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3. CARRIERS @->58–BILL OF LADING-DELIvERY-SET-OFF. Where plaintiff shipped goods to his own order and delivered the bill of lading, with draft attached, to a bank, with directions to deliver the goods on payment of the draft, defendant who, after notice of arrival, had wrongfully received and converted the goods, could not apply, the proceeds thereof to the payment of the plaintiff's indebtedness to it without direction from the plaintiff, and could not stand in the position of a third person acquiring rights withOut notice as against the bank. [Ed. Note.—For other cases, see Carriers, Cent. Dig. §§ 179–190; Dec. Dig. 3:58.] Appeal from Circuit Court, Chicot Counvy; Turner Butler, Judge. Action by S. J. McInturff and another against the Vehicle Supply Company and anOther. Judgment for plaintiffs against the defendant Vehicle Supply Company, and it appeals. Affirmed.

B. F. Merritt, of Lake Village, for appellant. J. C. Gillison, of Lake Village, for appelleeS.

HART, J. On the 8th day of January, 1915, S. J. McInturff and the Chicot Bank & Trust Company instituted an action against the Vehicle Supply Company, a partnership composed of M. S. and C. C. Carter, doing a vehicle supply business in the city of Cairo, Ill., and against the St. Louis, Iron Mountain & Southern Railway Company, for the recovery of $1,331.26 alleged to be the Value of three Car loads Of axles Wrongfully delivered by the railway company to its codefendant and converted by it to its own use. One of the partners came to Chicot county, and Service was had upon him there. The defendantS anSWered.

The facts are as follows: S. J. McInturff was in the employment of the Vehicle Supply Company in connection with the business at Cairo, Ill. He found some timber near Lake Village, Ark., out of which he thought he could make Some money, and the Vehicle Supply Company, desiring the lumber, agreed to lend him $1,000 On Which to Operate. He gave the Vehicle Supply Company a mortgage on Some land in Oklahoma as Security and also agreed to pay the firm out of the proceeds of lumber shipped to it. He established a sawmill at Lake Village, Ark., and on the 3d day of June, 1914, executed a mortgage to the Chicot Bank & Trust Company on all the manufactured lumber in his mill yard at Lake Village, Ark., to secure the sum of $650 and future advances. In September, 1914, McInturff shipped to himSelf at Cairo, Ill., three Car loads of axles of the value of $1,331.26 and gave the Chicot Bank & Trust Company a draft for the proceeds of the cars of lumber and attached it to the bills of lading. The bills of lading With the draft attached Were delivered to the Chicot Bank & Trust Company and by it forwarded to the bank at Cairo, Ill., . With directions to deliver the bills of lading to

