which the corporation was created is not to be taken as prohibited, but is as much granted as that which is expressed." Thompson on Corporations, 2771. transcends its powers. We do not think it does. The purpose of the organization was to foster and promote the educational, commercial, industrial, physical, and moral development of the cities of Little Rock, Argenta, and vicinity, and if the establishment and operation of the boat line as proposed would reasonably tend to any such development, it would easily come within the implied and incidental powers of the corporation being necessary, appropriate and suitable for effecting the purpose. Ordinarily only such powers and rights can be exercised by corporations under their charters as are clearly comprehended within the words of the act, or derived therefrom by necessary implication, regard being had to the object of the grant, and the charter, read in the light of any general laws which are applicable, is the measure of its powers, and such is the case whether the corporation is created by special charter from the Leg-river can be successfully navigated by the If it be questionable whether the Arkansas 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. Cyc. says: "The implied powers of a corporation are not limited to such as are indispensably necessary to carry into effect those expressly granted, but comprise all that are necessary in the sense of being appropriate, convenient, and suitable for such purposes, including the right to a reasonable choice of means to be employed. They must result from the charter by necessary implication, regard being had to the object and purpose of the corporation;" and "if the means employed are reasonably adapted to the ends for which the corporation was created, they come within its implied or incidental powers, although they may not be specifically designated by the act of incorporation." 10 Cyc. 1097. [1] Our court has said that: "Powers that are essential to the exercise of the powers expressly granted are necessarily implied from those expressly granted, and are 'as much granted as what is expressed.'" Rachels v. Stecher Cooperage Works, 95 Ark. 6, 128 S. W. 348; Simmons National Bank v. Dilley Foundry Co., 95 Ark. 368, 130 S. W. 162. [2] It is also true and a well-settled general rule of law that the power of a corporation to make and take contracts is restricted to the purposes for which it is created, and cannot legally be exercised by it for other purposes. Simmons' National Bank v. Dilley Foundry Co., supra. [3] Of course the enumeration of the powers of a corporation in its charter implies the exclusion of all others not fairly incidental to those granted. The only question here, as said, is whether the proposed action of the Chamber of Commerce to grant a subsidy for the construction and operation of boats in the navigation of the Arkansas river in carrying passengers and freight for hire between Little Rock, Ark., and Memphis, Tenn., is a matter left for decision to the industrial and development committee of the Chamber of Commerce and the organization itself, and of its decision appellants cannot complain, unless the success of it is so improbable as to show an arbitrary exercise of the power and waste of the fund. It is a well-recognized fact that accessibility to market and facilities for transportation, at a low and reasonable freight rate, tend greatly to the development and promotion of the local welfare in industrial and commercial ways. This is not disputed by appellants, who object chiefly because they think the proposed project is impracticable and will result in failure and loss, forecasting the future from the experience of the past. That, however, was a matter to be settled by the Chamber of Commerce or its appropriate committee, and has been against appellants' contention. We think the right of the appellee to use the funds donated to it to be expended for the promotion of the public welfare of the cities of Little Rock, Argenta, their vicinity, and the state, in physical, moral, educational, commercial, and industrial ways, includes the power to use it as proposed in the establishment of a boat line for the navigation of the river, under the circumstances. We do not think it necessary to decide whether a corporation may become a member of a partnership, since this record discloses that there was no attempt or agreement on its part to do so, it being expressly agreed that the corporation does not share in the profit or loss of the enterprise of the navigation of the river. The decree is affirmed. FOLLOWING LANGUAGE OF STATUTE. Under Kirby's Dig. § 1732, providing that "every person who shall exhibit any gaming table [naming certain tables], although not herein named, be the name or denomination what it may, adapted * for the purpose of playing any game of chance, or at which any money * * or property may be won or lost, shall be deemed guilty of a misdemeanor," it is sufficient to describe the offense created by statute in the words of the statute; and an indictment charging that the defendant "did keep and exhibit a certain gambling device adapted, devised, and designed for the purpose of playing a game of chance, in which money may be won and lost, commonly called a pool table," is sufficient to charge a public offense, and it is immaterial under the statute what the name of the device may be. