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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 forbid. limits 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 The case of Warren v. Tanner, 56 S. W. that it was not necessary to decide whether 167, 21 Ky. Law Rep. 1678, which is annotated or not any or all of those things would be in volume 49, L. R. A. p. 248, is strikingly considered as impairing the franchise under similar, under the facts, to the instant case. the facts of that case. In upholding the right Mr. Justice White, speaking for the Kentucky of any citizen to do his own ferrying, the Court of Appeals in that case said: court said that the exercise of this right did "In the case at bar some sixty odd persons not impede the exercise of a ferry franchise combine and establish for themselves a ferry, in another or impair its value, and that the hire a common ferryman, and, presumably, pay value of the franchise depends upon the right this is but a device resorted to, to avoid the pay

equally for the whole expense. In our opinion, to transport such of the general public as ment of ferriage at appellees' ferry; and this may use the convenience, and not upon any is not one of the rights of the citizen, reserved right to compel those to use it who did not for himself and family, to cross and recross, or

to the free navigation of the river. We are of l'equire it.

opinion that this common ferry established, The Supreme Court of California, in the though used by appellants exclusively for themcase of Vallejo Ferry Co. v. Solano Aquatic selves and families, is a violation of the excluClub, 165 Cal. 255, 131 Pac. 864, Ann. Cas. and is such a violation as will be enjoined."

sive grant of the privilege granted to appellees. 1914C, 655, upheld this right upon the part of the citizen, and, in doing so, said that any under consideration is that of Blanchard v.

Another case quite similar to the case now loss of patronage resulting therefrom to the owner of the ferry franchise was damnum Abraham, 115 La. 989, 40 South. 379. There absque injuria. That court, as well as our

a number of subscribers, for their own purown and a number of others, has given the pose, had purchased a boat and employed a reasons for the grant of the exclusive privi- ferryman to operate it. In holding that this lege of ferrying to the owner of the franchise. arrangement constituted a violation of the It is because of the service which the public ferry franchise, the Supreme Court of Louisiexacts in consideration thereof and the bond

ana there said: required for the performance of these serv- the former patrons of plaintiff's ferry cannot

“A combination to cross a large majority of ices. The ferryman must stand ready, sub- be assimilated to the case of an individual crossject to such reasonable regulations as are ing himself and family or a few friends or neighprescribed, to serve the public and to serve bors as a matter of accommodation.” all alike. Competition might make the ferry And the operation of the company ferry unprofitable, and its maintenance impossible, was there enjoined. and competition is therefore excluded.

Upon the authority of these cases, as yell In the California case, supra, it was urged as upon a consideration of the principles inthat what one man may do, many may do involved, we are led to the conclusion that the combination. But the court pointed out that arrangement under which the company ferry this maxim or phrase of the law, like many was operated constituted an infringement others of a similar nature, had its well-de- upon the plaintiff's ferry franchise, and the fined limits, and that it was not always nor operation of this company ferry should thereuniversally true that what one may do, many fore have been enjoined. may do in combination, but that it was only The decree of the court below will therethose things which work no invasion of fore be reversed, and the cause remanded, rights, when done in combination, that may with directions to enter a decree in accordbe so done. The court used the illustration ance with this opinion.

the exhibit thereto described the above-menBLASINGAME et ux. v. LOWDERMILK. tioned 40-acre tract of land, and that the (No. 204.)

original precedent for the decree as approved (Supreme Court of Arkansas. March 4, 1918.) by the chancellor did not include it. 1. MORTGAGES 386–FORECLOSURE-JURIS- Upon the hearing of the exceptions the DICTION OF CHANCERY.

court found that the original mortgage and Chancery courts have jurisdiction to fore- the note which it secured had been filed with close mortgages. 2. EQUITY 152-AVERMENTS OF COMPLAINT

the papers in the case upon the trial of the -CONTROL BY EXHIBITS.

cause, and that after the decree of foreclosIn a suit in equity the exhibits, as a copy ure was rendered the attorney for the de of the mortgage sought to be foreclosed, control fendant prepared a precedent therefor, which the averments of the complaint.

was submitted to the attorney for the plain3. MORTGAGES mm 195—FORECLOSURE-AMENDMENT OF DECREE AMENDMENT of COM- tiff, who discovered that the 40-acre tract PLAINT OR EXHIBIT.

