawba District; B. E. L. Johnson, Judge;
    affirmed.

      Davis, Gosten S Harrison, and Gravette & Rayner, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Smith J.

Appellant was convicted of selling intoxicating liquor," and lias .appealed.

It is. first insisted that the evidence is not sufficient to sustain the verdict. But we do not agree with counsel in this contention. The State’s case was made by a young man named T. E. McCullough,who testified substantially as followsj He and his father, W. E. McCullough, owned together a small mercantile business in the city of Blythe-ville, and on one occasion a salesman who sold and installed gum machines came into witness ’ place of business and went to work on some of his machines. The salesman was in an intoxicated condition. Appellant brought into the store a quart of moonshine whiskey, in a fruit jar, and set it over behind an ice box; he then went over to the salesman, who gave him $5, after which appellant left the store. Later the salesman was seen with some whiskey in a fruit jar similar to the one seen by witness McCullough. This witness had seen appellant on othei occasions bring whiskey into the store.

It was admitted by appellant that he had on more than one occasion brought whiskey into the store, but he stated that in each instance he had 'brought the whiskey to W. E. McCullough, to whom-it belonged and for whom he had been keeping it; and W. E. McCullough corroborated appellant in this statement. The transaction in which $5 changed hands was admitted, and the following explanation thereof offered. Appellant had bought one of the gum machines to be placed in a rooming-house owned by his wife and had made a deposit of $2.50 to cover his purchase. Appellant’s wife decided not to buy the machine, and appellant so advised the salesman, who returned the deposit and in doing so gave appellant a five-dollar bill and received in change from appellant two dollars and fifty cents.

T. E. McCullough, testified that he observed the parties closely, and no change was given by appellant to the salesman when he received the five-dollar bill.

Appellant sought, by the cross-examination of the State’s witness, to secure the admission that the witness did not know the contents of the jar and was not certain that it contained whiskey. Without setting out the testimony as developed on cross-examination, we state our conclusion that the jury was fully warranted in finding that the jar contained whiskey and was delivered to the salesman, who paid appellant $5 therefor.

On direct examination of the State’s witness, he was asked if he had seen appellant deliver any whiskey at any other time or place, and in overruling an objection to this question the court said the testimony was admissible “as a circumstance to show that he was probably engaged in the business of selling liquor at the time this occurred, if it did occur; it goes to the jury in that way and that way alone, and of the weight and effect thereof the jury is the sole and exclusive judge.”

We think this remark of the court did not constitute a comment on the weight of the testimony. The testimony was in fact competent. Casteel v. State, 151 Ark. 69. We think, however, the better practice would have been for the court to have overruled appellant’s objection without comment or explanation of the ruling.

Over appellant’s objection the court gave an instruction numbered 2 reading as follows: “If you find that any witness has wilfully sworn falsely as to any material fact in issue in the case, then you may disregard all the testimony of such witness, or you may give regard to that portion which you believe to be true, and disregard that portion which you believe to be false. ’ ’

We have here a record identical with that of the case of Murchison v. State, ante p. 300, where the same instruction was given. We there said a specific objection should have been made; and the general objection here made must be disposed of in the same manner.

On the hearing of the motion for new trial, counsel for appellant stated that he desired to introduce some evidence in support of his motion. The judge said: “If it isn’t in the record, you have no right to prove it.” Counsel then said: “The stenographer was not here at the time, your Honor, is the reason it wasn’t taken. It was while the jury was deliberating, and I want now to offer proof that the court stated to the jury when they returned into open court, after several hours of consideration of their verdict in this case, and told the court that they were hopelessly hung and stood 10 to 2, and then the court stated to them that they had not considered the case long enough; that it was early in the week and that he was going to keep them together for the rest of the week and along toward the end of the week he would put them on bread and water.” Thereupon the judge said: “All right, you don’t have to put on your proof. I said that. Is there anything else?”

It is very earnestly insisted that this remark of the judge was improper and calls for the reversal of the judgment. But the majority of the court do not think so, for the reason that no objection was interposed when the remark was made. We are all of the opinion that the remark was highly improper and should not have been made; but the majority are of the opinion that the error was waived when appellant failed to object. In their opinion the attention of the court should have been called to the possible effect of the remark on the jury, thereby giving the judge an opportunity to withdraw it or to explain that it was not to be taken literally. It is the practice of this court to require an objection to be made in the trial below, and unless made there the error will be treated as waived; and this rule has been applied to remarks of the court as well as to other proceedings at the trial. 2 R. C. L. p. 92; Southwestern Tel. & Tel. Co. v. Abeles, 94 Ark. 254.

No error appearing, the judgment is affirmed.


author: Hart, J.

text:
    Rachels v. Garrett.
    Opinion delivered May 1, 1922.
    1. Fraudulent conveyances — right of creditors to question attorney’s fee. — Where an insolvent debtor transferred to his attorney certain notes as payment for services, the creditors conld question the reasonableness of the fee.
    2. Attorney and client — elements of fee. — In determining the reasonableness of an attorney’s fee, the court may consider the relationship between the parties, the reasonableness of the employment, the amount or importance of the subject-matter of the suit, the degree of responsibility involved, and the time and labor bestowed.
    3. Attorney and client — value of attorney’s services.' — In fixing the value of legal services, there being no fixed standard, the court may apply to the testimony its own experience and knowledge of the character of the services.
    4. Appeal and error — finding as to attorney’s fee — conclusiveness. — A finding by a chancellor that the reasonable value of an attorney’s services rendered to an insolvent debtor was only $3,840 was not against the weight of the testimony.
    5. Fraudulent conveyances — liability of attorney. — Where an insolvent debtor transferred to his attorney notes of the face value of $6,650 in payment of services of the reasonable value of $3,840, and the attorney settled with the maker of the note for a less sum than their face value, a decree for the creditors against the attorney for the difference between such face value and the reasonable value of the services was proper.
    Appeal from White Chancery Court; John E. MarUneau, Chancellor;
    affirmed.
    STATEMENT OE THE FACTS.
    Bobert D. Garrett, receiver of the First National Bank of Judsonia, Ark., brought suit in equity against C. M. Erganbright and others to cancel certain deeds and to recover judgment against them for an amount alleged to be due said bank. J. N. Bachels and others were made garnishees to the action.
    C. M. Erganbright was president of said First National Bank when it closed its doors on the 3rd day of June, 1920. He had been the president for twenty years or more, and for the most of that time J. N. Bachels had been the attorney for 'both Erganbright and the bank.

      In 1911 a tract of land was sold to satisfy a lien of $1,440 against it. Rachels became the purchaser at the sale. It was agreed between him and Erganbright that the latter should furnish the $1,440, and that the title should be taken in his name as security therefor. It was further understood between the parties that the land should be held until such time as they should agree upon a sale, and that Rachels was to have the profit arising from the sale as his fee for legal services performed for Erganbright and said bank.
    No further action was taken in the matter until May, 1919, when Erganbright sold the land to his son. Erganbright reported the sale to Rachels at $5,280,.and it was agreed between them that Rachels was entitled to $3,840 in payment of his fee. No payment, however, of any part of the amount was made to Rachels.
    On the 26th day of April, 1920, Erganbright informed Rachels that certain persons were threatening to remove him from the board of directors of a levee and drainage district. After hearing his statement of the matter, Rachels demanded a fee of $5,000. While Erganbright was in the office, parties representing the other side of the question called Rachels to the telephone and offered him a fee of $5,000. Finally, on account of their former intimate relation, Rachels agreed to represent Erganbright for a fee of $2,500. He made a trip to St. Louis and several trips to Little Rock about the matter. He examined into the affairs of the district and represented Erganbright in the county court about the matter.
    On May 29, 1920, Rachels went to Erganbright and reminded him that he owed him $3,840 for past services which had been fixed in the land deal above referred to, and also that he had contracted to pay him $2,500 for a fee in the levee and drainage matter. Rachels demanded payment of both these amounts. Erganbright told him that he did not have any money, but would give him some good notes. He told Rachels that he had the Walker Ladd notes, one for $3,000 due on the 12th of June, 1920, and one for $3,650 dne in about a year. Seeing that one of the notes matured soon, Rachels said to Erganbright, “This is about as good as money, is it not?” Erganbright replied in the affirmative, and assured Rachels that Ladd would pay him without a word. Rachels agreed to take the notes in settlement of what Erganbright owed him, and Erganbright indorsed the notes to him. The notes bore 8 per cent, interest. Rachels considered that Erganbright owed him $6,340. He considered the' notes good for that .amount. The face value of the notes was $6,650. After some negotiation with Ladd and his father, Rachels settled with them by receiving $3,000 in cash and taking Ladd’s note for $1,500. Rachels made this kind of settlement because he needed the money, and was made to believe that Walker Ladd was not worth a great deal of money, and a great many threats and thrusts were brought to bear upon Mm to cause him to make this settlement.
    The above facts were testified to in substance by Rachels, and his testimony was corroborated by that of Erganibright.
    Erganbright disappeared on the night of June 2, 1920, and the bank closed its doors the next morning on this account. It turned out that Erganbright was a defaulter in such an amount as made the bank insolvent.
    A receiver was appointed to take charge of its assets and wind up its business. The receiver obtained judgment against Erganbright in the sum of $52,615.82, and no part of this judgment has been paid by Erganbright.
    The chancellor found thé facts substantially as stated above and made a specific finding that Erganbright was indebted to Rachels on the 29th day of May, 1920, in the sum of $3,840. It was decreed that the receiver should recover from Rachels the sum of $2,i810, being the difference between the face value of the notes which he had received from Erganbright and the amount that the court found that Erganbright was indebted to Rachels on May 29, 1920.

