did the appellees rely upon the statement made by appellant in its letter to them of date April 4, 1902? That question was fairly submitted to them by the instructions of the court, they found that they did, and the evidence was sufficient to sustain their verdict. They purchased the medicine from the appellant, and, thinking it was not such as they wanted or ordered, took the precaution to consult them about it before using it, and, being informed that blackleg vaccine and anthrax vaccine are the same, and having used the latter successfully in vaccinating horses and mules, used the medicine sent, with fatal effect. They informed the defendant, in their létter to it, that they were not troubled with blackleg, and gave it to understand that medicine for that disease was not needed. They undoubtedly relied upon its statement, and were led to do so by extensive dealings with it, and by the belief that it was competent to advise them. Judgment affirmed.

MERRITT v. WALLACE.

(Supreme Court of Arkansas. July 1, 1905.) 1. APPEAL-FAILURE TO BRING UP EVIDENCE -PRESUMPTIONS.

Where appellant did not bring the evidence into his abstract, the court on appeal will presume that the trial court's finding was sustained by the evidence.

2. GUARDIAN AND WARD CREDITS EVIDENCE.

ACCOUNTING

A guardian must introduce evidence to sustain the challenged items of his final account, or they will be rejected.

3. SAME-CARE OF WARD'S ESTATE-LOANSFAILURE TO MAKE-LIABILITY FOR INTEREST.

Kirby's Dig. § 3804, requires guardians to loan the money of their wards under the direction of the court. Section 3805 makes a guardian failing to make a loan accountable for interest. Section 3808 declares that, if a guardian be unable to loan out his ward's money, the court shall order an investment in government bonds. A guardian was authorized to loan his ward's money on real estate security. He gave the statutory notice, and rejected the only application received on account of the insufficiency of the security. He made no report to the court until cited 10 years later. Held, that he failed to use reasonable diligence to make a loan, making him liable for interest.

Appeal from Circuit Court, Desha County, Arkansas City District; Antonio B. Grace, Judge.

Petition by Lena R. Wallace against B. F. Merritt for the settlement of his accounts as guardian. From a judgment settling the accounts, the guardian appeals. Affirmed.

B. F. Merritt, pro se. J. W. Dickinson, for appellee.

HILL, C. J. In 1888 appellant, Merritt, was appointed by the probate court guardian of Lena Crane, a minor-now Lena Wallace, the appellee herein. In 1889 the guardian received from life insurance policies $4,

990. January 13, 1890, he filed his first annual settlement, showing a balance on hand of $4,555.49. To this settlement was appended a petition of the guardian for an order to loan $4,000 of the ward's money, and at the April term, 1891, the court made an order directing the guardian to loan said sum on real estate security. There was no proceeding in the guardianship after the April term, 1891, until the January term, 1901, when a petition was filed by Mrs. Wallace, praying that her guardian be required to make a final settlement. On April 5, 1901, the guardian filed his second and final account, charging himself with $1,281.26. The appellee filed numerous exceptions to the account, and made out an account as she contended it should be made, in which the guardian was charged with interest on the funds in his hands, and other matters differently stated. The probate court sustained some of the exceptions, and charged the guardian with interest since the ward's majority, and rendered judgment against him for $1,861.25. The guardian appealed to the circuit court, and the issues were tried anew before the circuit judge. The only evidence was the affidavit of the guardian (treated as a deposition by consent) on the question of interest, and the deposition of Mrs. Wallace. The latter was practically a repetition of her exceptions to the account, and statement of the account as it should be. The appellant has failed to bring into his abstract the evidence, and therefore the presumption is that the evidence sustained the finding by the circuit judge. Shorter University v. Franklin Bros., 88 South. 587, and authorities there cited. Aside from this presumption, however, the guardian did not introduce evidence to sustain his account, where challenged, and he would fail on that score. Mr. Woerner says: "The onus probandi rests upon the executor or administrator to establish the validity of any item of credit in the account which is challenged, and, for want of sufficient prima facie proof, such credit will be rejected." 2 Woerner on Administration, § 540. See, also, Schouler on Dom. Rel. § 372. The circuit judge went through the accounts painstakingly, rejected some credits, and allowed others excepted to, and there is no ground to set aside his finding as to the amount due on the account. The principal question in the case is charging the guardian interest on the funds in his hands. The guardian testified: "I gave the statutory notice, and received from H. H. Halley an application to borrow said funds. That in my opinion, as such guardian, the security offered by said Halley was grossly inadequate. That, as such guardian, I received no other application for the loan of said fund." The trial court said: "He was entitled to a reasonable time to make investments or report his failure to do so to the court. Some authorities say three months is all that could be called reasonable; some say six months;

