$500, which was issued and signed by D. W. SWIFT v. FIRST NAT. BANK OF LEWIS- Gladney, the cashier of the bank, and deliver VILLE. (No. 195.) (Supreme Court of Arkansas. Oct. 25, 1915.) 1. APPEAL AND ERROR 866-MATTERS REVIEWABLE-PEREMPTORY INSTRUCTION. Where both sides request a directed verdict, and neither requests any other instruction, the court on appeal must treat the cause, after verdict in accordance with request of one party, as if it were before the court on the question of the sufficiency of the evidence to sustain the jury's verdict. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3467-3475; Dec. Dig. 866.1 2. BANKS AND BANKING 154-ACTIONSCONVERSION OF DEPOSIT EVIDENCE. Evidence in an action by a depositor against a bank to recover the amount deposited, which the bank turned over to a third person, held sufficient to support a directed verdict for the defendant. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518533; Dec. Dig. 154.] ed to appellant. On the face of this certificate the following statement was written: "To be paid upon delivery of an option deed executed by J. E. Erwin to P. B. Swift to certain lands in Miller county, Arkansas (5,000 acres); said option good for 90 days." Afterwards, on the same day, this certificate was, by agreement with the cashier, taken up and canceled, and in lieu thereof Swift gave his check payable to A. H. Hamiter, agent for J. E. Erwin. This check was certified by the cashier and on its face, and before the signature was written the following: "This is given as first payment of purchase money on 5,000 acres of land located in Miller county, Arkansas." This certified check was delivered by appellant to Hamiter, to be by him sent to Erwin, who resided elsewhere. It was so sent by Hamiter to Erwin, who returned it 3. BANKS AND BANKING 154-ACTIONS- in about nine days, and denied and repudiCONVERSION OF DEPOSIT - EVIDENCE-AD- ated Hamiter's agency and authority. Ap MISSIBILITY. Where plaintiff depositor sues a bank for conversion of funds which the bank paid to a third person under apparent authority of the depositor, and a part of which the third person then paid on a personal debt to the vice president of the bank, evidence of the transaction between the third person and the vice president was properly excluded, where it was not claimed that the vice president knew the source of the money, or that the bank had any interest in the debt, or that the vice president was acting in his official capacity in receiving the money. [Ed. Note.-For other cases, see Banks and Banking, Cent. Dig. §§ 502-512, 515, 516, 518 533; Dec. Dig. 154.] Appeal from Circuit Court, Lafayette County; George R. Haynie, Judge. Action by P. B. Swift against the First National Bank of Lewisville. From a judgment for defendant, plaintiff appeals. Af firmed. Chas. S. Todd, of Texarkana, Tex., for appellant. Searcy & Parks, of Lewisville, for appellee. SMITH, J. On the 15th of October, 1910, appellant had on general deposit with the First National Bank of Lewisville, subject to his check, a sum of money exceeding $500. On that day he entered into a contract with A. H. Hamiter, acting as and representing himself to be the duly authorized agent of one J. E. Erwin, for the purchase of 5,000 acres of land for the sum of $25,000, by the terms of which contract appellant was to advance or deposit $500 as part of the purchase price, and upon the execution of a deed to said lands by Erwin within the time limited appellant was to pay $4,500 in addition in cash, and was to execute notes for $20,000. On the same day appellant went to the bank and drew out $500, with which he purchased from said bank a certificate of deposit of pellant determined to insist upon his contract, and went with Hamiter to the bank and exchanged this certified check for a draft signed by D. W. Gladney, cashier, drawn on a bank in St. Louis, payable to the order of J. E. Erwin. This bank exchange was likewise sent to Erwin and returned by him. Thereupon appellant instituted suit against Erwin to enforce the specific performance of this contract, but this suit was finally decided adversely to him. See Swift v. Erwin, 104 Ark. 459, 148 S. W. 267, Ann. Cas. 1914C, 363. The money remained in the bank in this condition until June 15, 1911, at which date the bank of Lewisville delivered to Hamiter another bill of exchange signed by Gladney, cashier, and drawn on a bank in St. Louis, for $500, and payable to the order of A. H. Hamiter, agent for J. E. Erwin, and Hamiter surrendered to the bank the former bill of exchange payable to the order of Erwin, and on the same day, and immediately thereafter, Hamiter indorsed the last-named bill of exchange as agent for Erwin and presented it to the bank, which took it up and placed the sum of $500 in its books to the credit of A. H. Hamiter, agent for J. E. Erwin. Thereafter Hamiter withdrew this money from the bank by checks payable to himself. Appellant testified that he knew nothing of the transactions after the issuance of the bill of exchange October 26, 1910, payable to the order of J. E. Erwin, and that the cashier of the bank knew of the circumstances under which this deposit was made and the use to which it was to be applied. These facts are set out in the complaint which appellant filed