Section 2005 of Kirby's Digest defines rape as follows: "Rape is the carnal knowledge of a female forcibly and against her will."

And section 2008 provides: "Every person convicted of carnally knowing, or abusing unlawfully, any female person under the age of sixteen years shall be imprisoned in the penitentiary for a period of not less than one year nor more than twenty-one years."

Section 2413 is as follows: "Upon an indictment for an offense consisting of different degrees, the defendant may be found guilty of any degree not higher than that charged in the indictment, and may be found guilty of any offense included in that charged in the indictment."

In Davis v. State, 45 Ark. 464, this court held: "Under an indictment for murder the accused may be convicted of an assault with intent to kill, provided the indictment contain all the substantive allegations necessary to let in proof of the inferior crime, and the proof show that the offense of which he is convicted and the one charged in the indictment are the same." The court said: "An assault with an intent to kill, though a felony by our law, is not one of the degrees of homicide; but it is an attempt to commit murder, and is virtually included in every murder that is committed with violence. All the elements of murder, except the actual killing, must conspire to constitute the crime."

Carnal knowledge of a female is necessary to constitute rape, and when the female is under 16 years of age carnal abuse is inIcluded in that offense.

Mr. Bishop says: "Though a man cannot commit rape of his own wife, except as principal in the second degree, the indictment need not negative a marriage between the defendant and the injured woman. Still, in prudence, it may be well, when fornication and adultery are indictable, to insert this sort of negative. Then, if the proof of force should fail, there may be a conviction for one of the other offenses." 2 Bishop on Criminal Procedure (3d Ed.) 956.

Under a statute which provides: "Whenever any person indicted for a felony, shall, on trial, be acquitted by verdict of part of the offense charged in the indictment, and convicted of the residue thereof, such verdict may be received and recorded by the court, and thereupon the person indicted shall be adjudged guilty of the offense, if any, which shall appear to the court to be substantially charged by the residue of such indictment, and shall be sentenced and punished accordingly" (Rev. St. 1836, c. 137, § 11)-the court held in Commonwealth v. Goodhue, 2 Mete. (Mass.) 193, that "a defendant indicted for rape alleged to have been committed upon his daughter may be convicted of incest, if the jury find the criminal connection, but that it was not by force and against the will of the daughter." It was alleged in the indictment in that case "that the defendant un

lawfully had carnal knowledge of the body of his daughter."

In Kentucky they have a statute which reads as follows: "Whoever shall carnally know a female under the age of twelve years, or an idiot shall be confined in the penitentiary not less than ten nor more than twenty years." In Fenston V. Commonwealth, 82 Ky. 549, it was held that a defendant charged with committing a rape upon a female under 12 years of age could be convicted of the offense described in the statute quoted. Young v. Commonwealth, 96 Ky. 573, 29 S. W. 439.

The carnal knowledge of a female is an essential element of rape. In this case the defendant was charged with carnal knowledge of a female under the age of 16 years, and that was the offense defined in section 2008, before quoted, and is clearly charged in the indictment against the appellant; and, inasmuch as it was not committed forcibly and against the will of the injured female, the appellant was properly found guilty of that offense.

The majority of the judges are of the opinion that the punishment assessed against the appellant is excessive, and should be reduced to two years' imprisonment in the penitentiary, and it is ordered that the judgment herein be modified accordingly.

MCCULLOCH, J. This is a suit by appellant, Dowell, to recover of appellee, Schisler, commissions on the sale of a sawmill plant and other property. The sale was made direct by Schisler to the Culver Lumber Company, but Dowell asserts that he procured the purchaser, and thereby earned a commission. No objections were made to the giving or refusal of instructions, except to the giving of two upon request of the defendant; but the objection was made in gross to both instructions, and, as the objection to one was waived by omitting the same from the motion for new trial, and no ob

jection to it is urged here, we cannot consider the other. An objection in gross to several instructions cannot be considered unless all the instructions embodied in such objection are bad. Wells v. Parker (Ark.) 88 S. W. 602; Young v. Stevenson (Ark.) 86 S. W. 1000, and cases cited.

Nothing remains for us to consider but the sufficiency of the testimony, giving it the strongest force which the jury were warranted in giving it. No useful purpose is to be served by discussing the testimony in detail here. We think it is sufficient to sustain the verdict and the judgment must be affirmed.

