"The judicial power of the state shall be vested in one Supreme Court; in circuit courts; in county and probate courts, and in justices of the peace. The General Assembly may also invest such jurisdiction as may be deemed necessary in municipal corporation courts, courts of common pleas, where established, and, when deemed expedient, may establish separate courts of chancery." Article 7, § 1.

"Corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, and the General Assembly may invest such of them as it may deem expedient with jurisdiction of any criminal offenses not punishable by death or imprisonment in the penitentiary, with or without indictment, as may be provided by law, and, until the general assembly shall otherwise provide, they shall have the jurisdiction now provided by law." Article 7, § 43.

The first contention is that the statute is void because it attempts to abolish the jurisdiction of justices of the peace as to misdemeanor cases in the township in which it applies. The section of the act which defines the jurisdiction of municipal courts reads as follows:

Another section provides for transferring to the municipal courts all misdemeanor cases pending before justices of the township at the time of the approval of the act. The right to collect fees already earned by justices of the peace in pending misdemeanor cases is preserved.

[1] Section 40, art. 7, of the Constitution, after defining the civil jurisdiction of justices of the peace, contains a subdivision which reads as follows: "Such jurisdiction of misdemeanors as is now, or may be prescribed by law." At the time of the adoption of the Constitution of 1874 justices of the peace were clothed with jurisdiction in misdemeanor cases concurrent with the circuit court. The argument now made before us is that, under a fair construction of the language of the Constitution, the Legislature may restrict or diminish the jurisdiction of justices of the peace in misdemeanor cases, but cannot take away entirely all such jurisdiction. The language is too broad, we "Sec. 10. The municipal courts shall have orig- think, to justify that construction. If that inal jurisdiction coextensive with the county. had been intended by the framers of the The jurisdiction shall be exclusive of the jus- Constitution, they would have employed a tices of the peace and of the circuit court over the violation of all ordinances passed by the different phrase. It does not declare any City Council; exclusive of the justices of the continuing jurisdiction in misdemeanors, but peace in townships subject to this act, and con- only such jurisdiction as was then prescribed current with the circuit court over all misdemeanors committed in violation of the laws of by law or might thereafter be prescribed by the state within the limits of the county; con- law. Now, the Constitution in this particucurrent with the justices of the peace and ex- lar, as well as in all others, is not a grant clusive of the circuit court in all matters of contract where the amount in controversy does of powers to the lawmakers, but a limitanot exceed the sum of one hundred dollars tion of powers, and when it was said that ($100.00), excluding interest; concurrent with justices of the peace shall have such jurisjustices of the peace and with the circuit court diction as "may be prescribed by law," it in matters of contract where the amount in controversy does not exceed the sum of three hun- was obviously meant that the will of the dred dollars ($300.00), exclusive of interest; lawmakers should be supreme in determinin suits for recovery of personal property where ing how much jurisdiction, if any, should be the * * * amount in controversy does not exceed the sum of one hundred dollars ($100.- conferred upon justices of the peace, sub00). Municipal courts shall also have jurisdic-ject to the jurisdiction vested in the circuit tion to sit as examining courts and commit, courts by another section of the Constitudischarge or recognize offenders to the court having jurisdiction for further trial, and to bind persons to keep the peace or for good behavior."

Section 19 defines the civil jurisdiction of justices of the peace in townships subject to the act the same as is provided by the Constitution, and concludes with the following as to jurisdiction in other matters:

"Justices of the peace in townships subject to this act shall also have jurisdiction to sit as examining courts and commit, discharge or recognize offenders to the court having jurisdiction for further trial, and to bind persons to keep the peace or for good behavior, and for the purposes set out in this section they shall have power to issue all necessary process."

Section 20 fixes the compensation of justices of the peace in those townships at a salary of $25 per annum, and in addition thereto the compensation now prescribed by statute for sitting as members of the county levying court, and also "such fees as are allowed to justices of the peace by the general laws for solemnizing marriages, taking and certifying acknowledgments,

tion.

The only approach to a construction by this court of the constitutional provision now under consideration is found in the opinion in the case of State v. Devers, 34 Ark, 188, where it was said:

force when the Constitution was adopted jus"We have above shown that by the law in tices of the peace had jurisdiction of all misdemeanors, and they will continue to have such jurisdiction until otherwise prescribed by law. *** The framers of the Constitution of 1874 simply said, in effect, by the third clause of section 40, above copied, that they might continue to exercise such jurisdiction until otherwise prescribed by law, but there is nothing in this clause, or in the section of which it is a part, or in any section of the article on the judicial department, from which it may be fairly implied that the framers of the Constitution intended to leave the Legislature at liberty to deprive the circuit courts of all jurisdiction of misdemeanors."

