text:
    Wood v. Jones.
    Opinion delivered February 6, 1922.
    1. Trial — direction of verdict — conflicting evidence. — Where the evidence in the issue in a case was conflicting, it was error to direct a verdict for either party.
    2. Sales — fraudulent representations. — One who has been induced to purchase property by fraudulent representations of the vendor has the right to recover in a court of law the damages which he has sustained thereby, but in order for representations to he fraudulent in law they must he material to the-contract or transaction and must be made by one who either knows them to be false, or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.
    Appeal from Polk Circuit Court; James S. Steel, Judge;
    reversed.

      Minor Pipkin and Lake & Lake, for appellant.
    Appellant made a case for the -jury, testing tbe evidence in accordance with, the established rule of this court, and it was therefore error to direct the verdict for the defendant. 107 Ark. 158; 282 S. W. (Ark.) 23.
    The trial court in directing the verdict instructed them upon the weight of the evidence in telling them that the appellee had good cause for repudiating the contract. § 23 art. 7, Const. The instruction was wrong in principle in saying that appellant must show that appellee ¡abandoned the contract without good cause. The burden was on the appellee to show that he abandoned the contract for good cause. Fraud in the making of a contract is an affirmative defense and must be established by a preponderance of the evidence. 78 Ark. 87; 108 Id. 415; 33 Id. 425.

      If the instruction was not erroneous in the respect indicated, it was nevertheless error to fail to submit to the jury the question whether or not the appellee breached the contract without good cause. Appellant’s testimony was to the effect that the quantity of goods on hand was not made a part of the deal. If that is true, and for the purposes of this case it must be regarded as true, any false representation with reference thereto was immaterial, and afforded no excuse for abandoning the contract. 95 Ark. 131; 26 Id. 28; 31 Id. 170; 8 Id. 146. The alleged false representations as to quantity was a mere expression of opinion, as shown by the evidence, and cannot be set up by appellee as an excuse for repudiating the contract. 95 Ark. 378; 20 Cyc. 17; 9 Ove. 416. and cases cited.
    The strongest inference that can be drawn from the evidence is that the quantity of goods had nothing to do with the deal. There was therefore a question for tlie jury on the issue of fraud. 24 Ark 222; 30 Id. 380; 20 7d. 216. See Gotner v. Bangs, 137 Ark. 397, for rule as to representations that will be held as fraudulent in law; also, 123 Ark. 492; 73 Id. 542; 99 Id. 438; 101 Id. 95; 104 Id. 396.
    Under the facts of this case the rule of caveat emptor applies.

      Norwood é Alley, for appellees.
    The trial court properly directed the verdict. Appellant’s own admission show that he perpetrated a legal fraud upon appellees. Eepresentations are fraudulent in law when made by one who either knows them to be false, or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury. 101 Ark. 95; 73 Id. 542. Appellant cannot shelter himself behind the claim that he was merely expressing an opinion as to what the stock would invoice. He was bound to know that Jones would rely upon that opinion or he would not have made the inquiry. 12 E. O. L. 15, 16; Id. 93.

      The rule caveat emptor does not apply. Where the seller has peculiar knowledge of the matter, and makes the false representation in order to induce, and thereby does induce, the buyer to rely upon his false statement, he will not be heard to say that the buyer should have ascertained the truth. 99 Ark. 438.
    It was the court’s duty in this case to direct the verdict. 104 Ark. 267; 97 Id. 438; 69 Id. 562; 73 Id. 148; 55 Id. 12; 85 7J.-101; 86 Id. 140; 85 Id. 1; 102 Id. 435; 113 Id. 380; 121 Id. 23.
   Humphreys, J.

This suit was treated by the parties as one, in effect, instituted by appellant against appellees in the Polk Circuit Court to recover $1000 as liquidated damages for the breach by appellees of a contract for the sale and purchase of a stock of merchandise owned by appellant and situated in Mena,' Arkansas, at the price of 15 per cent, above the cost and carriage of said goods. • It was alleged that each party delivered a check for $1000, payable to the other, to the Farmers’ & Merchants’ Bank, to cover the damages accruing to either in case the other refused to carry out the deal; that pursuant to the agreement the front doors of the building in which the goods were located were closed for three days for the purpose of taking an invoice of the stock; that the back doors were left open to accommodate a portion of the retail trade; that appellees took charge of the cash register and kept the proceeds of the invoiced goods separate from the proceeds of those which had not been invoiced; that when the invoice was practically completed the appellees, without good and sufficient cause, refused to proceed with the performance of the contract; that appellant demanded the check of $1000 deposited in the bank to cover the damage accruing to him, the payment of which was refused at the instance and direction of the appellees, whereupon this suit was instituted.

. Appellees filed an answer, admitting the contract, the invoice of- the stock pursuant thereto, and their refusal to proceed with the performance thereof, but denied that they refused further performance of the contract without excuse or justification, and interposed as a defense to the further performance thereof misrepresentations of appellant as to the amount of merchandise, charging and alleging that, as an inducement to the contract, appellant represented to them that the stock would invoice about $30,000; that in reliance upon this representation they entered into the contract for the pur-' chase of the stock of merchandise and organized a corporation with a capital stock of $25,000, to handle the proposition; that they offered to comply with the contract by accepting approximately $30,000 worth of merchandise at the agreed price, which appellant refused to sell to them. Appellees also, by way of cross-bill, alleged a breach of the contract on the part of appellant in refusing to sell them $30,000 worth of said merchandise, and prayed judgment over against them for the amount of $1000, deposited in the bank to cover their damages.

Appellant filed a reply to the answer and cross-bill, denying that he had misrepresented the amount of the merchandise, or that he had breached the contract by his refusal to sell them $30,000 worth of his merchandise.

The cause was submitted upon the pleadings and evidence. At the conclusion of the evidence the court found that neither party was entitled to recover damages from the other, and peremptorily instructed the jury to return a verdict for the defendants (appellees) which' was done, and a judgment rendered in conformity therewith, all over the objection and exception of appellant. From the verdict and judgment an appeal has been -duly prosecuted to this court.

It is reflected by the record that appellee Jones, with the other appellees (except the bank) as his associates, nurchased a stock of merchandise in Mena, Arkansas, from appellant at the price of 15 per cent, above the cost and carriage of said goods, the total price thereof to be determined by inventory of the stock; that appellant and appellees T. JR. Jones each deposited his check in the Farmers & Merchants Bank, at Mena, for $1000 to cover the damages to the other in the event that either refused to carry out the deal; that they subsequently closed the front doors of the building and proceeded with the inventory; that the back doors were left open for customers to enter and purchase goods. That appellees took charge of the cash register and kept the proceeds of the goods which had been inventoried separate from the proceeds of other sales, and placed the money each night during the progress of the inventory in the large safe used in connection with the business; that when the inventory was about completed, and it was ascertained that the entire stock, including a lot of hats and fixtures which had not been inventoried, would amount to approximately $50,000, the appellees, through their spokesman, T. R. Jones, announced that the stock had invoiced largely in excess of the invoice value of the stock of merchandise represented to them by appellant; that they had purchased the stock upon the representation of appellant that he had approximately $30,-000 of goods on hand; that they offered to take $30,000 in merchandise, according to the inventory, which appellant refused on the ground that he had sold all, and not a part, of the stock to them.

The evidence is in sharp conflict upon the issue of whether the amount of merchandise on hand was misrepresented to appellees by appellant, and whether the appellees purchased the stock in reliance upon the alleged misrepresentation. The evidence of appellees upon this particular issue was to the effect that they purchased the stock in reliance upon the representation of appellant that it would invoice approximately $30,000, and in order to handle the proposition organized a corporation and issued stock for $25,000 and arranged to borrow $10,000 additional; that, in order to be certain as to the amount of .merchandise on hand, Mr. Jones, in the presence of two of his associates, inquired of appellant as to the basis for his statement that the stock of merchandise would inventory approximately $30,000, and was told by appellant that on the first of January he had taken an inventory which totaled about $34,000; that after the taking of the inventory he had sold more goods than he had purchased. On the other hand, the testimony of appellant was to the effect that in his opinion or according to his best judgment, the stock of merchandise would inventory between thirty and thirty-three thousand dollars; that the invoice totaling $34,000 taken on the first of January preceding the sale was not accurate, and was based upon estimates as to the quantity of many of the articles rather than measurement thereof; that he did not know whether his purchases after the taking of the inventory in January were greater or less than the sales; that at least two of the appellees were familiar with the stock, having been employees of appellant in the operation of said business; that they purchased the stock in reliance upon their own judgment and familiarity therewith and after an inspection thereof.

There was much evidence introduced pro and con upon the issue of whether the quantity of goods was a material fact entering into the deal. We deem it unnecessary to set it out in detail. It was in conflict, and, when viewed in the most favorable light to appellant, was sufficient to carry the issue to the jury for determination under proper -instructions.

