text:
    Brown v. People's Bank of Searcy.
    Opinion delivered October 31, 1921.
    Homestead — abandonment.—Where a debtor left his homestead for five years, and acquired another home in another town, and continuously offered his former homestead for sale, a finding that he had abandoned the former homestead will be sustained.
    Appeal from White Chancery Court, J. E. Martineau, Chancellor;
    affirmed.

      Emmet Vaughan, for appellant.
    Creditors have no lien upon a homestead for the satisfaction of their debts, and they are not concerned in its sale or transfer, whether fraudulent or otherwise. 43 Ark. 429; 33 Ark. 454; 52 Ark. 101; 52 Ark. 493; 56 Ark. 156; 56 Ark. 253; 57 Ark. 242; 66 Ark. 382; 65 Ark. 373; 70 Ark. 69.
    A homestead will not be considered abandoned on account of the owner removing from it temporarily, when it is his intention to return to it. 38 Ark. 539; 37 Ark. 283; 55 Ark. 55; 56 Ark. 621; 219 S. W. 30. An effort to sell a homestead does not show an abandoment. Spur-lock v. Gaikens, 146 Ark. 50.

      Bmmdidge £ Neelly, for appellee.
    If, at the time of the removal, there is no present or constant and abiding intention to return and preserve the homestead character, then such removal will constitute an abandonment of the homestead. 137 Ark. 240; 134 Ark. 202; 13 R. C. L. p. 659.' It has been five years since appellant left his home, and he has not returned there yet.
   Smith, J.

On the 18th day of January, 1916, the People’s Bank of Searcy recovered a judgment against H. L. Brown in the sum of $4,500. An execution issued on said judgment and was levied on lots 10, 11 and 12, in block 30, of the city of Searcy. Sometime prior to the issuance of the execution, Brown had moved from his home on the above-described lots to Des Arc, and had rented his home to one McCain. He claimed the property as exempt, and that claim was sustained by this court in the case of People’s Bank of Searcy v. Brown, 136 Ark. 517. The opinion in that case was delivered May 6th, 1918.

On September 3, 1918, another execution was issued and levied on the above-described property, but the property was erroneously described in the sheriff’s return, in the notice of sale, and in the certificate of purchase, as being lots 10,. 11 and 12, in block 27, although the levy was actually, made on the lots belonging to Brown.

The bank brought suit in equity, in which the facts above recited were alleged. It was further alleged that on October 29, 1918, Brown had pretended to convey the lots to W. M. Bell, but that no consideration had passed from Bell to Brown, and that said conveyance had been made to hinder and delay the bank in the collection of its judgment. That Brown was insolvent, and Bell was holding the title for Brown’s benefit.

There was a prayer that the sheriff’s return and certificate of purchase be Corrected to read block 30, instead of block 27, and that the deed to Bell be canceled.

In his answer Brown denied the allegation stated, and alleged the fact to be that said lots had at all times been his homestead until the sale thereof to Bell. This answer was adopted by Bell as his own.

The court found the fact to be as alleged in the bank’s complaint, and made a specific finding that Brown had abandoned his homestead, and that the conveyance to Bell was in fraud of Ms creditors. The court canceled the deed to Bell and ordered the property sold, and this appeal is from that decree.

The examination and the cross-examination of Bell makes it reasonably certain that the deed to him was without consideration; and, in support of the validity of the deed, it is chiefly insisted that, as it was a conveyance of a homestead, no creditor had the right to complain.

The controlling question in the case is whether there had been an abandonment of the homestead prior to the levy of the execution; and we have concluded, upon a careful consideration of the testimony, that the finding of the court that there had been an abandonment is not clearly against the preponderance of the evidence.

The testimony upon which that finding was made is to the following’ effect: Brown left Searcy in 1915, and did not thereafter at any time reside in Searcy. After leaving Searcy, he immediately and continuously offered the lots for sale. On Ms direct examination as a witness Brown testified that before his sale to Bell he had already bought a home in the town of Des Arc. On his cross-examination he stated that his wife had bought the home, and that after his sale to Bell, and out of the proceeds of that sale, he had paid his wife back the money she had paid for the Des Arc home. But, as has been said, the examination of Bell and his answers to questions as to the amount paid by him, where he obtained the money, and how he paid it, makes it reasonably certain that Bell paid Brown no money, and that the deed to him was not bona fide. Brown explained his action in buying the home from his wife, after she had bought it and paid for it and had taken the deed in her own name, by saying that he found it unpleasant to live in a home owned by his wife.

It is true, as is insisted by counsel for Brown, that Brown’s offer of Ms home for sale did not, of itself, constitute an abandonment thereof, and it is also true that his own testimony shows he had no such intention; but we think the facts stated herein, with the inferences

reasonably deducible therefrom, warranted the court in rejecting this statement and support the finding that he had in fact abandoned the Searcy home, and that it thereupon became subject to sale in satisfaction of the judgment against him. This being true, it follows that the conveyance of it, made in fraud of creditors, was properly set aside. Decree affirmed.


source: Caselaw Access Project

author: Smith, J.

license: Public Domain

text:
    Heyden v. Kennedy.
    Opinion delivered October 31, 1921.
    Champerty — who may set up. — Where an oil and gas lease stipulated that if no well was completed within one year from the •date of the lease the lease should be void unless the lessee should pay an annual rental after the expiration of the first year, it is no defense to a suit by the lessor to cancel the lease for failure to complete a well or to pay the annual rental that the lessor has made a champertous agreement with a third person to. develop the oil and gas under the land, as the cause of action does not rest upon the alleged champertous agreement.
    Appeal from Nevada Chancery Court, James D. Shaver, Chancellor;
    affirmed.

      Sam M. Wassell, for appellants.
    The contract between "Westmoreland and these plaintiffs on behalf of Straughan was one for champerty and maintenance, against public policy, and, notwithstanding the original lessee was not a party to it, surely a court of conscience ought not to lend aid to its enforcement as against the lessee or his assignee. 44 Ark. 473; C. & M. Digest § 1432; 86 Ark. 130; 2 Pomeroy, Eq. Jur. § 874, p. 1805; 2 Vest Sr. 125; 1 Pomeroy, Eq. Jur. 4 Ed. § 397; Id. § 398; 27 Cyc. 724; 225 S. W. 345; 129 Ark. 43; 175 N. W. 812; 46 App. D. C. 246; 205 S. W. (Tenn.) 320;' 264 Fed. 474; 2 Pomeroy, Eq. Jur: 4 Ed. § 936; Id. § 1276; 11 A. L. R. 704, et seq.; 211 S. W. 152, 154; 98 Ark. 575; 77 Ark. 444; 169 Fed. 259; 34 Md. 407; 65 Atl. 129.

      Tompkins, McRae <& Tompkins, for appellees.

      Appellant is an outside party, in no wise a party to or connected with the alleged champertous contract. That he may not complain of the contract, even if champertous, is settled. '35 L. K. A. (N. S.) 512 and cases cited in note; 117 U. S. 582; 137 111. 652; 69 Iowa 296; 112 Ga. 480; 60 Arle. 221; 92 N. W. 230; 14 L. K. A. 785; 44 L. K. A. 285.
   Smith, J.

The case of Epperson v. Helbron, 145 Ark. 566, appears to have been brought as a test case to determine whether the lease therein sought to be canceled, as well as numerous other similar leases, had been forfeited because of the lessees’ failure to develop the oil and gas fields as contemplated by the leases. These leases were for a term of .years and stipulated for a division of the oil and gas which might be found. There was a stipulation in all these leases that, if no well was completed within one year from the date of the lease, the lease should be void unless the lessee should pay a stipulated rental annually after the expiration of the first year. The rental had not been so paid, and we held in the case cited that, upon the failure to pay in advance, the lease became void, although it was not provided in the lease that the rent •should be paid in advance, distinguishing, in this respect, between exploration contracts for oil and gas and the ordinary leases for mere use and occupancy of land.

These leases were made to IT. EL Givan, and among other lessors were S. W. Kennedy and Lizzie E. Kennedy, his wife. Kennedy’s lease was dated November 29, 1918; the first year was out November 29, 1919, and notice of forfeiture was given by Kennedy on April 19, 1920.

It appears that in March, 1920, Kennedy and numerous other persons who had given Givan leases were solicited by one Westmoreland, on behalf of M. EE. Straughan, to execute new leases to Straughan. These leases provided that the lessor should bring suit to cancel the lease previously given to Givan,’ and that the expense of the lawsuit should be paid by Straughan, and that Straughan would make a payment of 75 cents for each acre covered by the lease within thirty days after the Grivan lease had been declared forfeited by the court in which the suit to cancel had been brought.

The explanation of these contracts with Straughan is that, after obtaining leases, Grivan would neither pay rentals nor develop the land, and that Straughan was willing to lease and develop the land, but was not willing to do so until the validity of the Grivan leases had been determined.

About sixty persons, who had given leases to Grivan, signed contracts with Straughan as set out above at the solicitation of Westmoreland, and about a month later suit was filed to cancel each of the Grivan leases, the suit of appellee being among that number. After the institution of these suits, G-ivan assigned certain of these leases to the appellant Heyden.

