for want of jurisdiction, and that as this order BROOKFIELD v. JONESBORO TRUST CO. was made and rendered on the 1st day of July, (No. 237.) (Supreme Court of Arkansas. Nov. 12, 1917.) JUDGMENT 650-RES JUDICATA-FAILURE TO APPEAL. Where, upon the hearing of the engineer's report of the preliminary survey in organization of a drainage district, the engineer's claim for fees was denied, and the cause dismissed for want of jurisdiction, such dismissal would be res judicata in a suit on the bond given as security for such fees; an appeal not having been taken from the first decision. Appeal from Circuit Court, Craighead County; R. H. Dudley, Judge. Suit by B. I. Brookfield against the Jonesboro Trust Company. Judgment for defendant, and plaintiff appeals. Affirmed. H. M. Mayes, of Jonesboro, and J. C. Brookfield, of Wynne, for appellant. Baker & Sloan, of Jonesboro, for appellee. HUMPHREYS, J. Appellant, who is a civil engineer, brought suit in the circuit court for the Jonesboro district of Craighead county against appellees on a bond to recover a fee of $5,000 for making a survey preliminary to the attempted organization of Big Creek drainage district in Craighead county. Appellees denied liability upon the bond and pleaded res adjudicata. The cause was heard upon the complaint, answer, the original petition filed in the matter of the attempted formation of Big Creek drainage district, and all the orders and judgments of the circuit court rendered in connection with said district. The complaint was dismissed, and the cause is here on appeal. Big Creek drainage district was attempted to be organized by appellees under Act No. 279 of the General Assembly of the state of Arkansas for the year 1909, as amended by Act No. 221 of the Public Acts of 1911. All the necessary steps preliminary to the organization of said district, as provided by said act, were complied with. In the course of the proceedings, the required statutory bond was filed by these appellees. Appellant was duly appointed engineer to make the preliminary survey, and signed and filed his report in the manner provided by law. Upon hearing, the cause was dismissed for the want of jurisdiction, on the 1st day of July, 1912. This order was not entered. Appellant filed a motion to reinstate the cause for the purpose of adjudicating the costs of the preliminary survey. He also moved for a nunc pro tunc order to enter the judgment rendered by the court dismissing the cause for the want of jurisdiction. The above motions were presented to the court for consideration on September 25, 1915, and the following judgment was rendered on that date: "It is therefore by the court considered, ordered, and adjudged that this cause be dismissed 1912, that same be entered now for them, and the motion to reinstate and tax costs to pay the engineer's claim for fees is on that account denied and dismissed." The bond executed by appellees was a statutory bond conditioned for the payment of the costs and expenses of the survey in the event the proposed district should not be established. This court has held that it was proper to present the claim for the costs and expenses of a preliminary survey in the original proceeding for the formation of the district. Burton v. Chicago Mill & Lbr. Co., 106 Ark. 296, 153 S. W. 114. Appellant filed a motion to redocket the original case for this purpose, and to nunc pro tunc the original decree dismissing the proceeding for the want of jurisdiction. The court entered the original decree now for then, and for the reason that the original proceeding was dismissed for the want of jurisdiction the court denied and dismissed the motion to reinstate and tax costs to pay the original claim for fees. It was appellant's duty to appeal from this order. for it was a final adjudication of his claim. The plea of res adjudicata to the action of appellant was a good and sufficient defense. The judgment is affirmed. ROBERTS v. ROBERTS et al. (No. 218.) (Supreme Court of Arkansas. Nov. 5, 1917.) DOWER20-CONVEYANCE IN FRAUD OF INTENDED WIFE. A conveyance for a grossly inadequate consideration, and for purpose of defeating dower rights, made by a man shortly before marriage, will be avoided, so far as affecting dower. Appeal from Lonoke Chancery Court; John E. Martineau, Chancellor. Suit by Mrs. Phoebe P. Roberts against Mrs. Estelle Roberts, administratrix, and another. appeals. rections. From an adverse decree, plaintiff J. F. Wills, of Argenta, for appellant. Mehaffy, Reid & Mehaffy and W. C. Adamson, all of Little kock, for appellees. SMITH, J. This was a suit brought by appellant to set aside a deed which she alleged was executed in fraud of her marital rights. She alleged that she was the widow of Thomas Roberts, whom she married on January 12, 1911, and who died June 4, 1913. It was alleged that prior to their marriage Roberts had owned seven lots in the town of Carlisle, in Lonoke county, and that the ownership of said property was, in part, the inducement for her marriage; that Roberts during their marriage negotiations, represented to her that he owned that property; and that on January 11, 1911, the day be fore the marriage, Roberts, without her knowledge or consent, and in fraud of her rights, executed a deed to said property to one John W. Roberts, which was without consideration, or without adequate consideration. It was further alleged that her husband continued to keep and use said property until his death, and that she remained in ignorance of the conveyance until after his death. John W. Roberts died on March 13, 1913, and the suit was brought against Estelle