The general rule of law applicable to cases of this character was stated in Joyce v. McCord, 123 Ark. 492, as follows: “It is well settled that one who has been induced to purchase property by fraudulent representations of the vendor has the right to recover in a court of law the damages which he has sustained thereby, but, ‘in order for representations to be fraudulent in law, they must be material to the contract or transaction and must be made by one who either knows them to be false, or else, not knowing, asserts them to be true, and made with the intent to have the other party act upon them to his injury, and such must be their effect.’ ” This rule was reannounced in the recent case of Cotner v. Bangs, 137 Ark. 397.

For the error in peremptorily instructing a verdict for appellees, the judgment is reversed, and the cause remanded for a new trial.


source: Caselaw Access Project

author: McCulloch, C. J.

license: Public Domain

text:
    Henry v. State.
    Opinion delivered February 13, 1922.
    1. Criminal law — admissibility of confession. — A confession made by the accused was not rendered incompetent by the fact that accused was not previously warned that it might be used against him, nor by the fact that the officer to whom it was made stated, after it was made, that under certain circumstances it might be lighter on the accused.
    2. Homicide — murder in attempt to rob — instruction.—Where an indictment for murder charged that the offense was committed in an attempt to rob deceased, an instruction that if defendant, in an attempt by defendant or by defendant and another to rob deceased, shot and killed him, the jury should find him guilty of murder in the first degree, was correct, as no other offense was charged than murder in the first degree.
    3. Homicide — conspiracy to rob — liability for killing. — An instruction that if defendant and some other person conspired to rob deceased, and in carrying out such purpose the other shot and killed deceased, and defendant was present at the same for the purpose of aiding in the robbery, then the defendant would, be guilty as if he had fired the shot, even though the original design or purpose of the conspirators did not contemplate killing deceased, held correct.
    4. Homicide — -variance between indictment and proof. — There is no variance between an indictment alleging that accused killed deceased in an attempt by him and another to rob deceased and proof that the killing was done by another who was jointly engaged with defendant in the attempt to rob deceased.
    5. Criminal law- — instruction as to confession. — Where the court admitted evidence of a confession by defendant, though the evidence would have justified a finding that it was procured by coercion or duress, it was error to refuse to instruct the jury that the alleged confession, to be competent, must have been freely and voluntarily given without duress or promise of leniency, and that the jury could consider all of the circumstances and give it such weight as they think proper.
    Appeal from Garland Circuit Court; Scott Wood. Judge;
    reversed.

      S. W. Garratt and Wm. G. BouicJ for appellant.
    Confessions must be considered in their entireties. 69 Ark. 599. Confession should not be received unless voluntarily made. 50 Ark. 501. Where improper influence has been used to obtain a confession, it will be presumed that the confession flows from that influence. 109 Ark. 322.
    The court erred in instructing the jury that by reason of the fact that, the indictment alleged that the killing was done in the attempt to rob, the only verdict that could be rendered was murder in the first degree or acquittal. 69 Ark. 107.
    Instruction No. 3 should not have been given; it was not in keeping with the law. 58 Ark. 47; 104 Ark. 245.
    The court erred in refusing to give the instruction asked by defendant, dealing with the confession. 107 Ark. 568.

      J. S. Utley, Attorney General; Elbert Godwin and W. T. Hammock, Assistants, for appellee.
    The confession was voluntarily made. 34 Ark. 649. Whether or not the confession was voluntarily made was a question for the trial court, and his findings will not be disturbed unless it appears that he abused his discretion. 74 Ark. 397; 107 Ark. 568; 94 Ark. 343; 99 Ark. 453.
    A confession made without caution to the accused that it might be used against him, is not incompetent unless invalidated by statute. 107 Ark. 568; 114 Ark. 472; Logan v. State, 150 Ark. 486.
    If the'defendant was guilty at all under the indictment, he was guilty of murder in the first degree. C. & M. Digest, § 2343.

      Under tlxe indictment and evidence it was proper for the court to refuse to instruct the jury on murder in the second degree. 88 Ark. 447; 36 Ark. 284; 50 Ark. 506; 52 Ark. 345.
    It was not error for the court to instruct the jury that all persons present aiding and abetting or ready and consenting to aid and abet in the commission of a felony should be deemed principals, and indicted and punished as such. C. & M. Dig., sec. 2311; 58 Ark. 47; 10 Ore. 505; 149 111. 612; 90 Mo. 220; 11 Cush. 428.
    Defendant did not request an instruction on circumstantial evidence, and it is too late to complain now. 89 Ark. 300; 110 Ark. 567; 129 Ark. 324.
   McCulloch, C. J.

Defendant was convicted under an indictment charging murder in the first degree in the killing of one Aaron Dill with intent to rob. The language of the indictment (omitting the caption and formal part) is that the accused “did unlawfully, wilfully, feloniously and with malice aforethought, and after deliberation and premeditation and with a felonious intent then and there to rob Aaron Dill, did assault, 'kill and murder the said Aaron Dill by shooting him, the said Aaron Dill, with a certain gun, which he, the said Ezekiel Henry, then and there held in his hands, the said gun being then and there loaded with gunpowder and bullet, against the peace and dignity of the State of Arkansas. ’ ’

Dill was found dead in the city of Hot Springs, on a street near his home, on a certain Sunday night about 7:30 o’clock. 'His death resulted from a bullet wound in the right temple. The body was found in a few moments after he was shot, several witnesses having heard the shot fired. He was lying on his back, and the officer who first examined the body found a .45 caliber pistol inside of his vest, and his right hand was extended in under his vest. The lighted stump of a cigar found in his hand indicated -that he was smoking at the time, and his clothing was burned by the lighted cigar, which was not entirely extinguished when the officer examined the body.

One witness' testified that she lived close to Dill’s home, that she heard the shots fired about 7:30 o’clock and saw two men running from the scene of the shooting; that the men separated, one going up Palmetto Street and the other going up Grove Street. Another witness living nearby testified about hearing the shooting and then seeing two men running from the spot immediately after the shooting. Neither of these witnesses could identify either of the persons that they saw running from the scene of the killing. Another witness, Bell by name, testified that he was acquainted with appellant, and that on the night of the killing he met appellant and another man on the street close to the spot where Dill was killed and recognized appellant, and that shortly afterwards he' heard the report of a gun, and then saw appellant and the other man running from that direction. This witness gave a description of the manner in which appellant and his companion were dressed. Still another witness testified that she saw two men answering the description given by Bell running from the scene of the killing immediately after the shot was fired. This witness stated that she was not personally acquainted with appellant, but she described the manner in which appellant was clothed, and said that she knew that he was a man commonly called “Zeik,” — appellant’s name being Ezekiel.

The State then proved by William Brandenburg, the city detective, a confession by appellant made to him, and the confession was introduced in evidence over the objection of appellant’s counsel. In this confession, which had been reduced to writing by a stenographer and which was elicited by questions propounded, appellant stated, in substance, that just before the killing of Dill he went to the home of John Davis, and that Davis there made a proposition to him that they would go out together' and “get some jack,” to which offer he finally acceded; that he and Davis walked down a certain street together and met Dill, and that Davis commanded Dill to “hands up.” He stated that he (appellant) then started to run away, and as lie did so lie heard the shot tired. He testified that Davis had a .45 caliber pistol, which he carried when he left home.

The principal ground urged for the reversal of the judgment is that the confession of appellant was obtained by promises made to him by witness Brandenburg, and that it should have been excluded.

Before introducing the confession, Brandenburg was examined and cross-examined concerning the Circumstances and conversation which led up to the confession. He testified that ho took appellant to the office of the chief of police and remained in the room with him, holding appellant’s hand. He stated that he used no violence, and was merely holding appellant’s hand in an affectionate way, and that in this attitude they talked together for a considerable time, and thát appellant broke down and told the whole story about his participation in the killing of Dill. Brandenburg was asked the direct question whether or not he had used any violence or threat or any kind of a promise to obtain the statement from appellant, and he replied that he had not done either of those things, but that, after appellant had made the confession, he said to apellant that if they caught the other man (Davis) and it was proved that Davis committed the crime, .it might be lighter on him (appellant). Brandenburg was positive in his statement that this was said to appellant after he had made the confession

The appellant did not testify, and no other testimony was introduced as to the confession.

We think that under the circumstances the court was justified in permitting the confession to go to the jury. The fact that appellant was not previously warned of its use against him did not render the confession incompetent. Greenwood v. State, 107 Ark. 568; Dewein v. State, 114 Ark. 472; Logan v. State, 150 Ark. 486. Nor was the alleged confession rendered incompetent by the fact that the officer to whom it was made stated, after it was made, that under certain circumstances it might be lighter on appellant. • The confession being already made, it was competent as proof of appellant’s guilt, and nothing which thereafter occurred could have rendered it incompetent.