      To reverse that decree Rachels has duly prosecuted an appeal to this court.

      John E. Miller and G. E. Tingling, for appellant.

      Brundidge & Neelly, for appellee.
   Hart, J.

(after stating the facts). The chancellor found the facts tó be that Erganbright owed Rachels $3,840 on account of the land deal and in payment of his legal services; but further found that there was no indebtedness for the $2,500 fee charged by Rachels for his services in a threatened suit against Erganbright to oust him from his position as director on a levee and drainage board.

It will be noted that the settlement between Erganbright and Rachels on the 29th day of May, 1920, was made on the basis that Erganbright owed the $2,500 fee. The face value of the Ladd notes was $6,650, and Rachels considered them good for his indebtedness, which he claimed to be $6,340. One of the Ladd notes was for $3,000 and was due within a few days after the settlement was made.

The chancellor did not allow Rachels any fee for his services in the threatened proceedings against Erganbright relative to his removal as a levee and drainage commissioner, and the correctness of the chancellor’s decision depends largely upon the correctness of his finding in this matter. The reason is that Erganbright and Rachels both considered this fee as being due in making the transfer of the notes. At that time Erganbright was largely indebted to the bank, and he had no right to transfer his assets, except in payment of debts which he actually owed.

Of course, as between Erganbright and Rachels, they had a right to make a contract for the payment of whatever fee they might agree upon. We have no concern about that. But the rights of creditors have intervened, and they may question the reasonableness of the fee. If the fee was unreasonable or not due, this would to that amount deprive them of assets of Erganbright which they might, through the receiver, subject to the payment of their claims.

It will be noted that Erganbright employed Rachels about the drainage matter on the 26th day of April, 1920, and that he disappeared on June 2, 1920. It is true that the record shows that Rachels represented Erganbright in the county court about the matter, but it does not disclose what proceedings were actually taken. The testimony is vague and indefinite about the whole matter. In making his finding the chancellor had a right to consider the relationship between the parties, the' reasonableness of the employment, the amount or importance of the subject-matter1 of the suit, the degree of responsibility involved, and the time and labor bestowed. There is no fixed standard by which such services can be determined, and the court may apply to the testimony its own experience and knowledge of the character of such services. Jacoway v. Hall, 67 Ark. 340, and Sain v. Bogle, 122 Ark. 14, and cases cited.

The value of the plaintiff’s services in the instant case is a matter with which the chancellor must necessarily have been familiar. The whole proceedings regarding the insolvent bank were before him. This included the relationship of Rachels to Erganbright as attorney and also their relationship to the bank. "When the court is informed of the nature and extent of such services, its own experience furnishes it with an important element necessary to fix their value.

The amount fixed by the chancellor was deemed by him as sufficient payment for all the services rendered by the attorney. This was necessarily the result of his finding as a whole. The chancellor found that the attorney had, under all the facts and circumstances of the case, received adequate compensation, and when we consider his knowledge of the extent and character of such services, it can not be said that his finding of fact in this respect is against the preponderance of the evidence.

Therefore, under the settled rules of this court, the finding of fact cannot be disturbed on appeal.

Again it is insisted that the chancellor should only have charged Rachels with the difference between $3,840, the amount of fees allowed him, and $4,500, the amount which Rachels actually received on the Ladd notes. It will be remembered that the court charged him with the difference between $3,840 and the face value of the Ladd notes.

The creditors had nothing to do with Rachels settling with Ladd for $4,500. One of the notes for $3,000 was due at the time. It will be noted that Rachels only received this amount in cash and took a note for the remaining $1,500. The creditors had nothing to do with this transaction. -This settlement between Erganbright and Rachels was on a basis that Erganbright owed Rachels $6,340 and the face value of the notes was $6,650. They bore 8 per cent, interest, and the parties settled on the basis that the notes were about worth their face value. Therefore, we do not think the court erred in charging Rachels with the difference between the amount allowed him and the face value of the notes. He can not escape liability on the ground that he settled with Ladd for the notes for a much less sum than their face value.

It follows that the decree must be affirmed.


author: Smith, J.

text:
    Brust v. State.
    Opinion delivered May 1, 1922.
    1. Indictment and information' — felonious nature — In an indictment alleging that defendant did unlawfully, feloniously, etc., assault and carnally know,” etc., both verbs were modified by the adverb, and the indictment charged a felony.
    2. Rape and carnal abuse — joinder.—The offenses of rape and carnal abuse may be charged in the same count.
    3. Witnesses — cross-examination — impeachment. — In a rape prosecution where prosecutrix was asked about incidents tending to show that she had a lascivious mind, which she denied, it was not error to refuse to admit evidence of such misconduct.

      4. Jury — refusal to permit challenge. — It was not error to refuse to permit defendant to challenge a juror peremptorily after he had been accepted, where no reason therefor was given.
    5. Criminal law — separation of jury. — In a criminal case where the court ordered the jury to be kept together, the dividing of the jury into separate groups was improper, and the burden devolved upon the State to show that they had been subjected to noxious influences.
    6. Criminal law — separation of jury. — In a criminal prosecution where the court ordered the jury to be kept together, but they separated, and one juror went across the street to buy a cigar, testimony held to show that the jurors were not subjected to improper influence while so separated.
    7. Criminal law — suspension of trial. — In a prosecution for rape where a juror’s father was injured, and with defendant’s consent the trial was suspended for two months, and the jury separated, under instructions of the court, upon reconvening the refusal of defendant’s motion to discharge the jury was not error.
    8. Criminal law — admission of accused. — In a rape prosecution, where, during suspension of the trial, accused obtained a license to marry, evidence that he stated in his marriage affidavit that he was 21 was competent as an admission to rebut evidence that he was 18.
    Appeal from Greene Circuit Court, Second Division; R. E. L. Johnson, Judge;
    affirmed.

      M. P. Huddleston, for appellant.

      J. 8. Utley, Attorney General, Elbert Godwin and Win. T. Hammock, for appellee.
   Smith, J.

Appellant was convicted of rape under an indictment, the charging part of which reads as follows: “In the county aforesaid, on the 24th day of November, 1921, the said Basil Brust did unlawfully, feloniously, violently, forcibly, and against her will, assault and carnally know one Irene Bobbitt, a female person under the age of sixteen years.”

The insistence' is that the adverbs, “unlawfully, feloniously, violently and forcibly,” and the phrase, “and against her will,” qualify only the word “assault,” and charge only a misdemeanor, and that there are no adverbs in the indictment which qualify the verb “know” except the adverb “carnally.”

We think this objection is not well taken. The charge is that the defendant did “assault” and “carnally know.” The verbs “assault” and “know” are connected 'by the co-ordinate conjunction “and”, and we think the adverbs employed limit and qualify both verbs.