Where a special insurance solicitor, acting under a general agent, had no authority from the company to accept notes for premiums, but was authorized by the general agent to accept such notes, and turn them in to him, the solicitor, in accepting a premium note made out to himself, and indorsing it over to the general agent, acted as agent for the general agent, and not for the policy holder, and the general agent was responsible for any fraud of the solicitor connected with the execution of the note.

Appeal from Circuit Court, Calhoun County; Charles W. Smith, Judge.

Action by H. L. Remmel against A. L. Witherington. From a judgment for defendant, plaintiff appeals. Affirmed.

This is an action brought by appellant, Remmel, against appellee, Witherington, to recover the amount of a negotiable promissory note for the sum of $414.60, executed by appellee to one Ward, and by the latter assigned before maturity to appellant. Appellant was the general agent for a life insurance company, and Ward was a subagent, or, as he is designated in the proof, a special agent, working under appellant. The note in question was executed to cover the first annual premium for a policy of $10,000 in said insurance company. Appellee, Witherington, was illiterate, and unable to write his name, but signed the note by mark, and the note and signature were written and witnessed by Ward. Ward also wrote the signature of appellee to the application for insurance. The policy for $10,000 was issued by the company, and mailed to appellee, who declined to accept it and refused to pay the note for the alleged reason that he intended only to apply for insurance in the sum of

$2,000, and to execute a note for premium on a policy for that amount, and that Ward had taken advantage of his illiteracy and fraudulently imposed upon him by writing his signature to an application for a $10,000 policy and a note for premium thereon, instead of for $2,000, as agreed upon. He pleaded this a defense to the action, and the jury returned a verdict in his favor.

Thornton & Thornton, for appellant. Smead & Powell, for appellee.

MCCULLOCH, J. (after stating the facts). The testimony was conflicting on the issue as to the alleged fraud on the part of Ward in writing the application for a policy of $10,000 and the note for the premium on that amount, instead of $2,000; but the jury found, upon instructions to which there was no objection, in favor of appellee, and we must treat that issue as settled. The testimony is sufficient to have sustained a verdict either way on that issue.

Appellant asked an instruction, which the court refused, telling the jury that "if the defendant requested the witness Ward to sign his name to note sued on, that he became the agent of defendant in signing the note, and if he did not follow defendant's instructions then the plaintiff, if he took the note before maturity, and for a valuable consideration, is not responsible for the act of the agent." The refusal of the court to give the instruction is now urged as ground for reversal. The proof did not warrant the giving of this instruction. Ward was acting under authority from and control of appellant. It is shown that the company does not accept notes for premiums, but that the taking of notes by a special agent is done for the general agent, and that in so doing he acts for his superior, the, general agent. Ward testified on that point as follows: “Q. Does Mr. Remmel take up all those notes taken by special agents? A. Yes, sir; we are not allowed to handle any paper whatever. Q. Then, while this note is taken in your name, it is really for Mr. Remmel? A. Yes, sir; and indorsed right over to him. Q. You did that because you were authorized by him to do so and turn it in to the general agent? A. Yes, sir." This shows that Ward in taking the note was the agent of appellant, who is responsible for his acts in regard thereto. Franklin Life Ins. Co. v. Galligan, 71 Ark. 295, 73 S. W. 102, 100 Am. St. Rep. 73; Dwelling House Ins. Co. v. Brodie, 52 Ark. 11, 11 S. W. 1016, 4 L. R. A. 458. We do not mean to say that a person may not act as the agent of both parties to a transaction for some purposes, where there is no conflict of interest; but that rule cannot be applied to the facts here, where Ward was the agent of appellant in taking the note. We find no error, and the judgment is affirmed.

BANK OF BATESVILLE v. MAXEY et al. (Supreme Court of Arkansas. July 29, 1905.) 1. ATTORNEY AND CLIENT-AUTHORITY OF ATTORNEY-NECESSITY OF PROOF.

A receipt given by attorneys to a debtor is not evidence against the creditor, in the absence of a showing that the attorneys were attorneys for the creditor.

2. SAME-PROOF OF AUTHORITY.

A bank advanced money to a merchant on a note signed also by sureties. The merchant having gone into bankruptcy, an attorney who was retained by the bank generally, but who had no authority to collect claims for it except when they were specially intrusted to him, acting for other creditors, and without any special authority from the bank, afterwards had a meeting with the merchant and some of his sureties on the note, at which it was divulged that a third party was a secret partner with the merchant, and liable for the debts contracted by him. Thereupon the attorney secured evidence against the third party, and induced him to settle for the merchant's debts, including the note to the bank. The attorney then paid over the sum collected on the note to the bank, deducting his commissions for making the collection, and the bank sued the sureties for the difference between the amount received by it and the face of the note. Held, that the attorney was not, under the circumstances, acting for the bank, and payment to him was not payment to the bank, and did not affect the liability of the sureties for the balance due on the note.

