text:
    Hill v. Rector.
    Opinion delivered December 24, 1923.
    1. Municipal corporations — vacancy in office of mayor — election. — Crawford & Moses’ Dig., § 7680, authorizes the aldermen of a city of the second class to “elect” a mayor to fill the vacancy; § 7518, Id., provides that all appointments of officers by any council shall be made viva voee, and the concurrence of a like majority shall be required; the name of those voting and for whom they voted, on the votes resulting in the appointment, shall be recorded, and all such voting shall be public. Held that the two latter sections should be construed as in pari materia, and that the latter section contemplates that the election or appointment of a mayor to fill a vacancy must 'be proved by the record itself, in the absence of proof that such record has been lost or destroyed.
    2. Officers — de facto officer — right to emoluments. — A de faeto officer has no right to the emoluments of an office the duties of which he performs under color of an appointment but without legal title.
    Appeal from Clay Circuit Court, Eastern District; W. W. Bandy, Judge;
    affirmed.

      Gosten & Harrison, for appellant.
    The defense relied upon by appellee of an agreement on tlie part of appellant to serve as mayor without remuneration, even if made, was void .as against public policy. 68 Ark. 276; 70 Ark. 607; Donnelly’s Law of Public Contracts, p. 164, § 101; 85 Ark. 106. Payment of a lesser sum than due, although the warrant stated that.it was in full payment of services, would be void as against public .policy. See 47 Ark. 354. The court should have permitted appellant to introduce his witnesses to show that the warrant issued was not in payment for services rendered. It was not necessary that the council make an allowance of salary, as that was done by the ordinance of the city.

      Bloch & Kirsch, for appellee.
    There was no record made to show that Hill was ever •elected mayor of Rector. Such matters are required to be made matters of record, by C. & M. Digest, 7518-7680. Parol evidence is not admissible to vary or contradict a municipal council record. 107 Ark. 456; 66 Ark. 535; 35 Ark. 475; 88 Ark. 263; 19 Mass. 397. If in fact lie was elected mayor and the record failed to so state, lie could have caused the record to be amended if the council had refused to do so on request. 19 R. C. L. 903. He was acting as mayor not by consent of the council but by special agreement with the members thereof, and was nothing more than a de facto mayor, and, as such, not entitled to compensation. 67 Ark. 484. Acceptance of a less amount in settlement of a greater, evidenced by a writing such as the ordinance and warrant in suit, is valid, and precludes any further claim. 75 Ark. 354; •94 Ark. 158; 100 Ark. 251 j 114 Ark. 559; 122 Ark. 212.
   Wood, J.

This- action was instituted by Homer T. Hill against the city of Rector, Arkansas, to recover the sum of $305 alleged to be due him for his services as mayor of the city from January 11,1919, up to and including the 16th day of January, 1920, when he resigned. He alleged that the city of Rector is a city of the second class, and, upon a vacancy occurring in the ’ office of mayor by reason of the removal from the city of J. W. Dollinson, the legally elected mayor, the city council, at its first regmlar meeting, proceeded to elect Homer T. Hill as mayor, to serve for the unexpired term. After Hill’s resignation the city council issued a warrant in his favor for $105 which, he claimed, was to reimburse him for .money spent in visiting Little Rock and other places in the interest of the city and as compensation for his services in writing certain ordinances.

The appellee, in its answer, denied that Hill was elected mayor of the city of' Rector, and denied all other material allegations of the complaint, and, among other things, recited that “by special agreement made with the plaintiff and the members of the city council of defendant, that he would not charge any compensation for his services, he was permitted to act as mayor, and so continued to act until on or aboiit the 16th day of January, 1920, when plaintiff resigned his office as such, and that by reason of said agreement, even if plaintiff had been duly elected mayor of the city, he would not have been entitled to compensation, and defendant pleads said fact in bar of plaintiff’s right to recover.”

It is agreed by the parties that an ordinance of the city of Rector provides for the payment of a salary to the mayor in the sum of $300 per year.

The appellant testified that he was notified of his election as mayor of the city of Rector in 1919, and that •he duly qualified as such on the 11th of January, 1919'. He served the city as mayor from that date until January 16, 1920, and has not been paid anything on his salary as mayor. The warrant for $100, which he exhibited and introduced in evidence,. was given him the morning after he resigned. He had cashed the warrant. The warrant was drawn on the treasurer in favor of Hill for $100, and contained the following recital: “Given the 12th day of January, 1920, account of in full for services as mayor. ’ ’ It was signed by the recorder. Appellant testified that it was expressly understood by all members of the council present that the above warrant was being issued to him in payment for services rendered by him and expenses incurred in making’' a trip to Little Rock, Paragould, and Pine Bluff, Arkansas, and for preparing the city ordinance known as “the occupation tax ordinance,” and two additional ordinances.

Over the objection of the appellee, appellant was permitted to prove by the recorder of the city that there had been a meeting of the council, and that the recorder made minutes of it on a piece of paper, and thought he had transferred his notes to the minute-book, but, after examining the record, he does not find the record of said notes. At that meeting Hill was elected, mayor by a majority of the city council, and acted as mayor from then on for several months. Witness made a record of the vote on the piece of paper on which he kept the record of that meeting. The roll was called and record made of how each man voted, whether aye or nay.

The appellee introduced the records of the minutes of the city ...of Rector entered January 16/1920. These minutes showed that there was a meeting of the city council on January 16, 1920, with Homer T. Hill, mayor, being present, and the other officers, .giving the names of the aldermen, the marshal and the recorder, and, after reciting the allowance of certain accounts, contains this further recital: “Homer T. Hill tendered.his resignation as mayor of the city of Rector to take effect January 16, 1920. By motion of George Gordon, seconded by George Hardin, the resignation was accepted. On motion of George Hardin, seconded by L. P. Sims, it was voted to pay Homer T. Hill $100 for his services while acting as mayor.”

Upon the above testimony the court directed the jury to return a verdict in favor of the appellee. Judgment was entered in favor of appellee dismissing the appellant’s complaint, from which is this appeal.

Section 7680, Crawford & Moses’ Digest (act of May 1, 1909, p. 589). provides: “Whenever a vacancy shall occur in the office of mayor in any city of the second class, from any cause, the city council shall, at the first regular meeting after the occurrence of such vacancy, proceed to élect, by a majority vote of all the aldermen, a mayor to serve for the unexpired term.”

While the word “elect” is used in the statute to designate the selection or election of the mayor, it is obvious that the word “elect” is here used with the same signification as the word “appointment” in § 7518, Crawford & Moses ’ Digest, which reads as follows: ‘ ‘ All appointments of officers by any council shall be made viva voce, and the concurrence of a like majority shall be required; the names of those voting, and for whom thev voted, on the votes resulting’ in the appointment, shall be recorded, and all such voting shall be public.”

The last section was a part of the act of March 4, 1891. The act of 1909 providing for the election of a mayor in case of a vacancy is not in conflict with § 7518, act of March 4, 1891, supra. The two statutes, so far as the appointment or election of a mayor is concerned, are in pari materia and must be construed with reference to each other. Therefore an appointment or election of a mayor to fill a vacancy by a city council of cities of the second class must be made in accordance with § 7518, C. & M, Digest, supra, in order to constitute a legal election. The provisions of § 7518, supra, in regard to the manner in which the appointment shall be made and the recording thereof, are mandatory. The proceedings of the council in this regard must have been either by ordinance or resolution, and such proceedings must be proyed by the record itself, in the absence of proof that such record has been lost or destroyed. El Dorado v. Faulkner, 107 Ark. 456; Pugh v. Little Rock, 35 Ark. 457; Hencke v. Standiford, 66 Ark. 535.

It follows that the appellant failed to prove that he was duly elected mayor of the city of Rector. The appellant, however, does prove that he was the de facto mayor of the city of Rector. But in the case of Stevens v. Campbell, 67 Ark. 484, quoting from Andrews v. Porter, 79 Me. 490, we held: “A de facto officer has no legal right to the emoluments of the office, the duties of which he performs under color of an appointment, but without legal title. He cannot maintain an action for the salary. His action puts in issue his legal title to the office, and he cannot recover by showing merely that he was an officer de facto.” The fact that the appellee, in its answer, recognized that the appellant “was permittc'" to act as mayor” does not estop the anpellee from setting mo that appellant was not the duly elected mayor of the city. The appellee expressly denied that appellant was such mayor. We conclude therefore that the court did not err in directing the jury to return a verdict in favor of the appellee. The judgment is correct, and it is affirmed.


source: Caselaw Access Project

author: Wood, J.

license: Public Domain

text:
    Missouri Pacific Railroad Company v. Reynolds-Davis Grocery Company.
    Opinion delivered December 24, 1923.
    1. Carriers — liability of connecting carriers. — In the case of interstate shipments, in the absence of statute or special contract, each connecting carrier on a through route is bound only to safely carry over its own line and safely deliver to the next connecting carrier, and the liability of a connecting carrier for the safety of property delivered to it for transportation commences when it is received and is discharged by its delivery to and acceptance by a succeeding carrier or its authorized agent.
    2. Carriers — liability of delivering carrier. — Where a carload of sugar was shipped from another State, under a special contract, by which appellant was named as the delivering carrier, appellant is liable as such carrier for the safe delivery of the sugar, though it employed another carrier as its agent to do a switching service at the destination.
    3. Carriers — loss of freight — jury question. — Evidence held to make it a jury question whether the loss of the sugar in controversy occurred before or after the car was delivered to the appellant.
    4. Carriers — loss of freight — evidence.—In an action for the loss of a portion of a carload of sugar while in appellant’s custody, evidence tending to prove that, while the car stood on appellant’s track, a door of the car was opened, held competent on the issue as to whether or not the' sugar had been stolen from the car while it was in appellant’s possession.
    Appeal from Sebastian Circuit Court, Fort Smith District; Jolm Brissolara, Judge;
    affirmed.