There was an agreed statement of facts in which it was stipulated as follows:

“That on the land pf E. O. Westmoreland there has been erected a derrick by Givan for the purpose of drilling for oil. That said derrick was erected by Givan after the lease referred to and completed before the forfeiture was declared. But no further work was done towards drilling a well after September 1, 1919, and no well was drilled nor ore mined on the land within the year mentioned in the lease, and no effort has been made since to drill a well on said land of plaintiff.
“That E. O. Westmoreland is one of. about fifty plaintiffs bringing suit to cancel leases given to Givan and is the same E. O. Westmoreland, who entered into a contract with M. H. Straughan to secure the bringing of suits, and the leases to Straughan.
“That no demand was made by the plaintiffs for these rentals at any time. No notice was given that plaintiffs would demand renewals in advance.
“That at the time of said suit no'oil or gas had been discovered in Nevada County.
‘ ‘ That no. rentals were tendered until after the bringing of this suit, and such tender was then refused.”

The court found, from the pleadings and exhibits and the agreed statement of facts, that “neither defendant H. IT. Grivan, nor any one for him, began a well upon said land (Kennedy’s land) within the time limited in said lease, and that he wholly failed to pay the rentals therein, and that on the 19th day of April, 1920, plaintiffs notified the defendant IT. H. Grivan that no well had been commenced, and no payment of rental made, that said lease was void.”

The court declared the law to be that, as no well was completed upon said land, the payment of rentals to prevent the forfeiture of said lease should have been made in advance, and that, as no such payment was made, said lease was void as far as the same applied to the lands now claimed by the defendants Given et al., and that said lease should be canceled and set aside.

The court thereupon adjudged the lease from Kennedy to Givan to be void and canceled it, and this appeal is from that decree.

For the reversal of this decree it is insisted that the contract, of which Straughan was the beneficiary, was one for champerty and maintenance and was therefore contrary to public policy and void, and that the court should not, for that reason, lend aid to its enforcement, and that the suit of Kennedy should not therefore be entertained by the courts of this State, and a nonsuit should be ordered.'

A similar contention was made in the case of Proshy v. Clark, which was decided by the Supreme Court of Nevada (32 Nev. 441, 109 Pac. 793). This is a well-considered case, and the opinion was based upon the consideration of numerous authorities there cited. The court held (to quote the syllabus): “A nonsuit cannot be granted in an action brought to recover possession of a contract interest in mining claims, because the owner of the interest had made a champertous assignment of a portion of such interest to one who joined in the action, since defendants cannot táke advantage of the champerty, and, even though the partial assignment might be void, it will not defeat all right of recovery against defendants.” This case is annotated in 35 L. R. A. (N. S.) 512, where the editor’s note reads as follows: “It is the general rule that a third person may not take advantage of champerty as against the original owner of the cause of action. This is upon the theory that the cause of action does not in any way rest or depend upon the ehampertous agreement.” A very large number of cases are cited in support of this' note, and, among others, is the case of Burnes v. Scott, 117 U. S. 582, where it was held that the making of a ehampertous, and -therefore under the law of the State void and illegal, contract for the prosecution of .a suit to collect a promissory note cannot be set up in bal of a recovery on the note. In the opinion by Justice Wood it was said that the conclusion just stated was reached both upon reason and weight of authority, and that only two cases — and both of them by the Supreme Court of Wisconsin — had been found holding to the contrary.

So, we conclude here that, whether the contract between Kennedy and Straughan be ehampertous and void or not, that fact cannot be set up in bar of the right of Kennedy to sue on a cause of action to which" the alleged ehampertous contract relates, for the reason that his cause of action does not in any way rest or depend upon his contract with Straughan.

Decree affirmed.


text:
    Graham v. State.
    Opinion delivered October 31, 1921.
    1. Intoxicating liquors — sufficiency of evidence. — -Evidence held to sustain conviction of manufacturing intoxicating liquors.
    2. Intoxicating liquor-evidence. — In a prosecution for5 manufacturing intoxicating liquor, testimony that the mash would make a hog drunk was admissible to prove that it was intoxicating.

      3. Criminal law> — opinion as evidence. — In a prosecution for manufacturing , intoxicating liquor, the testimony of a witness as to having made a diligent search of an island, and that he did not think it possible that three men could have been hidden on it, was admissible to overcome defendant’s testimony that upon pistol shot three men, presumably the guilty parties, were seen leaving the island.
    4. Criminal law — venue—instruction.—An instruction in a prosecution for manufacturing intoxicating liquors that if the oifense was committed partly in the county of the venue and partly in an adjoining county, the court would have jurisdiction, held proper.
    5. Intoxicating liquors — manufacture—evidence.—Proof that defendant manufactured an intoxicating mash which had not been distilled will sustain a prosecution for manufacturing intoxicating liquor.
    Appeal from Sebastian Circuit Court, Greenwood District; John Briesolara, Judge;
    affirmed.

      Cravens, Oglesby & Cravens, for appellant.

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

Appellant was convicted in the Greenwood District of Sebastian County under an indictment wbicli charged that lie “did manufacture and was unlawfully and feloniously interested in the manufacture of ardent, vinous, malt, spirituous, fermented, alcoholic and intoxicating liquors,” and has appealed. For the reversal of the judgment, he assigns numerous errors in the admission of testimony and errors in giving and refusing instructions.

The testimony established the fact that a still had been in successful operation on an island in the Arkansas River, and that the island was in Crawford County. Clawson and some other officers made a search of the island for the still, and found it. Before crossing over on the island, they found' a barrel sunk down in the ground, covered over with brush. A tow sack was there, which had been used as a strainer, and which contained some of the mash and hops similar to that in the barrel. It does not appear through what processes the mash had gone, but the mash had fermented, and Clawson, who testified that he was familiar with the processes of manufacturing intoxicating liquors, stated that the liquor in the mash was intoxicating. He stated that it would make a hog drunk, and exceptions were saved to the admission of that testimony.

On crossing the river the officers found, in the boiler of the still, a mash identical with that found in the hidden barrel, and the testimony shows that whiskey had been very recently distilled, as the boiler was hot. The evidence on the part of the State is to the further effect that appellant and a party of men with him were seen coming almost directly from the still; that one of them had a large milk can which gave off an odor just like that given off by the mash found in the barrel; and that appellant and those with him, as soon as they landed from boats on the Sebastian County side of the river, started at once with the- milk can directly towards the barrel, and that when they got to the road which runs to the river within a short distance of the barrel and saw the tracks made by the searching party they stopped and held a consultation, after which one Jackson, a member of appellant’s party, went on by near the barrel to the pump, and after pumping a few strokes stopped and looked around, after which he returned to his waiting companions, and they again, after a short consultation, went back to the river bank and sat upon a log, and when the searching, party went up to where appellant’s party was and informed them that the mash had been found, and that they were looking for the still, Carson, one of the appellant’s companions, jumped in one of the boats and was only restrained from leaving when the constable drew his pistol.

We think this testimony sufficiently connects appellant with the crime there being committed to support the jury’s verdict of guilty.

Numerous assignments of error relate to the admission of testimony in regard to the things found on the island and around the hidden barrel, and the conduct of appellant’s companions while being observed by the officers. But this testimony was all competent to show that the crime of manufacturing intoxicating liquors was being committed, and that it was an operation in which appellant and his ' companions were alike concerned.

Appellant accounted for the peculiar odor of the milk can he and his companions were carrying by stating that it had been used for carrying fish-bait, and his companions corroborated that statement.

No error was committed in permitting Clawson to testify that the mash would have made a hog drunk. This was but an emphatic way of stating that the mash was intoxicating. He had testified that he was familiar with the mash used in making whiskéy, and that the mash found was intoxicating, and to say that it would make a hog drunk was tantamount to saying that it was highly intoxicating, a comparison which it was not improper for him to make.

Clawson was permitted to testify over appellant’s objection that a diligent search of the island was made, and that he did not think it possible for three men to have been hidden on the island while the searching party were there without being discovered. The significance of this testimony is that appellant attempted to show that when a member of the searching party fired his gun twice — thus giving the signal agreed upon to other members of the searching party that the still had been found— three men were seen leaving the island, the inference to be drawn from the testimony being, of course, that these escaping men were the guilty parties. Clawson’s testimony was competent to rebut this inference, and it was proper for him to state how thorough the search of the island had been.

The instructions in the case were those usually given in prosecutions of this kind, except one numbered 3, dealing with the question of venue, which' reads as follows:

“If you believe from the evidence that the offense, if any, was committed partly in Sebastian County, Arkansas, and partly in Crawford County, Arkansas, or the acts or effects thereof requisite to the consummation of the offense occurred in both counties, the court tells you that this court would have jurisdiction of the offense committed, if any.”

No error was committed in giving this instruction. Appellant was not indicted for manufacturing whiskey, but for manufacturing intoxicating liquor, and the testimony on the part of the State was to the effect that the mash found in Sebastian County, where the venue was laid in the indictment, was intoxicating. The subsequent process of distillation may have been necessary to improve its palatability, or to make the mash info whiskey; but if the mash was intoxicating, as Clawson stated it was, then its manufacture was unlawful, although it had not become whiskey, as the inhibition of the statute is against the manufacture of ‘ ‘ any alcoholic, vinous, malt, spirituous, or fermented liquors, or any compound or preparation thereof commonly called tonics, bitters, or medicated liquors, within the State of Arkansas.” Act No. 30, Acts 1915, p. 98.

