inventory of the property was made by the assignee, and the value fixed at $28,000. The assignee took possession and ran the business, at a loss of $1,000. Afterwards he sold the property, subject to the mortgage, for $1. The mortgagee became the purchas er. The assignee claimed he should be allowed commissions upon the entire value of the mortgaged property. The court held he should have commissions upon the $1 received by him for this property, "which was all the value thereof to the trust estate." In Lithauer v. Royle, 17 N. J. Eq. 40, it appears there were three mortgages. Suit was brought by the holder of the third mortgage to enforce his lien, to which he made the holders of the prior mortgages parties. They set up their claims. The proceeds were insufficient to pay the first mortgage. The plaintiff claimed he was entitled to costs out of the proceeds. The court held this could not be done, because to burden the fund with costs would defeat the just claims of the first mortgagees, and lead to gross abuses in practice. In speaking on the same subject (2 Jones, Mortg. § 1708), it is said: "Of course, it may happen that a subsequent mortgagee, after having incurred costs of suit and of sale, may lose these, as well as his demand, also,-as when the proceeds of sale are only sufficient to pay the debt and costs of the first mortgage,-but this was the risk assumed by him by taking the subsequent incumbrance. This rule seems best adapted to secure the rights of the parties, and it is well established both in our courts and those of England." These cases are cited to show that courts will not allow persons acquiring a subsequent interest in the property to incur costs or expenses so as to impair or diminish the security of first lien holder. It is insisted that under the provisions of chapter 3, tit. 10, Civ. Code Prac., and as interpreted in Dobyns v. Dobyns, 79 Ky. 95, the trustee had the right to bring the action to settle the trust, and, having done so, the costs of the suit should be paid out of the trust estate; that is to say, that they have priority over the mortgage liens existing when the deed was made. While trustees While trustees may bring an action to settle the trust, still there is nothing in the provision of the Code which indicates that in such action the rights of lien holders are to be impaired, or that the court should appropriate property, which the assignor had placed in lien before the trustee acquired any interest in it, to the payment of costs incurred by such trustee. If the trustee brings such action, he certainly takes the hazard of producing a fund which is liable to the payment of the costs he may incur. Counsel for appellee cites Burrill on Assignments and Hill on Trustees, wherein it is stated that all necessary expenses of the assignee are to be reimbursed to him out of the estate. As a general principle, this is correct. While theoretically the entire property embraced in the deed is the trust estate, practically the trust estate is nothing but the interest the assignor held in the property when the deed was made. This interest does not include the rights which he had previously granted to a mortgagee. Bridge Co. v. Douglass, 12 Bush, 673, is cited by appellee to sustain its contention. We do not think the case is applicable. In that case the trustees were made such in the mortgages to secure bonds which were issued by the railroad company. They represented the debtor as well as the creditors, and were the agents of the parties in interest. The court very properly held they were entitled to compensation for the services of themselves and counsel. The trustees in that case occupied the position that the Fidelity Trust & Safety-Vault Company occupied in this case, if it rendered any services, etc. The only case cited which at first blush seems to sustain the contention of counsel for appellee is Loth v. Carty, 85 Ky. 597, 4 S. W. 314. 597, 4 S. W. 314. In that case it appears Mrs. Carty asserted a lien for rent. Loth & Hass claimed a lien in virtue of a mortgage on the stock of merchandise, including such goods as were added to the stock after the execution of the mortgage. Gallahue, a creditor, attached the goods. On the same day the debtor, Carty, made an assignment for the benefit of his creditors. The trustee brought a suit to settle the estate. There was a contest among the parties asserting liens on the property. Neither the amount of the debts nor of the fund appears, but the court held Mrs. Carty's debt should be paid out of the proceeds of the property in the hands of the trustee, and said, "Nor do we think it was error for the court to order the expenses of settling the trust to be paid out of this fund, because they were necessary to the settlement of the trust and rights of the various creditors, including appellants." It does not appear who objected to the payment of the expenses. The court placed it upon the grounds that the expenses were necessary to the settlement of the trusts and rights of the creditors. They may not have amounted to more than the creditors would have been compelled to pay in the enforcement of their liens. It was proper for the banks to pay the court costs for filing pleadings, making orders enforcing their liens, and the fees of the commissioner making the sales, and also the taxes and insurance on the property upon which they held liens, and the expenses in taking care thereof. They would