      Thos. B. Pryor and Vincent M. Miles, for appellant.
    1. It was error to instruct the jury that the St. Louis-San Francisco Railway Company was an agent of the appellant, and to direct them to return a verdict for the plaintiff, if they found that the sugar was lost while on the appellant’s line or on the line of its agent, the St. Louis-San Francisco Railway Company. 219 U. S. 186; 241 U. S. 190.
    2. Even if appellant be regarded as the delivering carrier, the appellant was entitled to a directed verdict in its favor. There was no competent evidence that the sugar was lost while in its possession or in that of the St. Louis-San Francisco Eailway Company. 4 E. C. L. 927; 73 Ark. 112; 82 Ark. 143.

      Daily & Woods, for appellee.
    1. The court very properly treated the St. Louis-San Francisco Eailway Company as the appellant’s agent in this transaction. The cases cited by counsel sustain the principle that the last connecting carrier, operating under the bill of lading, is the terminal carrier. 241 U. S. 190. See also 2 L. E. A. 102; 7 S. E. 916; 213 Mass. 70; 99 N. E. 459; 118 S. W. 853; 106 Fed. 623. A common carrier, even a railroad, ceases to be a common carrier When it steps aside from its usual method of carrying goods under a bill of lading, and assumes the role of a “switchman,” acting for other carriers. 10 Corpus Juris, 47; 37 Fed. 567.
   Wood, J.

This action was instituted by the appellee against the appellant to recover the sum of $1,026.66, damages alleged to have been incurred by.the appellee on account of the loss of sugar out of a car shipped from Eaceland, La., to Fort Smith, Ark., under a bill of lading dated April 7, 1920, issued by Morgan’s Louisiana & Texas Eailroad & Steamship Company in Louisiana. The non-agency station was called Mathews. It was five miles from the agency station of Eaceland. The sugar was routed, as shown by the bill of lading,- over the lines of the appellant from its connection with the Southern Pacific lines to Fort Smith, its destination on appellant’s line. The appellant had no track of its own at Fort Smith to the warehouse of the appellee, where the appellee wished the ear delivered. The St. Louis-San Francisco Eailroad Company had a, track connecting with the track of the appellant, and, by a switching arrangement between them, the appellant delivered the car to the Frisco to be delivered to the warehouse of the consignee. The Frisco did not handle the car under the bill of lading and did not share in the distribution of the freight charges. The appellant paid the Frisco the sum of $6.30, its switching fee, for the service in switching 'the car to the warehouse of the appellee. This switching fee charg-e was covered by the tariff on file with the Interstate Commerce Commission. The bill of lading*was surrendered by the appellee to the appellant, and the appellant delivered the car to the appellee through the Frisco railroad, as above indicated.

The loading of the car at Raceland, Louisiana, was done by the shipper’s general superintendent, who had been in its employ for thirty-six years. He checked and counted the sacks. There were 500 sacks, weighing 100 lb. each. After counting and checking the sacks, he applied the seals to the car. The bill of lading shows that there was a total weight of sugar, including the sacks, of 50,250 lh. The car arrived at Fort Smith on April 19, and on that day was delivered by the appellant to the Frisco Railroad in good order, with the seals unbroken. The appellant took a receipt from the Frisco Railroad showing that the car was in good order when delivered to the latter company. When the car was delivered by the latter company to the appellee’s warehouse the original seals had been broken, and had been replaced by a Frisco seal. When the car was opened by appellee’s receiving clerk it was discovered that a large number of sacks of sugar had been removed from the center of the car. Upon checking and counting the sacks it was found that there were 60 sacks short of the number included in the-shipper’s invoice and in the hill of lading. It was also found that the other sacks had been mutilated and 106 lb. of sugar taken therefrom. The value of the sugar lost was $992.22.

. The cause was sent to the jury upon substantially the above facts, and it returned a verdict in favor of the appellee against the appellant for the above sum. Judgment was entered accordingly, from which is this appeal.

1. The action by the appellee against the appellant was.predicated upon the theory that the appellant was liable, under the bill of lading, as the delivering carrier. The appellant contends that it was neither the initial nor the delivering carrier, and that the undisputed testimony showed that the loss did not occur on its lines, and that therefore it was not liable.

The appellee, on the other hand, contends that the appellant, under the bill of lading, was the delivering carrier, and that the Frisco railroad, in delivering the car to appellee’s warehouse in Fort Smith, was merely acting as the agent of the appellant.

The appellant prayed the court to instruct the jury in accordance with its contention, which the court refused, but, over the objections of appellant, gave prayers according to the appellee’s contention. The instructions of the court were correct.

This was an interstate commerce shipment, and the well settled rule concerning such shipments is that “in the absence of statute, or special contract,” each connecting carrier on a through route is bound only to safely carry over its own line and' safelv deliver to the next connecting carrier, and the liability of the connecting carrier for the safety of property delivered to it for transportation commences when it is received, and is discharged by its deliverv to and acceptance bv a succeeding carrier, or its authorized agent.” Oregon-Washington Rd. & Nav. Co. v. McGinn, 258 U. S. 409-413. and other cases cited in the opinion.

This doctrine is not applicable to the facts of this record, for the reason that the carload of sugar was shipped under a special contract under which the appellant was the delivering carrier. The bill of lading, evidencing the special contract under which the shipment in controversy was made, shows that the appellant was the last connecting carrier operating under that bill of lading. This was a through bill of lading from the nonagencv station at Mathews, La., to Fort Smith, Arkansas, in which the appellant undertook to make the delivery to the consignee at Fort Smith. The Frisco Bailroad Company was not named in this bill of lading ás a connecting carrier, and the services it performed in the premises, under its switching arrangements with the appellant, were not as a connecting carrier, but purely and simply at the instance, and as the agent, of appellant. The terms of the bill of lading control here. Under those terms the appellant is undoubtedly the terminal carrier and bound itself, under the terms of the contract, to make the delivery, and it cannot shift its liability upon the shoulders of some other carrier or agency which was not in the contemplation of the parties to the contract. The Frisco Railroad would not be any more liable under this contract than would some transfer company in the city of Fort Smith whom the appellant had employed to deliver the sugar to appellee’s warehouse after the car arrived at Fort Smith, its destination. In other words, if the appellee had sued the Frisco Railroad for its loss, instead of the appellant, the Frisco Railroad Company would not be liable to the appellee, for the simple reason that, under the contract of shipment, the bill of lading, the Frisco Railroad Company had not contracted with the appellee to deliver its carload of sugar to appellee’s warehouse in Fort Smith. This was a service which, under the bill of lading, the appellant had contracted with the appellee to perform, and it undertook the performance thereof through its agent, the Frisco Railroad Company. The following cases sustain the above conclusion: Western Atlantic Ry. Co. v. Exposition Cotton Mills (Ga.), 2 L. R. A. 102; 7 S. E. 916; Sapiro v. Boston & Maine Ry. Co., 213 Mass. 70, 99 N. E. 459; St. Louis S. W. Ry. Co. v. A. A. Jackson & Co., 118 S. W. 853; Atlanta National Bank v. So. Ry. Co., 106 Fed. 623.

Learned counsel for appellant contend that these were cases from State courts, and that they had no application to an interstate shipment of freight, which is controlled by the interstate commerce act, and that, inasmuch as the published tariff of the interstate commerce act provided the rate which the Frisco Railroad should receive for removing cars from the connection of the appellant with the Missouri Pacific Railway Company in Fort Smith, the Frisco Company and not the appellant was the delivering carrier. It occurs to us that this contention of the appellant is directly in the teeth of the contract under which the carload of sugar in controversy was shipped. The Frisco Railroad, as already stated, is not named in the bill of lading as a connecting or delivering carrier; but, on the contrary, the appellant is expressly named as the delivering carrier; its line reaches to the city of Fort Smith, and it expressly undertakes to deliver this sugar, in good order, at its destination. It is bound by the terms of its contract. The interstate commerce act and the power of the Interstate 'Commerce Commission thereunder to fix a schedule of rates for the Frisco Railway Company and the appellant, as common carriers, has no application to the facts of this record. While this was an interstate shipment, it is governed entirely by the contract under which the shipment was made, and there is nothing in this contract contrary to the provisions of the interstate commerce act or the transportation act. There is nothing in those acts, as we view them, making it unlawful for the appellant to undertake, as the last or terminal carrier, in a through interstate commerce shipment, to deliver goods, which it has received, from connecting carriers, to consignees at their destination.

True, the above cases, save one, were decisions of State courts, and learned counsel for appellant contend that, inasmuch as this was an interstate commerce shipment, they are not authority. But all of the above cases involved interstate commerce shipments, and the facts are sufficiently similar to make them applicable here. They are predicated upon the doctrine that the contracts of shipments evidenced by the bills of lading are controlling. That is a sound rule, and is approved in the case of Georgia F. A. Ry. Co. v. Blish Milling Co., 240 U. S. 190.

2. The appellant contends that the court erred in not directing a verdict in its favor. It could serve no useful purpose to set out and discuss in detail the testimony in the record. Suffice it to say we have examined it, and are convinced that it was a question for the jury to determine whether there was the loss of the sugar in controversy, and, if so, whether such loss occurred before the car was delivered to the appellant, or after appellant had received the same.