3. SAME RATIFICATION.

Nor was the act of the bank in accepting the money from the attorney and failing to return the same a ratification of the attorney's acts in such sense as to make the attorney its agent in the premises.

4. SAME ESTOPPEL TO DENY AUTHORITY.

Since the act of the bank in receiving the money from the attorney did not mislead or injure the sureties in any way, but was a direct advantage to them, the bank was not estopped, as against the sureties, to deny the authority of the attorney.

5. SAME RATIFICATION.

In order that the act of a creditor in accepting money collected by an attorney who acted without authority from the creditor in making the collection may amount to an implied ratification of the attorney's acts, such acceptance must be accompanied with a full knowledge of the facts, and must be inconsistent with any other reasonable hypothesis than that of approval of the attorney's acts. 6. PRINCIPAL AND SURETY-COLLECTION FROM PRINCIPAL EXPENSE-CHARGE AGAINST SURETIES.

A creditor who, at the suggestion of the principal debtor, and without authority from the sureties, filed his claim in bankruptcy proceedings pending against the principal, cannot charge the sureties with the expense of a collection made in that way.

Appeal from Circuit Court, Independence County; Gustave Jones, Special Judge.

Action by the Bank of Batesville against R. L. Maxey and others. From a judgment for defendants, plaintiff appeals. Reversed.

R. L. Maxey, a merchant of Independence county, borrowed $2,000 from the Bank of Batesville, and executed therefor the following note: "$2000.00. Batesville, Ark., Dec. 23, 1901. Four months after date, we or either of us promise to pay to the Bank of Batesville, two thousand dollars, at ten per

cent. interest per annum from date until paid for value received. [Signed] R. L. Maxey. W. E. Greenway. W. W. Edmonson. M. D. Maxey. M. G. Farris. John H. Maxey. J. F. Morris. David Dearing. J. B. Northcut. E. T. Fulks." Maxey afterwards, before the note came due, failed in business, and was forced into bankruptcy, his estate being worth about 17 cents on the dollar. But the other parties to the note, who were in fact only sureties of Maxey, owned enough property to make the note good and the bank entirely safe. During the progress of the bankruptcy proceedings, Maxey, in order to protect his own sureties as far as possible, requested the cashier of the bank to file the note in the bankruptcy court so that a pro rata part of the proceeds of the bankrupt's estate might be paid thereon. In compliance with this request, the cashier filed the note with the referee in bankruptcy. After the note was filed, some of the other creditors of Maxey raised an objection, and denied the right of the owner of the note to participate in the proceeds of the estate. Thereupon the cashier of the bank requested Mr. Casey of the firm of Yancey, Reeder & Casey, to look after the matter, in order that the note might not be stricken from the file of claims, and might be allowed its pro rata share of the proceeds. The attorneys did this, and the note was allowed as a claim against the estate. A dividend of 17 per cent. was afterwards paid on the claims against the bankrupt, which amounted to $348 on this note. Of this sum 10 per cent. was retained by the attorneys of Yancey, Reeder & Casey, or paid by the bank to them, and the remainder, $313.20, was credited on the note. This dividend apparently exhausted all the assets of the estate, and left the balance of the note unpaid. The firm of Yancey, Reeder & Casey held for collection a number of claims against the bankrupt, Maxey. Among these clients who had claims against Maxey was the White River Grocer Company, of which D. D. Adams was manager. After the bankrupt's estate had apparently been exhausted by the payment of the dividend mentioned, Adams received a telephone message from Maxey, asking him to come up to Penter's Bluff, and requesting him to bring Mr. Yancey and also Mr. Wolf, the cashier of the bank, with him. Maxey stated to Adams that if he would come up to the Bluff he would have parties there who could tell him how he could collect his debt. The cashier declined to attend the meeting, but Adams went up with his attorney, Mr. Yancey. They met there Maxey, the bankrupt, and

also Fulks and Greenway, two of Maxey's sureties on the note to the bank. These parties gave information that tended to show that one Davis, a man of some financial means, was interested in the mercantile business that Maxey had carried on to such an extent as to make him responsible for the debts that Maxey had contracted in the line