It is next contended that the court erred in giving the following instruction:

“If you believe from the evidence in this case beyond a reasonable doubt that the defendant in G-arland County, Arkansas, in an attempt made by the defendant, or the defendant and some other person acting together, to rob the deceased, Aaron Dill, shot and killed the said Aaron Dill with a pistol or gun, then you should find the defendant guilty of murder in the first degree.”

The indictment in this case was preferred under the statute (Crawford & Moses’ Digest, § 2343) which declares that murder “committed in-the perpetration of. or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny shall be deemed murder in the first degree.” In Rayburn v. State, 69 Ark. 177, the court held that under an indictment charging the crime of murder committed by an act of wilful, deliberate, malicious and premeditated killing, without charging that the killing was done in the perpetration, or in the attempt to perpetrate, one of the felonies mentioned in the statute, there could be no conviction of murder in the first degree without proof of the elements of the crime charged in the indictment, and that the giving of an instruction identical with the one quoted above was erroneous and prejudicial. In the present case, however, it will be observed that the indictment charges the commission of the offense in the attempted perpetration of the crime of robbery, and, as held in the Rayburn case, supra, this of itself constitutes murder in the first degree without proof of the other elements mentioned in the statute. In other words, the statute itself makes homicide committed in the perpetration of, or the attempt to perpetrate, one of the felonies mentioned, murder in the first degree, and the court was correct in so declaring the law to the jury. Under the indictment, no other offense was charged than murder in the first degree, and, unless the proof was sufficient to establish that degree of homicide, the accused was entitled to an acquittal.

Again, it is urged that the court erred in giving the following instruction:

“If you believe from the evidence beyond a reasonable doubt that the defendant and some other person conspired together to rob some person, and pursuant to such conspiracy or agreement the defendant and such other person held up Aaron Dill in Garland County, and such other person commanded Dill to throw up his hands, and in carrying out the purpose of robbery such other person shot and killed Dill, and at the time Dill was killed the defendant was present at the scene of the killing for the purpose of aiding in the robbery or attempt to rob the said Dill, then the defendant would be guilty the same as if he himself had fired the shot. This wouid be true, even though the original design or purpose of the defendant and such other person did mot contemplate the killing of Dill or any other person.”

This instruction was correct under the law as declared by this court in Carpenter v. State, 62 Ark. 286, and Hunter v. State, 104 Ark. 245. Under our statute, the appellant was properly indicted as a principal, he being present, aiding and abetting, and, even though the indictment charged that he did the killing, there was no variance by the proof that the killing was done by another who was jointly engaged with the appellant in the enterprise. This was true, even though the conspiracy did not expressly contemplate the commission of the crime of murder. The court, in another instruction, told the jury that if .appellant did not intend to rob Dill or to aid Davis in the robbery, he would not be guilty under the indictment.

Instruction No. 3 was along the same line, and, though objected to by appellant’s counsel, we find that it was a correct declaration of the law.

Error of the court is assigned in refusing to give a requested instruction telling the jury that the alleged confession of appellant, in order to he competent, must have been freely and voluntarily given, without duress or promise of leniency, and that the jury could “consider all of the circumstances surrounding the party at the time the confession is made and give it such weight as you think proper under all the circumstances.” This instruction was refused, and the court did not give any other instruction on that subject. We are of the opinion that appellant was, under the state of the proof presented' in the record, entitled to an instruction submitting to the jury the question whether or not the confession was freely and voluntarily given, without any coercion or promises of leniency. The officer who received the confession testified positively that he did not coerce appellant in any way, and that he did not hold out to him any hope of leniency or reward until after the confession was given. Still the jury might have found, under the circumstances, that there was a degree of coercion or duress which influenced appellant to such an extent as to render his confession incompetent evidence against himself. The testimony of the officer on this subject appears in the record as follows:

Q. After he had told you about it you told him if you caught Davis and it was proven that Davis did it, it might be light on him?

A. I did.

Q. Did you, or not, make him any promises or say anything to him that would indicate to him that it would be lighter on him, or that he would receive reward, or that he would be punished, or threaten him in any way or do any violence to him to get him to confess to you ?

A. Just as I stated, the only thing with regard to Davis.

Q. Just answer that question yes or no?

A. No.

Q. Well, how did you get him to confess?

A. I talked to him.

Q. Did you hold him by the hand as Sullivan said!

A. Yes.

Q. How were you holding his hand?

A. I just had hold of it.

Q. What did he.do, how did you get him to do it?

A. Well, I talked to him, and he finally broke down.

Q. Did you talk to him religiously, violently, or how?

A. I guess you would call it religiously.

Q. Mr. Brandenburg, tell the jury how it happened.

A. That is all. I talked to him, and he broke down and commenced crying and telling me about it after I was talking to him about an hour or two hours.

Q. Did he cry?

A. Yes.

Q. How were you holding his hand, violently or affectionately?

A. Well, affectionately, I guess.

Q. You were not trying to kill the negro?

A. No, I wasn’t.

Mr. Sullivan, the chief of police, testified that he walked into the office and found Brandenburg and appellant seated near a table with Brandenburg holding appellant’s hand, and that appellant was crying and telling Brandenburg about the killing. The following questions propounded to the witness, and his answers, appear in the record:

Q. How did he have him by the hand, in a violent way or in an affectionate way?

A. More in an affectionate way.

Q. Were they good friends and seemed to be confessing to a friend?

A. Yes.

The testimony was sufficient to justify the court in admitting it and in submitting it to the jury, but appellant, as before stated, had the right to have the jury consider the question whether or not it was a confession voluntarily made, and the court erred in' refusing to submit that question to the jury. Shufflin v. State, 122 Ark. 606; Thomas v. State, 125 Ark. 267.

For this error the judgment will be reversed, and the cause remanded for a new trial.


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

text:
    Doyle-Kidd Dry Goods Company v. Munn.
    Opinion delivered February 13, 1922.
    Process — exemption of member of legislature. — A member of the Legislature, while in attendance and in the discharge, of his duties at a session of the General Assembly, can be served with summons in a civil action to appear after the adjournment of the Legislature at a future date in a court of competent jurisdiction to defend in such court.
    Appeal from Pulaski Circuit Court, Second Division; Guy Fulk, Judge;
    reversed.

      Rogers, Barber & Ilenry, for appellant. '.
    Sec. 436, O. & M. Digest, provides for service of summons at any time or place, and there is no exception in favor of members of the Legislature. Such service does not violate any rule of public policy, as sec. 430, C. & M. Digest, provides for the continuance of such civil suit until 15 days after the adjournment of the Legislature. To exempt legislators from service of summons during session of Legislature would be to grant special privileges and immunities to a class or individuals. 21 E. C. L. sec. 47.
    No brief for appellee.
   Wood, J.

The appellant instituted this action against the appellee in the Pulaski Circuit Court. In his complaint the appellant asked for judgment in the sum of $2,558.04 on account for merchandise, alleged to have been sold and delivered to the appellee. Summons was issued, and the return of the sheriff thereon shows service on the 10th of March, 1921. The appellee entered an appearance only for the purpose of moving to quash the service. In his motion he alleged that he was a resident and citizen of Nevada County; that at the time the summons was served on him he was attending a session of the Legislature; that he was in the discharge of his duties as such member of the Legislature at the time, and was therefore privileged from the service of such process. The court heard the motion as on demurrer thereto and sustained the same. Judgment was entered quashing this service, from which is this appeal.

The question on this appeal is whether or not a member of the Legislature, while in attendance and in the discharge of his duties at a session of the General Assembly, can be served with summons in a civil action to appear after the adjournment of the Legislature at a future date in a court of competent jurisdiction, to defend such action in such court. Our statute (sec. 429, C. & M. Digest) exempts members of the Senate and House of Representatives from arrest for fifteen days before the commencement and after the termination of the session of the Legislature. But the statute provides that “nothing contained in the provisions of this act shall be so construed as to extend to cases of treason, felony, or breach of the peace, or to privilege any person named from being served at any time or place herein specified with a summons or notice to appear.” (Sec. 436, C. & M. Digest.) The statute also provides: “All proceedings in suits pending in any of the courts of this State in which any of the persons named in the preceding section are parties, should be stayed during the time aforesaid.” Among the persons named in the preceding section are members of the House of Representatives.

The action against the appellee is of that class that may be brought in any county in which the defendant or one of several defendants resides or is summoned. (Sec. 1176, C. & M. Digest). Under the express provision of § 436, supra, the appellee was not exempt from the service of summons. That privilege was not extended to him as in oases of arrest. We- have a statute exempting witnesses from suits in counties where they do not reside while going, returning, or attending in obedience to a subpoena (§ 4171, C. & M. Dig.) and on the ground of public policy this court extended the rule to include litigants while in attendance upon judicial proceedings in courts other than those of their residence. See Powers v. Arkadelphia Lumber Co., 61 Ark. 504; Martin v. Bacon, 76 Ark. 158.