3. Appellant assigns as error the ruling of the court in permitting witness Poster, who was the chief yard clerk for the Prisco Bailway in Fort Smith at the time of the alleged loss of sugar in controversy, to testify that, along about the month of April, 1920, there was a oar of sugar which sat on the Missouri Pacific connection for a day or two with the door open. Witness was not sure that it was sugar, but that was his impression. He knew that it was a high-class commodity. He gave the clerk who worked with him instructions to seal the' car. it was the only car reported to witness about that time in that condition. The car had been switched to the Frisco Bailway from the Missouri Pacific.

Another witness testified, to which appellant made ho objection, to the effect that he was employed in the Frisco yards in April, 1920. It was his duty to spot all the cars delivered to the wholesale places and to do the team track work. He would eret the cars from the Missouri Pacific or the Kansas City Southern connections. He had a' record of a car delivered to the BeynoldsDavis Grocery Company, loaded with sugar, on the 20th or about the 20th of April, 1920. About that date he saw a car standing down on the Missouri Pacific connection — a car of sugar — with the door on the east side open. He never heard or knew of any other car of sugar on that connection in that condition about or anywhere near that time.

F. P. Lytton, another witness, testified, without objection, that he was a switchman employed by the Frisco Railway in 1920, and that his duties carried him all over the Frisco yards, including the connection between the Frisco and the Missouri Pacific. He remembered about or something near the 20th of April, 1920, having seen a car of sugar standing on the Missouri Pacific connection with the door open; that was the only ear of sugar he saw about that time in that condition.

The testimony of the last two witnesses was but cumulative of the testimony of Foster. All of this testimony was relevant as a circumstance tending to throw light on the issue as to whether or not sugar had been stolen from the car in controversy while it was in the possession of the appellant or its agent. Peterson v. Graham, 25 Ark. 380; Tucker v. West, 29 Ark. 386; see also 2 Jones on Evidence, pgs. 154-195.

4. The appellant offered to introduce certain letters for the purpose of contradicting the testimony of one of the witnesses for the appellee. The court refused to permit these letters in evidence. It would unduly extend this opinion, and could serve no useful purpose, to set out these letters and discuss this assignment of error in detail. Suffice it to say we have examined it and find no error in the ruling of the court in this particular. This disposes of all assignments'of error argued in appellant’s brief. No reversible error appearing in the rulings of the trial court, its judgment is affirmed.


author: Hart, J.,

text:
    Fisher v. State.
    Opinion delivered December 24, 1923.
    1. False pretenses — definition.—A false pretense is a false representation of an existing fact or past event, by one who knows that it is not true, and of such a nature as to induce the party to whom it is made to part with something of value; and it is only necessary that the false pretense be the inducing motive to the obtaining of the goods or money by the defendant.
    2. False pretenses — indictment.—An indictment for false pretenses held to state the facts constituting the alleged offense with sufficient certainty to apprise defendant of what facts would be necessary for him to prove in his defense, and to be sufficient.
    3. False pretenses — when offense complete. — The offense of • false pretenses' is complete when a thing of value has been obtained knowingly and designedly from another by false pretenses, with an intent to defraud such person of such property, and it is unnecessary to charge or prove an actual pecuniary loss or damage.
    4. False pretenses — variance.—-In a prosecution for false pretenses, where the indictment alleged that defendant obtained the property by false pretense, proof that he procured the property to be delivered to another for whom he was acting as agent held not a variance.
    5. Criminal law — multiplication of instructions. — Where defendant’s theory was fully presented by an instruction given, it was not error to refuse to multiply instructions to the same point.
    6. Criminal law — instructions—singling out facts. — Courts are not required, in their instructions, to single out facts and thus emphasize the theory of either party.
    Appeal from White Circuit Court; E. D. Robertson, Judge;
    affirmed.
    STATEMENT OE EAOTS.
    A. B. Fislier lias been convicted before a jury in tbe circuit court upon an indictment charging him with the crime of false pretenses. The body of the indictment is as follows:
    ‘ ‘ The grand jury of White County, in the name and by the authority of the State of Arkansas, accuses A. B. Fisher of the crime of false pretenses, committed as follows, to-wit: The said A. B. Fisher, in the county and 'State aforesaid, on the 12th day of April, A. D. 1923, then and there unlawfully, knowingly, designedly and feloniously did falsely pretend to W. J. Shiver that he, the said A. B. Fisher, was then and there the authorized agent and employee of the Columbia Hardwood Lumber Company, of Chicago, Illinois, to purchase, receive and pay for lumber for the said Columbia Hardwood Lumber Company aforesaid, and he, the said A. B. Fisher, then and there proposed to and did'purchase and receive from the said W. J. Shiver seven carloads of lumber of the value of twenty-three hundred dollars, and by reason of the false pretense aforesaid he, the said A. B. Fisher, then and there unlawfully, knowingly, designedly and feloniously did obtain from the said W. J. Shiver seven .carloads of lumber, of the value of twenty-three hundred dollars, the property of the said W. J. Shiver, with the unlawful and felonious intent then and there to cheat and defraud the said W. J. Shiver out of his said property; whereas, in truth and in fact, the said A. B. Fisher was not then and there the authorized agent and employee of the said Columbia Hardwood Lumber Company, of Chicago, Illinois, to purchase, receive and pay for lumber as aforesaid, and he, the said Ai B. Fisher, so well knew at the time he made the false pretense aforesaid, against the peace and dignity of the State of Arkansas.”
    W. J. Shiver was the principal witness for the State. According to his testimony, during the year 1923 he had been engaged in manufacturing, buying and selling lumber at Searcy, in White County, Arkansas. He first met the defendant at his place of business in Searcy on April 12, 1923. The defendant made some prices on lumber. He asked the defendant what company he was representing, and the defendant said the. Columbia Hardwood Lumber Company of Chicago, and that the company had a branch office in Little Bock, Ark. The defendant represented that he was taking care of the branch office. At first he sold the defendant something like four cars of oak lumber and several cars of gum. The defendant referred him to the Blue-Book for the company’s standing. He told the defendant that he knew of his company, and that he supposed it was the same, company that operated some mills below Varner, and he said that it was. He came back on the 14th, and he told him that he had looked up his company and found it' to be all right. The order signed on April 12, 1923, Columbia Hardwood Lumber Company, by B. H. Moffitt, trust officer, by Fisher, is one of the orders that he gave him.

      He delivered1 seven cars within the space of six days, and never received any pay for them. The six cars were worth over $2,000. The lumber was duly inspected and received by an inspector named Sheehan. Fisher told Shiver that the ears would be paid for just as fast as they were received. Shiver has not received any pay for the lumber.
    The testimony of W. J..Shiver was corroborated by that of his brother, T. Shiver. In addition, they both testified that, after they found out that the defendant was not representing the Columbia Hardwood Lumber Company of Chicago, as he had represented himself to do, they went to Little Rock and undertook to locate his place of business there, but were unable to do so.
    The treasurer of the Columbia Hardwood Lumber Company of Chicago, 111., was present at the trial, and also testified for the State. According to his testimony, there is only one Columbia Hardwood Lumber Company in Chicago, and that the defendant had never been in its employment. The witness was treasurer of the company, and said that at one time the company had furnished money to operate some mills in White County, Arkansas, but that they had quit operations here about a year and a half ago. The Columbia Hardwood Company is not listed in the Blue-Book. The Columbia Hardwood Company received mail at room 1310, Security Bank Building, Chicago, which was forwarded to Little Rock.
    Another witness testified that the defendant had told him that the Columbia Hardwood Company was a company owned by the Sargent Lumber Company, which had been organized by himself and Mr. Sargent. He said that the Columbia Hardwood Company was the buying company for the Sargent Lumber Company, which was selling’ him the lumber.
    Other evidence for the State showed that the Sargent Lumber Company, the Columbia Hardwood Company, and six. other lumber companies had the same office in Little Bock, Ark. The defendant and Mr. Sargent are the only two men who were ever found wlio acknowledged to having anything to do with the office.
    The defendant was the principal witness for himself. According to his testimony, in 1923 he was engaged in selling lumber for the Sargent Lumber Company, and was employed by the Columbia Hardwood Company. He met B. H. Moffitt, who represented himself to be a trustee for the Columbia Hardwood Company, and made a contract with him at Forrest City, Ark., whereby he agreed to purchase lumber for the company for the sum of $175 per month. The contract provided that it should run a year from date, which was the 22d day of November, 1922. The defendant admitted meeting the prosecuting witness at his place of business in Searcy, Ark., in April, 1923. He told Shiver that he was representing the Columbia Hardwood Company of Little Bock, and that the company had an office in Chicago. He bought seven cars of lumber from Shiver for. the Columbia Hardwood Company. None of the lumber was delivered to the defendant, and he did not buy it for his personal use.
    On cross-examination the defendant stated that he did not tell Shiver that he was buying lumber for the Columbia Hardwood Lumber Company, and that he did not say anything to him about looking up the rating of that company. He. did not know who stayed in the Chicago office of the Columbia Hardwood Company. No one ever told him. He simply told Shiver that his company was a trust association with an authorized capital of $500,000.
    T. S. Sargent was also a witness for the defendant. He testified that he knew B. H. Moffitt, and that his company had been buying lumber from the Columbia Hardwood Company during the year 1923.
    F. B. "Welch, the cashier of a bank at Searcy, testified in rebuttal for the State. According to his testimony, the contract of employment signed “ Columbia Hardwood Company, by B. H. Moffitt, trustee,” and A. B. Fisher, and the declaration of trust with the Columbia Hardwood Company, bearing the signature of B. H. Moffitt, and the order for lumber to the Searcy Hardwood Lumber Company, bearing the signature of “Columbia Hardwood Company, by B. H. Moffitt, by Fisher,” were written by the same person.
    W. J. Shiver testified that he owned the mill which sold the lumber to the defendant. He also testified that the Blue-Book is a lumberman’s book which gives the rating of large lumber companies. The Columbia Hardwood Lumber Company of Chicago, 111., is a large lumber company and contains a good financial rating.
    The jury returned a verdict of guilty, and fixed the punishment of the defendant at imprisonment at one year in the State Penitentiary.
    From the judgment and sentence of conviction the defendant has duly prosecuted an appeal to this court.

