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never was any complete, final delivery of the ty may, both in equity and at law, release the writing as the promissory note of the maker, security. payable at all events and according to its

(Ed. Note. For cases in point, see vol. 40, terms. The rule that excludes parol evidence

Cent. Dig. Principal and Surety, 88 402-412.]

2. SAME-INTEREST OF SURETY. in contradiction of a written agreement pre

Neither a surety nor his heirs take any supposes the existence in fact of such agree- legal interest in land mortgaged to him for ment at the time suit is brought. But the purposes of indemnity. rule has no application if the writing was (Ed. Note.—For cases in point, see vol. 35, not delivered as a present contract.” After

Cent. Dig. Mortgages, $ 270.] citing many authorities supporting these


TIES. views, the court concluded: “For the reasons

Creditors cannot obtain subrogation to a stated, and without considering the case in deceased surety's right in an indeninity mortother aspects, we are of the opinion that it gage by a proceeding against the other sureties, was error to exclude the evidence offered by

to which none of the heirs or legal representa

tives of the deceased surety are parties. the defendant tending to show that the writ

4. SAME-LACHES. ing sued on was not delivered to or received Creditors cannot, because of laches, proby Dulaney as the promissory note of the de- cure subrogation to the rights of sureties in an fendant, binding upon him as a present obli

indemnity mortgage by a proceeding brought gation, enforceable according to its terms,

30 years after the execution of a release by the

sureties. but was delivered to become an obligation of that character when, but not before, the

Appeal from Circuit Court, Yell County, defendant examined, and by working them

Dardanelle District; William L. Moose, tested, the mining properties purchased by

Judge. the plaintiff, and elected to take the stipu

Suit by A. J. Dyer and another against lated interest in them. According to the evi.

W. D. Jacoway and others. From a judgdence so offered and excluded, the writing in

ment for defendants, plaintiffs appeal. Afquestion never became, as between Burke firmed. and Dulaney, the absolute obligation of the W. D. Jacoway was on the 16th of March, former, but was delivered and accepted only 1867, appointed administrator of the estate of as a memorandum of wbat Burke was to pay Samuel Dickens, who had died in Yell county in the event of his electing to become inter- on the 2d day of the same month. Jacoway ested in the property; and from the time gave bond as administrator, and entered uphe so elected, or could be deemed to have on the discharge of his duties as administraso elected, it was to take effect as his prom- tor of that estate. Afterwards, in 1875, the issory note, payable according to its terms. estate still being in his charge as adminisHis election within a reasonable time to take trator, he executed to the sureties of his adsuch interest was made a condition precedent ministrator's bond a mortgage on certain to his liability to pay the stipulated price. lands owned by him. The conditions of this The minds of the parties never met upon any mortgage are as follows, to wit: “Provided other basis, and a refusal to give effect to nevertheless, that whereas the said R. P. their oral agreement would make for them a Parks, Jacob Graves, Hiram Dacus, Joseph contract which they did not choose to make Gault, J. M. Cole, and L. T. Brown, did on for themselves."

the 16th day of March, A. D. 1867, become the Following these authorities, and approving sureties of the said W. D. Jacoway on his the reasoning in Burke v. Dulaney above bond as administrator of the estate of Samquoted, the court is of opinion that the cir- uel Dickens, deceased; and, whereas, said secuit court erred in excluding the evidence curities did on the same day, sign, seal and offered and directing a verdict. The evi- | deliver said administration bond; and, where dence raised an issue of fact determinable by as, said bond was filed and recorded on the the jury.

16th day of March, A. D. 1867, and the same The judgment is reversed, and the cause is now of record in letters of administration, remanded.

