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which the corporation was created is not to be transcends its powers. We do not think it taken as prohibited, but is as much granted as does. The purpose of the organization was that which is expressed." Thompson on Corpo-to foster and promote the educational, comrations, $ 2771.

mercial, industrial, physical, and moral develOrdinarily only such powers and rights can opment of the cities of Little Rock, Argenta, be exercised by corporations under their and vicinity, and if the establishment and charters as are clearly comprehended within the words of the act, or derived therefrom operation of the boat line as proposed would

reasonably tend to any such development, it by necessary implication, regard being had would easily come within the implied and to the object of the grant, and the charter, incidental powers of the corporation being read in the light of any general laws which necessary, appropriate and suitable for effect

, are applicable, is the measure of its powers, ing the purpose. and such is the case whether the corporation

If it be questionable whether the Arkansas is created by special charter from the Leg- river can be successfully navigated by the islature or formed by articles of association granting of the subsidy and the construction under general laws. Thomas v. West Jersey and operation of the proposed boat line, that Railroad Co., 101 U. S. 71, 25 L. Ed. 950.

is a matter left for decision to the industrial Cyc. says:

and development committee of the Chamber “The implied powers of a corporation are not of Commerce and the organization itself, and limited to such as are indispensably necessary to carry into effect those expressly granted, but of its decision appellants cannot complain, comprise all that are necessary in the sense of unless the success of it is so improbable as being appropriate, convenient, and suitable for to show an arbitrary exercise of the power such purposes, including the right to a reasonable choice of means to be employed.

and waste of the fund. It is a well-recogniz

They must result from the charter by necessary im-ed fact that accessibility to market and faplication, regard being had to the object and cilities for transportation, at a low and reapurpose of the corporation;" and "if the means employed are reasonably adapted to the ends for sonable freight rate, tend greatly to the develwhich the corporation was created, they come opment and promotion of the local welfare within its implied or incidental powers, although in industrial and commercial ways. This is they may not be specifically designated by the not disputed by appellants, who object chiefact of incorporation." 10 Cyc. 1097.

ly because they think the proposed project is [1] Our court has said that:

impracticable and will result in failure and Powers that are essential to the exercise of loss, forecasting the future from the expethe powers expressly granted are necessarily im- rience of the past. That, however, was a plied from those expressly granted, and are 'as much granted as what is expressed.' Rachels

matter to be settled by the Chamber of Comv. Stecher Cooperage Works, 95 Ark. 6, 128 s. merce or its appropriate committee, and has W. 348; Simmons National Bank v. Dilley been against appellants' contention. We Foundry Co., 95 Ark. 368, 130 S. W. 162.

think the right of the appellee to use the [2] It is also true and a well-settled gen- funds donated to it to be expended for the eral rule of law that the power of a corpora- promotion of the public welfare of the cities tion to make and take contracts is restricted of Little Rock, Argenta, their vicinity, and to the purposes for which it is created, and the state, in physical, moral, educational, cannot legally be exercised by it for other commercial, and industrial ways, includes purposes. Simmons' National Bank v. Dilley the power to use it as proposed in the estabFoundry Co., supra.

lishment of a boat line for the navigation of [3] Of course the enumeration of the pow- the river, under the circumstances. ers of a corporation in its charter implies the We do not think it necessary to decide exclusion of all others not fairly incidental whether a corporation may become a memto those granted. The only question here, ber of a partnership, since this record disclosas said, is whether the proposed action of es that there was no attempt or agreement the Chamber of Commerce to grant a subsidy on its part to do so, it being expressly agreed for the construction and operation of boats that the corporation does not share in the in the navigation of the Arkansas river in profit or loss of the enterprise of the navigacarrying passengers and freight for hire be- tion of the river. tween Little Rock, Ark., and Memphis, Tenn., The decree is affirmed.