McInturff or order upon the full payment of the draft. The railroad company delivered the three cars of axles to the Vehicle Supply Company, and the members who composed that firm applied the proceeds to the payment of the debt due the firm by McInturff and refused to account to the Chicot Bank & Trust Company for the proceeds. The railroad agent at Lake Village testified that he had a message from the railroad agent at Cairo, Ill., stating that the cars Were on hand and asking for a disposition of the axles; that he called up McInturff and asked for a disposition of the axles; and that McInturff told him that the Vehicle Supply Company knew that the cars were there and Would take them up; and that he then told McInturff that he would wire the agent at Cairo to notify the Vehicle Supply Company, and that McInturff replied that that Would be all right. The agent of the railway company at Cairo, Ill., testified that the bills of lading for the cars in question were what the InterState Commerce Commission approved as being a straight bill of lading, and that they are not negotiable documents, and that there Was a form prepared and approved by the COmmission Called an uniform Order bill of lading which was for the purpose of enabling Shippers to draw on the goods shipped, and that this bill of lading Was negotiable. Evidence also was adduced by the defendant tending to show that the axles contained in the three carS did not amount to the value of $1,331.26. On the other hand, McInturff testified that he inspected the cars shipped by him, that he picked out No. 1 stock, and that the timber was worth the amount sued for by him and the bank. He also testified that he remembered the railroad agent at Lake Village calling him up with reference to the shipment, and says that he told the agent that the goods were consigned to himself, and that he had made a sight draft on the Vehicle Supply Company, and that if the Vehicle Supply Company wanted the cars it must pay the draft and take up the bills of lading. The cashier of the bank testified that he had furnished McInturff the sum sued for in this action, and that the amount was due and unpaid, but that McInturff had paid the bank all other Sums due under the mortgage eXcept the sum sued for in this action. The jury returned a verdict in favor of the plaintiffs against the Vehicle Supply Company for the amount sued for, and from the judgment rendered the Vehicle Supply Company has duly prosecuted an appeal to this court. It is the contention of the Vehicle Supply Company that, because the mortgagee Consented to the mortgagor removing the mortgaged property from the State, it Waived its lien as against the Vehicle Supply Company. This court has not decided as to whether Or not the mortgagee's consent to the removal of mortgaged property from the state Will affect his lien. F. E. Creelman Lumber Co. v. Lesh, 73 Ark. 16, 83 S. W. 320, 3 Ann. Cas. 108. The authorities on the question are divided, and extensive case notes will be found in connection With the following cases: Snyder V. Yates, 64 L. R. A. 353; Jones V. North Pacific Fish & Oil Co., 6 L. R. A. (N. S.) 940; Farmers' & Merchants' Bank V. Sutherlin, 93 Neb. 707, 141 N. W. 827, Ann, Cas. 1914B, 1250. The views, however, which we shall hereinafter express, render it unnecessary for us to review the authorities or determine the question and We shall not attempt to do SO. [1] The court submitted to the jury, under proper instructions, the question of whether or not the railroad company wrongfully delivered the property to the Vehicle Supply Company, and Whether or not the firm ConVerted the three car loads Of axles to its OWn use. The jury found against the Vehicle Supply Company on this question, and there is evidence to support the Verdict. It is true the railroad agent testified that McInturff directed him to have the cars Of axles turned Over to the Vehicle Supply Company, but in this McInturff flatly contradicts him. McInturff testified positively that he told the agent not to turn over the three cars unless the Supply company paid the amount of the draft which he had drawn in favor of the Chicot Bank & Trust Company. The Vehicle Supply Company failed to pay this draft, but took possession of the three cars Of axles and COnverted them to its OWn use. The cars were consigned by McInturff to himself, and he delivered the bills of lading therefor With draft attached to the Chicot Bank & Trust Company. [2] It is true the railroad agent Says that the bills of lading were not negotiable; but, be that as it may, the bill of lading is regarded as a symbol of the property described therein, and its delivery by McInturff to the bank Was equivalent to a delivery of the property as far as they were concerned. No rights of third parties have intervened. AcCording to the testimony of McInturff, the railway company Wrongfully delivered the cars of axles to the Vehicle Supply Company and the firm converted the axles to its OWn use. As we have already seen, this question was submitted to the jury under proper instructions, and the jury has found against the Vehicle Supply Company. [3] The case then stands as if the Vehicle Supply Company had Wrongfully received the three car loads Of axles and converted them to its OWn use, by applying the proceeds of the car to the debt due it by McInturff. It had no right to apply the proceeds of these three CarS to the payment Of its debt unless of the stolen one the day after the alleged theft, and identified the defendant as the IIlan. Defendant denied having stolen the horse, or ever having had it in his possession, and introduced proof strongly supporting his defense of an alibi. He admitted that the coat and the papers in the pockets found in the possession of Hodges, who had the stolen horse, were his, and explained that the coat had been stolen from him out of the station at Hoxie, where he had left it upon going out for a sandwich. He said upon his return he saw a negro running away with the coat, and chased him for some distance down the railroad, but was not able to overtake him; that he had taken his papers to Hoxie, With the expectation of borrowing some money. Another witness, who did not know defendant, testified that the negro who was Supposed to have stolen the horse jumped out of a wagon near Newport, leaving an overcoat with the papers in the pocket that belonged to Wiley Miller. [1, 2] The good reputation of defendant was proved by many witnesses. The prosecuting attorney, in his closing argument to the jury, over the objection of defendant, made the following statement: “They have shown that the defendant is the owner of a home, and that he is an honest and hard-working negro; but I want to call your attention to the fact that this deed shows that he only paid $21 for the home, and that his insurance policy shows that he had it insured for $200. I do not know what he was prepar#" then, but you are to be the judges of that. His counsel asked the court to tell the jury that it was improper argument, outside of the record, and should not be considered by them, which the court refused to do, and thereby omitted an error in the opinion of the majority of this court. The insurance policy and the deed had not been read in evidence, although they had been exhibited to the jury and admitted by the defendant to be his papers. Evidence of the commission of one offense is not admissible to establish the guilt of a defendant, charged With another and entirely independent crime, and the prosecuting attorney Should not have been permitted to argue this extraneous testimony, and Suggest to the jury as a fact that the deed showed defendant had paid but $21 for his home, and that he had insured it for $200, preparatory to burning the property and defrauding the insurance company, and its prejudicial effect Was not removed by the prosecutor stating: “I do not know what he was preparing for then, but you are to be the judges of that.” It was his evident purpose, in making the argument founded upon the facts apparently disclosed by the deed and insurance policy, to disparage the reputation of the defendant

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directed to do so by McInturff. The Cars were consigned to him and were subject to his order. They never rightfully came into the possession of the Vehicle Supply Company, and for that reason it did not stand in the position of a third person acquiring rights without notice as against the bank.