was not included. A comparison was made In a suit to foreclose a mortgage which cor- with the original mortgage, which was found rectly described a 40-acre tract omitted by cler- to contain the omitted 40-acre tract, and ical misprision from the decree of foreclosure, this tract was added to the decree which had the court could properly proceed, though a copy of the mortgage, an exhibit, did not include been prepared for the chancellor's approval, such tract, by amending the decree of foreclo- and, as thus amended, it was approved by sure and sale prepared for entry of record to in the chancellor and delivered to the clerk, clude the tract; such action being equivalent to permission given to amend the complaint or who entered it in the records of the court. exhibit itself.

The report of sale was duly approved, and 4. MORTGAGES 458–AMENDMENT OF COM- this appeal has been prosecuted to reverse PLAINT OR EXHIBIT.

that action. In suit to foreclose a mortgage, it would have been proper for the court to grant permis

In the brief of appellants it is said : sion formally asked to amend the complaint or "Of course, the appellants on the hearing of the copy of the mortgage, an exhibit, to correct the exceptions to the sale did not direct their a clerical omission of part of the land involved. proof to the question of how and when the land

in controversy was inserted in the original Appeal from White Chancery Court; Jno. mortgage, for it was then and is now their theE. Martineau, Chancellor.

ory 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 con

declare a lien upon the land and order its sale Doyle, deceased, against D. A. Blasingame firmed." and wife. From decree of foreclosure, as And the contention is made that the deamended, defendants appeal. Affirmed.

cree ordering the sale and the subsequent J. N. Rachels and Jno. E. Miller, both of confirmation thereof is void because neither Searcy, for appellants. Brundidge & Neelly, was based upon any pleading filed in the of Searcy, for appellee.

cause. Appellants testified that they did not

know the 40-acre tract was involved in the SMITH, J. Appellee brought this suit as suit until a short time before the sale, and executor of the estate of D. M. Doyle, to fore that they attended the sale and objected to close a mortgage given by D. A. Blasingame the offering of this tract. and his wife to secure the payment of the [1, 2] In support of his position that the sum of money there mentioned due Doyle court had no jurisdiction to order the sale of by Blasingame. The complaint alleged that the 40-acre tract, counsel cite and rely upon a copy of the mortgage was filed as an ex- the case of Falls v. Wright, 55 Ark. 565, 18 bibit to the complaint; and, while both un- S. W. 1044, 29 Am. St. Rep. 74. It was there dertook to describe the land mortgaged, said that to constitute jurisdiction three esneither, in fact, described the northeast quar- sentials must exist: First, the court must ter of the northwest quarter of section 24, have cognizance of the class of cases to which township 6 north, range 10 west. An answer the one to be adjudged belongs; second, the was filed, and a reference had to a master, proper parties must be present; third, that to whose report exceptions were filed; but the point decided must be, in substance and upon a final hearing the indebtedness was effect, within the issue. There can be no adjudged and a foreclosure of the mortgage question about the jurisdiction of chancery ordered. The decree to that effect described courts in foreclosure proceedings; and no the northeast quarter of the northwest quar- contention is made that proper parties are ter of section 24, together with the lands de- not before the court. Does the third essenscribed in the complaint, and this 40-acre tial also appear? This is a proceeding to tract, together with the other lands, were foreclose the mortgage which described the sold pursuant to the terms of the decree. The land in controversy. Being a suit in equity, special commissioner appointed to make the the exhibits control the averments of the sale reported the sale of the lands to the complaint. Swift v. Erwin, 104 Ark. 459, executor in succession. Exceptions to the 462, 148 S. W. 267, Ann. Cas. 1914C, 363, and confirmation of this report were filed upon Goldsmith Bros, v. Moore, 108 Ark. 362, 364, the grounds that neither the complaint nor | 157 S. W. 733, and cases there cited.