have been compelled to incur these costs and expenses if no suit had been brought to settle the trust by the trustee. The judgment is reversed, with directions that further proceedings be had in conformity with this opinion. TURNER v. STATE. (Supreme Court of Arkansas. Dec. 7, 1895.) HOMICIDE-MURDER-INDICTMENT. Under a statute defining murder as the unlawful killing of a person "with malice aforethought," and murder in the first degree as all murder perpetrated by means of poison, etc., "or by any other kind of wilful, deliberate, malicious and premeditated killing," etc., an indictment for murder in the first degree is sufficient which charges that defendant did "unlawfully, willfully, and of his malice aforethought, and after premeditation and deliberation, kill *** B., by shooting him *** with a certain gun ** loaded with gunpowder and leaden bullets, with the felonious intent to then and there kill him," etc. Appeal from circuit court, Crawford county; Jephtha H. Evans, Judge. Pruitt Turner was convicted of murder in the first degree, and appeals. Affirmed. J. E. London, for appellant. E. B. Kinsworthy, Atty. Gen., for the State. BATTLE, J. The defendant, Pruitt Turner, was accused of murder in the first degree. The indictment against him, omitting the caption, was as follows: "The grand jury of Franklin county, in and for the Ozark district thereof, in the name and by the authority of the state of Arkansas, accuse P. Turner of the crime of murder in first degree, committed as follows, to wit: The said P. Turner on the 17th day of February, 1895, in the county and district aforesaid, did unlawfully, willfully, and of his malice aforethought, and after premeditation and deliberation, kill and murder one Bob Hawkins, by shooting him, the said Bob Hawkins, with a certain gun which he, the said P. Turner, had and held in his hands, the said gun being then and there loaded with gunpowder and leaden bullets, with the felonious intent to then and there kill and murder him, the said Bob Hawkins, in manner and form aforesaid, against the peace and dignity of the state of Arkansas." He was tried, and convicted of murder in the first degree. Having filed a motion for a new trial, which was overruled, and a bill of exceptions, he appealed to this court. Is the indictment sufficient? This is the only question necessary for us to notice in this opinion. He is entitled to no relief on account of the other grounds set forth in his action for a new trial. The statutes upon which the indictment was based define murder to be "the unlawful killing of a human being, in the peace of the state, with malice aforethought, either express or implied," and define murder in the first degree to be "all murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious, and premeditated killing, or which shall be committed in the perpetration of, or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny." All the acts necessary to constitute murder in the first degree, as defined by the statutes, are stated in the indictment in question. It is alleged that appellant killed Bob Hawkins by shooting him with a gun loaded with gunpowder and leaden bullets; that he shot him with the felonious intent to kill him,-that is, he willfully, unlawfully, and feloniously killed him; and that he did so with malice aforethought, and after deliberation and premeditation. It is true it is not alleged that the "accused feloniously, willfully, and of his deliberately premeditated malice aforethought, did make an assault upon the deceased, and a certain gun, which then and there was loaded with gunpowder and one leaden bullet, and by him, the said Pruitt Turner, held in both his hands, he, the said Turner, did then and there feloniously and of his deliberately premeditated malice aforethought shoot off and discharge at and upon the said Bob Hawkins, thereby, and by thus striking the said Bob Hawkins with the said leaden bullet, inflicting on and in the left side of his head one mortal wound, of which mortal wound the said Hawkins instantly died," according to the form recommended by Mr. Bishop, but all these allegations are substantially contained in the indictment. The allegations as to the assault, and the manner thereof, are virtually stated in it, because the appellant could not have killed Hawkins in the manner alleged without committing an assault in the same manner. It is virtually alleged that he unlawfully, willfully, feloniously, and with malice aforethought, and after deliberation and premeditation, shot Hawkins, because it said that he unlawfully, willfully, and with malice aforethought, and after premeditation and deliberation, killed him by shooting him with a gun with the "felonious intent to then and there kill and murder him." The killing having been willfully committed by shooting, the shooting was done in the manner the killing was alleged to have been perpetrated. It is not alleged that Turner shot off and discharged the gun at and upon Hawkins, but the same allegation is in effect made by the statement that the gun was loaded with gunpowder and leaden bullets, and that he killed Hawkins by shooting him with the gun thus loaded. All the essentials of the approved forms for indictments for murder in the first degree are substantially set out in the indictment in question, "in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended." But appellant contends that the indictment is fatally