Roberts, as widow, and Agnes Roberts, as infant child and only heir at law. There was a prayer for the cancellation of the deed and the assignment of dower. The answer contained a general denial of all the allegations of the complaint. The chancellor found against the plaintiff, and dismissed the complaint for the want of equity, and this appeal has been duly prosecuted. In support of the prayer of the complaint appellant offered the following testimony: She testified that when she and Mr. Roberts were talking about getting married, she said, "Mr. Roberts, you are old, and do you think you can take care of us the rest of our lives?" and he said, "Certainly; I own ten lots in Carlisle," and he showed her the deed therefor, and he also said, "I have got a little money, but I am not going to show it to you; and I draw a pension of $36 quarterly." He showed her the deed on Monday before they were married on Thursday. Roberts owned a lot on Main street in Argenta, and had a small store with a stock of goods worth about $200, on which he owed $80. About two weeks before Roberts' death, she asked him to move to Carlisle, and he said, "All right," and she looked for the deed and could not find it, and asked him about it, and he said: "Well, I kinda made it over to John, but I am going to get it back. It is no trouble to get it back. I have just kinda made it over." She did not learn of the deed sought to be canceled, however, until after the death of her husband, who continued paying the taxes on the lots and collected the rent, amounting to $6 per week, until he died. She testified that her husband had raised John Roberts, but had never adopted him; that he gave John Roberts $200 at one time, and $25 several times after her marriage. The deed recited a consideration of $100 and "other considerations," and was recorded 12 days after its execution. The testimony as to the value of the lots varies widely, appellant putting the value as high as $1,600, while a disinterested witness places it at $1,000. But the witness whose opinion is evidently most dependable places the value of the lots at $700. fancy until after his marriage as a member of the family, and had given Thomas Roberts his earnings as a boy. John Roberts was born in 1878, and a note of that fact was made by Thomas Roberts in his family Bible. John Roberts called Thomas Roberts "Paw," and called Mrs. Roberts "Maw," and both of them referred to him as "Son," and he was commonly spoken of as the son of Thomas Roberts and bis wife, by his acquaintances. Some effort was made to show that John Roberts had been legally adopted, but it is not contended that the evidence establishes that fact. A Mrs. Styrne testified that she, too, lived with Mr. and Mrs. Roberts for 14 or 15 years as a servant and as a member of the family, and called them "Paw" and "Maw," and that John did but little work, and did not contribute to Mr. Roberts as much as his living cost. The preponderance of the evidence on that question, however, appears to be otherwise, and, although the testimony does not show that the boy was adopted, it does show that Mr. Roberts entertained great affection for him and treated him like a son, and gave him money from time to time. Indeed, while the testimony shows the payment, in some form, of the $100 recited in the deed-the circumstances and details of the payment not being shown-yet, it also appears that after appellant's marriage, Mr. Roberts had given John $200 and other smaller sums in addition. The same difference of opinion in regard to the value of the remainder of the property (the Argenta property) exists as was shown in regard to the value of the lots in controversy. There was testimony that Mr. Roberts had refused $3,500 for the property, and that it was worth that sum of money; but it was shown that a half interest was sold at a public sale for $825, and the other half interest at a private sale for $1,250, There is no intimation in the record that any undue or improper influence was exercised over Mr. Roberts to induce the execution of the deed. On the contrary, it appears to have been a deliberate act, prompted, no doubt, by the affection he entertained for the boy he had reared, then grown to be a man 33 years old. But the deed, if permitted to stand, divests Mr. Roberts' estate of about one-fourth of its value and, consequently, and proportionately, reduces appellant's dower interest. If the $100 was in fact paid in money, it represented only about oneseventh of the value of the property, and, although the deed is absolute on its face, there was no change of possession. Mr. Roberts continued to pay the taxes in his own name and to collect the rent on the little house which stood on one of the lots, this being Mrs. Estelle Roberts testified that the $100 all the income derived from said property. was actually paid, and there is testimony John Roberts was present when the deed that John Roberts, both before and after was executed, and had known for two his marriage, assisted Thomas Roberts in months prior thereto that Thomas Roberts his store, and had lived with him from in- was to be married to appellant, and he be *mm 37 EVIDENCE JUSTICE came a party to a transaction which result-sary to charge that the signature was made ed in leaving to his grantor the beneficial without authority. interest in the property during the lifetime 3. FORGERY DOCKET. of the grantor, and yet, if allowed to stand, one that deprives the grantor's wife of her dower after his death. In 9 Ruling Case Law, p. 591, it was said: "That the wife's right of dower is a substantial property right, entitled