"The judicial power of the state shall be vest- Another section provides for transferring ed in one Supreme Court; in circuit courts; in to the municipal courts all misdemeanor cascounty and probate courts, and in justices of the peace. The General Assembly may also invest es pending before justices of the township at such jurisdiction as may be deemed necessary in the time of the approval of the act. The municipal corporation courts, courts of common right to collect fees already earned by juspleas, where established, and, when deemed ex- tices of the peace in pending misdemeanor pedient, may establish separate courts of chancery." Article 7, § 1.

cases is preserved. "Corporation courts for towns and cities may [1] Section 40, art. 7, of the Constitution, be invested with jurisdiction concurrent with after defining the civil jurisdiction of jusjustices of the peace in civil and criminal mat- tices of the peace, contains a subdivision ters, and the General Assembly may invest such of them as it may deem expedient with juris- which reads as follows: “Such jurisdiction of diction of any criminal offenses not punishable misdemeanors as is now, or may be preby death or imprisonment in the penitentiary, scribed by law.” At the time of the adopwith or without indictment, as may be provided by law, and, until the general assembly shall tion of the Constitution of 1874 justices of otherwise provide, they shall have the jurisdic- the peace were clothed with jurisdiction in tion now provided by law.” Article 7, § 43. misdemeanor cases concurrent with the cir

The first contention is that the statute is cuit court. The argument now made before void because it attempts to abolish the ju- us is that, under a fair construction of the risdiction of justices of the peace as to mis- language of the Constitution, the Legislature demeanor cases in the township in which it may restrict or diminish the jurisdiction of applies. The section of the act which de justices of the peace in misdemeanor cases, fines the jurisdiction of municipal courts but cannot take away entirely all such jureads as follows:

risdiction. The language is too broad, we “Sec. 10. The municipal courts shall have orig- think, to justify that construction. If that inal jurisdiction coextensive with the county. had been intended by the framers of the The jurisdiction shall be exclusive of the jus: Constitution, they would have employed a tices of the peace and of the circuit court over the violation of all ordinances passed by the different phrase. It does not declare any City Council ; exclusive of the justices of the continuing jurisdiction in misdemeanors, but peace in townships subject to this act, and con- only such jurisdiction as was then prescribed current with the circuit court over all misdemeanors committed in violation of the laws of by law or might thereafter be prescribed by the state within the limits of the county; con- law. Now, the Constitution in this particucurrent with the justices of the peace and ex: lar, as well as in all others, is not a grant clusive of the circuit court in all matters of of powers to the lawmakers, but a limitacontract where the amount in controversy does not exceed the sum of one hundred dollars tion of powers, and when it was said that ($100.00), excluding interest; concurrent with justices of the peace shall have such jurisjustices of the peace and with the circuit court diction as "may be prescribed by law,” it in matters of contract where the amount in controversy does not exceed the sum of three hun was obviously meant that the will of the dred dollars ($300.00), exclusive of interest; lawmakers should be supreme in determinin suits for recovery of personal property where ing how much jurisdiction, if any, should be

*** amount in controversy does not conferred upon justices of the peace, subexceed the sum of one hundred dollars ($100.00). Municipal courts shall also have jurisdic-ject to the jurisdiction vested in the circuit tion to sit as examining courts and commit, courts by another section of the Constitudischarge or recognize offenders to the court tion. having jurisdiction for further trial, and to bind persons to keep the peace or for good beha

The only approach to a construction by

this court of the constitutional provision Section 19 defines the civil jurisdiction of now under consideration is found in the opinjustices of the peace in townships subject to ion in the case of State v. Devers, 34 Ark. the act the same as is provided by the Con- 188, where it was said: stitution, and concludes with the following force when the Constitution was adopted jus

“We have above shown that by the law in as to jurisdiction in other matters :

tices of the peace had jurisdiction of all mis“Justices of the peace in townships subject to demeanors, and they will continue to have such this act shall also have jurisdiction to sit as jurisdiction until otherwise prescribed by law. examining courts and commit, discharge or rec-*