Record A, pp. 227, 228; and, whereas, the administration of said estate is unsettled, and the said W. D. Jacoway is desirous that his

said securities shall entertain no reasonable DYER et al. v. JACOWAY et al.

fears or sustain any loss in the premises: (Supreme Court of Arkansas. June 24, 1905.) Now, know ye, if the said W. D. Jacoway 1. PRINCIPAL AND SURETY INDEMNITY

shall make full, complete and perfect setMORTGAGES--RIGHTS OF CREDITOR-SUBRO

tlement of said estate, and shall them, his GATION-RELEASE BY SURETY.

said securities, save harmless from any and Where a conveyance is made by the principal debtor to the surety to secure the payment

all judgments and decrees of any court which of the debt, the creditor has an interest there

may be rendered against them as such securiin which the surety cannot destroy, but, where ties on said administration bond, then in that the conveyance is merely to indemnify the sure- case the foregoing deed of mortgage shall ty, the creditor acquires no interest until the

be void, otherwise to be and remain in full insolvency of the principal, until which time, and even afterwards, if he acts in good faith

force and effect.” Afterwards, on the 15th and before claim is made upon him, the sure- day of April, 1875, Jacoway filed in the pro



bate court his fifth account current and final court. That court made some changes in the settlement showing a balance of $7,216.64 in judgment of the probate court, and both parbis hands. This account was confirmed by ties appealed from the judgment of the circuit the court in July, 1875, and on the 15th day court to the Supreme Court. The judgment of July, 1875, the court entered an order di- of the circuit court was voiced, and the recting Jaçoway, as administrator, to distrib- clerk of the Supreme Court was ordered to ute this sum pro rata on all the fourth-class relate the account in accordance with the claims probated against the estate, and pay opinion. See Jacoway v. Hall, 67 Ark. 340, to the owners of such claims 39 cents and 8 55 S. W. 12. In pursuance to the mandate Inills on each dollar of their respective of the Supreme Court, the circuit court of claims. Jacoway, in pursuance of this or- Yell county for the Danville district, at its der, subsequently distributed the

August term, 1900, found that Jacoway was around to all of the fourth-class creditors ex- due the estate of Dickens the sum of cept A. J. Dyer and Isabella Johnston. He $2,350.32. But this indebtedness of Jacoway tendered to each of them also the sum re- to the estate is made up almost entirely of quired, but did so on condition that they ex- amounts which had been found due from ecute to him a receipt in full of all demands Jacoway by probate court in 1875, and which against the estate. They declined to give a he had been ordered to pay over to the fourthreceipt in full, and no part of their claims class claimants in that year, and the interwas paid. In 1876, A. J. Dyer and Isabella est on such amounts as of the date of April Johnston filed a suit against Jacoway and his 15, 1895, with interest at 6 per cent until bondsmen to surcharge and falsify his fifth paid, and judgment was entered against Jacoaccount current and final settlement. This way in favor of plaintiff A. J. Dyer for suit was brought in the wrong district of the $120.90 and in favor of the estate of Isabella county, and was in 1877 dismissed for want A. Johnston for something over $2,000. Aftof jurisdiction. In 1878 the same parties er the recovery of this judgment, A. J. Dyer brought a similar action in the other district and the administrator of the estate of Isabella of the county against Jacoway and his sure- A. Johnston brought this suit to be subroties. On the 19th of July, 1878, Jacoway gated to the rights of the sureties in the executed another mortgage to his securities mortgage of April, 1875, and to foreclose the to protect them against liability on bis bond,

The complaint alleged that Brooks, the conditions therein being substantially the Veely & Co. were in possession of the lands same as the mortgage to them executed in mortgaged, and they were made defendants 1875. One of the sureties was dead at the to the action. The complaint further alleged time the first mortgage was executed, and that W. D. Jacoway had conveyed certain two were dead when the last mortgage was lands to his children in fraud of his creditors, executed. The suit in equity was dismissed and that such conveyances be set aside, and for want of equity, and this judgment was the lands subjected to the payment of the recovered on appeal. See Dyer v. Jacoway, claims of plaintiff. The defendants Brooks, 12 Ark. 186. Although a decree was rendered Neely & Co., who now claim the land mortagainst Jacoway and his bondsmen in that gaged to the sureties, filed an answer showaction, and this judgment was again revoiced ing that the sureties to whom the mortgage by the Supreme Court, and the cause remand- was executed had executed a written release ed for further proceedings. See Dyer v. Jac- of this mortgage to Jacoway in 1882; that oway, 50 Ark. 217, 6 S. W. 902. A final de

