paper is regularly published, notices may be published in any newspaper published and having a bona fide circulation in the county, governs the publication of an ordinance levying assessments for improvements already constructed. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. §§ 1005, 1006, 1183; Dec. Dig. § 408.*] 3. MUNICIPAL CORPORATIONS (§ 444*)-PUBLIC IMPROVEMENTS-ASSESSMENTS. Where proceedings for the laying of sidewalks by an improvement district of a municipality were regular up to the publication of the ordinance levying the assessment, the fact that the ordinance was invalid does not preclude the city council from passing a new ordinance and publishing it in accordance with the laws then in force. [Ed. Note.-For other cases, see Municipal Corporations, Cent. Dig. §§ 1064, 1069; Dec. Dig. § 444.*] 4. MUNICIPAL CORPORATIONS (§ 444*)-PUB LIC IMPROVEMENTS-ASSESSMENTS. Property owners assessed for the laying of sidewalks cannot defeat the assessment because the grade had not been established, even though they might have prevented the construction of the improvement by injunction. [Ed. Note. For other cases, see Municipal Corporations, Cent. Dig. 88 1064, 1069; Dec. Dig. § 444.*] Appeal from Lawrence Chancery Court; Geo. T. Humphries, Chancellor. Action by W. M. Coats and others, as Board of an Improvement District, against Harry Boas and others. From a judgment for plaintiffs, defendants appeal. Affirmed. John S. Gibson, of Hoxie, for appellants. Cunningham & Blackford, of Walnut Ridge, for appellees. "Where no newspaper is published in such town or city, such publication may be made in some newspaper published in the same county and having a circulation in such town." Act No. 5 of 1913, p. 27. But the act of March 3, 1913, operated as an amendment of the former act, and is the last expression of the lawmakers on that subject. The latter act contains no express amendment or repeal of the act of January 30, 1913, nor of section 5685, which that act amends; but it contains the broad language that "all notices required may be published," etc., in the manner indicated; and that covers all notices necessary in the formation of districts and proceedings thereunder. The new statute in this respect related only to a method of procedure and applied to districts already formed. The act of March 3, 1913, must, therefore, control in the present case. [3] The fact that the work of the assessors was done prior to the passage of the ordinance which was held invalid in the former case and prior to the passage of the new act referred to herein does not affect the validity of the new ordinance and publication thereunder. The whole proceedings, so far as this record shows, were valid up to the publication of the former ordinance, and it was only the ordinance itself levying the assessment which was invalidated by reason of the failure to publish the same in accordance with the statute. The ordinance was merely void, and it did not affect the power of the city council to pass a new ordinance and cause 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-nance was not properly published; but it is trict, and has been assessed, and the purpose of this action is to enforce the payment of the first assessment. A similar suit between these parties was formerly here on appeal, and we held that the improvement district had been legally formed, but that the ordinance levying the assessments on the property was void on account of not having been published in accordance with the terms of the statute. Gibson v. Incorporated Town of Hoxie, 162 S. W. 568. [1, 2] After that decision a new ordinance was passed levying the assessments, and it was published in accordance with the act approved March 3, 1913, which provides that: "Where improvement districts are organized in any city or town in which no newspaper is regularly published, all notices required may be published in any newspaper that is published and has a bona fide circulation in the county." Section 5 Act No. 125 of Acts of 1913, p. 527. An earlier statute, approved January 30, 1913, contained a provision that: also urged that the assessments are not enforceable, for the reason that there has been no ordinance of the town establishing the grades of the streets. That question, however, is ruled by the case of McDonnell v. Improvement District, 97 Ark. 334, 133 S. W. 1126. In that case we said: "It is time enough for the property owners to complain when the work is about to be done without reference to the establishment of a grade by the city." The property owners have the right to prevent construction of the improvement in violation of law, and may seek injunctive relief from the chancery court where the commissioners are about to violate the law on that subject; but the mere fact that the grade has not been established does not afford any defense against the payment of assessments validly laid. Other questions argued are not of sufficient importance to discuss. The decree is affirmed. For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes STATE V. SCOTT. (No. 122.) (Supreme Court of Arkansas. July 13, 1914.) 