In Paul v. Stuckey, 126 Ark. 389, we held that the rule of public policy which would exempt litigants from being sued in counties other than their residence while attending court in those counties, did not extend such exemption or privilege to attorneys while in attendance upon courts in the professional capacity as attorney and officer of the court. The reason for this is that such service of summons would not interfere with the orderly administration of justice. In that case we held that the reason upon which the rule is founded is that “it is to the public interest and for the public good that courts be untrammeled in their efforts to administer justice between parties to causes pending before them.” But no such rule of public policy, of course, could apply in the ease of members of the General Assembly. For under the statute above quoted (§ 430, C. & M. Digest) an action in which a legislator may be a party is stayed. In other words, a civil action in which the legislator is a party is stayed by virtue of the statute during the session of the Legislature and for fifteen days prior, and also fifteen days subsequent thereto. Therefore, any supposed grounds of public policy because of interference with the making of laws in the public interest are eliminated (by the express provision of the statute which holds in abeyance any proceedings instituted against a member of the Legislature during the time required for the performance of his duties as a lawmaker.

Since, under the statute, there can be no interference with the interest of the public in serving summons upon a legislator during the sessions of the General Assembly, we are not called upon to determine whether any public policy would be infringed in the absence of the statute. There is no necessity for our entering upon that interesting field of discussion in which there appears to be a contrariety of views in the adjudicated cases. See 21 R. C. L. 1303, § 47.

The trial court therefore erred in quashing the service, and its judgment is reversed, and the cause remanded, with directions to overrule the appellee’s motion to quash.

McCulloch:, C. J.,

(dissenting). I am entirely in accord with the view expressed by the majority that a member of the General Assembly is not exempt from service of civil process. There has never existed, either in England or in America, any declared public policy in favor of such exemption, which is confined to exemption from arrest. Our statute follows the common law in that respect. Crawford & Moses’ Digest, § 429 et seq. But that is not the real question presented for decision in this case. The question is: Can a member of the General Assembly be sued in the courts of the county in which the capital city is located, and jurisdiction of his person obtained by service of process while he is attending a session of the Legislature away from the county of his residence? In other words, can the presence of a' member of the General Assembly in attendance on a session be taken advantage of to obtain jurisdiction of his person? My answer is in the negative.

By the overwhelming weight of authority a suitor or witness in judicial proceedings cannot, while in attendance on such proceeding's outside of the county of his residence, be sued in another action and jurisdiction over him obtained. Our court is thoroughly committed to that doctrine. Powers v. Arkadelphia Lumber Co., 61 Ark. 504. In fact, our statute expressly affords such immunity to witnesses (Crawford & Moses’ Digest, § 4171). But in the case just cited this court extended the rule to suitors as well as to witnesses on the ground of public policy. Chief Justice Bunn, in delivering the opinion of the court, declared that a sound public policy was the basis of the rule announced, and he quoted as follows from the Supreme Court of Ohio in Andrews v. Lembeck, 46 Ohio St. 38:

“The question is one which profoundly concerns the free and unhampered administration of justice in the courts. That suitors should feel free and safe at all times to attend within any jurisdiction outside of their own judicial proceedings in which they are concerned and which require their presence, without incurring the liability of being picked up and held to answer to some other adverse judicial proceedings against them, is so far a rule of public policy that it has received almost universal recognition wherever the common law is known and administered.”

This court further said in that case that “the principle is not only assured while one is attending upon strictly judicial proceedings, but upon any tribunal whose business has reference to or is intended to affect judicial proceedings.”

Judge Works, in his treatise on Jurisdiction of Courts, said that “the immunity does not depend on statutes, but on public policy. ’ ’

Now, such being the rule of public policy with respect to attendance on judicial proceedings, why does it not with equal force and reason apply to attendance on legislative sessions — a coordinate branch of government? Is it not equally important, on grounds of public policy, that members of the General Assembly “should feel free and safe at all times to attend within any jurisdiction outside their own” upon sessions of the legislative body in which they are elected to represent their several constituencies ?

It seems to me that there can be no higher privilege than that of freedom from abuse of judicial process to secure civil jurisdiction over a member of the General Assembly outside of tbe county of bis residence. It is a wrongful attempt to obtain jurisdiction and constitutes, in effect, abuse of process. No court, save one, bas, so far as I can ascertain, beld to the contrary (Berlet v. Weary, 67 Neb. 75), and tbe reasoning of that court does not appeal to me.

Tbe Court of Appeals of Kentucky, in tbe case of Catlett v. Morton, 4 Litt. 122, held that members of tbe Legislature were not exempt from civil process in tbe county whele they attended the legislative session, but tbe decision was based entirely on the ground that members were not exempt from civil process. That court failed, as I think tbe majority of our court now fail, to note the difference between the question of exemption from process and the question of privilege from civil suit in a county outside of tbe county of tbe residence of tbe defendant.

Our statutes (Crawford & Moses’ Digest, § 1176) provide that a transitory civil action may be brought “in any county in which tbe defendant or one of several defendants reside or is summoned;” but it must be implied, if we give heed to any rules of public policy, that tbe summons must be served in a county where the party voluntarily goes — not where be is called in tbe high concern of public duty.

I am unable to escape tbe conviction that we ought to declare, out of consideration of sound public policy, that tbe presence of a member of tbe General Assembly at tbe capital of tbe !State, in attendance upon a legislative session, cannot be taken advantage of to acquire jurisdiction over him in a civil action away from tbe county of bis residence.


author: Wood, J.

text:
    Taylor v. Manley.
    Opinion delivered February 13, 1922.
    Wills — construction.—Where a will conveyed all the testator’s real property to a devisee “during her life and at her death to be equally divided between her brothers and sisters, I mean her legal heirs”, the intention was to convey a life estate to the devisee with remainder to her brothers and sisters, and not to issue of the devisee subsequently born.
    Appeal from St. Francis Chancery Court; A. L. Hutchins, Chancellor;
    affirmed.

      Mann & Mann, for appellants.
    The intention of the testator must be ascertained from the language of the whole instrument taken together, rather than from any particular form of words, and the will should be so construed as to give effect to that intention, so long as it violates no rule of law. Ill Ark. 54; 112 Id. 527; 126 Id. 53; 104 Id. 439. Tested by this rule, it is manifest that it was the purpose of the testator to give a life estate to Lorena Utley, with remainder over to her leg-al heirs. When the will was drawn and at the death of the testator, the legul heirs of Lorena Utley were her brothers and sisters; but afterwards she married and children were born to her. They are her legal heirs. Words & Phrases, vol. 5, p. 4064.

      Walter Gorman, for appellees.
    By the use of the words “I mean her legal heirs” the devise was brought within the rule in Shelley’s case,which is a rule of law and not of construction, and vested a fee simple title in the lands designated in the will. 58 Ark. 303; 105 Id. 558; 133 Id. 362; Washburn on Real Estate, 5th Ed., 651 and 653; Bouvier, vol. 4, p. 3057; L. R. A. 2, p. 455, and notes.
   Wood, J.

On the 11th day of July, 1889, E. C. Hughes executed his last will and testament, which, omitting the opening and closing paragraphs, contained the following provisions:

“I give and bequeath to my beloved wife, Martha Malvina, all my real estate and all my personal property after paying my just debts, to have and to hold as her property as long as shé lives. After her death, I give to each one of my nieces and nephews ten dollars.

“I give to my brother, J. J. Hughes, ten dollars.

“The balance of my personal property and all my real estate, consisting of the Linden farm, Jones place, the Casteel place, all in St.’Francis County, Arkansas, I give to Lorena Utley during her life, and at her death to be equally divided between her brothers and sisters, I mean her legal heirs.”

This action was begun by Mattie Alva Taylor in her own name and as next friend of ¡W. R. Taylor, Jr., and Alice R. Taylor, minors. The complaint set out the will and alleged that Martha Malvina Hughes, who was the wife of E. C. Hughes at the time he executed the will, died before the said testator, E. C. Hughes, and at the time the said E. C. Hughes executed the will and at the time of his death the next of kin of Lorena Utley, who was made defendant in the action, consisted of her mother, Mattie Hughes, her brother of the whole blood, John William Utley, her two brothers of the half blood, Freeman Easkey Patrick Hughes and Thomas Miers Hughes, and one sister of the half blood, Mary Elizabeth Hughes, now the wife of Enos Altman, all of whom are now living and of full age; that several .years after the death of Martha Malvina Hughes, the • testator, E. C. Hughes, married Lorena Utley, one of the devisees named in the will, and died September 13, 1897, without issue of either of his marriages; that, after the death of E. C. Hughes, the testator, Lorena Utley Hughes, became the wife of W. R. Taylor. Of this marriage three children were born, to-wit: Mattie Alva Taylor, Walter R. Taylor, Jr., and Alice R. Taylor, the plaintiff.

