bate court his fifth account current and final settlement showing a balance of $7,216.64 in his hands. This account was confirmed by the court in July, 1875, and on the 15th day of July, 1875, the court entered an order directing Jacoway, as administrator, to distribute this sum pro rata on all the fourth-class claims probated against the estate, and pay to the owners of such claims 39 cents and 8 mills on each dollar of their respective claims. Jacoway, in pursuance of this order, subsequently distributed the same around to all of the fourth-class creditors except A. J. Dyer and Isabella Johnston. He tendered to each of them also the sum required, but did so on condition that they execute to him a receipt in full of all demands against the estate. They declined to give a receipt in full, and no part of their claims was paid. In 1876, A. J. Dyer and Isabella Johnston filed a suit against Jacoway and his bondsmen to surcharge and falsify his fifth account current and final settlement. This suit was brought in the wrong district of the county, and was in 1877 dismissed for want of jurisdiction. In 1878 the same parties brought a similar action in the other district of the county against Jacoway and his sureties. On the 19th of July, 1878, Jacoway executed another mortgage to his securities to protect them against liability on his bond, the conditions therein being substantially the same as the mortgage to them executed in 1875. One of the sureties was dead at the time the first mortgage was executed, and two were dead when the last mortgage was executed. The suit in equity was dismissed for want of equity, and this judgment was recovered on appeal. See Dyer v. Jacoway, 42 Ark. 186. Although a decree was rendered against Jacoway and his bondsmen in that action, and this judgment was again revoiced by the Supreme Court, and the cause remanded for further proceedings. See Dyer v. Jacoway, 50 Ark. 217, 6 S. W. 902. A final decree in said case was entered in the Yell circuit court in chancery under the directions of said mandate at the August term, 1893, thereof, surcharging and falsifying the account of the administrator in accordance with the aforesaid opinion of the court. Said decree further provided as follows: "And it is further ordered that the administration of the estate of the said Samuel Dickens be remanded back to the probate court, to be administered in due course of law, and that this decree be certified by the clerk under the seal of this court to the probate court of Yell county in and for the Danville district, and the proceedings in the due course of administration of said estate be continued there upon the basis of the said Jacoway's fifth annual settlement as the same is corrected and reformed by this decree." Afterwards the probate court asked an order making a final settlement in the case, from which judgment on appeal was taken to the circuit

court. That court made some changes in the judgment of the probate court, and both parties appealed from the judgment of the circuit court to the Supreme Court. The judgment of the circuit court was voiced, and the clerk of the Supreme Court was ordered to relate the account in accordance with the opinion. See Jacoway v. Hall, 67 Ark. 340, 55 S. W. 12. In pursuance to the mandate of the Supreme Court, the circuit court of Yell county for the Danville district, at its August term, 1900, found that Jacoway was due the estate of Dickens the sum of $2,350.32. But this indebtedness of Jacoway to the estate is made up almost entirely of amounts which had been found due from Jacoway by probate court in 1875, and which he had been ordered to pay over to the fourthclass claimants in that year, and the interest on such amounts as of the date of April 15, 1895, with interest at 6 per cent. until paid, and judgment was entered against Jacoway in favor of plaintiff A. J. Dyer for $120.90 and in favor of the estate of Isabella A. Johnston for something over $2,000. After the recovery of this judgment, A. J. Dyer and the administrator of the estate of Isabella A. Johnston brought this suit to be subrogated to the rights of the sureties in the mortgage of April, 1875, and to foreclose the same. The complaint alleged that Brooks, Neely & Co. were in possession of the lands mortgaged, and they were made defendants to the action. The complaint further alleged that W. D. Jacoway had conveyed certain lands to his children in fraud of his creditors, and that such conveyances be set aside, and the lands subjected to the payment of the claims of plaintiff. The defendants Brooks, Neely & Co., who now claim the land mortgaged to the sureties, filed an answer showing that the sureties to whom the mortgage was executed had executed a written release of this mortgage to Jacoway in 1882; that afterward Jacoway had, in 1882, conveyed a part of this land to one Atwood, who in turn conveyed it to James K. Perry, and that the remainder of the land had been sold and conveyed by Jacoway to said Perry in 1886, and that Brooks, Neely & Co. hold under Perry. Defendants alleged that Atwood and his grantor, by virtue of said release and conveyance, acquired title to the property free from the lien of the mortgage, and they further set up the statute of limitations and laches in bar of the action. Jacoway and his children filed an answer in which they deny that the conveyance to his children referred to in the complaint was made to defraud creditors, or that Jacoway is the owner of such land. Upon the hearing the chancellor found that Jacoway, at the time he conveyed the lands to his children referred to in the complaint, was perfectly solvent, and owned much more property than was required to pay his debts, and that no right of subrogation was shown, and that on the whole case

there was no equity in the complaint, and dismissed the same. From this judgment plaintiff appealed.

