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paper is regularly published, notices may be "Where no newspaper is published in such published in any newspaper published and hav- town or city, such publication may be made in ing a bona fide circulation in the county, goy- some newspaper published in the same county erns the publication of an ordinance levying and having a circulation in such town.” Act assessments for improvements already con- No. 5 of 1913, p. 27. structed. (Ed. Note.-For other cases, see Municipal

But the act of March 3, 1913, operated as Corporations, Cent. Dig. 88 1005, 1006, 1183; an amendment of the former act, and is the Dec. Dig. § 408.*]

last expression of the lawmakers on that sub3. MUNICIPAL CORPORATIONS (8 444*)-PUB- ject. The latter act contains no express LIC IMPROVEMENTS-ASSESSMENTS.

Where proceedings for the laying of side- amendment or repeal of the act of January walks by an improvement district of a municio 30, 1913, nor of section 5685, which that act pality were regular up to the publication of the amends; but it contains the broad language ordinance levying the assessment, the fact that that “all notices required may be published," the ordinance was invalid does not preclude the city council from passing a new ordinance etc., in the manner indicated; and that covers and publishing it in accordance with the laws all notices necessary in the formation of disthen in force.

tricts and proceedings thereunder. The new [Ed. Note.-For other cases, see Municipal statute in this respect related only to a Corporations, Cent. Dig. 88 1064, 1069; Dec. method of procedure and applied to districts Dig. 8 444.*)

already formed. The act of March 3, 1913, 4. MUNICIPAL CORPORATIONS (8 444*) —PUB- must, therefore, control in the present case. LIC IMPROVEMENTS-ASSESSMENTS.

Property owners assessed for the laying of [3] The fact that the work of the assessors sidewalks cannot defeat the assessment because was done prior to the passage of the ordithe grade had not been established, even though nance which was held invalid in the former they might have prevented the construction of the improvement by injunction.

case and prior to the passage of the new act [Ed. Note.-For other cases, see Municipal referred to herein does not affect the validity Corporations, Cent. Dig. 88 1064, 1069; Dec. of the new ordinance and publication thereDig. § 444.*)

under. The whole proceedings, so far as this Appeal from Lawrence Chancery Court; record shows, were valid up to the publicaGeo. T. Humphries, Chancellor.

tion of the former ordinance, and it was only Action by W. M. Coats and others, as the ordinance itself levying the assessment Board of an Improvement District, against which was invalidated by reason of the failHarry Boas and others. From a judgment ure to publish the same in accordance with for plaintiffs, defendants appeal. Affirmed. the statute. The ordinance was merely void,

John S. Gibson, of Hoxie, for appellants. and it did not affect the power of the city Cunningham & Blackford, of Walnut Ridge, council to pass a new ordinance and cause for appellees.

it to be published in accordance with the

statute in force at the time of its passage. McCULLOCH, C. J. Appellants were the It is shown by the affidavit of the editor that owners of real property in the incorporated there was publication of the present orditown of Hoxie, Ark., and this is an action in-nance in accordance wtih the terms of the stituted against them by the board of im- new statute. provement of a district formed for the pur- [4] The principal contention of appellants pose of constructing sidewalks. The proper- for reversal of the cause is that the ordity of appellants is situated within the dis- Dance was not properly published; but it is trict, and has been assessed, and the purpose also urged that the assessments are not enof this action is to enforce the payment of forceable, for the reason that there has been the first assessment.

no ordinance of the town establishing the A similar suit between these parties was grades of the streets. That question, howformerly here on appeal, and we held that ever, is ruled by the case of McDonnell v. the improvement district had been legally Improvement District, 97 Ark. 334, 133 S. W. formed, but that the ordinance levying the 1126. In that case we said: assessments on the property was void on ac- "It is time enough for the property owners to count of not having been published in accord complain when the work is about to be done ance with the terms of the statute. Gibson without reference to the establishment of a

grade by the city.” V. Incorporated Town of Hoxie, 162 S. W. 568.

