Rep. 589, the court had occasion to consider | of a grocer fixing the price of his goods at a what ferrying would constitute an infringe- given figure, which it is said he might lawment of this franchise. The court there said fully do, but that, if he entered into combinathat the grant of this franchise did not take tion with other merchants for the same puraway from the citizen within the prescribed pose, an act was committed which was forbidlimits any right which before that he had of den by law; and the court there said that, common right, and that one may keep his while any citizen could use his own boats own boat upon a navigable stream with within the limits of a ferry for his own purwhich to do his own ferrying without liabil- poses, the combination of many persons for ity to any ferry owner. Attention was called this purpose would constitute an unwarrantin the opinion to the fact that there was no ed ferry system for the many, and would be evidence of any confederation amongst the in violation of the franchise of a ferryman. owners of this boat and other boats sought This California case is thoroughly well conto be enjoined, nor of any compensation ever sidered, and is found annotated in volume 33, taken, nor of any offer to the public for free Am. & Eng. Ann. Cas. p. 1197. use in passage; but it was there also said that it was not necessary to decide whether or not any or all of those things would be considered as impairing the franchise under the facts of that case. In upholding the right of any citizen to do his own ferrying, the court said that the exercise of this right did not impede the exercise of a ferry franchise in another or impair its value, and that the value of the franchise depends upon the right to transport such of the general public as may use the convenience, and not upon any right to compel those to use it who did not require it.

The Supreme Court of California, in the case of Vallejo Ferry Co. v. Solano Aquatic Club, 165 Cal. 255, 131 Pac. 864, Ann. Cas. 1914C, 655, upheld this right upon the part of the citizen, and, in doing so, said that any loss of patronage resulting therefrom to the owner of the ferry franchise was damnum absque injuria. That court, as well as our own and a number of others, has given the reasons for the grant of the exclusive privilege of ferrying to the owner of the franchise. It is because of the service which the public exacts in consideration thereof and the bond required for the performance of these services. The ferryman must stand ready, subject to such reasonable regulations as are prescribed, to serve the public and to serve all alike. Competition might make the ferry unprofitable, and its maintenance impossible, and competition is therefore excluded.

In the California case, supra, it was urged that what one man may do, many may do in combination. But the court pointed out that this maxim or phrase of the law, like many others of a similar nature, had its well-defined limits, and that it was not always nor universally true that what one may do, many may do in combination, but that it was only those things which work no invasion of rights, when done in combination, that may be so done. The court used the illustration

The case of Warren v. Tanner, 56 S. W. 167, 21 Ky. Law Rep. 1678, which is annotated in volume 49, L. R. A. p. 248, is strikingly similar, under the facts, to the instant case. Mr. Justice White, speaking for the Kentucky Court of Appeals in that case said:

"In the case at bar some sixty odd persons combine and establish for themselves a ferry, hire a common ferryman, and, presumably, pay this is but a device resorted to, to avoid the payequally for the whole expense. In our opinion, ment of ferriage at appellees' ferry; and this is not one of the rights of the citizen, reserved to the free navigation of the river. We are of for himself and family, to cross and recross, or opinion that this common ferry established, though used by appellants exclusively for themselves and families, is a violation of the excluand is such a violation as will be enjoined." sive grant of the privilege granted to appellees.

under consideration is that of Blanchard v. Another case quite similar to the case now Abraham, 115 La. 989, 40 South. 379. There a number of subscribers, for their own purpose, had purchased a boat and employed a ferryman to operate it. In holding that this arrangement constituted a violation of the ferry franchise, the Supreme Court of Louisiana there said:

the former patrons of plaintiff's ferry cannot "A combination to cross a large majority of be assimilated to the case of an individual crossing himself and family or a few friends or neighbors as a matter of accommodation."

And the operation of the company ferry was there enjoined.

Upon the authority of these cases, as well as upon a consideration of the principles involved, we are led to the conclusion that the arrangement under which the company ferry was operated constituted an infringement upon the plaintiff's ferry franchise, and the operation of this company ferry should therefore have been enjoined.

The decree of the court below will therefore be reversed, and the cause remanded, with directions to enter a decree in accordance with this opinion.

BLASINGAME et ux. v. LOWDERMILK.

(No. 204.)

(Supreme Court of Arkansas. March 4, 1918.) 1. MORTGAGES 386-FORECLOSURE-JURISDICTION OF CHANCERY.

Chancery courts have jurisdiction to foreclose mortgages.

2. EQUITY 152-AVERMENTS OF COMPLAINT -CONTROL BY EXHIBITS.

In a suit in equity the exhibits, as a copy of the mortgage sought to be foreclosed, control the averments of the complaint.