The language there used certainly bears out the interpretation we now place on the provision that the Legislature has the power *to abolish the jurisdiction of justices of the attending to the duties of coroner, and for peace in misdemeanor cases.

* *

should be found that there is an attempt to thus extend the jurisdiction, that would not impair the validity of the remainder of the act. In other words, if we should decide that there is an attempt in the statute to thus extend the jurisdiction, and that it is invalid to that extent, that part of it could be stricken out and the remainder upheld, for there is no reason to doubt that the Legislature would have enacted the statute with that part omitted. Oliver v. C., R. I. & P. Ry. Co., 89 Ark. 466, 117 S. W. 238.

as the Constitution only authorizes the Legislature to confer upon such corporation courts "jurisdiction concurrent with justices of the peace," it is necessarily implied that the criminal jurisdiction of justices of the peace cannot be entirely abolished, and at the same time the jurisdiction of the corporation courts in those matters put in force. The argument is, in other words, that because of this peculiar language of the Constitution only jurisdiction concurrent with justices of the peace can be conferred upon corporation courts, and that the attempt to [5] No limitation is found in the Constituabolish the jurisdiction of justices of the tion upon the power of the Legislature to peace, if effectual, destroys the power to vest jurisdiction in municipal courts, when confer jurisdiction which, it is contended, established, beyond the geographical limits cannot under the Constitution be exercised of the municipalities. Nor can it be said otherwise than concurrently with justices that there exists any policy or sound reaof the peace. We do not think, however, that son for restricting the jurisdiction to such the language just referred to meant to con- geographical limits. The authorities cited fine the jurisdiction of municipal courts to on the briefs of counsel do not sustain the such jurisdiction as might always be exer- contention that there is such an inherent cised by justices of the peace, but it was limitation upon the power of municipal meant as authority for the Legislature to courts. Unless the organic law forbids, the confer such jurisdiction upon municipal Legislature may extend the jurisdiction becourts as might, under the Constitution, beyond the territorial limits of the municipaliconferred upon justices of the peace. The ties. The authority found in the Constitujurisdiction to be vested in municipal courts tion is to vest jurisdiction in municipal courts is, in other words, not necessarily to be exer- concurrent with the jurisdiction of justices cised concurrently with justices of the peace, of the peace in criminal and civil matters; but coextensive with the jurisdiction which that is to say, concurrent with the juriscould, under the Constitution, be vested in diction which it is within the power of the justices of the peace. Legislature to confer upon justices of the peace. The Constitution does not by its express terms restrict the jurisdiction of justices of the peace to the territorial limits of the township in which they are elected to serve; therefore the jurisdiction of municipal courts finds no such restriction in the Constitution. At the time of the adoption of the Constitution of 1874 corporation courts in cities of the first class exercised the same jurisdiction under statutes, then in force as did justices of the peace (Gantt's Digest, § 3283), which thus extended the criminal jurisdiction to the territorial limits of the county, the same as that exercised by justices of the peace.

[3] In reply to the contention that the statute is unconstitutional in its attempt to give jurisdiction to municipal courts to sit as examining courts, it is sufficient to say that the language of the Constitution is very broad in stating that such courts "may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters." The Constitution does not, as counsel for petitioner contend, vest exclusive jurisdiction in justices of the peace to sit in examining trials. It expressly confers "original," but not exclusive, jurisdiction, and in parceling out jurisdiction in such cases the Legislature has the power to vest concurrent jurisdiction in municipal courts. The act under consideration does not attempt to abolish the jurisdiction of justices of the peace in those matters. This court decided in Harris v. State, 60 Ark. 209, 29 S. W. 640, that a corporation court had jurisdiction as an examining court within the city limits.

[4] The next contention is that the statute is unconstitutional because it extends the jurisdiction of the municipal courts beyond the geographical boundaries of the municipalities. The act undoubtedly attempts to confer jurisdiction of such courts coextensive with the county in criminal matters, and in civil matters coextensive with the township in which the city is situated. Whether or not the jurisdiction in civil matters is coextensive with the limits of the county, it is unimportant to decide, in determining the

[6, 7] This court is thoroughly committed to the rule that the provision of the Constitution requiring notice of a special bill is a mere direction to the Legislature itself, and it is therefore unnecessary to devote any time to the discussion of the point raised in this case that this act is void because it is a special one, and that no notice was given. Moreover, the act establishing these municipal courts is not a special one within the meaning of the Constitution. Waterman v. Hawkins, 75 Ark. 120, 86 S. W. 844.

