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plaintiff claimed he was entitled to costs the

inventory of the property was made by the the estate. As a general principle, this is assignee, and the value fixed at $28,000. correct. While theoretically the entire propThe assignee took possession and ran the erty embraced in the deed is the trust esbusiness, at a loss of $1,000. Afterwards he tate, practically the trust estate is nothing sold the property, subject to the mortgage, but the interest the assignor held in the for $1. The mortgagee became the purchas- property when the deed was made. This iner. The assignee claimed he should be al- terest does not include the rights which he lowed commissions upon the entire value of had previously granted to

to a mortgagee. the mortgaged property. The court held he Bridge Co. v. Douglass, 12 Bush, 673, is citshould have commissions upon the $1 re- ed by appellee to sustain its contention. We ceived by him for this property, “which was do not think the case is applicable. In that all the value thereof to the trust estate.” In case the trustees were made such in the Lithauer v. Royle, 17 N. J. Eq. 40, it appears | mortgages to secure bonds which were isthere were three mortgages.

mortgages. Suit was sued by the railroad company. They reprebrought by the holder of the third mortgage sented the debtor as well as the creditors, to enforce his lien, to which he made the and were the agents of the parties in interholders of the prior mortgages parties. They est. The court very properly held they were set up their claims. The proceeds were in- | entitled to compensation for the services of sufficient to pay the first mortgage. The themselves and counsel. The trustees in

that case occupied the position that the Fiout of the proceeds. The court held this delity Trust & Safety-Vault Company occucould not be done, because to burden the pied in this case, if it rendered any seryfund with costs would defeat the just claims ices, etc. The only case cited which at first of the first mortgagees, and lead to gross blush seems to sustain the contention of abuses in practice. In speaking on the same counsel for appellee is Loth v. Carty, 85 Ky. subject (2 Jones, Mortg. $ 1708), it is said: 597, 4 S. W. 314. In that case it appears “Of course, it may happen that a subsequent Mrs. Carty asserted a lien for rent. Loth mortgagee, after having incurred costs of & Hass claimed a lien in virtue of a mortsuit and of sale, may lose these, as well as gage on the stock of merchandise, including his demand, also,-as when the proceeds of such goods as were added to the stock after sale are only sufficient to pay the debt and the execution of the mortgage. Gallahue, a costs of the first mortgage,-but this was the creditor, attached the goods. On the same risk assumed by him by taking the subse- day the debtor, Carty, made an assignment quent incumbrance. This rule seems best for the benefit of his creditors. The trustee adapted to secure the rights of the parties, brought a suit to settle the estate. There and it is well established both in our courts was a contest among the parties asserting and those of England.” These cases are cit- liens on the property.

liens on the property. Neither the amount ed to show that courts will not allow persons of the debts nor of the fund appears, but the acquiring a subsequent interest in the prop- court held Mrs. Carty's debt should be paid erty to incur costs or expenses so as to im- out of the proceeds of the property in the pair or diminish the security of first lien hands of the trustee, and said, “Nor do we holder.

think it was error for the court to order the It is insisted that under the provisions of expenses of settling the trust to be paid out chapter 3, tit. 10, Civ. Code Prac., and as in- of this fund, because they were necessary terpreted in Dobyns v. Dobyns, 79 Ky. 95, to the settlement of the trust and rights of the trustee had the right to bring the action the various creditors, including appellants." to settle the trust, and, having done so, the It does not appear who objected to the paycosts of the suit should be paid out of the ment of the expenses. The court placed it trust estate; that is to say, that they have upon the grounds that the expenses were priority over the mortgage liens existing necessary to the settlement of the trusts and when the deed was made. While trustees rights of the creditors. They may not have may bring an action to settle the trust, still amounted to more than the creditors would there is nothing in the provision of the Code have been compelled to pay in the enforcewhich indicates that in such action the rights ment of their liens. of lien holders are to be impaired, or that It was proper for the banks to pay the the court should appropriate property, which court costs for filing pleadings, making orthe assignor had placed in lien before the ders enforcing their liens, and the fees of trustee acquired any interest in it, to the the commissioner making the sales, and also payment of costs incurred by such trustee. the taxes and insurance on the property mr If the trustee brings such action, he cer- on which they held liens, and the expenses tainly takes the hazard of producing a fund in taking care thereof.