3. MORTGAGES 495-FORECLOSURE-AMENDMENT OF DECREE AMENDMENT OF COMPLAINT OR EXHIBIT.

In a suit to foreclose a mortgage which correctly described a 40-acre tract omitted by clerical misprision from the decree of foreclosure, the court could properly proceed, though a copy of the mortgage, an exhibit, did not include such tract, by amending the decree of foreclosure and sale prepared for entry of record to include the tract; such action being equivalent to permission given to amend the complaint or exhibit itself.

4. MORTGAGES 458-AMENDMENT OF COмPLAINT OR EXHIBIT.

In suit to foreclose a mortgage, it would have been proper for the court to grant permission formally asked to amend the complaint or the copy of the mortgage, an exhibit, to correct a clerical omission of part of the land involved.

Appeal from White Chancery Court; Jno. E. Martineau, Chancellor.

the exhibit thereto described the above-mentioned 40-acre tract of land, and that the original precedent for the decree as approved by the chancellor did not include it.

Upon the hearing of the exceptions the court found that the original mortgage and the note which it secured had been filed with the papers in the case upon the trial of the cause, and that after the decree of foreclosure was rendered the attorney for the defendant prepared a precedent therefor, which was submitted to the attorney for the plaintiff, who discovered that the 40-acre tract was not included. A comparison was made with the original mortgage, which was found to contain the omitted 40-acre tract, and this tract was added to the decree which had been prepared for the chancellor's approval, and, as thus amended, it was approved by the chancellor and delivered to the clerk, who entered it in the records of the court. The report of sale was duly approved, and this appeal has been prosecuted to reverse that action.

In the brief of appellants it is said:

"Of course, the appellants on the hearing of the exceptions to the sale did not direct their proof to the question of how and when the land in controversy was inserted in the original mortgage, for it was then and is now their theory that, notwithstanding the decision of that Suit to foreclose a mortgage by T. J. Lou-question, the trial court had no jurisdiction to dermilk, as executor of the estate of D. M. and that the sale should not have been condeclare a lien upon the land and order its sale Doyle, deceased, against D. A. Blasingame firmed." and wife. From decree of foreclosure, as amended, defendants appeal. Affirmed.

J. N. Rachels and Jno. E. Miller, both of Searcy, for appellants. Brundidge & Neelly, of Searcy, for appellee.

And the contention is made that the decree ordering the sale and the subsequent confirmation thereof is void because neither was based upon any pleading filed in the cause. Appellants testified that they did not know the 40-acre tract was involved in the suit until a short time before the sale, and that they attended the sale and objected to the offering of this tract.

[1, 2] In support of his position that the court had no jurisdiction to order the sale of the 40-acre tract, counsel cite and rely upon the case of Falls v. Wright, 55 Ark. 565, 18 S. W. 1044, 29 Am. St. Rep. 74. It was there said that to constitute jurisdiction three es

SMITH, J. Appellee brought this suit as executor of the estate of D. M. Doyle, to foreclose a mortgage given by D. A. Blasingame and his wife to secure the payment of the sum of money there mentioned due Doyle by Blasingame. The complaint alleged that a copy of the mortgage was filed as an exhibit to the complaint; and, while both undertook to describe the land mortgaged, neither, in fact, described the northeast quar-sentials must exist: First, the court must ter of the northwest quarter of section 24, township 6 north, range 10 west. An answer was filed, and a reference had to a master, to whose report exceptions were filed; but upon a final hearing the indebtedness was adjudged and a foreclosure of the mortgage ordered. The decree to that effect described the northeast quarter of the northwest quarter of section 24, together with the lands described in the complaint, and this 40-acre tract, together with the other lands, were sold pursuant to the terms of the decree. The special commissioner appointed to make the sale reported the sale of the lands to the executor in succession. Exceptions to the confirmation of this report were filed upon the grounds that neither the complaint nor

have cognizance of the class of cases to which the one to be adjudged belongs; second, the proper parties must be present; third, that the point decided must be, in substance and effect, within the issue. There can be no question about the jurisdiction of chancery courts in foreclosure proceedings; and no contention is made that proper parties are not before the court. Does the third essential also appear? This is a proceeding to foreclose the mortgage which described the land in controversy. Being a suit in equity, the exhibits control the averments of the complaint. Swift v. Erwin, 104 Ark. 459, 462, 148 S. W. 267, Ann. Cas. 1914C, 363, and Goldsmith Bros, v. Moore, 108 Ark. 362, 364, 157 S. W. 733, and cases there cited.

new assessment.

Appeal from St. Francis Chancery Court; Edward D. Robertson, Chancellor.