[8] The argument that the act is void because it attempts to impair the vested rights of justices of the peace in the fees and emoluments of the office is unsound; for the reason that such officers have no such vested rights, and the matter is subject to regulatíon at any time by the Legislature. Hum

The last contention of counsel for peti-| tioner (the sixth) is disposed of by what has been already said concerning the other points of attack.

Upon the whole we are unable to discover any conflict in this statute with the Constitution of the state; that is to say, a conflict in a matter which would invalidate the whole act, and which would vitiate the title of respondents to the offices created by the statute.

At the time of the execution of the contract Hanley paid the purchase price of the property, which was $6,500. On the 5th day of September, 1913, while Waters was still in possession of the property, and before a deed to the same had been executed by him to Hanley, the house and improvements on the lots were burned without fault of either party. Hanley instituted this action in the circuit court against Waters to recover $6,500, the purchase price, on the ground that

The judgment of the circuit court is there- the destruction of the improvements operatfore affirmed.

KIRBY, J., dissents.

WATERS v. HANLEY. (No. 190.)

1. HOMESTEAD

(Supreme Court of Arkansas. Oct. 25, 1915.)
118-SALE-EXECUTORY
CONTRACTS-VESTING OF TITLE.
Where defendant, a married man, signed an
executory contract for the sale of his homestead,
receiving the purchase price, but continuing to
occupy the premises for a time, during which
they were destroyed by fire, he cannot, by deed
of himself and wife made subsequent to the fire,
thrust the loss upon the vendee under the con-
tract, since the contract was wholly executory,
and, being of the homestead, was not binding
upon his wife, and therefore not binding upon
the vendee.

[Ed. Note. For other cases, see Homestead, Cent. Dig. §§ 192, 195, 203-209, 216, 217; Dec. Dig. 118.]

2. HOMESTEAD 118-RIGHTS OF WIFESALE.

Under Kirby's Dig. § 3901, providing that no instrument affecting the homestead of any married man, unless his wife joins in the execution, shall be valid, a deed purporting to convey a homestead of a married man is void where the wife fails to join; nor can he without her signature make a contract to convey the homestead which will be binding on her.

[Ed. Note.-For other cases, see Homestead, Cent. Dig. 88 192, 195, 203-209, 216, 217; Dec. Dig. 118.]

Appeal from Garland Chancery Court; Jethro P. Henderson, Chancellor.

Action by Thos. L. Hanley against W. W. Waters. From a judgment for plaintiff, defendant appeals. Affirmed.

A. J. Murphy, of Hot Springs, and Moore, Smith & Moore, of Little Rock, for appellant. T. P. Farmer and C. Floyd Huff, both of Hot Springs, for appellee.

HART, J. W. W. Waters and Thomas L. Hanley entered into an executory contract for the sale of certain property, as follows:

"Hot Springs, Ark., August 21, 1913. "I have this day sold to Mr. Thomas Hanley, my residence and lot, with all buildings thereon, on Garden street, in the city of Hot Springs, Ark., for the sum of six thousand five hundred dollars, cash in hand, to give possession on September 15, 1913; all time after said date I am using said premises to pay $40 per month for same; all papers to be made by the 20th of September, 1913. W. W. Waters."

ed as a rescission of the contract. Waters answered, and admitted that he was residing on the property at the time the house and other improvements were burned, and stated that at the date of the execution of the contract he was a married man, and at homestead, and was still occupying it as such that time occupying the property as his at the time of the fire; that on the 5th day of September, 1913, all of the buildings on said lot were destroyed by fire without the fault of either party; that subsequent to the fire, and before the 20th day of September, 1913, he executed a warranty deed to Hanley to said property; and that his wife joined in the execution of said deed.

On motion of Waters the cause was transferred to the chancery court, and was tried there by the chancellor on an agreed statement of facts substantially as stated above, and therefore not necessary to be repeated here. The chancellor found the issues in favor of the plaintiff, Hanley, and the defendant, Waters, has appealed.

[1] Counsel for the defendant argue for a reversal of the decree upon the ground that, where a contract is made for the future conveyance of land and the buildings situated thereon, with no provision as to the contingency of the buildings being destroyed by fire before the time appointed for the conveyance, the loss by such fire falls wholly upon the vendee. On the other hand, it is contended by counsel for plaintiff that in such case the loss falls upon the vendor. Many authorities are cited by them in support of their respective contentions. It must be admitted that the authorities are in irreconcilable conflict on this question, but, under the facts in this case, we do not deem it necessary to spend any time upon the numerous decisions in England and in this country upon the question.

The facts are undisputed, and show that the property in question was the homestead of Waters, and that his wife was living at the time of the execution of the contract, and that Waters resided upon the property at the time the contract was made and at the time the fire occurred.