:

filed a motion in arrest of judgment, which RILEY v. STATE. (No. 185.)

was overruled. Thereupon appellant was (Supreme Court of Arkansas. Oct. 25, 1915.) granted "15 days within which to prepare (

and file his bill of exceptions." The bill of 1. CRIMINAL LAW O1092–RECORD—MATTERS

REVIEWABLE RESERVATION OF EXCEP- exceptions was not filed within the time given TIONS.

by the court. See Stinson v. Shafer, 58 Ark. Where, after conviction of a felony, defend-110, 23 S. W. 651; Routh v. Tharpe, 103 ant failed to file his bill of exceptions within Ark. 46, 145 S. W. 888, and cases cited; the time granted therefor, no question upon the admission of evidence or the charge of the court Peebles v. Columbia Woodmen, 111 Ark. 435, is presented, since these can only be presented 164 S. W. 296. Therefore we cannot consider by a bill of exceptions.

the alleged errors relating to the admission [Ed. Note.-For other cases, see. Criminal of testimony and the giving of instructions, Law, Cent. Dig. S$ 2803, 2829, 2834–2861, 2919; Dec. Dig. Omw 1092.]

as these can only be presented by a bill of 2. INDICTMENT AND INFORMATION Om 110

exceptions. McLaughlin v. State, 174 S. W. FOLLOWING LANGUAGE OF STATUTE.

234. Under Kirby's Dig. § 1732, providing that "every person who shall exhibit any gaming

[2] Appellant's motion in arrest of judgtable (naming certain tables), although not here- ment challenges the sufficiency of the indictin named, be the name or denomination what it ment. Section 1732 of Kirby's Digest promay, adapted * *

for the purpose of play-vides: ing any game of chance, or at which any money or property may be won or lost, shall be deemed hibit any gaming table or gambling device [nam

"Every person who shall set up, keep or exguilty of a misdemeanor,” it is sufficient to describe the offense created by statute in the ing certain ones), * * * or bank of the like words of the statute; and an indictment charg- or similar kind, or of any other description, aling that the defendant “did keep and exhibit a though not herein named, be the name or' decertain gambling device adapted, devised, and nomination what it may, adapted, devised or dedesigned for the purpose of playing a game of chance, or at which any money or property may chance, in which money may be won and lost, be won or lost, shall be deemed guilty of a miscommonly called a pool table,” is sufficient to charge a public offense, and it is immaterial demeanor," etc. under the statute what the name of the device It is generally sufficient to describe an ofmay be.

fense created by statute in the words of the [Ed. Note. For other cases, see Indictment statute. Portis v. State, 27 Ark. 360; State and Information, Cent. Dig. $8 289-294; Dec. Dig. Om110.]

v. Hooker, 72 Ark, 382, 81 S. W. 231. The

indictment charged that the appellantAppeal from Circuit Court, Boone Coun- "did keep and exhibit a certain gambling device, ty; John I. Worthington, Judge.

adapted, devised, and designed for the

purpose W. J. Riley was convicted of the crime of of playing a game of chance, in which money exhibiting a gambling device, and he ap- may be won and lost, commonly called a pool

.” peals. Affirmed.

This is sufficient, under our statute and the Troy Pace and T. D. Crawford, both of latest decisions of this court on the subject, Little Rock, for appellant. Wallace Davis, to charge a public offense. State v. Sanders, Atty. Gen., and John P. Streepey, Asst. Atty. 86 Ark. 353, 111 S. W. 454, 19 L. R. A. (N. Gen., for the State.

S.) 913; Tully v. State, 88 Ark. 411, 114 S.

W. 920; Johnson v. State, 101 Ark. 159, 141 WOOD, J. Appellant was indicted as fol- S. W. 493. It is wholly immaterial, under lows:

the statute, as to what the name or denom"The grand jury of Boone county, in the name ination of the device may be. The statute and by the authority of the state of Arkansas, was leveled at devices "adapted, devised and accuse J. Riley of the crime of exhibiting a gambling device, committed as follows, to wit: designed for the purpose of playing a game The said J. Riley, in the county and state afore- of chance at which any money or property said, on the 10th day of September, A. D. 1914, may be won or lost," no matter what the being then and there the occupant of a certain name of such device may be. The indicthouse, in the city of Harrison, in said county and state, did then and there unlawfully and ment under review expressly charges that apknowingly set up, keep, and exhibit a certain pellant exhibited such a device. gambling device adapted, devised, and designed As before stated, we cannot enter upon for the purpose of playing a game of chance, and in which money may be won or lost, which the question as to whether the evidence was said gambling device was commonly called a sufficient to sustain the charge. The only pool table, against the peace and dignity of the question for decision is whether the indictstate of Arkansas."