afterward Jacoway had, in 1882, conveyed cree in said case was entered in the Yell cir- a part of this land to one Atwood, who in cuit court in chancery under the directions turn conveyed it to James K. Perry, and that of said mandate at the August term, 1893, the remainder of the land had been sold and thereof, surcharging and falsifying the ac- conveyed by Jacoway to said Perry in 1886, count of the administrator in accordance and that Brooks, Neely & Co. hold under with the aforesaid opinion of the court. Said Perry. Defendants alleged that Atwood and decree further provided as follows: "And his grantor, by virtue of said release and it is further ordered that the administration conveyance, acquired title to the property of the estate of the said Samuel Dickens be free from the lien of the mortgage, and they remanded back to the probate court, to be further set up the statute of limitations and administered in due course of law, and that laches in bar of the action. Jacoway and his this decree be certified by the clerk under the children filed an answer in which they deny seal of this court to the probate court of that the conveyance to his children referred Yell county in and for the Danville district, to in the complaint was made to defraud and the proceedings in the due course of ad- creditors, or that Jacoway is the owner of ministration of said estate be continued there such land. Upon the hearing the chancellor upon the basis of the said Jacoway's fifth found that Jacoway, at the time he conveyed annual settlement as the same is corrected the lands to his children referred to in the and reformed by this decree." Afterwards complaint, was perfectly solvent, and owned the probate court asked an order making a much more property than was required to final settlement in the case, from which judg- pay his debts, and that no right of subrogament on appeal was taken to the circuit tion was shown, and that on the whole case there was no equity in the complaint, and At the time the mortgage was executed, J. dismissed the same. From this judgment M. Cole, one of the sureties named therein plaintiff appealed.

as a grantee, had been dead three years, L. C. Hall and Ratcliffe & Fletcher, for

and neither he nor his heirs took any legal inappellants. John M. Parker, J. M. Moore,

terest by virtue of the mortgage. Brown, anand W. B. Smith, for appellees Brooks, Neely

other one of the sureties, died in 1876. After& Co.

wards, in 1882, the four remaining sureties

executed a release to Jacoway, in order that RIDDICK, J. (after stating the facts).

he might sell the land. The facts show that This is a suit in equity by certain creditors

this release was executed in good faith, and of the estate of Samuel Dickens to be sub

that afterwards the land mortgaged passed rogated to the rights of the sureties on the

into the hands of parties who paid a valubond of the administrator of that estate in

able consideration therefor, and

came a mortgage executed by the administrator

through mesne conveyances into the possesto them to indemnify and protect them from

sion of the defendants Brooks, Neely & Co., liability on such bond. The complaint also

who are bona fide holders for value. The set up that certain conveyances made by the

only surety who took any interest by such administrator to his children were fraudu

mortgage that did not join in the execution lent, and asked that hey be set aside. The

of the release was Brown, who had been chancellor found against the plaintiffs on

dead six years before the release was exboth issues, and in the brief and argument

exuted. But plaintiffs can secure no rights in this court counsel for plaintiffs do not

through him in this proceeding for the reaask us to review the finding of the chancellor

son that none of his heirs or legal repreas to the conveyances made by the adminis

sentatives were made parties to this action. trator to his children many years ago.