It is urged by counsel for the Vehicle Supply Company that the court erred in refusing certain instructions asked by it. But, without setting these instructions out in detail, it is sufficient to say that they are contrary to the principles of law just announced.

The judgment will be affirmed.

MILLER v. STATE. (No. 204.)

(Supreme Court of Arkansas. Nov. 1, 1915.) 1. CRIMINAL LAW (3:722—TRIAL-ARGUMENT

OF PROSECUTING ATTORNEY.

In a prosecution for the theft of a horse,

where defendant proved his good reputation by many witnesses, and the proof as to his guilt was inconclusive, the district attorney's closing argument, to the effect that it had been shown that defendant was an honest, hard-working negro, owning his own home, but that he wished to call attention to the fact that his deed, which was in evidence, showed that he only paid $21 for his home, and that his policy, also in evidence, showed insurance for $200, and that he did not know what defendant was preparing for, but that the jury were judges of that, which the court refused to withdraw from consideration, was reversible error, as tending to impute criminal intent, and destroy the effect of proof of good reputation.

[Ed. Note.—For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. 3: 722.] 2. CRIMINAL LAW (8:369–EVIDENCE—OTHER

OFFENSES.

Evidence of the commission of one offense

is not admissible to establish the guilt of defendant, charged with an entirely independent Crime.

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Sanction of the court, who would not require it withdrawn, especially prejudicial under the circumstances of this case, wherein the proof was by no means conclusive of the guilt of the defendant, although it was sufficient to Sustain the Verdict.

For the error committed, the judgment is reversed, and the cause remanded for a new trial.

CHICOT COUNTY v. MATTHEWS, Sheriff.
SAME v. ALCORN, Clerk.
(No. 203.)

(Supreme Court of Arkansas. Nov. 1, 1915.)

Count IES <>139 - PROSECUTIONs – CosTs — STATUTES. Acts 1911, p. 11, requires railroads to maintain sufficient switch lights in towns and imposes a penalty for their failure to do so, recoverable in a civil action in the name of the state. Kirby's Dig. § 990, provides that, when a county has any demand against any person or corporation, suit may be brought in the name of the state for the use of the county, and that all costs and expenses not recovered from the defendant shall be paid by the county. Section 7183 provides that all penalties imposed by any court, except mayors' courts, etc., shall be paid into the county treasury. The prosecuting attorney began numerous suits in the name of the state to recover penalties under the act, and, following a former decision holding that only one penalty could be recovered for all suits prior to the commencement of the suit, the circuit court rendered judgment in one case and dismissed the remaining cases. Held, that the county was not liable to the sheriff and the circuit clerk for the costs of mileage service, clerk's fees, etc., since it was not a party to the suit, and, in the absence of statute making it liable for costs, could not be properly taxed therewith. [Ed. Note.—For other cases, see Counties, Cent. Dig. § 207; Dec. Dig. 3:139.]

Appeal from Circuit Court, Chicot County; Turner Butler, Judge.

Action by C. M. Matthews, Sheriff of Chicot County, and by R. E. Alcorn, Circuit Clerk of the County, against Chicot County. Judgment for plaintiffs, and plaintiff Matthews appeals, and the County appeals in both cases; Chicot County being here designated appellant. Judgments reversed, and causes of action dismissed.

E. L. Compere, of Hamburg, and Harry E. Cook, of Lake Village, for appellant. J. R. Parker and N. B. Scott, both of Lake Village, for appellees.

HART, J. The question involved in both these appeals is whether or not Chicot county is liable to the Sheriff and circuit clerk of said county for the costs in certain cases brought by the state against the St. Louis, Iron Mountain & Southern RailWay Company for failing to comply with Act No. 23 of the General Acts of 1911. Separate Suits Were instituted by the sheriff and clerk against The facts are as follows:

and destroy the effect of the proof of his the county, but one opinion will settle the isgood character, and, appearing to have the 'sues involved.