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 289-294; Dec. Dig. 110.] Appeal from Circuit Court, Boone County; John I. Worthington, Judge. W. J. Riley was convicted of the crime of exhibiting a gambling device, and he appeals. Affirmed. Troy Pace and T. D. Crawford, both of Little Rock, for appellant. Wallace Davis, Atty. Gen., and John P. Streepey, Asst. Atty. Gen., for the State. filed a motion in arrest of judgment, which was overruled. Thereupon appellant was granted "15 days within which to prepare and file his bill of exceptions." The bill of exceptions was not filed within the time given by the court. See Stinson v. Shafer, 58 Ark. 110, 23 S. W. 651; Routh v. Tharpe, 103 Ark. 46, 145 S. W. 888, and cases cited; Peebles v. Columbia Woodmen, 111 Ark, 435, 164 S. W. 296. Therefore we cannot consider the alleged errors relating to the admission of testimony and the giving of instructions, as these can only be presented by a bill of exceptions. McLaughlin v. State, 174 S. W. 234. [2] Appellant's motion in arrest of judg ment challenges the sufficiency of the indictment. Section 1732 of Kirby's Digest pro vides: It is generally sufficient to describe an offense created by statute in the words of the statute. Portis v. State, 27 Ark. 360; State v. Hooker, 72 Ark. 382, 81 S. W. 231. The indictment charged that the appellant"did keep and exhibit a certain gambling device, adapted, devised, and designed for the purpose of playing a game of chance, in which money may be won and lost, commonly called a pool table." This is sufficient, under our statute and the latest decisions of this court on the subject, to charge a public offense. State v. Sanders, 86 Ark. 353, 111 S. W. 454, 19 L. R. A. (N. 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 grand jury of Boone county, in the name and by the authority of the state of Arkansas, accuse J. Riley of the crime of exhibiting a gambling device, committed as follows, to wit: The said J. Riley, in the county and state aforesaid, on the 10th day of September, A. D. 1914, being then and there the occupant of a certain house, in the city of Harrison, in said county and state, did then and there unlawfully and knowingly set up, keep, and exhibit a certain gambling device adapted, devised, and designed for the purpose of playing a game of chance, and in which money may be won or lost, which said gambling device was commonly called a pool table, against the peace and dignity of the state of Arkansas." the statute, as to what the name or denomination of the device may be. The statute was leveled at devices "adapted, devised and designed for the purpose of playing a game of chance at which any money or property may be won or lost," no matter what the name of such device may be. The indictment under review expressly charges that appellant exhibited such a device. As before stated, we cannot enter upon the question as to whether the evidence was sufficient to sustain the charge. The only question for decision is whether the indictment itself is couched in language setting forth facts which, if proved, would constitute a public offense. According to the cases supra, the indictment charges a public offense. [1] Appellant urges for reversal alleged error of the court in admitting certain evidence and in giving certain instructions. The record shows that on the 5th of August, 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 COUNTS v. STATE. (No. 197.) (Supreme Court of Arkansas. Oct. 25, 1915.) 1. CRIMINAL LAW 424-EVIDENCE-DEC LARATION OF CONSPIRATORS AFTER CONSUM MATION OF CONSPIRACY. been together that night, nor did they deny that Shuffield had ridden the horse which A was found running loose. Their explanation of this fact, however, was that on the night of the fire Walter Shuffield rode to Walter 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. 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 conspiracy with defendant had been consummated, 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 done and the criminal enterprise of the con- the objection and exception of appellant, if spirators is ended, the acts or declarations of one conspirator are thereafter inadmissible his brother Hardy Shuffield had not been against his co-conspirator. charged with having killed and burned a woman, and the witness answered that his brother had been so accused. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 1002-1010; Dec. Dig. 424.] 2. CRIMINAL LAW 1163-WITNESSES 278-CROSS-EXAMINATION-PREJUDICIAL ER ROR. On a trial for arson, it was error, and presumptively prejudicial, to permit one jointly indicted with defendant to be asked, on cross-examination, whether his brother had not been charged with killing and burning a woman; the brother not being a witness nor charged with the crime on trial. [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 3090-3099; Dec. Dig. 1163; Witnesses, Cent. Dig. §§ 985, 986; Dec. Dig. 278.] Appeal from Circuit Court, Hot Spring County; W. H. Evans, Judge. Walter Counts was convicted of arson, and he appeals. Reversed and remanded. H. B. Means, of Malvern, for appellant. Wallace Davis, Atty. Gen., Jno. P. Streepey, Asst. Atty. Gen., and D. D. Glover, of Malvern, for the State. [1] We think it unnecessary to set out the evidence in this case, but announce our conclusion that it was legally sufficient to sustain the verdict, and the testimony in regard to the tracks of appellant and his companion and their horses constituted a very material part of this evidence. In this connection it may be said that the testimony of the witness Caver related to a statement of Walter Shuffield, made after the consummation of the conspiracy between Shuffield and appellant, and its damaging effect is, of tablished that when a deed is done and the course, apparent. It is thoroughly well escriminal enterprise of the conspirators is ended, the acts or declarations of one con spirator are thereafter inadmissible against SMITH, J. Appellant was jointly indicted with one Walter Shuffield for the crime of arson, alleged to have been committed by burning a barn, the property of one W. T. Shuffield. The state depended upon circumstantial evidence for a conviction, and appellant questions the sufficiency of this evidence 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 a woman. 