and in others even a year is hinted at as not too long under peculiar circumstances. It is extremely liberal to the defendant here to allow him the time from April term, 1891, when the order to lend was made, until the 1st of July, 1893, in which to take decisive action." The court charged him with 6 per cent. interest from the latter date, amounting to $2,061.10. Section 3804, Kirby's Dig. requires guardians to loan idle money of their wards, under the direction of the court. Section 3805 provides: "If any guardian fail to loan the money of his ward on hand, as aforesaid, under the provisions of this act, he shall be accountable for the interest thereon." The general rule is that the guardian must exercise reasonable skill and diligence to loan the money, and if he fail to do so he is liable therefor at legal rate of interest, and if the ward can show it could have been loaned at a higher rate, he is chargeable with what he could have obtained. Rodgers on Domestic Relations, § 869; 2 Woerner on Administration, § 511; Price v. Peterson, 38 Ark. 494. The guardian rejected one application on account of the insufficiency of the security, and says he had no further applications. Section 3808, Kirby's Dig., contemplates, when money of the ward cannot be safely loaned, to have it invested in United States bonds. The guardian utterly fails to show reasonable diligence to secure a safe loan, and, had he exercised such diligence and failed, then he should have reported it to the court, to the end that the money be invested in bonds. Instead of doing that, he made no report for 10 years, and only then when cited into court.

The appellant has no cause of complaint against the judgment, and it is affirmed.

An ordinance declaring drunkenness in a public place a nuisance does not conflict with Kirby's Dig. §§ 2550, 2552, 2553, authorizing the arrest by a peace officer of the state of a drunken person found in a public place.

Appeal from Circuit Court, Arkansas County; Geo. M. Chapline, Judge.

La Cotts was convicted of violating an ordinance, and on appeal to the circuit court judgment was rendered for defendant, and the town appeals. Reversed.

H. Coleman, Town Atty., and John F. Park, for appellant. L. C. Smith, for appellee.

MCCULLOCH, J. Appellee was tried and convicted by the mayor of the incorporated town of Dewitt upon a warrant of arrest charging him with violation of an ordinance of the town providing that "it shall be unlawful and it is hereby declared a public nuisance for any person to appear or be found on any street, alley or on the public square of Dewitt in a state of intoxication or drunkenness. He appealed to the circuit court of Arkansas county, where the case was tried before a jury upon an agreed statement of facts to the effect that he was drunk on the streets of the town on the day named and as charged in the warrant of arrest. The court held that the ordinance was void, and directed the jury to return a verdict of not guilty, which was done, and the town appealed to this court.

We are not favored with a brief or argument in behalf of appellee in support of the decision of the court, but it is disclosed in the bill of exceptions that the ordinance was adjudged to be void on the grounds that it is in conflict with sections 2550, 2552, and 2553 of Kirby's Digest. Those sections of the statutes provide that "it shall be the duty of all peace officers to arrest any drunken person whom they may find at large and not in the care of some discreet person, and take him before some magistrate of the county, city or town, in which the arrest is made," who may "order him to be confined until he becomes sober." The next section provides that the magistrate may require of such person "security for his good behavior, and for keeping the peace for a period of not exceeding one year." Municipal corporations are by statute given the power to prevent by ordinances "injury or annoyance within the limits of the corporation from anything dangerous, offensive or unhealthy, and to cause any nuisance to be abated within the jurisdiction given to the board of health." Kirby's Dig. § 5438. In the case of Ex parte Foote, 70 Ark. 12, 65 S. W. 706, 91 Am. St. Rep. 63, this court said that "these statutes endow municipal corporations with power to prevent and abate nuisances, but they do not authorize the declaration of anything to be a nuisance which is not so in fact." But the court in that case upheld an ordinance declaring the keeping of a stallion or jack within the limits of the corporation to be a nuisance, and punishable by fine. Section 5461, Kirby's Dig., is as follows: "It is made the duty of the municipal corporation to publish such by-laws and ordinances as shall be necessary to secure such corporations and their inhabitants against injuries by fire, thieves, robbers, burglars and other persons violating the public peace; for the suppression of riots, and gambling, and indecent and disorderly conduct; for the punishment of all lewd and lascivious behavior in the streets and other public places; and they shall have power to make and publish such by-laws and ordinances not inconsistent