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

[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 40

new assessment. acre tract was a mere clerical misprision. Appeal from St. Francis Chancery Court; The relief prayed was the foreclosure of a Edward D. Robertson, Chancellor. particular mortgage, which correctly describ Suit by L. C. Marshall and others against ed the omitted land, and the action of the J. D. Baugh and others. From the decree court, under the circumstances of the case, rendered, plaintiffs appeal. Affirmed. in amending the decree which had been pre

Mann, Bussey & Mann, of Forrest City, for pared for entry of record, was tantamount

appellants. Morrow & Harrelson, of Forrest to permission given to amend the complaint

City, for appellees. or exhibit itself. A different issue would be presented if we had before us the question

MCCULLOCH, C. J. A special statute crewhether the mortgage sought to be foreclosed ating three separate road districts in St. did, in fact, embrace the particular 40-acre Francis county was enacted by the General tract. No such issue is involved here or was Assembly of 1917. Each of the districts covraised below. Had formal permission been asked to amend the complaint or the exhibit ers separate territory and was created to im. thereto to correct a clerical omission, the prove certain roads. One district covers all court would, no doubt, have granted that per- and certain public roads therein are to be im

of the county west of the St. Francis river, mission. It would have been proper to do so, and it would put form above substance to east of the St. Francis river and north of the

proved. Another district covers the territory now hold that this should have been done line of railroad of the Chicago, Rock Island & before the precedent for the decree was cor-Pacific Railroad Company. Certain public rected.

roads are to be improved in that district. Decree affirmed.

The third district covers the territory east of the St. Francis river and south of the line

of said railroad. The three districts are MARSHALL et al. v. BAUGH et al.

entirely separate and distinct, each for the (No. 193.)

improvement of different roads, which are to (Supreme Court of Arkansas. March 4, 1918.) be improved at the expense of property own1. STATUTES 39 — ENACTMENT RECORD- ers in the respective districts. An attack is SUFFICIENCY.

made in this suit on the validity of the statThe mere fact that the House journals disclosed that a bill had been read as required by ute and the proceedings thereunder so far law, and the title in each case in the record as relates to the third district. was correct, but the number of the bill was

[1] The first point of attack is that the erroneously set down on its third reading, did statute was not legally enacted for the reanot invalidate the enactment; such error being a clerical misprision.

son that the journals of the House of Rep2. HIGHWAYS 90 — IMPROVEMENTS-STAT- resentatives fail show that it was read on UTES-VALIDITY.

different days. The only defect in the legis. Acts 1917, vol. 1, p. 814, § 1, creating road lative records concerning the passage of this improvement districts in St. Francis county, and providing for improvement of "a public bill is that the journals of the House, where road beginning at a point where the road from the bill originated, do not give the correct Madison through Widener to the Crittenden number of the bill showing its third reading county line crosses the line between” certain and final passage. The bill was numbered townships, terminating at near a certain town, and enumerating certain sections through 346, and the journals of the House show that which the road passed, was not invalid because it was introduced and on a certain day read two of the sections enumerated were within an- twice, the rules being suspended, but on another district; the enumeration of such sections being for the purpose of identifying the road other day's proceedings it appears that House and not of authorizing work upon those sec- Bill No. 246 was read the third time and tions.

placed on its final passage and passed. The 3. HIGHWAYS Eww140 — IMPROVEMENTS-SPE- journals of the House properly recited the CIAL ASSESSMENT-DISCRETION OF COMMIS- title of the bill

, and the only defect was in SIONERS.

Under Acts 1917, vol. 1, p. 814, as to road stating the number. There is a slight disdistricts, section 12 of which provides for as- crepancy in the Senate journals concerning sessment of properties, the district commis- the correct title of the bill; but this, as well sioners may assess the benefits, and the mere fact that they assessed no benefits upon lands as the error in the House journals as to the more than three miles from either of the roads number of the bill, merely constituted a clerto be improved did not show an arbitrary as- ical misprision, which does not affect the sessment.

validity of the statute, as an examination of 4. HIGHWAYS C144Road DISTRICTS-SPECIAL ASSESSMENTS-ARBITRARY ASSESSMENT

the whole of the legislative records show -EFFECT.

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 invalid, the fact that the commissioners made an

ture.