It is also objected that the indictment charges two separate offenses. And so it does. But the offenses charged are rape and carnal abuse, and it is permissible to charge these offenses in a single count. Powell v. State, 149 Ark. 311, and oases there cited.

During the cross-examination of the girl assaulted she was asked about a number of incidents tending to show that she had a lascivious mind. She denied making the remarks or being guilty of the conduct inquired about. Thereafter the defendant offered to prove the specific instances of misconduct which she had denied committing. An objection to this testimony was sustained, and an exception saved. The defendant was permitted to offer testimony to the effect that the prosecutrix’s reputation for truth and morality was bad.

No error was committed in the ruling just stated. The case of Lockett v. State, 136 Ark. 473, was a prosecution for -an assault with intent to rape, and it was there said: “Now, it was competent, of course, to impeach the credibility of the prosecuting witness on cross-examination by interrogating her concerning particular instances of immorality on her' part, but appellant was bound by her answers on that subject and could not introduce witnesses to contradict her. McAlister v. State, 99 Ark. 604.” See also Jackson v. State, 92 Ark. 71; Maxey v. State, 66 Ark. 523; Pleasant v. State, 15 Ark. 624.

At a time when eleven jurors had been selected the State had two peremptory challenges' left and the defendant had five. The defendant asked permission to challenge peremptorily one of the eleven jurors who had been accepted; but the request was denied. No reason was given to the court, and none appears in the record, why defendant desired to challenge the juror after having previously accepted Mm. No error was committed in this ruling. In the case of Allen v. State, 70 Ark. 337, it was said: “Under the statutes of this State persons summoned as jurors, when called to serve in criminal cases, may be examined under oath touching their qualifications. As each one is called, he is first examined by the State, and then by the defendant, and, after such examination is completed, if the juror is found by the court to be competent, the State shall challenge him peremptorily or accept him; if accepted by the State, the defendant shall challenge him peremptorily or accept him. Lackey v. State, 67 Ark. 416. Each party must challenge or accept in the order named when the court declares him competent. After he is accepted by both parties, he cannot be challenged peremptorily without permission. The court, for good cause, may permit the challenge to be made at any time before the jury is completed. Sand. & H. Dig., §§ 2202-2217.”

It was further said in the Allen case, supra, that, as the record failed to show any reason for challenging the juror after he had been selected and accepted, no error was committed in refusing to allow the defendant to challenge the juror. And, as the record now before us is in similar condition, the same rule must be applied. Brown v. State, 134 Ark. 597; Temple v. State, 126 Ark. 290.

The record shows that the court exercised its discretion to keep the jury together in charge of sworn officers from the time the jury was sworn on the 15th of December until it was discharged, as hereinafter stated, on December 17th, and that during the time the jury had been so ordered kept together, it had divided into two groups, and on more than one occasion these groups of jurors 'became widely separated.

It was also shown that George Taylor, a juror, left the group of which he was a member and went across the street to purchase a cigar, and that in doing so Taylor went out of the hearing of his fellow-jurors and that of the officer having the jurors in charge.

Permitting the jury to divide into two groups did not comply with the requirement that the jury should be kept together after, the court had ordered that action taken. The entire jury should have been kept together; and, as this was not done, the burden then devolved on the State to show that the jury had not been subjected to any noxious influences. Holt v. State, 131 Ark. 391; Armstrong v. State, 102 Ark. 356.

We think, however, this burden was fully discharged. Every member of the jury was called and testified, not only as to communications or other improper influences during the time they were kept together, but also during the time they were permitted to separate, as hereinafter stated, and each juror testified that no one had attempted to communicate to him or with him anything concerning the case on trial. The affirmative showing was made that, while the jury did separate into two groups, a sworn officer accompanied each group and kept the members thereof together and suffered no person to speak to or communicate with them on any subject connected with the trial; nor did they do so themselves. Section 3187, C. & M. Digest.

As to the juror Taylor, the affirmative showing was made that he was away from his fellow-jurors only the length of time required to cross the street and buy a cigar, and during that time he was in the view of the officer having him in charge and that of his follow-jurors. He himself testified that no one mentioned the case in his presence or hearing while he was away from the group of jurors of which he was a member.

Error is assigned because of the refusal of the court to grant a new trial on account of alleged false answers given by a juror on his voir dire as to whether he had ever been interested in the trial of any “sex crime.” The juror answered, on his voir dire, that he had not. We do not set out the examination of this juror conducted before the court on the hearing of the motion for a new trial; but we do not think it was made to appear that he had answered either falsely or evasively the questions which, had been asked him touching his qualifications to ' serve as a juror.

Before the taking of the testimony had been completed, the father of one of the jurors was shot and was brought to a hospital in the city of Paragould, where the court was in session. The attending surgeon was of the opinion that the patient would die, and the juror was advised of his father’s condition. Thereupon defendant filed a motion to discharge the jury. This motion was •overruled, but by consent it was agreed that the trial should be suspended and continued over until the 23rd of January, 1922, with the stipulation that during the interval the jury should be allowed to separate under strict instructions about receiving communications concerning the trial. This order of continuance recites that it was entered by consent of all parties, and that in consideration thereof it was agreed that, in the event the defendant was found guilty, the death penalty would be waived and the punishment should be fixed at imprisonment in the penitentiary for life, and the instructions, without reciting this agreement, told the jury the death penalty had been waived. During this suspension of the trial courts were held in other counties in the circuit. Upon the reconvening of the court the defendant filed a motion to discharge the jury. He insists that this should have been done, notwithstanding the fact that he had consented to the postponement of the trial and to the separation of the jury in the meantime. He insists that he should not be bound by his consent, because, to have done otherwise, would have incurred the displeasure of the jury, and especially would this have been the ease had the jury been kept together during the period of adjournment. The further insistence is made that the protracted adjournment destroyed the integrity of the trial.

The holding of the court in the case of McVay v. State, 104 Ark. 629, is against the contention just stated. That case is not substantially different from the instant case, except that in the case now before us the period of adjournment was for a somewhat longer time than was the adjournment in the McYay case. It is also true that the jury in the McYay case was kept together; while the jury in the instant case .was allowed to separate; but in the opinion in the McYay case it was said: “The court could, in the exercise of its discretion, have permitted the jury to separate during the period of adjournment (Kirby’s Digest, § 2390), and the fact that the court ordered the jury to be kept together did not affect its power to retain the jury during the period of adjournment.”

- It does not appear that the adjournment over in the McVay case, supra, was done by the consent of the defendant; while here express consent to that action was given; and we are of opinion no error was committed in so doing, even though the jury was allowed to separate and the adjournment was for a .longer period of time than that in the McVay case. Shinn v. State, 150 Ark. 215.

During the period of adjournment the defendant was by consent admitted to bail; and while thus at liberty he obtained a license to marry a young lady not connected with the trial. The clerk of the county court was called and, over defendant’s objection, was permitted to testify that when defendant applied for the license he made affidavit that he was then twenty-one years old. In admitting this testimony the court said: “It is not in the mat ■ ter of considering whether the defendant did or did not commit perjury in making the affidavit before the clerk, or swear to an age which has formerly been maintained. Don’t consider it from that point at all.” The defendant did not testify, and it is very strenuousty urged that the admission of-this testimony was error calling for the reversal of the judgment.

It appears, however, that defendant’s mother did testify in behalf of her son, and on her direct examination was asked defendant’s age, and she stated that he was then eighteen years of age. This testimony was offered as substantive matter of defense, the theory being, no doubt, that the jury would not likely believe that a youth of that age would be so amorously crazy as to commit the crime of rape; or it may have been offered to excite the sympathy of the jury on account of the youth of the accused; and it was not, therefore,'improper to prove the- affidavit of the. defendant in obtaining the marriag-e license as a -contradiction of the testimony of his mother and an admission by him that he had in fact attained a more advanced age than she had stated. This was not impeaching testimony, strictly speaking. The defendant saw proper to offer testimony that he was only eighteen years old; and the State met this testimony by proving his own admission that he was older. His declarations were, of course, admissible against him. He had stated to the clerk that he was twenty-one years old; at least the clerk so testified; and if it was proper for the jury to consider the age of the accused in making up their verdict, it was not improper to take into account defendant’s own statement on that subject.