ment itself is couched in language setting [1] Appellant urges for reversal alleged forth facts which, if proved, would constierror of the court in admitting certain evi- tute a public offense. According to the cases dence and in giving certain instructions. supra, the indictment charges a public ofThe record shows that on the 5th of August, fense. 1915, appellant filed his motion for a new The judgment is therefore correct, and it trial, which was overruled, and that he also is affirmed.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

been together that night, nor did they deny COUNTS V. STATE. (No. 197.)

that Shuffield had ridden the horse which (Supreme Court of Arkansas. Oct. 25, 1915.) was found running loose. Their explanation

of this fact, however, was that on the night 1. CRIMINAL LAW 424 - EVIDENCE-DEC

LARATION OF CONSPIRATORS AFTER CONSUM of the fire Walter Shuffield rode to Walter MATION OF CONSPIRACY.

Counts' home with him, and when they reachOn the trial of one jointly indicted with S. ed there they were cold and went in to for arson, where testimony regarding tracks of warm, and ate supper, during which time the defendant and S. and their horses constituted a material part of the evidence, and it appeared horse became untied and strayed away. A that S.'s horse was found running loose, and witness, Fred Caver, was permitted to testify that its tracks were compared with those found that after Shuffield's horse had been found near the burned building, it was error to permit Walter Shuffield stated to him that, “Walter a witness to testify that S. told him, after any Counts played hell when he turned my horse mated, that defendant “played hell when he loose." Upon the cross-examination of the turned my horse loose," since, when a deed is witness Walter Shuffield he was asked, over spirators is ended, the acts or declarations of the objection and exception of appellant, if one conspirator are thereafter inadmissible his brother Hardy Shuffield had not been against his co-conspirator.

charged with having killed and burned a [Ed. Note.-For other cases, see Criminal woman, and the witness answered that his Law. Cent. Dig. $$ 1002-1010; Dec. Dig. Ons brother had been so accused. 424.]

[1] We think it unnecessary to set out the 2. CRIMINAL LAW Ow1163—WITNESSES 278-CROSS-EXAMINATION-PREJUDICIAL ER- evidence in this case, but announce our con

— ROR.

clusion that it was legally sufficient to susOn a trial for arson, it was error, and pre- tain the verdict, and the testimony in resumptively prejudicial, to permit one jointly in- gard to the tracks of appellant and his comdicted with defendant to be asked, on cross-examination, whether his brother had not been ranion and their horses constituted a very charged with killing and burning a woman; material part of this evidence. In this conthe brother not being a witness nor charged nection it may be said that the testimony of with the crime on trial.

the witness Caver related to a statement of [Ed. Note.--For other cases, see Criminal Walter Shuffield, made after the consummaLaw, Cent. Dig. $$ 3090–3099; Dec. Dig. Om 1163; Witnesses, Cent. Dig. 88 985, 986; Dec. tion of the conspiracy between Shuffield and Dig. Om 278.]

appellant, and its damaging effect is, of Appeal from Circuit Court, Hot Spring tablished that when a deed is done and the

course, apparent. It is thoroughly well esCounty; W. H. Evans, Judge.

criminal enterprise of the conspirators is Walter Counts was convicted of arson, and

ended, the acts or declarations of one conhe appeals. Reversed and remanded.

spirator are thereafter inadmissible against H. B. Means, of Malvern, for appellant. his co-conspirator. Willis v. State, 67 Ark. Wallace Davis, Atty. Gen., Jno. P. Streepey, 234, 54 S. W. 211; Chapline v. State, 77 Asst. Atty. Gen., and D. D. Glover, of Mal- Ark. 444, 95 S. W. 477; Lawson v. State, 32 vern, for the State.

Ark. 220; Polk v. State, 45 Ark. 165; Gill v.