Butler V. Kavanaugh, 103 Ark. 109, erroneous or arbitrary assessment would not | 146 S. W. 120; Mechanics' Building & Loan

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

or

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 assess[2] It is next contended that the statute is ments of benefits "shall be found invalid by void so far as it relates to this district be- the court, within the time limited, the comcause it authorizes the construction of a road missioners of the district in which such inextending outside of the territorial bound- valid assessment of benefits or da ages was aries of the district. The designation of the made, shall proceed to make another assessroad in question is in the following language: ment of that tract or parcel of real property

"Also the public road beginning at a pointunder the direction of said court; and if where the road from Madison through Widener the entire assessment in either of said disto the Crittenden county linc crosses the line tricts is set aside by any court, the combetween township 5 north, range 4 east, and missioners thereof shall proceed to make a township 5 north, range 5 east, thence in a northerly direction through sections 25, 24, 13, new assessment in the manner and after the 12, 1, township 5 north, range 4 east; sections notice herein provided for the original as30, 18, 7, 6, township 5 north, range 5 east

sessment." Section 12. 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 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

compelled to make new assessments. How. trict, except section 1, in township 5 north, range 4 east, and section 6 in township 5 ever, it is not proven in the present case north, range 5 east. Those two sections are

that the assessments were arbitrary and unnorth of the railroad, and are therefore reasonable, nor can we say from the face of within the boundaries of district No. 2. The the assessment that it is not fair and just. manifest purpose of the lawmakers was to The exclusion of lands lying three miles or authorize the construction of that portion of more distant from one of the roads to be the road within the boundaries of the dis- improved, or rather the finding that such trict and that the improvement should ter- lands would not derive any substantial beneminate at the railroad which forms one of fits from the improvement, cannot be said to the boundaries. The two sections mentioned

be obviously erroneous. above which lie outside of the district were

Neither the validity of the statute, nor the either mentioned by inadvertence, or they proceedings thereunder, is attacked in any

other respect. were described merely as part of the de

Decree affirmed. scription 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 BROOKS v. TURNER. (No. 195.) the railroad.

(Supreme Court of Arkansas. March 4, 1918.) [3] The last attack made in the case on the DESCENT AND DISTRIBUTION 71(7)-REproceedings relates to the assessments of

LATIONSHIP-QUESTION FOR JURY. benefits. It is alleged that the commission- the evidence, a question for the jury whether

In action for possession of land, held, under ers have assessed no benefits on lands sit- plaintiff was a legitimate descendant of a ceruated more than three miles from either of tain deceased person. the roads to be improved, and that for that

Appeal from Circuit Court, Phillips Counreason the assessments should be treated ty; J. M. Jackson, Judge. as arbitrary and unjust, thus making the

Action by Sallie Brooks against Hosea burden too heavy on the lands nearer the Turner to recover possession of land. From · road. The lawmakers prescribed the bound- a judgment for defendant, plaintiff appeals. aries of the district and the roads to be im

Reversed and remanded. proved, but left it to the commissioners of the district to assess the benefits to be deriv.

This action was instituted by the appeled from the several improvements. The Leg. lant against the appellee to recover the posislature did not undertake to determine the session of certain lands in Phillips county, extent of the benefits, and, since the author- Ark. Appellant alleged that Henry Watson ity of the commissioners to determine the

was the owner of the lands in controversy ; benefits is complete, their action will not that he died in July, 1905, while in possesbe disturbed in the courts unless there has sion of the lands; that Lucy Watson, his been an arbitrary abuse of the power thus widow, continued to live on the land until vested in the commissioners. The statute her death which occurred March 22, 1910; provides that the commissioners shall as that Julia McKizzick was the daughter and sess the benefits and give notice thereof so only child of Henry Watson; that appelthat the property owners may be given a lant was the daughter and sole heir of Julia hearing, and further provides that any per- McKizzick, and thus the granddaughter of son who feels aggrieved by the action of Henry Watson; that Julia McKizzick, appelthe commissioners may sue in the chancery lant's mother, died many years prior to the court to set aside the assessments at any death of Henry Watson, leaving appellant as

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

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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.

