3. CARRIERS 58-BILL OF LADING-DELIV- | McInturff or order upon the full payment ERY-SET-OFF. of the draft. The railroad company delivered the three cars of axles to the Vehicle Supply Company, and the members who composed that firm applied the proceeds to the payment of the debt due the firm by McInturff and refused to account to the Chicot Bank & Trust Company for the proceeds.

Where plaintiff shipped goods to his own order and delivered the bill of lading, with draft attached, to a bank, with directions to deliver the goods on payment of the draft, defendant who, after notice of arrival, had wrongfully received and converted the goods, could not apply the proceeds thereof to the payment of the plaintiff's indebtedness to it without direction from the plaintiff, and could not stand in the position of a third person acquiring rights without notice as against the bank.

[Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 179-190; Dec. Dig. 58.] Appeal from Circuit Court, Chicot County; Turner Butler, Judge.

Action by S. J. McInturff and another against the Vehicle Supply Company and another. Judgment for plaintiffs against the defendant Vehicle Supply Company, and it appeals. Affirmed.

B. F. Merritt, of Lake Village, for appellant. J. C. Gillison, of Lake Village, for appellees.

The railroad agent at Lake Village testified that he had a message from the railroad agent at Cairo, Ill., stating that the cars were on hand and asking for a disposition of the axles; that he called up McInturff and asked for a disposition of the axles; and that McInturff told him that the Vehicle Supply Company knew that the cars were there and would take them up; and that he then told McInturff that he would wire the agent

at Cairo to notify the Vehicle Supply Company, and that McInturff replied that that

would be all right.

The agent of the railway company at for the cars in question were what the InterCairo, Ill., testified that the bills of lading state Commerce Commission approved as be

are not negotiable documents, and that there was a form prepared and approved by the commission called an uniform order bill of lading which was for the purpose of enabling shippers to draw on the goods shipped, and that this bill of lading was negotiable.

HART, J. On the 8th day of January, 1915, S. J. McInturff and the Chicot Bank & Trust Company instituted an action against the Vehicle Supply Company, a part-ing a straight bill of lading, and that they nership composed of M. S. and C. C. Carter, doing a vehicle supply business in the city of Cairo, Ill., and against the St. Louis, Iron Mountain & Southern Railway Company, for the recovery of $1,331.26 alleged to be the value of three car loads of axles wrongfully delivered by the railway company to its codefendant and converted by it to its own use. One of the partners came to Chicot county, and service was had upon him there. The defendants answered.

also testified that he remembered the railroad agent at Lake Village calling him up with reference to the shipment, and says that he told the agent that the goods were consigned to himself, and that he had made a sight draft on the Vehicle Supply Company, and that if the Vehicle Supply Company wanted the cars it must pay the draft and take up the bills of lading.

Evidence also was adduced by the defendant tending to show that the axles contained in the three cars did not amount to the value of $1,331.26. On the other hand, McInturff testified that he inspected the The facts are as follows: S. J. McInturff cars shipped by him, that he picked out No. 1 was in the employment of the Vehicle Sup-stock, and that the timber was worth the ply Company in connection with the business amount sued for by him and the bank. He at Cairo, Ill. He found some timber near Lake Village, Ark., out of which he thought he could make some money, and the Vehicle Supply Company, desiring the lumber, agreed to lend him $1,000 on which to operate. He gave the Vehicle Supply Company a mortgage on some land in Oklahoma as security and also agreed to pay the firm out of the proceeds of lumber shipped to it. He established a sawmill at Lake Village, Ark., and on the 3d day of June, 1914, executed a mortgage to the Chicot Bank & Trust Company on all the manufactured lumber in his mill yard at Lake Village, Ark., to secure the sum of $650 and future advances. In September, 1914, McInturff shipped to himself at Cairo, Ill., three car loads of axles of the value of $1,331.26 and gave the Chicot Bank & Trust Company a draft for the proceeds of the cars of lumber and attached it to the bills of lading. The bills of lading with the draft attached were delivered to the Chicot Bank & Trust Company and by it forwarded to the bank at Cairo, Ill., with directions to deliver the bills of lading to

The cashier of the bank testified that he had furnished McInturff the sum sued for in this action, and that the amount was due and unpaid, but that McInturff had paid the bank all other sums due under the mortgage except the sum sued for in this action.

The jury returned a verdict in favor of the plaintiffs against the Vehicle Supply Company for the amount sued for, and from the judgment rendered the Vehicle Supply Company has duly prosecuted an appeal to this court.