The girl assaulted testified unequivocally that .the crime was committed forcibly and against her will; and there appears to be no error in the record, so .the judgment must be affirmed. It is so ordered.


author: Wood,'J.

text:
    Musgrove v. Holt.
    Opinion delivered May 15, 1922.
    1. Wills — validity.'—A will, in the handwriting of the testatrix, though partly written with pencil and partly with ink, and though long spaces intervened between paragraphs or sentences of the will, was not thereby rendered invalid; the names of the devisees and legatees being specifically mentioned and the bequests to them being set forth with sufficient clearness of description to identify the property which they were to receive.
    2. Wills — place op signature. — Under Crawford & Moses’ Dig., § 10494, providing that a will must be subscribed by the testatrix at the end thereof, where the body of a will was in the testatrix’s handwriting and her signature appeared at the end thereof, a clause added by a third person after her signature, made without testator’s knowledge, may be disregarded.

      3. Wills — addition and erasure. — Where an executor, without the knowledge of the testatrix, for the purpose of clarifying a will, erased a clause therein providing that the executors were to be paid $1000 for their services, and added, after the signature of the testatrix: “They are to receive $1000 in full for their services,” the will was not invalidated thereby.
    4. Wills — holograph wills. — A will wholly written by the testatrix is valid, though it was written partly with ink and partly with pencil.
    Appeal from Arkansas Circuit Court, Southern District; George W. Clark, Judge;
    affirmed.'

      Gustave Jones, C. R. Leslie and John W. Newman, for appellants.
    Every last will and testament must be subscribed by the testator at the end thereof, or by some person for him, at his request. C. & M. Digest, § 10494, first subdiv. See also 5th subdivision of same as to holographic wills.
    The purpose of our statute in requiring wills to be signed at the end thereof is to provide against fraud, and this statutory requirement must not be frittered away by interpretation. 121 Ark. 448. The fraud to be prevented is the forging of inserted or additional provisions, the cutting off or erasure of provisions at the end, or the probate of an incomplete or deliberation, rather than a completed instrument.
    The instrument, to be entitled to probate, must be the very paper intended by the testator to be his will. 28 E. C. L. 59; 1 Alexander on Wills, 569, § 420; 91 N. Y. 516, 520.
    A holographic will must show on its face that it is final and complete and intended to be operative, just as it is when the testator subscribes his name. 126 N. Y. Suppl. 933; 146 Cal. 455, 106 Am. St. Eep. 53; 118 Penn. St. 37; Underwood on Wills, 252, § 186; 1 Alexander on Wills, 1917 Ed., 573; Id. 761, § 558; 40 Mont. 190, 26 L. E. A. (N. S.) 1145.
    It is conceded that a will may be informal, not couched in any particular form of language, etc., and still be valid, but it must, nevertheless, in order to be valid, meet the requirements of the statutes and the laws in regard to wills, and the statute requiring the will to be signed at the end must be strictly complied with. 224 S. W. (Ark.) 729.
    In this instance, the presumption of law exists that the pencil writing was written after the writing and signature in ink. 1 Alexander on Wills 761, § 558'; 126' N. Y. Suppl. 933. See also 6 Penn. 413.

      John W. Moncrief, for executors.
    This court is committed to the doctrine that no particular form is essential to the validity of a will. On the other hand, it has held that a will is sufficient, however irregular in form, or in expression, just so it discloses the intention of the testator touching the final disposition of his property. 80 Ark. 204; 144 Ark. 429; 122 Ark. 411; 116 Id. 565.
    The blank spaces appearing in the body of the instrument do not affect its validity. 106 Am. St. Rep. 53, 59; 89 Id. 135, 139; 131 Id. 719, 80 Ohio St. 691; 10 A. L. R. 422.
    The act of Holt in drawing the pencil mark through the words “consideration $1,000” and in writing the words following the signature of the testatrix cannot have the effect of revoking the will or of defeating its provisions.
    Had the testatrix herself made these changes, that would not have invalidated the will. 36 L. R. A. (N. S.) 66, 79 Atl. 532; 98 Am. St. Rep. 808; 85 S. W. 179-181; 90 Am. St. Rep. 121; 57 Id. 135.
    A will is not invalidated because blank spaces are left in the body of it, if the instrument itself be coherent and consistent. Schouler on Wills, 5th Ed., § 435, pp. 545-546. And an alteration appearing therein raises no presumption against it, but the question of the time of the alteration is one for the jury. 127 Am. St. Rep. 499.
    The fact that a will was written partly with a pen and partly in pencil writing raises no presumption of alteration. It merely raises a question of fact for the jury as to whether the part or parts written in pencil were so written before execution. 19 Am. St. Rep. 637; 95 N. Y. 145, 153. See also 129 N. Y. Suppl. 5; 1 Annotated Cases, 606-609.
    ..As to-whether this instrument is a will, or a mere suggestion- for a will, was a question of fact, and the finding that it is a will is supported by the evidence. 1 Alexander on Wills, 58, § 52; 116 Art. 565.
    ... As to holographic wills see 59 N. E- 910; 14 L. R. A.. (X S.) 968-972; 1 Annotated Cases, 371-373; 37 N. E. 125, 128; 85 S. W. 179.

      Botts & O’Daniel, for legatees.
   Wood,'J.

On the 26th of February, 1920, the probate court for the Southern District of Arkansas County, on the application of C. P. Chaney and Miss Myrtle Moon, admitted to probate -a written instrument as the last will andPtestament of Mrs. P. D. Porter, deceased. Certain parts"of the will are written in pencil, and other portions are written with ink. The will disposes of a large estate consisting of real and personal property. Several different parties are named as devisees and legatees in the will. The bulk of the estate was bequeathed to C. P. Chaney. The last clause of the will, as originally written in pencil, is as follows: “I appoint J. I. Porter and Earl Holt my executors of this, my last will and testament, without bond. Consideration $1,000 dollars. (Signed) P. D: 'Porter.” Pencil marks were run through the words “Consideration $1,000 dollars” and after tbe signature was written the following: “They to receive $1,000 in full for .their services.”

. William N. Musgrove, James L. Musgrove, Gilbert Musgrove and Lula Talbot objected to the probate of the will and were granted an appeal to the circuit court. In -the circuit court they were named as parties contestants and filed their petition setting1 forth their grounds of contest, which are as follows: “(1). That the entire body of the will and the signature thereto are not written in the proper handwriting of the testatrix. (2). That the said will is not subscribed to by the testatrix at the end thereof.”

At the trial Myrtle Moon, Vida Hamilton and Mrs, Vida Hamilton, as guardian, were made parties proponents as beneficiaries under the will. The issue as to whether the instrument presented for probate was the will of Mrs. P. D. Porter was by consent of parties tried by the court.

The testimony tended to prove substantially the following: Three witnesses made affidavits in the probate court that for several years they had been familiar with the handwriting of Mrs. Porter; that the entire body of the proposed will’and the signature thereto were in the proper handwriting of Mrs. P. D. Porter; that at the time of the execution of the alleged will she was more than twenty-one years of age and of sound and disposing mind and memory. Several other witnesses testified to the same effect. Oné of them stated that he had known Mrs. Porter all of his life and had made a study of handwriting for eight or ten years. This witness stated that the entire body of the will and the signature were written in the handwriting of Mrs. Porter. The words following the signature to-wit, “They to receive $1,000 in full for their services” were in the-handwriting of Earl Holt. ■

' The testimony of the county and probate clerk was to the same effect, and likewise that of J. L. Porter and E. F. Holt. Indeed, the testimony is undisputed that the entire body of the will and the signature were in the handwriting of Mrs. Porter, and that the -words following her signature quoted above were written by Earl Holt.