The property owners have the right to pre[1, 2] After that decision a new ordinance vent construction of the improvement in viowas passed levying the assessments, and it lation of law, and may seek injunctive rewas published in accordance with the act ap- lief from the chancery court where the comproved March 3, 1913, which provides that: missioners are about to violate the law on

"Where improvement districts are organized that subject; but the mere fact that the grade in any city or town in which no newspaper is has not been established does not afford any regularly published, all notices required may be published in any newspaper that is published defense against the payment of assessments and has a bona fide circulation in the county." validly laid. Section 5 Act No. 125 of Acts of 1913, p. 527. Other questions argued are not of sufficient

An earlier statute, approved January 30, importance to discuss. 1913, contained a provision that:

The decree is affirmed.

return the next morning with a larger bunch or STATE v. SCOTT. (No. 122.) crowd of negroes, and by threatening to do vi

olence to the said George Hardin, against the (Supreme Court of Arkansas. July 13, 1914.) (peace and dignity of the state of Arkansas." 1. THREATS (8 5*) – NIGHT RIDING – INDICT Demurrers were interposed to each of MENT-SUFFICIENCY.

Under Kirby's Dig. S$ 2228, 2243, declar- these indictments, alleging various defects to ing that an indictment is sufficient when it can

exist in them, and the demurrers were susbe understood what offense is stated, and that a tained and the defendant ordered discharged. statement of the acts constituting the offense in The state has appealed from this judgment ordinary and concise language is sufficient, an indictment, alleging that defendants named of the court. banded themselves together and in the night Wm. L. Moose, Atty. Gen., and Jno. P time, being disguised and armed with guns, went to the house of a person named, and alarmed Streepey, Asst. Atty. Gen., for the State, and frightened him by seeking to assault and punish him, and by threats of violence forced SMITH, J. (after stating the facts as him to leave his home, states the offense pun- | above). These indictments were returned unishable by Acts 1909, p. 315, punishing two or more persons uniting for the purpose of doing der Act No. 112 of the Acts of 1909, page 315. an unlawful act in the nighttime, or for the When this act is analyzed it is found that purpose of doing any unlawful act wbile wear- section 1 of it provides as follows: ing any mask, or for the purpose of going forth armed or disguised to intimidate or alarm any erate or band themselves together for the pur

If two or more persons shall unite, confedperson, or to do any felonious act.

pose: [Ed. Note.-For other cases, see Threats, Cent. “(a) Of doing an unlawful act in the nightDig. 88 9, 10; Dec. Dig. $ 5.*]

time; 2. THREATS (8 5*) — NIGHT RIDING – INDICT “(b) Or for the purpose of doing any unlawMENT-SUFFICIENCY.

ful act while wearing any mask, white caps or An indictment, alleging that defendants robes, or being otherwise disguised; banded themselves together, being disguised and

"(c) Or for the purpose of going forth armed armed, and went to the house of prosecutor in or disguised for the purpose of intimidating or the nighttime, and alarmed and intimidated alarming any person, or to do any felonious the wife of prosecutor and another by threat act; ening to return the next morning with a crowd

“(a) Or if any person shall knowingly meet of negroes, and by threatening to do violence to

or act clandestinely with any such band or prosecutor, states a cause of action denounced order" by Acts 1909, p. 315.

-be it known by any name whatsoever, then [Ed. Note.-For other cases, see Threats, Cent. any person who does any of these four things Dig. 88 9, 10; Dec. Dig. $ 5.*]

is guilty of a felony. Appeal from Circuit Court, White County ;

And by section 2 it is provided that: J. M. Jackson, Judge.

"If two or more persons belonging to or actWill Scott was indicted for night riding, ing with any such band or organization as de

fined in section one and he appeals, and from a judgment sus “(a) Shall go forth at night, or shall go forth taining demurrers to the indictments, and or- at any time disguised, and shall alarm or indering the discharge of defendant, the State timidate, or seek to alarm or intimidate, any appeals. Reversed and cause remanded.

person, by assaulting any such person,

or by damaging or destroying property, or by Appellee was twice indicted for the offense seeking to assault or punish any person or by commonly designated "night riding."

