on the boat for the purpose of buying it. He did buy it of the appellant and it was taken out of the ice box, the receptacle in which it was kept, and set out to him as he called for it. Under these circumstances, we do not think this case falls within the single sale doctrine, as announced in the cases relied upon by appellant. Appellant kept beer in an ice box for sale, and set it out to be drunk as it was ordered and paid for, after the manner of selling in dramshops, and we are of the opinion that the testi

BOBO v. STATE.

(Supreme Court of Arkansas. Feb. 22, 1913.) For principal opinion of court, see 151 S. W. 1000.

McCULLOCH, C. J. (concurring). I concur in the judgment of affirmance, but upon grounds different from those stated by the majority. I do not think it is material

whether or not Mulkey, the purchaser of the

liquor, knew who the seller was. The fact that, according to his own admissions, he acted as messenger or agent for the purchaser, made him a participant in the unlawful sale, and he was therefore guilty as a principal. That is the logical and necessary result of the decision in Foster v. State, 45 Ark. 361. There the defendant was charged with violating the statute against selling intoxicating liquor to minors. The defendant took the money of a minor, and, acting as the latter's agent, purchased for him liquor from a licensed dealer. The court decided that he was guilty of aiding in an unlawful sale to a minor. Chief Justice Cockrill, speaking for the court, after pointing out that the buyer of liquor was guilty of no offense under the statute, said: "As the minor was guilty of no offense, the appellant cannot be punished for his complicity in the minor's act of purchase. If he had done nothing more than counsel and advise the minor in getting whisky, he would not have violated the terms of the statute, and could not be held to criminal re

mony was sufficient to sustain the verdict. In Snow v. State, 50 Ark. 561, 9 S. W. 306 this court said: "A place where cider, birch beer, ginger ale, and refreshments of like kind are sold, after the manner of dramshops as the proof shows was done in this case, is a saloon within the letter and spirit of the prohibition of this statute." "A dramshop is a place where spirituous liquor is sold by the drink, and is commonly called a saloon." 23 Cyc. p. 61. Webster defines it: "A place where spirituous liquors are sold by the dram or the drink; a barroom." In Brockway v. State, 36 Ark. 636, the court said: "It was proved that appellant kept a saloon in the house, kept a bar in the front room. The jury doubtless understood the words, 'saloon' and 'bar,' taken in their connection, as meaning a dramshop, or grocery." Other cases define dramshop within the meaning of the liquor laws as a place where spirituous, vinous, or malt liquors are retailed in less quantities than a gallon. Hewitt v. People, 186 Ill. 336, 57 N. E. 1077; Com-sponsibility. One cannot be punished for viomonwealth v. Marzynski, 149 Mass. 68, 21 N. E. 228, 229; Rank v. People, 80 Ill. App. 40; Strauss v. City of Galesburg, 203 Ill. 234, 67 N. E. 836.

Appellant complains of the refusal of the trial court to allow the official stenographer to report the examination by counsel of jurors offered for service, and their statements on their voir dire and of the court reprimanding his attorney in the presence of the regular panel of the jury offered to try the case, and also of certain remarks of the prosecuting attorney in his argument to the jury.

[4] The bill of exceptions does not disclose any evidence whatever of these matters complained of, which are only shown in the motion for a new trial. It is the office of the bill of exceptions to bring upon the record matters which do not appear on the judgment roll or record proper, and the motion for a new trial cannot be used as a vehicle for that purpose, and therefore these assignments of error cannot be considered here on appeal. Foohs v. Bilby, 95 Ark. 303, 129 S. W. 1104; Cox v. Cooley, 88 Ark. 350, 114 S. W. 929; Cravens v. State, 95 Ark. 321, 128 S. W. 1037.

Upon the whole case, we do not find any prejudicial error committed, and the judg

lating only the spirit of a penal law. But he has done more. He aided and abetted the liquor seller, and procured him to make the sale to the minor. This is the offense the statute is aimed at." He goes on further to say that, if the liquor dealer had been apprised of the fact that the sale was to defendant as agent for a minor, the dealer and the defendant would both be guilty. The point of the case is that one who acts as the agent of the purchaser in bringing about an unlawful sale of liquor is guilty of aiding and abetting the unlawful sale, even though his principal is not guilty under the law. That fully covers this case. The following cases sustain this view, and I think they are sound: Buchanan v. State, 4 Okl. Cr. 645, 112 Pac. 32, 36 L. R. A. (N. S.) 83; Wortham v. State, 80 Miss. 212, 32 South. 50. In Buchanan v. State, supra, the court cited with approval our case of Foster v. State, and held (quoting the syllabus) that: "Any person who acts as a messenger or agent of the buyer in going after, purchasing, and bringing back prohibited liquors is thereby aiding and assisting in the sale of such liquors, and may be prosecuted and convicted for such sale."