Suit by L. C. Marshall and others against J. D. Baugh and others. From the decree rendered, plaintiffs appeal. Affirmed.

Mann, Bussey & Mann, of Forrest City, for appellants. Morrow & Harrelson, of Forrest City, for appellees.

[3, 4] It is said, however, that the exhibit | defeat the organization of the district, but the itself did not describe the land. This is true; commissioners could be compelled to make a but the omission of the above-described 40acre tract was a mere clerical misprision. The relief prayed was the foreclosure of a particular mortgage, which correctly described the omitted land, and the action of the court, under the circumstances of the case, in amending the decree which had been prepared for entry of record, was tantamount to permission given to amend the complaint or exhibit itself. A different issue would be presented if we had before us the question whether the mortgage sought to be foreclosed did, in fact, embrace the particular 40-acre tract. No such issue is involved here or was raised below. Had formal permission been asked to amend the complaint or the exhibit thereto to correct a clerical omission, the court would, no doubt, have granted that permission. It would have been proper to do so, and it would put form above substance to now hold that this should have been done before the precedent for the decree was corrected.

MCCULLOCH, C. J. A special statute cre

ating three separate road districts in St. Francis county was enacted by the General Assembly of 1917. Each of the districts covers separate territory and was created to improve certain roads. One district covers all of the county west of the St. Francis river, and certain public roads therein are to be improved. Another district covers the territory east of the St. Francis river and north of the line of railroad of the Chicago, Rock Island & Pacific Railroad Company. Certain public roads are to be improved in that district. The third district covers the territory east of the St. Francis river and south of the line of said railroad. The three districts are entirely separate and distinct, each for the improvement of different roads, which are to March 4, 1918.) be improved at the expense of property own39-ENACTMENT - RECORD-ers in the respective districts. An attack is made in this suit on the validity of the statute and the proceedings thereunder so far as relates to the third district.

Decree affirmed.

MARSHALL et al. v. BAUGH et al. (No. 193.)

(Supreme Court of Arkansas. 1. STATUTES

SUFFICIENCY.

The mere fact that the House journals disclosed that a bill had been read as required by law, and the title in each case in the record was correct, but the number of the bill was erroneously set down on its third reading, did not invalidate the enactment; such error being a clerical misprision.

[1] The first point of attack is that the statute was not legally enacted for the reason that the journals of the House of Rep

2. HIGHWAYS 90-IMPROVEMENTS-STAT-resentatives fail to show that it was read on UTES-VALIDITY.

Acts 1917, vol. 1, p. 814, § 1, creating road improvement districts in St. Francis county, and providing for improvement of "a public road beginning at a point where the road from Madison through Widener to the Crittenden county line crosses the line between" certain townships, terminating at or near a certain town, and enumerating certain sections through which the road passed, was not invalid because two of the sections enumerated were within another district; the enumeration of such sections being for the purpose of identifying the road and not of authorizing work upon those sections.

3. HIGHWAYS 140-IMPROVEMENTS-SPECIAL ASSESSMENT-DISCRETION OF COMMISSIONERS.

different days. The only defect in the legislative records concerning the passage of this bill is that the journals of the House, where the bill originated, do not give the correct number of the bill showing its third reading and final passage. The bill was numbered 346, and the journals of the House show that it was introduced and on a certain day read twice, the rules being suspended, but on another day's proceedings it appears that House Bill No. 246 was read the third time and placed on its final passage and passed. The journals of the House properly recited the title of the bill, and the only defect was in stating the number. There is a slight discrepancy in the Senate journals concerning the correct title of the bill; but this, as well as the error in the House journals as to the number of the bill, merely constituted a clerical misprision, which does not affect the validity of the statute, as an examination of the whole of the legislative records show very clearly that every constitutional reUnder Acts 1917, vol. 1, p. 814, as to road quirement was observed in the passage of districts, section 12 of which provides for a the bill through both Houses of the Legislareassessment if the original assessment is inture. Butler v. Kavanaugh, 103 Ark. 109, valid, the fact that the commissioners made an erroneous or arbitrary assessment would not 146 S. W. 120; Mechanics' Building & Loan

Under Acts 1917, vol. 1, p. 814, as to road districts, section 12 of which provides for assessment of properties, the district commissioners may assess the benefits, and the mere fact that they assessed no benefits upon lands more than three miles from either of the roads to be improved did not show an arbitrary as

sessment.