in taking care thereof. They would have which is liable to the payment of the costs been compelled to incur these costs and exhe may incur.

penses if no suit had been brought to settle Counsel for appellee cites Burrillon As- the trust by the trustee. The judgment is signments and Hill on Trustees, wherein it reversed, with directions that further prois stated that all necessary expenses of the ceedings be had in conformity with this opinassignee are to be reimbursed to him out of ion.

murder in the first degree, as defined by the TURNER v. STATE.

statutes, are stated in the indictment in ques(Supreme Court of Arkansas. Dec. 7, 1895.) | tion. It is alleged that appellant killed Bob HOMICIDE-MURDER-INDICTMENT.

Hawkins by shooting him with a gun loaded Under a statute defining murder as the | with gunpowder and leaden bullets; that he unlawful killing of a person "with malice afore- shot him with the felonious intent to kill thought,” and murder in the first degree as all him,--that is, he willfully, unlawfully, and femurder perpetrated by means of poison, etc: loniously killed him; and that he did so with

or by any other kind of wilful, deliberate, malicious and premeditated killing,” etc., an in- malice aforethought, and after deliberation dictment for murder in the first degree is suffi- and premeditation. It is true it is not alleged cient which charges that defendant did "unlaw

that the "accused feloniously, willfully, and fully, willfully, and of his malice aforethought, and after premeditation and deliberation, kill of his deliberately premeditated malice afore* * * B., by shooting him * * * with a thought, did make an assault upon the decertain gun * * * loaded with gunpowder ceased, and a certain gun, which then and and leaden bullets, with the felonious intent to then and there kill him,'' etc.

there was loaded with gunpowder and one

leaden bullet, and by him, the said Pruitt Appeal from circuit court, Crawford coun

Turner, held in both his hands, he, the said ty; Jephtha H. Evans, Judge.

Turner, did then and there feloniously and Pruitt Turner was convicted of murder in of his deliberately premeditated malice aforethe first degree, and appeals. Affirmed.

thought shoot off and discharge at and upon J. E. London, for appellant. E. B. Kins- the said Bob Hawkins, thereby, and by thus worthy, Atty. Gen., for the State.

striking the said Bob Hawkins with the said

leaden bullet, inflicting on and in the left side BATTLE, J. The defendant, Pruitt Tur- of his head one mortal wound, of which morner, was accused of murder in the first de- tal wound the said Hawkins instantly died,” gree. The indictment against him, omitting according to the form recommended by Mr. the caption, was as follows:

Bishop, but all these allegations are substan“The grand jury of Franklin county, in tially contained in the indictment. The alleand for the Ozark district thereof, in the gations as to the assault, and the manner name and by the authority of the state of thereof, are virtually stated in it, because the Arkansas, accuse P. Turner of the crime of appellant could not have killed Hawkins in murder in first degree, committed as follows, the manner alleged without committing an to wit: The said P. Turner on the 17th day assault in the same manner. It is virtually of February, 1895, in the county and district alleged that he unlawfully, willfully, feloaforesaid, did unlawfully, willfully, and of niously, and with malice aforethought, and his malice aforethought, and after premedita- after deliberation and premeditation, shot tion and deliberation, kill and murder one Hawkins, because it said that he unlawfully, Bob Hawkins, by shooting him, the said willfully, and with malice aforethought, and Bob Hawkins, with a certain gun which he, after premeditation and deliberation, killed the said P. Turner, had and held in his him by shooting him with a gun with the hands, the said gun being then and there "felonious intent to then and there kill and loaded with gunpowder and leaden bullets, murder him." The killing having been willwith the felonious intent to then and there fully committed by shooting, the shooting kill and murder him, the said Bob Hawkins, was done in the manner the killing was alin manner and form aforesaid, against the leged to have been perpetrated. It is not alpeace and dignity of the state of Arkansas." leged that Turner shot off and discharged