seeking or attempting to damage or destroy

property, The first indictment is as follows, omitting "b) Or shall deliver, mail, post or leave any the caption:

letter, notice or other written or printed com"The grand jury of White county in the name

munication intended to, or which by its nature, and by the authority of the state of Arkansas, alarm or intimidate any person, shall be deemed

contents or superscription would, naturally accuse Will Scott, Vine Williams, of the crime of night riding, committed as follows, to wit: guilty of a felony." The said Will Scott, Vine Williams, in the Is a violation of law charged under these county and state aforesaid, on the 17th day of sections or either of them? June, A. D. 1913, unlawfully and feloniously then and there, in the nighttime of said day,

The statute provides that an indictment banded themselves together, being disguised and shall contain the title of the prosecution, specarmed with guns, and go forth to the house of ifying the name of the court in which the George Hardin in the nighttime disguised and indictment is presented and the name of the armed, and did alarm, intimidate, and frighten the said George Hardin

by seeking to assault parties, a statement of the acts constituting and punish him, the said George Hardin, and the offense in ordinary and concise language, by threats of violence force him, the said George and in such a manner as to enable a person Hardin, to leave his home, against the peace of common understanding to know what is and dignity the state of Arkansas."

intended. Kirby's Digest, § 2243. And it The charging part of the second indictment is further provided that the indictment is was as follows:

sufficient if it can be understood therefrom “Did unlawfully and feloniously, in the nighttime of said day, band themselves together, be that it was found by a grand jury of a couning disguised and armed with guns, and go fortb ty impaneled in a court having authority to to the house of George Hardin, and while as- receive it, and that the offense was commitsembled at the said house of the said George ted within the jurisdiction of the court, at Hardin, in the nighttime, disguised and armed as aforesaid, alarm and 'intimidate Mrs. Nina some time prior to the time of finding the inHardin and Mrs. Ruth Isaacs, by threatening to i dictment, and that the act or omission charg*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

ed as the offense is stated with such a degree | 4. TRIAL ($ 252*) INSTRUCTIONS - APPLIof certainty as to enable the court to pro- CATION TO EVIDENCE. nounce judgment on conviction, according to

In an action by an engineer injured by

a hidden set screw which caught his cloththe right of the case. Section 2228, Kirby's ing and drew him into a pulley, an instruction Digest.

that if it is the duty of a servant to inspect [1] The first indictment alleges that appel- and repair appliances, the master is not bound lant and one Vine Williams banded them where there was no evidence that the engineer

to warn him against danger is properly refused, selves together and in the nighttime, being was employed to inspect the engine room, and disguised and armed with guns, went forth the appliances therein situated, including the to the house of George Hardin and alarmed set screw. and frightened him by seeking to assault and Dig. 505, 596-612; Dec. Dig. g 252.*]

[Ed. Note.-For other cases, see Trial, Cent. punish him, and by threats of violence forced him to leave his home. One who did these

Appeal from Circuit Court, Cross County; things violated the first, second, and third W. J. Driver, Judge. paragraphs of section 1 of the act above set

Action by S. E. Dexter against the York out, and that violation is charged with sutti- Lumber Company. From a judgment for cient certainty to meet the requirements of plaintiff, defendant appeals. Affirmed. the statutes herein set out.

Killough & Lines, of Wynne, for appellant. [2] The second indictment charges that ap- Mardis & Mardis, of Harrisburg, for appellee. pellant, and Williams banded themselves together, being disguised and armed with guns, McCULLOCH, C. J. The plaintiff, while and went forth to the house of George Hard working for the defendant as engineer at in, and, while assembled at the house of the latter's sawmill near Vanndale, Ark., Hardin, in the nighttime, disguised and arm- received personal injuries alleged to have ed as aforesaid, they alarmed and intimidat- been caused by certain defects in the machined Mrs. Hardin and Mrs. Isaacs by threaten- ery about which plaintiff worked, and this is ing to return the next morning with a crowd an action to recover compensation for such of negroes, and by threatening to do violence injuries. to the said George Hardin. It is said that Plaintiff had only been working for dethis second indictment was drawn under the fendant three or four days when the injury provisions of the second section of the stat occurred. He was an experienced engineer, ute set out above, but, wbether the facts al- and was employed by defendant to take leged constitute a violation of that section charge of the engine room and operate the of it, they do constitute a violation of the two engines therein, and also to assist the first section.