A

with the laws of this state, as to them shall seem necessary to provide for the safety, preserve the health, promote the prosperity and improve the morals, order, comfort and convenience of such corporations and the inhabitants thereof." These statutes undoubtedly authorize the ordinance in question. municipality may, by ordinance, declare drunkenness in a public place to be either a nuisance or disorderly conduct, and punish it as such. It is a matter of common knowledge that drunkenness in a public place is offensive to all who come in contact with the person in that condition. It is a nuisance and disorderly conduct within the meaning of the statute, and may be declared to be such. Nor is the ordinance in any wise conflicting with the statute authorizing the arrest by a peace officer of the state of a drunken person found in a public place. Brizzolari v. State, 37 Ark. 364.

The judgment is reversed, and remanded for a new trial.

ARKANSAS CENT. R. CO. v. CRAIG. (Supreme Court of Arkansas. July 1, 1905.) WITNESSES-EXAMINATION BY JUDGE.

A trial judge may, in a reasonable and impartial way, so as not to indicate his opinion of the facts, propound questions to witnesses, to elicit pertinent facts, that the truth may be established.

[Ed. Note. For cases in point, see vol. 50, Cent. Dig. Witnesses, §§ 852-857.]

Appeal from Circuit Court, Logan County, Northern District; Jeptha H. Evans, Judge. Action by John Craig against the Arkansas Central Railroad Company. Judgment for plaintiff. Defendant appeals. Affirmed.

Oscar L. Miles and Lovick P. Miles, for appellant. Robt. J. White, for appellee.

RIDDICK, J. This is an appeal from a judgment against a railroad company in favor of the plaintiff for damages for killing his horse. We do not find any error in the admission of evidence or in the instructions, and are of the opinion that the evidence is sufficient to support the judgment.

Counsel for appellant contend with much force that the judgment should be reversed because the presiding judge during the trial propounded questions to the witnesses for plaintiff and defendant. The contention is not that these questions were improper, had they been propounded by counsel for plaintiff, but the contention is made that by propounding a number of questions the judge thereby assumed the role of attorney, and in that way indicated to the jury his opinion of the evidence, and prejudiced the rights of the defendant. It is true that a judge, under our law, should neither directly nor indirectly indicate to the jury his opinion of the facts in the case when the same are in dispute, and when the jury are to determine

what the facts are. Our Constitution forbids this, and such conduct on the part of a trial judge would be ground for reversal; but we cannot concur in the contention that it is impossible for a judge to propound questions, when counsel objects, without indicating his opinion of the facts to the jury. In a recent and very able work on the Law of Evidence, the author says: "One of the natural parts of the judicial function, in its orthodox and sound recognition, is the judge's power and duty to put to the witnesses such additional questions as seem to him desirable, to elicit the truth more fully. This just exercise of his function was never doubted at common law. The judge could even call a new witness of his own motion, and could seek evidence to inform himself judicially. Much more could he ask additional questions of a witness already called, but imperfectly examined. Fortunately," he says, "the tradition of the common law has never been lost. The right of the judge to interrogate as he thinks best has always been preserved in theory. It has, however, been necessary more frequently to maintain and vindicate it, and to resist incroachment upon it." 1 Wigmore on Evidence, § 784. "A circuit judge presiding at a trial," said the Supreme Court of Indiana, "is not a mere moderator between contending parties. He is a sworn officer, charged with grave public duties. In order to establish justice and maintain truth and prevent wrong, he has a large discretion in the application of rules of practice." The court held that there was nothing wrong in the judge "asking the witness any question, the answer to which would likely throw any light upon the testimony." Huffman v. Cauble, 86 Ind. 596. It seems to be the general rule, well supported by the decided cases, that the trial judge has the right to propound such questions to witnesses as may be necessary in order to elicit pertinent facts, in order that the truth may be established. Of course, this must be done in a reasonable and impartial way, so as not to indicate his opinion of the facts, and thereby prejudice the rights of the parties. Counsel say that it is "impossible for a lawyer worthy of the name" to propound questions to witnesses in a case without indicating an interest in the result of the trial, and they contend that therefore a judge cannot do so. But a lawyer is usually in fact interested in the success of his client. If he were not, he would indeed be hardly worthy of the name. Men who have strong feelings in favor of one side are apt to manifest such feelings by their conduct, but a judge worthy of the name should be only interested in establishing the truth. His questions should be propounded not to support the case of either litigant, but with the sole desire to elicit and bring out the truth, that justice may prevail. Having in fact no feeling for or against either party, it should not be difficult for him to refrain from exhibiting such feeling. It is the pri