This feature of the case is similar to the question considered in the case of Foshee v. State, 149 Ark. 559. There an instruction told the jury that when the beer or mash had been made in the process of distillation of whiskey, it will be declared an intoxicating liquor, even before it passes through the process of distillation. In condemning this instruction, we there said:

“The instruction given by the court in each case set out above was predicated upon the idea that when the liquid commonly called beer was produced in the process of the distillation of whiskey it will be judicially said that the liquor is an intoxicating liquor, even before the vapor or gas produced therefrom by the use of heat passes through a worm or coil. No such presumption can be indulged. In the case of Lowery v. State, 135 Ark. 159, this court declared, as a matter of law, that the running of the liquid through the worm or coil once had the effect of producing spirits or fermented liquor within the meaning of the statute prohibiting the distillation of spirits or fermented liquors. As to whether the liquid or beer before such treatment is intoxicating within the meaning of the statute preventing the manufacture of spirits or fermented liquor was a question for the jury. The instruction given took that question from the jury and was erroneous.”

See, also, Robertson v. State, 148 Ark. 585; Marsh v. State, 146 Ark. 77; Patterson v. State, 140 Ark. 236.

The court did not assume in the instant case that the mash or beer found in Sebastian County was in fact intoxicating, and the jury passed upon that question of fact.

The court did refuse to give an instruction numbered 4, asked by appellant, which told the jury that they “could not convict the defendant unless you further find the defendant did, in Greenwood District of Sebastian County, convert said mash into an alcoholic liquor.” This instruction was properly refused, because it leaves out of account the question of the intoxicating character of the mash itself, which, as appears from the case just quoted from, was a question of fact for the jury where the distillation had not taken place.

No error appears, and the judgment is affirmed.


text:
    Cotton v. Chandler.
    Opinion delivered October 31, 1921.
    Landlord and tenant — lien of laborer. — Where a landowner employed a share-cropper to raise a crop on land, and made advances to him to be repaid out of his share of the crop, the landowner’s right to a lien for such advances is superior to the rights of third persons who assisted the share-cropper in making- the crop under an agreement with the latter that they should receive one-third of the latter’s crop.

      Appeal from Lonoke Circuit Court; George W. Glarh, Judge;
    affirmed.

      E. H. Timmons, for appellants.
    Appellants assert their right to a lien on the cotton by virtue of having performed labor in. the production thereof. C. & M. Digest, § 6848. The relation of landlord and tenant did not exist between the parties to this suit. 46 Ark. 254.. The agreed statement of facts shows that Chandler, overseer of the farm, vested with power to control the farm as also to contract with and control laborers engaged in cultivating it, and that these laborers had no interest in the land. 55 Ark. 389; Black’s Law Diet., 2 Ed., “Overseer;” Id. “Cropper;” 71 N. C. 7.

      James B. Gray, for appellees.
    A landlord’s lien for rent and supplies furnished is superior to a laborer’s lien for work done in the crop. C. & M. Digest,’ §§ 6809, 6891.
   Smith, J.

Appellants brought suit by attachment in a justice court to enforce a laborer’s lien on three bales of cotton in the possession of appellees, Chandler and Redwine and George Cotton, to enforce a demand of $149.50 alleged to be due appellants for labor performed by them in the production of said cotton. There was a trial by the justice and a finding and judgment for the plaintiffs for the amount sued for.

There was an appeal to the circuit court, where the cause was heard on the following agreed statement of facts:

“It is hereby agreed that K. R. Chandler is a tenant in common with ,N. W. Redwine with regard to the product of the Redwine farm in Lonoke County, Arkansas, by virtue of an agreement between the said Redwine and K. R. Chandler, that they were to have equal shares of the product of said farm during the year of 1920, and the farm was to be worked by croppers who were to receive one-half of the cotton raised on said farm as a remuneration for labor performed in the production of said crop. It is further agreed between the said Redwine and Chandler that Chandler was to be the overseer of said farm and vested with the authority to contract with croppers to work the land for a consideration of one-half of the cotton produced by the labor of said croppers.
“It is also agreed that K. R. Chandler and George Cotton entered into a contract whereby it was agreed that the said George Cotton was to cultivate about 80 acres of said land in cotton, and that the said George Cotton was to receive one-half of the crop of cotton raised on said 80 acres of land as a consideration for. labor performed by him in the production of said crop of cotton, and it was also agreed and understood by and between the said K. R. Chandler and George Cotton that one Carl Cotton and one Earl Cotton were to assist the said George Cotton, and that they were to receive one-third of George Cotton’s one-half of the cotton as a consideration for labor performed by them in the production of said crop of cotton.
“It is also agreed that K. R. Chandler advanced George Cotton a credit of $1,035 upon the condition that the said credit was to be paid out of the proceeds of George Cotton’s share of the crop, and, after accounting for all the products raised on the farm of the defendants for 1920, there remains due and unpaid $17.53 to K. R. Chandler on supplies and money furnished the defendant George Cotton.”

The court below found against appellants, and a judgment for a sum of money erroneously rendered against them. Since the transcript was lodged in this court, this judgment has been corrected to show that no judgment for money was in fact rendered against appellants, and that the judgment of the court was simply a dismissal of the suit to enforce a laborer’s lien. This correction of the judgment below does not dispose of the appeal, as the real question in the case is whether appellants have a laborer’s lien which should be enforced against the cotton attached by them.

Redwine was not made a party by appellants in the justice’s court; but be appears to have been made a party on bis own motion, and tliis was a proper action to have taken; at any rate, it was not one which prejudices appellants.

The contract between Chandler and Redwine, as shown by the agreed statement of facts, constituted them partners in their farming operations. The contract embodied in the agreed statement of facts between Chandler and Redwine and Cotton and Cotton’s sons — these appellants — is of a tripartite character, the effect of which was to constitute George Cotton and both his sons as share-croppers of their landlords,— Chandler and Redwine. As to the crop grown on this eighty-acre tract of land, the three Cottons were sharecroppers, and the landlord had a lien on the entire crop for advances made necessary to make it. The sons of Cotton did not elect to make a separate trade with tire landlord, which, of course, they might have done, whereby they would have been liable only for such advances as might have been made them individually. On the contrary, they cultivated the land under a contract which their father had made .with the landlord, and that contract was one under which the landlord had the right to make advances upon the security of the lien given Chandler and Redwine by law as landlord.

No question is made about the advances to George Cotton being necessary to enable him to make the crop, and the judgment of the court below is therefore affirmed.


author: Humphreys, J.

text:
    Leehy v. Fullerton.
    Opinion delivered October 31, 1921.
    1. Landlord and tenant — forfeiture of lease. — A lessor may dis-affirm a lease, contract and regain possession of the land if the lessee, either in words or by equivalent acts, has repudiated or abandoned the contract, even though the lease does not provide for a forfeiture upon failure to comply with its terms.

      2. Landlord and tenant — forfeiture of lease. — Where a contract of lease provided that the lessee should prepare and execute a certain lease and he failed and refused to execute it, the lessor was entitled to treat the contract as abandoned and bring unlawful detainer for the land.
    3. Trial — ambiguous instruction — general objection. — A general objection is insufficient to call attention to an ambiguity in an instruction.
    4. Appeal and error — invited error. — One cannot complain of an erroneous instruction given at his adversary’s request when he requested an instruction containing the same error.
    5. Trial — instruction—necessity of request. — Appellant cannot complain of the trial court’s failure to give a certain instruction, in the absence of any request therefor.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      Brundidge é Neelly, for appellant.
    Where the contract contains no provision for forfeiture of the lease, the tenancy cannot be terminated by breach of covenant by the lessee. 134 Ark. 21; 135 Ark. 536.
    There being no provision for forfeiture, appellant’s peremptory instruction should, have been given. 100 Ark. 567.
    Instruction No. 1 was erroneous in that it left out of consideration whether or not there was a proviso in the contract for forfeiture in the event the same was breached by defendant, and the further fact of whether or not appellant was prevented from planting all the berries called for by the agreement, on account of weather conditions.

      John E. Miller and G. E. Yingling, for appellee.
    This suit was not based oh appellant’s failure to' comply with a written contract, but his failure to comply with an oral agreement. His was a tenancy at sufferance. 24 Cyc. p. 1401.
    Appellant did not plead any special contract or circumstances to defeat appellee’s right of -possession, nor was he required to assume the burden of proof in this respect, and lie should not now be heard to complain that the jury decided these issues against him. 36 Ark. 518.
    Appellant repudiated the contract by) refusing to plant the required amount of berries, and the appellee therefore had the right to rescind. 41 Ark. 532; 22 Ark. 258; 97 Ark. 541; 24 Cyc p. 1417.
    Appellant in failing to plant the required crop thereby refused to pay rent. This, with his refusal to quit possession, was ground for an action of unlawful detainer. 57 Ark. 301; 97 Ark. 541.
    Appellant’s peremptory instruction was properly refused.
    Instruction No. 1 was properly given, it stating the law of the case as found in 36 Ark. 518 and 41 Ark. 532.
   Humphreys, J.

Appellee instituted suit against appellant in the White Circuit Court to recover the possession of forty acres of land, alleged to be unlawfully detained by appellant, on account of his failure and refusal to enter into a written lease in accordance with an oral agreement entered into between said parties.

Appellant filed an answer denying that he failed and refused to enter into a written lease for the land in accordance with the oral agreement, but alleged that on the contrary he had reduced the agreement to writing, and that it had not been executed because appellee refused to sign it; that, pursuant to the oral understanding, he had entered into possession of the premises and carried out all the terms of the lease until interrupted by a demand for possession of the premises and the institution of this suit by appellee.

The cause was submitted upon the pleadings, eviJ dence and instructions of the court, which resulted in a finding and judgment in favor of appellee for the possession of the land.