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The prosecuting attorney instituted 362 suits in the name of the state against the St. Louis, Iron Mountain & Southern Railway Company to recover a penalty for the failure of the railway company to maintain sufficient street lights at the town of Dermott during the nights specified in the complaint. Similar suits had been instituted in Bradley county, and this court held that an action against the railway company for failure to maintain the lights as provided in the act Was a civil action in which a penalty WaS collected in the name of the state, and that the act did not create a public nuisance. It was further held that the statute did not authorize the recovery of accumulated penalties, and that but one penalty could be recovered for all the acts prior to the commencement of the suit. St. L., I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S. W. 517. Following that decision the circuit court rendered judgment in one case, and the remaining 361 cases against the railroad company were dismissed.

C. M. Matthews Was the Sheriff of Chicot county, and served the summons upon the railway agent at Dermott. He charged mileage from the county seat to Dermott, and also a fee for Service in each case.

the circuit Court. to allow him mileage, but allowed liim 50 cents in each case for Serving Summons, and 10 cents for calling each case, making a total of $217.20. From the judgment rendered both the county and the sheriff have prosecuted an appeal to this court. The clerk presented to the county Court a claim for $4.60 in each case, or a total of $1,665.20 in the 362 cases. The county court disallowed his claim and he appealed to the circuit court. The circuit court allowed him fees in the sum of $868.80 and Chicot county has prosecuted an appeal to reverse the judgment in his favor for this amount. The Statement of facts raises the question of Whether or not costs can be taxed against the county in cases of failure in the prosecution Of Suits by the State against railroad companies for failure to maintain sufficient lights during the nighttime on all their main line SWitches as prescribed by Act NO. 23 Of the General Acts of 1911. It may be stated here that the Statute does not provide in terms Who Shall pay the COStS. It is COntended by counsel for the sheriff and clerk that the county is liable under Section 990 of Kirby's Digest. This section provides, in effect, that when a county has any demand against any person or corporation, Suit may be brought in the name of the state for the use of the county, and that all COStS and expenses not recovered from the defendant shall

The total amounted to $1,201.20. The county Court denied his claim in toto, and he appealed to The circuit court refused

that section has any application to suits like the one under consideration. The act in question provides that the penalties established by the act shall be recovered in a civil action in the name of the state. St. L., I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S. W. 517. The suits in which the sheriff and clerk claim costs were brought in the name of the state. It is true that the complaints state that the suits are brought for the benefit and use of Chicot county, but this is a mere conclusion of the pleader. There is no provision in the act itself which makes the county liable for the costs, and we do not think that such liability can be sustained under the general statute just referred to. The county was not a party to the suit, and, in the absence of a statute making it liable for costs, it could not be properly taxed with the costs. In the case of State v. Blackburn, 61 Ark. 407, 33 S. W. 529, the court held that the costs in a bastardy proceeding could not be charged against the county where the defendant was acquitted. The court further held that bastardy is a subject of civil proceedings, and in discussing whether the costs could be taxed against the county in case of failure in the prosecution, said: “Our conclusion is that no one is bound for costs, unless rendered so by some positive provision of law, or as a necessary implication from provisions of law, and that neither the state nor the county is bound even by legal provisions, unless it is specifically or by necessary implication named or referred to therein.” Section 7183 of Kirby's Digest provides that all fines, penalties, and forfeitures imposed by any court, except those imposed by mayors' or police courts in any city or town, shall be paid into the county treasury for county purposes. So it will be seen that the fines and penalties in all Criminal cases go to the County. Prosecutions therefor are in the name of the State; but the counties are not liable for the COStS in the absence of a Statute making them liable. In Stalcup v. Greenwood District, 44 Ark. 31, and Craighead County v. Cross County, 50 Ark. 431, 8 S. W. 183, it was held that counties are not liable for costs in misdemeanors or felonies where a nolle prosequi had been entered. The reason assigned is that the liability Of counties for costs in criminal proceedings rested alone upon the Statute. The next General Assembly meeting after the decision in the case last mentioned enacted a Statute. SO as to make cases dismissed by nolle prosequi on the same basis as cases tried and resulting in an acquittal. In the Case last mentioned the Court said that Officers are frequently called upon to render services for which no specific compensation has been provided by law, and that this is especially true of Services rendered to the state Or to a county. The performance of Such Office. There being no provision in the act itself which makes the county liable for costs, nor any general statute under which Such a liability can be sustained, it may not be lawfully done. It follows that the judgment of the cirCuit Court Was Wrong in both cases. The judgments will therefore be reversed, and the causes of action of both the clerk and Sheriff Will be dismissed.

HALLIDAY v. STATE. (No. 198.) (Supreme Court of Arkansas. Nov. 1, 1915.)