mary duty of the parties to bring out their own evidence. It is not usually necessary that the judge should propound many questions to witnesses, and for the judge to take the case out of the hands of counsel and take the lead in the examination of witnesses might at times be improper and prejudicial. But it would be a reproach to the law if he were required to sit still in either a civil or criminal trial and see justice defeated through the failure of counsel to ask a witness a question. Sharp v. State, 51 Ark. 154, 10 S. W. 228, 14 Am. St. Rep. 27; South Covington & Cinn. St. Ry. Co. v. Stroh (Ky.) 57 L. R. A. 875, and note. We have carefully read the bill of exceptions in this case, and see nothing in the questions propounded by the judge calculated to prejudice the rights of the defendant.

Judgment affirmed.

WATERS et ux. v. MERRIT PANTS CO. (Supreme Court of Arkansas. July 1, 1905.) 1. FRAUDULENT CONVEYANCE-HUSBAND AND WIFE-PROOF OF INDEBTEDNESS.

Where a wife asserts, as consideration for a conveyance to her by her insolvent husband, fraudulent as to his creditors in the absence of consideration, a debt for money loaned him by her many years before, no written agreement to repay which was taken, her bare statement is not sufficient proof thereof.

[Ed. Note.-For cases in point, see vol. 24, Cent. Dig. Fraudulent Conveyances, § 900.] 2. APPEAL-EQUITY-ADMISSION OF IMPROPER EVIDENCE.

A chancery case will not be reversed for admission of improper evidence, where without it the decree is supported by a preponderance of the legal evidence.

Appeal from Chancery Court, Howard County; James D. Shaver, Chancellor.

Action by the Merrit Pants Company against H. M. Waters and another. Decree for plaintiff. Defendants appeal. Affirmed. W. C. Rodgers, for appellants. for appellee.

W. D. Lee,

MCCULLOCH, J. This is an action brought by appellee, Merrit Pants Company, against appellants, H. M. Waters and wife, in which appellee seeks to subject certain lands to the payment of a debt in the sum of $380.75 due appellee by said H. M. Waters. It is alleged that H. M. Waters, being insolvent and indebted to appellee, purchased the land in controversy from one McClure, and, with intent to defraud his creditors, caused the title to be conveyed to his wife. The proof in the case consisted only of the testimony of McClure and Mrs. Waters, and it appears therefrom that McClure sold the land to H. M. Waters at a fixed price of $300, which was paid by delivery to McClure of a lot of cattle and a small stock of merchandise-a remnant of the stock carried by Waters as a merchant-and that, at the request of H. M. Waters, McClure made the

deed to his wife. McClure testified that the cattle were taken at a valuation of either $64 or $67. Mrs. Waters testified the value of the cattle was fixed at $80, and that they were her separate property. She also testified that her husband owed her about $1,000 for a lot of cattle and horses which she had sold him when they were married, 20 years previously, and for proceeds of sale of her farm 13 years previously; that no note or other evidence of the indebtedness was executed by the husband; and that she had given him credit on the debt for $220, the estimated value of the stock of merchandise used in payment of this tract of land. The chancellor found that the conveyance to Mrs. Waters was fraudulent, but that her property, the cattle, of the value of $80, had been used in the purchase, and decreed a lien in favor of appellee for $220, the value of the stock of merchandise. The defendants appealed.

It is settled by the decisions of this court that an insolvent husband, when justly indebted to his wife, may, without fraud, prefer her claim to that of other créditors, and make valid appropriation of his property to pay it, even though the result be to deprive other creditors of the means to satisfy their claims. But such transactions between husband and wife are viewed by the court with suspicion, and the perfect good faith of the transaction must be established by proof. Where the wife asserts as a consideration for conveyance of his property to her a claim of debt against her insolvent husband for money loaned to him many years previous—no note or other written evidence of an agreement to repay being shown to have been executed, and the alleged debt having become stale by long lapse of time, as in this caseher bare statement should be corroborated by some other evidence of the existence of a valid debt, before the courts can accept it in support of the conveyance. For a discussion of the law on this subject, reference is made to the recent case of Davis v. Yonge (Ark.) 85 S. W. 90, and nothing need be added here on the subject. See, also, Godfrey v. Herring (Ark.) 85 S. W. 232; Driggs v. Norwood, 50 Ark. 42, 6 S. W. 323, 7 Am. St. Rep. 78. We think the evidence in this case is far from satisfactory as to the existence of a valid debt, and that the chancellor was right in his conclusion.