State, 59 Ark. 422, 27 S. W. 598; Foster v. SMITH, J. · Appellant was jointly indicted State, 45 Ark. 328; Cumnock v. State, 87 with one Walter Shuffield for the crime of Ark. 34, 112 S. W. 147; Benton v. State, 78 arson, alleged to have been committed by Ark. 284, 94 S. W. 688; Wiley v. State, 92 burning a barn, the property of one W. T. Ark. 586, 124 S. W. 249; Storms v. State, 81 Shuffield. The state depended upon circum- Ark. 25, 98 S. W. 678; Harper v. State, 79 stantial evidence for a conviction, and ap- Ark. 594, 96 S. W. 1003; Easter v. State, 96 pellant questions the sufficiency of this evi-Ark. 629, 132 S. W. 924. dence to support the verdict of the jury, find- [2] It was, of course, error to permit the ing him guilty of that charge. Among the state to ask the witness Walter Shuffield if circumstances offered in proof was evidence his brother had not been charged with havconcerning certain tracks alleged to have ing killed and burned

Hardy been made by appellant and his companion, Shuffield was not charged with the commisand certain horse tracks alleged to have been sion of this crime, nor was he a witness at made by the horses which they rode on the the trial. But this evidence would not have night of the fire. On the following morning, been competent in either of those cases. We while these tracks were being followed, a wit- do not know upon what theory this evidence ness found Shuffield's horse running loose was admitted but we do know it was erin the road leading to the barn, and compari- roneous, and the presumption is that it was sons were made of the tracks of this horse prejudicial; its necessary effect being to with those of one of the horses found near show that a brother had been accused of an the barn, where two horses had been re- even more serious crime than the witness cently hitched for a sufficient length of time Walter Shuffield himself was charged with, for them to tramp and beat down the ground For the errors indicated, the judgment of where they had been standing. Appellant the court below will be reversed, and the and Shuffield did not deny that they had cause remanded for a new trial.

from Joplin over the Missouri & North ArEOFF & SNAPP v. SCULLIN et al. kansas Railroad to Bellefonte, Ark. They (No. 186.)

charge negligence in delaying the shipment (Supreme Court of Arkansas. Oct. 25, 1915.) and in moving the cars, by which numerous 1. CARRIERS Cm 230—CARRIAGE OF LIVE STOCK unnecessary jolts and jars occurred, thereby -NEGLIGENCE--QUESTION FOR JURY.

injuring the jack of appellants, to their damIn an action against a railroad and receiv- age in the sum of $3,500, for which they ers of another road for injuries to a jack in prayed judgment. transit, whether the receivers' employés were

The service on the Missouri Pacific Railnegligent in handling the car containing the jack after it reached their road held for the jury, way Company was quashed, and the suit under the evidence.

proceeded against the receivers of the Mis[Ed. Note.-For other cases, see Carriers, souri & North Arkansas Railroad Company.

, Cent. Dig. $$ 961, 962; Dec. Dig. Om 230.] They deny that there was any negligent de2. CARRIERS C218/CARRIAGE OF LIVE STOCK lay or any negligent handling of the jack on -STIPULATION AS TO NOTICE OF INJURY- the Missouri & North Arkansas Railroad. VALIDITY.

Where a railroad stipulated with the shipper The testimony of the plaintiff Eoff on this of a jack that he should notify the road of any point is as follows: injury to the animal in transit one day after de- "Q. I will ask you to state, Flem, what the livery at destination, and the jack was delivered handling was so far as the train was concerned in an injured condition, but the injury did not with reference to the jars and jerks and jolts become perceptible until more than a day had or its smooth operation after you left Joplin to elapsed, the shipper was excused from giving come to Bellefonte. A. Well, we did pretty the stipulated notice, since the parties, in mak- well until we got to Seliginan, and then from ing the stipulation, did not contemplate com- there to Eureka and up there at the tunnel - Q. pliance where such compliance was impossible. Were there any jars and jerks of unusual force

[Ed. Note.-For other cases, see Carriers, and character? A. Yes, sir. Q. What hapCent. Dig. SS 674-696, 927, 928, 933-949; Dec. pened at the tunnel ? A. Well, they stuck in Dig. Om 218.]

there; I don't know; jerked around there try3. CARRIERS 218_CARRIAGE OF LIVE Stock ing to get out of there, and stayed right there -STIPULATION REGARDING NOTICE OF IN- quite a little bit. Q. Anything hannen to the

train and engine in the tunnel ? A. There was JURY.