L. C. Hall and Ratcliffe & Fletcher, for appellants. John M. Parker, J. M. Moore, and W. B. Smith, for appellees Brooks, Neely & Co.

RIDDICK, J. (after stating the facts). This is a suit in equity by certain creditors of the estate of Samuel Dickens to be subrogated to the rights of the sureties on the bond of the administrator of that estate in a mortgage executed by the administrator to them to indemnify and protect them from liability on such bond. The complaint also set up that certain conveyances made by the administrator to his children were fraudulent, and asked that they be set aside. The chancellor found against the plaintiffs on both issues, and in the brief and argument in this court counsel for plaintiffs do not ask us to review the finding of the chancellor as to the conveyances made by the administrator to his children many years ago. But they insist that under the facts they are entitled to be subrogated to the rights of the sureties in the mortgage executed to them by the administrator.

If

Now, there seems to be a distinction between those conveyances made by a principal to a surety both for the purpose of protecting him and to secure the payment of the debt and those executed merely to indemnify the sureties against liability. the conveyances are made to the surety for the purpose of securing the payment of the debt, the creditor has an interest therein which the surety cannot destroy. But if the conveyance to the surety is only to indemnify him, then such security does not, in the first instance, attach to the debt, and whatever equity may arise in favor of the creditor with regard to the security arises afterwards, and in consequence of the insolvency of the parties principally liable for the debt. Until this equity arises the surety has a right in equity as well as at law to release the security. Even after such insolvency the mortgagee may surrender the security if he does it in good faith and before any claim is made upon him for it. The application of it for the benefit of third persons can only be accomplished by the interposition of a court of equity, and in case the mortgagee still claims the security, or when he has conveyed it under circumstances tending to show bad faith or collusion between him and the mortgagee. Jones v. Quinnipiack Bank, 29 Conn. 25; Daniel v. Hunt, 77 Ala. 567; Fertig v. Henne, 197 Pa. 560, 47 Atl. 840; Pool v. Doster, 59 Miss. 258; Stewart v. Welch, 84 Me. 308, 24 Atl. 860; Jones on Mortg. (6th Ed.) § 387; Harris on Subrogation, §§ 591, 594. But in this case the mortgage was executed in 1875 to the six sureties on the bond of Jacoway.

came

At the time the mortgage was executed, J. M. Cole, one of the sureties named therein as a grantee, had been dead three years, and neither he nor his heirs took any legal interest by virtue of the mortgage. Brown, another one of the sureties, died in 1876. Afterwards, in 1882, the four remaining sureties executed a release to Jacoway, in order that he might sell the land. The facts show that this release was executed in good faith, and that afterwards the land mortgaged passed into the hands of parties who paid a valuable consideration therefor, and through mesne conveyances into the possession of the defendants Brooks, Neely & Co., who are bona fide holders for value. The only surety who took any interest by such mortgage that did not join in the execution of the release was Brown, who had been dead six years before the release was exexuted. But plaintiffs can secure no rights through him in this proceeding for the reason that none of his heirs or legal representatives were made parties to this action. Bond v. Montgomery, 56 Ark. 563, 20 S. W. 525, 35 Am. St. Rep. 119; Harris v. Watson, 56 Ark. 574, 20 S. W. 529. The release of the other sureties was executed in 1882, and it was 20 years afterwards before it was questioned and before the creditors brought this action to be subrogated to the rights of their sureties. Even if, in case the creditors originally had the right to enforce this mortgage for the payment of these debts, we think that it is too late to do so now 20 years after the execution of such release. The recent case of Wallace v. Sweptson (Ark.) 86 S. W. 398, is conclusive on that point on the doctrine of laches, and we refer to the opinion in that case for a full discussion of the question.

Finding no error on the points presented, the judgment is affirmed.

STATE v. SONGER.