It was agreed between the parties that a written lease should be executed to the effect that appellant should plant as much as he could of a certain block of six acres in strawberries in the spring of 1920, should cultivate four acres of strawberries already growing on the land, and should cultivate the balance of the land in corn; that appellee should receive one-fourth of the proceeds derived from the berries and one-third of the corn for the use of the land. Appellant took possession of the land and planted about an acre and a half of berries in the spring of 1920 and worked out the four acre tract, when appellee demanded possession of the lands and instituted this suit.

The evidence is conflicting as to whose duty it was to prepare the written lease. Appellant prepared a written lease and left it at the McRae State Bank foxappellee to sign. Tlie lease provided for the balance of the berries to be planted in the spring of 1921, and appellee refused to read or sign it because it provided that the strawberries should be planted in the spring of 1921 instead of 1920. The evidence is also in conflict as to whether appellee planted all the strawberries he could have plaxited in the spring- of 1920 under the prevailing weather coxiditions.

When the evidexxce was concluded, appellant requested a peremptory instruction, on the ground that the right of eviction did not exist in favor of the lessor in the absence of a clause in the contract providing for a forfeiture upon failure to comply with the terms • of the lease, and it is now insisted that the court committed reversible error in refusing to give appellant’s peremptory request. This contention is xiot sound, for it. is well settled that a lessor may disaffirm a lease contract and regain possession of the land if the lessee, either in words or by equivalent acts,- had repudiated or abandoned tlie coxxtract. Buckner v. Warren, 41 Ark. 532. The doctrine announced in the case cited was approved in the later case of Lindsey v. Bloodworth, 97 Ark. 541. In the latter case the court'took occasion to say: “The' other allegations ' of the complaint show that the' appellant had violated the obligations of his contract' with appellee in such manner as tó evince an intention on his (appellant’s) part not to pay the rents as stipulated for, and, in fact, to abandon the contract. The complaint is crude, but, taken as a whole, it certainly states facts to show that appellant had wholly abandoned the contract which created the tenancy, and that his holding thereafter was unlawful.”

The evidence in the instant case, as stated above, was in conflict as to whether appellant abandoned his contract by failing and refusing to prepare and execute a lease requiring him to plant as many strawberries as he could in the spring of 1920 on a certain six-acre block in the forty-acre tract. If he did so fail and refuse, it amounted to a repudiation of his contract, and an action in unlawful detainer would lie. For this reason it was proper to refuse appellant’s peremptory request.

Appellant insists that the court erred in giving appellee’s instruction No. 1, which is as follows:

“You are instructed that if you find from the testimony in this case that the defendant failed or refused to comply with the terms of the contract for the lease of the lands mentioned in Ibis action through no fault of the plaintiff or her agent, then the plaintiff had the right to rescind said contract and to treat the same as at an end, and your verdict will be for the plaintiff.”

The insistence is that the instruction authorized a rescission of the contract for a mere breach thereof. The instruction is ambiguous• in that it is doubtful whether it was intended to relate to the failure and refusal of appellant to execute a written contract or a failure and refusal to plant as many strawberries as he could on the six-acre block of ground in the forty-acre tract. The attention of the court was not called to this ambiguity existing in the instruction by specific objection. The objection interposed to it was general. But, even if inherently wrong, appellant waived the error by requesting an instruction upon the same issue. The court gave appellant’s request No. 2, which contained a proviso submitting the identical issue to the jury. The provision is as follows: “Provided, you find that the defendant complied with the terms of the contract for the lease of the land.”

Appellant’s last insistence for reversal is that an error was committed by the court in failing to tell the jury that a suit in unlawful detainer would not lie for a partial breach. It is true that a lessor cannot evict a lessee from the leased premises unless the lessee has repudiated the contract by word or act, but appellant never raised this question below. No request was made by appellant submitting the issue of the effect of a partial breach to the jury. The case was tried and submitted upon the issues of whether appellant had failed and refused to execute a written contract in accordance with the parol agreement, and whether he failed to plant all the strawberries he could in the spring of 1920 on the six-acre block in the forty-acre tract.

No error appearing, the judgment is affirmed.


text:
    Harmon v. State.
    Opinion delivered October 31, 1921.
    1. Continuance — absence of witness. — It was not error to refuse a continuance upon account of the absence of a witness who was without the jurisdiction of the court, and not amenable to its process, in the absence of a showing that his attendance could be procured within a reasonable time.
    2. Continuance — sickness .of witness.— A motion for continuance on account of the absence of a witness alleged to be sick was properly denied where it was not substantially shown that the witness was sick or that her attendance could be procured at the next or at any subsequent term of the court.
    3. Continuance — cumulative testimony. — Refusal of a continuance for the absence of witnesses was proper where their testimony would have been cumulative.
    Appeal from Sharp Circuit Court, Northern District; D. H. Coleman, Judge;
    affirmed.

      Geo. T. Humphries, for appellant.
    .■ J. 8. XJtley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.

      There was no error in the verdict of the jury. The evidence was amply sufficient. 135 Ark. 117; 136 Ark. 385.
    The court did not err in refusing a continuance due diligence not being shown. 121 Ark. 17; 123 Ark. 561; 103 Ark. 509; 62 Ark. 543; 125 Ark. 2.69.
    A continuance will not be granted for the purpose of procuring evidence that is purely cumulative. 79 Ark. 594; 82 Ark. 203; 86 Ark. 317; 100 Ark. 149; 120 Ark. 562.
   Humphreys, J.

Appellant was indicted, tried and convicted in the Sharp Circuit Court for the crime of robbery, and as a punishment therefor was sentenced to serve a term of five years in the State penitentiary. An appeal has been duly prosecuted to this court from the judgment of conviction.

Appellant’s only insistence for reversal is that the court erred in denying his motion for a continuance. The identity of the appellant as the person who committed the robbery, and whether he was present, or was elsewhere, when the robbery was committed, were vital issues in the case. Among other marks of identity, the witnesses for the State identified appellant by a red beard of several days’ growth. The evidence adduced in behalf of the appellant tended to show that he had been shaved on the evening of the day before the robbery. The State’s evidence tended to show that appellant committed the robbery at about 8:30 p. m. on March 25, 1921. The evidence adduced in appellant’s behalf tended to show that at that particular time he was at or near Franklin, a distance of from eight to twelve miles from the home of Andy McConnell, upon whom and in whose house the robbery was committed.

Appellant requested a continuance in order that he might obtain the evidence of Preston Jennings, who, if present, would testify that he shaved appellant close all over the face on the evening of the day before the robbery, and that he might obtain the evidence of Cleffie Majors, who would testify, if present, that she saw appellant in her homo at 8 o’clock on the night of the robbery, about nine miles from where the robbery was committed.

It was stated in the motion for a continuance that a subpoena had been issued for Preston Jennings, directed to the sheriff of Izard County, which was the residence of said witness, but that the subpoena had been returned unserved: that the witness was absent from the State of Arkansas temporarily and would return in a very short time. It was also stated in the motion that a subpoena was issued and served upon Cleffie Majors, who was not in attendance on the court, because,. according to appellant’s understanding, she was physically unable to be present.

The record reflects that appellant and four other witnesses testified that appellant was shaved on Thursday evening March 24, 1921, and that appellant and three other witnesses' testified, in substance, the same as the alleged testimony of the absent witnesses, in support of appellant’s alibi.

Appellant’s motion for a continuance was insufficient in that it failed to show where his witness Preston Jennings had gone or when he would return. Appellant should have made a showing that he could procure the attendance of the witness within a reasonable time, it appearing on the face of the motion that the witness was out of the jurisdiction of the court and not amenable to its process. C. R. I. & P. Ry. Co. v. Harris, 103 Ark. 509; James v. State, 125 Ark. 269.

The motion was also insufficient in that it failed to substantially show that Cleffie Majors was sick and unable to attend court, or that her attendance could be procured at the next or any subsequent terms- of the court.

The court was justified in denying the motion for a continuance upon these grounds, as well as upon the ground that the testimony of the absent witnesses was cumulative.

No error appearing, the judgment is affirmed.


author: McCulloch, C.' J.

text:
    Carson v. Road Improvement District No. 2.
    Opinion delivered November 7, 1921.
    Highways — road improvement district — alteration op plans. —Where the commissioners of a road improvement district were required by statute (1 Road Laws 1919, p. 174) to file “its plans, specifications and estimates” with the county clerk, and the specifications so filed provided that the engineer should have the power, with the approval of the board, to alter the plans and specifications, held (1) that the power of the engineer to alter the plans and specifications was limited to immaterial changes; (2) that a change of the method of surfacing the road from the application of a light asphaltic oil with a cover of sand to the application of a heavier asphaltic oil with a crushed stone binder, Involving an additional expense of $13,000 in a contract for an improvement to cost $300,000, was not material.
    Appeal from Craig'bead Chancery Court, Western District; Archer Wheatley, Chancellor;
    reversed in part.

      Arthur L. Adams, for appellant.
    Act 97, Acts 1919, does not authorize any change in plans and specifications, nor does the amendatory act of 1921 (Act 423, Acts 1921) enlarge the power of the board or the engineer. Sec. 27 of this latter act constitutes no part of the plans and specifications.
    The word “plans” as used, necessarily means “plans and specifications” and is not limited to the narrower sense as outlined in 72 N. W. 550 and 18 N. W. 85.
    Commissioners have no authority except that expressly given or necessarily implied by the terms of the act. 120 Ark 212; 110 Ark. 417; 94 Ark. 49; 94' Ark. 82. See also, case note in L. R. A. 1918-B 1004, 1010.
    The proposed change is a material variation from the original plans, both as to the kind of material used and the expense thereof. 105 Ark. 65. Federal aid authorities can not, as a condition of the donation, alter the plans and specifications, when neither the commissioners nor the county court can do so.