It is the contention of the Vehicle Supply Company that, because the mortgagee consented to the mortgagor removing the mortgaged property from the state, it waived its

lien as against the Vehicle Supply Company. | directed to do so by McInturff. The cars This court has not decided as to whether were consigned to him and were subject to or not the mortgagee's consent to the re- his order. They never rightfully came into moval of mortgaged property from the state the possession of the Vehicle Supply Comwill affect his lien. F. E. Creelman Lumber pany, and for that reason it did not stand in Co. v. Lesh, 73 Ark. 16, 83 S. W. 320, 3 Ann. the position of a third person acquiring Cas. 108. The authorities on the question rights without notice as against the bank. are divided, and extensive case notes will be found in connection with the following cases: Snyder v. Yates, 64 L. R. A. 353; Jones v. North Pacific Fish & Oil Co., 6 L. R. A. (N. S.) 940; Farmers' & Merchants' Bank v. Sutherlin, 93 Neb. 707, 141 N. W. 827, Ann. Cas. 1914B, 1250.

The views, however, which we shall hereinafter express, render it unnecessary for us to review the authorities or determine the question and we shall not attempt to do so.

[1] The court submitted to the jury, under proper instructions, the question of whether or not the railroad company wrongfully delivered the property to the Vehicle Supply Company, and whether or not the firm converted the three car loads of axles to its own use. The jury found against the Vehicle Supply Company on this question, and there is evidence to support the verdict. It is true the railroad agent testified that McInturff directed him to have the cars of axles turned over to the Vehicle Supply Company, but in this McInturff flatly contradicts him. McInturff testified positively that he told the agent not to turn over the three cars unless the supply company paid the amount of the draft which he had drawn in favor of the Chicot Bank & Trust Company. The Vehicle Supply Company failed to pay this draft, but took possession of the three cars of axles and converted them to its own use. The cars were consigned by McInturff to himself, and he delivered the bills of lading therefor with draft attached to the Chicot Bank & Trust Company.

[2] It is true the railroad agent says that the bills of lading were not negotiable; but, be that as it may, the bill of lading is regarded as a symbol of the property described therein, and its delivery by McInturff to the bank was equivalent to a delivery of the property as far as they were concerned. No rights of third parties have intervened. According to the testimony of McInturff, the railway company wrongfully delivered the cars of axles to the Vehicle Supply Company and the firm converted the axles to its own use. As we have already seen, this question was submitted to the jury under proper instructions, and the jury has found against the Vehicle Supply Company.

[3] The case then stands as if the Vehicle Supply Company had wrongfully received the three car loads of axles and converted them to its own use, by applying the proceeds of the car to the debt due it by McInturff. It had no right to apply the proceeds of these three cars to the payment of its debt unless

It is urged by counsel for the Vehicle Supply Company that the court erred in refusing certain instructions asked by it. But, without setting these instructions out in detail, it is sufficient to say that they are contrary to the principles of law just announced.

The judgment will be affirmed.

(No. 204.)

MILLER v. STATE. (Supreme Court of Arkansas. Nov. 1, 1915.) 1. CRIMINAL LAW 722-TRIAL-ARGUMENT OF PROSECUTING ATTORNEY.

where defendant proved his good reputation by In a prosecution for the theft of a horse, many witnesses, and the proof as to his guilt was inconclusive, the district attorney's closing argument, to the effect that it had been shown that defendant was an honest, hard-working negro, owning his own home, but that he wished to call attention to the fact that his deed, which was in evidence, showed that he only paid $21 for his home, and that his policy, that he did not know what defendant was prealso in evidence, showed insurance for $200, and paring for, but that the jury were judges of that, which the court refused to withdraw from consideration, was reversible error, as tending to impute criminal intent, and destroy the ef fect of proof of good reputation.

[Ed. Note.-For other cases, see Criminal Law, Cent. Dig. § 1674; Dec. Dig. 722.] 2. CRIMINAL LAW 369-EVIDENCE-OTHER

OFFENSES.

Evidence of the commission of one offense

is not admissible to establish the guilt of defendant, charged with an entirely independent is not admissible to establish the guilt of decrime.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 822-824; Dec. Dig. 369.]

J. M. Jackson, Judge.
Appeal from Circuit Court, White County;

Wiley Miller was convicted of grand larceny, and he appeals. Reversed, and cause

remanded for new trial.

Brundidge & Neelly, of Searcy, for appellant. Wallace Davis, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

KIRBY, J. Appellant brings this appeal from a judgment of conviction for grand larceny for the theft of a horse, the property of one Jerome Jarard.

It appears from the testimony that the horse was taken from Bald Knob about February 27, 1913, and was traced from there and found in the possession of one Hodges, in Jackson county, who also had in his possession an overcoat and some papers, insurance policies, tax receipts, and a deed to Wiley Miller. Several witnesses testified that they saw a man riding a horse of the description

"I do not know what he was preparing for said county for the costs in certain cases then, but you are to be the judges of that.