He was tried, and convicted of murder in the gun at and upon Hawkins, but the same the first degree. Having filed a motion for a allegation is in effect made by the statement new trial, which was overruled, and a bill that the gun was loaded with gunpowder and of exceptions, he appealed to this court. leaden bullets, and that he killed Hawkins by

Is the indictment sufficient? This is the shooting him with the gun thus loaded. All only question necessary for us to notice in the essentials of the approved forms for inthis opinion. He is entitled to no relief on dictments for murder in the first degree are account of the other grounds set forth in his substantially set out in the indictment in action for a new trial.

question, "in ordinary and concise language, The statutes upon which the indictment and in such a manner as to enable a person was based define murder to be “the unlawful of common understanding to know what is killing of a human being, in the peace of the intended." state, with malice aforethought, either ex- But appellant contends that the indictment press or implied," and define murder in the

is fatally defective because the word "felofirst degree to be “all murder which shall niously” is not used in charging the offense, be perpetrated by means of poison, or by and cites Edwards v. State, 25 Ark. 444, and lying in wait, or by any other kind of wil- Mott v. State, 29 Ark. 147, to sustain his conful, deliberate, malicious, and premeditated tention. In neither of them was the crime killing, or which shall be committed in the of which the defendant was accused alleged to perpetration of, or in the attempt to perpe- have been committed with a felonious intrate, arson, rape, robbery, burglary or lar- tent, as in the indictment before us. ceny." All the acts necessary to constitute question we have under consideration was

The

not presented for determination. While, ac- the appellee the court struck out that part of cording to them, it is necessary for indict- the answer relating to the formation of the ments for felonies to show that the crime Southern Hedge Company, and making othcharged was feloniously committed, we think er persons parties, and denied the motion to that is done when it is alleged to have been transfer, to which appellant excepted. Apperpetrated with a felonious intent. There is pellant then filed an amended answer, statno magic in words. Ideas are important. ing: “(1) That there was no such corporation When they are conveyed in language suffi- as the Southern Hedge Company; (2) that he cient to enable a person of common under- received no consideration for the note sued standing to fully comprehend them, as a gen- on; (3) That the note was not transferred to era rule, the whole mission of words is ac- appellee by any one authorized to transfer complished.

the same.” A general demurrer to this anThe indictment in this case is unskillfully swer was sustained by the court, whereupon drawn, but we think it is sufficient.

the appellant asked for time to file a further Judgment affirmed.

amended answer, which was refused by the court, the cause having been reached for trial upon the calendar. The note was read in

evidence, and judgment rendered for plainREYNOLDS v. ROTH.

tiff, to all of which appellant excepted, and (Supreme Court of Arkansas. Nov. 23, 1895.) appealed to this court. ACTION ON NOTE-PLEADING-DEFENSES-PARTIES.

Mark Valentine, for appellant. Morris M. 1. In an action by the indorsee of a note

Cohn, for appellee. payable to S. Co. against the maker, it was proper to overrule a motion that the complaint be made more definite by inserting a full HUGHES, J. The motion to make the description of the payee; the note having been complaint more definite and certain by inindorsed before maturity. 2. It is no defense to an action by an inno

serting a full and proper description of the cent purchaser of a note for value against the payee of the note sued on, was properly overrulmaker that the payee is a fraudulent association. ed by the court. The note was made påyable

3. In such an action it was proper to re- to the Southern Hedge Company, and the fuse to make the organizers of the payee association parties.

complaint alleged that it was indorsed before 4. It was proper to refuse to transfer the maturity, and this was not denied in the ancause to equity.

swer. The holder was not bound to set out a 5. It was error, on sustaining a demurrer

description of the payee. The fact that the for indefiniteness to an amended answer alleging that the note sued on was not transferred

Southern Hedge Company was a fraudulent to plaintiff by a person authorized to transfer association was no defense to the suit by an it, to refuse to allow defendant to further amend

innocent holder upon this note, and the appelby setting out the facts showing that the transfer was unauthorized.

lant was not entitled to have the organizers 6. In an action by an indorsee on a note of said association made parties, and there payable to a corporation the maker cannot deny was no error prejudicial to appellant in strikits existence.

ing out these allegations and requests from Appeal from circuit court, Pulaski county; the answer. Thompson v. Love, 61 Ark. Robert J. Sea, Judge.