Witnesses Porter and Holt testified concerning the erasure of the words, ‘ Consideration $1,000 dollars ’ ’ and the words written by Holt following her signature, substantially as follows: The pencil marks were run through the words, “consideration $1,000 dollars,” after Mrs. Porter had signed and executed the will. This erasure was made and the words ‘‘They to receive $1,000 in full for their services” were written by Holt in lien thereof, or to explain the words through which the pencil marks had been drawn. This erasure was made and these words written after Mrs. Port,er had left. J., I. Porter, a nephew by marriage of Mrs. Porter, had discussed with Mrs. Porter the making of her will. She wrote the same when she Was on a visit to Hot Springs, and on her way from Hot Springs she stopped over in Stuttgart and talked with Porter about it. He read the will and sent word for Holt to come. Holt, who was a lawyer and a confidential friend of Mrs. Porter, took the will away to look it over carefully to see if any changes were needed. The next day or so he brought the will back to Porter’s office, and they read it over carefully, and Holt stated that he thought the three words, “Consideration $1,000 dollars,” should be a little clearer so that there would be no question among the heirs about it. Then at Porter’s request Holt drew those lines through the words and added the words after the signature above indicated. This was all done after Mrs. Porter had gone home, and she had absolutely nothing to do with it. The matter came about, as explained, because Porter was a close kinsman of Mrs. Porter. The will, in this form, was sent to Mrs. Porter, and was not seen any more until it was taken out of the desk drawer in her office after her death.

It was shown that Mrs. Porter had some property in California and a one hundred dollar Liberty bond not included in the will.

Upon the above facts, the court found that the instrument proposed and admitted to probate by the probate court was the last will and testament of Mrs. P. D. Porter, and that the same had been properly proved and admitted to probate, and entered a judgment so declaring and dismissing the petition of the contestants, and for costs, from which judgment is this appeal.

1. The appellants contend, first, that, inasmuch as parts of the will were written with pencil and part with ink, the presumption is that those parts written in pencil were written after Mrs. Porter had executed the will. They further contend that the parts written in pencil when read alone do not make sense, and that there were long blank spaces between paragraphs in the will, which show that the instrument on its face was merely “deliberative memoranda.” It is impractical to set out the will in this opinion as it appears in the record. We have examined the same, however, and cannot sustain learned counsel in their above contentions. The undisputed testimony, as we have stated, shows that the entire body of the instrument and the signature thereto, as originally written, were in the proper handwriting of Mrs. Porter, and that the parts appearing in ink and in pencil were all written by her and were in the instrument when the will was left with Holt to see if it was in proper form and whether or not he had any changes to suggest.

The will, when read as a whole, is not unintelligible. The names of the devisees and legatees are specifically mentioned and the several bequests to them are set forth with sufficient dearness of description to identify the property which the. testatrix intended the beneficiaries should receive. The fact that long spaces intervened between paragraphs or sentences of the will can make no difference where the testator by the language written makes a disposition of his property and the instrument is signed at the end thereof.

As was said by Judge Riddick in Arendt v. Arendt, 80 Ark. 204, quoting from Jarman on Wills: ‘ ‘ The law has not made requisite to the validity of a will that it should assume any particular form, or be couched in language technically appropriate to its testamentary character. It is sufficient that the instrument, however irregular in form or inartificial in expression, disdoses the intention of the maker respecting the posthumous destination of his property; and, if this appear to be the nature of its contents, any contrary title or designation which he may have given to it will be disregarded.” The above was said concerning a document that took the form of a letter which the court held to be a valid holographic will. See also Murphy v. Murphy, 144 Ark. 429.

The fact that there were blank spaces, some of them more or less lengthy, between paragraphs of the will or between the last writing and the signature can make no difference when it is clearly shown, as it is here, that nothing was inserted in the body of the will after the signature of the testatrix had been attached thereto. In other words, the body of this will, even if written at different times, was all written and signed by Mrs. Porter as her last will and testament and left with her kinsman and attorney as the instrument by which she intended to make the testamentary disposition of her property. It is not alleged and proved that there were any fraudulent insertions or interlineations in the instrument under review after the same had been signed by Mrs. Porter. Indeed, there is no pretense that the entire instrument, except the words, added after her signature and the erasure of the words preceding, was not the handiwork of Mrs. Porter. There is no room for the conclusion that this instrument was only intended by Mrs. Porter as merely “deliberative memoranda” as contended by the appellant, and not as her completed will. The instrument itself, as well as the evidence aliunde, proved clearly that same was her will. Sec. 10494, Crawford & Moses’ Digest, provides as follows:

“Every last will and testament of real or personal property, or both, shall be executed and attested in the following manner: First. It must be subscribed by ■the' testator at the end of the will, or by some person for him, at his request. ****** Fifth. When the entire'body of the will and the signature thereto shall be writtén in the proper handwriting of the testator or testatrix,' 'such will may be established by the unimpeachable evidence of at least three disinterested witnesses to the handwriting and signature of each testator or testatrixj notwithstanding there may be no attesting witnesses to such will ........

In Owens v. Douglas, 121 Ark. 448, the court said: ‘ ‘ The purpose of our statute in requiring wills to bn signed at the end thereof is to provide against fraud, and this statutory requirement must not be frittered away by loose interpretation. ’’ When this will is scanned as a whole, there is no such intervening space between its provisions as to suggest that the will was not signed at the end of the testamentary dispositions and therefore at the end of the will. In the case of Re Estate of Blake, 136 Cal. 306, 68 Pa. 827, 89 Amer. St. Rep, 135-140, the will was written on a blank form, and after the end of the testamentary provisions there was a blank space with lines of more than half a page on which there was xio writing or printing. On the following page under the heading, “Lastly,” the provisions as to the appointment of the executrix is made; then follows the clause.“In witness whereof,” etc; and the name “Thomas M. Blake.” The court said: “We think the will was signed at the end thereof within the meaning of the statute. There is ho provision as to the disposition of property, or provision of any other kind, after the name of the testator. The name was signed at the end, but not immediately 'at the end of the testamentary provisions. It was not necessary for the signature'to have been on the first or second line below the testamentary clauses.” There is no testamentary disposition after the signature of Mrs. Porter. Mader v. Apple, 80 Ohio State 691, 89 N. E. 37, 131 Amer. St. Rep. 719; see also, In re Moro, 10 A. L. R. 422; Estate of Seaman, 146 Cal. 455; 80 Pa. 700, 106 Amer. St. Rep. 53, and authorities collated in case note to Sears v. Sears, 17 L. R. A. (N. S.) 353. The will under review- was signed at the end thereof, was duly established, and meets every requirement of the above statute to constitute a valid holographic will.

2. The erasure made by Holt of the words, -‘‘pop: sideration $1,000 dollars” and the addition by him- after the signature of the testatrix, were made after Mrs. Porter had signed the will, in her absence, and without her knowledge. This erasure and this addition did not purport to affect any testamentary disposition. They Were mere spoliations of the will by Holt, a stranger, and could have no effect whatever on the validity and probate of the will. Even if they had been made by Mrs. Porter herself, they would not have amounted to a revocation or cancellation of her will. They added nothing to it and took nothing from. it. They were intended merely to clarify what appeared to Holt to be not clearly expressed; •but, as they were made after Mrs. Porter had signed the will and Without her knowledge, they 'did not affect the validity of the will. Monrow v. Huddard, 14 L. R. A. (N. S.) 259, 28 R. C. L. sec. 142, p. 183-186; Hesterburg v. Clark, 57 Amer. St. Rep. 135; Re Kapen’s Will, 98 Amer. St. Rep. 808; Howard v. Hunter, 90 Amer. St. Rep. 121.

3. The statute does not require that a will shall be written in ink or pencil, or that it may not be written in both. Since the undisputed testimony shows that this entire will was written by Mrs. Porter herself, it was Wholly immaterial whether pen and ink exclusively, or pencil, or both, were used. 28 R. C. L. sec. 62, p. 110. See, In Re Estate of Tomlinson, 19 Amer. St. Rep. 637; Meyers v. Vanderbilt, 24 Amer. St. Rep. 227; 40 Cyc. 1194; LaRue v. Lee, 14 L. R. A. (N. S.) 968. There is nothing either in the form of this will, the manner in which it was written (being partly with ink and partly with pencil) to indicate that the testatrix intended the same as mere deliberative memoranda. On the contrary, it occurs to us that the will itself and the evidence aliunde show that it was the intention of the testatrix to execute this instrument as her last will and testament. The decree of the trial court so holding, and directing that the judgment of the probate court admitting the will to probate be sustained, is in all things correct and is therefore affirmed.


author: Wood, J.

text:
    McMurray v. McMurray.
    Opinion delivered May 15, 1922.
    1. Divorce — bill of review. — A bill' to review a decree of divorce is insufficient where it does not allege any evidence discovered since the decree was entered and where the original divorce proceedings do not show any error of law upon their face.
    2. Divorce — bill of review for attorney’s unfaithfulness. — A bill of review does not lie upon the ground that the original decree was rendered through the mistake, carelessness1 or unfaithfulness of her solicitor.
    3. Divorce — bill of review for failure to grant alimony. — Where a bill to review a decree of divorce for failure to grant alimony to petitioner fails to set forth that she was entitled to a division of property under Crawford & Moses’ Dig., § 3511, and where the decree of divorce recited that she wilfully abandoned her husband for more than a year, the petition was properly dismissed.
    Appeal from Crawford Chancery Court; J. V. Bourlancl, Chancellor;
    affirmed.
    J. E. London, for appellant.
    The decree is erroneous on its face. No provision is made for the restoration of property owned by either party at the time of marriage, and not disposed of at the time of decree. C. & M. Digest, sec. 3511.
    A bill of review was the proper remedy to pursue, as relief could not be obtained in any other way. 84 Ark. 203.
    The decree was rendered on the unsupported testimony of the plaintiff, and that, too, after it had been contradicted by the appellant, which is insufficient. 102 Ark. 54; 104 Ark. 381; 99 Ark. 94.