of that business. They also gave information which tended to show that Davis bad with held goods of the value of $181 belonging to Maxey's estate, and had failed to turn them over to the trustees of that estate in bankruptcy. These parties—Adams, representing his company; Fulk and Greenway, two of the other sureties on the note of Maxey to the bank; Maxey himself; and Yancey, the attorney-discussed ways and means by which Davis could be made to pay these debts. Yancey advised them that if they could prove the facts stated by them Davis could be made to pay the debts. Yancey and the firm of attorneys of which he was a member proceeded then along the line of the facts divulged at the meeting to obtain evidence to show that Davis was liable for such debts. From time to time they had consultations with Maxey and the other parties who had been present at the first meeting. They obtained the affidavits of Maxey and others, showing that Davis was an owner of an interest in the business that Maxey had carried on, and that he was liable for the debts, and also that he had withheld goods of the bankrupt's estate. They then had Davis summoned before the referee in bankruptcy to answer these charges. When Davis arrived in Batesville on the day set for the hearing of matters, Yancey took him to his office, and showed him the affidavits of witnesses tending to show that he was liable for the debts and had withheld assets of the bankrupt. A few hours afterwards Davis and his attorney met Yancey, and the attorney of Davis told him that under the facts which could be proved he was liable, and advised him to settle the debt without further litigation. Davis did so, but, as he had been summoned to answer before the referee for a certain amount of goods of the bankrupt which he had withheld, it was agreed that he should pay the value of those goods, $181, to the referee, and that it should be distributed through him to the creditors. The balance he paid to Yancey, Reeder & Casey, who executed to him a receipt for the same in the following words:

"$4,740.67. Batesville, Ark. July 11, 1902.

"Received from W. E. Davis the sum of forty seven hundred and forty dollars and sixty seven cents in full settlement of the following accounts, and notes proved in bankruptcy in the estate of R. L. Maxey:

Talley Lumber Company, $68.00 $ 64.35. Charles Mosby,

J. B. Younger,

Seaton & Lindsay,

L. R. Simpson,

White River Grocery Company, Bank of Batesville,

37.50. 541.33.

32.68. 59.15. 234.31. 1,758.92."

-Then follow the names of other creditors represented by the attorneys, and amounts due each, the receipt being signed, "Yancey, Reeder & Casey, Attorneys for the AboveMentioned Creditors." The attorneys then deducted 25 per cent. of the amount collected for their services in collecting, and paid the balance to the creditors. To the bank they

paid $1,309.19, which sum it credited on the note. Afterwards the bank demanded of the sureties that they pay the balance due on the note, and upon their refusal to do so brought this action at law to recover the

same.

The defendants appeared, and for answer admitted the execution of the note. But they alleged that the money was borrowed by Maxey to use in the mercantile business carried on in his name at Penter's Bluff, and was so used, but that the business, though carried on in the name of Maxey, in fact belonged to W. E. Davis, and that Davis was in law liable for the debts of that business, including the debt of the bank for borrowed money; that Davis, after Maxey had become bankrupt, agreed with Yancey, Reeder & Casey that he would pay in full all claims of the creditors of R. L. Maxey represented by them; that said attorneys represented the plaintiff, bank of Batesville, and received from Davis payment of the balance due on said note in full; and that the bank, with full knowledge that such attorneys had acted for them in such settlement, received a part of said money, and thus ratified and confirmed their action. They further set up that under the circumstances the bank was estopped to deny that Yancey, Reeder & Casey were its attorneys in that settlement. Wherefore they allege that the bank was bound by the settlement, and could not recover under this action.

On the trial the court, at the instance of the defendant, gave, among others, the following instructions: "(1) The jury are instructed as a matter of law that if a person adopts a transaction done in his behalf by an agent who had no authority to do it, he must adopt it in its entirety. He cannot adopt it in part and repudiate it in part. And if the jury believes from the evidence that Yancey, Reeder & Casey accepted for the plaintiff the money paid by Davis, and that the plaintiff bank either adopted or retained a part of the money so received by said attorneys for it, after it had notice that said attorneys had acted for them in the premises, then this was a ratification of the acts of Yancey, Reeder & Casey in accepting said money, and plaintiff is bound thereby." The jury returned a verdict in favor of the defendant, and the bank appealed.