INFANTS 3:13—Pool, RooM—ALLow ING MINOR TO ENTER – STATUTE – “FREQUENT’’ -“CONGREGATE.” Under Acts 1911, p. 63, § 1, providing that it shall be unlawful for the owner or keeper of any pool room to permit any person under the age of 18 to play pool or any other game, or to frequent or congregate in such pool room, where a father, who owned pool tables and paraphernalia, turned the same over to his son, a minor under 15 years, to operate, under an agreement whereby the boy took half the earnings of the tables, which were operated by him, the father having nothing to do with the operation, the room being left to the exclusive management of the boy, he taking entire charge of it, the father was not guilty of a violation of the act, since his son played neither pool nor billiards, but was merely employed in the establishment to operate it, while the act neither prohibits the leasing of a pool room to a minor nor employing a minor in such a place; the term “frequent,” when used in connection with the word “congregate,” implying the permission of visits to a pool room and not the mere giving of employment at such a place. [Ed. Note.—For other cases, see Infants, Cent. Dig. § 14; Dec. Dig. 3-13. For other definitions, see Words and Phrases, First and Second Series, Frequent; Congregate.]

Appeal from Circuit Court, Sevier County; Jeff. T. COWling, Judge.

S. R. Halliday was convicted of an offense, and he appeals. Judgment reversed, and cause dismissed.

Steel, Lake & Head, of Texarkana, for appellant. Wallace Davis, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

McCULLOCH, C. J. This is an appeal from a judgment of conviction under a statute enacted by the Legislature at the Session of 1911 which provides as follows:

“It shall be unlawful for the owner or keeper of any pool room, or pool hall or pool parlor or any employé of such owner or keeper to permit any person or persons under the age of eighteen (18) years, to play pool, billiards, or any other game, or frequent or congregate in such pool room or pool parlor or pool hall, or any department thereof.” Acts 1911, p. 63, § 1

The case was tried on the following agreed statement of facts:

“It is agreed by and between counsel for plaintiff and counsel for defendant that on or about the time alleged in the information in this case the defendant, S. R. Halliday, was the owner of pool tables and paraphernalia for a pool hall

in the town of Horatio, Sevier county, Ark.; that after acquiring said pool hall he turned the Same over to his son, George Halliday, a minor under the age of 15 years, to operate under an agreement or understanding that the boy should have half the proceeds or earnings from the tables; that the tables were operated by the said minor son under this agreement or understanding, and all moneys received were deposited in the bank by him and were checked out by him; that the defendant himself had nothing to do with the operation of the tables; being a carpenter, he was employed at his work, and the said pool hall was left to the exclusive management of the said minor; that said minor took charge of said pool hall, roomed in it, and conducted it with the consent and approval of the defendant.”

We are of the opinion that the facts do not bring the case within the operation of the Statute. Appellant's son did not play either of the games mentioned in the statute, but was merely employed in the establishment to operate it. The statute neither prohibitS leasing Of a pool hall to a minor nor employing a minor in such a place. If the lawmakers had intended to give that effect to the Statute, it could easily have been SO expressed. The language of the act is that it shall be unlawful for the owner to permit any person under the age of 18 years to “frequent or congregate in such pool room.” It is unnecessary for us to enter into any discusSion as to the full meaning which the lawmakerS intended to give to this language, but it is certain that no Such meaning Was intended as would bring this case within the operation of the statute. There is little, if any, difference in the definitions by the lexicographers of the Word “frequent.” According to the Century Dictionary it is defined thus: “To visit often; resort to habitually.” Another dictionary (New Standard) gives this definition: “To visit or repair to often; resort to habitually.”

When considering this Word in connection with the word “congregate,” which follows, Some difficulty may be found in determining with what degree of frequency visits to a pool room by a person within the prohibited age must occur in Order to constitute the Offense; but we readily reach the conclusion that the term used implies the permission of Visits to a pool room, and not mere giving employment to a minor at such a place. Giving employment to a minor at Such a place is not permitting the minor to visit Or to frequent Or Congregate With Others there.

The judgment is therefore reversed, and the cause dismissed.

DICKINSON, Auditor, v. PAGE, Commissioner, etc. (Nos. 172, 230.)

(Supreme Court of Arkansas. Oct. 18, 1915.)

1. STATUTES @->32 – ENACTMENT - VETO BY GOVERNOR. Const. art. 6, § 15, declares that if any bill shall not be returned by the Governor within 5 days after presentation, it shall be a law as if signed, unless the General Assembly, by

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