Bond v. Montgomery, 56 Ark. 563, 20 S. W. But they insist that under the facts they 525, 35 Am. St. Rep. 119; Harris v. Watson, are entitled to be subrogated to the rights

56 Ark. 574, 20 S. W. 529. The release of of the sureties in the mortgage executed to

the other sureties was executed in 1882, and them by the administrator.

it was 20 years afterwards before it was Now, there seems to be a distinction be

questioned and before the creditors brought tween those conveyances made by a prin

this action to be subrogated to the rights cipal to a surety both for the purpose of

of their sureties. Even if, in case the credprotecting him and to secure the payment of

itors originally had the right to enforce the debt and those executed merely to in

this mortgage for the payment of these debts, demnify the sureties against liability. If

we think that it is too late to do so now the conveyances are made to the surety for

20 years after the execution of such release. the purpose of securing the payment of the

The recent case of Wallace v. Sweptson debt, the creditor has an interest therein

(Ark.) 86 S. W. 398, is conclusive on that which the surety cannot destroy. But if

point on the doctrine of laches, and we refer the conveyance to the surety is only to

to the opinion in that case for a full discusindemnify him, then such security does not,

sion of the question. in the first instance, attach to the debt, and

Finding no error on the points presented, whatever equity may arise in favor of the

the judgment is affirmed. creditor with regard to the security arises afterwards, and in consequence of the insolvency of the parties principally liable for

STATE V. SONGER. the debt. Until this equity arises the surety has a right in equity as well as at law to

(Supreme Court of Arkansas. June 24, 1905.) release the security. Even after such in- 1. INTOXICATING LIQUORS — LOCAL OPTIONsolvency the mortgagee may surrender the


Under Kirby's Dig. 8 5119, requiring the security if he does it in good faith and be

returns of elections to be forwarded to the fore any claim is ma upon him for it. county election commissioners, to be by them The application of it for the benefit of third

laid before the county court at the next term

thereof, the county court, before granting a persons can only be accomplished by the

license for the sale of intoxicating liquors, must interposition of a court of equity, and in determine whether a majority of the votes of case the mortgagee still claims the security, the county have been cast in favor of license, or when he has conveyed it under circum

or not; and the issuance of a license by it stances tending to show bad faith or collu

raises a presumption that the judge found that

the majority of the votes were cast in favor sion between him and the mortgagee. Jones of license. v. Quinnipiack Bank, 29 Conn. 25; Daniel v. 2. SAME - LOCAL OPTION VOTE-EVIDENCEHunt, 77 Ala. 567 ; Fertig v. Henne, 197 Pa.


While the finding of the county court that 560, 47 Atl. 840; Pool v. Doster, 59 Miss.

a majority of votes cast were in favor of license 258; Stewart v. Welch, 84 Me. 308, 24 Atl. is not conclusive, yet it cannot be overturned 860; Jones on Mortg. (6th Ed.) § 387; Harris by an abstract of the vote filed by the election on Subrogation, 88 591, 594. But in this

commissioners, the certificate to which does

not cover the vote on the question of license, case the mortgage was executed in 1875 to

but merely certifies to the votes cast for candithe six sureties on the bond of Jacoway.

dates for office.

3. SAME TESTIMONY OF COMMISSIONERS- at that election, as shown by the returns, FOUNDATION.

were against license. The presiding judge Testimony of election commissioners that a majority of the votes cast on the question of

sustained an objection made by defendant to license were in the negative is incompetent, in

the introduction of this testimony, and the the absence of a showing that the original re- state excepted. The state introduced no furturns of the election had been destroyed or could not be procured.

ther evidence, and the court directed a ver

dict for the defendant, and entered judgment Appeal from Circuit Court, Sharp County,

accordingly, from which the state appealed. Northern District; John W. Meeks, Judge. Will Songer was acquitted of selling liquor

Robt. L. Rogers, Atty. Gen., for the State. without a license, and the state appeals.