      Basil Balter and Horace Slocm, for appellee.
    In the absence of statutory prohibition against alterations in the plans of an improvement district, the district possesses authority to make minor changes as a necessary incident to its power to make plans and specifications. 4 McQuillin on Municipal Corp. § 1921; 226 Fed. 372; 55 Ark. 148; 119 Ark. 271; 143 Ark. 297. An even greater change in plans of a district was that involved in 135 Ark. 104, where the court held that the change was not prohibited by statute.
    The act creating this district expressly confers the power and authority to make minor changes and modifications of the plans. Paragraphs 24 to 29 inclusive.
    The change in plans adds less than 5% to the total cost of the improvement and cannot be regarded as anything but a minor change.
    In passing Act 291, Acts 1919, the Legislature expressly ratified the provisions in the [plans and specifications for alterations and extra work, etc. Sec. 3 thereof shows that there was no intention to affect any of the proceedings under Act 97, Acts 1919, creating the district. The Legislature has no power to repeal a curative or validating act after third parties have acquired rights relying thereon. 6 R. C. L. p. 361, Sec. 357; 215 U. S. 417; 160 Wis. 659.
    If the subsequent act of 1921 (Act 423) be construed as affecting the construction contract by eliminating the provisions for alterations, or of depriving the district of power to pay for the additional costs of construction out of taxes collected, it is unconstitutional. 16 Wall. 314: 105 II. S. 278; 3 Ark. 285; 103 U. S. 358 and other cases cited by appellee. This act is void because in conflict with § 22, art. 5, Constitution.
    The power expressly granted to the district to take necessary action to secure federal aid necessarily implies power to make reasonable changes necessary to secure such aid.
    If the added costs due to the alteration are paid out of the federal aid funds, a taxpayer of the district, in the absence of a showing of detriment to the improvement, is in no position to object. 5 Alaska 338; 111 U. S. 701.
   McCulloch, C.' J.

Appellant was the plaintiff below, and sought to enjoin the commissioners of appellee district from altering the plans and specifications, as approved by the county court, for the construction of the improvement and from proceeding to construct the improvement according to the altered plans and specifications.

The district was created under Act 97 of the session of 1919 (Road Acts 1919, vol. 1, page 174), which provides that, as soon as the board of commissioners “shall have formed its plans and secured an estimate of the cost of the aforesaid improvement, it shall file a copy of its plans and specifications and estimates with the county clerk of Craighead County;” that the plans ‘ ‘ shall be accompanied by a map showing' in a general way the location.of the highway to be constructed,” and that, upon the filing of said plans, the clerk shall give notice that all parties interested will be heard on the question of the adoption of the plans. The statute is silent as to the authority of the board of commissioners to altor the plan after approved by the county court.

The commissioners filed the plans; which specified in detail the method of improving the road, and the specifications contained a provision that the engineer should have the power, with the approval of the board, to alter the plans and specifications.

The county court, on hearing the matter, approved the plans and specifications as a whole. These plans and specifications provided a method of surfacing the road with an application of light asphaltic oil and a cover of sand, spread for the purpose of absorbing the surplus oil. Subsequently the plans were changed at the suggestion of the State Highway Commissioner that, in order to secure federal aid, it was necessary to change the specifications with reference to the surfacing, and to provide for a heavier and better material. So the commissioners changed the plans and specifications to provide for the application of a heavier asphaltic oil and the nse of crushed stone as a binder instead of a covering of sand. It appears from the record that this change was necessary in order to conform to the requirements of the United States Bureau of Public Roads before aid from that department could be secured. It is shown by the agreed statement of facts that this change involved an additional cost of about $13,000, the contract for the entire improvement costing approximately $300,000. The road to be improved was 12.27 miles in length with 4.62 miles of laterals, and the surface yardage to be treated aggregated 116,980 square yards. The amount of federal aid expected to be obtained is $25,000. A contract was made by the board of commissioners for the construction of the improvement in accordance with the altered plans and specifications, and the contractor was made a' party defendant to this suit.

The case was tried on the pleadings and exhibits and an agreed statement of facts, and the court rendered a final decree dismissing the complaint in so far as it concerned the prayer for an injunction to restrain the commissioners from constructing the improvement in accordance with the altered plans and specifications, but granted an injunction against the commissioners, restraining them from paying the additional cost under the altered plans and specifications out of the funds of the district “derived from present levies of taxes -on the assessment of benefits or funds derived from borrowing money.” Both parties have appealed.

The fact that the suggestion for a change of plans came from the federal bureau or from the State Highway Commissioner is without controlling force in this controversy. If the board of commissioners was without authority to change the plans, they could not justify their action by showing that it was done at the direction of any other State or Federal agency, or for the laudable purpose of securing Federal aid. The limits of the authority of the hoard of commissioners must be tested by the statute. The statute contains no express provision on this subject, but authority is conferred in absolute terms to construct the improvement, and there is a direction that plans and specifications shall be prepared in advance and submitted to the county court for approval.

We need not decide what the powers of the board would be with reference to material changes in the plans, but we think that authority is not wanting for making immaterial changes. It is not conceivable that the lawmakers meant to restrict the powers of the board, after having once adopted plans, in making immaterial changes from time to time. The plans filed with the county court contained an express provision for such changes, and a fair interpretation of the language used shows that only immaterial changes were in contemplation. The case turns, then, on the question whether or not these changes made by the board of commissioners constituted substantial or merely slight and immaterial changes in comparison with thre magnitude of the whole work.

We think that the changes were not material, and in reaching this conclusion we are influenced by previous decisions of this court, notably tlie case of Hout v. Harvey, 135 Ark. 104, where we held that a change in the construction of' a road from a width of 12 feet of gravel 5 inches deep, with a gravel coat of asphalt treatment 1 inch deep, to a road 14 feet wide gravel 7y¿ inches deep, was not a material change. In that case the original cost was $176,717, and the change involved an increase of $52,231.49 in the cost. The change in the present instance is no more material than that made in the case just cited.

The conclusion thus reached on this issue settles all the questions necessarily involved in the case, for if the change made was an immaterial one, and the commissioners had power to make it, the chancery court was correct in refusing to restrain the board of commissioners from proceeding under the altered plans and specifications, but erred in restraining the commissioners from paying for the added cost out of tbe funds of the district derived from borrowing money or from levying assessments. Of course, the Federal aid to be obtained will amount to more than the additional cost, but it is said that, inasmuch as that aid will not be forthcoming until the completion of the improvement, it is a substantial inconvenience for the commissioners not to be allowed to proceed with the use of the district funds in paying for the improvement. We do not see that the question of Federal aid enters into this controversy in any respect, but, if the commissioners had the authority to make the change, it follows necessarily that the court was wrong in restraining them from paying for the improvement out of the funds of the district, provided the total cost of the improvement, including the additional cost arising from the change in the plans, does not exceed the benefits. It is unnecessary to discuss the effect of subsequent statutes undertaking to approve the plans and sepecifications, or amending the original statute.

The decree is affirmed on the appeal of the plaintiff, but on the appeal of the defendants it is reversed, and the cause remanded with directions to dismiss the complaint for want of equity.


author: McCulloch, C. J.

text:
    Lingo v. Swicord.
    Opinion delivered November 7, 1921.
    1. Process — dependants in different counties. — Under Crawford & Moses’ Dig., § 1178, service of process, in a transitory action, cannot be had on a defendant in a county other than that of his residence, except where there is a service in the county where the action is instituted on a co-defendant who is jointly liable.
    2. Bills and notes — joint liability.— Indorsers of a note are not jointly liable with the maker.

      3. Bills and notes — liability of payee. — The payee of a note who has indorsed it to another is liable only to such indorsee or to subsequent holders of the note.
    4. Bills and notes — rights of accommodation indorser. — One who indorsed a note for the maker’s accommodation and pays the note, does not thereby become a purchaser, nor be entitled to hold the payee liable on his indorsement.
    5. Appearance — taking appeal. — The taking of an appeal by one who was not properly served with process operates as an entry of appearance.
    Appeal from Randolph Chancery Court; L. F. Reeder, Chancellor;
    reversed.

      W. E. Beloate and W. M. Ponder, for appellants.
    There was no proper service upon Osburn and Lingo. 144 Ark. 473.
    Swicord was a joint maker and liable for the entire amount. 80 Ark. 285.
    Plaintiffs were not co-sureties nor entitled to contributions from each other, but were liable to each other in the absence of a special agreement. 94 Ark. 333.

      Smith and Gibson, and Schoonover <& Jackson, for appellee.
   McCulloch, C. J.

Appellee instituted this action in the chancery court of Randolph County against one Dillport and the appellants, Tom Lingo and D. H. Osburn, and appellants were served with process in Lawrence County, where they reside. A decree by default was rendered in favor of appellee and against all of the defendants, and the two appellants subsequently prosecuted an appeal. Dillport has not appealed. It appears from the record that the decree was rendered by the court upon the complaint and exhibits.

It is alleged in the complaint that on September 5, 1919, Dillport executed and delivered to appellant Lingo his promissory note for the -sum of $17'5, payable! October 5, 1920, and that on September 27, 1919, appellee indorsed the note, as an accommodation for Dillport, and that Dillport executed a chattel ■ mortgage to appellee to secure him against loss. The complaint further alleges that appellant Osburn was also an indorser on the note. The complaint contains the further allegation that Lingo assigned and indorsed the note, before maturity, to the Lawrence County Bank, and that later appellee paid the note in full, and that the Lawrence County Bank transferred the note to appellee. The prayer is for foreclosure of the chattel mortgage and decree over and against defendants for the balance paid by appellee in satisfaction of the note.