      Ben F. Reinberger and BruncUdge & Neelly, for appellant.

      J. 8. Utley, Attorney General, John L. Garter, Wm. T. Hammock and Barden Moose, Assistants, for appellee.
   Hart, J.,

(after stating the facts). The defendant was indicted under ■§ 2449 of Crawford & Moses’ Digest, which reads as follows: “Every person who, with intent to defraud or cheat another, shall designedly, by color of any false token or writing, or by any other false pretense, obtain a signature of any person to any written instrument, or obtain from any person any money, personal property, right of action, or other valuable thing or effects whatever, upon conviction thereof shall be deemed guilty of larceny and punished accordingly.”

The first assignment of error is that the indictment is fatally defective. We have copied the body of the indictment in our statement of facts, and it need riot be repeated here.

Tested by our decisions construing the statute just quoted, we are of the opinion that the court properly overruled the demurrer to the indictment. It is well settled by our decisions that a false pretense is a false representation of an existing fact or past event, by one who knows that it is not true, and which is of 'such a nature as to induce the party to whom it is made to part with something of value; and it is only necessary that the false pretense be the inducing motive to the obtaining of the goods or money by the defendant. Parker v. State, 98 Ark. 575, and Lawson v. State, 120 Ark. 337.

The indictment in question charges that a false pretense was in fact made. That it was made with the intention of defrauding the prosecuting witness, W. J. Shiver, and that the prosecuting witness was in fact defrauded to his injury. The indictment in plain terms charges that A. B. Fisher, in White County, Arkansas, on the 12th day of April, 1923, feloniously pretended to W. J. Shiver that he, the said A. B. Fisher, was the authorized agent of the Columbia Hardwood Lumber Company of Chicago, Ill., to purchase, receive and pay for lumber for it.

The indictment further charges that the said A. B. Fisher proposed to purchase from W. J. Shiver seven carloads of lumber, of the value of $2,300, and, by reason of said false pretense, obtained from said W. J. Shiver the seven carloads of lumber, with the felonious intent to defraud the said W. J. Shiver out of his property.

The indictment further charges the fact to be that the said defendant was not then and there the authorized agent of the said Columbia Hardwood Lumber Company of Chicago, Ill.,, to purchase, receive and pay for lumber for it, and that0 the said defendant well knew that he was not such agent at the time he made the false pretense aforesaid. The statement that the defendant knew his representations of agency to be false embraces the charge that it was so in fact. The words, “that he knew his representations to be false at the time he made them,” fixed the venue of the offense; because, in another part of the indictment, it charges that the representations were made in White County, Arkansas.

The indictment also charges that the defendant made the false pretense in question to induce the prosecuting witness to part with his property, and that the alleged false pretense was effectual for that purpose. Hence the facts charged to constitute false pretenses are stated with sufficient certainty to apprise the defendant of what facts would he necessary for him to prove in his defense.

It is further claimed that, as the indictment fails to specifically charge loss or damage to Shiver, it is fatally defective. We think the offense, under the statute, is complete when a thing of value has been obtained knowingly and designedly from another by false pretenses, with an intent to defraud such person of such property, and that it is unnecessary to 'Charge or prove an actual pecuniary loss or damage. The prosecuting witness was legally injured when he surrendered his property on account of the false representations made to him by the defendant in order to obtain it. The obtaining of the property of Shiver by means of false pretenses constituted the offense, and it was unnecessary to charge that the defendant did not pay for the lumber in question. The crime, if any, was complete when the property was fraudulently obtained. West v. State (Neb.), 88 N. W. 503, and Stoltz v. People (Col.), 148 Pac. 865.

It is also insisted that there is a variance between the allegations of the indictment and the proof. It is insisted that the indictment charges the defendant with obtaining the lumber mentioned under false pretenses, while the proof shows that the defendant never obtained it; but that, if any person or ¡corporation obtained it, it was the Columbia Hardwood Company, of which the defendant was the agent.

We do not think that this assignment of error is well taken. It is evident from the testimony that, if anyone made false and fraudulent representations amounting to false pretenses and obtained the lumber by reason thereof, it was the defendant. If he made the representations, he made them with the.knowledge of their falsity, and the plea of agency is not available to one who knowingly commits a crime. In such cases it is sufficient if the defendant either obtained the possession or control of the goods, or that such goods were delivered to another at his request or in accordance with his wishes. Our statute does not make it an element of the' offense of obtaining money or property under false pretenses that it shall be obtained for the person making the pretenses himself, or that it should be intended- to obtain it for another. The statute provides that every person, who, with the intent to defraud another, shall, by color of any false token or writing, or by any other false pretense, obtain personal property, upon conviction shall bé deemed guilty of larceny, and shall be punished accordingly. The statute is directed against whomsoever shall obtain money or property by false pretenses, and it does not make any difference who gets the money or property. State v. Balliet, 63 Kan. 707, 66 Pac. 1005; Musgrave v. State, 133 Ind. 297, 32 N. E. 885; State v. Chingren, 105 Ia. 169, 74 N. W. 946; and State v. Mendenhall, 24 Wash. 12, 63 Pac. 1109.

It is next insisted that the evidence is not legally sufficient to warrant a verdict of guilty; but we are of the opinion that the proof in this case, on the part of the State, brings it clearly within the doctrine of the cases cited. The statements and representations made by the defendant to Shiver to induce him to part with his lumber were representations of existing fapts. They consisted of positive assertions of existing facts or conditions which were known, by him to be false, and which were made with the intent to influence the action of the prosecuting witness and to induce him to refrain from any particular investigation of the subject to which they related, and to induce him to part with his. property upon the faith that the defendant was the agent of the Columbia Hardwood Lumber Company of Chicago, Ill.

According to the evidence on the part of the State, we have a case where a person, by falsely pretending to be the purchasing agent of a regular established lumber dealer, fraudulently procured another lumber dealer to sell him lumber. Shiver was induced to part with his property upon the representations of the defendant that he was the agent of the Columbia Hardwood Lumber Company of Chicago, Ill. Then, upon the faith of such representations, Shiver looked up the rating of that ■company, and, when he found it to be good, he sold the lumber to the defendant. He already knew that that company had the reputation of being a reliable company.

According ,to the evidence for the defendant, he represented that the hardwood company had offices in Little Rock and also in Chicago; that he was the agent of that company. A subsequent investigation ■showed that the Columbia Hardwood Company of Little Rock was not known in the lumber trade, and that it only had a nominal existence. However that may be, the proof on the part of the State showed that the defendant falsely represented himself to be the purchasing agent of the Columbia Hardwood Lumber Company of Chicago, Ill., which was well known in the lumber trade, and which had a good rating, and thereby induced him to sell defendant seven cars of lumber. The evidence for the State, if believed by the jury, was legally sufficient to warrant a verdict of guilty.

It is next insisted that the court erred in giving certain instructions on the part of the State. We do not deem it necessary to set out these instructions. It is sufficient to say that they contain correct declarations of law within the principles announced in the decisions above cited and many other decisions of this court which might be cited.

It is next insisted that the court erred in refusing to give instruction No. 4 requested by the defendant. Tbe instruction is as follows: “The jury are instructed that, if you find from the testimony in this case that the cars of lumber mentioned in the indictment as being received by the defendant, A. B. Fisher, were in reality sold by the prosecuting witness, W. J. Shiver, to the Columbia Hardwood Lumber Company, and shipped by the prosecuting witness, then you will find the defendant not guilty. ’

In this connection it may be said that the court gave instruction No. 5 at the request of the defendant, which is as follows: “The jury are instructed that, if you find from the testimony in this case that the defendant, A. B. Fisher, was hired by the Columbia Hardwood Company by the month, under a written contract duly signed, to represent it, and, at the time of the purchase of the cars of lumber mentioned in the indictment from the prosecuting witness, W. J. Shiver, he made known to said prosecuting witness the fact that he was only a purchasing agent and the name of his principal, and furnished to the said prosecuting witness written orders for said lumber, and that said written orders contained the name of the purchaser, the price to be paid, the time when it was to be paid, and the conditions of the purchase, and that the lumber was afterwards loaded and shipped to the actual purchaser thereof, the Columbia .Hardwood Company, and not to the defendant, and the defendant was not interested in the purchase of said lumber further than as agent aforesaid, then you will find the defendant not guilty.”

This instruction presented fully and fairly the theory of the defendant, and the court is not required to multiply instructions on the same point.

Finally, it is insisted that the court erred in modifying instruction No. 8 requested by the defendant, and giving it to the jury as modified. The instruction as modified reads as follows: “The jury are instructed that the defendant is charged in the indictment with obtaining seven cars of lumber from W. J. Shiver by false pretense, and that this allegation must he proved, and, although yon may find from the testimony that the defendant may have received pay for some of the lumber as agent of the Sargent Lumber Company, still this alone would not be sufficient to convict the defendant, under the charge contained in the indictment.”

We think the modification of the instruction was proper. The instruction, without the word “alone,” would have singled out certain facts and have given them undue prominence to the jury. The court is never required to single out fasts and thus emphasize the theory of either the State or the'defendant.

In the present case the respective theories of the State and of the defendant were fully and fairly submitted to the jury, under the instructions given by the court. It will be readily seen that the guilt or innocence of the defendant depended upon whether the prosecuting witness or the defendant was telling the truth about the transaction.