against the bank and Hamiter, in which judgment was prayed for the conversion of the $500 deposit, and appellant testified in support of these allegations.. Separate answers were filed by the bank and by Hamiter. In his answer Hamiter admitted his indebtedness, but alleged the fact to be that appellant had authorized him to use said money, and that he had done so pursuant to this permission. The answer of the bank contained a general denial of all the material allegations of the complaint. Judgment was rendered against Hamiter by confession, and the cause went to trial upon the issue of the bank's liability arising out of its action in permitting Hamiter to withdraw the deposit on checks payable to his own order. Hamiter became a witness, and testified that he requested appellant to permit him to use the deposit pending the litigation over the lands, and that appellant consented for him to do so upon his agreement to make the deposit good upon the termination of the litigation, and that he had intended to do this but had been unable to do so. Mr. Gladney, the cashier of the bank, testified that after the money had been on deposit for some time he called on appellant and asked him if he had any interest in this deposit, and appellant told him that he did not have any interest in it. This witness further testified that Hamiter told him that the money was his to use, and that he had no information to the contrary, and did not know what use Hamiter intended to make or had made of the money, but that he did know that the bank was not concerned in the disposition made of it and had derived no profit or advantage from this use. Appellant offered to prove that one of the checks so drawn by Hamiter was for the sum of $200, and that with this money Hamiter paid a private debt due by him to a Mr. Du Bose, who was at the time vice president of the bank. No attempt was made, however, to show that Du Bose had any knowledge of the transaction or knew the source from whence the money was derived, nor was it contended that the bank had any interest in the deposit so paid Du Bose, who was dead at the time of the trial in the court below. At the conclusion of all the evidence, both sides asked a directed verdict, and nether asked any other instruction, whereupon the court directed the jury to return a verdict for the bank, which was accordingly done, and this appeal has been prosecuted from the judgment pronounced upon that verdict. It is urged that the pleadings did not raise the issue of Hamiter's authority to check against the deposit, and that the bank had set up no such defense. But this was the only answer made by Hamiter, and, as that answer did not constitute a defense so far as he was personally concerned, judgment was rendered against him by default, Thereupon the cause was submitted on the question of the bank's liability, and, even if it be true that the allegations of Hamiter's answer did not inure to the benefit of the bank, the fact remains that the cause was submitted without objection on this issue, and the pleadings will be treated as amended to conform to that proof. [1] We have here a verdict directed by the court in a case where both sides asked a directed verdict, and neither side requested any other instruction. Under these circumstances the case stands here upon the question of the sufficiency of the evidence to sustain the verdict, the case being treated by us as if the jury, under proper instructions, had returned a verdict in appellee's favor. Gee v. Hatley, 170 S. W. 72; Sims v. Everett, 113 Ark. 198, 168 S. W. 559; Home Fire Ins. Co. v. Wilson, 109 Ark. 324, 159 S. W. 1113; Belding v. Vaughan, 108 Ark. 69, 157 S. W. 400; St. L., I. M. & S. R. Co. v. McMillan, 105 Ark. 25, 150 S. W. 112; St. L. S. W. Ry. Co. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C, 1339. [2] When the evidence is so considered, it cannot be said that it is insufficient to support the verdict of the jury. The cashier of the bank testified that appellant disclaimed ownership of the deposit, and that he permitted Hamiter to check against the deposit without knowing that this action was unauthorized, and that the bank derived no profit or advantage from Hamiter's withdrawal of the deposit. Hamiter testified that he was authorized to deposit and to redeposit the fund in the manner which he had done, and thereafter to check against it in the name in which the deposit was made. These facts being true, the bank was not liable to appellant, and the court properly so directed the jury. [3] We think no error was committed in excluding the evidence of the payment of the debt due Du Bose, as no attempt was made to show that Du Bose knew the source of the money, or that the bank had any interest in the debt so paid, or that Du Bose was acting in his capacity of vice president of the bank in so receiving said money. The judgment of the court below is therefore affirmed. evidence, the issue is for the jury, and a peremptory instruction is error. Where there is a material conflict in the [Ed. Note.--For other cases, see Trial, Cent. Dig. §§ 342, 343; Dec. Dig. 143.] 