to protection by the courts, is perhaps most strikingly shown in action by her to set aside conveyances made by the husband for the purpose of defeating her expectation (though not yet vested even as an inchoate right) of dower. If shortly before a marriage, the future husband conveys away his real estate without consideration, and without the consent or knowledge of his betrothed, with the purpose and result of unfairly depriving her of dower, the courts will set aside the conveyance as a fraud upon her rights; and even the fact that it was made for a valuable consideration will not save it, if the grantee participated in the intent to defraud the wife." Numerous cases are cited which support the text. In our recent case of West V. West, 120 Ark. 500, 179 S. W. 1017, we stated our own views of this subject in the following language: "This brings us to a consideration of the law governing cases of this character. The general rule is that if a man or woman convey away his or her property for the purpose of depriving the intended husband or wife of the legal rights and benefits arising from such marriage, equity will avoid such conveyance or compel the person taking it to hold the property in trust for or subject to the rights of the defrauded husband or wife. Perry on Trusts and Trustees (6th Ed.) vol. 1, § 213; Bishop on the Law of Married Women, vol. 2, 8 350; Smith v. Smith, 2 Halstead Ch. (6 N. J. Eq.) 515; Leach v. Duvall, 8 Bush. (Ky.) 201; Dearmond v. Dearmond, 10 Ind. 191; Collins v. Collins, 98 Md. 473 [57 Atl. 597], 103 Am. St. Rep. 408, and case note [1 Ann. Cas. 856]." Applying the doctrine of that case to the facts of this, we have concluded that the chancellor's finding is contrary to the preponderance of the evidence, and that the deed in question was executed for a grossly inadequate consideration, and for the purpose of defeating the dower right which otherwise appellant would have had. The decree is therefore reversed, and the cause will be remanded, with directions to the court below to enter a decree canceling the deed in so far as it affects appellant's dower as in fraud of her dower rights and to assign dower therein. WILLIAMS v. STATE. (No. 200.) (Supreme Court of Arkansas. Oct. 29, 1917.) In a prosecution for forging the name of one as surety on defendant's note, it was proper for a justice to identify and read his judgment and nonsatisfaction on the note to show that the complaining witness had been injured in his property, although the defendant had not been served but the surety had, and although the judgment recited that the name of the surety had been forged. 4. CRIMINAL LAW 824(8)—INSTRUCTIONSNECESSITY FOR REQUEST. A justice record being competent in a prosecution for forgery to show injury in his property of the one whose name was forged, the defendant cannot complain that it also recited that defendant had forged the name, where he did not ask for an instruction limiting the record to its proper purpose. 5. CRIMINAL LAW 673(2)-EVIDENCE CONCERNING AUTHORITY TO SIGN NAME OF ANOTHER. In a prosecution for forgery of the name of a brother, it was proper to limit evidence that the brothers had customarily signed each others' whether the particular brother whose name he names to notes as sureties, to the question forged ever allowed him to do so. 6. CRIMINAL LAW 829(1)-INSTRUCTIONSMULTIPLYING INSTRUCTIONS. In a criminal prosecution, the defendant cannot complain of refusal to give instructions, where they are covered by other instructions as favorable as he had a right to ask. 7. CRIMINAL LAW 1171(3)-REMARKS OF COUNSEL ARGUMENT-MATTERS NOT OF RECORD. Remarks of counsel for state in argument that defendant had brought certain witnesses to prove certain things and the court refused to let him do it, and if he had any defense he could have shown it, were not prejudicial, where it was not stated what was to be proved. 8. CRIMINAL LAW 1154 ARGUMENT OF COUNSEL-DISCRETION of Court. Argument of counsel is generally within the discretion of the trial court in a criminal there is manifest error. case, and its rulings will not be reversed unless 9. CRIMINAL LAW 730(7)-HARMLESS ER ROR-IMPROPER ARGUMENT. Where the court instructs that if counsel made statements of matters not in proof to disregard them, and such a statement is made, and the court remarks, in refusing to exclude, that the instruction given fully covered the statements, any prejudice was removed by the court's remark. Appeal from Circuit Court, Randolph County; J. B. Baker, Judge. O. C. Williams was convicted of forgery, and he appeals. Affirmed. S. A. D. Eaton, of Pocahontas, for appellant. Jno. D. Arbuckle, Atty. Gen., and T. W. Campbell, Asst. Atty. Gen., for the State. HART, J. O. C. Williams was indicted for the crime of forgery charged to have been 1. FORGERY 44(2) - CONVICTION-SUFFICIENCY OF EVIDENCE. Evidence held sufficient to support a convic- committed by forging the name of his brothtion of forgery. 2. INDICTMENT AND INFORMATION -FORGERY-SUFFICIENCY. 