The mortgaged chattels were sold under order of the court during the pendency of the action, and the proceeds applied on the satisfaction of the debt to appellee, and the court rendered final decree against Dill-port and appellants for the remainder.

The note is exhibited, and shows blank indorsements by appellee and Lingo and Osburn in the order mentioned.

Under the statutes of this State, service cannot, in a transitory action, be had on a defendant in a county other than that of his residence, except where there is service in the county where the action, is instituted on a co-defendant who is jointly liable. Crawford & Moses’ Digest, § 1178; Hoyt v. Ross, 144 Ark. 473. If there be liability at all on the part of either of the appellants to appellee, it is not a joint liability with Dillport, the maker of the note.

According to the allegations of the complaint, there was no liability at all on the part of appellant Lingo. He was payee in the note, and his indorsement, regardless of the position of his name on the instrument, could only have had the effect, of transferring the note to the Lawrence County Bank. He was liable only on that indorsement to his assignee or to subsequent holders of the note. Appellee did not become a subsequent holder of the note by paying it; the payment was by reason of his liability as an indorser, and he did' not become the purchaser of the note. Neither was the liability of appellant Osburn, if there existed any liability at all, a joint one with Dillport. According to the pleadings in the case, appellee was not a holder of the note by purchase, and had no right of action against appellant Osburn as a joint maker.

The decree is therefore reversed, and the cause remanded for further proceedings, the appeal operating as an entry of appearance by appellant. Southern Bldg. & Loan Assn. v. Hallum, 59 Ark. 583. It is ordered.


author: Wood, J.

text:
    Freeman v. State.
    Opinion delivered November 7, 1921.
    1. Continuance — requisites op motion.— A motion for continuance on account of the absence of a witness, though verified, will not be sufficient in a criminal case-where it fails to state that the affiant himself believes that the facts to which the witness, if present, would testify are true.
    2. Continuance — absent witness.— A motion for continuance on account of the absence of a witness beyond the jurisdiction of the court should show how the attendance of the witness could be had at the next term of court. \
    3. Criminal law — harmless error.— One convicted of murder in the second degree cannot contend on appeal that if he was guilty of any offense it was murder in the first degree, and therefore that the verdict was not supported by the evidence.
    4. Criminal law — necessity of motion for new trial. — The admission of testimony not assigned as error in the motion for new trial will not be considered on appeal.
    5. Criminal law- — necessity of objection. — Admission of testi"mony not objected to at the time it was offered cannot be assigned as error on appeal.
    6. Homicide — dying declarations. — Circumstances held to show that at the time deceased made certain statements he was conscious that death was impending and that he had no hope of recovery.
    7. Criminal law — evidence.—It was competent in a murder case to permit the sheriff to testify as to finding an automatic pistol and some shells in the-cell occupied by defendant.
    Appeal from Union Circuit Court; C. W. Smith, Judge;
    affirmed.

      Mahony & Yocum, for appellant.

      The court erred in refusing a continuance on the ground that the evidence of the absent witnesses was material to his defense. 91 Ark. 497.
    There was error in admitting the -alleged dying declarations of the deceased. 81 Ark. 417.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The court was correct in overruling defendant’s motion for a continuance. C. & M. Digest, § 3130; Id. 1270; 2 Ark. 34; 101 Ark. 514; Kirby’s Digest, § 6173; 124 Ark. 599; 15 Ark. 252; 103 Ark. 509; 62 Ark. 543; 125 Ark. 269; 101 Ark. 513. The testimony of the absent witnesses was cumulative. 79 Ark. 594; 82 Ark. 203; 86 Ark. 317; 100 Ark. 149; 120 Ark. 562.
    There was no error 'in the verdict of the jury. 68 Ark. 310; 37 Ark. 433; 133 Ark. 373; Webb v. State, ms. op. (Ark.); 135 Ark. 117; 136 Ark. 385.
    The State did not take an unfair advantage of defendant. 32 Ark. 220; 36 Ark. 653.
    There w$is no error in admitting the proof of the dying declarations of deceased. 130 Ark. 11. Admissibility of dying declarations is for the court, their credibility for the jury. 125 Ark. 209; 104 Ark. 162.
   Wood, J.

The appellant was indicted on July 19, 1921, for the crime of murder in the first degree in the killing of one T. B. McCain. He was tried on the 26th day of July, 1921, and convicted of murder in the second degree. The defendant filed a motion for continuance, in which he set up that “he was a stranger in the community without friends and without funds and had not had an opportunity to prepare his case for trial; that, being confined in jail and being a stranger, he did not know the names of certain witnesses who could and would give testimony material to his case; that the witnesses are strangers in the community; that upon the proper investigation their identity can be established and their attendance had at court; that the driver of a service car is a material witness in this case, but that the defendant does not know his name, but can find said witness if. an opportunity is given him; that this witness, if present, would testify that he took the defendant prior to the time of the alleged killing from the neighborhood where the deceased is alleged t'o have been killed and drove defendant over to the rooming house of Dr. Tutt about two miles distant and left him there; that the defendant is informed and believes that Blondie Gordon would testify, if present, that he saw the defendant leave the valley where the deceased is alleged to have been shot and killed an hour or longer prior to the time the shooting is said to have occurred; that the defendant was not anywhere near or about the premises where the deceased is said to have been shot and killed; that the deceased was alleged to have been killed something like an hour after the defendant went to the home of Dr. Tutt; that witness is a resident of Breckenridge, Texas, and the defendant, if given time, can procure his attendance, or take his deposition; that the evidence of the car driver'■ and the evidence of Blondie Gordon is material to the issue in the case; that the defendant cannot make the proof by any other witnesses at this time known to the defendant; that there are other witnesses who could testify to the same facts, but the names of same are unknown to him.”

The court overruled the motion for a continuance, and this is assigned as error in one of the grounds of appellant’s motion for a new trial. The motion for continuance was duly verified, but it will be observed it does not state that the affiant himself believed that the facts which he states the witness, if present, would testify to, were true. This was necessary. Secs. 1270, 3130, Crawford & Moses’ Digest; Burris v. Wise, 2 Ark. 33, 40; State Life Insurance Co. v. Ford, 101 Ark. 514. Moreover, the motion states that one of the absent witnesses whose presence was desired was a resident of the State of Texas, and therefore beyond the jurisdiction of the court. The motion does not set up facts showing how the attendance of this witness could be had- at the next term of court. It was not an abuse of the court’s discretion to overrule the motion for continuance on account of the absence of this witness. C. R. I. & P. Ry. Co. v. Harris, 103 Ark. 509; Hamilton v. State, 62 Ark. 543; James v. State, 125 Ark. 269.

The appellant also contends that if he was guilty of any offense it was murder in the first degree, and that the verdict is therefore contrary to the law and the evidence. There was testimony to warrant the jury in returning a verdict against the appellant for murder in the first degree. The appellant is not in an attitude to complain because the jury found him guilty of a lesser degree of homicide when the testimony would have justified their finding him guilty of a higher degree. Webb v. State, ante p. 75; McGough v. Slate, 113 Ark. 301; Bruce v. State, 68 Ark. 310; Allen v. State, 37 Ark. 433.

The appellant proved by the sheriff of the county that some one tried to get him to put a prisoner charged with grand larceny in the same cell with appellant in order that a confession from the appellant might be obtained; that the sheriff refused the request, telling the party that he would not believe anything that the person accused of grand larceny would say. The appellant complains here because he says that the above testimony shows an attempt on the part of the State to take an unfair advantage of appellant. The above testimony was elicited by the appellant himself. Furthermore, it does not show or tend to show that any unfair advantage was attempted to be taken of the appellant by the State. It was not shown who the party was that made the request of the sheriff, and certainly there is nothing in this testimony to connect the prosecuting attorney or any one .representing the State with an effort to procure a confession from the appellant. Moreover, the appellant did not make the complaint he here presents as one of the grounds of his motion for a new trial. There is nothing in this upon which to predicate error in the rulings of the trial court.

Appellant next contends that the court erred in permitting one witness, a negro by the name of Hodge, who was accused of robbery and who was in jail at the same time with appellant, to testify that he heard appellant acknowledge to one Slim that he (appellant) had killed McCain. No objection was made to this testimony at the time it was offered, and the ruling of the court in permitting it is not assigned as error in appellant’s motion for a new trial. So there is nothing in this contention upon which error can be predicated.

The appellant argues that the court erred in permitting witnesses C. A. McCain, J. D. Williams and A. H. • Lewis, to testify to statements made by the deceased after he was shot. C. A. McCain, the brother of the deceased, testified concerning this that he saw his brother after he was shot when he was being taken from the automobile to the hospital. His brother lived about twenty minutes after' he got to the sanitarium. He stated that he supposed his brother realized that he was going to'die. Witness said to his brother: “Who killed you, Tal?” and his brother replied, “The man who lives behind the barber shop shot me.” The witness further testified that his brother T. B. McCain “couldn’t talk loud, but he talked well enough to let you know he knew he was going to die.” The witness was then asked who lived behind the barber shop, and stated that it was B.lackey Freeman, the appellant.

Witness Williams testified that he was about the first one to get to McCain after he was shot. McCain told those who were at'his side soon after he was shot that the man running around the building after shooting him was Blackey Freeman. Some one remarked that McCain was not hurt much, and witness tore his clothes back and saw that he was shot with buckshot. Then McCain remarked that he was iu pain, and-wanted to get to a sanitarium, and called for his brother.