(Supreme Court of Arkansas. June 24, 1905.) 1. INTOXICATING LIQUORS LOCAL OPTIONISSUANCE OF LICENSE-PRESUMPTION.

Under Kirby's Dig. § 5119, requiring the returns of elections to be forwarded to the county election commissioners, to be by them laid before the county court at the next term thereof, the county court, before granting a license for the sale of intoxicating liquors, must determine whether a majority of the votes of the county have been cast in favor of license, or not; and the issuance of a license by it raises a presumption that the judge found that the majority of the votes were cast in favor of license.

3. SAME - TESTIMONY OF COMMISSIONERSFOUNDATION.

Testimony of election commissioners that a majority of the votes cast on the question of license were in the negative is incompetent, in the absence of a showing that the original returns of the election had been destroyed or could not be procured.

Appeal from Circuit Court, Sharp County, Northern District; John W. Meeks, Judge.

Will Songer was acquitted of selling liquor without a license, and the state appeals. Affirmed.

The grand jury of Sharp county, for the Northern District, indicted Will Songer for keeping a saloon and dramshop and selling intoxicating liquor without license. On the trial the sale was admitted, and the defendant, to show his right to sell, introduced a license issued by the county court authorizing him to keep a saloon for the sale of intoxicating liquors in the town of Hardy, in that county. To show that the county court had no authority to issue this license, and that it was void, the state then offered to introduce a certificate of the result of the election filed in the office of the county clerk by the county election commissioners. This certificate purports to be an "Abstract of All Votes Cast for All Executive, Legislative, and Judicial Officers at the Election Held in Sharp County on the 1st day of September, 1902." Following this heading are the names of the different voting precincts, and the number of votes cast in each for the different candidates voted for at that election, and also the number of votes cast for and against license, the total of which votes figured up 523 for license and 575 against license. To this abstract was attached the certificate of the commissioners, in which, after reciting that they had opened and compared the returns of the election from the different precincts of the county, they certify "that it appears from the returns aforesaid that each person named in the foregoing abstract received at said election the number of votes in each precinct set down opposite his name for the office stated therein." But they do not certify or refer to the vote on the question of license either in the caption or in the certificate attached to such abstract of the votes. The circuit judge sustained the objection made by the defendant to this evidence, and refused to allow it to be read in evidence. The state then introduced G. B. Ferguson, one of the election commissioners, and who acted as such at the general election held in September, 1902, and offered to prove by him that he opened and canvassed the returns of said election, and that a majority of the votes cast on the question of license

at that election, as shown by the returns, were against license. The presiding judge sustained an objection made by defendant to the introduction of this testimony, and the state excepted. The state introduced no further evidence, and the court directed a verdict for the defendant, and entered judgment accordingly, from which the state appealed.

Robt. L. Rogers, Atty. Gen., for the State. Sam H. Davidson, for appellee.

RIDDICK, J. (after stating the facts). This is an appeal from a judgment acquitting the defendant of the charge of selling liquors without license. The defendant proved that he sold under a license issued by the county court, and the state undertook to show that at the previous general election the majority of the votes cast in that county were against license, and that the county court had no authority to issue the license. Now, under the law, the returns of the elections from the different voting precincts are required to be forwarded to the election commissioners of the county, and they are required to lay such returns before the county court at the next term thereafter. Kirby's Dig. § 5119. From these returns the county court must, before granting a license for the sale of intoxicating liquors, determine whether a inajority of the votes of the county have been cast in favor of license or not. Freeman v. Lazarus, 61 Ark. 252, 32 S. W. 680.

The license introduced in this case raises the presumption that the county judge, before issuing this license, found that the majority of the votes on the question of license were cast in favor of license, for otherwise the court had no authority to grant the license. Now, while this finding of the county court is not conclusive, still it cannot be overturned by the abstract of the vote filed by the election commissioners, to which no certificate covering the vote on the question of license is attached. The certificate offered in evidence purports to certify the votes cast for the different candidates for office, and the number of votes received by such persons, but makes no reference to the vote on the question of license. The court, therefore, in our opinion, did not err in excluding it. The testimony of the election commissioner offered by the state was also clearly incompetent, for there was no showing that the original returns of the election from the different election precincts of the county had been destroyed, or that they could not be procured; and, in the absence of such proof, parol evidence of their contents was not admissible.

Finding no error, the judgment is affirmed.