      O. D. Thompson, for appellee.
    A bill of review does not lie, except upon newly discovered evidence. None is shown here. Failure to elicit material facts in the examination of a witness is no ground. 26 Ark. 600.
    Carelessness or unfaithfulness of solicitor is not ground to sustain a bill of review. 17 Ark, 45.

      An appeal was granted and time allowed for filing bill of exceptions, bnt none was filed. There is no error on the face of the record, and the decree should be affirmed. 144 Ark. 436; 129 Ark. 193; 83 Ark. 124.
   Wood, J.

This appeal is from a decree of the chancery court of Crawford County dismissing the appellant’s petition for bill of review. The record shows that the appellant filed her petition for bill of review in the chancery court on the 19th day of June, 1921, in which she alleged, among other things, that the decree of divorce granted at a former term of the chancery court was granted without the court being sufficiently advised in the premises. She alleged that she was greatly wronged by the decree and her rights taken away without just cause, the decree of divorce having been granted without sufficient testimony, without granting her any alimony or any relief except an attorney’s fee; that when the suit for divorce was first-called the plaintiff (appellee) and the defendant (appellant) testified. The court then refused to ■ hear further' testimony at that term and continued the cause for the term; that sometime in November the appellant received a notice from her attorney that the court would convene on the 20th of December, and for her to be- on hand. She alleged that she appeared in court and waited all day expecting to be called, but late in the evening was informed by her attorney that she would not be needed, and sometime thereafter she learned that her husband had been granted a divorce. She alleged that no witness testified on behalf of the appellee except himself, and that she in her own behalf controverted all of his testimony with regard to her conduct toward him. She then set up that she had been compelled to leave her husband on account of unmerited abuse. She alleged that, if she be granted a bill of review, she will be able to prove the allegations of her •complaint. She prayed for a bill of review and that the decree be set aside.

On the 20th of June, 1921, the appellee answered denying the allegations of appellant’s petition, and alleged that the action for divorce was tried at the November term, 1920; that the conrt heard the testimony of the parties and one corroborating witness, which witness corroborated the testimony of the appellee; that the court at that term took the cause under advisement, and at the adjourned term December 14, 1920, entered a decree in favor of the appellee granting him a divorce. The court, after hearing the petition of the appellant and the response, dismissed the same for want of equity.

The appellant prayed and was granted an appeal and was given ninety days in which to prepare and file a bill of exceptions. No bill of exceptions was filed, and there is no error appearing on the face of the record. The allegations of the petition for the bill of review were denied by the appellee.

The grounds set up in appellant’s petition for bill of review were not sufficient to entitle her to that relief. It does not allege any newly discovered evidence since that decree was rendered. The original divorce proceedings which the appellant seeks to have reviewed do not show on their face any errors of law. White v. Holman, 32 Ark. 753. The original decree of divorce recites, among other things, the following: “This case was tried upon the complaint and the exhibits thereto and the answer of defendant. After hearing of the oral testimony the court finds the issues in favor of the plaintiff and against the defendant. ’ ’ The appellant alleges in her petition that the cause was heard only upon the testimony of the plaintiff and the defendant, but the appellee denies this allegation and alleges that another witness was introduced in the original action besides the plaintiff and defendant. Another ground alleged is that her attorney informed her that she would not be needed. She left, went home, and afterywards learned that the decree of divorce had been granted. But a bill of review does not lie on the ground that the original decree was rendered through the mistake, carelessness, or unfaithfulness of her solicitor. Price v. Notrebe’s Heir, 17 Ark. 45.

The petition does not set forth facts sufficient to show that the appellant was entitled to a division of property. Sec. 3511, C. & M. Digest. The original decree recites that the court found “that the defendant, without fault on the part of the plaintiff, wilfully abandoned him for a space of more than one year.” The court therefore did not err in entering its decree dismissing the -appellant’s petition for a bill of review. Price v. Notrebe’s Heir, supra; Evans v. Parrott, 26 Ark. 600; White v. Holman, supra, and other cases collated in 2 Crawford’s Digest— “Bill of Review,” p. 1906—1910, inclusive..

The decree is correct, and it is therefore affirmed.


text:
    Wilson-Ward Company v. Farmers’ Bank & Trust Company.
    Opinion delivered May 15, 1922.
    Factors — conversion.—Where a cotton factor sold in Tennessee cotton covered by a chattel mortgage executed and recorded in Arkansas, where the cotton was grown and the mortgagor resided, and, without authority from the mortgagor, applied part of the proceeds on the mortgagor’s indebtedness to the factor, the mortgagee was entitled to recover such amount from the factor.
    Appeal from Mississippi Circuit C.ourt, Chickasawba District; R. H. Dudley, Judge;
    affirmed.

      Little, Buck S Lasley and Coleman, Robinson <& House, for appellant.
    The conversion occurred in the State of Tennessee ; therefore the liability, if any, as a result thereof, is governed by the laws of that State. 159 S. W. 221; 50 L. R. A. (N. S.) 51. Even if the conversion had occurred in Arkansas, the appellant would not have been liable. 132 Ark. 592.

      Davis, Gosten $ Harrison, for appellee.
    The fact that the purchaser was ignorant of the existence of the mortgage would not bar a recovery by the appellee. 11 S. J. 424; 56 Ark. 499; 137 S. W. 490.
   Wood, J.

On the 15th of April, 1920, S. R. Swinney executed, to the Farmers' Bank & Trust Company (hereafter called bank) a chattel mortgage on crops to be grown on 200 acres of land in Mississippi County to secure the payment of a debt to the bank in the sum of $29,368.05, evidenced by promissory notes. Between the 8th of October, 1920, and the 13th of January, 1921, Swinney, without the knowledge and consent of the bank, shipped fifty-nine bales of cotton covered by the mortgage to Wilson-Ward Company (hereafter called' company), a cotton factor in Memphis, Tennessee. The company had no knowledge of the mortgage of the bank. It sold the cotton and out of the proceeds paid to Swinney the sum of $1,500 in cash, and, without any authority from Swinney to do so, applied the balance of $9,525 on his indebtedness to it, which amounted to more than $10,000.

This action was brought by the bank against the company to recover the sum of $11,025, the proceeds of the sale made by the company for Swinney. The company denied liability. By consent of parties the court sat as a jury to try the above issues and facts and rendered judgment in favor of the bank against the company in the sum of $9,525, from which judgment is this appeal.

The alleged conversion by the appellant took place in Tennessee, and the law of that State must govern. It is held by the Supreme Court of Tennessee that “when a chattel mortgage is executed in a foreign State where the property then is and where the mortgagor resides, and has been duly recorded in that State pursuant to its laws, and is valid under the laws of that State, the mortgagee, under the rule of comity between States, must be held to. have the better right upon the subsequent removal of the property to another State as against * * * an innocent purchaser from the mortgagor in such State into which the property has been so removed, although the mortgage is not recorded in the latter State. ’’ Newsum. v. Hoffman, 137 S. W. 490.