4. HIGHWAYS 144-ROAD DISTRICTS-SPECIAL ASSESSMENTS-ARBITRARY ASSESSMENT -EFFECT.

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

Ass'n v. Coffman, 110 Ark, 269, 162 S. W. time within 30 days after the hearing before 1090. the commissioners, and that if the assessments of benefits "shall be found invalid by the court, within the time limited, the commissioners of the district in which such in

made, shall proceed to make another assessment of that tract or parcel of real property under the direction of said court; and if the entire assessment in either of said districts is set aside by any court, the commissioners thereof shall proceed to make a new assessment in the manner and after the notice herein provided for the original assessment." Section 12.

[2] It is next contended that the statute is void so far as it relates to this district because it authorizes the construction of a road extending outside of the territorial bound-valid assessment of benefits or damages was aries of the district. The designation of the road in question is in the following language: "Also the public road beginning at a point where the road from Madison through Widener to the Crittenden county line crosses the line between township 5 north, range 4 east, and township 5 north, range 5 east, thence in a northerly direction through sections 25, 24, 13, 12, 1, township 5 north, range 4 east; sections 30, 18, 7, 6, township 5 north, range 5 east and terminating at a point on the Chicago, Rock Island & Pacific Railway at or near the town [4] If the commissioners made an erroneof Round Pond." Acts of 1917, vol. 1, p. 819. out assessment, or even an arbitrary one, All of the sections of land described above that would not defeat the organization of the lie south of the railroad and are in the dis-district; but the commissioners should be trict, except section 1, in township 5 north, compelled to make new assessments. Howrange 4 east, and section 6 in township 5 north, range 5 east. Those two sections are

north of the railroad, and are therefore within the boundaries of district No. 2. The manifest purpose of the lawmakers was to authorize the construction of that portion of the road within the boundaries of the district and that the improvement should terminate at the railroad which forms one of

the boundaries. The two sections mentioned above which lie outside of the district were

either mentioned by inadvertence, or they were described merely as part of the description of the road, and not the extent to which the road was to be improved. It seems clear that no authority was conferred to carry the improvement further north than the railroad.

[3] The last attack made in the case on the proceedings relates to the assessments of benefits. It is alleged that the commissioners have assessed no benefits on lands situated more than three miles from either of the roads to be improved, and that for that reason the assessments should be treated as arbitrary and unjust, thus making the burden too heavy on the lands nearer the road. The lawmakers prescribed the boundaries of the district and the roads to be improved, but left it to the commissioners of the district to assess the benefits to be deriv ed from the several improvements. The Legislature did not undertake to determine the extent of the benefits, and, since the authority of the commissioners to determine the benefits is complete, their action will not be disturbed in the courts unless there has been an arbitrary abuse of the power thus vested in the commissioners. The statute provides that the commissioners shall assess the benefits and give notice thereof so that the property owners may be given a hearing, and further provides that any person who feels aggrieved by the action of the commissioners may sue in the chancery court to set aside the assessments at any

ever, it is not proven in the present case reasonable, nor can we say from the face of that the assessments were arbitrary and unthe assessment that it is not fair and just. The exclusion of lands lying three miles or more distant from one of the roads to be improved, or rather the finding that such lands would not derive any substantial benefits from the improvement, cannot be said to be obviously erroneous.

Neither the validity of the statute, nor the proceedings thereunder, is attacked in any other respect.

Decree affirmed.

BROOKS v. TURNER. (No. 195.)
(Supreme Court of Arkansas. March 4, 1918.)
DESCENT AND DISTRIBUTION 71(7)-RE-
LATIONSHIP-QUESTION FOR JURY.

the evidence, a question for the jury whether
In action for possession of land, held, under
plaintiff was a legitimate descendant of a cer-
tain deceased person.

Appeal from Circuit Court, Phillips County; J. M. Jackson, Judge.

Action by Sallie Brooks against Hosea Turner to recover possession of land. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

This action was instituted by the appellant against the appellee to recover the possession of certain lands in Phillips county, Ark. Appellant alleged that Henry Watson was the owner of the lands in controversy; that he died in July, 1905, while in possession of the lands; that Lucy Watson, his widow, continued to live on the land until her death which occurred March 22, 1910; that Julia McKizzick was the daughter and only child of Henry Watson; that appellant was the daughter and sole heir of Julia McKizzick, and thus the granddaughter of Henry Watson; that Julia McKizzick, appellant's mother, died many years prior to the death of Henry Watson, leaving appellant as

her only heir at law; that appellant was, his brother-in-law, testified that appellant therefore the owner and entitled to posses- was the granddaughter of Watson. Witnesssion of the land in controversy.

WOOD, J. (after stating the facts as above). Several witnesses, some of them close neigh- | Watson. bors and friends, who had known Watson for many years, and who were well acquainted with his family, and one of whom was