A telegram ordering assorted goods and promising to send specifications later, and a letter accepting the order, did not, until the specifications were furnished, constitute a sufficient memorandum of a contract to satisfy the statute of frauds. Kirby's Dig. § 3656.

Appeal from Circuit Court, Pulaski County, Second Division; Edward W. Winfield, Judge.

Action by D. W. and A. G. Anderson against the Wm. Fait Company. From a judgment for plaintiffs, defendant appeals. Reversed

Marshall & Coffman, for appellant. Cantrell & Loughborough, for appellees.

BATTLE, J. D. W. and A. G. Anderson sued the Wm. Fait Company for breach of contract. They alleged that on the 29th of May, 1902, they entered into a contract with the defendant, by which the defendant agreed to ship to them a car load of groceries and produce in cases, according to specifications to be furnished by plaintiffs in a reasonable time; that the goods were to be paid for according to their market prices at the time of the agreement; that they furnished the defendant in a reasonable time with a list of the goods to be shipped; and that it wholly failed to ship the same to their damage of $400.

The defendant denied these allegations and that it made any contract with the plaintiffs, and pleaded the statute of frauds. They recovered a judgment for $151, and the defendant appealed.

The appellees were merchants doing business in the town of Newport, in this state. Appellant was a corporation engaged in selling produce in the city of Baltimore, in the state of Maryland. Dunn & Powell were merchandise brokers doing business in Little Rock, Ark. On the 29th of May, 1902, Dunn & Powell sent the following telegram to appellant: "Book Anderson Newport assorted car future goods same price as others," and wrote to it the same day by mail: "We will send you specifications on the Newport car in a few days." Dunn & Powell received from appellant, dated May 29, 1902, a letter, as follows: "We have your telegram which read as follows: 'Book Anderson Newport assorted car futures, same price as others.' To this we wired you this afternoon that we have entered this order which we now confirm [meaning corroborate]. accordingly have entered this order and await your letter confirming [corroborating] with specifications." All such orders were subject to the approval of the appellant. On June 9, 1902, Dunn & Powell received a letter from Wm. Fait Company, dated June 7, 1902, as follows: "Referring to your tele

We

gram of May 29, which read, 'Book Anderson Newport assorted car future goods, same price as others,' we beg to say that up to this present time we have no mail confirmation to this order, nor have we any assortment, and the order is therefore canceled. We cannot have these things remain open indefinitely." On June 10, 1902, appellees, through Dunn & Powell, sent specifications, and on the 13th of the same month appellant declined to ship the goods.

The statute of frauds is in part as fol lows: "No contract for the sale of goods, wares and merchandise, for the price of thirty dollars or upward, shall be binding on the parties unless, first, there be some note or memorandum, signed by the party to be charged; or second, the purchaser shall accept a part of the goods ordered, and actually receive the same; or, third, shall give something in earnest to bind the bargain, or in part payment thereof." Kirby's Dig. § 3656. There was no compliance with this statute. The only written evidence of a contract was the telegrams and letters set out above. The goods to be sold were not specified. There was no acceptance by appellant of any antecedent definite order. goods to be purchased were to be selected out of a list of about 162 articles, and the quantity purchased of each was to be designated. Until such specifications were made, there could have been no definite agreement. There was no direct and unequivocal acceptance of any proposal which by acceptance could have become a complete contract. On the incomplete stipulations nothing could have been recovered at law. There was never an agreement as to the most essential part of contract of sale, the appellant having declined to treat further with appellees before the specifications were furnished. Wheeling Steel & Iron Co. v. Evans (Md.) 55 Atl. 373.

The

The judgment of the circuit court is reversed, and a judgment upon the merits will be entered here in favor of appellant, and for $10 damages by reason of the attachment, which is dissolved.

JOHNSON v. STATE.

(Supreme Court of Arkansas, May 27, 1905. On Rehearing, June 17, 1905.)

1. LARCENY-GAMING-CONSPIRACY TO CHEAT UNDER COLOR OF A BET-FOOT RACES-EVI

DENCE.

In a prosecution for larceny, evidence that prosecutor was induced by defendant to bet money on a runner as against the runner of a club to which defendant belonged by representations that the club runner, though a favorite, would lose the race, thereby enabling defendant to win large sums from other club members, the understanding being that prosecutor's money was to be returned to him, and not really bet, prosecutor to get a share of the winnings as compensation for aiding the defendant and his confederates, and that, on the club runner winning, defendant refused to return prosecutor's money, brought the case