Appellants complain that the court erred in allowing witness McClure to testify that, of the merchandise received from Waters, about $125 worth bore the marks and name of appellee; thus tending to show that these goods were bought by Waters from appellee. The witness was allowed to examine the itemized account sued on, and, after examination, state that he recognized the number of suits of clothes, and the prices thereof, on the account, as the same he purchased from Waters. The decree was not dependent on this testimony for sufficient evidence to

support it, and, if it be held to be incompetent, the presumption must be indulged that the chancellor was not controlled by it in reaching his conclusion. A chancery case will not be reversed for the failure to exclude improper testimony where without it the decree is supported by a preponderance of the legal testimony. Niagara Fire Ins. Co. v. Boon, 88 S. W. 915; Allen v. Ozark Land Co., 55 Ark. 549, 18 S. W. 1042.

Counsel for appellants also contends that the proof of insolvency is not sufficient, but we think that fact is satisfactorily established by the proof on the subject, in connection with the undenied allegation of insolvency at the time of the commencement of this suit. Decree affirmed.

HILL, C. J. The appellants were indicted by the grand jury of Lafayette county charged with the murder of Henry Evans. They were convicted of murder in the second degree, and given seven years each in the penitentiary, and have appealed to this court.

Henry Evans, Cleveland Jones, these appellants, and several other negroes, were at Marryman's store, and Evans and Jones left together, and within less than a half hour appellants went in the same direction along the same path taken by Jones and Evans. Evans was never seen alive by any other persons after he left Marryman's store, and about three weeks afterwards a decomposed body, with the skull crushed, found in the woods about a quarter of a mile from the path pursued by these parties, was identified as his. On the day before he was killed his employer paid him $18.55, consisting of $13.55 in silver and a $5 bill. Cleveland Jones was suspected of the murder, and was arrested, and the appellants sent for as witnesses, and their conduct excited suspicion, and later Jones made a statement to the effect that he and Evans stopped on the roadside, and appellants overtook them, and one of them, with a wagon spoke, struck Evans on the head, and afterwards robbed his body, taking therefrom ten silver dollars and two half dollars. He further said that while at the store one of the appellants asked him to take Evans out and they would hold him

up and rob him of his money, and offered him $2.50 if he would do this. It is shown that Evans was not as intelligent as the average darkey. Jones says he got scared when he saw them robbing the body and ran away, and afterwards appellants came to him and insisted on him taking $2.50, and told him to say nothing, and that Evans had gone on home. He obeyed this injunction until he was arrested himself charged with the murder after the discovery of Evans' body. No money was found on Evans' body. Jones' testimony on the trial was to the same effect as his statement to the deputy sheriff when arrested, as above outlined. This was the chief testimony against the appellants, and the main point argued on this appeal is that there is not sufficient corroboration of the accomplice to sustain the conviction. Conceding, without deciding, that he was an accomplice, requiring corroboration, the court is of opinion that the evidence was sufficient. The appellants' suspicious conduct before arrest and contradictory statements and efforts to manufacture testimony were shown. One of them, in the presence of the other, told the sheriff where to find the spoke with which the blow was dealt, and when the blood-stained spoke was brought to the group of men where these appellants were Chancellor broke down and cried. The proximity to the scene of the crime, the circumstance referred to, and others in evidence, were sufficient testimony to afford the corroboration required by law. Kent v. State, 64 Ark. 247, 41 S. W. 849. The defendants gave plausible testimony as to their whereabouts, and were corroborated by some witnesses locating their presence at other places in accordance with their testimony; but a reasonable latitude for the approximation of time would not throw this testimony in conflict with Jones'. The defendants also proved good character for themselves. The jury doubtless had some doubts as to the truth of Jones' story, for a belief in it called for the death penalty, not seven years in the penitentiary; but those matters are solely in the province of the jury, and they have accepted Jones' testimony, corroborated as it is by the incriminating conduct of appellants, and these matters are not for review here.

It is insisted that, notwithstanding there was no demurrer to the indictment nor motion in arrest of judgment, its sufficiency can be raised here; but as the indictment is good, and the point made against it decided otherwise than contended for by appellants in Powell v. State (Ark.) 85, S. W. 781, it is not worth while to pursue the subject further. The instructions were correct, and the appellants' fate settled by the jury. If Jones told the truth, their punishment is far too light; if he did not, it is their misfortune that a jury of their county would not credit their testimony.

The judgment is affirmed.