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 the barn, where two horses had been recently hitched for a sufficient length of time for them to tramp and beat down the ground where they had been standing. Appellant and Shuffield did not deny that they had cause remanded for a new trial. show that a brother had been accused of an even more serious crime than the witness Walter Shuffield himself was charged with. For the errors indicated, the judgment of the court below will be reversed, and the EOFF & SNAPP v. SCULLIN et al. (No. 186.) (Supreme Court of Arkansas. Oct. 25, 1915.) 1. CARRIERS 230-CARRIAGE OF LIVE STOCK -NEGLIGENCE-QUESTION FOR JURY. In an action against a railroad and receivers of another road for injuries to a jack in transit, whether the receivers' employés were negligent in handling the car containing the jack after it reached their road held for the jury, under the evidence. from Joplin over the Missouri & North Arkansas Railroad to Bellefonte, Ark. They charge negligence in delaying the shipment and in moving the cars, by which numerous unnecessary jolts and jars occurred, thereby injuring the jack of appellants, to their damage in the sum of $3,500, for which they prayed judgment. The service on the Missouri Pacific Rail way Company was quashed, and the suit 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. 230.] They deny that there was any negligent de2. CARRIERS 218-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 of a jack that he should notify the road of any injury to the animal in transit one day after delivery at destination, and the jack was delivered in an injured condition, but the injury did not become perceptible until more than a day had elapsed, the shipper was excused from giving the stipulated notice, since the parties, in making the stipulation, did not contemplate compliance where such compliance was impossible. [Ed. Note.-For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. 218.] 3. CARRIERS 218-CARRIAGE OF LIVE STOCK STIPULATION REGARDING NOTICE OF IN JURY. Such stipulation between common carrier and shipper of live stock, setting a time within which the shipper must give notice of injury to the stock as a condition to recovery, will not be enforced as unreasonable. [Ed. Note. For other cases, see Carriers, Cent. Dig. §§ 674-696, 927, 928, 933-949; Dec. Dig. 218.] 4. CARRIERS 218-CARRIAGE OF LIVE STOCK -STIPULATION AS TO NOTICE OF INJURY-EF FECT. Where a railroad carrying a jack stipulated with the shipper that notice of injuries in transit should be given one day after delivery, and such stipulation could not be enforced because the injured condition of the jack did not become perceptible until more than a day had elapsed, the shipper was not required by such stipulation to give notice within a reasonable time after learning of the condition of the animal, since the imposition of such a requirement would be to compel the shipper to perform conditions required neither by his special contract nor the law. The testimony of the plaintiff Eoff on this point is as follows: "Q. I will ask you to state, Flem, what the handling was so far as the train was concerned with reference to the jars and jerks and jolts or its smooth operation after you left Joplin to come to Bellefonte. A. Well, we did pretty well until we got to Seligman, and then from there to Eureka and up there at the tunnel- Q. Were there any jars and jerks of unusual force and character? A. Yes, sir. Q. What happened at the tunnel? A. Well, they stuck in there; I don't know; jerked around there trying to get out of there, and stayed right there train and engine in the tunnel? A. There was quite a little bit. Q. Anything hapen to the something; I don't know; they jerked something out; I believe they called it a drawbar. Q. There was a jerk there? A. Yes; they cut out some cars there. Q. Cut out some cars? A. Yes. Q. The jolts and jerks were unusually heavy? A. Yes, sir. Q. Just state what was done? A. They jerked there a right smart, and then come on a little piece further, over to Freeman, I believe they said it was, and they claimed the 18 hours was up. Q. Now, just go on and tell what was done. A. Well, they stopped there; just stopped there, and went to bed when we got there. Q. That is the hands went to bed? A. The crew went on to bed and just left us standing there on the side track. Q. How long did you stay there? A. I don't know; not very long; they sent after another outfit, and they carried us on a little piece further. Q. Then on the way to Bellefonte what about the jerks and jars and rough handling of it? A. They handled us pretty rough from there on." On cross-examination the witness, in answer to questions, stated that it was not as rough on the Missouri & North Arkansas as on the Missouri Pacific. He stated that he told the conductor that it was handled pretty 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. [Ed. Note. For other cases, see Carriers, Cent. Dig. $$ 674-696, 927, 928, 933-949; Dec. Dig.218.] · er" than this road (meaning appellees' road). Appellees further set up that the plaintiffs violated the terms of the contract under which the jack was shipped by failing to give the written notice therein required. contract specified: The damages for injury to live stock, the shipper "As a condition precedent to the recovery of shall give notice in writing of his claim to some general officer of the company, or the nearest before the live stock is mingled with other live station agent, or the agent at destination, and stock, and within one day after it is delivered at destination." The appellants filed their complaint against the