two firemen in the discharge of their duties The demurrers therefore were erroneously when they needed his assistance. The saw. sustained, and the judgments to that effect dust from the mill was conveyed from the will be reversed, and the causes remanded, saws to the engine room by a chain-belt cònwith directions to overrule them,

veyor, which ran up above the wall and over the engines. The belt carried the sawdust to

the mouth of a chute, whence it was conYORK LUMBER CO. v. DEXTER. (No. 107.) veyed downward to a place convenient to the

firemen near the fire box of one of the en(Supreme Court of Arkansas. July 13, 1914.) 1. MASTER AND SERVANT (88 286, 288*)—INJU- and was not covered over at the top. Fre

gines. The chute was constructed of wood, RIES TO SERVANT-ACTIONS-EVIDENCE.

In a personal injury action by an engineer quently the sawdust became clogged up, eswhose clothing caught on an unprotected set pecially when damp, and it was necessary screw in the engine room of a sawmill, the questo climb up to the top of the chute, to a tions of the master's negligence and the engineer's assumption of risk held, under the eviheight of about 14 feet from the floor, and dence, for the jury.

loosen or unclog it with a rod of some kind. [Ed, Note. For other cases, see Master and Just below the top of the chute there was a Servant, Cent. Dig. $$ 1001, 1006, 1008, 1010 chain pulley fastened to a line shaft by a set 1015, 1017-1033, 1036–1042, 1044, 1046–1050, screw, which extended out from the shaft 1068–1088; Dec. Dig. 88 286, 288.*] 2. MASTER AND SERVANT ($ 219)-INJURIES TO otherwise protected.

about two inches, and it was not boxed or SERVANT ASSUMPTION OF RISK

This set screw

NEGLIGENCE OF MASTER.

covered with grease and dust to the extent A servant does not, in entering the service that it could not be observed, even when the of a master assume the risk from hidden de machinery was not in motion, except upon fects in the tools or appliances furnished, unless the defects are brought to his attention or he a careful inspection. We are stating facts discovers them.

now as set forth in the complaint and as es(Ed. Note.-For other cases, see Master and tablished by the evidence adduced by the Servant, Cent. Dig. 88 610_624; Dec. Dig. 8 plaintiff when viewed in its light most favor. 219.*]

able to him. The chute became clogged up 3. TRIAL ($ 260*)-INSTRUCTIONS_REFUSAL.

with damp sawdust, and the only fireman The refusal of instructions covered by the instructions given is not error.

present at the time was endeavoring to un. [Ed. Note.-For other cases, see Trial, Cent. choke it from below, but it became necessary Dig. $8 651-659; Dec. Dig. § 260.* ]

for some one to climb up to the top of the

was

chute and unchoke it from that end. Plain- , refusing to give the seventh instruction, tiff climbed up and was engaged in that which reads as follows: work when the bottom of the leg of his over “You are instructed that, if it was the duty alls came in contact with the set screw, and of the servant to inspect and repair the applihis leg was dragged into the pulley, and he ances, then and there is no duty on the master to

warn against danger, and the master is not received a serious injury; the bones of his liable." leg being broken. The liability of the defend

That instruction was abstract in this case, ant is predicated upon alleged negligence in and for that reason was properly refused. leaving the set screw exposed and in failing There is no evidence that plaintiff was emto box it or place it on the inside so that ployed to inspect the engine room and applithose at work around the pulley would not arces therein situated. He was employed to come in contact with it.

run the engine and superintend generally the [1] The principal contention is that the operations in the engine room. Incidentally evidence is not sufficient to sustain the ver- he was to repair any defect that he discordict, in that it fails to show any negligence ered, but the evidence does not show that he on the part of the defendant concerning the was employed for the purpose of overhauling condition of the set screw, and that the cir- and repairing the engine room, or for the cumstances established by the evidence are purpose of searching out defects therein. such that the plaintiff is deemed to have the court very properly left to the jury to assumed the risk of any injury which re- say whether this defect was one which plainsulted from the condition of the set screw. tiff ought to have taken notice of, and it We are of the opinion, however, that the would have been highly improper, under the evidence was sufficient to sustain the verdict, state of the proof in this case, to submit the and that the question of assumed risk was question as to whether or not it was within one properly to be submitted to the jury. the limit of plaintiff's duty to perform the orIn the first place, it was a question for the dinary master's duty of inspection. jury to determine whether or not it constitut

