Where "defendant agreed in open court Suit by Special School District No. 2 that judgment might be rendered against against J. F. Black and others. Judgment him," we held that such recital was not a for plaintiff, and defendants appeal. confession of judgment and could only be re-firmed. garded as a judgment nil dicit. Walker v. Wills, 5 Ark. 166.

BLACK et al. v. SPECIAL SCHOOL DIST. of Miller county, Ark., by its directors, sued the stockholders of the Texarkana

(Supreme Court of Arkansas. Jan. 25, 1915.) Company, to recover the sum of $3,217.66,

[1, 2] It is unnecessary to decide here liability of shareholders in hig tions where that liability scenes stat banking act of 1913 became efet facts here are that this banking at d was not in force at the time the appellants became fixed. The depust z case was made and the trust olja failed and been placed in the hands c ceiver before this banking act vas ⠀ The presumption is that all legsint & tended to act prospectively. EIL 17 spectively. Sections 1990-200° of Ex gest were intended for the proce custodians of the public funds theme and we find nothing in the bang dicate any purpose to change the shareholders of banking instiruts public funds had been deposited vo liability had become fixed by the 1 pay over as required by those st we need not, therefore, consider of the Legislature to change th had such purpose been madere banking act.

By an act numbered 137 of the is sembly of 1891, found at page of that year, it was enacted tha "It shall be unlawful for e state, or of any county, towns porated town in this state, or or other person employed ty having the custody or possess. funds, by virtue of his o to use any of such funds in E ever for his own purpose or bee any of such funds to any pers whomsoever or whatsoever, or 1 son or corporation, whomsoe to use any of such funds, any such funds to any pe knowing that he is not er for any such officer to w.. pay over any such funds: office at the expiration of ha

The Legislature of 19% by the addition of the fo IE "But collectors of taxe treasurers of cities and in deposit the public funds t corporated banks for safes officers and the sureties r the bank and the stockton → be liable for all funds mand shall fail to pay 1 receive the same.' Lawe

Section 1993 of Kiri of the above-mention provides:

"For the purpose : shall be construed t the United States. : town or school war: having a money ve to any county, city district therein."

It is thus se.. de unla

to n

H

on.

ne sum of 6 per cent. 909, to the the judgment per cent. per idley Lumber er facts will be

en, for appellant. and Williamson & ,, for appellees.

g the facts as above). S. R. Co. v. Ayres, 67 9, an action for the reor the negligent burning the damages were held to 1 the value of the land bee fire which destroyed the se the trees were young and or the market. Therefore the he trees was a depreciation of he land of which they were a

present case the timber was he market, and no damages were any depreciation in the value of It will also be noted that the court at the defendant Bradley Lumber

y cut timber from the land while it lor of title and under the mistaken beat it was the true owner thereof. We ot deem it necessary to fully abstract the mony on that point for it supports the ding of the court.

The effect of our decisions in the cases of Eaton v. Langley, 65 Ark. 448, 47 S. W. 123, 42 L. R. A. 474, and Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W. r 49, is that the measure of damages for the e conversion of standing timber is the value of the timber at the time and place of the concut version, if the cutting was done in good faith; vhile but, if the cutting was done in bad faith, the taken enhanced value of the timber might be recov1,129,- ered. To the same effect, see United States 1 it and v. Flint Lumber Co., 87 Ark. 80, 112 S. W. er. The 217. er in the

and that as $3.20 per the pine timtter sum. He $3,615.42; and O oak ties made 1, and that their amounting to $96. both the defendheir exceptions in rruled the excepdefendant to the o the 300 oak ties. the value of $30, d by the master. plaintiffs owned a

In the case before us, testimony was introduced tending to show the value of the timber at the nearest shipping point and the cost of cutting the same and transporting it there. This testimony was competent to show the value of the timber at the time and place where it was converted by the defendant. We do not think it necessary to abstract the testimony or to comment upon it in detail. We deem it sufficient to say that the testimony abundantly supports the finding of the master and of the chancellor that the market value of the timber at the time and place it was converted by the defendant was $3.20 per thousand. It can be readily seen that timber at one place, on account of its accessibility to the market, might be worth much more than if it were situated at a more re

1 the defendant a

ture so intended, and that the Legislature not made in his name, it should have been. assumed that the treasurer would necessa- This bank is no longer a going concern, but rily be the custodian of such funds, without is now in the hands of a receiver, and there express provision to that effect. has been a consequent failure to pay this deposit to the person entitled to receive it, and that person is a county treasurer, who has the right, under section 1990 of Kirby's Digest, to deposit public funds in the custody of an incorporated bank, the stockholders of which are thereby made liable to him individually for the full amount thereof.