Sam H. Davidson, for appellee.
The grand jury of Sharp county, for the

RIDDICK, J. (after stating the facts). This Northern District, indicted Will Songer for

is an appeal from a judgment acquitting the keeping a saloon and dramshop and selling

defendant of the charge of selling liquors intoxicating liquor without license. On the

without license. The defendant proved that trial the sale was admitted, and the defend

he sold under a license issued by the county ant, to show his right to sell, introduced court, and the state undertook to show that a license issued by the county court author

at the previous general election the majority izing him to keep a saloon for the sale of

of the votes cast in that county were against intoxicating liquors in the town of Hardy, license, and that the county court had no in that county. To show that the county authority to issue the license. Now, under court had no authority to issue this license, the law, the returns of the elections from the and that it was void, the state then offered

different voting precincts are required to be to introduce a certificate of the result of forwarded to the election commissioners of the election filed in the office of the county the county, and they are required to lay clerk by the county election commissioners. such returns before the county court at the This certificate purports to be an "Abstract next term thereafter. Kirby's Dig. § 5119. of All Votes Cast for All Executive, Legisla

From these returns the county court must, tive, and Judicial Officers at the Election before granting a license for the sale of inHeld in Sharp County on the 1st day of toxicating liquors, determine whether a inaSeptember, 1902.” Following this heading jority of the votes of the county have been are the names of the different voting pre- cast in favor of license or not. Freeman v. cincts, and the number of votes cast in each Lazarus, 61 Ark. 252, 32 S. W. 680. for the different candidates voted for at that The license introduced in this case raises election, and also the number of votes cast the presumption that the county judge, befor and against license, the total of which fore issuing this license, found that the votes figured up 523 for license and 575 majority of the votes on the question of against license. To this abstract was at- license were cast in favor of license, for tached the certificate of the commissioners, otherwise the court had no authority to in which, after reciting that they had opened grant the license. Now, while this finding of and compared the returns of the election the county court is not conclusive, still it from the different precincts of the county, cannot be overturned by the abstract of the they certify "that it appears from the re- vote filed by the election commissioners, to turns aforesaid that each person named in which no certificate covering the vote on the foregoing abstract received at said elec- the question of license is attached. The certion the number of votes in each precinct tificate offered in evidence purports to certify set down opposite his name for the office the votes cast for the different candidates stated therein." But they do not certify for office, and the number of votes received or refer to the vote on the question of li- by such persons, but makes no reference to cense either in the caption or in the certifi- the vote on the question of license. The cate attached to such abstract of the votes. court, therefore, in our opinion, did not err The circuit judge sustained the objection in excluding it. The testimony of the elecmade by the defendant to this evidence, and tion commissioner offered by the state was refused to allow it to be read in evidence. also clearly incompetent, for there was no The state then introduced G. B. Ferguson, showing that the original returns of the elecone of the election commissioners, and who tion from the different election precincts of acted as such at the general election held in the county had been destroyed, or that they September, 1902, and offered to prove by could not be procured; and, in the absence him that he opened and canvassed the re- of such proof, parol evidence of their conturns of said election, and that a majority tents was not admissible. of the votes cast on the question of license Finding no error, the judgment is affirmed.

gram of May 29, which read, 'Book Anderson WM. FAIT CO. V. ANDERSON et al. Newport assorted car future goods, same (Supreme Court of Arkansas. July 1, 1905.)

price as others,' we beg to say that up to

this present time we have no mail confirmaSTATUTE OF FRAUDS-MEMORANDUM SUFFI

tion to this order, nor have we any assortCIENCY. A telegram ordering assorted goods and

ment, and the order is therefore canceled. promising to send specifications later, and a We cannot have these things remain open inletter accepting the order, did not, until the definitely." On June 10, 1902, appellees, specifications were furnished, constitute a sufficient memorandum of a contract to satisfy the

through Dunn & Powell, sent specifications, statute of frauds. Kirby's Dig. $ 3656.

and on the 13th of the same month appel

lant declined to ship the goods. Appeal from Circuit Court, Pulaski Coun.