32 S. W. 65. There does not appear any reaAction by John Roth against D. H. Reyn- son for transferring the cause to equity, and olds on a promissory note. Judgment was there was no error in the court's refusal to do rendered for plaintiff, and defendant appeals. so. Having executed his note payable to the Reversed.

Southern Hedge Company, the appellant The appellee sued the appellant upon a ne- could not deny its existence in a suit upon the gotiable promissory note for $300, payable to note by an assignee thereof for value and the order of the Southern Hedge Company, without notice, before maturity. Tied. Com. and signed by appellant, upon which is the Paper, $ 118. The plea of "no consideration" following indorsement: "For a valuable con- in the amended answer could not be urged to sideration, we hereby assign the within note the note in the hands of an assignee for value to – -, without recourse in law or equity. and without notice, before maturity. Cagle The Southern Hedge Co., per C. C. Caldwell." v. Lane, 49 Ark. 465, 5 S. W. 790; Tabor y. The court sustained a demurrer to the com- Bank, 48 Ark. 454, 3 S. W. 805; Tied. Com. plaint, which was amended. The defendant Paper, § 288. The allegation in the amendfiled his motion to make the complaint more ed answer that the note was not transferred definite and certain by inserting “a full and to appellee by any one authorized to transfer proper description of the payee of the note," the same was a good defense, though not which was overruled by the court, to which stated with proper definiteness and detail. the appellant excepted. Appellant then an- It should have set out the facts, rather than swered that the payee of said note, the South- a conclusion. But the demurrer should have ern Hedge Company, was a fraudulent asso- been treated as a motion to make more deficiation; that appellant received no considera- nite and certain, and the appellant should tion for said note, and asked that the organ- have been allowed to amend. For the error izers of said association be made parties de- in sustaining a demurrer to the third ground fendant, and that the cause be transferred to of the amended answer, and refusing appelthe Pulaski chancery court. Upon motion of lant leave to amend his answer, the judgment

It

is reversed, and the cause is remanded, with in Bacon's Abridgment, that "it instructions to overrule the demurrer as to agreed that the king may extend his mercy the third defense in the amended answer, and on what terms he pleases, and consequently that the appellant be granted leave to make may annex to his pardon any condition that same more definite and certain.

he thinks fit, whether precedent or subsequent, on the performance whereof the validity of the pardon will depend.” 7 Bac. Abr.

p. 412; 4 Bl. Comm. p. 401. It is now well setEx parte HAWKINS.

tled that, when the constitution gives an un(Supreme Court of Arkansas. Nov. 23, 1895.)

restricted power of pardon to the governor CONSTITUTIONAL LAW-CONDITIONAL PARDOX.

of the state, he has the right to annex to Sand. & H. Dig. § 2412, authorizing the

his pardon any condition, precedent or subgovernor to grant pardons on condition that per- sequent, provided it be not illegal, immoral, sons pardoned shall leave the state and not or impossible to be performed. Ex parte return to it, is not in conflict with Const. art. 2, $ 21, providing that no person shall be exiled

Hunt, 10 Ark. 281; U. S. v. Wilson, 7 Pet. from the state.

150; Ex parte Wells, 18 How. 307; Arthur Appeal from chancery court, Pulaski coun

v. Craig, 48 Iowa, 264; State v. McIntire, 59

Am. Dec. 576; 1 Bish. New Cr. Law, § 914. ty; Thomas B. Martin, Chancellor.