1. THREATS (§ 5*) - NIGHT RIDING INDICTMENT-SUFFICIENCY. return the next morning with a larger bunch or crowd of negroes, and by threatening to do violence to the said George Hardin, against the | peace and dignity of the state of Arkansas." Demurrers were interposed to each of these indictments, alleging various defects to exist in them, and the demurrers were sustained and the defendant ordered discharged. The state has appealed from this judgment of the court. Under Kirby's Dig. §§ 2228, 2243, declaring that an indictment is sufficient when it can be understood what offense is stated, and that a statement of the acts constituting the offense in ordinary and concise language is sufficient, an indictment, alleging that defendants named banded themselves together and in the nightWm. 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 order Act No. 112 of the Acts of 1909, page 315. more persons uniting for the purpose of doing an unlawful act in the nighttime, or for the When this act is analyzed it is found that purpose of doing any unlawful act while 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 person, or to do any felonious act. [Ed. Note. For other cases, see Threats, Cent. Dig. §§ 9, 10; Dec. Dig. § 5.*] 2. THREATS (§ 5*) NIGHT RIDING MENT-SUFFICIENCY. - INDICTAn indictment, alleging that defendants banded themselves together, being disguised and armed, and went to the house of prosecutor in the nighttime, and alarmed and intimidated the wife of prosecutor and another by threatening to return the next morning with a crowd of negroes, and by threatening to do violence to prosecutor, states a cause of action denounced by Acts 1909, p. 315. "If two or more persons shall unite, confederate or band themselves together for the pur pose: "(a) Of doing an unlawful act in the nighttime; "(b) Or for the purpose of doing any unlawful act while wearing any mask, white caps or robes, or being otherwise disguised; "(c) Or for the purpose of going forth armed or disguised for the purpose of intimidating or alarming any person, or to do any felonious act; "(d) Or if any person shall knowingly meet or act clandestinely with any such band or order" -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. §§ 9, 10; Dec. Dig. § 5.*] Appeal from Circuit Court, White County; J. M. Jackson, Judge. Will Scott was indicted for night riding, and he appeals, and from a Judgment sustaining demurrers to the indictments, and ordering the discharge of defendant, the State appeals. Reversed and cause remanded. Appellee was twice indicted for the offense commonly designated "night riding." The first indictment is as follows, omitting the caption: "The grand jury of White county in the name and by the authority of the state of Arkansas, accuse Will Scott, Vine Williams, of the crime of night riding, committed as follows, to wit: The said Will Scott, Vine Williams, in the county and state aforesaid, on the 17th day of June, A. D. 1913, unlawfully and feloniously then and there, in the nighttime of said day, banded themselves together, being disguised and armed with guns, and go forth to the house of George Hardin in the nighttime disguised and armed, and did alarm, intimidate, and frighten the said George Hardin by seeking to assault and punish him, the said George Hardin, and by threats of violence force him, the said George Hardin, to leave his home, against the peace and dignity of the state of Arkansas." The charging part of the second indictment was as follows: is guilty of a felony. And by section 2 it is provided that: "If two or more persons belonging to or acting with any such band or organization as de fined in section one ** * "(a) Shall go forth at night, or shall go forth at any time disguised, and shall alarm or intimidate, or seek to alarm or intimidate, any 車 * 串 person, by assaulting any such person, or by damaging or destroying property, or by seeking to assault or punish any person or by seeking or attempting to damage or destroy property, (b) Or shall deliver, mail, post or leave any letter, notice or other written or printed communication intended to, or which by its nature, contents or superscription would, naturally alarm or intimidate any person, shall be deemed guilty of a felony." Is a violation of law charged under these sections or either of them? The statute provides that an indictment shall contain the title of the prosecution, specifying the name of the court in which the indictment is presented and the name of the parties, a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. Kirby's Digest, § 2243. And it is further provided that the indictment is sufficient if it can be understood therefrom that it was found by a grand jury of a county impaneled in a court having authority to receive it, and that the offense was committed within the jurisdiction of the court, at some time prior to the time of finding the indictment, and that the act or omission charg "Did unlawfully and feloniously, in the nighttime of said day, band themselves together, being disguised and armed with guns, and go forth to the house of George Hardin, and while assembled at the said house of the said George Hardin, in the