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(248 S.W.) fixed stumpage prices had been released from wholly for the jury, and it is an invasion of the vendor's lien retained in the deed. At their province to tell them that it may disrethe time Briney purchased the logs from sard a witness' entire testimony when they be. Mullinix and during the time he manufac- lieve he has testified falsely as to a material

fact. tured the lumber, no forfeiture was declared by Burr and Poole. On the contrary, after 2. Criminal law 757(7) - Instruction on default in the payment of the purchase credibility not objectionable as telling jury to money, they made continuous efforts to col disregard witness' testimony if he testified lect same. They permitted Briney to manu falsely as to material fact. facture the down logs, which he had pur An instruction on credibility of witnesses chased from Mullinis, into ļumber for appel that if any witness has willfully sworn falsely lant. We think Burr and Poole clearly es- to any material facts to disregard his whole topped, by this conduct, from asserting a testimony "if you believe it to be false, or belien upon the down logs for which it had believe that part which you regard to be false,".

lieve that part which you think true, and disbeen paid according to stumpage prices. Ap- cannot be criticized as telling the jury that if pellant acquired the right to the possession they find that any witness has willfully sworn of the lumber, upon which it had made ad-falsely to any material fact they may disrevances, from Briney. It was therefore un- gard all the testimony of such witness. necessary for appellant to purchase the pretended claim from Burr and Poole to the

Appeal from Circuit Court, Sebastian lumber in order to get possession thereof.

County; John Brizzolara, Judge. [4, 5] Appellant also contends that the court erred in stating the account between Jack Roberts was convicted of selling init and Briney. The alleged error consists toxicating liquors, and he appeals. in the fact, first, that the court made no al-firmed. lowance to appellant on account of there be

Cravens & Cravens, of Ft. Smith, for aping more than 20 per cent. of No. 2 common,

pellant. in the lot of lumber. The record fails to

J. S. Utley, Atty. Gen., and Elbert Godshow that appellant sustained any damage on this account; second, that the court win and W. T. Hammock, Asst. Attys. Gen.,

for the State. charged appellant $15 per thousand for No. 3 lumber. The contract did not specify any price for No. 3 lumber. Testimony adduced HART, J. Jack Roberts prosecutes this was conflicting as to the value of that grade appeal to reverse a judgment of conviction of lumber, and the court's finding that it was against him for the crime of selling intoxworth $15 per thousand is not contrary to icating liquors in the Ft. Smith district of the clear preponderance of the evidence. Sebastian county, Ark., on the 15th day of

[6, 7) Appellant's last contention is that July, 1922. the court erred in dismissing his cross-bill His only assignment of error is that the against George A. Booser, George A. Burr, (court erred in giving instruction No. 2, which and W. 0. Poole. The record does not show is as follows: that Booser had any interest in the litiga

"You are the sole judges of the credibility tion, and he disclaimed any. The timber of the witnesses, and the weight that should deed procured by appellant from Burr and be given to their testimony. It is your duty to Poole to the lumber in question was a quit reconcile the statements of these different witclaim deed. It is true, it contained an agree nesses, so as to believe as much of this tes. ment to defend all suits which might be timony as you can; but if you cannot do so brought by Mullinix, or his assignees, for the on account of contradictions, then you have the purpose of defeating title to the timber con- right to believe the witnesses whom you think veyed. The expense of defending the suit the most worthy of credit, and disbelieve the

witnesses whom you believe from the evidence was not made an issue in the case. The

to be the least worthy of credit. And if you Cross-bill against all three of the parties was find any witnesses have willfully sworn falsely properly dismissed.

to any material facts in this case, you may disNo error appearing, the decree is affirmed. regard their whole testimony if you believe it

to be false, or believe that part which you think true, and disbelieve that part which you regard

to be false. And in weighing a witness' testiROBERTS V. STATE. (No. 202.) mony you may take into consideration his can

dor or lack of candor, his knowledge about the (Supreme Court of Arkansas. March 5, 1923.) thing he testifies, the reasonableness or unrea1. Criminal law mw 757 (7)--Instruction to dis. sonableness of his testimony, and his interest, regard testimony of witness testifying false. if any be shown, in the result of your verdict.” ly as to one material fact held to invade

Counsel for the defendant claim that the The credibility of a witness who testifies instruction is open to the objection that it falsely as to one or more material facts is tells the jury that if it finds that any wit