Those cases which hold, as well as the text-writers who adopt the rule, that where buildings are destroyed by fire occurring between the date of the contract and the con

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

tenses, if false, unless the prosecuting witness gave it in settlement of a felony, and the prosecuting witness himself being thus guilty of a crime, the law would not listen to his complaint. This doctrine was applied in McCord v. People, 46 N. Y. 470, where the accused falsely pretended to be an officer with a warrant to arrest the prosecuting witness, and thereby induced the witness to deliver to him certain property. The court held that the prosecutor parted with his property as an inducement to a supposed officer to violate the law and his duty, and that the indictment could not be sustained. The court said:

"Neither the law or public policy designs the protection of rogues in their dealings with each other, or to insure fair dealing and truthfulness, as between each other, in their dishonest practices. The design of the law is to protect those who, for some honest purpose, are induced, upon false and fraudulent representations, to give credit or part with their property to another, and not to protect those who, for unworthy or illegal purposes, part with their goods.'

government plates. Deakin told him that it | the prosecuting witness by the alleged prewas bogus, and Lucas replied that it was as good as any money. Lucas asked Deakin if he had received a letter from a man named Bacon, and Deakin replied that he had not. Later he received a letter from Paul Bacon at Memphis, Tenn. The letter stated that the writer had some money that had been made from a stolen government die which could not be told from good money; that they would send out some of this money for a certain per cent. A second letter was reA second letter was received by Deakin which contained a sample bill. Deakin answered the second letter, and sent his reply to Paul Bacon at Memphis. He received further letters in regard to the matter, but they were sent by C. V. Mansfield, and were mailed at points in the state of Missouri. In one of these letters the writer stated that detectives had followed his men from the post office, and had taken possession of their mail; that he feared the detectives had gotten a letter written to them by Deakin, and on that account advised Deakin to lay low for a few days. The writer also stated that the boys had gotten away The fallacy of this reasoning is shown in with the plates and had paid the detectives the dissenting opinion by Peckham, J., where to turn him loose. The letter also stated he points out that the primary object sought that the writer did not think that the de- to be accomplished in prosecutions for crime tectives would arrest his customers. Sub- is the suppression of crime, and the protecsequently the defendant came down to the tion of the public. For this reason, the gin where Deakin was working and told him principle of civil jurisprudence that, where that he was never more surprised than when the injured person is a party to the crime or he got a letter from Mr. Callahan stating unlawful enterprise, he will not be heard that Deakin had written for some counterfeit to complain, and the law will leave the parmoney. The defendant told Deakin that he ties where it finds them, has no application had violated the federal laws, and Deakin to criminal proceedings. In criminal proreplied that he had. The defendant then ceedings the state is the prosecutor, and the exhibited to Deakin the letters he had writ-proceeding is in its name. The complainant ten about the money. Defendant further is no party to the proceeding. The prosecustated to Deakin that the only thing he could do was to pay off; that it would take $100, but that he would let him off for less. He finally paid the defendant $300. Deakin stated that the defendant, Lawson, represented to him that he was a revenue officer, and also stated that it was his duty and power to arrest him for violating the criminal laws of the United States, but that the defendant was not, in fact, an officer of the United States; that he paid the defendant $300, and that the defendant did not arrest him. He first stated that the defendant told him that, if he would give him $300, that would settle the fine and penalty against him for violating the federal laws, and that he paid the defendant $300 in settlement of this fine and penalty. Again he stated that the defendant told him that the payment of the $300 was an end of the matter, and that he (the defendant) would protect him; that the defendant further promised to protect him and to withhold all the information acquired by him.

tion of the accused by the state is not for the benefit of the complaining party, but its purpose is to punish a public offense and to prevent wrongdoing.

It is no answer to say that the accused should not be punished because the prosecuting witness was also guilty of an offense in the same transaction. This rule was applied in the case of Perkins v. State, 67 Ind. 270, 33 Am. Rep. 89, where the court held that one who falsely represents himself to another as an officer having a warrant for the arrest of the other for forgery, and power to compromise the offense, and threatens to arrest him, and by means of such representation and threats obtains from him a valuable thing as a consideration for not making the arrest, is guilty of the crime of false pretenses.

In Commonwealth v. Henry, 22 Pa. 253, it was alleged in an indictment that the defendant, with intent to defraud the prosecutor, falsely asserted to him, and also to another person who communicated it to him, [1] It is insisted that the defendant can- that he had a warrant, issued by compenot be held guilty of obtaining money by tent authority, commanding the arrest of false pretenses under our statute, because the daughter of the prosecutor, for an offense