defective because the word "feloniously" is not used in charging the offense, and cites Edwards v. State, 25 Ark. 444, and Mott v. State, 29 Ark. 147, to sustain his contention. In neither of them was the crime of which the defendant was accused alleged to have been committed with a felonious intent, as in the indictment before us. The question we have under consideration was not presented for determination. While, according to them, it is necessary for indictments for felonies to show that the crime charged was feloniously committed, we think that is done when it is alleged to have been perpetrated with a felonious intent. There is no magic in words. Ideas are important. When they are conveyed in language sufficient to enable a person of common understanding to fully comprehend them, as a genera rule, the whole mission of words is accomplished. The indictment in this case is unskillfully drawn, but we think it is sufficient. Judgment affirmed. REYNOLDS v. ROTH. (Supreme Court of Arkansas. Nov. 23, 1895.) ACTION ON NOTE-PLEADING-DEFENSES-PARTIES. 1. In an action by the indorsee of a note 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 description of the payee; the note having been indorsed before maturity. 2. It is no defense to an action by an innocent purchaser of a note for value against the maker that the payee is a fraudulent association. 3. In such an action it was proper to refuse to make the organizers of the payee association parties. 4. It was proper to refuse to transfer the cause to equity. 5. It was error, on sustaining a demurrer for indefiniteness to an amended answer alleging that the note sued on was not transferred to plaintiff by a person authorized to transfer it, to refuse to allow defendant to further amend by setting out the facts showing that the transfer was unauthorized. 6. In an action by an indorsee on a note payable to a corporation the maker cannot deny its existence. the appellee the court struck out that part of the answer relating to the formation of the Southern Hedge Company, and making other persons parties, and denied the motion to transfer, to which appellant excepted. Appellant then filed an amended answer, stating: "(1) That there was no such corporation as the Southern Hedge Company; (2) that he received no consideration for the note sued on; (3) That the note was not transferred to appellee by any one authorized to transfer the same." A general demurrer to this answer was sustained by the court, whereupon the appellant asked for time to file a further 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 plaintiff, to all of which appellant excepted, and appealed to this court. Mark Valentine, for appellant. Morris M. Cohn, for appellee. Appeal from circuit court, Pulaski county; the answer. Robert J. Sea, Judge. Action by John Roth against D. H. Reynolds on a promissory note. Judgment was rendered for plaintiff, and defendant appeals. Reversed. The appellee sued the appellant upon a negotiable promissory note for $300, payable to the order of the Southern Hedge Company, and signed by appellant, upon which is the following indorsement: "For a valuable consideration, we hereby assign the within note to - without recourse in law or equity. The Southern Hedge Co., per C. C. Caldwell." The court sustained a demurrer to the complaint, which was amended. The defendant filed his motion to make the complaint more definite and certain by inserting "a full and proper description of the payee of the note," which was overruled by the court, to which the appellant excepted. Appellant then answered that the payee of said note, the Southern Hedge Company, was a fraudulent association; that appellant received no consideration for said note, and asked that the organizers of said association be made parties defendant, and that the cause be transferred to the Pulaski chancery court. Upon motion of HUGHES, J. The motion to make the complaint more definite and certain by inserting a full and proper description of the payee of the note sued on, was properly overruled by the court. The note was made payable to the Southern Hedge Company, and the complaint alleged that it was indorsed before maturity, and this was not denied in the answer. The holder was not bound to set out a description of the payee. The fact that the Southern Hedge Company was a fraudulent association was no defense to the suit by an innocent holder upon this note, and the appellant was not entitled to have the organizers of said association made parties, and there was no error prejudicial to appellant in striking out these allegations and requests from Thompson v. Love, 61 Ark. —, 32 S. W. 65. There does not appear any reason for transferring the cause to equity, and there was no error in the court's refusal to do So. Having executed his note payable to the Southern Hedge Company, the appellant could not deny its existence in a suit upon the note by an assignee thereof for value and without notice, before maturity. Tied. Com. Paper, § 118. The plea of "no consideration" in the amended answer could not be urged to the note in the hands of an assignee for value and without notice, before maturity. Cagle v. Lane, 49 Ark. 465, 5 S. W. 790; Tabor v. Bank, 48 Ark. 454, 3 S. W. 805; Tied. Com. Paper, § 288. The allegation in the amended answer that the note was not transferred to appellee by any one authorized to transfer the same was a good defense, though not stated