Such stipulation between common carrier something; I don't know; they jerked someand shipper of live stock, setting a time within thing out; I believe they called it a drawbar. which the shipper must give notice of injury to Q. There was a jerk there? A. Yes; they cut the stock as a condition to recovery, will not be out some cars there. Q. Cut out some čars? A.

Yes. enforced as unreasonable.

Q. The jolts and jerks were unusually

heavy? A. Yes, sir. Q. Just state what was [Ed. Note.-For other cases, see Carriers, done? Cent. Dig. $$ 674-696, 927, 928, 933-949; Dec. and then come on a little piece further, over to

A. They jerked there a right smart, Dig. Om 218.]

Freeman, I believe they said it was, and they 4. CARRIERS 218-CARRIAGE OF LIVE STOCK claimed the 18 hours was up. Q. Now, just go

-STIPULATION AS TO NOTICE OF INJURY-EF- on and tell what was done. A. Well, they stopFECT.

ped there; just stopped there, and went to bed Where a railroad carrying a jack stipulated when we got there. Q. That is the hands went with the shipper that notice of injuries in transit to bed? A. The crew went on to bed and just should be given one day after delivery, and such left us standing there on the side track. Q. stipulation could not be enforced because the How long did you stay there? A. I don't know ; injured condition of the jack did not become not very long; they sent after another outfit, perceptible until more than a day had elapsed, and they carried us on a little piece further. the shipper was not required by such stipulation Q. Then on the way to Bellefonte what about to give notice within a reasonable time after the jerks and jars and rough handling of it? A. learning of the condition of the animal, since They handled us pretty rough from there on." the imposition of such a requirement would be On cross-examination the witness, in anto compel the shipper to perform conditions required neither by his special contract nor the swer to questions, stated that it was not as law.

rough on the Missouri & North Arkansas as [Ed. Note.-For other cases, see Carriers, on the Missouri Pacific. He stated that he Cent. Dig. &8_674–696, 927, 928, 933-949; Dec. told the conductor that it was handled pretty Dig. Om 218.]

rough, but that the other road (the Missouri Appeal from Circuit Court, Boone County; Pacific), of course, handled it a “heap roughJohn I. Worthington, Judge.

er" than this road (meaning appellees' road). Action by Eoff & Snapp against the Mis

Appellees further set up that the plaintiffs souri Pacific Railway Company and John violated the terms of the contract under Scullin and another, as receivers of the Mis- which the jack was shipped by failing to give

The souri & North Arkansas Railroad Company. the written notice therein required. Judgment for the receivers, and plaintiffs ap- contract specified: peal. Reversed, and cause remanded for new damages for injury to live stock, the shipper

“As a condition precedent to the recovery of trial.

shall give notice in writing of his claim to some The appellants filed their complaint against general officer of the company, or the nearest the Missouri Pacific Railway Company and before the live stock is mingled with other live

station agent, or the agent at destination, and the appellees herein, as receivers of the Mis- stock, and within one day after it is delivered souri & North Arkansas Railroad Company, at destination.” setting up that they had shipped a jack over The plaintiffs admitted that they did not the lines of the Missouri Pacific Railway give the notice specified in the contract, and Company from Smithton, Mo., to Joplin, and set up as justification for not so doing that:

9

“They did not know, and it was impossible, thereafter that the jack was injured as a refor them to know, the true condition of the sult of delay and rough handling during his jack within the time that they were required to give the notice."

shipment. This court has frequently held After the testimony was adduced, the that this provision in contracts of common court, at the request of the defendants, in- carriers, where reasonable, will be enforced ; structed the jury to return a verdict in their but necessarily the parties to a contract confavor. The plaintiffs duly objected, and ex- the making of it, compliance with it where

taining this provision do not contemplate, in cepted to the rulings of the court, and from the making of it, compliance with it where

such compliance is impossible. a judgment dismissing plaintiffs' complaint, and in favor of the defendants for costs, this in St. Louis & San Francisco R. Co. v. Keller,

This court, speaking of a similar provision appeal has been duly prosecuted.