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

jury's province.

ness has willfully sworn falsely to any ma-12. Municipal corporations ww124(1)-Act proterial fact in issue, it may disregard all the viding that board of improvement district evidence of such witness if it sees fit to do

shall appoint collector therefor not repealed

by later act. so and rely upon the decision of Mangrum v. State (Ark.) 245 S. W. 816, and cases cited

Crawford & Moses' Dig. $ 5702, providing for a reversal of the judgment.

for the appointment of collectors of improveWe do not think that the instruction is of provements of all municipalities except the ci

ment districts by the respective boards of imsimilar import to any of the instructions ties of Little Rock and Pine Bluff was not direferred to in those cases. While we do not rectly repcaled or annulled by Acts 1901, p. 264 approve the form of the instruction, we do (Crawford & Moses' Dig. $ 5669) providing that hold that it is free from the criticism of the the city clerk shall deliver to the "city" collecinstructions in the cases cited.

tor a copy of assessments of benefits and war[1] The object of all testimony is to es

rants for collection, there being no reference

to section 5702 but reference being made to tablish the truth, and the jury is the judge Sandels and Hill's Digest, $ 5337, which relates of the credit to be given to the witnesses. to the method of certifying the assessments to The true rule is that the credibility of a the city clerk, and the provision for certifying witness who knowingly testifies falsely as the assessment merely prescribes a form of to one or more material facts is wholly a warrant in which there occurred a clerical error matter for the jury. It may believe or dis with respect to certifying to the city collector believe his testimony as to other facts, ac- instead of the collector of the improvement dis

trict. cording as it deems such testimony worthy or unworthy of belief, Hence it is an in- 3. Statutes om 158—Repeals by implication not vasion of the province of the jury to tell it

favored. that it may disregard the entire testimony Repeals by implication are not favored. of a witness whom it may believe to have 4. Municipal corporations Com 173(3)-City col. testified falsely as to a material fact.

lector held not to be "collector for improve[2] The present instruction is not open to ment districts" as regards liability on official that criticism, because it tells the jury that bond. if it believes any witness has testified falsely In view of Crawford & Moses' Dig., & 5702, to a material fact it may disregard his whole providing for the election of collectors of imtestimony if it believes it to be false, or it provement districts by the respective boards of may believe that part which it thinks true the cities of Little Rock and Pine Bluff, the

improvements in all municipalities except in and disbelieve that part which it regards clerk and the city collector of North Little false. By this the court meant to tell the Rock was not collector of improvement disjury that if it found a witness to have will tricts in such city, and bond given for faithful fully testified falsely on a material point, it performance of his duties to the city did not might disregard his whole testimony if it cover a defalcation of funds belonging to imbelieved the whole of it to be false.

provement districts collected by him. Therefore the instruction was technically correct, and an instruction in substantially

Appeal from Pulaski Chancery Court, the same language has been recently ap

.Jno. E. Martineau, Chancellor. proved in the case of Bryant v. State (Ark.) Action by the City of North Little Rock 247 S. W. 56.

against the Ætna Casualty & Surety ComIt follows that the judgment will be af- pany and others. From decree rendered, defirmed.

fendant named appeals, and plaintiff files a cross-appeal. Reversed and dismissed as to defendants not named, and decree entered for plaintiff against defendant named.

Roscoe R. Lynn, of Little Rock, for apETNA CASUALTY & SURETY CO. V. CITY OF NORTH LITTLE ROCK. (No. 184.)

pellant.

J. F. Wills, of North Little Rock, and Rose, (Supreme Court of Arkansas. Feb. 26, 1923.) Hemingway, Cantrell & Loughborough, of

Little Rock, for appellee. 1. Municipal corporations On 173(1)-On col.

lector's defalcations fund from different ac MCCULLOCH, C. J. R. W. Miller was, in counts jointly deposited divided pro rata. April, 1920, elected to the office of city clerk

Where funds collected by a defaulting city and city collector of North Little Rock (a collector from the city and from improvement city of the first class), and in accordance districts were jointly deposited in his name as with an ordinance he executed his official collector, and it was impossible to show from bond to the city in the sum of $5,000 with what source the funds came, further than that appellant as surety thereon, conditioned that they were collections for the benefit of the city he shouldand the districts, to determine the shortage to each, it was proper to divide the joint fund "faithfully discharge and perform the duties pro rata, in accordance with the amounts due of his office, and at the expiration of his terin to each.