The plaintiffs alleged that Lorena Taylor had sold to A. T. Manley, Jr., who was also made a defendant, the standing timber on the lands described in the will for the sum of $1.000. and that the said A. T. Manley, Jr., is now engaged in cutting and removing the timber from the land; that the defendants were insolvent, and that the cutting of the timber will greatly damage the farm, to the plaintiffs’ irreparable loss. The complaint further alleged that the will devised only a life estate to Lorena Taylor, and that plaintiffs, who were her children, became her legal heirs and entitled to the fee in said lands. They prayed for an injunction and all proper relief. The defendants interposed a demurrer to the complaint, which was by tlie court sustained. The plaintiffs elected to stand on the complaint. The court thereupon entered a decree dismissing the complaint, from which the plaintiffs below appeal.

The appeal involves the construction of the will. The appellants contend that the appellee, Lorena Utley, only acquired a life estate under the will. On the other hand, the appellees contend that she acquired an estate in fee simple. Construing the two paragraphs of the will above set forth, we are convinced that the testator intended to devise to the appellee, Lorena Utley, a life estate with the remainder over to her brothers and sisters. The testator, at the time of the execution of his will, vtas making a final disposition of all of his property to the devisees named therein with reference to the status and relationship they then sustained to him. The allegations of the complaint show that at the time the will was executed the testator’s then wife.was Martha Malvina, and to her he gave his entire estate, real and personal, for life, and at her death he gave to each one of his nieces and nephews ten dollars and to his brother ten dollars; and all the balance of the estate, real and personal, he gave to Lorena Utley, whose mother married the testator’s brother, and at her death to her brothers and sisters who were her legal heirs. The testator used the words “legal heirs” not in the sense of describing her children, the heirs of her body — her heirs or lineal descendants — but to describe those who would be her heirs were shp to die unmarried and without issue before the testator’s death when the will took effect.

It occurs to us that the testator at the time of his will was making provision for his then wife and for his nieces and nephews and Lorena Utley, and that he did not have in mind at all any prospective heirs that might be born to Lorena Utley in the event she married and died before his death. It seems to us that it is unreasonable to conclude from the language of the will that the testator contemplated that Lorena might afterward marry and have children, and in the event that she did marry and children were born to her, he desired to provide for them. We are convinced that the more reasonable-construction is that he intended for Lorena to have a life estate, and in the event of her death that the estate should go to her brothers and sisters, who, both at the time of the execution of the will and at the time of the testator’s death, when the will took effect, were the next of kin or legal heirs of Lorena Utley. The clause in the will, to-wit: “I give to Lorena Utley during her life and at her death to he equally divided between her brothers and sisters, I mean her legal heirs”, has the same meaning as if it had been written as follows: “I give (the estate named) to Lorena Utley during her life and at her death to her brothers and sisters who are her ‘legal heirs’ to be divided equally between them.” In other-words, the term “legal heirs” was intended to describe her brothers and sisters at the time of the execution of the will. It was the evident purpose of the testator, we believe, to provide for those who were in being at the time of the will, and not for those who were then unborn.

In Healy v. Healy, 39 Atl. 793, one of the clauses of the will was as follows: “I give and bequeath to my brother John Healy the use of one-twentieth of remainder of my estate, real and personal, at his decease to go to his legal heirs.” There were other similar clauses in the will and the Supreme Court of Connecticut said: “It is therefore certain that he (the testator) here uses the words ‘legal heirs’ in the popular sense, as indicating the persons entitled to inherit if his brother were dead.”

In Kaiser v. Kaiser, 3 Howard Practice, N. S., at page 104 it is said: “The phrase ‘legal heirs’, although generally a term of description, has a well-defined meaning, and, whether applied to real estate or personalty, it includes only next of kin or relatives by blood, and excludes the widow.”

In Mull’s Executors v. Mull’s Admr., 81 Penn., p. 393, the testator gave the yearly interest of a son to his wife for life, and the will specified that after her death “the principal shall be equally divided among all my children, or their legal heirs, if any of -my children should die before such mentioned period doth arrive.” The court held that the words “or their legal heirs” were not used to individuate grandchildren, but to supply a legal succession, and these words mean legal representatives.

In construing this will we must find out, if possible, what was the intention of the testator from all the language of the will and give effect to that intention. Webb v. Webb, 111 Ark. 54; Booe v. Vinson, 104 Ark. 439; Archer v. Palmer, 112 Ark. 527; Harrington v. Cooper, 126 Ark. 53. Applying this familiar rule of construction, we have reached the conclusion, as above stated, that the will did not at the death of the testator vest a fee simple estate in Lorena ITtlev; that she only took an estate for life. No question as to who were proper or necessary parties to the suit was raised in the court below, and, inasmuch as the rights of the brothers and sisters are not involved and not affected adversely by the conclusion we have reached, we find it unnecessary to give any directions concerning them. They were not made parties. The trial court erred in finding that the will vested the fee simple title in Lorena Utley, but, notwithstanding such finding, ruled correctly in sustaining the demurrer to the complaint and in entering a decree dismissing same, because it fails to state a. cause of action in favor of appellants. This decree is therefore affirmed.

Hart and Smith, ,TJ., dissenting.

INDEX ABATEMENT AND REVIVAL: pendency of another action as ground of abatement. Sims V. Miller, 377. ADVERSE POSSESSION: permissive possession not adverse. Fry V. Grismore-Hyman Co. 44. husband or wife cannot obtain tax title against the other when, Tom/pkins V. Tompkins, 572. APPEAL AND ERROR: See Bill of Exceptions. presumption as to answer omitted from transcript. Miller Rubber Co. v. MeKennon, 15. construction of former opinion. Dickson V. Board of Directors of Long Prairie Levee Dist. 22. error of giving instruction invited when. Davis v. Scott, 34. presumption from silence of abstract. Bowman Eng. Co. V. Arkansas & Missouri Highway Dist., 47. necessity of specific objection to charge. Chicago, R. I. & P. Ry. Co. V. McClanahan, 77. instruction held not misleading. Wisconsin & Arkansas Lbr. Co. v. Smith, 95. incompetent evidence not harmless when. Christian & Taylor V. Fancher, 102. objection to award of special damages not waived when. Morrison V. Weinstein, 255. o instruction as to special damages harmless when. Id. appellant cannot complain of abstract instruction given when he requested one on same subject. L. J. Smith Const. Co. v. Tate, 278. incompetent evidence harmless- when. Id. verdict on conflicting evidence conclusive. Hinton V. Martin, 343. presumption where instructions not set out. Id. abstract instruction harmless when. Sims v. Miller, 377. objection to permitting taxpayers to intervene not raised on appeal. Johnston v. Conway, 398. objection that account against county was not raised below not raised on appeal. Road District No. 27 V. Spradley, 494. weight of evidence not for appellate court. Hines v. Johnson, 549. erroneous instruction harmless when. Id. . issue not raised below not considered. Youree v. Ralls, 554. admission of incompetent evidence prejudicial when. J. S. Elder Grocery Co. v. Applegate, 565.

642 Index [151 ASSIGNMENTS: See Parties. ASSOCIATIONS: liability of officers of unincorporated association to members thereof. Ferguson ,v. Crawford, 503. such officers required to account to such members when. Id. evidence held to justify finding that defendants were trustees of association. Id. right of members to sell interest in property. Id. AUTOMOBILE: See Intoxicating Liquors. BILL OF EXCEPTIONS: See Exceptions, bill of. CARRIERS: instruction as to liability for overcharge in passenger fare held not reversible error. Chicago, R. I. & P. Ry. Co. v. McClanahan, 77. statute fixing passenger fares held unconstitutional. Id. penalty recoverable for overcharge. Id. right to notice of claims for damages to freight in transit. Ba/rrett v. St. Louis S. W. Ry. Co., 215. evidence held to sustain finding of negligence in transporting perishable freight. Id. CASES OVERRULED: Bennefield v. State, 62 Ark. 365, overruled. Tallman v. State, 111. Mays v. Blair, 120 Ark. 69, overruled. Hinton v. Mcurtin, 356. Shelton v. Ratterree, 121 Ark. 482, overruled. Hinton V. Martin, 356. COMMERCE: sale of goods shipped to buyer in another State held to constitute interstate commerce. Rose City Bottling Works v. Godchaux Sugars, Inc., 269. foreign corporation held not doing business in State when. Id. CONTINUANCE: not error to refuse, for absent witness in absence of diligence. Hgffer v. State, 299. discretion to refuse continuance for absent witnesses. Murray v. State, 331. Harper v. State, 338. continuance for absent witnesses properly refused when. Laster v. State, 608. CONTRACTS: See Evidence. construction against party preparing contract. Wisconsin & Arkansas Lbr. Co. v. Fitzhugh, 81.