with proper definiteness and detail. It should have set out the facts, rather than a conclusion. But the demurrer should have been treated as a motion to make more definite and certain, and the appellant should have been allowed to amend. For the error in sustaining a demurrer to the third ground of the amended answer, and refusing appellant leave to amend his answer, the judgment is reversed, and the cause is remanded, with instructions to overrule the demurrer as to the third defense in the amended answer, and that the appellant be granted leave to make same more definite and certain. Ex parte HAWKINS. (Supreme Court of Arkansas. Nov. 23, 1895.) CONSTITUTIONAL LAW-CONDITIONAL PARDON. Sand. & H. Dig. § 2412, authorizing the governor to grant pardons on condition that persons pardoned shall leave the state and not return to it, is not in conflict with Const. art. in Bacon's Abridgment, that "it seems agreed that the king may extend his mercy on what terms he pleases, and consequently may annex to his pardon any condition that 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 settled that, when the constitution gives an unrestricted power of pardon to the governor of the state, he has the right to annex to his pardon any condition, precedent or subsequent, provided it be not illegal, immoral, or impossible to be performed. Ex parte 2, § 21, providing that no person shall be exiled Hunt, 10 Ark. 284; U. S. v. Wilson, 7 Pet. from the state. Appeal from chancery court, Pulaski county; Thomas B. Martin, Chancellor. Application by S. D. Hawkins for a writ of habeas corpus to procure his discharge from the penitentiary. The petition was dismissed, and relator appeals. Affirmed. S. D. Hawkins filed a petition in the Pulaski chancery court for a writ of habeas corpus. He alleged that in the year 1881 he was convicted of a felony in the Lonoke circuit court and sentenced by that court to be imprisoned in the state penitentiary for the period of four years. That afterwards, on the 7th day of June, 1881, and while he was serving his sentence of imprisonment, the governor of the state granted him a pardon upon the express condition following: "That the said Hawkins should immediately depart from and remain without the borders of the state of Arkansas, said pardon to be void if the said Hawkins was found within the borders of the state after the 12th day of June, 1881." He further alleged that, by virtue of said pardon, he was set at liberty and left the state before the 12th day of June, 1881, and remained out of the state for several years; that he then returned, and was rearrested and confined in the penitentiary. He alleged that the condition attached to said pardon was null and void, that his imprisonment was illegal, and prayed that a writ of habeas corpus be directed to E. T. McConnell, superintendent of the state penitentiary, etc. All formalities were waived. McConnell appeared and filed a demurrer to the petition, which demurrer was sustained by the court, the petition dismissed, and writ refused. From this order of the court an appeal was taken. Dan W. Jones and Mr. McCain, for appellant. E. B. Kinsworthy, Atty. Gen., for appellee. RIDDICK, J. (after stating the facts). The first question for us to determine is whether the condition upon which the pardon was granted was valid or not. In other words, did the governor have power to annex to his pardon the condition that the petitioner should "depart from and remain without the borders of the state"? It is said, 150; Ex parte Wells, 18 How. 307; Arthur v. Craig, 48 Iowa, 264; State v. McIntire, 59 Am. Dec. 576; 1 Bish. New Cr. Law, § 914. Our constitution provides that the governor shall have power to grant pardons "under such rules and regulations as shall be prescribed by law," and a statute expressly authorizes him to grant pardons on condition that the convicted person "shall leave the state and never again return to it." Const. 1874, art. 6, § 18; Sand. & H. Dig. § 2412. But it is said that this statute is in conflict with section 21 of article 2 of the constitution, which provides that under no circumstances shall any person be exiled from the We do not agree with this contention. This provision of the constitution forbidding exile was intended as a protection to citizens and inhabitants of the state. Any statute of the legislature, or order of the courts or executive, inflicting upon a person banishment from the state would, under that section, be void. It forbids exile or compulsory banishment, but it does not say that a person may not, of his own volition, leave the state to escape punishment, or that the governor may not, by his pardon, permit him to do so. To hold that it did would be to construe a provision that was intended to protect the inhabitants of the state into one restricting the power of the governor when exercised in their behalf. Who can doubt that it would be esteemed a great boon by most of those unfortunates against whom a sentence of imprisonment in the penitentiary for a long term of years has been rendered to be allowed to escape it by leaving the state? When a citizen of another state or country commits a crime in this state, it might, under some circumstances, be to the best interest of all concerned that a pardon be granted on condition that he leave the state and never return. One can readily conceive of other instances when, to prevent the possibility of future strife