My conclusion, therefore, is that the trial court properly held defendant's own testi

that it showed that he acted as messenger or agent in purchasing liquor from Russell, who was not a licensed dealer, and violated the law in making the sale.

ADAMS v. BILLINGSLEY et al. (Supreme Court of Arkansas. Feb. 17, 1913.) 1. Appeal And Error (§ 1245*)-ACTIONS ON

APPEAL BOND-PLEADING.

A complaint, alleging the due execution of an appeal bond conditioned on payment of the judgment if the appeal be dismissed, and that the circuit court dismissed the appeal, sufficiently alleged a cause of action against the obligors on the bond.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4798-4806; Dec. Dig. 8 1245.*]

2. JUDGMENT (§ 948*)-RES JUDICATA-DE

MURRER.

The defense of res judicata cannot be raised by demurrer, but should be pleaded by way of answer.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. §§ 1787-1794; Dec. Dig. § 948.*] 3. EVIDENCE (§ 43*)-JUDGMENT (§ 948*)— RES JUDICATA-JUDICIAL NOTICE-PLEADING.

The Supreme Court cannot take judicial notice that the present action was identical with a former action between the parties, so that such fact must be pleaded to be available. [Ed. Note. For other cases, see Evidence, Cent. Dig. 88 62-65; Dec. Dig. § 43;* Judgment, Cent. Dig. 88 1787-1794; Dec. Dig. § 948.*]

Appeal from Circuit Court, Izard County; Jno. W. Meeks, Judge.

Action by. D. D. Adams against Sam F. Billingsley and others. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded,

with directions to overrule the demurrer.

Samuel M. Casey, of Batesville, for appellant. J. B. Baker, of Melbourne, for appellees.

McCULLOCH, C. J. Appellant instituted this action in the circuit court of Izard county against appellees, to recover on an appeal bond executed by the latter to supersede the judgment of a justice of the peace on appeal to the circuit court. It is alleged, in substance, that on November 11, 1910, appellant obtained a judgment before a certain justice of the peace of Izard county, Ark., against S. F. Billingsley, one of the appellees, for the recovery of the sum of $174.50 and costs of the suit; that thereafter, on December 3, 1910, said appellee Billingsley, together with his coappellees, Nicks and Baker, as sureties, executed a supersedeas bond; that at the September term, 1911, of said circuit court said appeal was by the court dismissed; and that no part of said judgment has been paid. The bond is copied at length in the complaint, and is in the

form prescribed by the statute, which is to the effect that if "the judgment of the justice shall be affirmed, or if, on the trial anew in the circuit court, judgment be given against the appellant, he shall satisfy such judgment, or if his appeal be dismissed, he shall pay the judgment of the justice, together with the costs of the appeal." Appellee demurred to the complaint on the following grounds, to wit: "(1) Because said Complaint does not state facts sufficient to constitute a cause of action against these defendants; (2) because said complaint does not state facts sufficient to give the court jurisdiction of said defendants E. H. Nicks and J. F. Baker; (3) because the matters and things complained of by the plaintiff herein have been fully adjudicated by the court in another action in this court by and between the same parties and in the same cause." The court sustained the demurrer, and, appellant electing to stand on the complaint without pleading further, the complaint was dismissed and final judgment was

He rendered against appellant for costs. has prosecuted an appeal to this court from said judgment.

[1] Sufficient facts are stated in the complaint to constitute a good cause of action within the jurisdiction of the court against each of the defendants, and the demurrer upon the first and second grounds stated therein should have been overruled.

[2] The matters set forth in the third paragraph of the demurrer did not constitute ground for demurrer, but should have been pleaded by answer as a defense. It is contended by appellee in his brief that the case of Billingsley v. Adams, 145 S. W. 190, is between the same parties, and constitutes the same cause of action, and that the judg

ment of this court in that case constituted an adjudication of the rights of the parties in this.

[3] We cannot take knowledge judicially that the two actions are identical. Murphy v. Citizens' Bank, 82 Ark. 131, 100 S. W. 894, 11 L. R. A. (N. S.) 616, 12 Ann. Cas. 535. Nothing in the opinion in that case conflicts with our present decision that a cause of action against the principal and the sureties on the supersedeas bond is stated in the complaint now before us. We merely held that the circuit court was without jurisdiction, on dismissing the appeal, to render judgment summarily on the appeal bond. That is so because the statute does not authorize such a judgment, and in case of dismissal of an appeal the remedy is by independent action on the bond. The complaint in this case states that the appeal bond was duly executed, and that the circuit court dismissed the appeal. This constituted a cause of action against the obligors on the bond, and the court erred in sustaining the demurrer. Reversed and remanded, with directions to overrule the demurrer.