On the whole, we reach the conclusion that ed negligence to leave the set screw unpro- the case was properly submitted to the jury, tected. The evidence shows that it was fre- and that there is no error in the record. quently necessary for men to go up in prox Affirmed. imity to the pulley and shafting to which the set screw was attached, and the jury had the right to infer that the unprotected set screw PHILLIPS v. COLVIN. (No. 93.) created a dangerous situation. This was suf-|(Supreme Court of Arkansas. July 6, 1914.) ficient to make out a case of negligence

1. HOMESTEAD $ 96*) — EXEMPTION "PURagainst the defendant.

CHASE MONEY. [2] The law on the subject of assumed risk Defendant, having executed his notes to B. is too well settled to need further discussion. for the price of certain land which subsequently A person does not, in entering the service due, being unable to pay them, borrowed the

became his homestead, when the notes became of another, assume the risk from hidden de money to take up the notes from plaintiff, fects in the tools or appliances furnished un- Held, that the money so borrowed was loaned less such defects are brought to his atten- to pay a pre-existing debt, and was not a part tion or he discovers them. Only those risks Const. art. 9, § 3, providing that the homestead

of the purchase price of the homestead within of danger from defects which are open and of the head of a family shall be exempt from obvious to the observer acting with due care execution sale except on the judgment rendered are assumed by the servant when he takes for purchase money or for a specific lien. service, for they constitute the ordinary haz-Cent. Dig. ss 147-153; Dec. Dig. $ 96.*

[Ed. Note.-For other cases, see Homestead, ards of the employment, the danger of which

For other definitions, see Words and Phrases, he agrees in his contract to assume. Rail- vol. 7, pp. 5857, 5858.] way Co. v. Leverett, 48 Ark. 333, 3 S. W. 50, 2. JUDGMENT ($ 715*)–CONCLUSIVENESS-RES 3 Am. St. Rep. 230; Asher v. Byrnes, 101 JUDICATA. Ark. 197, 141 S. W. 1176; Oak Leaf Mill Co. Where plaintiff sued defendant on certain V. Littleton, 105 Ark. 392, 151 S. W. 262. In

notes given for money advanced to take up other

notes that had been executed for part of the this case there was a defect caused by the price of defendant's homestead, a judgment renegligence of the master. That defect was covered on the notes in the absence of appeal not a patent one, open to observation, but, was res judicata against plaintiff's right to subaccording to the testimony, viewing it in the rogation to the rights of the holder of the orig

inal notes so paid to enforce a lien against the strongest light was a hidden defect.

homestead for nonpayment thereof the [3] There are numerous assignments of er- ground that they were given for part of the ror with respect to the rulings of the court

price. in refusing to give instructions requested by Cent. Dig. $§ 1244–1246; Dec. 'Dig. $ 715.* ]

[Ed. Note. For other cases, see Judgment, defendant. There is only one of them which we deem of sufficient importance to mention, Appeal from Circuit Court, Columbia Counfor the other refused instructions were clear- ty; W. E. Patterson, Judge. ly and fully covered by instructions which Action by B. S. Phillips against J. C. Colthe court gave of its own motion.

yin. Plaintiff, having recovered judgment, [4] It is insisted that the court erred in levied the same on certain land, whereupon *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

on

defendant obtained supersedeas on the ground his brief says that the sole question raised that the land was his homestead, and from by this appeal is whether or not money loaned an order denying a motion to quash the super- by a third person to the purchaser for the sedeas, plaintiff appeals. Affirmed.

purpose of paying off the balance due on the B. S. Phillips obtained judgment against purchase price of his homestead and used for J. C. Colvin in the circuit court in an action that purpose is “purchase money" to such an on debt for the sum of $253.18. Subsequently extent as to come within the exception of an execution was issued upon the judgment section 3, art. 9, of our Constitution? The and levied upon 47 acres of land belonging to section of the Constitution in question proColvin. The latter, after giving due notice vides that: of his intention to do so, filed his schedule who is married or the head of a family shall