The facts are as follows:

The prosecuting attorney instituted 362 suits in the name of the state against the St. Louis, Iron Mountain & Southern Railway Company to recover a penalty for the failure of the railway company to maintain sufficient street lights at the town of Dermott during the nights specified in the complaint. Similar suits had been instituted in Bradley county, and this court held that an action against the railway company for failure to maintain the lights as provided in the act was a civil action in which a penalty was collected in the name of the state, and that the act did not create a public nuisance. It was further held that the statute did not authorize the recovery of accumulated penalties, and that but one penalty could be recovered for all the acts prior to the commencement of the suit. St. L., I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S. W. 517. Following that decision the circuit court rendered judgment in one case, and the remaining 361 cases against the railroad company were dismissed.

C. M. Matthews was the sheriff of Chicot county, and served the summons upon the railway agent at Dermott. He charged mileage from the county seat to Dermott, and also a fee for service in each case. The total amounted to $1,201.20. The county court denied his claim in toto, and he appealed to the circuit court. The circuit court refused to allow him mileage, but allowed him 50 cents in each case for serving summons, and 10 cents for calling each case, making a total of $217.20.

From the judgment rendered both the county and the sheriff have prosecuted an appeal to this court.

The clerk presented to the county court a claim for $4.60 in each case, or a total of $1,665.20 in the 362 cases. The county court disallowed his claim and he appealed to the circuit court. The circuit court allowed him fees in the sum of $868.80 and Chicot county has prosecuted an appeal to reverse the judgment in his favor for this amount.

The statement of facts raises the question of whether or not costs can be taxed against the county in cases of failure in the prosecution of suits by the state against railroad companies for failure to maintain sufficient lights during the nighttime on all their main line switches as prescribed by Act No. 23 of the General Acts of 1911. It may be stated here that the statute does not provide in terms who shall pay the costs. It is contended by counsel for the sheriff and clerk that the county is liable under section 990 of Kirby's Digest. This section provides, in effect, that when a county has any demand against any person or corporation, suit may be brought in the name of the state for the use of the county, and that all costs and expenses not recovered from the defendant shall

I that section has any application to suits like the one under consideration. The act in question provides that the penalties established by the act shall be recovered in a civil action in the name of the state. St. L., I. M. & S. Ry. Co. v. State, 107 Ark. 450, 155 S. W. 517.

The suits in which the sheriff and clerk claim costs were brought in the name of the state. It is true that the complaints state that the suits are brought for the benefit and use of Chicot county, but this is a mere conclusion of the pleader. There is no provision in the act itself which makes the county liable for the costs, and we do not think that such liability can be sustained under the general statute just referred to. The county was not a party to the suit, and, in the absence of a statute making it liable for costs, it could not be properly taxed with the costs.

In the case of State v. Blackburn, 61 Ark. 407, 33 S. W. 529, the court held that the costs in a bastardy proceeding could not be charged against the county where the defendant was acquitted. The court further held that bastardy is a subject of civil proceedings, and in discussing whether the costs could be taxed against the county in case of failure in the prosecution, said:

"Our conclusion is that no one is bound for costs, unless rendered so by some positive provision of law, or as a necessary implication from provisions of law, and that neither the state nor the county is bound even by legal provisions, unless it is specifically or by necessary implication named or referred to therein."

Section 7183 of Kirby's Digest provides that all fines, penalties, and forfeitures imposed by any court, except those imposed by mayors' or police courts in any city or town, shall be paid into the county treasury for county purposes. So it will be seen that the fines and penalties in all criminal cases go to the county. Prosecutions therefor are in the name of the state; but the counties are not liable for the costs in the absence of a statute making them liable.

In Stalcup v. Greenwood District, 44 Ark. 31, and Craighead County v. Cross County, 50 Ark. 431, 8 S. W. 183, it was held that counties are not liable for costs in misdemeanors or felonies where a nolle prosequi had been entered. The reason assigned is that the liability of counties for costs in criminal proceedings rested alone upon the statute.

The next General Assembly meeting after the decision in the case last mentioned enacted a statute, so as to make cases dismissed by nolle prosequi on the same basis as cases tried and resulting in an acquittal. In the case last mentioned the court said that officers are frequently called upon to render seryices for which no specific compensation has been provided by law, and that this is especially true of services rendered to the state or to a county. The performance of such

office. There being no provision in the act itself which makes the county liable for costs, nor any general statute under which such a liability can be sustained, it may not be lawfully done.

It follows that the judgment of the circuit court was wrong in both cases.