In the case of J. T. Hargason Co. v. Ball, 159 S. W. 221, the facts were that William Ball & Co. were cotton factors in the' city of Memphis, Tennessee. One W. H. Barnes purchased from the mortgagor seventy bales of cotton upon which J. T. Fargason Co. had a mortgage which had been duly recorded in Arkansas where the cotton was grown and the mortgagor and mortgagee resided. Barnes shipped the cotton to Ball & Co. in his own name. The cotton was received by the company in the usual way and sold in the regular course of business and the proceeds were paid over in good faith to Barnes —'all before Ball & Co. had any notice that Fargason & Co. had any interest in the cotton. The Supreme Court of Tennessee, upon the above facts, held that Ball & Co., the factors, were not liable. After approving the above doctrine of Newsum v. Hoffman, the court said: “The analogy would be complete if defendants were in possession of the property at the time complainant made demand therefor, or if they were in possession of its proceeds. On such a state of facts there is no doubt the complainant would have the right to recover. But the contest here is not over the property or its proceeds.”

In the case at the bar the contest is over' the proceeds of the sale of the cotton while in the hands of the appellant at the time the appellee instituted this action. It is true that the appellant had credited the account of its principal, Swinnev, with the balance of the proceeds after having paid him in cash the sum of $1,500, but this was done, as the testimony shows, without his consent or direction. The appellant advanced him on the sale only the sum of $1,500, and for that appellant is not held liable. The residue of the proceeds appellant appropriated to the. payment of Swinnev’s pre-existing indebtedness to it, and-; this appropriation, having been made without his con-j|, sent .or direction, it cannot be held that the appellant, as factor and agent, had settled with its principal, Swinney, and accounted to him for the entire proceeds of the sale before this action was instituted against it.

It occurs to us, therefore, that under the facts of this record the doctrine of Newsum v. Hoffman, and Fargason Co. v. Ball & Co., supra, entitles the appellee bank to recover- of appellant company the sum of $9,525, the proceeds of the sale of the cotton in its hands at the time this action was instituted. Until these proceeds had been turned over by the appellant to its principal, Swinney, they remained the property of Swinney upon which the appellee held a mortgage. The company had no lien on the proceeds of the sale in its hands to secure it in the payment of Swinney’s indebtedness to it.

Under the doctrine of the above cases, when the appellant, without the knowledge, consent, or direction of Swinney, passed the proceeds of the sale to the credit of his pre-existing indebtedness, it wrongfully converted the same to its own use and is liable therefor to the appellee. In addition to the above cases, see Words & Phrases, Vol. 1, second series, p. 1030; 11 C. J. 424; Merchants & Planters Bank v. Meyers, 56 Ark. 473.

The decree is in all things correct, and it is therefore affirmed.


author: Hart, J.,

text:
    A. L. Greenberg Iron Company v. Wood.
    Opinion delivered May 15, 1922.
    1. Counties — county road warrants subject to call. — Crawford & Moses’ Dig., § § 1994, 1995, authorizing the county court to call in outstanding warrants for cancellation and reissuance, apply to county road warrants, though the statute was passed before the constitutional amendment providing for a road tax was adopted.
    2. Counties — order calling in- warrants. — County warrants on their face redeemable in the future, where issued for supplies already furnished, are payable on demand, and are subject to an order calling in outstanding warrants for cancellation and reissuanee.

      Appeal from. Calhoun Circuit Court; G. W. Smith, Judge;
    affirmed.
    STATEMENT OF FACTS.
    A. L. Greenberg Iron Company filed a petition in the circuit court against N. H. Wood, as treasurer of Calhoun County, Ark., to compel the payment of a warrant for the sum of $1,300.
    It appears from the record that the A. L. Greenberg Iron Company furnished certain road drags and materials for culverts to Calhoun County, and on the 3rd day of August, 1914, the county court ordered warrants issued in payment of the same. One of these warrants was for $1,300 payable June 1, 1918, out of the money in the county treasury to the credit of the general road fund. The levying court at its October term, 1918, appropriated one mill on the dollar of the entire road tax for the general road fund. On August 21, 1919, when the warrant was presented to the county treasurer for payment, there were sufficient funds in the county treasury to the credit of the general road fund for the payment of the warrant, but payment was refused because the warrant had not been presented for cancellation and re-issuance as required by law. On the 17th day of October, 1917, the county court had made an order providing for the cancellation of all county and road warrants which should not be presented for re-issuance in the manner provided by the statute. The statute was in all things complied with, but said warrant was not presented to the county court for cancellation and re-issuance as required by said order.
    The orders of the Calhoun County Court pertaining to the calling in of said warrants and the publication of the notice prescribed by the statute are regular on their face, and the statutory requirements were in all essential respects complied with.
    The 'circuit court denied the writ of mandamus, and from the judgment rendered A. L. Greenberg Iron Company has duly prosecuted an appeal to this court.

      J. 8. McKnight and Golemcm, Bobmson & House, for appellant.
    The authority to call in warrants for cancellation ' and reissuance (secs. 1994-1996, C. & M. Digest) applies only to warrants issued for county purposes, and does not include road fund®, the levy for which was authorized long after authority to reissue warrants was given. See C. & M. Dig., § 5940. The warrant could not be barred until it became due and payable.
    The county having accepted and used the machinery should be required to pay therefor under the doctrine in 136 Ark. 209; 87 Ark. 389; 72 Ark. 380.

      A. D. Pope, for appellee.
    The warrant was not drawn upon any road district but was payable out of the general road fund of the county, and was therefore a county warrant.
    The statute was strictly complied with in the order calling in the warrants. 129 Ark. 207.
   Hart, J.,

(after staling the facts). Sec. 1994 of Crawford & Moses’ Digest provides that whenever the county court may deem it expedient to call in the outstanding warrants of Ms county, in order to redeem, cancel, reissue or classify them, or for any lawful purpose whatever, it shall be the duty of said court to make an order for that purpose, fixing the time for presentation, etc.

Section 1995 provides for the giving of notice in such cases. It is conceded that the statute was complied with in maMng the order and giving the notice. The sole ground of reversal is that road warrants do not come within the provisions of the statute.

We cannot agree with counsel in this contention. As said in Parsel v. Barnes & Bro., 25 Ark. 265, there can be no question but that the Legislature intended to give the county courts such control over the warrants of the county as would enable them to take such action as would be most advantageous to the public, and fully intended that all .county scrip issued thereafter should he subject to such conditions and restrictions.

The county road warrants come as clearly within the language used in the statute as any other county warrants. The language of the statute does not restrict the warrants to those payable out of the general revenue fund.

It is true that the statute providing for the calling in of the warrants by the county court was passed before the amendment of the Constitution providing for a road tax,-if voted by a majority of the qualified electors of a county; but the language of the statute is broad enough to include county warrants which might come within its provisions any time in the future.

This construction has already been placed upon the statute by the court in Monroe County v. Brown, 118 Ark. 425, and Izard County v. Vincennes Bridge Co., 122 Ark. 557. In each of these cases road warrants were recognized as coming within the provisions of the statute and as being subject to reissuance and cancellation under it.

Again, it is contended that the judgment of the circuit court is wrong because the warrants were not due at the time the order for calling in outstanding county warrants for cancellation and reissuance was made. The record shows that the “calling in” order of the county court was made on the 17th day of October, 1917, and the warrant provides on its face that it is to be redeemed July 10, 1918, but not before.

In Gould v. Davis, 133 Ark. 90, the court held unconstitutional a statute providing that Garland County might issue warrants payable in the future. The court said that county warrants are orders on the county treasurer to pay certain moneys on account of the county. The object of the statute in that case was to pay certain holders of county warrants a sum equal to a stipulated rate of interest for their forbearance in presenting the warrants for payment. The court held that this could not be done, and that the county court exceeds its power when it undertakes to issue warrants payable in the future as a substitute for interest.

It does not appear whether or not the warrant in question was for a greater amount than the county owed and was made payable in the future so as to include interest, but this does not make any difference. The warrant in question was issued for supplies that had already been furnished, and indeed the warrant, being an order on the treasury to pay money on account of the county, could not be issued until the county owed the debt, and it was payable on demand.