between the convicted person and those against whose persons or property he had committed a crime, it would be proper to impose this as a condition of the pardon. We think the constitution does not deprive the governor of the power to grant pardons on such conditions. As Hawkins accepted his pardon on this condition, and afterwards violated it, the pardon by its own terms became void. His subsequent arrest and imprisonment were therefore legal. The judgment of the court dismissing his petition was, in our opinion, right, and is affirmed. BUNN, C. J., concurred in the judgment only on the ground that, if the condition was void, the pardon was also void. SHIPLEY et al. v. STATE. (Supreme Court of Arkansas. Nov. 30, 1895.) SABBATH BREAKING-WORK OF NECESSITY-BURDEN OF PROOF. On trial for Sabbath breaking, the work performed being the operation of a pump and fan to keep a mine free from water and gas, the burden is on defendant to show that such work is of necessity. 32 S. W. 489, reaffirmed. On motion for a rehearing. Denied. For original opinion, see 32 S. W. 489. BATTLE, J. Among the alleged errors As to negative averments, Mr. Wharton says: "Where, in a statute, an exception or proviso qualifies the description of the offense, the general rule is that the indictment should negative the exception or proviso. In such cases, when the subject of the exception is peculiarly within the defendant's knowledge, and the negative cannot be 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 something which virtually imputes certain positive conditions to the defendant; as on indictments for false pretenses, where the charge of untruth is equivalent to a charge of falsity, in which case the burden of proving the negative is on the prosecution; and on an indictment for perjury, where to charge a defendant with swearing to a fact, not knowing it to be true, is equivalent to a charge of rash swearing, in which case the defendant's want of knowledge must also be shown by the prosecution. On the other hand, where the negative involves no crim enumerated by appellants in their motion for inality on the part of the defendant, then the a rehearing is that part of the opinion in this case in which it is said that, if the labor performed by them on the Sabbath was necessary, the necessity of its performance on that day was within their peculiar knowledge, and the burden was on them to show it. They contend that, if this labor was not a work of necessity on Sunday, the state ought to prove it, because the evidence necessary for that purpose was not peculiarly within their knowledge. The work done by them was performed in the operation of machinery to propel fans and pumps for the purpose of keeping a mine free from gas and water. They say that the state could have used the inspector, or superintendent of the mine, or any of its employés, "or, indeed, any one familiar with the operation and necessity of a coal mine," to show whether or not this work was one of necessity, and hence this fact was not within their peculiar knowledge. To test the correctness of this contention it is necessary to refer to the rule upon this subject. Mr. Greenleaf says: "Where the subjectmatter of a negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party. Such is the case in civil or criminal prosecutions for a penalty for doing an act which the statutes do not permit to be done by any persons except those who are duly licensed therefor; as, for selling liquors, exercising a trade or profession, and the like. Here the party, if licensed, can immediately show it, without the least inconvenience; whereas, if proof of the negative were required, the inconvenience would be very great." 1 Greenl. Ev. § 79. if li burden may be on him to prove the affirmative. Thus the burden of proving the defendant to be a traveler, under the statutes prohibiting wearing of concealed weapons, is on the defense." Whart. Cr. Ev. (8th Ed.) § 128. In cases in which the defendants are indicted for selling liquor without license, Mr. Bishop explains the rule as follows: "Must the negative averment that the defendant was not licensed or otherwise authorized to make the sales be proved? Now, in principle, as this negative matter is a part of the government's case against the defendant, it must in some way be made prima facie to appear at the trial. But not all of every case is established by oral testimony, depositions, and other documents. Much is derived from presumption. One of the presumptions is that what is common in general prevails in the particular; another, that a fact, the existence of which is once shown, continues. Therefore, where the general law withholds from the mass of the people the right to make the particular sale in controversy, and permits it only to exceptional persons, of every one of whom it is certainly true that at some time he was not allowed to do it, the prima facie presumption is double: First, that the instance in controversy accords with what is general; and, secondly, that, as at one time the defendant had no license, he has none now. Hence, if he has a license, he must show it. And this doctrine promotes alike convenience and justice, for it is troublesome, and it may be even impossible, to prove a negative, while, if the defendant has a license, he can readily produce it." Bish. St. Crimes (2d Ed.) § 1051. The reason given by Mr. Bishop for the rule in the cases he was discussing is really |