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


text:
    National Life Insurance Company of U. S. A. v. Jackson.
    Opinion delivered December 24, 1923.
    1. Insurance' — construction ' of policies. — Policies of insurance must be interpreted according to the plain import of the language used in them, where there is no ambiguity in them.
    2. Insurance — death by pre-existing disease — liability.—Under a policy of life insurance which stipulated that no liability is assumed by the company for any accident, illness or disease occurring or contracted prior to the date thereof, no liability was incurred where insured died from tuberculosis contracted prior to the issuance of the policy, even though the company’s agent who delivered the policy at the time knew that insured had tuberculosis.
    Appeal from Pulaski Circuit Court, Second Division; B. M. Mann, Judge;
    reversed.

      STATEMENT OE EACTS.
    Adeline Jackson brought this suit in the municipal court of Pulaski County, Arkansas, against 'the National Life Insurance Company of U. S. A., to recover $72 alleged to be due her on a life insurance policy issued in her favor on the life of her son.
    She recovered judgment in the municipal court, and the insurance company appealed to the circuit court. The ease was tried there upon substantially the following testimony:
    According to the testimony of Adeline Jackson, she was the mother of Leonard Spencer. She,did not know that he had applied for the policy until after' he had done so. She then, at the instance of her son, gave the agent of the insurance company money with which to pay for the policy. When the policy was applied for, it was easy to tell that the boy was sick. He was in the room when the agent of the insurance company came for the money, and was just as poor as he could be. She notified the company of the death of her son within the period of time prescribed by the policy.
    On cross-examination she stated that the boy had been sick with consumption since February preceding the issuance of the policy.
    The application for the policy was made on the 18th day of April, 1922. In it the applicant stated that he had never had tuberculosis. The policy bears the date of May 15, 1922, and the insured died on the 16th day of June, 1922, of tuberculosis.
    One of the conditions of the policy is as. follows: “No liability is assumed by the company for any accident, illness, or disease occurring or contracted prior to the date hereof, or any death arising therefrom.”
    The insured died at the Pulaski County Hospital, and the superintendent of that hospital, who is a physician, testified that the insured was received in the hospital three days before he died, and that he died of tuberculosis. He testified further that the physical condition of the insured indicated that he had had tuberculosis for some time.
    On the part of the insurance company -the agent testified that he did not know that the insured had tuberculosis at the time he applied for the policy or at the time the policy was delivered to him. He testified further that, if he had known-that the insured had tuberculosis, he would not have taken his application, and that there was nothing in ljs physical appearance to indicate that he had tuberculosis. The witness denied that the mother of the insured had told him that her son was sick at the time the policy was issued to him. The insured was five feet eight inches high and weighed 120 pounds at the time he applied for the policy. He was twenty-one years of age, and his mother was named as beneficiary in the policy'.
    The jury returned a verdict in favor of the plaintiff, and from the judgment rendered the defendant has duly prosecuted an appeal to this court.

      Carmichael & Hendricks, for appellant.
    1. There was and is no liability on the part of appellant. It was conclusively shown that deceased had tuberculosis at the time the policy was written, and several months prior thereto. The provision that the insurer should not be liable for any illness or disease contracted prior to the date of the policy, or for death arising therefrom, was of the essence of the contract, and could not be waived by a 'soliciting agent. 104 Ark. 538; 122 Ark. 219, 223; Id. 468; 138 Ark. 442; 137 Ark. 366; 143 Ark. 369.
    2. It was error on the part of the court, in instructing the jury to the effect that, in the answer by deceased in his application that he had not had tuberculosis (among other diseases named), this answer was a warranty, to qualify that instruction so as to permit a recovery if the ■ jury found that the agent of the insurance company knew he had tuberculosis at tbe time tbe policy was delivered. 94 So. 375; 172 Pac. 486; 73 Ore. 278; 76 S. W. 811.
   Hart, J.,

(after stating the facts). The court instructed the jury that, if it should find that' the agent of the insurance company had knowledge that the insured had tuberculosis at the time the policy was written or delivered, the insurance company would be liable.

The court erred in giving this instruction. It is true that the general rule of law imputing to a principal notice of facts learned by his agent in the discharge of his duties applies to insurers; but this principle has no application under the terms of the policy sued on. As will be seen from our statement of facts, one of the conditions of the policy is that no liability is assumed by the company for any accident, illness or disease occurring or contracted prior to the date thereof, or any death arising therefrom.

It is well settled that policies of insurance must be interpreted according to the plain import of the language used in them, where- there is no ambiguity in it. The clause in question, in plain terms, provides that no liability is assumed by the company for death arising from a disease contracted prior to the date of the policy. The testimony of the beneficiary herself, as well as that of the physician who attended the insured in his last illness, shows that he had tuberculosis at the time the policy was applied for and issued, and that he died of that disease. All the attending circumstances corroborate their testimony. The policy was issued about the middle of April and delivered about the middle of May. The insured died of tuberculosis on the 16th day of June thereafter. Thus the undisputed evidence shows that the - insured had tuberculosis at the time the policy was issued to him and died of that disease within a short time thereafter. There is no statute in this State or ground of public policy which would prevent a contract of this sort from being valid. Hence the parties are bound by the provisions of the contract which they made.

This principle was recognized in. Carland v. General Accident, Fire & Life Assurance Corporation, 122 Ark. 168. There a policy of insurance agreed to pay the insured a certain sum monthly in the event of an illness resulting in total disability, if the disability occurred by reason of illness that was contracted and began after the policy had been maintained in continuous force for sixty days. It was held that the insured could not recover under the policy, when the illness was contracted within sixty days after the issuance of the policy, although it continued until after the expiration of the sixty-day period.

In American National Insurance Company v. Otis, 122 Ark. 219, the policy provided that, in case death occurred from any cause within five weeks from the date of the reinstatement of. a policy, the company should not be liable, and it was held- that, under the express terms of the policy, the .company was not liable where the insured died within less than five weeks after the policy was reinstated. See also Metropolitan Life Ins. Co. v. Fitzgerald, 137 Ark. 366.

Inasmuch as the undisputed evidence shows that the insured had tuberculosis at the time he applied for the policy, and it was issued, and that he died from that disease a short time after the policy was issued, under the express terms of the policy the insurance company was not liable, and the circuit court erred in not directing a verdict for it.

For that error the judgment will be reversed, and, inasmuch as it seems to have been fully developed, the cause will be dismissed.


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

text:
    Missouri State Life Insurance Company v. Cranford.
    Opinion delivered December 24, 1923.
    1. Insurance — incontestability.-—-A life insurance policy containing a provision that it shall be incontestable after a specified time cannot be contested by the insurer on any ground not excepted in that provision.
    2. Insurance — incontestability-—reasonableness of period. — A provision that a life insurance policy shall be incontestable after a specified time is valid where the time allowed for the investigation is a reasonable period.
    3. Insurance — effect of death of insured — time of contest.— A provision in an insurance policy making it incontestable after the lapse of a specified time does not cease -to operate when the insured dies within the time specified, but continues thereafter for the benefit of the beneficiary; and therefore, if contest is not instituted within the time specified, it is too late.
    4. Insurance — contest within year. — A provision that a life insurance policy shall be incontestable after one year contemplates that the insurer shall, within that period, either file an answer or institute an action to cancel the policy, or, in default thereof, be barred from contesting the policy.
    Appeal from Little River Circuit Court; B. E. Isbell, Judge;
    affirmed.
    STATEMENT OF FACTS.
    This is a suit brouglit by the wife against a life insurance company to recover the amount of two policies of life insurance for the sum of $1,500 each, issued to her husband.
    It appears from the record that on the 29th day of May, 1918, the Missouri State Life Insurance Company issued two policies of life insurance in the sum of $1,500 each to Burrel A. Cranford, and Ida D. Cranford, his wife, was named as the beneficiary in each policy. The insured died on January 6, 1919. Each policy carried the following clause:
    “Unrestricted, and after one year incontestable, as follows:
    “This policy is free from conditions as to residence, occupation, travel or place of death, in times of peace, and shall he incontestable after one year if the premiums are duly paid, except for violation of the provisions relating to military or naval service in time of war.”
    On May 27, 1919, separate suits were instituted by the wife against the insurance company on the policies. The complaint alleges that the insured died on the 6th of January, 1919, and that notice and proof of death was given to the company, as provided by the terms of the policies, and that demand for the payment of the amount of each policy was made upon the company, and that on the 25th day of March, 1919, the company denied liability on said policies.
    The insurance company filed an answer to each suit on the 26th day of June, 1919. Payment of the policies was defended on the ground that the insured had made-certain fraudulent representations to the company in his application for the insurance, which were false, and which induced the company to issue the policies.
    The cases were consolidated for the purposes of trial. At the first trial the jury failed to agree, and was discharged from further consideration of the case. The cases were continued until the next term of the court. At the next term of the court a mistrial resulted from the serious illness and physical inability of one of the jurors selected to try the case.
    Subsequently, on July 4, 1922, the plaintiff filed an amendment to her complaint. Among other things she set up the incontestable clause above quoted, and alleged that the defendant did not, within one year from the date of the policies, contest the same, and that it is, by the terms of the policies, forever barred and estopped from contesting the same.
    The defendant filed an answer in each case, in which it admits that each policy of insurance contains an incontestable clahse in the language set out in the complaint, and the language of the clause is again set out in the answer. The answer admits the issuance of the policies on May 29, 1918; that the insured died January 6, 1919, and that in sixty days thereafter notice of the death of the insured was given to the defendant; but it denies that the defendant is, by the terms of said policies, barred from contesting the same.
    The answer further alleges that the actions were commenced on the 27th day of May, 1919, within one year from the date of the policies sued on, and for that reason that the incontestable clause is not applicable.
    The defendant, further answering, states that on the 25th day of March, 1919, which was within one year from the date of the policies sued on, the defendant notified the plaintiff that it did not recognize any liability on said policies, on account of the fraud practiced upon it by the insured in the procurement of the policies.
    The plaintiff demurred to the amended answer, and the demurrer was sustained by the court. The defendant elected to stand upon its amended answer in each case, and refused to plead further. Judgment was thereupon rendered in favor of the plaintiff for. the amount sued for, and to'reverse that judgment the defendant has duly prosecuted an appeal to this court.