nighttime, disguised and armed as aforesaid, alarm and intimidate Mrs. Nina Hardin and Mrs. Ruth Isaacs, by threatening to For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes INSTRUCTIONS ed as the offense is stated with such a degree | 4. TRIAL (§ 252*) [1] The first indictment alleges that appellant and one Vine Williams banded themselves together and in the nighttime, being disguised and armed with guns, went forth to the house of George Hardin and alarmed and frightened him by seeking to assault and punish him, and by threats of violence forced him to leave his home. One who did these things violated the first, second, and third paragraphs of section 1 of the act above set out, and that violation is charged with sufficient certainty to meet the requirements of the statutes herein set out. hidden set screw which caught his clothIn an action by an engineer injured by ing and drew him into a pulley, an instruction that if it is the duty of a servant to inspect and repair appliances, the master is not bound where there was no evidence that the engineer to warn him against danger is properly refused, was employed to inspect the engine room, and the appliances therein situated, including the set screw. Dig. 88 505, 596-612; Dec. Dig. § 252.*] Appeal from Circuit Court, Cross County; Action by S. E. Dexter against the York Lumber Company. From a judgment for plaintiff, defendant appeals. Affirmed. Killough & Lines, of Wynne, for appellant. Mardis & Mardis, of Harrisburg, for appellee. [2] The second indictment charges that appellant 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 this second indictment was drawn under the provisions of the second section of the statute set out above, but, whether the facts alleged constitute a violation of that section of it, they do constitute a violation of the first section. The demurrers therefore were erroneously sustained, and the judgments to that effect will be reversed, and the causes remanded, with directions to overrule them. YORK LUMBER CO. v. DEXTER. (No. 107.) (Supreme Court of Arkansas. July 13, 1914.) 1. Master and SERVANT (§§ 286, 288*)—INJURIES TO SERVANT-ACTIONS-EVIDENce. In a personal injury action by an engineer whose clothing caught on an unprotected set screw in the engine room of a sawmill, the questions of the master's negligence and the engineer's assumption of risk held, under the evidence, for the jury. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1001, 1006, 1008, 10101015, 1017-1033, 1036-1042, 1044, 1046-1050, 1068-1088; Dec. Dig. §§ 286, 288.*] 2. Master and SERVANT (§ 219)-INJURIES TO SERVANT ASSUMPTION OF RISK NEGLIGENCE OF MASTER. A servant does not, in entering the service of a master assume the risk from hidden defects in the tools or appliances furnished, unless the defects are brought to his attention or he discovers them. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 610-624; Dec. Dig. 8 219.*] 3. TRIAL (§ 260*)—INSTRUCTIONS-REFUSAL. The refusal of instructions covered by the instructions given is not error. [Ed. Note.-For other cases, see Trial, Cent. Dig. 88 651-659; Dec. Dig. § 260.*] Plaintiff had only been working for defendant three or four days when the injury occurred. He was an experienced engineer, and was employed by defendant to take charge of the engine room and operate the two engines therein, and also to assist the two firemen in the discharge of their duties when they needed his assistance. The sawdust from the mill was conveyed from the saws to the engine room by a chain-belt conveyor, which ran up above the wall and over the engines. The belt carried the sawdust to the mouth of a chute, whence it was confiremen near the fire box of one of the enveyed downward to a place convenient to the gines. The chute was constructed of wood, and was not covered over at the top. Frequently the sawdust became clogged up, especially when damp, and it was necessary to climb up to the top of the chute, to a height of about 14 feet from the floor, and loosen or unclog it with a rod of some kind. Just below the top of the chute there was a chain pulley fastened to a line shaft by a set screw, which extended out from the shaft about two inches, and it was not boxed or otherwise protected. This set screw was covered with grease and dust to the extent that it could not be observed, even when the machinery was not in motion, except upon a careful inspection. We are stating facts now as set forth in the complaint and as established by the evidence adduced by the plaintiff when viewed in its light most favorable to him. The chute became clogged up with damp sawdust, and the only fireman present at the time was endeavoring to unchoke it from below, but it became necessary for some one to climb up to the top of the *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes chute and unchoke it from that end. Plaintiff climbed up and was engaged in that work when the bottom of the leg of his overalls came in contact with the set screw, and his leg was dragged into the pulley, and he received a serious injury; the bones of his leg being broken. The liability of the defendant is predicated upon alleged negligence