of oflice shall render unto his successor in of

(248 S.W.) fice a correct account of all sums of money, 1 hereinbefore stated, and it was also proved books, goods, valuables, and other property, as that the funds collected by Miller from the it coines into his custody, as such clerk and col city and districts were jointly deposited in lector of said city of North Little Rock, Ar- bank in his name as collector. It was imkansas, and shall pay and deliver to his successor in office, or any other person authorized possible to show from what particular source to receive the same, all balances, sums of mon- these funds came, further than they were coles, books, goods, valuables and other property lections for the benefit of the city and the

districts. which shall be in his hands and due by him."

There is no way, from the tes

timony, to separate the funds, and, it being Miller resigned in April, 1921, and it was shown to be a joint fund, it can only be difound that he was short in his accounts to vided pro rata in accordance with the the city and also to three separate local amounts due by Miller to each. improvement districts for which he had

In the recent decision of this court in collected funds. “According to the audit of Miller v. State (Ark.) 243 S. W. 958, which Miller's account, which bas been found to was a criminal prosecution against R. W. be correct, he owed the city of North Little Miller for embezzling funds of the city of Rock $5,531.63, and also owed the three im- North Little Rock, we decided, under the provement districts, in the aggregate, the same proof as is involved in this case, that sum of $6,734.37, and he had in a bank, to the funds belonged to the city and the imhis credit as collector, the sum of $3,843.61. provement districts jointly, to be credited pro

This action was instituted in the chan- rata on the balance due the city and the cery court of Pulaski county by the city of improvement districts. We think tħat the North Little Rock against appellant, to re-chancery court was therefore correct in ascorer the amount on the bond. In the com- certaining the amount of shortage in Miller's plaint, the facts were set forth concerning accounts with the city and the several imthe amount of funds on hand in bank to the

provement districts. credit of the collector, and an accounting [2] The principal question in the case, was asked as between the city and the im- however, is whether or not the bond protects prorement districts concerning the application the improvement districts as well as the city of these funds. The improvement districts so as to permit the improvement districts Here joined as defendants in the action, and to share in the recovery. The ordinances of each filed a cross-complaint asking for re- the city of North Little Rock provide that covery on the bond of the respective pro rata the city collector shall give bond in the sum of the liability to each of the districts.

of $5,000, conditioned that he will account The chancery court decided that each of for and pay all funds coming into his hands the improvement districts was entitled to pro- which belong to the city or any improvetion under the bond jointly with the city of ment districts within the city; but the bond North Little Rock and to share in the re- in this case was executed to the city alone covery pro rata according to their respec. and, unless the city collector is, under the tive amounts due from Miller, the principal statutes of this state, constituted as the in the bond. The court in its decree credited collector of improvement districts in a city on Miller's account with the city and each of of the first class, the bond does not afford the improvement districts a pro rata part of indemnity to the districts for moneys receivthe fund in bank, and, after thus ascertained by the city collector. This phase of the ing the net amount of Miller's shortage with case, therefore, comes down to the question each party, rendered a decree against appel- whether or not the statutes of this state lant for a recovery by the city and each of constitute the city collector as the collector the improvement districts of their pro rata

of local improvement districts. part of the liability under the bond. Under

Our laws governing the organization of this decree the recovery against appellant was as follows:

improvement districts and providing for the

procedure in their operation began with City of North Little Rock.....

$2,198 33

the statute enacted by the General Assembly Street improvement district No. 15........... 1,209 77 Sewer improvement district No. 1......

in the year 1881. Acts of 1881, p. 161, MansStreet improvement district No. 16..

620 82 field's Digest, § 825 et seq.; Sandels & Hill's Street improvement district No. 18.

197 25 Digest, S. 5321 et seq. A section of that

statute (Sandels & Hill's Digest, $ 5360) pro$5,000 00

vided that the board of improvement of local Appellant prosecuted its appeal to this improvement districts should appoint the colcourt, and the city of North Little Rock has lector and treasurer of the district, but that

section was amended by Act April 19, 1895 [1] The first question arising in the case (Acts of 1895, p. 161), so as to provide that relates to the apportionment of the credits in cities of the first class the city collectors for the funds in bank so as to ascertain the should collect the improvement district asamount of shortage in Miller's account with sessments. The last-mentioned statute was the city of North Little Rock and the local again amended by Act February 11, 1997 improvement districts.