      Lake é Lake, A. P. Steel, J. S. Steel, for appellant.
    The incontestable provision in the policies does not apply, since the death of the insured occurred and suit was commenced within the contestable period. The rights of all parties became fixed by the death of the insured, and it was unimportant that answer was not filed within the contestable period to the suit, which was filed only two days before the expiration of that period. Since the rights and liabilities had become fixed by the death of the insured within the contestable period the defense of fraud was available at any time thereafter. 157 Ark. 499 and cases cited; 108 Ark. 511. However, the real contest began within the contestable period, when appellant denied liability on the policies and tendered the amount of premiums paid and demanded the return of the policies. This was affirmative action on the part of appellant, and affirmative action is all that is required. 280 Fed. 18; 219 111. App. 467; 20 S. E. 517.

      A. D. DuLaney, Paid Jones and Jas. D. Head, for appellee.
    The incontestable clause of the policy is a sweeping provision and covenant on the part of the company that, if the premiums are paid, the policy “shall be incontestable after one year, ’ ’ with an exception as to military or naval service. Such clauses are to be construed literally. 108 Ark. 511. The contract is between the beneficiary and the company, and he has a vested interest in the policy of which he cannot be deprived except by some act in violation of a condition of the policy. 14 E. C. L., p. 1438, § 601. See also 134 Ark. 245; 146 Ark. 140; 106 Ark. 91. The word “incontestable” has been construed many times, for which see the following: 43 Hun 61, 118 N.'Y. 237; 144 Iowa 451; 101 N. E. 289; 92 S. E. 706; 160 Pac. 928; 121 N. E. 315; 183 N. ;W. 1000; 238 S. W. 534; 131 N. E. 108; 46 S. W. 561; 23 N. E. 186. If a contest was to be made, it must be done within a year, either by affirmative action for cancellation, or by defense to a suit on the policy. 121 N. E. 314; 101 N. E. 289; 46 S. ~W. 561, and other cases cited above. The cases relied upon by appellant, 108 Ark. 511 and 157 Ark. 499, are out of harmony with other cases, and should be overruled. That rights of parties are not fixed by death, see Mutual Life Ins. Co. v. Ilurni Packing Co., 260 U. S. 712.
   Hart, J.,

(after stating the facts). Each of the policies of insurance sued on was issued by the defendant on the 29th day of May, 1918, and the insured, Bur-rel A. Cranford, died on the 6th day of January, 1919. Proof of death- of the insured was given to the defendant by the wife, who was the beneficiary in each policy. Payment was refused by the company on the ground that the insurance had been procured -by false representations of a material character which had been made by the insured in his application for the purpose of procuring the policies of insurance.

No answer was filed to the present suit within one year after the date of the insurance policies, and no suit has been brought by the insurance company to set aside the contract of insurance because it had been procured by fraudulent representations on the. part of the insured.

Thus it will be seen that the sole issue raised by the appeal depends upon the construction to be given the incontestable clause, which is set out in full in our statement of facts. In substance it provides that the policies shall be incontestable after one year, if the-premiums are duly paid, except for the violation of the provision relating to military or naval service in time of war. The modern rule is that a life insurance policy containing a provision that it shall be incontestable after a specified time cannot be contested by the insurer on any ground not excepted in that provision. It is said that the practical and intended effect of such a stipulation is to create a short statute of limitations. By the stipulation, the insurance company agreed that it would take a year to investigate and determine whether it would contest the policies of insurance, and that, if it failed within that time to discover any grounds for contesting the same, it would make no further investigation and would not thereafter contest the validity of the policies.

It has been uniformly held that a provision of this kind is valid where the time allowed for the investigation is a reasonable period. Policies of insurance are prepared by the insurance companies, and the insured has no voice in their preparation. Clauses of this kind are evidently inserted in insurance policies by the insurer for the mutual advantage of both the insurer and the insured. It has been well said that such a provision is reasonable and proper because it gives the insured a guaranty against expensive litigation to defeat his policy after the lapse of the time specified, and at the same time gives the company a reasonable time and opportunity to ascertain whether the contract should remain in force. Such a stipulation is not against public policy as tending to put fraud on a par with honesty. On the contrary, the stipulation recognizes fraud and all other' defenses, but provides a reasonable time in which they may be, but beyond which they may not be, established. Therefore it is in the nature of and serves a similar purpose as a statute of limitations, the wisdom of which has been universally recognized.

As said by Judge Mitchell in Mareck v. Mutual Reserve Fund Life Assn., 62 Minn. 39, an- incontestable clause is inserted in the contract by the company itself and is written there for a purpose. After holding such a stipulation to be valid, the learned judge said: “To the layman the present contest would, as plaintiff’s counsel suggests, appear very much like a contest over an incontestable policy.” Numerous other eases from the various courts of last resort in the United States are cited in a case note to 6 A. L. E. at p. 453. Among these we cite the following: Arnold v. Equitable Life Assur. Soc., 228 Fed. 157; Great Western L. Ins. Co. v. Snavely, 206 Fed. 20, 46 L. R. A. (N. S.) 1057; Dibble v. Reliance L. Ins. Co., 170 Cal. 199, Ann. Cas. 1917-E, p. 34; Prudential Ins. Co. v. Lear, 31 App. D. C. 184; Massachusetts Ben. Life Asso. v. Robinson (Ga.), 42 L. R. A. 261; Weil v. Federal L. Ins. Co. (Ill.), Ann. Cas. 1915D, p. 974; Indiana Nat. L. Ins. Co. v. McGinnis (Ind.), 45 L. R. A. (N. S.) 192; Kansas Mut. L. Ins. Co. v. Whitehead (Ky.), 13 Ann. Cas. 301; Mutual L. Ins. Co. v. New (La.), 27 L. R. A. (N. S.) 431; Reagan v. Union Mut. L. Ins. Co. (Mass.), 2 L. R. A. (N. S.) 821; Harris v. Security L. Ins. Co. (Mo.), Ann. Cas. 1914C, p. 648; Drew v. Metropolitan L. Ins. Co. (N. J.), 75 Atl. 167; Wright v. Mutual Ben. Life Assn. (N. Y.), 6 L. R. A. 731; American Trust Co. v. Life Ins. Co. (N. C.), 92 S. E. 706; Murray v. State Mut. L. Ins. Co. (R. I.), 53 L. R. A. 742; Metropolitan Life Ins. Co. v. Peeler (Okla.), 6 A. L. R. 441; Supreme Lodge of Knights of Pythias v. Overton (Ala.), 16 A. L. R. 649; Philadelphia L. Ins. Co. v. Arnold (S. C.), Ann. Cas. 1916C, p. 706; Clement v. New York L. Ins. Co. (Tenn.), 42 L. R. A. 247; and Patterson v. Natural Premium Mutual L. Ins. Co. (Wis.), 42 L. R. A. 253.

That too is the effect of a recent holding of the Supreme Court of the United States in Mutual Life Insurance Company v. Hurni Packing Company, 260 U. S. 712. In that ease the court said that, while the contract of insurance is with the insured, nevertheless it is for the use of the beneficiary, and that there is no reason to say that the incontestable clause is not meant for his benefit as well as the benefit of the insured. The court further said that it is for the benefit of the insured during his lifetime, and upon his death immediately inures to the benefit of the beneficiary. In that case it was contended by the petitioner (the insurance company) that, if the insurer died during the period of the time mentioned in the incontestable clause, that clause is not applicable. On this point the learned judge said: “In order to give the clause the meaning- which the petitioner ascribes to it, it would be necessary to supply words which it does not at present contain. The provision plainly is that the policy shall be incontestable upon the simple condition that two years shall have elapsed from its date of issue; not that it shall be incontestable after two years if the insured shall live, but incontestable without qualification and in any event.”

Counsel for the insurance company in that case cited Jefferson Standard Life Ins. Co. v. Smith, 157 Ark. 499, to sustain his view. The Supreme Court of the United States said that the incontestable clause under review in that case was unlike the one passed on by it. There the clause was, “after this policy shall have been in force for one full year from the date hereof, it shall be incontestable,” etc. The Supreme Court of the United States said that the decision seems to have turned on the use of the words, “in force,” which contemplated the continuance in life of the insured' during that year. Without approving or disapproving the distinction, we are content to place our decision in the case at bar upon the uniform current of authority upon the question, including the decision of the Supreme Court of the United States. It is to the advantage and convenience of both the insured and the insurer that there should1 be uniformity in policies of insurance, both in form and in the interpretation of the language used in the policies.

The insurance policies sued on were issued on the 29th of May, 1918, and the suits were brought on the 27th of May, 1919. On June 26, 1919, the defendant filed answers to the complaints. Hence it is contended by the defendant that, inasmuch as the suits were filed within a year after the date of the issuance of the policies and the defendant answered within the time allowed to do so under the statute, the allegations of its answer related back to the date of the filing of the complaints, and constituted a contest by it within the period of time named in the incontestable clause.

The forms of insurance policies are prepared by the company, from its previous knowledge and experience, and, where the language used is ambiguous hr doubtful, it must be given the strongest interpretation against the insurer which it will reasonably bear. Eminent Household of Columbian Woodmen v. McCray, 156 Ark. 300.