It follows that the judgment should be affirmed.


text:
    Davis v. Porter.
    Opinion delivered May 15, 1922.
    1. Railroads — killing of animals. — sufficiency of proof. — In an action for killing of a bull by defendant’s train, evidence held insufficient to sustain a verdict for the plaintiff.
    2. Railroads — presumption of negligence — when overcome. — In an action for the killing of a bull by defendant’s train, testi- • mony of fireman and conductor that the bull was hit by the rear coach after the engine had passed held sufficient to overcome the statutory presumption of negligence arising from proof of killing by a train.
    3. Railroads — duty to stop train. — Where a bull was hit by defendant’s train after the engine had passed him, and there was evidence that he struck the rear, coach, there was no duty to stop the train or to slacken its speed.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    reversed.
    STATEMENT' OR EAOTS.
    Appellee sued appellant to,recover damages for the alleged negligent killing of a Red Poll bull by one of appellant’s passenger trains.
    Upon the part of appellee it was shown that the body of the bull was found near the depot platform of the road at Jasamine, White County, Ark. The bull belonged- to appellee, and liad been turned loose with a chain around its neck fastened to its left front foot. The lower jaw of the bull was knocked off and its hips were skinned up.
    E. J. Spruell, a locomotive fireman, was the principal witness for the appellant. According to his testimony, he was fireman on the passenger train which struck the bull in question and killed it. While the train was running through Jas amine, which is a flag station, the fireman looked back to see if there were any signals given to stop the train. He saw the bull, which was walking toward the train. Just after he saw the bull it got close enough for the steps of the third coach to hit it. The animal was struck by the passenger steps on the fireman’s side of the train. It would not have been possible to have stopped the train after the fireman first saw the bull. The train was running slowly at the time.
    According to the testimony of the conductor of the train, he did not see the bull killed and first knew of the accident when he saw the steps on the front end of the rear coach broken and split up. This was on the fireman’s side of the train. There was some hair and a little blood on the steps.
    The jury returned a verdict for appellee, and to reverse that judgment appellant prosecutes this appeal.

      Thos. 8. Buzbee, H. T. Harrison and C. L. Johnson, for appellant.
    The testimony of the fireman and engineer overcomes the statutory presumption of negligence, and the case should be reversed. The casé is controlled by Railway v. Landers. 67 Ark. 514-516, and Lane v. Railway, 78 Ark. 234-237.
    No brief for appellee.
   Hart, J.

(after stating the facts). The only ground urged for a reversal of the judgment is that the evidence is not legally sufficient to support the verdict. In this contention we think counsel 'are correct. The statutory presumption of negligence arising from the killing of the hull by the operation of the train was overcome by the evidence of the fireman and the conductor. It may be stated in this connection that the engineer was dead at the time of the trial.

According’ to the testimony of the fireman, the bull was killed by the front steps of the third coach striking him after the engine had passed by. The fireman was looking back to see if any signals should be given him to stop at the station. It appears that the bull had his head chained to his front foot. The fireman saw the bull struck by the steps of the coach and killed. He could not have stopped the train after lie first saw it. His testimony is consistent in itself and not contradicted by any other testimony in the case. In fact, it is corroborated by that of the conductor, who testified that he discovered that the coach in question was broken and had blood and hair on it after the train had passed the station.

The public interest requires that trains be run on time and that railroads dispatch their business promptly. Under the circumstances it was not necessary to stop the train or to slacken its speed.

The case falls within the rule announced in St. L. I. M. & So. Ry. Co. v. Landers, 67 Ark. 514, and Lane v. Kansas City Sou. Ry. Co., 78 Ark. 234.

It follows that the court erred in not directing a verdict for appellant, and for that error the judgment will be reversed, and the cause remanded for a new trial.


text:
    Turpin v. Antonio.
    Opinion delivered May 15, 1922.
    1. Payment — -decrees—recovery.—Where, under a lease assignable only with the written consent of the lessor, which Was not to be charged for, the lessee under protest gave the lessor a cheek to secure his written consent to assignment of the lease, with the intention, which failed, of stopping payment, he could not recover such payment, it being voluntary.
    2. Payment — when involuntary.- — To constitute the coercion or duress which will be regarded as sufficient to make a payment involuntary, there must he some actual or threatened exercise of power, possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment.
    Appeal from Garland Circuit Court; Scott Wood, Judge;
    affirmed.

      C. T. Gotham and Houston Emory, for appellant.
    The complaint states a cause of action, 110 Ark. 578; 29 Minn. 238, 13 N. W. 42.
    The payment of the money by appellant was not voluntary, but was extorted from him, and only made to save himself financial loss. Appellee’s oral consent to transfer the lease was sufficient, although the lease required the transfer to be in writing. 130 Minn. 223; 65 Wash. 359; 148 Wis. 63.
    Appellee is estopped because of the fraud perpetrated by him. 10 R. C. L. p. 691.
    The demand by appellee amounted to duress, entitling appellant to relief. Elliott on Contracts, Yol. 2, pages 635-6; 41 L. R. A. 609.

      Martin, Wootton é Martin, for appellee.
    The payment by appellant was voluntary, and recovery can not be had by him. 49 Ark. 70; 74 Ark. 270; 143 Ark. 435; 145 Ark. 185.
   Smith, J.

Appellant, who was the plaintiff below, filed a complaint containing substantially the following allegations: that on June 10, 1919, defendant Antonio, as lessor, executed to one Peter Brown a lease for the term of four and. one-half years of the ground or first floor of a certain building in the city of Hot Springs. This lease contained a clause reading as follows: “And the said tenant covenants that he will not sell, assign, or underlet or relinquish said premises without the written consent of the lessor, the lessor agreeing not to make any charge for such consent.” That, pursuant to said clause, the lease had been assigned a number of times, a§ shown by the indorsements on the original lease, and the defendant, in each instance, gave his written, consent to the assignment without making charge therefor, and through the last of such- assignments plaintiff became the owner of the lease. That an opportunity offered for plaintiff to sell the lease at a profit; but, before closing the trade, he applied to defendant for his approval, and obtained from him his promise to give his written consent to said assignment, and in reliance upon that promise plaintiff closed the contract for the sale of the lease. Thereafter plaintiff requested defendant to indorse his written consent to the assignment of the lease, but defendant, in violation of his promise, and in violation of the covenant set out above, wrongfully refused to give such consent unless plaintiff would pay him the sum of $300. That plaintiff protested, but, in order to protect his deal, he gave de-' fendant, on June 21, 1921, a check on a local bank for $300, but promptly notified the bank to stop payment, of the check, but the defendant had caused the bank to guarantee the payment of the check, and the check was paid to defendant. After reciting these facts, plaintiff alleged that the money had been extorted from him wrongfully, and he prayed judgment therefor.

A demurrer to the complaint was sustained; and this appeal is prosecuted to review that order and judgment.

We think the demurrer to the complaint was properly sustained. There was no such compulsion as entitled the plaintiff to recover his money back. It appears, from the complaint itself, that plaintiff was endeavoring to obtain the written consent of defendant by pretending to acquiesce in his demand for the payment of the $300 without, in fact, doing so. He may have intended by this conduct to secure what he regarded as a plain legal right; but the fact remains that he voluntarily paid the money.

In 2 Elliott on Contracts, § 1384, it is said: “It is well settled, however, that money extorted or involuntarily paid under duress or unlawful compulsion may be recovered. To enable the party making the compulsory payment to recover it, the compulsion must have been illegal, -unjust or oppressive. To constitute the coercion or duress which will he regarded as sufficient to make a payment involuntary, there must be some actual or threatened exercise of power possessed or believed to be possessed by the party exacting or receiving the payment over the person or property of another, from which the latter has no other means of immediate relief than by making the payment. As stated by the Court of Appeals of Maryland, the doctrine established by the authorities is, that ‘a payment is not to be regarded as compulsory, unless made to emancipate the person or property from an actual and existing duress imposed upon it by the party to whom the money is paid’.”

Here plaintiff alleges that he had a legal right which was denied him, and to secure its enforcement he made the payment demanded. The law of that situation is very tersely expressed by Chief Justice Cockrill in the case of Vick v. Shinn, 49 Ark. 70, as follows: “One rcannot be heard to say that he had the law with him, but feared to meet his adversary in court. It is only when he has no chance to be heard that he can pay under protest and afterwards recover.” See also Satchfield v. Laconia Levee Dist., 74 Ark. 270; Odell & Kleiner v. Heinrich, 143 Ark. 435; Craig v. Frauenthal, 145 Ark. 185.

Judgment affirmed.