“The homestead of any resident of this state claiming said land as his homestead, thereby not be subject to the lien of any judgment, or being exempt from execution. Upon the hear- decree of any court or to sale under execution ing the circuit clerk sustained the schedule or other process thereon, except such as may and issued a supersedeas. Subsequently Phil- be rendered for the purchase money or for spe

cific liens." lips filed a motion in the circuit court to quash the supersedeas on the ground that the

In the case of Acruman v. Barnes, 66 Ark. judgment upon which the execution was is- 442, 51 S. W. 319, 74 Am. St. Rep. 104, Barnes sued was for money loaned by Phillips to Col- borrowed from Acruman $1,000 for the purvin for the express purpose of paying the pur- pose of purchasing a homestead, and used it chase price of the land levied upon, and that for that purpose, and the court held that on that account the land was not exempt money borrowed for the purpose of buying from execution as his homestead.

a home and so used is "purchase money" Colvin filed a plea of res judicata, in which within the exception to article 9, § 3, of our he stated that Phillips had instituted an ac

Constitution. tion against him in the chancery court to re

In the present case the facts are essentialcover an amount of money which he alleged

ly different. Colvin executed his notes to that he had loaned Colvin for the purpose

Bryant for the purchase money of the land of paying the balance of the purchase money when the notes became due he was unable to

which subsequently became his homestead. due on his homestead, and in his complaint asked that he be given a lien on the land pay them, and borrowed the money from comprising the homestead of Colvin for the Phillips for that purpose. This was a debt amount sued for. The court sustained a de- for borrowed money, loaned, it is true, to pay murrer to the complaint and dismissed it for for the land, but it is still a debt for borwant of equity. No appeal was taken from

rowed money. The money was loaned by the decree rendered. The present case was Phillips to Colvin to pay a pre-existing debt submitted to the circuit court on an agreed created for the purpose of purchasing a statement of facts as follows:

homestead, and it was therefore a general The defendant, J. C. Colvin, purchased loan. Phillips was not a party to the origifrom H. A. Bryant 47 acres of land situated nal transaction. This is the distinction made in Columbia county, Ark., and Bryant exe in the following cases : Magee v. Magee, 51 cuted to him a warranty deed therefor. The Ill. 500, 99 Am. Dec. 571; Carey v. Boyle, 53 consideration recited in the deed was $200, Wis. 574, 11 N. W. 47; Austin v. Underwood, evidenced by two notes for $100 each, due 37 Ill

. 438, 87 Am. Dec. 254; Eyster v. and payable some time thereafter, with in- Hatheway, 50 Ill. 521, 99 Am. Dec. 537. In terest at the rate of 10 per cent. per annum.

the latter case the court said: Colvin was unable to pay the purchase mon- which this deed of trust was given was purchase

"It was insisted that the money to secure ey when the notes became due, and he and money, and the premises, in any event, are liBryant and the plaintiff met together and able to be sold for its satisfaction. If it were Phillips loaned to Colvin the sum of $213 established that the money borrowed by appelfor the purpose of paying the purchase price land, still it does not follow that it was pur

lant from appellee was paid to Redick for the of the land. Colvin at the same time paid chase money. It appears that the premises the money to Bryant, and executed to Phil. were purchased of Redick, and the money for lips his note for $213, bearing interest at the which this debt was incurred was paid on the

last installment due on the purchase. The statrate of 10 per cent. per annum. At the same ute, in declaring that the homestead right should time the note from Colvin to Bryant was de- not be claimed against a debt due for the purstroyed. Colvin lived upon the land at the chase money, obviously used the language in its time he borrowed the money from Phillips sons understand the term “purchase money

ordinary and popular signification. and claimed it as his homestead.

mean the price agreed to be paid for the land, The court overruled the motion of Phillips or the debt created by the purchase. It is not to quash the supersede and from the than the vendor. In this case the debt was cre

understood to mean a debt due another person judgment rendered Phillips has appealed. ated for money loaned, and not for land purW. H. Askew, of Magnolia, for appellant. chased. Appellee sold no land to appellant, but

he loaned him money. It could not matter, in Stevens & Stevens, of Magnolia, for appellee. this indebtedness, whether the money was sub

sequently paid for the same or other property. HART, J. (after stating the facts as above). There is nothing in the case which shows the

relation of vendor and vendee between these

All per

to

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