The judgments will therefore be reversed, and the causes of action of both the clerk and sheriff will be dismissed.

(No. 198.)

in the town of Horatio, Sevier county, Ark.; that after acquiring said pool hall he turned the same over to his son, George Halliday, a minor under the age of 15 years, to operate under an agreement or understanding that the boy should have half the proceeds or earnings from the tables; that the tables were operated by the said minor son under this agreement or understanding, and all moneys received were deposited in the bank by him and were checked out by him; that the defendant himself had nothing to do with the operation of the tables; being a carpenter, he was employed at his work, and the said pool hall was left to the exclusive management of the said minor; that said minor took charge of said pool hall, roomed in it, and conducted it with the consent and approval of the defendant."

HALLIDAY v. STATE. (Supreme Court of Arkansas. Nov. 1, 1915.) INFANTS 13-POOL ROOM-ALLOWING MIWe are of the opinion that the facts do NOR TO ENTER STATUTE "FREQUENT" not bring the case within the operation of -"CONGREGATE. the statute. Appellant's son did not play Under Acts 1911, p. 63, § 1, providing that either of the games mentioned in the statit shall be unlawful for the owner or keeper of any pool room to permit any person under the ute, but was merely employed in the establishage of 18 to play pool or any other game, or to ment to operate it. The statute neither profrequent or congregate in such pool room, where hibits leasing of a pool hall to a minor nor a father, who owned pool tables and paraphernalia, turned the same over to his son, a minor employing a minor in such a place. If the under 15 years, to operate, under an agreement lawmakers had intended to give that effect whereby the boy took half the earnings of the to the statute, it could easily have been so tables, which were operated by him, the father expressed. The language of the act is that it having nothing to do with the operation, the room being left to the exclusive management of shall be unlawful for the owner to permit any the boy, he taking entire charge of it, the fa- person under the age of 18 years to "frether was not guilty of a violation of the act, quent or congregate in such pool room." It since his son played neither pool nor billiards, is unnecessary for us to enter into any discusbut was merely employed in the establishment to

operate it, while the act neither prohibits the sion as to the full meaning which the lawleasing of a pool room to a minor nor employ-makers intended to give to this language, ing a minor in such a place; the term "fre- but it is certain that no such meaning was quent," when used in connection with the word intended as would bring this case within the 'congregate," implying the permission of visits to a pool room and not the mere giving of em- operation of the statute. There is little, if ployment at such a place. any, difference in the definitions by the lexicographers of the word "frequent." According to the Century Dictionary it is defined thus: "To visit often; resort to habitually." Another dictionary (New Standard) gives this definition: "To visit or repair to often; resort to habitually."

[Ed. Note. For other cases, see Infants, Cent. Dig. 14; Dec. Dig. 13.

For other definitions, see Words and Phrases, First and Second Series, Frequent; Congregate.]

Appeal from Circuit Court, Sevier County; Jeff. T. Cowling, Judge.

S. R. Halliday was convicted of an offense, and he appeals. Judgment reversed,

and cause dismissed.

Steel, Lake & Head, of Texarkana, for appellant. Wallace Davis, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State.

MCCULLOCH, C. J. This is an appeal from a judgment of conviction under a statute enacted by the Legislature at the session of 1911 which provides as follows:

When considering this word in connection with the word "congregate," which follows, some difficulty may be found in determining with what degree of frequency visits to a pool room by a person within the prohibited age must occur in order to constitute the offense; but we readily reach the conclusion that the term used implies the permission of visits to a pool room, and not mere giving employment to a minor at such a place. Giving employment to a minor at such a place is not permitting the minor to visit or to frequent or congregate with others there.

The judgment is therefore reversed, and

"It shall be unlawful for the owner or keeper of any pool room, or pool hall or pool parlor or the cause dismissed.

any employé of such owner or keeper to permit any person or persons under the age of eighteen (18) years, to play pool, billiards, or any other game, or frequent or congregate in such pool

room or pool parlor or pool hall, or any depart- DICKINSON, Auditor, v. PAGE, Commissionment thereof." Acts 1911, p. 63, § 1.

The case was tried on the following agreed statement of facts:

er, etc. (Nos. 172, 230.)

(Supreme Court of Arkansas. Oct. 18, 1915.) 1. STATUTES 32-ENACTMENT - VETO BY GOVERNOR.

"It is agreed by and between counsel for plaintiff and counsel for defendant that on or about Const. art. 6, § 15, declares that if any the time alleged in the information in this case bill shall not be returned by the Governor withthe defendant, S. R. Halliday, was the owner in 5 days after presentation, it shall be a law of pool tables and paraphernalia for a pool hall as if signed, unless the General Assembly, by