We have already seen that the incontestable clause is held valid, not for the purpose of upholding fraud, but for the purpose of shutting off expensive and harassing defenses based upon fraud after the lapse of a reasonable time. This view does not exclude consideration of fraud, but allows the parties to fix by stipulation the length of time within which the fraud of the insured can operate to deceive the insurer. Incontestable means not contestable. A contest, in law, implies an adversary proceeding in which matters in .controversy may be settled by the courts upon issue joined. The great body of policyholders are persons who are not learned in the law and who have no knowledge of the judicial construction of pleadings.

In the application of the rule just announced, we think the natural and most reasonable view is to hold that the insurer has not contested the policy until it has acted in the premises. The contract provides that the policy shall be incontestable after one year, and no action on the part of the insured or of the beneficiary can relieve the company of its duty to act. In order to contest the policy it was required to file an answer to the suit brought by the beneficiary within one year, or to have instituted an action of its own in equity to cancel the policy on the ground of fraud. In short, we are of the opinion that, construing the clause in the light most favorable to the insured, no contest was. made in the case at bar until the insurance company filed an answer, in which it averred that the contract should be set aside on the ground of the fraud of the insured in procuring it. Having waited until a year had elapsed before it elected to contest on this ground, the company is barred of relief under its own contract.

The judgment will therefore be affirmed.

McCulloch, C. J.,

(dissenting). The incontestable clause in an insurance policy is valid, according to the great weight of authority, as shown by the numerous cases cited in the opinion of the majority. The present case does not, however, involve that question, but the particular question involved is whether or not the death of the insured within the contestable period affects the operation of the provision so as to permit the insurance company, after the expiration of tlie time specified in the policy, to plead, in an action instituted by the beneficiary, defenses which would otherwise be cut off by the incontestable clause, or whether liability under the policy must be actually contested by proceeding in court within the time specified, regardless of the time of the death of the insured. We have already decided that precise question in the recent case of Jefferson Standard Life Insurance Co. v. Smith, 157 Ark. 499, which is, in effect, overruled by the majority in the present case. This question has arisen in but few cases, and has been decided in accord with the present view of the majority of this court in the States of Illinois, Indiana, Missouri, Oklahoma, and North Carolina, and by the Supreme Court of the United States. Monahan v. Metropolitan Life Ins. Co., 283 Ill. 136; Ebner v. Ohio State Life Ins. Co., 69 Ind. App. 32; Lavelle v. Metropolitan Life Ins. Co., 238 S. W. (Mo. App.) 504; Reliance Life Ins. Co. v. Thayer, 203 Pac. (Ok.) 190; Hardy v. Phoenix Mutual Life Ins. Co., 104 S. E. (N. C.) 166; Mutual Life Ins. Co. v. Hurni Packing Co., 260 U. S. 712.

The Indiana and Missouri decisions were not rendered by courts of last resort, but by intermediate courts. The Supreme Court of Minnesota has repeatedly held to the contrary, and in accord with our own decision in Jefferson Standard Life Ins. Co., v. Smith, supra; Bankers’ Reserve Life Ins. Co. v. Omberson, 123 Minn. 285; Mutual Life Ins. Co. v. Stevens, 195 N. W. (Minn.) 913.

The last of the Minnesota cases cited above is identical with the facts in the Jefferson Standard Life Ins. Co. v. Smith, supra, and cites the Smith case with approval. In that case the Minnesota court said:

“This brings us squarely to the real question in the case. Is it necessary for the insurer to bring an action before the expiration of the two years, in order to avail himself of the defense set out in the complaint? Does the death of the insured interrupt the running of the two-year period so as to preclude the insurer from asserting the defense of fraud in an action by the beneficiary after the expiration of the fixed period? The better weight of authority as well as of good reason seems to be that the death of the insured fixes the right of the parties under the incontestable clause. * * * We are of the opinion and hold that the incontestability clause ceased to be operative at the deatli of the insured within the two-year period, and fixes the rights of the parties, and that the insurer may avail itself of the defense of fe^ud in an action to recover on the policy when it is brought, even after the expiration of the two-year period.”

If we had not already decided the question, I would be willing to follow the weight of authority, notwithstanding my views to the contrary on the construction of this clause of the policy; but, since we have deliberately taken a position on the question, I think we should adhere to it. I am firmly convinced that our decision in Jefferson Standard Life Ins. Co. v. Smith is sound, and that it adopts the true logic of the situation, which is aptly expressed in the opinion in that case, as well as in the Minnesota case of Mutual Life Ins. Co. v. Stevens, supra. It is undoubtedly a rule of almost universal application, and one often announced by this court, that the language of an insurance policy is the selection of the insurance company, and, in case of ambiguity, should be given the strongest susceptible interpretation against the company, but that doctrine should not be pushed to the extent of giving- a forced or unreasonable interpretation. The Word “incontestable” in a policy should be interpreted in its popular sense as referring to a judicial contest of liability in accordance with settled rules of legal procedure, so as to give the insurer the right, during the whole of the specified period, to contest the policy in such mode of procedure. In fact, it is an elemental -principle of remedial procedure that a court of equity will not assume jurisdiction when there is a complete and adequate remedy at law, and it is equally well settled that’, a court of equity will not afford- relief in the cancellation of an executory contract for the reason that the remedy at law in the enforcement of liability under a contract or in defense against liability thereunder is adequate. 1 Pom. Eq. Jur., § 221; Ins. Co. v. Bailey, 13 Wall. 606; Cable v. U. S. Life Ins. Co., 191 U. S. 288; Riggs v. Union Life Ins. Co., 129 Fed. 207; Johnson v. Swanke. 128 Wis. 68; Druon v. Sullivan, 66 Vt. 609; Mutual Life Ins. Co. v. Stevens, supra.

A policy of insurance is an executory contract until the death of the insured, and a court of equity will afford relief as long as it is merely executory, but it becomes an executed contract on the death of the insured — fully performed by the insured — and the remedy for its enforcement or in defense against liability thereunder is complete at law. The death of the insured therefore fixes the rights of the parties, and, as said by the Minnesota court, “the insurer may avail itself of the defense of fraud in an action to recover,on the policy when it is brought.” It is a mistake to say that the death of the insured before expiration of the contestable period, and the possibility of delay beyond that period from the commencement of an action by the beneficiary to recover on the policy, introduces a new element into the controversy which lessens the adequacy of the legal remedy of the insurer so as to call for the interposition of a court of equity. The legal remedy need not be immediate to be adequate, but, on the contrary, it is adequate if it can be invoked against defense for liability when asserted.

The effect of the decision of the majority is, I think, to alter the terms of the contract by shortening the contestable period, and to deny the insurer the right reserved in the policy to contest liability within a year from its date. In the present case the insured died more than four months before the expiration of the contestable period, and this action was instituted by the beneficiary two days béfore the expiration of that period. Appellant filed its answer within the time allowed by statute, denying liability on the ground of fraudulent misrepresentation of the insured, which answer related back to the filing of the complaint. I think that the defense was presented in apt time, and that the incontestable clause did not apply.

Mr. Justice Smith concurs in these views.


author: Smith, J.

text:
    Tallman v. Union Loan & Trust Company.
    Opinion delivered December 24, 1923.
    1. Contracts — what law governs. — Contracts are governed by the law of the place where they are made, unless they, by their terms, are to be performed elsewhere, in which case they are governed by the law of the State in which they are to be performed.
    2. Usury — note held to be Arkansas contract. — Where a note was executed and payable in this State, it is governed by the laws of this State as to usury.
    3. Usury — payment op commission. — Where a borrower paid the lender 5 per cent, for advancing the money and executed a note for interest at 10 per cent, per annum, the note was usurious, and neither principal nor interest can be recovered.
    Appeal from Arkansas Chancery Court, Northern District; John M. Elliott, .Chancellor;
    reversed.

      George G. Lewis, for appellant.
    The note was signed, dated, delivered, made payable and the consideration paid in Arkansas, and it was therefore an Arkansas contract and governed by the laws of Arkansas. 39 Cyc. 899; 8 C. J. 92; 33 Ark. 645. The assignee of the note has no greater right than the payee. 104 Ark. 488. Even if the transaction was controlled by the laws of Indiana, it would still be usurious under the law of that State. See the rule laid down in 39 Cyc. 908, under such circumstances. To hold that such contracts were valid, even though valid in the State where made, would render the usury law of this State inoperative and useless. 8 L. R. A. 170. Knowledge of the borrower that usury was being exacted does not make him particeps crimmis and estop him from pleading usury. 135 Ark. 582.

      G. E. Pettit and W. A. Leach, for appellee.
    The transaction was an Indiana transaction. There an excessive rate of interest does not render the contract void. A lean valid under the law of a State where made is valid here, even though usurious. 107 Ark. 73; 70 Ark. 493; 67 Ark. 252. The proposition to borrow the money was accepted in Indiana and the contract consummated there by that act. See 60 Ark. 269; 44 Ark. 220. The intention of the parties controls, and that intention was plain that the contract was an Indiana contract. See Wharton on Conflict of Laws, § 510a, 510b, 510c. See also 226 S. W. 210; 39 Cyc. 897; 93 Am. Rep. 333; 26 A. S. R. 481; 37 Am. Rep. 533; 143 Mass. 129. Citations covering the general principles pertaining to the efforts of courts to arrive at the real bona fide intention of the parties may be found at 39 Cyc. 898; 1 Wall. 298; 45 Fed. 743; 39 Cyc. 900-907; 39 Cyc. 891-2, 896, 897.
   Smith, J.