in leaving the set screw exposed and in failing to box it or place it on the inside so that those at work around the pulley would not come in contact with it. [1] The principal contention is that the evidence is not sufficient to sustain the verdict, in that it fails to show any negligence on the part of the defendant concerning the condition of the set screw, and that the circumstances established by the evidence are such that the plaintiff is deemed to have assumed the risk of any injury which resulted from the condition of the set screw. We are of the opinion, however, that the evidence was sufficient to sustain the verdict, and that the question of assumed risk was one properly to be submitted to the jury. In the first place, it was a question for the jury to determine whether or not it constituted negligence to leave the set screw unprotected. The evidence shows that it was frequently necessary for men to go up in proximity 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 created a dangerous situation. This was sufficient to make out a case of negligence against the defendant. [2] The law on the subject of assumed risk is too well settled to need further discussion. A person does not, in entering the service of another, assume the risk from hidden defects in the tools or appliances furnished unless such defects are brought to his attention or he discovers them. Only those risks of danger from defects which are open and obvious to the observer acting with due care are assumed by the servant when he takes service, for they constitute the ordinary hazards of the employment, the danger of which he agrees in his contract to assume. Railway Co. v. Leverett, 48 Ark. 333, 3 S. W. 50, 3 Am. St. Rep. 230; Asher v. Byrnes, 101 Ark. 197, 141 S. W. 1176; Oak Leaf Mill Co. v. Littleton, 105 Ark. 392, 151 S. W. 262. In this case there was a defect caused by the negligence of the master. That defect was not a patent one, open to observation, but, according to the testimony, viewing it in the strongest light was a hidden defect. [3] There are numerous assignments of error with respect to the rulings of the court in refusing to give instructions requested by defendant. There is only one of them which we deem of sufficient importance to mention, for the other refused instructions were clearly and fully covered by instructions which the court gave of its own motion. refusing to give the seventh instruction, which reads as follows: "You are instructed that, if it was the duty of the servant to inspect and repair the appliances, then and there is no duty on the master to warn against danger, and the master is not liable." That instruction was abstract in this case, and for that reason was properly refused. There is no evidence that plaintiff was employed to inspect the engine room and appliarces therein situated. He was employed to run the engine and superintend generally the operations in the engine room. Incidentally he was to repair any defect that he discovered, but the evidence does not show that he was employed for the purpose of overhauling and repairing the engine room, or for the purpose of searching out defects therein. The court very properly left to the jury to say whether this defect was one which plaintiff ought to have taken notice of, and it would have been highly improper, under the state of the proof in this case, to submit the question as to whether or not it was within the limit of plaintiff's duty to perform the ordinary master's duty of inspection. On the whole, we reach the conclusion that the case was properly submitted to the jury, and that there is no error in the record. Affirmed. PHILLIPS v. COLVIN. (No. 93.) (Supreme Court of Arkansas. July 6, 1914.) 1. HOMESTEAD (§ 96*) — EXEMPTION — “PURCHASE MONEY.' Defendant, having executed his notes to B. for the price of certain land which subsequently due, being unable to pay them, borrowed the became his homestead, when the notes became money to take up the notes from plaintiff. Held, that the money so borrowed was loaned to pay a pre-existing debt, and was not a part Const. art. 9, § 3, providing that the homestead of the purchase price of the homestead within of the head of a family shall be exempt from execution sale except on the judgment rendered for purchase money or for a specific lien. Cent. Dig. §§ 147-153; Dec. Dig. § 96.* [Ed. Note.-For other cases, see Homestead, For other definitions, see Words and Phrases, vol. 7, pp. 5857, 5858.] 2. JUDGMENT (§ 715*)-CONCLUSIVENESS-RES JUDICATA. Where plaintiff sued defendant on certain notes given for money advanced to take up other notes that had been executed for part of the price of defendant's homestead, a judgment recovered on the notes in the absence of appeal was res judicata against plaintiff's right to subrogation to the rights of the holder of the original notes so paid to enforce a lien against the homestead for nonpayment thereof on the ground that they were given for part of the price. Cent. Dig. §§ 1244-1246; Dec. Dig. § 715.*] [Ed. Note.-For other cases, see Judgment, Appeal from Circuit Court, Columbia County; W. E. Patterson, Judge. Action by B. S. Phillips against J. C. Colvin. 