Witness Lewis testified that he drove the car in which T. B. McCain was taken to the sanitarium. He was asked, “What if any statement did McCain make to you as to who killed him?” and answered, “When he was coming along through the pine thicket, some men were hanging on the side of the car, and I told them to get off. One of them had a flash light, and as I looked back over the side I says, ‘T. B., who shot you?’ and he said, ‘The man at the back of the barber shop — the man with the white hat.’ ” The witness further stated that McCain told witness that the man wiio shot him lived “to the back of the barber shop,” that the man had on a light shirt and a pair of khaki pants, and said, “For God’s sake, don’t let him get away.” This witness stated that McCain lived about twenty or twenty-five minutes after he got to the sanitarium; that his clothes were open, and witness saw the blood oozing out of the holes made by the shot.

The appellant did not save any objection to the above testimony at the time it was offered. Therefore, the cause could not be reversed on the assignment of error in the ruling of the court in permitting this testimony to go to the jury. See Lisko v. Uhren, 130 Ark. 111. Furthermore, even if proper objection had been made to this testimony at the time it was given, the court did not err in allowing it to go to the jury. The fact that T. B. McCain died within eighteen or twenty minutes after he was wounded, having Deen shot by fifteen or eighteen buckshot in his side or stomach, and that he talked loud enough to let his brother know that he, T. B. McCain, knew that he was going to die; that his person was exposed so that he could see Ms wounds; that the blood was flowing from these wounds, and that in response to a question as to who killed him he replied naming the appellant, are all circumstances which justified the court in holding that the testimony was competent. These circumstances certainly tended to prove that McCain at the time he made the declarations was conscious that death was impending, and that he had no hope of recovery. Rhea v. State, 104 Ark. 162, 176, and cases there cited.

It is next insisted by counsel for appellant that the court erred in permitting witness Jack Davis to testify on cross-examination, over the objection of appellant, that Bill May conducted a rooming house and dance hall; that the house had quite a few women in it. Witness stated that he was living there at the time with his wife. He was asked if most of the women living there were not lewd women and replied. “I can’t say— it is a dance hall.” He stated that he moved away a day or two after the trouble. There was nothing in this testimony prejudicial to appellant.

It is next urged that the court erred in permitting the sheriff to testify relative to finding an automatic pistol and some shells in the cell occupied by the appellant under the cover of the bed where the appellant slept. The sheriff further testified that he did not know how the shells got there; that the appellant said he didn’t know anything about them. Two of the appellant’s friends had visited him that day. The witness, upon the information he received, searched the cell and found the gun. The appellant objected to the above testimony unless the State would make the witness its own witness, which the State did. The appellant, therefore, is not in an attitude to complain of the ruling of the court, even if the testimony were incompetent, but the testimony was clearly competent. Although a weak circumstance, it was one which the jury had the right to consider in passing on the credibility of appellant as a witness in his own behalf.

It is last contended that there is no testimony to sustain the verdict. It could serve no useful purpose to set out and discuss the testimony in detail bearing upon this issue. What we have already set out in the way of the dying declarations of McCain was competent evidence, and this, together with the other facts adduced, was amply sufficient to sustain the verdict.

The judgment is therefore correct, and it is affix med.


author: Hart, J.

text:
    Woodall v. State.
    Opinion delivered November 7, 1921.
    1. Homicide — insanity—instruction.—Where the defense in a murder case was that defendant was temporarily insane at the time of the killing, an instruction that in determining whether defendant was insane at the time of the killing the jury may consider all his acts at the time, before and since the killing, and his appearance and actions during the trial.
    2. Homicide — insanity—burden of proof. — It was not error in a murder case to instruct the jury that the burden of showing insanity is upon the defendant, and that, unless this has been done by a preponderance of the evidence, the defense must fail.
    Appeal from White Circuit Court; J. M. Jackson, Judge;
    affirmed.

      J. N. Rachels, for appellant. '

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
   Hart, J.

This is the second appeal in this case. On the former appeal the defendant was convicted of murder in the second degree,, and his punishment was fixed by the jury at twenty years in the State penitentiary. The judgment of conviction was reversed because the court erred in instructing the jury. Woodall v. State, 159 Ark. 33.

On the 28th day of July, 1921, the defendant was again tried, and the jury returned a verdict of murder in the second degree, but fixed his punishment at eight years in the State penitentiary. To reverse that judgment, the defendant has duly prosecuted an appeal to this court.

The evidence for the State, briefly stated, is that early in the morning’ on the 18th day of September, 1920, the defendant, Lee Woodall, drove a wagon very rapidlv to the home of a neighbor, S. P. Rudisill. Mr. Rudisill was feeding his stock and, immediately after the uarties had snoken to each other, Woodall commenced shooting at Rudisill, and shot at him about twelve times. Several of the bullets struck Rudisill, and he died from the effects of his wounds several hours later on the same day.

The defendant pleaded insanity. The evidence advanced in his favor tends to show that he thought Rudisill was trying to poison his stock and to injure his family in various ways; that he brooded over these imaginary wrongs until he became temporarily insane, and while in that condition killed Rudisill.

The first assignment of error is that the judgment should be reversed because the court gave instruction No. 5 over the objection of counsel for the defendant. The instruction is as follows:

“In deciding the question as to whether the defendant was insane or sane at the time of the killing in this case, you ara instructed that the burden to show 'insanity is upon the defendant, and unless this has been done by a preponderance of the evidence then this defense must fail, and you may also consider all his acts at the time, before and since the killing, as such acts and conduct may -have been shown by the testimony, and you also have the right to consider the defendant’s appearance and actions during the trial as a circumstance in determining his sanity at the time of the killing.”

It is first insisted that the instruction is erroneous because the latter part of it tells the jury that it might consider the defendant’s appearance and conduct during the trial as a circumstance in determining his insanity at the time of, the killing.

Counsel for the defendant contends that, inasmuch as it was not claimed that the defendant was permanently insane, his acts and conduct at the time of the trial could not be considered by the jury in determining whether he was temporarily insane at the time of the killing..

We cannot agree with counsel in this contention. A similar instruction was approved in the case of Diggs v. State, 126 Ark. 455. In that case instructions were given, on the question of temporary insanity, or insanity at the time of the killing. The court specifically told the jury that, in determining whether or not the defendant was of sound or unsound mind at the time of the killing, they might consider his mental capacity up to the present time. This testimony was introduced, not for the purpose of showing that the defendant was sane or insane at the time of the trial, "but as shedding light on the question of whether he was insane at the time the killing occurred. His conduct and bearing at the trial might shed much or little light, or none at all, as to the mental condition of the defendant at the time of the killing. However, his conduct and bearing at the trial were proper matters for the jury to consider in determining the defendant’s mental condition at the time of the killing. His mental attitude at the trial might tend to show whether or not he was easily excited or likely to brood over imaginary wrongs to the extent of becoming temporarily insane. Underhill on Criminal Evidence, (2 Ed.) § 160, and Reed v. State, 102 Ark. 525.

Again the instruction tells the jury that the burden of showing insanity is upon the defendant, and that, unless this has been done by a preponderance of the evidence, the defense must fail. This part of the instruction is not subject to the vice of an instruction on the question of alibi in Hashins v. State, 148 Ark. 351. In that case the court told the jury that if, after a careful consideration of all oij the testimony in support of the alibi, the whereabouts of the defendant were unexplained at the time the crime was committed, then it - should not consider any testimony in support of the alibi.

We held that the instruction as given' invaded the province of the jury. The court erred in telling the jury that it could not consider the testimony on the question of the alibi if the defendant failed to establish that defense. The defendant had only to raise in the minds of the jury a reasonable doubt of his guilt from nil the evidence in the case, and in determining his guilt or innocence the jury might consider the evidence on the question of ah alibi, although such evidence was not sufficient to maintain that defense..

The instruction in the present case, however, does not go to that extent. It correctly tells the jury that the burden of proof was upon the defendant to show insanity, and that, unless he established that defense by a preponderance of the evidence, it must fail. By this was meant that the defense of insanity must fail if insanity was not established by a preponderance of the evidence. The instruction, however, did not tell the jury that the evidence could not be considered if the defense of insanity was not established. The burden is on the State to prove beyond a reasonable doubt that the defendant committed the crime for which he is charged, and the law presumes every man to be sane. The reason for the latter presumption is, that sanity is the normal condition of mankind. Casat v. State, 40 Ark. 511; Scruggs v. State, 131 Ark. 320, and Bell v. State, 120 Ark. 530.

Therefore the court did not err in giving instruction No. 5 at the request of the State. Objections are made to other instructions given by the court, but we do not deem it necessary to set them out. > We have carefully exafnined them, and, while the form of some of them might be improved, yet the instructions, as a whole, fully and fairly presented to the jury the respective theories of the State and of the defendant.

The defendant relied for an acquittal upon his plea of temporary insanity or insanity at the time of the .killing. The court gave full instructions on this phase of the case and upon the question of reasonable doubt.