Index 643 Ark.] CONTRACTS: (Continued). construction of contract question for jury when. Id. construction of contract excepting certain trees. Id. . no recovery on quantum meruit where there is express contract. Christian & Taylor v. Fancher, 102. CORPORATION COMMISSION: See Public Service Commission. CORPORATIONS: preference by insolvent corporation held void. Miller Rubber Co. V. McKennon, 15. foreign corporation not doing business in State when. Rose City Bottling Works v. Godchaux Sugars, Inc., 269. COURTS: construction of language of opinion. Dickson v. Board of Directors of Long Prairie Levee Dist., 22. CRIMINAL LAW: See Homicide; Seduction; Indictment and Information; Continuance; Witnesses. instruction as to corroboration of accomplice approved. Casteel Y. State, 69. sufficiency of such corroboration. Id. courts judicially know location of county seats and boundary lines Wells V. State, 221. instruction not objected to below not considered on appeal. Id. admission of erroneous evidence harmless when. Id. order of introduction of testimony discretionary. Id. general objection insufficient to call attention to ambiguity in instruction. Lindsey V. State, 227. error in admission of evidence not objected to not considered. Seaton V. State, 240. specific objection required as to instruction on credibility of witnesses. Id. instruction as to evidence of defendant’s character held harmless. Id. improper argument not reversible error when. Id. instruction as to venue approved. McClain V. State, 266. venue of murder committed on Mississippi River; Padgett V. State, 290. objection to instruction not saved below waived. Id. evidence as to reports made by detective admissible when. Hopper V. State, 299. no new trial for newly discovered evidence when. Id. admission of incompetent evidence invited error when. Harper v. State, 338.

644 ■ Index [151 CRIMINAL LAW: (Continued). evidence held to corroborate accomplice. Id. sufficiency of proof of venue. Martin V. State, 365. conviction not based on mere suspicion. Id. error to refuse to charge as to defendant’s failure to testify. Id. weight of evidence for jury. Ritchie V. State, 375. resistance of arrest as evidence of guilt. Id. necessity for objecting to instructions given or refused. Walker V. State, 394. abstract instructions harmless when. McGarity v. State, 423. defect in indictment first raised on appeal when. Mclntire V. State 458. effect of former conviction under bad indictment. Id. argument of prosecuting' attorney held prejudicial. Moore v. State, 515. statement of third person in defendant’s absence inadmissible against him. Id. such statement inadmissible against him though made in his presence when. Id. defendant’s confession admissible when. Henry v. State, 620. instruction as to admissibility of confession improperly refused Id. CUSTOMS AND USAGES: usage of trade not proved by evidence of local custom. Markstein Bros. Millinery Co. v. J. A. White & Co., 1. DAMAGES: special damages recoverable for breach of contract when. Morrison v. Weinstein, 255. DEATH: verdict of $3,000 for death of seven-year-old boy not excessive. Hines v. Johnson, 349. DESCENT AND DISTRIBUTION: estate descend from father on heir’s death without issue goes to father’s heirs. Cunningham, v. Dellmon, 409. DIVORCE: authority to change order in regard to custody of child. Jackson V. Jackson, 9. third person cannot appeal from decree granting divorce. Lance v. Mason, 114. wife’s interest on division of property is life estate. Id.

Index 645 Ark.] DIVORCE: (Continued). such interest subject to incumbrances. Id. sufficiency of evidence of personal indignities. Pryor V. Pryor, 150. not granted on uncorroborated testimony of party. Id. DOWER: l jurisdiction- of equity to award. Maxwell V. Awtrey, 85. assignment without adjudication of court. Id. description in order allotting dower held too indefinite. Cunningham V. Dellmon, 409. ex parte proceeding to allot dower is invalid. Id. DRUNKENNESS: sufficiency of proof of being drunk on highway. McClain v. State, 266. instruction as to venue approved. Id. EJECTMENT: modification of instruction approved. Fry v. Grismore-Hyman Co., 44. EQUITY: See Dower; Wills. jurisdiction to wind up affairs of highway district. Bowman Eng. Co. V. Arkansas & Missouri Highway District, 47. jurisdiction of chancery to enforce equitable liens. Bose City Bottling Works v. Godchaux Sugars, Inc., 269. retaining jurisdiction to administer complete relief. Id. beneficiaries of trust not guilty of laches in permitting purchaser from trustee to pay taxes. Pharr v. Fink, 805. EMINENT DOMAIN: necessity of condemnation for levee purposes. Dickscn v. Board of Directors of Long Prairie Levee District, 22. EVIDENCE: parol evidence admitted to explain ambiguous written contract. Wisconsin & Arkansas Lbr. Co. V. Fitzhugh, 81. exhibits as controlling pleading. Cunningham v. Dellmon, 409. obscure pleading treated as parties treated it. Id. evidence that advertisement complied with contract held competent. Foster-Holcomb Inv. Co. v. Little Bock Pub. Co., 449. EXCEPTIONS, BILL OF: stenographic report of trial must be approved. Chaffin v. Lee County Nat. Bank, 106.

646 Index [151 EXECUTORS AND ADMINISTRATORS: right of administratrix to sell land for debts. Maxwell v. Awtrey, 85. FALSE PRETENSES: statute as to obtaining signature by false pretense construed. State V. Bond, 203. sufficiency of indictment. Id. FRAUD: conveyance to one as trustee held to give notice. Pharr v. Fmk, 305. FRAUDS, STATUTE OF: sufficiency of memorandum of sale of goods. Rose City Bottling Co. v. Godchaux Sugars, Inc., 269. ' parol trust in land within statute when. Pharr v. Fink, 305. pleading held to allege parol trust within statute. Id. FRAUDULENT CONVEYANCES: evidence held not to sustain charge of participating in scheme to defraud divorced wife. Lance v. Mason, 114. GARNISHMENT: judgment against garnishee sustained when. Samuelson V. Patterson & Co., 90. garnishee not liable where court had no jurisdiction of principal suit. S. A. Robertson & Co. v. Lewis Rich Const. Co., 557. effect of filing amended complaint stating new cause of action. Id. HIGHWAYS: authority of commissioners to contract for preliminary work. Bowmam, Eng. Co. v. Arkansas & Mo. Highway Dist., 47. right of engineers to recover under contract of employment. Id., no injunction against opening road when. Morrow V. Mock, 392. collateral attack on assessment of benefits not made when. Road Imp. Districts 1, 2 and S V. Crary, 484. how and when attack on assessment made. Id. zonal system of assessment not invalid when. Id. road districts may cover entire county. Id. special act creating three road districts not invalid because roads run from one district to another. Id. conclusiveness of legislative finding of singleness of improvement. Id.

Index 647 Ark.] HIGHWAYS: (Continued). authority of district to issue interest-hearing evidences of indebtedness. Id. special act creating three road districts held not violative of uniform tax provision. Id. such act not invalid in authorizing assessment of homesteads. Id. evidence held to sustain finding that road overseer was authorized to make expenditures. Road Dist. No. 27 V. Spradley, 494. such authority not required to be in writing. Id. statute requiring such authority held substantially complied with. Id. HOMESTEAD: attempt by widow to sell homestead held an abandonment. Cmvningham V. Dettmon, 409. in such case statute begins to run against heirs. Id. right of widow to prove up homestead on entryman’s death. Tompkins v. Tompkins, 572. conveyance to husband and wife held to create estate by entirety. Id. deed from wife to husband conveys equitable title. Tompkins V. Tompkins, 572. deed from wife to husband upheld. Id. HOMICIDE: allegation that nature of instrument used to kill was unknown held immaterial. Wells v. State, 221. burden of proof in assault with intent to kill. Parsley v. State, 246. admissibility of threats by person assaulted. Id. evidence held to sustain finding of murder in second degree. Padgett v. State, 290. sufficiency of evidence as to mode of killing. Id. admission of evidence of accused’s general reputation held invited error when. Harper v. State, 338. not error to exclude record of deceased’s conviction of robbery. Jett v. State, 439. not error to refuse to repeat instructions. Id. officer not authorized to kill one charged with misdemeanor. Id. authority of officer to kill person resisting arrest. Id.instruction on self-defense approved. Id. instruction as to murder committed by officer in making arrest approved. Id. malice defined, malice presumed when. Id.

648 Index [151 HOMICIDE: (Continued). instruction as to murder in attempt to rob approved. Henry v. State, 620. instruction as to liability for killing in pursuance of conspiracy to rob approved. Id. indictment and proof held not variant. Id. HUSBAND AND WIFE: estate of tenancy by entirety not changed by Constitution and statutes. Parrish Y. Parrish, 161. INDICTMENT AND INFORMATION: sufficiency of indictment for statutory offense. State V. Bond, 203. State not required to elect between counts in murder case when. Harper V. State, 338. sufficiency of general verdict of guilty on several counts. Molntire V. State, 458. INJUNCTION: See Highways. will not lie to compel collection of assessments in improvement district. Johnston v. Conway, 398. INNKEEPERS: liability for personal property of guests. Huekins Hotels v. Smith, 167. may make special contract with guest. Id. agreement to stop at hotel as consideration for agreement. Id. baggage check as evidence of contract to keep guest’s property. Id. instruction as to hotel-keeper’s liability for loss of guest’s baggage disapproved. Id. liability' of hotel-keeper for loss of guest’s baggage for jury when. Id. INSURANCE: forfeiture of policy for misrepresentation waived by delay when. New York Life Ins. Co. v. Adams', 123. delay held to amount to waiver of forfeiture. Id. right of plaintiff to statutory penalty and attorney’s fee. Id. evidence held not to establish delivery of policy. New York Life Ins. Co. Y. Mason, 135. effect of delivery of policy on Sunday. Id. delivery on Sunday not ratified when. Id. burden of proof as to delivery. Id.