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 defendant obtained supersedeas on the ground that the land was his homestead, and from an order denying a motion to quash the supersedeas, plaintiff appeals. Affirmed. his brief says that the sole question raised by this appeal is whether or not money loaned by a third person to the purchaser for the purpose of paying off the balance due on the purchase price of his homestead and used for that purpose is "purchase money" to such an extent as to come within the exception of section 3, art. 9, of our Constitution? The section of the Constitution in question provides that: who is married or the head of a family shall "The homestead of any resident of this state not be subject to the lien of any judgment, or decree of any court or to sale under execution or other process thereon, except such as may be rendered for the purchase money or for specific liens." B. S. Phillips obtained judgment against J. C. Colvin in the circuit court in an action on debt for the sum of $253.18. Subsequently an execution was issued upon the judgment and levied upon 47 acres of land belonging to Colvin. The latter, after giving due notice of his intention to do so, filed his schedule claiming said land as his homestead, thereby being exempt from execution. Upon the hearing the circuit clerk sustained the schedule and issued a supersedeas. Subsequently Phillips filed a motion in the circuit court to In the case of Acruman v. Barnes, 66 Ark. quash the supersedeas on the ground that the 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 purpose 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 a home and so used is "purchase money" within the exception to article 9, § 3, of our from execution as his homestead. Colvin filed a plea of res judicata, in which he stated that Phillips had instituted an action against him in the chancery court to recover an amount of money which he alleged that he had loaned Colvin for the purpose of paying the balance of the purchase money due on his homestead, and in his complaint asked that he be given a lien on the land comprising the homestead of Colvin for the amount sued for. The court sustained a demurrer to the complaint and dismissed it for want of equity. No appeal was taken from the decree rendered. The present case was submitted to the circuit court on an agreed statement of facts as follows: The defendant, J. C. Colvin, purchased from H. A. Bryant 47 acres of land situated in Columbia county, Ark., and Bryant executed to him a warranty deed therefor. The consideration recited in the deed was $200, evidenced by two notes for $100 each, due and payable some time thereafter, with interest at the rate of 10 per cent. per annum. Colvin was unable to pay the purchase money when the notes became due, and he and Bryant and the plaintiff met together and Phillips loaned to Colvin the sum of $213 for the purpose of paying the purchase price of the land. Colvin at the same time paid the money to Bryant, and executed to Phillips his note for $213, bearing interest at the rate of 10 per cent. per annum. At the same time the note from Colvin to Bryant was destroyed. Colvin lived upon the land at the time he borrowed the money from Phillips and claimed it as his homestead. The court overruled the motion of Phillips to quash the supersedeas, and from the judgment rendered Phillips has appealed. W. H. Askew, of Magnolia, for appellant. Stevens & Stevens, of Magnolia, for appellee. HART, J. (after stating the facts as above). [1] Counsel for the plaintiff, Phillips, in Constitution. In the present case the facts are essentially different. Colvin executed his notes to Bryant for the purchase money of the land which subsequently became his homestead. rowed money. This was a debt When the notes became due he was unable to the latter case the court said: which this deed of trust was given was purchase "It was insisted that the money to secure money, and the premises, in any event, are liable to be sold for its satisfaction. If it were lant from appellee was paid to Redick for the established that the money borrowed by appelland, still it does not follow that it was purchase money. It appears that the premises were purchased of Redick, and the money for which this debt was incurred was paid on the last installment due on the purchase. The statute, in declaring that the homestead right should not be claimed against a debt due for the purchase money, obviously used the language in its sons understand the term 'purchase money ordinary and popular signification. permean the price agreed to be paid for the land, or the debt created by the purchase. It is not understood to mean a debt due another person than the vendor. In this case the debt was created for money loaned, and not for land purchased. Appellee sold no land to appellant, but he loaned him money. It could not matter, in this indebtedness, whether the money was subsequently paid for the same or other property. relation of vendor and vendee between these There is nothing in the case which shows the parties, and this provision of the statute only All to |