es testified that they knew appellant was The appellee answered, denying that appel. Watson's granddaughter because Watson told lant was the owner of the land, but admitted them so. She lived with him, and he treated that Henry Watson was the owner and de- her as if she were his granddaughter. The raigned title from him by an oral contract appellant herself, and at least one other witto purchase and possession taken in pursu-ness, testified that Emaline Peters, appelance of such contract and the payment of the lant's grandmother, was the wife of Henry consideration agreed upon as the purchase Watson. In Kelly Heirs et al. v. McGuire price. Appellee pleaded the seven-year stat- & Wife et al., 15 Ark. 555, we held, quoting ute of limitations. The appellee admitted the syllabus : death of Henry Watson, also of Lucy Watson, "Reputation or hearsay is admissible in all and of Julia McKizzick. But appellee denied matters of pedigree, and so the repeated dec.

laration of the father that he had married, and that Julia McKizzick was the daughter of by the marriage had two [legitimate) children, Henry Watson, and denied that appellant naming them, his recognition of them as his was the only child of Julia McKizzick, and legitimate children, their recognition of him as denied that she was the granddaughter of the marriage of the father and the legitimacy

are sufficient to prove Henry Watson. He denied that appellant of the children." was entitled to the possession of the land.

In that case we said : Appellant testified that "it was commonly

"Declarations of members, or relatives of the known that witness' grandmother's name was family, or general repute in the family, are Emaline Peters, and that before her marriage good evidence to establish marriage, death, birth, to Peters she was Emaline Watson, and the heirship, and the like, and may be proved by

others as well as surviving members of the fami. wife of the witness' grandfather, Henry Wat- ly.” 15 Ark. 605. son,” Appellant's mother's name was Julia McKizzick.

See, also, Wilson v. Brownlee, Homer & Henry Watson was Julia McKizzick's father, and the grandfather of wit- Co., 24 Ark. 587, 91 Am. Dec. 523.

In 10 R. C. L. p. 963, § 140, it is said : ness. Appellant lived with her grandfather until she was 14 or 15 years of age. Another rule relates to family tradition or pedigree.

"Another recognized exception to the hearsay witness testified that he had known Henry Such evidence is admitted because it is the best Watson since 1886. He visited Watson often, the nature of the case admits; and because and knew Sally Brooks, and knew that she greater evils are apprehended from the rejec

tion of such evidence than from its admission, was Henry Watson's granddaughter. He got the law has relaxed the general rules, and alacquainted with her when she was living at lowed the exception. The rule of law admitWatson's. Watson told witness that she ting hearsay, evidence in cases of this sort

rests upon the presumption that the declarawas his granddaughter. Watson had four or tion, family history, or family tradition, confive wives, one of whom was named Emaline, stituting the evidence offered, comes from perwho afterwards married Peters. Watson sons having competent knowledge in respect to claimed them as his wives, and lived with

the subject matter of the declaration, family

history, or tradition." them all at different times. Several wit

And again : nesses testified they knew Sally Brooks, appellant, to be the granddaughter of Henry

“Reputation of marriage, unlike that of oth

er matters of pedigree, may proceed from perWatson. They got acquainted with her when sons who are not members of the family. The she was a small girl living with Watson, and reason of the distinction is to be found in the Watson told them Sally Brooks was his public interest which is taken in the question of

the existence of a marriage between two pargrandchild.

ties, the propriety of visiting or otherwise The court found that the appellant had treating them in society as husband and wife, failed to establish the relationship of Henry the liability of the man for the debts of the woWatson and Sally Brooks, and instructed the man, the power of the latter to act sua jure,

and their competency to enter into new matrijury, over the objection of the appellant, to monial engagements. Section 142. return a verdict in favor of appellee, which

See, also, 16 Cyc. p. 1223 et seq., 1228. was done. From a judgment dismissing ap

The court therefore erred in holding as a pellant's complaint, this appeal is duly prose- matter of law that appellant had failed to cuted.

establish that she was the granddaughter of Moore, Vineyard & Satterfield, of Helena, Henry Watson, and in instructing the jury for appellant. Fink & Dinning, of Helena, for to return a verdict in favor of the appellee. appellee.

It was an issue for the jury under the evi

dence to determine whether or not the apWOOD, J. (after stating the facts as above). pellant was the granddaughter of Henry Several witnesses, some of them close neigh- | Watson. bors and friends, who had known Watson For the error indicated, the judgment is for many years, and who were well acquaint- reversed, and the cause remanded for a new ed with his family, and one of whom was trial.

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