Index 649 Ark.] INSURANCE: (Continued). waiver and estoppel as to insurance contracts distinguished. Sovereign Camp W. 0. W. V. Richardson, 231. insurance company estopped by representation by agent when. Id. defense to suit on indemnity policy held bad. Southern Surety Co. v. Puryear-Meyer Grocer Co., 480. “underwriting- profits” defined. Bullion v. Aetna Ins. Co., 519. no allowance made for income taxes. Id. what companies considered. Id. no deduction for conflagration hazard. Id. proof of theft of car waived when. National Union Fire Ins. Co. V. Crabtree, 561. authority of agent to waive such proof. Id. statute relating to penalty and attorney’s fee inapplicable to theft insurance. Id. mode of proof of death in military service. Watkins v. La. State Life Ins. Co., 596. right to charge extra premium for increased hazard. Id. INTOXICATING LIQUORS: no authority to confiscate vehicle transporting liquors. State v. One Ford Automobile, 29. statute construed. Id. evidence held admissible on charge of manufacturing. Casteel V. State, 69. evidence held to prove sale of. Ritchie v. State, 375. evidence held to sustain conviction of setting up distillery. Walker V. State, 394. not error to permit witness to set up and exhibit still. Id. still is set up when. McGarity v. State, 423. not error to permit witness to explain parts of still and how they are put together. Id. evidence held to sustain conviction of possessing or setting up still. Mclntire V. State, 458. JUDGMENTS: prior judgment in another action as bar. Sims V. Miller, BIT. default judgment set aside for unavoidable casualty when. Columbia County v. England, 465. what constitutes meritorious defense on motion to set aside default. Id. judgment vacated after term for clerk’s misprision when. Williams V. Bogard, 611. JURY: preconceived opinion to disqualify juror when. Snyder v. State, 601. holding biased juror to be competent prejudicial when. Id.

650 Index-[151 LACHES:- See Equity. LANDLORD AND TENANT: lien of landlord superior to title of purchaser of .warehouse receipt. Lynch V. Mackey, 145. landlord held to have waived right to forfeiture for abandonment of lease when. Salley V. Michael, 172. landlord’s lien not waived when. 'Morrilton Cotton Oil Co. V. Imboden, 178. liability of firm assuming liability for rent. Id. construction of covenant to renew lease. Felder V. Hall Bros. Co., 182. right of lessor to refuse to renew lease. Id. liability of lessor for failure to deliver possession to lessee. Morrison V. Weinstein, 255. measure of damages for lessor’s failure to deliver possession. Id. special damages.for breach of covenant not recoverable when. Id. sale of leased premises under paramount title on eviction when. Basin Park Hotel Assn. v. Arkansas Co., 322. right of evicted tenant to recover for repairs. Id. landlord’s lien on tenant’s crop for rent and supplies prior to that of mortgagee. Morgan V. Russell, 405. LARCENY: variance between indictment and proof fatal when. Roy v. State, 471. LICENSES: -See Negligence. LIMITATION'OF ACTIONS: limitation to action on written contract is five years. Sims v. Miller, 377. statute applicable to particular action. ■ Id. ' action commenced when summons issued and delivered to officer. Id. action must be so commenced in county of defendant’s residence. Id. right to bring new action after nonsuit. Id. limitation of five years to actions on written contracts. W. T. Rawleigh Co. v.. Pritchard, 390. part payment within five years stops running of statute;.' Id. defense of statute, raised by demurrer when. ' Cunningham V. Dellmon, 409. minor seeking to recover land sold by guardian during infancy barred when. Id. limitation runs against heirs of homestead on widow’s abandonment. Id.

651 Ark.J Index. LIMITATION OF ACTIONS: (Continued). amending, complaint by substituting parties not bringing of new ' action when. Foster-Holcomb Inv. Co. v. Little Rock Pub. Co., 449. LOGS AND LOGGING: exception in sale of timber explained by parol when. Wisconsin & Ark. Lbr. Co. V. Fitzhugh, 81. LOST INSTRUMENT: evidence held to establish execution of lost deed. Tompkins V. Tompkins, 572. MALICIOUS MISCHIEF: no presumption that killing of another’s dog was malicious. Tail-man V. State, 108. school directors not guilty of in removing schoolhouse. Thompson v. State, 369. such directors not liable for damaging church property when. Id. MALICIOUS PROSECUTION: not error to direct verdict for defendants when. Scott v. Pennington, 26. MASTER AND SERVANT: negligence of fellow servant in propelling motor vehicle. Wisconsin & Ark. Lbr. Co. V. Smith, 95. negligence of fellow servant causing death held established by evidence when. L. C. Smith Const. Co. v. Tate, 278. servant held not to have assumed risk when. Id. MECHANICS’ LIEN: materialman’s lien must be filed within 90 days after last item furnished. Cunningham v. J. S. Kimbro Lbr. Co., 194. effect of owner purchasing materials for additional improvement. Id. MUNICIPAL CORPORATIONS: sufficiency of notice to pay municipal pole tax. Arkansas Public Utilities Co. V. Heber Springs, 249. insufficiency of notice to pay such taxes waived when. Id. validity of municipal pole tax. Id. such tax payable in municipal warrants. Id. sufficiency of tender of warrants after penalty attached. Id. tax on property in improvement district must not exceed benefit. Johnston V. Conway, 398.

652 Index [151 MUNICIPAL' CORPORATIONS: (Continued). how assessments in improvement district made. Id. how creditor may compel collection of assessments. Id. NEGLIGENCE: See Railroads; Master and Servant. care required as to mere licensees. Mitchell v. Ozan-Graysonia Lbr. Co., 6. PARTÍES: assignor of chose in action a necessary party when. Chicago, R. I. & P. R. Co. v. Cobbs, 207. persons interested in subject-matter necessary parties when. Id. taxpayers allowed to intervene in suit to compel improvement district to pay judgment. Johnston v. Conway, 398. PERJURY: indictment held sufficient.- Clower v. State, 359. falsity of testimony established how. Id. requested instruction as corroboration of witness approved. Id. ' PLEADING: error to determine issue not raised by pleading or proof. Morris V. Johnson, 189. , exhibits to complaint in -equity control its averments. Cunningham v. Dellmon, 409. amendment held not to change nature of complaint. Youree v. Ralls, 554. amended complaint held to state new cause of action. S. A. Robertson & Go. v. Lewis Rich Const. Co., 557. PRINCIPAL AND AGENT: . authority of traveling salesman. Marlcstein Bros. Millinery Co. V. J. A. White & Co., 1. - PRINCIPAL AND SURETY: contract of surety not invalidated by promissory representations when. Rose City Bottling Works v. Godohaux Sugars, Inc., 269. PROCESS: member of Legislature not exempt from civil process when. Doyle-Kidd Dry Goods Co. v. Munn, 629. PROSECUTING ATTORNEY: fee of deputy on plea of guilty. Brown V. Welch, 142.

Ark.] Index 653 PUBLIC SERVICE COMMISSIONS: authority of Corporation Commission to determine ownership of ties and rails. Thomas-Bowman Cooperage Co. v. Missouri & North Arkansas Rd. Co., 589. RAILROADS: error to submit question of negligence in failing to keep lookout when. Davis v. Soott, 34. failure to signal not proximate cause of killing when. Id. running train at high rate of speed on approaching town as negligence. Id. operating train at high speed as proximate cause of injury. Id. presumption of negligence from injuring traveler at crossing. Id. proper instruction as to contributory negligence. Id. agreed statement held to support finding of negligence in killing colt. St. Louis-S. F. R. Co. v. Pace, 159. evidence held to sustain finding that fire was negligently caused from locomotive. Chicago, R. I. & P. Ry. Co. v. Cobbs, 207. liability for fire caused -by sparks from locomotive. Chicago, R. I. & P. Ry. Co. v. National Fire Ins. Co., 218. evidence held to sutain finding of negligence in operation of train. Hines v. Johnson, 549. instructions as to negligence in operating railroad approved. Id. abandonment' of spur track authorized when. Thomas-Bowman Cooperage Co. v. Mo. & No. Ark. Rd. Co., 589. RAILROAD COMMISSION: See Public Service Commission. RAPE AND CARNAL ABUSE: sufficiency of proof of carnally knowing female under 16 years. Seaton v. State, 240. REFORMATION OF INSTRUMENTS: proof of mistake or fraud must be clear and satisfactory. Waddel v. Boiodre, 474. when decree avoiding relief set aside. Id. REMOVAL OF CAUSES: properly denied on ground of diversity of citizenship when. Chicago, R. I. & P. R. Co. v. Cobbs. REPLEVIN: purchaser of machinery not entitled .to bring replevin when Sherrill Hardwood Lbr. Co. v. H. D. Glass Lbr. Co., 513.