* * * The framers of the Constitution of ognize offenders to the court having jurisdic- 1874 simply said, in effect, by the third clause tion for further trial, and to bind persons to of section 40, above copied, that they might keep the peace or for good behavior, and for the continue to exercise such jurisdiction until othpurposes set out in this section they shall have erwise prescribed by law, but there is nothing power to issue all necessary process.”

in this clause, or in the section of which it is a Section 20 fixes the compensation of jus- part, or in any section of the article on the jutices of the peace in those townships at a implied that the framers of the Constitution in

dicial department, from which it may be fairly salary of $25 per annum, and in addition tended to leave the Legislature at liberty to thereto the compensation now prescribed by deprive the circuit courts of all jurisdiction of

misdemeanors." statute for sitting as members of the county levying court, and also "such fees as are The language there used certainly bears allowed to justices of the peace by the gen- out the interpretation we now place on the eral laws for solemnizing marriages, taking provision that the Legislature has the power and certifying acknowledgments,

to abolish the jurisdiction of justices of the attending to the duties of coroner, and for peace in misdemeanor cases.

the *

vior."

*

*

as the Constitution only authorizes the Leg-, should be found that there is an attempt to islature to confer upon such corporation thus extend the jurisdiction, that would not courts "jurisdiction concurrent with justices impair the validity of the remainder of the of the peace,” it is necessarily implied that act. In other words, if we should decide that the criminal jurisdiction of justices of the there is an attempt in the statute to thus peace cannot be entirely abolished, and at extend the jurisdiction, and that it is inthe same time the jurisdiction of the corpo- valid to that extent, that part of it could be ration courts in those matters put in force. stricken out and the remainder upheld, for The argument is, in other words, that be there is no reason to doubt that the Legiscause of this peculiar language of the Con- lature would have enacted the statute with stitution only jurisdiction concurrent with that part omitted. Oliver v. C., R. I. & P. justices of the peace can be conferred upon Ry. Co., 89 Ark. 466, 117 S. W. 238. corporation courts, and that the attempt to [5] No limitation is found in the Constituabolish the jurisdiction of justices of the tion upon the power of the Legislature to peace, if effectual, destroys the power to vest jurisdiction in municipal courts, when confer jurisdiction which, it is contended, established, beyond the geographical limits cannot under the Constitution be exercised of the municipalities. Nor can it be said otherwise than concurrently with justices that there exists any policy or sound reaof the peace. We do not think, however, that son for restricting the jurisdiction to such the language just referred to meant to con- geographical limits. The authorities cited fine the jurisdiction of municipal courts to on the briefs of counsel do not sustain the such jurisdiction as might always be exer- contention that there is such an inherent cised by justices of the peace, but it was limitation upon the power of municipal meant as authority for the Legislature to courts. Unless the organic law forbids, the confer such jurisdiction upon municipal Legislature may extend the jurisdiction becourts as might, under the Constitution, beyond the territorial limits of the municipaliconferred upon justices of the peace. The ties. The authority found in the Constitujurisdiction to be vested in municipal courts tion is to vest jurisdiction in municipal courts is, in other words, not necessarily to be exer- concurrent with the jurisdiction of justices cised concurrently with justices of the peace, of the peace in criminal and civil matters; but coextensive with the jurisdiction which that is to say, concurrent with the juriscould, under the Constitution, be vested in diction which it is within the power of the justices of the peace.

Legislature to confer upon justices of the [3] In reply to the contention that the peace. The Constitution does not by its statute is unconstitutional in its attempt to express terms restrict the jurisdiction of give jurisdiction to municipal courts to sit justices of the peace to the territorial limits as examining courts, it is sufficient to say of the township in which they are elected that the language of the Constitution is very to serve; therefore the jurisdiction of mubroad in stating that such courts “may be nicipal courts finds no such restriction in invested with jurisdiction concurrent with the Constitution. At the time of the adopjustices of the peace in civil and criminal tion of the Constitution of 1874 corporation matters." The Constitution does not, as courts in cities of the first class exercised the counsel for petitioner contend, vest exclusive same jurisdiction under statutes then in jurisdiction in justices of the peace to sit in force as did justices of the peace (Gantt's examining trials. It expressly confers "orig- Digest, § 3283), which thus extended the inal,” but not exclusive, jurisdiction, and in criminal jurisdiction to the territorial limparceling out jurisdiction in such cases the its of the county, the same as that exercised Legislature has the power to vest concurrent by justices of the peace. jurisdiction in municipal courts. The act un- [6, 7] This court is thoroughly committed der consideration does not attempt to abolish to the rule that the provision of the Constithe jurisdiction of justices of the peace in tution requiring notice of a special bill is a those matters. This court decided in Harris mere direction to the Legislature itself, and v. State, 60 Ark. 209, 29 S. W. 640, that a it is therefore unnecessary to devote any corporation court had jurisdiction as an ex- time to the discussion of the point raised in amining court within the city limits.