Missouri Pacific Railway Company and the appellees herein, as receivers of the Missouri & North Arkansas Railroad Company, 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: "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 that this provision in contracts of common After the testimony was adduced, the court, at the request of the defendants, incourt, at the request of the defendants, instructed the jury to return a verdict in their favor. The plaintiffs duly objected, and excepted to the rulings of the court, and from a judgment dismissing plaintiffs' complaint, and in favor of the defendants for costs, this appeal has been duly prosecuted. W. B. Smith, J. Merrick Moore, and H. M. Trieber, all of Little Rock, for appellants. E. G. Mitchell, of Harrison, for appellees. WOOD, J. (after stating the facts as above). [1] 1. The appellees insist that the judgment was correct because there was no evidence to show negligence on the part of the appellees' road. The question of negliThe question of negligence under the evidence was one for the jury, especially as to whether or not appellees' employés were negligent in the handling of the car after the same was received on appellees' road. The testimony of the appellant Eoff set forth in the statement made it an issue of fact for the jury to say whether or not the appellees' employés were negligent in the manner in which they handled the car that contained the appellants' jack. [2, 3] 2. It is conceded by the appellants that the notice specified in the contract was not given. The undisputed evidence on this point was to the effect that the jack was delivered to the appellants at Bellefonte on Saturday afternoon. When the jack was unloaded at Bellefonte, it appeared to be "in good health and in good condition; looked like he was all right." Eoff, one of the appellants, discovered on Monday "some symptoms that the jack was not right." He did not know at that time what was wrong with him; did not know but what he was foundered; "didn't know what was the matter." He was asked "how long afterwards until it seriously began to manifest itself" and before he began to get uneasy, and answered, "Well, I believe it was Thursday." The testimony of the veterinary surgeon showed that the jack had what he designated as "car founder, "laminitis," "caused from standing too long and from being jerked, probably." The witness stated that unusual jerking or jars would cause it. The appellees contend that appellants had notice of the injury to the jack on Monday, and that, excluding Sunday, the notice could and should have been given on Monday, and therefore that appellants had reasonable opportunity to comply with the notice requirement of the contract. Conceding, without deciding, that Sunday should be excluded, still the undisputed evidence shows that the appellants did not know on Monday that the injury to the jack was caused by the negligence of the employés of the appellees. The proof shows carriers, where reasonable, will be enforced; but necessarily the parties to a contract containing this provision do not contemplate, in the making of it, compliance with it where such compliance is impossible. in St. Louis & San Francisco R. Co. v. Keller, This court, speaking of a similar provision 90 Ark. 308, 119 S. W. 254, said: "This provision of the contract does not af fect the liability itself of the common carrier created or caused by the act itself of injury or of negligence. It is not a limitation of or an exemption from liability done or caused by such founded upon the consideration of the original act of injury or negligence. *** It is contract, and its validity depends upon its reasonableness. If it is not inhibited by any statutory enactment, and if it is otherwise reasonable, declare it invalid." there is no reason of public policy that should And further: peculiar knowledge to inform the other who has "Its effect is to require the one who has the not that knowledge to seek the facts while they exist, so that the facts may be obtained and presented by both sides." It is manifest that the purpose of this provision is to have shipper notify carrier promptly and to enable the carrier to investigate promptly when it is notified by the shipper of the injury claimed by him to have been sustained by reason of the negligence in shipment. The carrier could not have contemplated in such a provision that the shipper should give notice within one day when the shipper himself did not know that he had sustained any damage by the negligence of the carrier. To require notice under such circumstances would be wholly unreasonable, and be exacting on the part of the shipper compliance with the provision of a contract under circumstances that the parties did not have in mind when the contract was executed. This court will not uphold and enforce the provisions of such a contract where it appears from the undisputed evidence that it would be unreasonable to do so, as it does in this case. See St. Louis & San Francisco R. Co. v. Keller, supra, and cases there cited. [4] But it is contended by the appellees that, if the stipulation for notice within one day is not reasonable, appellants were required to give notice within a reasonable time thereafter. It does not follow that because it is unreasonable under the circumstances to enforce the contract as made by the parties that the shipper should be held to give the notice within a reasonable time after discovering the injury. This provision is purely one of contract, and while the court should refuse to enforce a contract of a public carrier made with its shipper that is unreasonable, it does not follow that the shipper should be compelled to give notice other than that required by the contract. To do this would be compelling the shipper to perform |