654 Index [151 SALES: See Customs and Usages. right of buyer to return goods. Markstein Bros. Millinery Co. v. J. A. White & Co., 1. effect of sale of property to be paid in work. Taylor v. Martin, 200. right of purchaser to rescind for failure of title. McDonnell Motor Hauling Co. v. Morgan Const.- Co., 262. contract of sale executed when. Id. instruction as to buyer’s right to sell defective portion of shipment approved. Sims v. Miller, 377. express warranty inferred from seller’s affirmation of fact when. Warren v. Granger, 453. delivery, manual or symbolical, necessary in sale of machinery. Sherrill Hardwood Lbr. Co. v. H. D. Glass Lbr. Co., 513. evidence held incompetent to prove breach of warranty in sale of seeds. J. S. Elder Grocery Co. v. Applegate, 365.-implied warranty in sale of seeds. Id. such implied warranty a jury question when. Id. not error to submit express and implied warranties to jury when. Id. express warranty of germinating power of seeds not proved when. Id. when misrepresentations of vendor fraudulent. Woods v. Jones, 614. SCHOOLS AND SCHOOL DISTRICTS: authority of directors to remove school building. • Thompson v. State, 369. right of church to use schoolhouse defined. Id. SEDUCTION: instruction as to prior unchastity approved. Murray v. State, 331. SET-OFF AND COUNTERCLAIM: - right of defendant to counterclaim judgment for costs. Sims v. Miller, 377. SPECIFIC PERFORMANCE: contract to furnish “good and indefeasible title” met by furnishing title'by adverse"possession. Hinton v. Martin, 343. STATE: appropriation for improving acoustics of Senate and House chambers upheld as an expense of government. Hoffer v. Fagan, 428.

Index 655 Ark.] STATE: (Continued). statutes construed so as to harmonize. Id. contract for improvement of acoustics of legislative chambers must be let to lowest responsible bidder. Id. such contract to receive separate approvals of Governor, Auditor and Treasurer. Id. contract must -provide for improvement of both halls. Id. STATUTES: not construed in derogation of common law when. State v. One Ford Automobile, 29. common law impliedly repealed when. Id. time when local statute takes effect. Thompson v. State, 369. no room for construction of unambiguous instruction. Hopper v. Fagan, 428. words of known legal meaning assumed to use in that sense. Bullion v. Aetna Ins. Co., 519. usual meaning considered. Id. subject-matter considered. Id. STATUTES CITED: Compiled Statutes U. S. §§ 1010, 1033.................... 211 Kirby’s Digest: § 6390.................................... 145 Crawford & Moses’ § 429.......................... 430.......................... 436......................... 475.......................... 879.......................... 924......................... Digest: ............630 ............ 631 ............ 630 ............213 ........78, 80 ............218 1001-8................................ 588 1049.. ........................... 385 1176............................630, 634 1239.. 1993.. 2029.. 2342.. 452 . 254 501 . 246 2449............................203, 205 2453.. 2511.. 2542.. .......................... 207 ...........................108 .......................... 371 2992-3...................:............ 29 Crawford & Moses’ Digest— —Cont. 3013......... 3028.......... 3132.......... 3156.......... 3157-3160. 3181.......... 3511.......... 3547...:..... 4171.......... 4186.......... 4868.......... 5308.......... 5567.......... 5577.......... 5657-8...... 5960........ 5962........ 5965......... 5969.......... 5979.......... 6155.......... 6157-8...... 6170......... ................206 .................206 .................369 .................605 ................ 606 ................. 75 .114,116, 119 .................418 .................631 ................. 337 .......:..... 310 .................502 ................. 167 ................. 165 ................ 404 .........522, 529 .................521 .................529 .................545 .................544 ................. 134 ................. 599 ................. 32

656 Index [151 Constitution op 1874: art. 5, § 31.......................... 432 16, 10.......................... 254 19, 15.......................... 433 SESSION LAWS: 1887, April 4...................... 80 1915, No. 159...................... 105 1917, No. 13...................... 32 p. 1478...................... 499 1919, Road Acts, p. 134.. 50 1919, Road Acts, p. 65.. 486 1919, No. 66........................ 105 1921, Feb. 17...................... 47 p. 239........................ 433 p. 270 (Sp. Acts).... 166 p. 373, § 3.................. 425 p. 372......................... 560 SUBROGATION: purchaser of land on renewing incumbrance entitled to subrogation thereto when. Lance v. Mason, 114. TAXATION: tax on private car companies collectible when. State v. American Refrigerator Transit Co., 581. private car company not doing business in State when. , Id. TENANCY IN COMMON: effect of purchase by co-tenant at tax sale. Tompkins v. Tompkins, 572. TRIAL: when sale completed question for jury when. Barnett v. St. Louis S. W. Ry. Co., 215. necessity of specific objection to abstract instruction. L. J. Smith Construction Co. v. Tate, 278. objection in gross to several instructions bad when. Id. objection to part of instruction held general objection when. Warren v. Granger, 453. insufficiency of general objection to instruction. Id. effect of both parties requesting directed verdict. Watkins v. La. State Life Ins. Co., 596. error to direct verdict on conflicting evidence. Wood v. Jones, 614. STATUTES CITED: (Continued) Crawpord & Moses’ Digest— —Cont. 6196.................................... 33 6290-1........................465, 613 6611-20..........................78, 80 6889.................................... 407 6897.................................... 145 6894-5................................ 407 6942, 6946.......................... 422 6950.................................... 382 6955.................................... 391 6969.................................... 384 7145.................................... 287 8309.................................... 144 8569............................210, 219 8575..............................42, 43 8942-3................................ 374 9823-30.............................. 585

Ark.] Index 657 TRUSTS: when trusts ex maleficio enforced. Pharr v. Fink, 305. not established by showing breach of oral agreement. Id. rights and liabilities of purchaser of trust property. Id. VENDOR AND PURCHASER: See Specific Performance. under contract providing for merchantable title. Marketable title is meant. Hinton v. Mourtin, 343. sufficiency of title by adverse possession. Id. VENUE: See Drunkenness; Criminal Law. WILLS: will construed to devise merely life estate in widow. Norris v. Johnson, 189. rule of construction to give effect to testator’s intention. Id. jurisdiction of chancery to construe will creating trust. Id. will construed to convey life estate to devisee. Taylor v. Manley, 635. WITNESSES: grand jurors incompetent to prove testimony given before them when. Scott v. Pennington, 26. wife’s incompetency to testify for husband not altered. Christian & Taylor v. Fanaher, 102. wife of defendant partner incompetent as witness except when acting as agent. Id. corroboration of impeached witness properly allowed when. Hopper v. State, 299. not error to permit State to ask leading question of her witness when. Murray v. State, 331. inadmissible to prove contradictory statements of witness when. Id. Cross-examination as to collateral matter conclusive. Faster v State, 608. WORDS AND PHRASES: actual bias. Snyder v. State, 601. commencement of action. Sims v. Miller, 151 Ark. 377. constructive delivery. New York F. Ins. Co. v. Mason, 135. doing business within the State. Rose City Bottling Works v Godchaux Sugars, Inc., 269; State v. American Ref. Transit Co., 581. express waiver. Sov. Camp. W. O. W. v. Richardson, 237. estoppel. Sov. Camp W. O. W. v. Richardson, 237.

658 Index [151 WORDS AND PHRASES: • (Continued). implied bias. Snyder v. State, 601. implied trust. Pharr y. Fink, 305. in cash. Arkansas Pub. Utilities Co. v. Heber Springs, 249. law of the case. Dickson Y. Board of Directors of Long Prairie Levee Dist., 22. legal heirs. Taylor v. Manley, 635. malice. Jett v. State, 439. marketable. Hinton v. Martin, 343. merchantable. Hinton v. Martin, 343. merchantable title. Hinton v. Martin, 343. proper county. Sims v. Miller, 377. prosecute. Brown v. Welch, 142. refusal. Felder v. Hall Bros. Co., 182. renew. Id. repairing. Hopper v. Fagan, 438. set up. McGarity v. State, 423. tenancy by the entirety. Pcurrish v. Parish, 161. underwriting profits. Bullion y. Aetna Ins. Co., 519. wilfully. Tallman v. State, 113. ■£>W\ /. -7 -1 '* UU' lr