110(15) er, Oscar Williams, to an instrument of writing purporting to be a promissory note, with the fraudulent intent to injure Lewis Dalton An indictment for forgery in the words of in his estate. He was tried before a jury the statute is sufficient, the charge that defendant did "forge and counterfeit" stating a and convicted, his punishment being fixed at fact and not a conclusion, and it was not neces- a term of two years in the state penitentiary. From the judgment of conviction he has duly prosecuted an appeal to this court. On the part of the state it was proved that the defendant, O. C. Williams, owed Lewis Dalton a promissory note in the sum of something over $100. He made payments sufficient to reduce the indebtedness to $61.65. Dalton agreed to grant Williams an extension of time if he would make a new note and get his brothers other than L. E. Williams as sureties. O. C. Williams executed a new note to Dalton for $61.65, and the note purports to have been signed by Oscar Williams and other persons. After the note became due, Dalton, being unable to collect the note from O. C. Williams, demanded payment thereof of Oscar Williams. Oscar Williams refused to pay it and denied that he had signed the note. Oscar Williams was placed upon the stand by the state and the note in question was presented to him. He denied that he ever signed the note or authorized any one else to sign it for him. On cross-examination Oscar Williams stated that it had been the practice of his other brothers to sign each others' names to notes without consulting each other about it. He stated that he had never signed any of his brothers' names to notes, but that his brothers had signed his name to notes before the execution of the one in question; that the defendant had signed his name several times to notes before this and that he had not made any objection. On redirect examination he stated that there was no understanding that the defendant might sign his name to notes; that, while he had done this several times, there has been no understanding that he should do it. He stated again that he did not give his brother permission to sign his name to the note in question. When Oscar Williams was sued on the note he defended on the ground that his name on the note had been forged. The defendant testified that he signed the name of Oscar Williams to the note; that the reason he did so was that Oscar had always told him to do it; that it had been the practice of the brothers to sign each others' names to notes; that Oscar had never before objected to him signing his name to notes; that at the time he signed Oscar's name to the note in question he had no thought or intention of injuring Lewis Dalton in his property. [1] The evidence on the part of the state, if believed by the jury, was sufficient to warrant the conviction of the defendant. [2] The charging clause of the indictment reads as follows: "The said O. C. Williams, in the county and state aforesaid, on the 9th day of May, 1914, did then and there fraudulently and feloniously forge and counterfeit the name of Oscar Williams to an instrument of writing purporting to be a promissory note, with the fraudulent intent to him, the said O. C. Williams, then and there to cause Lewis Dalton to be injured in his estate and lawful rights." It is the contention of the defendant that the indictment is defective because it did not state that the note was signed without the authority of Oscar Williams. Authorities are cited by him to sustain his contention, but we think they are not in accord with the trend of our own decisions and are contrary to the better reasoning on the question, Forgery is a crime defined by our statutes and it is sufficient under our Criminal Code, as a general proposition, to allege such an offense in the words of the statute. In Ary v. State, 104 Ark. 212, 148 S. W. 1032, it was held that an indictment for the forgery of a check which alleged that the accused "did make, forge, and counterfeit the check, with the intent fraudulently and feloniously to obtain possession of the property of B. M.," sufficiently alleged that said B. M. did not sign the check or authorize it to be signed. Now the indictment here uses the words, “did then and there fraudulently and feloniously forge and counterfeit the name of Oscar Williams." These words are a statement of facts and are not a mere conclusion of law. In the case of State v. Foster, 30 Kan. 365, 2 Pac. 628, the court held that forgery in that state was a statutory offense, and that as a general proposition it was sufficient to allege such an offense in the words of the statute. The court said: "While there may be some limitations on this general doctrine, as where the statute simply terms name its constituent elements, yet we designates the offense, and does not in express think the rule obtains in the case at bar. Of course it was never the duty of the pleader to 'pass, utter, and publish' make a clear and suffnarrate the evidence, and we think the words cient description of fact. They are words of common use, and refer to acts which are understood by every one.' In the case of State v. Greenwood, 76 Minn. 211, 78 N. W. 1042, 1117, 77 Am. St. Rep. 632, the court said: "The gist of the offense of forgery is the inable to set out the name of the person intended tent to defraud. It is not necessary nor advis to be defrauded. The elements of fraud to be charged in the indictment, according to the law books, are a writing apparently valid, and evil making of such writing." intent on the part of the accused, and a false The court held that the matters just referred to are all charged in an indictment which uses the word "forge," and that the word "forge" contains a statement of fact and not a mere conclusion of law, and includes the false making of an instrument, in whole or in part. Tested by this rule we are of the opinion that the indictment în question was not defective. [3] The next assignment of error on the part of the defendant is that the court erred in allowing the justice of the peace to testify that a judgment had been rendered in his court in favor of Dalton against the defendant, and that no part of the judgment had been