We find no prejudicial error in the record, and the judgment will therefore be affirmed.


text:
    Baskins v. United Mine Workers of America.
    Opinion delivered November 7, 1921.
    1. Parties — unincorporated association. — An unincorporated association cannot, in the absence of a statute authorizing it, be sued by its society or company name, but all the members must be made parties, since such bodies, in the absence of statute, have no legal entity distinct from that of their members.
    2. Parties — unincorporated association. — A suit at law against an unincorporated association by name cannot be sustained under Crawford & Moses’ Dig'., § 1098, providing that “where the question is one of a common interest of many persons, or where the parties are numerous and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”
    3. Associations — service on agent. — Where an association cannot be sued in its society name, service of summons on one of its agents is insufficient to bring it into court.
    4. Parties — unincorporated association. — Crawford & Moses’ Dig., chap. 175, authorizing trade unions to adopt a label and to proceed by suit to enjoin the unauthorized use thereof, does not authorize a suit against an unincorporated association by name.
    Appeal from Sebastian Circuit Court, Ft. 'Smith District; Jolm Brissolara, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    Appellants, sued appellee, United Mine Workers of America, an unincorporated association, to recover damages for the negligent killing of John Baskins. Mrs. John Baskins sued for herself, and as next friend of Allie Baskins, Buster Baskins, Gladys Baskins, Victor Baskins, and Kirby Baskins, minors.
    According to the allegations of the complaint she is the widow of John Baskins, deceased, and the other appellants are their minor children. United Mine Workers of America is an unincorporated association of coal miners, and its headquarters are situated in Indianapolis in the State of Indiana. It is divided into thirty districts, and has numerous local unions located in different States of the United States. The local unions are part of the particular district branch having jurisdiction of the territory in which the local unions are situated. Every member of any other local union and district is a member of the United Mine Workers of America and subject to its constitution and by-laws. The membership of the' United Mine Workers of America exceeds, four hundred thousand miners, most of whom are employed by the various union mines. •
    District 21 of the United Mine Workers of America is a branch organization, and has jurisdiction over all union mines and miners in the States of Arkansas, Oklahoma and Texas. John P. White was president of the United Mine Workers of America during the year 1914. John Wilkerson was president during that year of district 21 of the United Mine Workers of America. Certain other persons are named in the complaint as officers of the United Mine Workers of America with their residence in the town of Midland, Ark.
    The complaint further alleges that in 1914 the United Mine Workers of America ordered and promulgated a strike of all union miners employed by the Prairie Creek Coal Mining Company, and that while said strike was in progress John Baskins was employed by said Coal Mining Company as one of the caretakers of its ■mine; that while so employed on the 22nd day of July, 1914, he was taken by union miners who were members of the United Mine Workers of America to a lonely cabin and shot to death, by one of the guards who had him in charge, together with other non-union miners. Appellants allege that they were dependent on the' said John Baskins for support and education, and prayed judgment in the sum of $100,000 damages.
    .The suit was filed in the circuit court on the 24th dav of March, 1920. Summons was issued against the United Mine Workers of America and service of summons was had by the sheriff’s delivering a copy of it to John Wilkerson, president of district 21 of the United Mine Workers of America.
    A motion to quash service was filed. The motion states that the United Mine Workers of America is a voluntary unincorporated association, and is not engaged in any kind of business. It is composed of about 500,000 individuals who labor for themselves in the coal mines throughout the United States and Canada. . The association was organized for the mutual betterment of its members and to obtain better working conditions for them.
    The court found that the defendant, the United Mine Workers of America, was a voluntary unincorporated association, and was named in its society name as defendant in the action; that said association can neither sue nor be sued under its society name under the laws of the State of Arkansas, and service of summons cannot be had upon it by serving the same upon Wilkerson, the president of the district No. 21 of the United Mine Workers of America. ' It was therefore adjudged that the service of summons and the return of the sheriff be quashed and vacated.
    From the judgment rendered appellants have duly prosecuted an appeal to this court.

      J. E. London, for appellant.
    1. The United Mine Workers may be sued as an association under our code. Crawford & Moses’ Digest, § 1098; 101 Ark. 172; 97 Wash. 282; 30 Nev. 270; 95 Pac. 354; 138 Fed. 769; 23 Wyo. 352; 149 Fed. 913; 150 Id. 517; 57 U. S. 288; 81 Pac. 1069; 85 N. E. 897; 200 Mass. 110; 189 Id. 294; 107 N. Y. Supp. 303 ; 227 N. Y., 1; 85 Fed. 252; 28 Utah 495; 160 111. 282.
    The code provision merefy applies the long-standing rule in equity cases arising at common law.
    2. The United Mine Workers of America may be held to respond in damages for the death of the husband and father of plaintiffs in this case. 235 Fed. 1; 149 Id. 913; 150 Id. 517; 263 Id. 147, 152; 265 Id. 397; 120 Id. 102; 150 Id. 155; 208 Id. 335; 236 Id. 964.

      Webb Covington for appellee.
    '1. Appellees being a voluntary unincorporated association, cannot, in the absence of a specific statute authorizing suit against it, be sued in its association name for the torts of its membership. 180 Fed. 896; 129 U. S. 426; 171 Fed. 636; 72 Id. 695; 83 Icl. 912; 2 L. R. A. (N. S.) 788; 102 N. W. 725; 22 Ene. P. &. P. § 242; 54 N. W. 188; 79 S. W. 139; 74 Mich. 269; 20 Atl. 942; 31 S. W. 91; 54 Tex. 476; 22 Ohio St. 168; 52 Ga. 352; 97 Pa. St. 498; 150 Fed. 155, 182; 102 N. W-725; 7 Neb. 246; 66 Id. 252; 140 Ark. 124.
    Section 1098, C. & M. Digest, does not admit of the construction placed on it by counsel for appellants. This State has adopted by statute the chancery rule applied in England and in equity procedure, but this rule has not been extended to actions at law. It has been almost uniformly held that in a proceeding in equity against certain members as representatives of an association composed of a large number of members, a number may 'be made parties defendant as representatives of the class, but in such cases it was held that the association could not be proceeded against in its association name. (1901) Am. Cas. 426; 70 L. J. K. B. (N. S.) 905; 85 Law Times (N. S.) 147; 17 Times L. R. 698.
    2. If the United Mine Workers of America be held to be a legal entity and subject to suit, the service, nevertheless, in this case is insufficient. District No. 21 of the United Mine Workers was not joined as a defendant. Wilkerson, its president, was not an -officer of the United Mine Workers of America nor its agent.
   Hart, J.

(after stating the facts). The judgment of the circuit court was correct. There is no principle better settled than that an unincorporated association cannot, in the absence of a statute authorizing it, be sued in tis society or company name, but all the members must be made parties, since such bodies have, in the absence of statute,- no legal entity distince from that of their members. 5 C. J. 1369; Karges Furniture Co. v. Amalgamated Woodworkers’ Local Union (Ind.) 2 L. R. A. (N. S.) 788; St. Paul Typothetae v. St. Paul Bookbinders’ Union (Minn.) 3 Ann. Cas. 695. The common-law rule is recognized and followed by an unbroken line of authorities from many States which are cited in a case note to 3 Ann. Cas. at p. 699. The common-law rule was recognized by this court in Lewelling v. M. W. W. Underwriters, 140 Ark. 124. In that ease there was a statute providing for suits against certain insurance associations under their society name.

This is an action at law, and the equity doctrine of virtual representation has no application. There is with-' in the power of a court of equity to name as defendants in certain classes of cases a few individuals who are in fact the -representatives of a large class having a common interest or a common right- — a class too large to he brought into court by a service on the individuals composing the class. See 20 R. C. L. p. 672; 5 C. J. p. 1371, and case note to Ann. Cas. 1913-C at p. 655, and Pomeroy’s Code Remedies (4 Ed.) par. 285-291.

It is the contention of counsel for appellants that § 1089 of Crawford & Moeses’ Digest applies to both legal and equitable actions since no limitation is contained in its language. On the other hand, it is the contention of counsel for appellee that the section of the statute is a re-enactment of the .rule which already prevailed in equity, and is to he given a construction which will make it identical with the pre-existing equity doctrine. We need not decide this question for the reason that there was no attempt to comply with the statute. The section reads as follows: “Where the question is one of a common interest of many persons, or where the parties are numerous, and it is impracticable to bring them all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”

No attempt was made by appellants to sue certain persons as defendants who were in fact the representatives of a large class having a common interest. The suit was against the association itself by its society name. It is true, service was had upon the president of the district union in whose territory the tort is alleged to have been committed, but the president was not sued as an individual, or as the president of the district union. The United Mine Workers of America was sued by its society name, and this, as we have already seen, could not be done, in the absence of a statute authorizing it. If tlie United Mine Workers of America could not be sued by its society name, service of summons on one of its agents is insufficient for the purpose of bringing the association into court, in the absence of a statute authorizing it. If appellants had sued certain individual members of the' association as the representatives of all the class, then the application of the section of the statute just quoted to legal as well as equitable actions would be involved, but our statute does not authorize the bringing of actions against unincorporated associations in their common name.

In Curators of Central College v. Bird, 148 Ark. 323, the court held that a suit cannot be maintained by the curators of a college where they are not named as individuals or not alleged to be a corporation. The complaint in this case alleged that certain named persons are officers of the union, but they are not sued as individuals or as representatives of a class. The United Mine Workers of America is sued by its society or common name.

Again it is insisted that the judgment should be reversed because the suit is authorized under chapter 175 of Crawford & Moses’ Digest relating to Trade Unions. We do not think that this chapter of the digest has any application under the facts of the present case. It provides that labor unions may adopt a label and may proceed by a suit to enjoin the unauthorized use, display, and sale of any imitation thereof. Statutes of this sort, being-in derogation of the common law, are strictly construed and the prescribed method of procedure can only be followed in the action designated in the statute. The present action does not come within the class mentioned in chapter 175 of Crawford & Moses’ Digest.

The result of our views is that the judgment of the circuit court was correct, and must be affirmed.