Our constitution provides that the governor Application by S. D. Hawkins for a writ of habeas corpus to procure his discharge

shall have power to grant pardons "under

such rules and regulations as shall be prefrom the penitentiary. The petition was dis

scribed by law," and a statute expressly aumissed, and relator appeals. Affirmed.

thorizes him to grant pardons on condition S. D. Hawkins filed a petition in the Pulaski chancery court for a writ of habeas

that the convicted person "shall leave the

state and never again return to it.” Const. corpus. He alleged that in the year 1881 he

1874, art. 6, § 18; Sand. & H. Dig. § 2412. was convicted of a felony in the Lonoke cir

But it is said that this statute is in conflict cuit court and sentenced by that court to be

with section 21 of article 2 of the constituimprisoned in the state penitentiary for the

tion, which provides that under no circumperiod of four years. That afterwards, on

stances shall any person be exiled from the the 7th day of June, 1881, and while he was

state. We do not agree with this contenserving his sentence of imprisonment, the governor of the state granted him a pardon

tion. This provision of the constitution for

bidding exile was intended as a protection to upon the express condition following: "That

citizens and inhabitants of the state. Any the said Hawkins should immediately depart

statute of the legislature, or order of the from and remain without the borders of the

courts or executive, inflicting upon a person state of Arkansas, said pardon to be void if

banishment from the state would, under that the said Hawkins was found within the bor

section, be void. It forbids exile or comders of the state after the 12th day of June,

pulsory banishment, but it does not say that 1881." He further alleged that, by virtue of said pardon, he was set at liberty and left

a person may not, of his own volition, leave the state before the 12th day of June, 1881,

the state to escape punishment, or that the and remained out of the state for several

governor may not, by his pardon, permit him

to do so. To hold that it did would be to years; that he then returned, and was rear

construe a provision that was intended to rested and confined in the penitentiary. He

protect the inhabitants of the state into one alleged that the condition attached to said

restricting the power of the governor when pardon was null and void, that his impris

exercised in their behalf. Who can doubt that onment was illegal, and prayed that a writ

it would be esteemed a great boon by most of habeas corpus be directed to E. T. McCon

of those unfortunates against whom a sennell, superintendent of the state peniten

tence of imprisonment in the penitentiary tiary, etc. All formalities were waived. Mc

for a long term of years has been rendered Connell appeared and filed a demurrer to the

to be allowed to escape it by leaving the petition, which demurrer was sustained by

state? When a citizen of another state or the court, the petition dismissed, and writ

country commits a crime in this state, it refused. From this order of the court an

might, under some circumstances, be to the appeal was taken.

best interest of all concerned that a pardon Dan W. Jones and Mr. McCain, for appel- be granted on condition that he leave the lant. E. B. Kinsworthy, Atty. Gen., for ap- state and never return. One can readily pellee.

conceive of other instances when, to prevent

the possibility of future strife between the RIDDICK, J. (after stating the facts). convicted person and those against whose The first question for us to determine is persons or property he had committed a whether the condition upon which the par-crime, it would be proper to impose this as don was granted was valid or not. In other a condition of the pardon. We think the words, did the governor have power to an- constitution does not deprive the governor nex to his pardon the condition that the pe- of the power to grant pardons on such contitioner should "depart from and remain ditions. As Hawkins accepted his pardon without the borders of the state"? It is said, on this condition, and afterwards violated it, the pardon by its own terms became void. As to negative averments, Mr. Wharton His subsequent arrest and imprisonment says:

says: “Where, in a statute, an exception or were therefore legal. The judgment of the

The judgment of the proviso qualifies the description of the ofcourt dismissing his petition was, in our fense, the general rule is that the indictopinion, right, and is affirmed.

ment should negative the exception or pro

viso. In such cases, when the subject of the BUNN, C. J., concurred in the judgment exception is peculiarly within the defendonly on the ground that, if the condition was

ant's knowledge, and the negative cannot be void, the pardon was also void.