2. SALES 312-SELLER'S LIEN FOR PRICEPRIORITY. Under Kirby's Dig. § 4967, providing that, in actions to recover money contracted to be paid for property in the possession of the vendee, the court shall issue an order directing the sheriff or other officer to take the property deders of the court, the vendor of the personal scribed in the petition and hold it subject to orproperty is not entitled to seize property sold wherever it may be found, but his remedy under | sold and delivered the five head of horses to this section is applicable only where the property is found in the possession of the vendee. [Ed. Note.-For other cases, see Sales, Cent. Dig. §§ 871, 876, 877; Dec. Dig. 312.] Appeal from Circuit Court, Howard County; W. C. Rodgers, Special Judge. Action by L. C. Holman against Samuel L. Nutt and others. Judgment for defendants, and plaintiff appeals. Reversed and re manded. H. P. Epperson, of Muddy Fork, and W. P. Feazel, of Nashville, for appellant. 'D. B. Sain, of Nashville, and T. D. Crawford, of Little Rock, for appellees. plaintiff to compensate him for his damand recovering his mules, and in payment ages and expenses of going to Kansas City of the freight on the whole shipment from Arkansas to Kansas City and back. Plaintiff testified that he paid out about $260 in that way. Kennedy gave plaintiff a written order for the delivery of the horses, and plaintiff shipped them back to Deirks, Ark., and they remained in his possession until the commencement of this suit. Plaintiff testified positively that Kennedy sold him the stock for the consideration named, and that pursuant thereto he took possession of it and shipped it back to Deirks, paying the freight both ways. admitted, on cross-examination, that after he had returned to Arkansas he offered to sell the stock back to Kennedy for the price he had received-that is to say, for the amounts he had paid out-but his testimony was to the effect that it was a purchase of the horses from Will Kennedy in Kansas City, and not an acceptance of possession of the same as a pledge to hold until the freight was paid. He Kennedy testified that Craig turned the horses over to him to ship to Kansas City and to sell, and that he (Kennedy) turned McCULLOCH, C. J. The plaintiff, L. C. Holman, instituted this action against Reese Dyer, a constable in Howard county, to recover possession of three horses which said constable had taken from plaintiff's possession under process issued in two suits previously instituted before a justice of the peace in that county, one by Charles Kennedy, and the other by S. L. Nutt, against one Mack Craig. Kennedy sold two of the horses in controversy to Craig, and Nutt sold the other one to Craig, and each of said actions against Craig was to recover the respective prices of the horses sold. Each of those parties caused to be issued, at the commence-over to Craig a lot of other stock to take to ment of his action, an order issued pursuant to Kirby's Digest, § 4967, directing the constable to take from Craig, the defendant in those actions, the property sold to him, which was described in the complaints, and to hold said property subject to the orders of the court in those actions. The writs came to the hands of the constable, and he took the horses from the possession of the plaintiff, and, as before stated, the plaintiff instituted this action against the constable to regain possession of the horses. Nutt and Kennedy were allowed to intervene and make themselves defendants to this action. Plaintiff asserts ownership to the horses, and he came in possession thereof under circumstances which he relates as follows: Plaintiff sold to Will Kennedy four mules and some cattle for prices aggregating the sum of $600, and took the note of his vendee for the purchase price, reciting that the title was retained by the vendor until the price should be paid in full. Without having paid any of said purchase price, Kennedy shipped the mules purchased from the plaintiff to Kansas City, and also shipped the three horses in controversy, and two others, making five in all. After Kennedy had gotten away with the shipment of stock, plaintiff received information of it, and telegraphed to Kansas City and had Kennedy arrested, and the car load of stock stopped in the hands of the carrier. Plaintiff followed Kennedy to Kansas City, and, according to his testimony, made a trade with him whereby the latter St. Louis to sell. Craig did not appear in the controversy either as litigant or as a witness. Kennedy testified that he did not sell the horses to plaintiff, but merely turned them over to him to hold until he collected the amount paid out on freight, and there is other testimony in the case to the effect that plaintiff turned the stock back to Craig. The court gave a peremptory instruction in favor of the defendants, and judgment was rendered accordingly, from which the plaintiff has appealed. [1] We are of the opinion that the court erred in giving a peremptory instruction. The case should have been submitted to the jury upon the testimony. According to the testimony of the plaintiff, he was in possession of the horses under his purchase from Will Kennedy, whose testimony establishes the fact that he had authority from Mack Craig to sell the horses. It is true there was shown no authority on the part of Kennedy to sell for anything but money, or to sell in discharge of his own obligation, but Craig is not repudiating the sale made by his