this case that this act is void because it is [4] The next contention is that the statute a special one, and that no notice was given. is unconstitutional because it extends the Moreover, the act establishing these mujurisdiction of the municipal courts beyond nicipal courts is not a special one within the the geographical boundaries of the munici- meaning of the Constitution. Waterman v. palities. The act undoubtedly attempts to Hawkins, 75 Ark. 120, 86 S. W. 844. confer jurisdiction of such courts coextensive [8] The argument that the act is void bewith the county in criminal matters, and in cause it attempts to impair the vested rights civil matters coextensive with the township of justices of the peace in the fees and emolin which the city is situated. Whether or uments of the office is unsound; for the reanot the jurisdiction in civil matters is co son that such officers have no such vested extensive with the limits of the county, it is rights, and the matter is subject to regulaunimportant to decide, in determining the tion at any time by the Legislature. Hum

The last contention of counsel for peti- At the time of the execution of the contioner (the sixth) is disposed of by what has tract Hanley paid the purchase price of the been already said concerning the other points property, which was $6,500. On the 5th day of attack.

of September, 1913, while Waters was still Upon the whole we are unable to discover in possession of the property, and before a any conflict in this statute with the Consti- deed to the same had been executed by him tution of the state; that is to say, a con- to Hanley, the house and improvements on flict in a matter which would invalidate the the lots were burned without fault of either whole act, and which would vitiate the title party. Hanley instituted this action in the of respondents to the offices created by the circuit court against Waters to recover $6,statute.

500, the purchase price, on the ground that The judgment of the circuit court is there- the destruction of the improvements operatfore affirmed.

ed as a rescission of the contract. Waters

answered, and admitted that he was residKIRBY, J., dissents.

ing on the property at the time the house and other improvements were burned, and

stated that at the date of the execution of WATERS v. HANLEY. (No. 190.) the contract he was a married man, and at (Supreme Court of Arkansas. Oct. 25, 1915.) homestead, and was still occupying it as such

that time occupying the property as his 1. HOMESTEAD Om 118 - SALE - EXECUTORY at the time of the fire; that on the 5th day CONTRACTS-VESTING OF TITLE. Where defendant, a married man, signed an

of September, 1913, all of the buildings on executory contract for the sale of his homestead, said lot were destroyed by fire without the receiving the purchase price, but continuing to fault of either party; that subsequent to the occupy the premises for a time, during which fire, and before the 20th day of September, they were destroyed by fire, he cannot, by deed of himself and wife made subsequent to the fire, 1913, he executed a warranty deed to Hanthrust the loss upon the vendee under the con- ley to said property; and that his wife jointract, since the contract was wholly executory, ed in the execution of said deed. and, being of the homestead, was not binding

On motion of Waters the cause was transupon his wife, and therefore not binding upon the vendee.

ferred to the chancery court, and was tried [Ed. Note.--For other cases, see Homestead, there by the chancellor on an agreed stateCent. Dig. $$ 192, 195, 203-209, 216, 217; Dec. ment of facts substantially as stated above, Dig. Omm118.]

and therefore not necessary to be repeated 2. HOMESTEAD Own118 RIGHTS OF WIFE SALE.

here. The chancellor found the issues in faUnder Kirby's Dig. § 3901, providing that vor of the plaintiff, Hanley, and the defendno instrument affecting the homestead of any ant, Waters, has appealed. married man, unless his wife joins in the ex

[1] Counsel for the defendant argue for a ecution, shall be valid, a deed purporting to convey a homestead of a married man is void where reversal of the decree upon the ground that, the wife fails to join; nor can he without her where a contract is made for the future consignature make a contract to convey the home- veyance of land and the buildings situated stead which will be binding on her.