The statute of frauds is in part as fol. ty, Second Division; Edward W. Winfield,

lows: "No contract for the sale of goods, Judge.

wares and merchandise, for the price of thir. Action by D. W. and A. G. Anderson

ty dollars or upward, shall be binding on the against the Wm. Fait Company. From a

parties unless, first, there be some note or judgment for plaintiffs, defendant appeals.

memorandum, signed by the party to be Reversed.

charged; or second, the purchaser shall acMarshall & Coffman, for appellant. Can- cept a part of the goods ordered, and actrell & Loughborough, for appellees.

tually receive the same; or, third, shall give

something in earnest to bind the bargain, BATTLE, J. D. W. and A. G. Anderson or in part payment thereof." Kirby's Dig. 8 sued the Wm. Fait Company for breach of 3656. There was no compliance with this contract. . They alleged that on the 29th of statute. The only written evidence of a May, 1902, they entered into a contract with contract was the telegrams and letters set the defendant, by which the defendant out above. The goods to be sold were not agreed to ship to them a car load of grocer- specified. There was no acceptance by apies and produce in cases, according to spec- pellant of any antecedent definite order. The ifications to be furnished by plaintiffs in a goods to be purchased were to be selected reasonable time; that the goods were to be out of a list of about 162 articles, and the paid for according to their market prices at quantity purchased of each was to be desigthe time of the agreement; that they fur- nated. Until such specifications were made, nished the defendant in a reasonable time there could have been no definite agreement. with a list of the goods to be shipped; and There was no direct and unequivocal acceptthat it wholly failed to ship the same to their ance of any proposal which by acceptance damage of $400.

could have become a complete contract. On The defendant denied these allegations the incomplete stipulations nothing could have and that it made any contract with the plain- been recovered at law. There was never an tiffs, and pleaded the statute of frauds. agreement as to the most essential part of They recovered a judgment for $151, and the contract of sale, the appellant having declined defendant appealed.

to treat further with appellees before the The appellees were merchants doing busi- specifications were furnished. Wheeling Steel ness in the town of Newport, in this state. & Iron Co. v. Evans (Md.) 55 Atl. 373. Appellant was a corporation engaged in sell- The judgment of the circuit court is reing produce in the city of Baltimore, in the versed, and a judgment upon the merits will state of Maryland. Dunn & Powell were be entered here in favor of appellant, and merchandise brokers doing business in Lit- for $10 damages by reason of the attachtle Rock, Ark. On the 29th of May, 1902, ment, which is dissolved. 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:

JOHNSON V. STATE. “We will send you specifications on the New

(Supreme Court of Arkansas, May 27, 1905. port car in a few days.” Dunn & Powell re

On Rehearing, June 17, 1905.) ceived from appellant, dated May 29, 1902, a

1. LABCENY-GAMING-CONSPIRACY TO CHEAT letter, as follows: "We have your telegram

UNDER COLOR OF A BET-Foot RACES-Eviwhich read as follows: 'Book Anderson

DENCE. Newport assorted car futures, same price as In a prosecution for larceny, evidence that others. To this we wired you this after

prosecutor was induced by defendant to bet

money on a runner as against the runner of a noon that we have entered this order which

club to which defendant belonged by reprewe now confirm (meaning corroborate). We sentations that the club runner, though a faaccordingly have entered this order and

vorite, would lose the race, thereby enabling

defendant to win large sums from other club await your letter confirming (corroborating]

members, the understanding being that prosewith specifications." All such orders were

cutor's money was to be returned to him, and subject to the approval of the appellant. not really bet, prosecutor to get a share of the On June 9, 1902, Dunn & Powell received a winnings as compensation for aiding the de

fendant and his confederates, and that, on the letter from Wm. Fait Company, dated June

club runner winning, defendant refused to re7, 1902, as follows: "Referring to your tele turn prosecutor's money, brought the


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