paid. The note had been filed be fore the justice of the peace and judgment had been rendered on it. It was competent case." for the justice of the peace to identify his, the defendant in signing the name of said Osrecord and read it in evidence before the jury car Williams to the note in evidence in this in order to show that the note had never been paid and thus to establish that Dalton had been injured in his property. It is true that the defendant testified that he was not served with summons in the suit before the justice of the peace and the record shows that fact, but the record of the justice of the peace also shows a return of summons by the sheriff of personal service on Oscar Williams in the township where the justice of the peace resided and held office. [4] It is also contended that the judgment of the justice of the peace should not have been introduced in evidence, because it contained a recitation of a finding by the justice that Oscar Williams did not sign the note but that his name was forged thereto by O. C. Williams. A general objection only was made to the introduction of the judgment of the justice of the peace. As before stated, it was competent to introduce it to show that the note had not been paid, and thus to establish that Dalton had been injured in his property. The defendant should have asked by appropriate instructions or otherwise to have it limited for that purpose, but not having done so, he is not now in the attitude to complain. Without approving the form of this instruction, it may be said that it was as favorable to the defendant as he had a right to ask. Error is assigned in refusing other instructions asked by the defendant. We do not deem it necessary to set out these instructions. The defendant admitted that he signed his brother's name to the note in question and his sole defense is that he had been in the habit of signing his brother's name to notes before and that he had never objected to his so doing; that he had no thought or intention of injuring Dalton in his property when he signed his brother's name to the note but believed that he had a right to sign it. The defendant's theory was fully presented to the jury by the instructions given by the court, and he cannot complain that the court refused to multiply instructions on this point. [7-9] Special counsel for the state, in his closing argument to the jury, used the following language: "The defendant brought John Williams here, and L. E. Williams, and placed them on the witness stand to prove certain things, and the court promptly refused to let him do it. If he had any defense he could have shown it." [5] It is next contended by counsel for the defendant that the court erred in not allowing L. E. Williams and John Williams to It is contended that this was error betestify as to a practice among the Williams cause if the court refused to permit defendbrothers in signing each others' names to ant to prove certain things by these witnessnotes. The testimony offered to the jury by es, then such matters were not in the record the defendant was that a practice existed and it was not proper for counsel to comment among the Williams brothers generally in on them. It will be noted that counsel did signing each others' names to notes. The not state what defendant had offered to court held that this was too general, but prove by his brothers and it does not seem offered to allow the defendant to prove that to us that the language used could have in it had been the practice of Oscar Williams any wise prejudiced the defendant's rights to allow him to sign his name to notes. The before the jury. The argument of counsel is court was right in its ruling. The fact that generally within the discretion of the trial any of his other brothers had permitted the court, and its rulings in regard thereto will defendant to sign their names to notes would not be reversed unless there is manifest erhave no tendency to prove that Oscar Wil-ror therein. The court gave the jury a liams had given such permission to the de-specific instruction in which it told the jury fendant. Tongs v. State, 197 S. W. 573. that if counsel made statements of matters not in proof, it should disregard those statements entirely, disregarding prejudice, denunciation, and sympathy, and follow the law and evidence. [6] It is next insisted that the court erred in refusing to give instruction No. 2 with reference to the practice of the Williams brothers in signing each others' names to notes. The instruction need not be set out here. The instruction was fully covered by an instruction which the court gave which is as follows: The court further told the jury that what the attorneys said they believed about the case should not be considered by the jury. The court refused to exclude the remarks in question, giving as its reason for such refusal that the instruction it had already given fully covered the statements. Thus it will "You are further instructed that if you believe from the evidence in this case that the defendant had been in the habit of signing the names of his brothers, including Oscar, to instruments of writing, with the knowledge and be seen that if any prejudice might have reconsent of Oscar Williams, without objection sulted to the defendant from the remarks, by said brothers or any of them thereto, prior it was removed by the remarks of the court. to the signing of the note, the forgery of which We have carefully considered the record is charged in the indictment in this cause, then you will be authorized to consider such fact in and, finding no prejudicial error in it, the |