S. D. Campbell, J. C. Yancey, and Saml. M. Casey, for appellant. W. S. Wright, for appellees.

RIDDICK, J. (after stating the facts) This is an action by a bank against a number of defendants, who were sureties on a promissory note of one Maxey, executed by him to the bank for a loan of $2,000. The defendants for answer set up that the note had been paid by one W. E. Davis, who was not a party to the note. It is admitted that Davis did pay to Yancey, Reeder & Casey, a firm of attorneys, an amount equal to the

balance due on this note, and that they gave him a receipt for the same in full as attorneys for the bank. It is also admitted that after deducting a fee for making the collection these attorneys paid the balance of the money to the bank, which credited the net amount paid to it on the note. The net amount paid the bank left a balance unpaid on the note equal to the amount retained by the attorneys for a fee, and the decision in this case is narrowed down to the question as to whether the attorneys represented the bank in making the collection from Davis, so that a payment to them was in law a payment to the bank, or whether, if they did not represent the bank, the circumstances are such as to estop the bank from denying that they did present it, or to show that the bank ratified the act of the attorneys in making the settlement with Davis. The evidence showed that Maxey, the principal in the note, had failed in business, and was a bankrupt at the time the note became due. Though Maxey had failed, the sureties on the note were solvent, and made it perfectly good. But the bank, at the request of Maxey, filed the note with the referee in bankruptcy, in order that it might receive its proportion of the bankrupt's estate, and to protect the sureties to that extent. A small amount was paid on the note from the assets of the estate, but a considerable sum remained due for which the sureties were liable to the bank. While matters stood in this condition, Yancey and one Adams, manager of the White River Grocery Company, a creditor of Maxey, had a meeting at Penter's Bluff with Maxey and two of the sureties on the note of Maxey to the bank. Maxey divulged facts which tended to show that one Davis was a secret partner in the mercantile business carried on by Maxey, and that Davis was liable for debts contracted in the course of that business. Now, the bank was not interested in this matter, for the sureties on its note made it perfectly good; and while the evidence shows that the firm of Yancey, Reeder & Casey, of which Yancey was a member, were retained by the bank generally, they had no authority to undertake collection of claims held by the bank unless they were specially requested to do so. They had never been requested to collect this note, further than to have it allowed by the referee as a claim against the estate of Maxey in bankruptcy. At the time of this meeting at Penter's Bluff the note was in the possession of the bank, and Yancey had no authority from the bank to collect it, or to take steps for that purpose. He did not go to Penter's Bluff at the instance or request of the bank, or to represent it, but as the attorney for Adams, the manager of the White River Grocery Company, and as the attorney for the other creditors of Maxey whose claims he held for collection. These debts were unpaid, and Yancey was interested in getting information that would show that

Davis, a man of means, was liable for the payment of them. The two sureties present were interested, for, if the amount due the bank from Maxey could be collected from Davis, they would be relieved from liability to pay it. The outcome of this meeting was an understanding that Yancey should go ahead and get up the evidence against Davis, and, if possible, compel him to pay these debts, including the debt due the bank. It is unnecessary for us to consider whether this understanding, taken in connection with the subsequent action of Yancey in collecting these debts from Davis, and to that extent relieving the sureties of this debt, was sufficient to make them liable for a fee for Yancey's services. We may assume that these two sureties had no thought of such a thing; that, knowing that Yancey represented a number of creditors who had claims against Maxey, and supposing that he also represented the claims of the bank, they expected that he would look to these parties, and not to them, for his fee. Whether this was so or not is immaterial here, for, as before stated, the evidence shows that the bank had not authorized Yancey to collect this debt as their attorney or agent. He did subsequently collect money to the amount of these debts from Davis, and gave him a receipt in full against them, signing thereto the name of his firm as attorneys for all the creditors represented, including the bank. The receipt that these attorneys gave tends to show that they were assuming to act for the bank in making the collection, but they say that the receipt was given in that form to identify the different debts for which the money was paid, and to satisfy Davis. However that may be, the receipt is no evidence against the bank until it be shown that the attorneys were attorneys for the bank; and this, as before stated, is not shown. A payment by Davis to these attorneys was not, under the facts of this case, a payment to the bank, and did not affect the debt due the bank.

It is contended with much force that the bank ratified the act of the attorneys by afterwards receiving the money. We are not able to agree with this contention. No express ratification is claimed, and, to amount to an implied ratification, the act of the bank must be done with full knowledge of the facts, and must be inconsistent with any other reasonable hypothesis than that of approval of the acts of the attorneys who assumed to act as its agent. But there is nothing to show that at the time the bank accepted this claim it had notice that these attorneys had assumed the act for it, and had given Davis a receipt in full for this debt. The attorneys certified that they did not act for the bank, but for the sureties; and, as the bank had not authorized them to collect this note, the mere payment by them to the bank of money collected from Davis did not notify the bank that they assumed