agent, and the defendants are not in a position in this action to call into question Kennedy's authority. [2] The defendants have no lien on the property and did not retain the title as security for the purchase money of the horses when sold. The statute under which they were proceeding for the enforcement of their debts only authorizes the sequestration of property when found in the possession or the control of the vendee. That statute was con- | homa, concerning the illness and death of his strued in the case of Bridgeford & Co. v. mother. Adams, 45 Ark. 136, where it was held that: The statute "does not give to the vendor a continuous subsisting lien on the property for the purchase price, but only provides that the property shall not be exempt from the vendor's execution for the debt, and enables the plaintiff in a suit for the purchase money to seize it at once if in the control or possession of the vendee, without alleging the ordinary grounds for an attachment." In that case it was held that the remedy could not be asserted against a trustee under a deed of assignment from the vendee. The same principle has been subsequently announced in numerous cases decided by this court; it being held that the remedy could not be invoked as against property in the hands of the personal representative of the vendee after the latter's death (Blass V. Hood, 57 Ark. 13, 20 S. W. 544), or against subsequent attaching creditors (Fox v. Arkansas Industrial Co., 52 Ark. 450, 12 S. W. 875), or against a receiver for an insolvent corporation (Clements v. Hamilton-Brown Shoe Co., 99 Ar. 335, 138 S. W. 971). If plaintiff held the property under a fraudulent transfer of the title from Craig, made for the purpose of defrauding his creditors, that might be shown in defense of the action, but there was no attempt to prove that the alleged sale to plaintiff was fraudulent. Neal v. Cone, 76 Ark. 273, 88 S. W. 952; WESTERN UNION TELEGRAPH CO. v. The company defended on the ground, among other things, that the transmission and delivery of the message constituted interstate commerce, which exempted it from the operation of the statutes of this state making mental anguish an element of damages for negligent failure to receive, transmit, or deliver a telegraphic message. case is ruled by the recent decisions of this court holding that there can be no recovery of damages under those circumstances. The Judgment reversed, and cause dismissed. STATE ex rel. MOOS, Atty. Gen., v. WOOD- 1. Under Const. art. 7, § 40, providing that justices of the peace shall have such jurisdiction of misdemeanors "as is now or may be prescribed by law," the Legislature may eztirely abolish the jurisdiction of justices of the peace in misdemeanor cases; the Constitution being a limitation, and not a grant, of powers. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dec. Dig. 2. CRIMINAL LAW 84 - JURISDICTION OF COURTS-CONSTITUTIONAL PROVISIONS. 84.] Under Const. art. 7, § 43, providing that corporation courts for towns and cities may be tices of the peace in civil and criminal matters, invested with jurisdiction concurrent with jussuch jurisdiction as under the Constitution may. be vested in justices of the peace may be vested in municipal courts, and the Constitution does not require that such jurisdiction be exercised concurrently with justices of the peace, and hence Laws 1915, p. 340, establishing municipal (Supreme Court of Arkansas. Oct. 25, 1915.) courts in certain cities, is not invalid, though COMMERCE 8 INTERSTATE COMMERCE Under the statutes of Arkansas which provide that mental anguish shall be an element of damages for negligent failure to receive, transmit or deliver a telegraphic message, no recovery can be had where the message is interstate in character, and therefore subject to the federal law on interstate commerce. [Ed. Note. For other cases, see Commerce, Cent. Dig. § 5; Dec. Dig. 8.] Appeal from Circuit Court, Logan County; Jeptha H. Evans, Judge. Action by W. M. Stewart against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Reversed, and cause dismissed. in section 10 it gives such courts jurisdiction exclusive of justices of the peace over all misdemeanors committed within the limits of the county. [Ed. Note.-For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dec. Dig. 84.] 3. CRIMINAL LAW 206 JURISDICTION OF H. C. Mechem, of Ft. Smith, for appellant. Law, Cent. Dig. §§ 411-413, 460; Dec. Dig. McCULLOCH, C. J. This is an action against the telegraph company to recover compensation for mental suffering alleged to have been caused by the negligence of the company in failing to promptly transmit and deliver a message to plaintiff at Booneville, Ark., from his brother in the state of Okla 206.] 4. STATUTES 64-PARTIAL INVALIDITY-EFFECT. If Laws 1915, p. 340, creating municipal courts in certain cities, attempts to make their jurisdiction in civil matters coextensive with the limits of the county, and, if it is invalid to that extent, this does not impair the validity of the remainder of the act; there being no reason to doubt that the Legislature would have I statute does not mention any city by name, enacted the statute with that part omitted. [Ed. Note. For other cases, see Statutes, Cent. Dig. §§ 58-66, 195; Dec. Dig. 64.] 