90 Ark. 308, 119 S. W. 254, said: W. B. Smith, J. Merrick Moore, and H. M. "This provision of the contract does not afTrieber, all of Little Rock, for appellants. fect the liability itself of the common carrier E. G. Mitchell, of Harrison, for appellees.

created or caused by the act itself of injury or of negligence. It is not a limitation of or an ex

emption from liability done or caused by such WOOD, J. (after stating the facts as founded upon the consideration of the original

act of injury or negligence. * * It is above). [1] 1. The appellees insist that the contract, and its validity depends upon its reajudgment was correct because there was no sonableness. If it is not inhibited by any statuevidence to show negligence on the part of tory enactment, and if it is otherwise reasonable, the appellees' road. The question of negli- there is no reason of public policy that should

declare it invalid." gence under the evidence was one for the

And further : jury, especially as to whether or not appellees' employés were negligent in the handling peculiar knowledge to inform the other who has

"Its effect is to require the one who has the of the car after the same was received on not that knowledge to seek the facts while they appellees' road. The testimony of the appel- exist, so that the facts may be obtained and lant Eoff set forth in the statement made it presented by both sides." an issue of fact for the jury to say whether It is manifest that the purpose of this proor not the appellees' employés were negligent vision is to have shipper notify carrier in the manner in which they handled the promptly and to enable the carrier to investicar that contained the appellants' jack. gate promptly when it is notified by the ship

[2, 3] 2. It is conceded by the appellants per of the injury claimed by him to have that the notice specified in the contract was been sustained by reason of the negligence in not given. The undisputed evidence on this shipment. The carrier could not have conpoint was to the effect that the jack was de- templated in such a provision that the shiplivered to the appellants at Bellefonte on per should give notice within one day when Saturday afternoon. When the jack was the shipper himself did not know that he had unloaded at Bellefonte, it appeared to be “in sustained any damage by the negligence of

, good health and in good condition; looked the carrier. To require notice under such cirlike he was all right.” Eoff, one of the ap- cumstances would be wholly unreasonable, pellants, discovered on Monday "some symp- and be exacting on the part of the shipper toms that the jack was not right.” He did

He did compliance with the provision of a contract not know at that time what was wrong with under circumstances that the parties did not him; did not know but what he was founder- have in mind when the contract was executed; "didn't know what was the matter." He ed. This court will not uphold and enforce was asked "how long afterwards until it the provisions of such a contract where it apseriously began to manifest itself” and before pears from the undisputed evidence that it he began to get uneasy, and answered, "Well, would be unreasonable to do so, as it does in

“ I believe it was Thursday." The testimony this case. See St. Louis & San Francisco R. of the veterinary surgeon showed that the Co. v. Keller, supra, and cases, there cited. jack had what he designated as "car foun- [4] But it is contended by the appellees der, "laminitis," "caused from standing too that, if the stipulation for notice within one long and from being jerked, probably.” The day is not reasonable, appellants were rewitness stated that unusual jerking or jars quired to give notice within a reasonable time would cause it.

thereafter. It does not follow that because The appellees contend that appellants had it is unreasonable under the circumstances notice of the injury to the jack on Monday, and to enforce the contract as made by the parthat, excluding Sunday, the notice could and ties that the shipper should be held to give

, should have been given on Monday, and there- the notice within a reasonable time after disfore that appellants had reasonable opportu- covering the injury. This provision is purely nity to comply with the notice requirement of one of contract, and while the court should the contract. Conceding, without deciding,

Conceding, without deciding, refuse to enforce a contract of a public carthat Sunday should be excluded, still the un-rier made with its shipper that is unreasondisputed evidence shows that the appellants able, it does not follow that the shipper did not know on Monday that the injury to should be compelled to give notice other than the jack was caused by the negligence of the that required by the contract. To do this employés of the appellees. The proof shows would be compelling the shipper to perform

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