The amounts due (Acts of 1897, p. 23), re-enacting the old statfrom Miller were proved beyond dispute, as ute to the effect that the collector and treas:

773 83

Total

cross-appealed.

urer of local improvement districts should be, Hill's Digest, the statute provided that as. appointed by the board of improvement, but sessments for local improvements should be providing that the cities of Little Rock and according to valuation as appraised for genPine Bluff should have the power by ordi-eral taxation purposes, and that section pronance to make the city collector ex officio vided that, immediately after the passage collector of improvement districts. The last of the ordinance authorizing the improvementioned statute has been brought forward ment, the city clerk should procure, at the by subsequent digesters, and it appears in expense of the district, a copy of the last Crawford & Moses' Digest as section 5702. assessment made by the county assessor and

It is contended on behalf of counsel for deliver the same to the collector of the imthe improvement districts that this statute provement district with his warrant attached was amended by Act May 3, 1901 (Acts of directing the collection of the assessments. 1901, p. 264), so as to provide that in all The manifest purpose of the amendment of cities the city collector shall be the collector section 5337 was to give further time for the for the improvement districts. The section certification of the list of assessments, give of that statute which it is contended amends | ing 40 days after the passage of the ordiAct 1897, supra, reads as follows:

nance, and also providing that there should “Sec. 7. That section 5337 of said digested by the assessors of the district instead of

be certified a list of assessments as apprais[Sandels & Hill's] be amended so as to read as follows:

a list of valuation made to the county asses"That within forty days after the passage of sor as required under the former statute, said ordinance, unless the time be extended by That part of the section which prescribes the city or town council, the city clerk, or town the form of the certificate was a mere forrecorder shall deliver to the city collector a mula and nothing more, and it cannot be copy of said assessment of benefits containing presumed that the lawmakers intended in a description of said blocks, lots and parcels this incidental way to repeal or amend an of land in said district, and the amount as important feature of the former statute. sessed on each, duly extended against each lot, block or parcel of land, and shall deliver it with If such had been the intention, the lawmakers his warrant attached thereto to the city or

would doubtless have adopted more direct town collector, which warrant may be in the language expressing that intention. As an following form:

indication that such a change was not in “State of Arkansas, City (or Town) of

the minds of the framers of the statute in SS.:

prescribing the formula for certifying the "To the Collector of said City (or Town) of assessments, it was provided that the war

rant should be directed to the collector of the "You are hereby commanded to collect from city or town, whereas there is no such office the owners of real property described in the as collector of an unincorporated town. The annexed copy of Ordinance No. , the assessments on the same and as extended thereon and that office pertains only to cities. If

statute does not provide for any such office for the current year and to pay to the treasurer the statute in question is construed to reof local improvement district No. of said city (or town) within sixty days from this peal the former statute, then there is no prodate.

vision at all for a collector for local improve"Witness my hand and seal of office on this ment districts in incorporated towns. day of - 19

We are constrained, therefore, to hold that “And like writs shall be issued annually until | Act 1901, supra, was not intended to repeal said local assessment shall be fully paid." any former statute, but that the provision

for certifying the assessments merely pre[3] That section has also been brought for- scribed a form in which there occurred a ward in Crawford & Moses' Digest as section clerical error with respect to certifying to 5669. There is no direct repeal by this stat- the city collector instead of to the collector ute (Act 1901) of the former statute (1897) of the improvement district. authorizing the board of improvement to ap [4] We hold, in accordance with this view, point the collectors. If the repeal or amend that Act 1897 (Crawford & Moses' Digest, & ment has been accomplished, it must be by 5702) is still in force and provides for the implication only, and such repeals are not election of collectors of improvement districts favored. That principle is elemental and by the respective boards of improvement in needs no citation of authorities to support it. all municipalities except in the city of Little This court has often announced that rule of Rock and in the city of Pine Bluff. Miller construction. There is no reference made in was, therefore, not a collector of the imthis statute to Act 1897, but, on the contra-provement districts de jure, and the bond ry, the section under the consideration ex- did not cover his defalcations as to funds repressly refers to another statute, viz. sec- ceived by him which belonged to the improvetion 5337 of Sandels & Hill's Digest, which ment districts. Having received the funds, relates merely to the method of certifying the however, for the benefit of the improvement assessment by the city clerk. At the time districts, he became, in fact, a bailee and

:

(248 S.W.) ment, as we announced in the former opin- I livered to the consignee without collecting the ion in the criminal case against Miller, but charges. the sureties on his official bond are not liable

5. Carriers 194Provision owner or confor the defalcation, for the reason, as before

signee shall pay freight does not relieve constated, that Miller was not, in law, the au

signor. thorized collector of the districts.