This is a suit by appellee against appellant to recover on the following’ promissory note:

“$6,000 Stuttgart, Ark., June 8, 1921.
“One year after date I promise to pay to the order of A. P. Rice six thousand and no/100 dollars, for value received, payable at the First National Bank of Stuttgart, Ark., with interest from date at the rate of ten per cent, per annum until paid. Demand, notice of protest and non-payment waived by makers and indorsers.
“E. Tallman.”

Indorsements: “A. P. Rice.”

There was a prayer also for the foreclosure of a lien upon $6,200 of notes pledged as collateral to the principal note. The note was assigned to appellee, and the answer denied the .assignment was for value and in the usual course of business, and pleaded usury. Thereafter an amendment to the complaint was filed, alleging that the note evidenced an Indiana contract. There was a decree in favor of the plaintiff, and the defendant, the maker of the note, has appealed.

The testimony established the following facts, much of which is undisputed: Appellant is a resident of Stuttgart, Arkansas, and desired to borrow some money. Accordingly, he wrote a letter to M. F. Smith, his cousin, who resides in Cleveland, Ohio, and asked him to negotiate a loan. Smith submitted the proposition to Rice, a resident of Indiana, who stated that he had some money which he would loan for ten per cent., after first deducting five per cent. Upon being advised of the terms upon which. Rice would make the loan, appellant wrote Rice the following letter:

“Mr. A. P. Rice.
“Dear sir: In accordance with the recent correspondence had through Mr. M. F. Smith, I hand you herewith my two blank notes, one for $5,000 and one for $6,000, each due one year after date. I also hand you two collateral notes * * ' I should like to have $6,000 instead of the $5,000 mentioned in your letter of June 1. However, if you care to let me have only the $5,000, that will be all right. Please retain the two collateral notes and return whichever one of the other notes you prefer to take to the Exchange Bank of this place, together with a draft for the amount of same, less the agreed discount of five per cent. Your instruction to the bank will be, of course, to turn over the draft to me when I sign the note, which the bank will then return to you. I will, of course, see that the note is properly stamped. The reason I am handling the transaction in this way is that I do not know whether you prefer to accept the $5,000 or the $6,000 note. Yours truly,
“E. T ALUM AN.”
In reply Rice wrote the following letter: “I have decided to let you have the $6,000, and am forwarding draft Fort Dearborn National Bank, No. 21,626, for $5,750, also your note for $6,000, to the Exchange Bank, Stuttgart, Ark., with the instructions to turn this draft over to you on receipt of the inclosed note signed and stamped by you.”

Appellant called at the bank, and signed and delivered the note to it, and the.bank turned the draft over to him.

It was developed that some years ago appellant had indorsed a note, and that he and the maker thereof pleaded usury, when sued to enforce payment, and appellant admitted that he had a general knowledge of the usury laws, and he also testified that, in executing the note, it was his purpose to execute a valid obligation. It was shown also that Rice had never been in Arkansas, and that this was the only transaction he had ever had in this State.

The decision of the court below is defended upon the ground that the transaction was an Indiana transaction, and therefore controlled by the laws of that State. The court below accepted this view, and rendered a decree for the $5,700 actually advanced and six per cent, interest thereon, it being the law of Indiana that, where a greater rate of interest than eight per cent, has been contracted for, the excess over six per cent, shall be deemed usurious, and may be recouped by the debtor when he is called upon for payment.

There are a number of interesting questions discussed in the excellent briefs in'the case, but we find the preliminary question of fact decisive of the case, and we discuss it only. It is conceded by both parties that this contract, like any other, is to be governed by the law of the place where it was made, if it is not, by its terms, to be performed elsewhere; but if it is to be performed in a State other than that in which it was made, the law of the State in which it is, by its terms, to be performed must govern.

We think the testimony establishes the fact that the note sued on is an Arkansas contract, and must therefore be governed by the laws of this State..

The note is dated at Stuttgart, and is payable at the First National Bank in that city. It was actually signed at Stuttgart, and there delivered to the bank as Rice’s agent, for transmission to him, and the money was actually paid to appellant in Stuttgart. It is true the money was paid by the bank in Stuttgart cashing a draft drawn on a bank in Chicago, but these circumstances are unimportant except in so far as they tend to show where the place of performance of the contract was. Prima facie the note is an Arkansas contract. It purports, on its face, to be a contract to be performed in this State, and we think the testimony does not show that the parties intended to contract with reference to the laws of another State/ and, if this be true, the note is tainted with usury, and there can be no recovery of either principal or interest. Nice testified that he'made the loan in Indiana, and gave as his reason for so stating that it was there that he accepted the proposition to make the loan, and that the preliminary negotiations occurred in that State; but the consummated contract is the note, and, as we have said, it is an Arkansas contract.

Counsel cite numerous cases to the effect that it is within the power of contracting parties to establish the place according to the laws of which the Validity and construction of a contract should be determined; and other cases to the effect that, when it is doubtful whether the contract is to be performed in one State, where its provisions are lawful, or in another State, where its provisions render it invalid, that it will be presumed that the parties intended that law to control which would uphold,‘rather than destroy, the contract.

Numerous eases dealing with these questions are collected in the note to Midland Savings & Loan Co. v. Beats, 150 Pac. 868, L. R. A. 1916-D, 745. But it is unimportant where the contract was made if it was to be carried out in this State, for, as was said by Mr. Justice Folger for the Court of Appeals of New York, in the case of Dickinson v. Edwards, 77 N. Y. 574, it would be a novel doctrine if the usury laws of a State could not be violated by a transaction agreed upon outside its bounds.

The note sued upon infringes the usury law of this State, and there can therefore be no recovery of either principal or interest. German Bank v. DeShon, 41 Ark. 331.

• The decree of the court below will therefore be reversed, and the cause remanded with directions to dismiss -the complaint.


author: Smith,

text:
    Thebo v. State.
    Opinion delivered December 24, 1923.
    Costs — necessity for bond in misdemeanors. — Where a sheriff served a warrant for the arrest of persons committing a misdemeanor in his presence, he was not required to file a bond for costs in a magistrate’s court, as required by Crawford & Moses’ Dig., § 327;9.
    Appeal from Desha Circuit Court; T. G. Parham, Judge;
    affirmed.

      H. II. Hays, for appellants.
    J. 8. Utley, Attorney General, John L. Carter, Wm. T. Hammock and Barclen Moose, Assistants, for appellee.
   Smith,

J. Certain residents of Arkansas City peti tioned the mayor of that city to enforce the Sunday baseball law “today and hereafter,” whereupon the mayor issued a warrant of arrest against eighteen baseball players, who were not named therein, and placed it in the hands of the sheriff of the county for service. The sheriff went to the park where the game was to be played, saw the managers of the respotive teams, and advised them that he had a warrant for their arrest if they played, and notified them that, if the game was played, to report at 6 p. m. on the following day at the office of the mayor. The game was played, and, at the appointed hour, an attorney representing the players appeared before the mayor, and moved to dismiss the prosecution because no bond for costs had been filed. This motion was overruled, and, after hearing certain testimony, a fine was imposed, and from that judgment an appeal was prosecuted to the circuit court.

In the circuit court the motion to dismiss was renewed, whereupon the State called the sheriff as a witness, and the facts above stated were developed, as well as the following additonal facts: After serving the warrant in the manner stated, the sheriff found a comfortable seat and witnessed the game, and that fact was developed in the trial before the justice of the peace. On his cross-examination the sheriff testified, however, that the arrest made by him was made under the warrant, and not because an offense had been committed in his presence, and that, after the game, he said nothing to any player, nor did he report to the mayor that he had seen the game, and that he went to the mayor’s office to make return of the warrant, and while there he was called as a witness, and testified that he saw the game, but he also testified that he did not originate the prosecution. The motion to dismiss for want of bond for costs was overruled by the circuit court, and a fine imposed.

Reversal of the judgment of the court below is asked upon the ground that a bond for costs should have been given, as required by § 3279, C. & M. Digest.

It is the opinion of the majority that the motion to dismiss was properly overruled. ■ It is an undisputed fact that the sheriff saw the game of ball played, and the offense was therefore committed in his presence, and by § 2904, C. & M. Digest, it was his duty to make the arrest, even though he had no warrant at all. The warrant issued and the arrest made sufficed to bring the parties into court, and this the sheriff should have done, even though he had no warrant, and, when the officer is under this duty, no bond for costs is required in the prosecution. In such .cases the officer is not a prosecutor within the meaning of § 3279, supra. This section of the Digest provides that the prosecutor, or some person for him, in cases less than a felony, in the justice and other inferior courts, shall give security for the payment of all costs which may accrue in such prosecution. The purpose of this section of the statute is to prevent reckless prosecutions, and to require the person who seeks to set the machinery of the criminal law in motion to give security for costs if the prosecution thus begun is not sustained. But this section does not apply to arrests made by peace officers for offenses committed in their presence, it being their duty, under the statute, to make arrests at the time.

It is the opinion of the majority that the arrest in this case is to be treated like any other arrest made under defective process. There was an arrest which brought the parties into court, and an arrest should have been made by the sheriff, whose right to do so was not dependent upon the existence of a bond for costs, and, the parties having been brought before the court, it was unimportant that the process under which this was done was defective. The purpose of an arrest, whether by warrant or otherwise, is effected when the accused is brought into court, and it is therefore unimportant that the process whereby this was done was defective, and the fact that the sheriff did not intend to make the arrest because the offense was committed in his presence is also unimportant, because it was in fact committed in his presence, and the violators of the law were in fact brought into court. Mayfield v. State, 160 Ark. 474, and the cases there cited. In any case where the arrest was made by an officer who saw the offense committed, no bond for costs can be exacted as a condition precedent to a hearing of the cause, and the motiou to dismiss was therefore properly overruled. .

It is the opinion of Justice Hart and the writer that the bond for costs should have been required.

Judgment affirmed.