5. CRIMINAL LAW 84 - JURISDICTION OF COURTS CONSTITUTIONAL PROVISIONS. As the Constitution does not by express terms restrict the jurisdiction of justices of the peace to the territorial limits of the township in which they are elected to serve, and as article 7, § 43, provides that corporation courts for towns and cities may be invested with jurisdiction concurrent with justices of the peace in civil and criminal matters, the Legislature may vest jurisdiction in municipal courts beyond the geographical limits of the municipalities. but the description of the territory in which it has application is so framed as to include Only the cities of Little Rock and Argenta. Respondents, who are judges of the municipal courts in Little Rock, demurred to the petition, and the circuit court sustained the demurrer and rendered judgment dismissing the petition. It is not contended that municipal courts cannot, under the Constitution, be established, but the validity of the statute establishing the courts presided over by respondents is attacked on the following grounds set [Ed. Note. For other cases, see Criminal Law, Cent. Dig. §§ 115-124; Dec. Dig. forth in the brief: 84.] 6. STATUTES 82-SPECIAL BILL NOTICE. The constitutional provision requiring notice of a special bill is a mere direction to the Legislature itself. [Ed. Note.-For other cases, see Statutes, Cent. Dig. § 6; Dec. Dig. 82.] 7. STATUTES 82-ENACTMENT-NOTICE OF SPECIAL ACTS. Laws 1915, p. 340, establishing municipal courts in certain cities of the first class, is not a special act within the constitutional provision requiring notice of a special bill, though it is so framed as to include only the cities of Little Rock and Argenta. [Ed. Note. For other cases, see Statutes, Cent. Dig. § 6; Dec. Dig. 8.] (1) The act is unconstitutional because it takes away all of the jurisdiction of justices of the peace as to misdemeanors in townships subject to the act. (2) Because it gives municipal courts jurisdiction to sit as examining courts, commit, discharge, or recognize offenders to the court having jurisdiction for further trial, and to bind persons to keep the peace or for good behavior. ceeds and extends beyond the geographical (3) Because according to its terms it exboundaries of the cities covered by it. (4) Because the act in its nature is special, 8. CONSTITUTIONAL LAW 102 CRIMINAL and is an act applying only to the city of LAW 87-COMPENSATION OF JUSTICE OF Little Rock and another city contiguous to PEACE-STATUTORY PROVISIONS-IMPAIRMENT the city of Little Rock, and not to the whole OF VESTED RIGHTS. Justices of the peace have no vested rights in the fees and emoluments of their office, and the matter is subject to regulation at any time by the Legislature, and hence Laws 1915,, P. 340, establishing municipal courts and restricting the jurisdiction of justices of the peace, is not void as impairing the vested rights of justices of the peace in such fees and emoluments. [Ed. Note. For other cases, see Constitutional Law, Cent, Dig. §§ 225, 356; Dec. Dig. 102; Criminal Law, Cent. Dig. § 126; Dec. Dig. 87.] Kirby, J., dissenting. Appeal from Circuit Court, Pulaski County; Guy Fulk, Judge. Quo warranto by the State, on relation of W. L. Moos, Attorney General, against William E. Woodruff and another. From a judgment dismissing the petition, plaintiff appeals. Affirmed. W. L. Moose, Atty. Gen., and Carmichael, Brooks, Powers & Rector, of Little Rock, for appellant. J. M. Moore, J. W. House, G. B. Rose, B. D. Brickhouse, C. T. Coffman, Morris M. Cohn, W. J. Terry, J. F. Loughborough, and H. M. Trieber, all of Little Rock, for appellees. state at large, and that no notice of the intended introduction or passage of the said act was given, and because a general act could have accomplished the purpose, if it could have been accomplished at all, without the necessity for a special act. (5) Because the act attempts to take away the rights and powers of the justices of the peace who were elected and holding office at the time of the passage and approval of the act, and that said justice of the peace courts are constitutional courts, and their powers could not be enlarged or restricted by the acts of the Legislature. (6) Because the Legislature has no power, under the Constitution of Arkansas, to create a new judicial department for the state, or any part thereof, and that this was attempted by giving municipal corporation courts power to hear and determine cases beyond their geographical jurisdiction. The points of attack will be discussed in the order above set forth. Whilst the power of the Legislature to create municipal courts is not questioned, it becomes necessary for us to pass upon the several attacks made on this statute; for it can be said, with much reason, that the act must stand or fall as a whole, inasmuch as the Legislature might not have enacted it with any of its assaulted parts omitted. McCULLOCH, C. J. The Attorney General instituted this action in the circuit court of Pulaski county by petition for quo warranto, challenging the validity of a statute enacted by the General Assembly of 1915 establishing municipal courts in certain cities of the first class. Acts 1915, p. 340. The follows: The sections of the Constitution which refer to the creation of municipal courts are as |