The section of the Constitution quoted mentions only "common school fund," but no provision is made for any other officer to be the custodian of public funds, after the same have been collected.

Various sections of the digest, which we need not set out, defining the duties of the treasurer and providing for his settlements, together with various sections of the statutes relating to the conduct of the public schools of the state, and the disbursement of their funds, make it evident that the Legislature contemplated the county treasurer should be the custodian of all the funds belonging to the various districts of the county, whether common school or special.

The judgment of the court below will not be reversed because the treasurer of the county is not a party to this litigation.

In the case of Clarke v. School District No. 16, 84 Ark. 516, 106 S. W. 677, which was a suit by a school district against one of the directors thereof for money which had erroneously been paid to said director, in which suit, however, the county treasurer had been made a party, the court said:

"The school district, having been reimbursed by Bussell (the county treasurer), was not a necessary party. It was not, however, an improper party, for the funds belonged to it; and, as it had been paid, it could sue for Bussell's benefit. * * here was only a party for the benefit of Bussell, * In reality, the school district it having already been paid."

So here the recovery is for the benefit of the county treasurer as the legal custodian of the funds, and the judgment of the court below is therefore affirmed.

The case of Helena Special School District v. Kitchens, 108 Ark. 137, 156 S. W. 441, does not conflict with this view. It was decided in that case that the county treasurer was not entitled to commissions upon the proceeds of a sale of bonds issued by the Helena special school district, but it was not there decided that the treasurer was not the proper custodian of the money. It does appear, from the statement of facts in that case, that the funds derived from the sale of the bonds were never placed in the treasurer's hands; but the right to the custody of those funds was not involved in that litigation. Indeed, it appears from the statement of facts, that the fund had been entirely disbursed by the officers of the district in BRADLEY LUMBER CO. v.. . HAMILTON the construction of the buildings, for the payment of which the bonds had been issued. The decision in that case was uninfluenced by the fact that the treasurer had never had the custody of the money.

McCULLOCH, C. J., dissents. See 173 S. W. 1104.

et al. (No. 184.)

(Supreme Court of Arkansas. Feb. 15, 1915.) 1. TROVER AND CONVERSION 44-RECOVERY-MEASURE OF DAMAGES.

The measure of damages for the conversion of standing timber is the value of the timber at the time and place of the conversion, if the cutting was in good faith; but, if done in bad faith, the enhanced value of the timber may be

recovered.

2. APPEAL AND ERROR 1033 REVIEW RIGHT TO COMPLAIN.

Defendant cannot complain of an error in

its favor.

In the case of Honey v. Greene County, 102 Ark. 106, 143 S. W. 592, we held, in a case where the county treasurer had had the custody of certain drainage funds under [Ed. Note. For other cases, see Trover and the general drainage law of the state enti- Conversion, Cent. Dig. §§ 260, 261; Dec. Dig. tling him to such custody, that no commis-44.] sion could be charged because none had been provided for. And in the more recent case of Haley v. Thompson, 172 S. W. 880, we held that a collector was not entitled to commissions on certain drainage funds, although he had been required by the law to make this collection, for the reason that no provision had been made for the payment of his commission. So, an officer may be entitled to the custody of public funds and may be required under his bond to account for them, and yet be entitled to no commission for handling them.

[4] The treasurer of Miller county is not a party to this litigation; yet he is the beneficiary of it, because he is entitled to the custody of the deposit, for, although it was

[Ed. Note. For other cases, see Appeal and Error, Cent. Dig. §§ 4052-4062; Dec. Dig. 1033.]

3. TROVER AND CONVERSION
ANCE OF INTEREST.

53-ALLOW

Where timber was cut and converted before November, 1909, interest may be allowed from that time, for the damages were then reasonably ascertainable by reference to the market

value.

[Ed. Note. For other cases, see Trover and Conversion, Cent. Dig. § 254; Dec. Dig. 53.]

Appeal from Bradley Chancery Court; Z. T. Wood, Chancellor.

Action by Mrs. A. A. Hamilton and others

against the Bradley Lumber Company. From decreed that the plaintiffs recover the sum of a decree for plaintiffs, defendant appeals. Affirmed.

$2,734.07, with interest thereon at 6 per cent. per annum from November 1, 1909, to the date of the judgment, and that the judgment bear interest at the rate of 6 per cent. per The defendant Bradley Lumber Company has appealed. Other facts will be stated in the opinion.

annum.