[Ed. Note.--For other cases, see Homestead, thereon, with no provision as to the conCent. Dig. 88 192, 195, 203-209, 216, 217; tingency of the buildings being destroyed by Dec. Dig. Om 118.]

fire before the time appointed for the convey

ance, the loss by such fire falls wholly upon Appeal from Garland Chancery Court; the vendee. On the other hand, it is contendJethro P. Henderson, Chancellor.

ed by counsel for plaintiff that in such case Action by Thos. L. Hanley against W. W. the loss falls upon the vendor. Many auWaters. From a judgment for plaintiff, de-thorities are cited by them in support of fendant appeals. Affirmed.

their respective contentions. It must be adA. J. Murphy, of Hot Springs, and Moore, mitted that the authorities are in irreconcilaSmith & Moore, of Little Rock, for appellant. ble conflict on this question, but, under the T. P. Farmer and C. Floyd Huff, both of facts in this case, we do not deem it' necesHot Springs, for appellee.

sary to spend any time upon the numerous decisions in England and in this country

upon the question. HART, J. W. W. Waters and Thomas L.

The facts are undisputed, and show that Hanley entered into an executory contract for the property in question was the homestead the sale of certain property, as follows:

of Waters, and that his wife was living at “Hot Springs, Ark., August 21, 1913. the time of the execution of the contract, “I have this day sold to Mr. Thomas Hanley, and that Waters resided upon the property at my residence and lot, with all buildings thereon, on Garden street, in the city of Hot Springs, the time the contract was made and at the Ark., for the sum of six thousand five hundred time the fire occurred. dollars, cash in hand, to give possession on Those cases which hold, as well as the September 15, 1913; all time after said date I text-writers who adopt the rule, that where am using said premises to pay $40 per month for same; all papers to be made by the 20th buildings are destroyed by fire occurring beof September, 1913.

W. W. Waters." tween the date of the contract and the con

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

veyance, the loss falls upon the vendee, do so in the application of the maxim that eq- LAWSON V. STATE. (No. 134.) uity regards that as done which ought to be (Supreme Court of Arkansas. Sept. 27, 1915.) done. Therefore, they say, in following this 1. CRIMINAL LAW Cm 36 - EVIDENCE - PROSrule of equity, as soon as the contract is ECUTING WITNESS. tinally concluded, even though it is wholly defendant cannot recover for alleged acts of the

The rule that one in pari delicto with the executory in form, there results by its con- defendant does not apply to criminal actions, veyance an equitable conversion of the land since they are for the protection of the public, and the purchase money, and the purchaser and hence the fact that the prosecuting witness then becomes the equitable owner of the was also a party to the crime will not prevent

conviction of the defendant. land; and, this being so, they say, the con

[Ed. Note.-For other cases, see Criminal clusion can hardly be escaped that the loss Law, Dec. Dig. Om 36.] must fall on the vendee. Pomeroy's Equity 2. FALSE PRETENSES O7_OBTAINING MONJurisprudence, vol. 6, § 859; Id., vol. 4, § EY BY FALSE PRETENSES–NATURE OF PRE1406; Id., vol. 1, $$ 368-372. See, also, Sew

TENSE.