A provision in an interstate bill of lading It follows, therefore, that the decree was that the owner or consignee shall pay the wrong in awarding any sum to the improve- freight does not relieve the consignor's liability ment districts, but the bond protects the for the freight, but only recognizes the right of city of North Little Rock to the extent of the carrier to hold the shipment until its lien Miller's defalcation of said funds. After cred- for charges is discharged, and that lien can iting Miller's account with the city with the be waived by the carrier. pro rata of the funds in bank, there was a de- 6. Carriers em 194_Consignee is not liable for falcation of $3,703.04, and the city is entitled

freight on goods delivered to his assignee. to a decree against the surety on the bond

The consignee of an interstate shipment of for that sum.

goods, who had made no contract with the carThe decree is therefore reversed and dis-rier for the payment of the freight, and who missed as to the improvement districts, and assigned his interest in the goods before their a decree will be entered here in favor of the delivery to him, and directed the delivery to city of North Little Rock for the sum men- the assignee which was made by the carrier, is tioned above, to which it is entitled. not liable for the freight charges. This decree will be entered here as of the 7. Carriers 196Laches does not bar coldate of the decree below, so as to bear in

lection of freight from consignor. terest from that date. It is so ordered.

The right of an interstate carrier to recover the freight charges from the consignor is a legal demand which can be barred only by the lapse of the period of limitations, and laches

is no defense thereto. CLEVELAND, C., C. & St. L. RY, CO. V. 8. Carriers aww 194—Carrier need not notify SOUTHERN COAL & COKE CO.

consignor of failure to collect freight.

An interstate carrier which agreed to col(Supreme Court of Tennessee. Feb. 2, 1923.) lect the freight from the consignee is not re1. Carriers 35–Must collect correct inter- quired to give the consignor notice of its fail

ure to collect the freight in order to enforce state freight notwithstanding error in quot- the consignor's primary liability for it. ing rate.

Where an erroneous interstate rate is quot- 9. Carriers 194—Assignment by consignee ed and collected, the carrier must collect the

in whom title was vested does not affect concorrect freight even though that results in signor's liability for freight. injury or great hardship to the shipper or con The fact that the consignee, in whom title sumer, and the carrier cannot by its conduct es- to an interstate shipment of coal was vested top itself to sue for and recover the lawful assigned it to another, to whom it was derate.

livered by the carrier without collection of

the freight charges, does not alter the liability 2. Carriers Cm. 194 - Shipper's liability for

of the consignor for the freight. freight cannot be released by contract.

The shipper's primary liability for pay- 10. Bankruptcy Om 363—Filing claim in bank. ment of interstate freight charges, based on ruptcy against consignee for freight does the fact that he contracted for the shipment, not waive right against consignor. cannot be released by express contract with The fact that a carrier, which had delivered the carrier and agreement to look to the con an interstate shipment to the assignee of the signee.

consignee without requiring payment of the 3. Carriers w 194_Consignor is primarily lia- thereafter filed its claim for such freight

freight charges as directed by the bill of lading, ble for freight.

charges against the trustee in bankruptry of The consignor with whom the contract to the assignee and recovered more than half of ship is made is primarily liable for the freight, such charges, does not amount to a waiver of and his liability can only be discharged by a its right to collect the balance of the charges full payment either by the consignor or con- from the consignor, even if it would be held to signee.

its election if the assignee were still insolvent. 4. Carriers Faw 194-Provision for delivery to consignee on payment of freight does not Appeal from Chancery Court, Knox Counrelieve consignor's liability.

ty; Charles Hays Brown, Chancellor. A provision in an interstate bill of lading that the goods shipped are to be delivered to

Suit by the Cleveland, Cincinnati, Chicago the consignee on his paying the freight charg & St. Louis Railway Company against the es does not relieve the consignor's liability for Southern Coal & Coke Company. Decree for payment of the charges, if the goods are de. I complainant was reversed by the Court of

Em For other cases see same topic and KEY-NUMBER in a}l Key-Numbered Digests and Indexes

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