D. A. Bradham, of Warren, for appellant. J. R. Wilson, of Warren, and Williamson & Williamson, of Monticello, for appellees.

HART, J. (after stating the facts as above). In St. Louis, I. M. & S. R. Co. v. Ayres, 67 Ark. 371, 55 S. W. 159, an action for the recovery of damages for the negligent burning of young oak trees, the damages were held to be the difference in the value of the land before and after the fire which destroyed the trees. In that case the trees were young and were not ready for the market. Therefore the destruction of the trees was a depreciation of the value of the land of which they were a part.

[1] In the present case the timber was ready for the market, and no damages were sought for any depreciation in the value of the land. It will also be noted that the court found that the defendant Bradley Lumber Company cut timber from the land while it had color of title and under the mistaken belief that it was the true owner thereof. We do not deem it necessary to fully abstract the testimony on that point for it supports the finding of the court.

The Bradley Lumber Company bought certain lands situated in Bradley county, Ark., from C. C. Colvin in 1905, and in 1909 cut and removed the timber on said land. Colvin obtained a deed from the state of Arkansas and sold 120 acres of it to the Bradley Lumber Company and resided upon the remaining 40 acres. In 1912, Mrs. A. A. Hamilton and others instituted a suit in the chancery court for the recovery of this land and sought to cancel the deed from the state to Colvin and from Colvin to the Bradley Lumber Company as a cloud upon their title. The chancery court decreed a three-fourths undivided interest to Mrs. Hamilton and the other plaintiffs, and a one-fourth undivided interest to the Bradley Lumber Company. The case was appealed to the Supreme Court and affirmed. See Bradley Lumber Co. v. Hamilton, 109 Ark. 1, 159 S. W. 35. In a subsequent opinion in the same case, reported in 109 Ark. at page 598, 170 S. W. 82, a motion was made to modify the decree and was overruled. A master had been appointed and directed to determine the amount to be awarded as damages, and the appeal upon that part of the decree canceling the title of the Bradley Lumber Company and adjudging the title to be in the plaintiffs Mrs. Hamilton and others was prosecuted without waiting for the report of the master to come in. The court held that the adjudication of the value of the timber was a separate issue which the affirmance of the original decree did not affect. The master made a report upon the evidence taken before him and found a state of facts substantially as follows: The timber was cut from the land within less than three years before the institution of the action. The defendant Bradley Lumber Company cut and removed the timber from the land while it had color of title and under the mistaken belief that it was the true owner, and 1,129,620 feet of pine timber was cut from it and also a small quantity of oak timber. The master found that the pine timber in the In the case before us, testimony was introtrees was worth $2 per thousand, and that duced tending to show the value of the timthe market value of the timber was $3.20 per ber at the nearest shipping point and the cost thousand, and fixed the value of the pine tim- of cutting the same and transporting it there. ber cut from the land at the latter sum. He This testimony was competent to show the found that this amounted to $3,615.42; and value of the timber at the time and place also found that there were 300 oak ties made where it was converted by the defendant. from the timber on the land, and that their We do not think it necessary to abstract the value was 32 cents per tie, amounting to $96. testimony or to comment upon it in detail. To the report of the master both the defend- We deem it sufficient to say that the testiant and the plaintiffs filed their exceptions in mony abundantly supports the finding of the due form. The court overruled the excep- master and of the chancellor that the market tions of both plaintiffs and defendant to the value of the timber at the time and place it master's report, except as to the 300 oak ties. was converted by the defendant was $3.20 These were found to be of the value of $30, per thousand. It can be readily seen that instead of $96 as reported by the master. timber at one place, on account of its accessiThe court found that the plaintiffs owned ability to the market, might be worth much three-fourths interest and the defendant a more than if it were situated at a more reone-fourth interest, and it was ordered and mote place, where it would be more difficult

The effect of our decisions in the cases of Eaton v. Langley, 65 Ark. 448, 47 S. W. 123, 42 L. R. A. 474, and Central Coal & Coke Co. v. John Henry Shoe Co., 69 Ark. 302, 63 S. W. 49, is that the measure of damages for the conversion of standing timber is the value of the timber at the time and place of the conversion, if the cutting was done in good faith; but, if the cutting was done in bad faith, the enhanced value of the timber might be recovered. To the same effect, see United States v. Flint Lumber Co., 87 Ark. 80, 112 S. W. 217.