To make out the offense of obtaining money ell v. Underhill, 197 N. Y. 168, 90 N. E. 430, by false pretenses, the pretense must be of a 27 L. R. A. (N. S.) 233, 134 Am. St. Rep. 863, past event or of a present fact, and not of fu18 Ann. Cas. 795, and Hawkes v. Kehoe et ture promise. al., 193 Mass. 419, 79 N. E. 766, 10 L. R. A. [Ed. Note.-For other cases, see False Pre(N. S.) 125, 9 Ann. Cas. 1053.

tenses, Cent. Dig. 88 5–12, 25; Dec. Dig. Om7.] [2] Section 3901 of Kirby's Digest pro

3. FALSE PRETENSES Om7-ELEMENTS OF OF

FENSE. vides:

Where defendant falsely represented him“No conveyance, mortgage or other instru- self to be a revenue officer, that it was his power ment affecting the homestead of any married and duty to arrest a witness, but that he would man shall be of any validity except for taxes, end the matter on payment to him of $300, laborers' and mechanics' liens, and the purchase which was given him, he was guilty of obtaining money, unless his wife joins in the execution money by false pretenses; the pretense being of of such instrument and acknowledges the same. present facts as to defendant's official power

and duty. Under this statute we have always held

[Ed. Note.-For other cases, see False Prethat a deed purporting to convey the home-tenses, Cent. Dig. ss 5-12, 25 ; Dec. Dig. On 7.] stead of a married man is a nullity if his 4. FALSE PRETENSES 38-OBTAINING MONwife fails to join in the execution of the EY BY FALSE PRETENSES-INDICTMENT AND deed. Pipkin v. Williams, 57 Ark. 242, 21 S.

INFORMATION. W. 433, 38 Am. St. Rep. 241; Stephens v. represented that he had the power to withhold

An indictment charging that defendant Stephens, 108 Ark. 53, 156 S. W. 837.

information against the prosecuting witness It is clear that, if the husband cannot from the federal authorities, and that he would make a conveyance of the homestead with so withhold the information on payment of $300,

is at fatal variance with evidence showing that out the concurrence of his wife, he cannot the defendant represented himself to be a make a contract to convey the homestead revenue officer and would end the matter on the which will be obligatory upon his wife. If payment of $300, so that a conviction on such he could make a contract to convey the home indictment and evidence cannot be sustained. stead which would be obligatory upon his , tenses, Cent. Dig. $$ 50–53; Dec. Dig. Omw38.]

[Ed. Note.-For other cases, see False Prewife, the statute could be easily evaded, and would be of no force. Yost v. Devault, 9

Appeal from Circuit Court, Clay County; Iowa, 60. See, also, Lott v. Lott, 146 Mich. J. F. Gautney, Judge. 580, 109 N. W. 1126, 8 L. R. A. (N. S.) 748,

J. E. Lawson was convicted of obtaining where it was held that a quitclaim deed by money by false pretenses, and he appeals. a married woman of her interest in the Reversed and remanded. homestead in connection with her husband's R. H. Dudley, of Piggott, for appellant. contract to convey could not be held to con- Wm. L. Moose, Atty. Gen., and P. Streepey, stitute a land contract enforceable in equity. Asst. Atty. Gen., for the State. Under the facts of this case, the husband did not have the ability to carry out the con- HART, J. J. E. Lawson was indicted, tract made by himself for the conveyance of tried, and convicted of the crime of obtaining his homestead, and the equitable title never money by false pretenses. From the judgvested in his vendee. It does not help the ment of conviction, he has duly prosecuted ('ase any that the wife after the fire joined an appeal to this court. In order to deterwith the husband in the execution of a deed. mine the issues raised by the appeal, it is This was her voluntary act, and was not only necessary to abstract the testimony done in compliance with the requirements of given by the prosecuting witness. His testhe contract. The contract of the vendor timony tends to prove a state of facts subcould not have been specifically enforced in stantially as follows: The prosecuting witequity, and the vendee never held the equita- ness, A. C. Deakin, the defendant, J. E. Lawble title.

son, and Ed Lucas were all residents of Consequently the rule contended for by Greene county, Ark., and were friends and counsel for the defendant does not obtain, neighbors. Mr. Lucas showed Deakin a bill, and the decree will be affirmed.

and said that it had been made on stolen government plates. Deakin told him that it, the prosecuting witness by the alleged prewas bogus, and Lucas replied that it was as tenses, if false, unless the prosecuting witgood as any money. Lucas asked Deakin if ness gave it in settlement of a felony, and he had received a letter from a man named the prosecuting witness himself being thus Bacon, and Deakin replied that he had not. guilty of a crime, the law would not listen Later he received a letter from Paul Bacon to his complaint. This doctrine was applied at Memphis, Tenn. The letter stated that in McCord v. People, 46 N. Y. 470, where the the writer had some money that had been accused falsely pretended to be an officer made from a stolen government die which with a warrant to arrest the prosecuting could not be told from good money; that witness, and thereby induced the witness to they would send out some of this money for a deliver to him certain property. The court certain per cent. A second letter was re