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

BARWICK v. STATE. (Supreme Court of Arkansas. Feb. 17, 1913.) 1. CRIMINAL LAW (§ 980*)-JUDGMENT ON PLEA OF GUILTY-TIME FOR Rendering.

Where the court, after receiving the plea of guilty, ordered that the cause be continued, and defendant pay all costs at once, and that the fine be imposed at the pleasure of the court, it had power, at a subsequent term six years later, to enter judgment imposing a fine; the judgment not being piecemealed, since the imposition of costs was a mere incident of it. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 2493-2496; Dec. Dig. 980.*]

case was called, and the court entered judgment against the defendant, upon his plea of guilty, for a fine in the sum of $100. From that judgment, he has prosecuted ar appeal.

Appellant's plea of guilty was entered unconditionally; therefore the case does not fall within the ruling of this court in Wolfe v. State, 144 S. W. 208.

[1] We held, in the case of Joiner v. State, 94 Ark. 198, 126 S. W. 723, that, "upon a plea of guilty entered at one term of court, judgment may be entered at a subsequent term." That case is therefore conclusive of the ques

2. CRIMINAL LAW (§ 980*)-CONTINUANCE- tion raised now as to the power of the court SENTENCE.

When the court, on plea of guilty, ordered the case continued, defendant to pay costs at once, a fine to be imposed at the pleasure of the court, the prosecution was not abandoned; and a judgment fixing the fine after several terms of court was authorized.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 2493-2496; Dec. Dig.

980.*]

3. CRIMINAL LAW (§ 980*)-JUDGMENT ON PLEA OF GUILTY-TIME FOR RENDERING— WAIVER OF DELAY.

Where a case was continued after plea of guilty and not stricken from the docket, and the defendant never asked for final judgment, or to be discharged, and at no time made any objection to further continuance, he waived his right to object because the court delayed six years in entering judgment on his plea.

[Ed. Note. For other cases, see Criminal Law, Cent. Dig. 88 2493-2496; Dec. Dig.

980.*]

Appeal from
Circuit Court, Craighead
County; W. J. Driver, Judge.

Judgment was entered against Ben Barwick on a plea of guilty of unlawfully selling intoxicating liquors, and he appeals. Affirmed.

Hawthorne & Hawthorne, of Jonesboro, for appellant. Wm. L. Moose, Atty. Gen., and Jno. P. Streepey, Asst. Atty. Gen., for the State.

to render judgment at a subsequent term.

It is urged, however, that the court had no power to adjudge the penalty by piecemeal, and that, inasmuch as a judgment for costs was rendered, that exhausted the court's power to render any further judgment. The award of costs was a mere incident (Villines v. State, 151 S. W. 1023), and it may well be

doubted whether the costs could be collected until final judgment was rendered against appellant. The record of the court affirmatively shows that no judgment was rendered, but that the judgment imposing the fine was expressly reserved "at the pleasure of the court." It cannot therefore be said that the court rendered judgment by piecemeal, as it never attempted to render any judgment at all, except the one from which this appeal is

prosecuted.

[2] It is also insisted that the case was abandoned, and that the prosecution was barred by lapse of time. As before stated, no judgment was rendered, and the court continued the case for further proceedings. It was not abandoned, and no statute is brought to our attention which would operate as a bar, on account of lapse of time, to the exercise of the court's power to render judgment after lapse of several terms.

[3] Counsel cite cases to the effect that a court cannot, at will, strike criminal cases MCCULLOCH, C. J. An indictment was from the docket and reinstate them. But it returned by the grand jury of Craighead does not appear from the record here that county, Jonesboro district, at the October the court ever struck this case from its dockterm, 1906, against appellant, Ben Barwick,et and reinstated it. Nor does it appear that charging him with the offense of selling in- the appellant had ever asked for final judgtoxicating liquor in violation of law. At the ment, or asked to be discharged on account next term of the court, which was the Febru- of no judgment being rendered. For aught ary term, 1907, appellant entered a plea of the record shows, the defendant may have guilty to the charge, and the court, after re- been in attendance at each subsequent term ceiving the plea and noting the same upon the of the court, and made no objection to furrecord, caused an order to be entered "that ther continuance. Under those circumstances this cause be continued; that the defendant he waived the delay, and cannot complain pay all costs herein at once; and that the because the court delayed entering judgment fine be imposed at the pleasure of the court." on his plea. Ex parte Hall, 47 Ala. 675. The No objection appears to have been made by court acted within its powers in rendering appellant to this order of the court, and no judgment at a subsequent term, and no abuse further proceedings were had until the No- of discretion is shown. vember, 1912, term of the court, when the Judgment affirmed.