proved by the prosecutor, the burden of proving the affirmative may be on the defendant as a matter of defense. But another distinction is to be kept in mind. It may

be that the negative to be established is SHIPLEY et al. v. STATE.

something which virtually imputes certain (Supreme Court of Arkansas. Nov. 30, 1895.) / positive conditions to the defendant; as on

indictments for false pretenses, where the SABBATH BREAKING-WORK OF NECESSITY-BUR

charge of untruth is equivalent to a charge DEN OF PROOF.

of falsity, in which case the burden of provOn trial for Sabbath breaking, the work performed being the operation of a pump and

ing the negative is on the prosecution; and fan to keep a mine free from water and gas, on an indictment for perjury, where to the burden is on defendant to show that such charge a defendant with swearing to a fact, work is of necessity. 32 S. W. 489, reaffirmed.

not knowing it to be true, is equivalent to a On motion for a rehearing. Denied.

charge of rash swearing, in which case the For original opinion, see 32 S. W. 489.

defendant's want of knowledge must also be shown by the prosecution. On the other

hand, where the negative involves no crimBATTLE, J. Among the alleged errors enumerated by appellants in their motion for inality on the part of the defendant, then the

burden may be on him to prove the affirmaa rehearing is that part of the opinion in this

tive. case in which it is said that, if the labor per

Thus the burden of proving the de

fendant to be a traveler, under the statutes formed by them on the Sabbath was neces

prohibiting wearing of concealed weapons, sary, the necessity of its performance on

is on the defense.” Whart. Cr. Ev. (8th Ed.) that day was within their peculiar knowl

§ 128. edge, and the burden was on them to show

In cases in which the defendants are init. They contend that, if this labor was not

dicted for selling liquor without license, Mr. a work of necessity on Sunday, the state

Bishop explains the rule as follows: “Must ought to prove it, because the evidence nec

the negative averment that the defendant essary for that purpose was not peculiarly

was not licensed or otherwise authorized to within their knowledge. The work done by

make the sales be proved? Now, in princithem was performed in the operation of ma

ple, as this negative matter is a part of the chinery to propel fans and pumps for the

government's case against the defendant, it purpose of keeping a mine free from gas and

must in some way be made prima facie to apwater. They say that the state could have

pear at the trial. But not all of every case is used the inspector, or superintendent of the

established by oral testimony, depositions, mine, or any of its employés, "or, indeed,

and other documents. Much is derived from any one familiar with the operation and ne

presumption. One of the presumptions is that cessity of a coal mine," to show whether or

what is common in general prevails in the not this work was one of necessity, and

particular; another, that a fact, the existhence this fact was not within their peculiar

ence of which is once shown, continues. knowledge. To test the correctness of this

Therefore, where the general law withholds contention it is necessary to refer to the rule

from the mass of the people the right to upon this subject.

make the particular sale in controversy, and Mr. Greenleaf says: “Where the subject- permits it only to exceptional persons, of evmatter of a negative averment lies peculiar- ery one of whom it is certainly true that at ly within the knowledge of the other party,

some time he was not allowed to do it, the the averment is taken as true, unless dis- prima facie presumption is double: First, proved by that party. Such is the case in that the instance in controversy accords civil or criminal prosecutions for a penalty with what is general; and, secondly, that, as for doing an act which the statutes do not at one time the defendant had no license, he permit to be done by any persons except has none now. Hence, if he has a license, those who are duly licensed therefor; as, for he must show it. And this doctrine proselling liquors, exercising a trade or profes- motes alike convenience and justice, for it is sion, and the like. Here the party,

, if li- troublesome, and it may be even impossible, censed, can immediately show it, without to prove a negative, while, if the defendant the least inconvenience; whereas, if proof has a license, he can readily produce it.” of the negative were required, the inconven- Bish. St. Crimes (2d Ed.) $ 1051. ience would be very great." 1 Greenl. Ev. § The reason given by Mr. Bishop for the 79.

rule in the cases he was discussing is really

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