A second letter was re- held that the prosecutor parted with his ceived by Deakin which contained a sample property as an inducement to a supposed bill. Deakin answered the second letter, officer to violate the law and his duty, and and sent his reply to Paul Bacon at Memphis. that the indictment could not be sustained. He received further letters in regard to the The court said: matter, but they were sent by C. V. Mans- “Neither the law or public policy designs the field, and were mailed at points in the state protection of rogues in their dealings with each of Missouri. In one of these letters the writ- other, or to insure fair dealing and truthful.

ness, as between each other, in their dishonest er stated that detectives had followed his practices. The design of the law is to protect men from the post office, and had taken pos- those who, for some honest purpose, are induced, session of their mail; that he feared the de- upon false and fraudulent representations, to tectives had gotten a letter written to them sive credit or part with their property to an

other, and not to protect those who, for unby Deakin, and on that account advised worthy or illegal purposes, part with their Deakin to lay low for a few days. The writ- goods.” er also stated that the boys had gotten away The fallacy of this reasoning is shown in with the plates and had paid the detectives the dissenting opinion by Peckham, J., where to turn him loose. The letter also stated he points out that the primary object sought that the writer did not think that the de- to be accomplished in prosecutions for crime tectives would arrest his customers. Sub- is the suppression of crime, and the protecsequently the defendant came down to the tion of the public. For this reason, the gin where Deakin was working and told him principle of civil jurisprudence that, where that he was never more surprised than when the injured person is a party to the crime or he got a letter from Mr. Callahan stating unlawful enterprise, he will not be heard that Deakin had written for some counterfeit to complain, and the law will leave the parmoney. The defendant told Deakin that he ties where it finds them, has no application had violated the federal laws, and Deakin to criminal proceedings. In criminal proreplied that he had. The defendant then ceedings the state is the prosecutor, and the exhibited to Deakin the letters he had writ- proceeding is in its name. The complainant ten about the money. Defendant further is no party to the proceeding. The prosecustated to Deakin that the only thing he could tion of the accused by the state is not for do was to pay off; that it would take $100, the benefit of the complaining party, but its but that he would let him off for less. He purpose is to punish a public offense and to finally paid the defendant $300. Deakin prevent wrongdoing. stated that the defendant, Lawson, represent- It is no answer to say that the accused ed to him that he was a revenue officer, and should not be punished because the prosecutalso stated that it was his duty and power ing witness was also guilty of an offense in to arrest him for violating the criminal the same transaction. This rule was applied laws of the United States, but that the de- in the case of Perkins v. State, 67 Ind. 270, fendant was not, in fact, an officer of the 33 Am. Rep. 89, where the court held that United States; that he paid the defendant one who falsely represents himself to another $300, and that the defendant did not arrest as an officer having a warrant for the arrest him. He first stated that the defendant told of the other for forgery, and power to comhim that, if he would give him $300, that promise the offense, and threatens to arrest would settle the fine and penalty against him, and by means of such representation him for violating the federal laws, and that and threats obtains from him a valuable he paid the defendant $300 in settlement of thing as a consideration for not making the this fine and penalty. Again he stated that arrest, is guilty of the crime of false prethe defendant told him that the payment of tenses. the $300 was an end of the matter, and that In Commonwealth v. Henry, 22 Pa. 253, it he (the defendant) would protect him; that was alleged in an indictment that the dethe defendant further promised to protect fendant, with intent to defraud the prosehim and to withhold all the information ac- cutor, falsely asserted to him, and also to quired by him.

another person who communicated it to him, [1] It is insisted that the defendant can- that he had a warrant, issued by compenot be held guilty of obtaining money by tent authority, commanding the arrest of false pretenses under our statute, because the daughter of the prosecutor, for an offense