served in the action, the court was correct | larger capital, and take over the property in taking the case from the jury and render- and business of the Western Handle Coming a judgment against the plaintiff. pany, and also that of the firm of Ferguson The case is presented here principally on & Wheeler, in order that a new loan could the question of the responsibility of the Fer- be floated sufficient to cover all of the old guson & Wheeler Land, Lumber & Handle indebtedness. This idea was carried out by Company for the liabilities of the other cor- the organization of another corporation, poration, including its liability, if any estab-named the Ferguson & Wheeler Land, Lumlished, for the plaintiff's injury. We will ber & Handle Company, which was incordirect our attention, therefore, to that ques-porated with a capital stock in the sum of tion.

$300,000. The stock was all taken by the two members of the firm, except one qualifying share issued to its bookkeeper. Ferguson was president of both corporations, and Wheeler was treasurer of both. Upon the organization of the new corporation the Western Handle Company conveyed all of its property to the firm of Ferguson & Wheeler, who, in turn, conveyed it to the new corporation. The partnership, by separate deeds, conveyed its real estate to the new corporation; and the testimony of Mr. Wheeler shows that all the property of the old corporation and all the property of the partnership, except the stock of goods at Corning, was turned over to the new corporation. All of the transactions with respect to these changes took place simultaneously, or substantially so; that is, within a few days of each other. The deed from the Western Handle Company to Ferguson & Wheeler recited that, "in consideration of value received," the corporation conveyed "all the personal property and effects of this company" to Ferguson & Wheeler, a partnership composed of William Ferguson and George B. Wheeler; and the deed from Ferguson & Wheeler to the new corporation, the Ferguson & Wheeler Land, Lumber & Handle Company, recited that, “in consideration of value received," said firm conveyed "all personal property and effects" to the new corporation. The last deed contains the following clause with reference to the prop

The testimony concerning the status of the two corporations, their relations to each other, and the amount of property and liabilities of each, is confined to the testimony of Mr. George B. Wheeler, who was one of the organizers and officers of each corporation, as well as a member of the partnership composed of himself and William Ferguson, under the style of Ferguson & Wheeler, which owned substantially all the stock in both corporations. The firm of Ferguson & Wheeler had its principal offices in Poplar Bluff, Mo., but owned considerable property in Arkansas as well as in Missouri. It owned about 3,000 acres of timber land, and operated two or more plants in Arkansas for the manufacture of lumber and its products. It also owned and operated a mercantile establishment at Corning, Ark. In the spring of the year 1907 the members of the firm of Ferguson & Wheeler organized and incorporated the Western Handle Company; the members of that firm owning all the stock, except a few qualifying shares issued to its employés. Another person, Angus McNeill, was to be an equal stockholder; but he did not pay for any of his stock, and the shares were not issued to him. The handle factory near Corning, at which plaintiff was working when he received his injuries, was operated in the name of the Western Handle Company; but it was, in fact, owned by the firm of Ferguson & Wheeler. The intention was for the partnership to convey the property conveyed, which was substantially in erty to said corporation, but that was never done. Plaintiff received his injuries on December 20, 1907, while the plant was being operated in the name of the Western Handle Company. During the operation of the business of that corporation, all the debts contracted by it were guaranteed by the members of the firm of Ferguson & Wheeler. Mr. Wheeler testified positively as to that fact. In April, 1908, it was found that the Western Handle Company was considerably involved in debt, as was also the firm of Ferguson & Wheeler, though neither of the concerns were shown to have been insolvent. Both concerns were heavily in debt, and the business condition brought about by the panic of 1907 made it necessary for a change to be made in the business. The Western Handle Company was incorporated in the sum of $30,000, and the idea was conceived by the members of the Ferguson & Wheeler firm to

the words of the clause in the deed from the Western Handle Company to the partnership, to wit: "It being intended hereby to convey, and the grantor herein has conveyed, to said corporation all of the personal property and effects of the grantor, of every kind and character and wheresoever located, consisting of goods, wares, and merchandise, finished and unfinished, logs, lumber, accounts, bills receivable, etc., as evidenced by their books March 1, 1908."

Mr. Wheeler testified that these changes were merely for the purpose of convenience of himself and Mr. Ferguson, who were the real owners of all the property and of all the stock of each of the corporations; that they were personally liable as guarantors for all the debts of the Western Handle Company; that the partnership assumed and was to pay all the debts of the Western Handle Company; and that the new corpo