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HOMICIDE-SELF-DEFENSE.-Life may lawfully be taken in self-defense, but it must appear that he who takes it was in imminent danger of death or great bodily harm, and that no other way of escape from the danger was open to him: Commonwealth v. Breyessee, 160 Pa. St. 451; 40 Am. St. Rep. 729, and note, with the cases collected.

HOMICIDE TO PREVENT ESCAPE OF MISDEMEANANT.—Where one accused of a misdemeanor has been arrested and is fleeing, a peace officer is not justified in killing him to prevent his escape, although no other means of prevention are available: Thomas v. Kinkead, 55 Ark. 502; 29 Am. St. Rep. 68, and note; Handley v. State, 96 Ala. 48; 38 Am. St. Rep. 81, and note.

TRIAL-AFFIDAVIT OF JURORS TO IMPEACH VERDICT.-No affidavit, depe osition, or other sworn statement of a juror can be received to impeach or explain a verdict, or to show on what ground it was rendered: Weather. ford v. State, 31 Tex. Cr. Rep. 530; 37 Am. St. Rep. 828, and note; but in Gordon v. Trevarthan, 13 Mont. 387, 40 Am. St. Rep. 452, it was held that in Montana the affidavit of a juror may be received to attack his verdict if euch affidavit shows a resort to the determination of chance.

LEAMING V. MoMillan.


ness of an attorney's wife is an unavoidable casualty, excusing his non. attendance at court at the time his client's case is set for trial, and is ground for setting aside a judgment rendered at that time dismissing the action for want of prosecution, if the client has a meritorious cause of action, and has not been guilty of laches.

APPLICATION to set aside a judgment dismissing the action of Thomas Darling against McMillan and Dreyfus. Darling attached the property of the defendants, and subsequently one Waterman levied an attachment on the same property. At the term of court to which Darling's attachment was returned, and before any answer to his complaint had been filed, Waterman was made defendant to Darling's action, and a judgment of dismissal of the action for want of appearance and prosecution was rendered against him on the motion of Waterman. Darling at this time was over eighty years of age, feeble, and unable to leave his home, and had intrusted the management of the case entirely to his attorney, who, because of the serious illness of his own wife, was unable to attend court at the term when the judgment of dismissal was rendered. Neither Darling nor his attorney learned of this judgment of dismissal until the next term of court after it was rendered. Darling died before the term of court at which this application to set aside such judgment

was heard, and Leaming, his administrator, was substituted as plaintiff. The court denied the application to set aside the judgment of dismissal and to revive the action, and Leaming appealed.

Auten & Moss, for the appellants.

164 HUGHES, J. It appears from the statement of the case that the failure of the plaintiff, Darling, to appear at the term of the court when the judgment of dismissal was rendered was caused by an unavoidable casualty, and that the nonattendance of himself and counsel was excusable under the circumstances.

In Tidwell v. Witherspoon, 18 Fla. 282, it was held that "the neglect of an attorney to prepare and file a plea, caused by his being summoned to a distant place 165 on account of the serious illness of his wife, even though he might have made arrangements with another attorney to prepare it, or might have notified his client, yet did not do so because of his anxiety for his family, is not such neglect as should operate to the prejudice of his client." And in this case the judgment by default was opened up. In McArthur v. Slauson, 60 Wis. 293, it was held that the refusal of the trial court to open a judgment obtained in the unavoidable absence of the defendant's attorney, for the purpose of allowing a defense, was error: See, also, Snell v. Iowa Homestead Co., 67 Iowa, 405; Triplett v. Scott, 5 Bush, 81. In Nye v. Swan, 42 Minn. 243, a default by reason of the sickness of an attorney was opened to allow a defense. The statute of Minnesota made this a matter of right under the circumstances.

Under the circumstances of the case at bar, there being no contention that Darling's case lacked merit, we think no laches was imputable to him, and the sickness of his attor. ney's wife was an unavoidable casualty, excusing his nonattendance at the court.

We therefore reverse the judgment of the circuit court, with directions to reinstate the cause, and revive it in the Dame of Darling's administrator.

JUDGMENTS-VACATING FOR UNAVOIDABLE CASUALTY.–That an attor. ney was prevented from attending court by the serious illness of his wife is sufficient reason for vacating a judgment taken against him: Hill v. Crump, 24 Ind. 291. Where a defendant is constructively served, but was absent from the state on account of illness that prevented his return, a default against him will be vacated: Sage v. Matheny, 14 Ind. 369. That a

defendant was suffering from such a severe illness that he could not present his defense will justify the court in setting aside a judgment rendered against him: Luscomb v. Maloy, 26 Iowa, 444. To the same effect, see Bris. tor v. Gulvin, 62 Ind. 352. See Freeman on Judgments, 3d ed., sec. 115. For a thorough discussion of the subject of vacating judgments on the ground of “mistake, surprise, or excusable neglect,” see the extended note to Burnham v. Hays, 58 Am. Dec. 393; and the note to Williams v. Wescott, 14 Am. St. Rep. 296.

Hollis v. STATE.

(59 ARKANSAS, 211.) HOMESTEADS.-WIF£ IS ENTITLED TO CLAIM a homestead for herself and

children out of the property of her husband after he has become a fugi. tive from justice, if she and her children continue to remain on and

occupy the land. HOMESTEADS—LIABILITY FOR Costs. – Homesteads are not subject to sale

under execution to satisfy a judgment for a fine or costs in a criminal prosecution. Crump & Watkins, for the appellant. J. P. Clarke, attorney general, for the appellee.

313 RIDDICK, J. The facts in this case are as follows: Appellant, R. J. Hollis, a married man, the head of a family, and the owner of a homestead, was convicted of murder in the second degree in the Marion circuit court, and a judgment rendered against him for imprisonment and the costs of prosecution. After his conviction he broke jail and escaped. An execution on said judgment for costs, amounting to about eight hundred dollars, was issued against him. He was a fugitive from justice, his whereabouts unknown, but his family continued to remain and occupy the homestead. In the absence of her husband his wife filed a schedule, claiming the homestead and some personal property as exempt from sale under execution. The clerk of the court issued a supersedens staying the execution as to the homestead. On motion of the prosecuting attorney this supersedeas was quashed by the court, and the homestead 213 ordered sold. From this order an appeal was taken.

The question for this court to determine is whether the homestead is subject to sale under such circumstances. In other words, can the wife claim a homestead for herself and children after her husband has become a fugitive from justice, and is the homestead exempt from the lien of the state for costs in a criminal prosecution?

In the case of Harbison v. Vaughan, 42 Ark. 541, this court said that “the protection of the family from dependence and want is the object of all homestead laws"; that, "apart from his family, the debtor is entitled to no special consideration." As the protection of the family is the object of the homestead law, 80 it has been held that desertion of the family by the husband, still leaving the family occupying the homestead, is not an abandonment of the homestead: Moore v. Dunning, 29 III. 130; 81 Am. Dec. 301, and cases cited in note to same. This ruling is supported by sound reason; for to refuse the protection of the homestead to the wife and children when the husband has abandoned them would be to deprive them of it at a time when they needed it most, and would defeat the beneficent purpose of the homestead law. In this state, under the act of 1887, the wife can claim the homestead as exempt when the husband neglects or refuses to do so.

As to the question whether the homestead is subject to the lien of the state for costs in a criminal prosecution we think there is little room for doubt. The constitution expressly declares that it shall 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, laborers' or mechanics' liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them, and other trustees of an express trust for moneys due from them in their fiduciary capacity”: Const. 1874, art. 9, sec. 3.

The lien of the state for costs in a criminal prosecution is not a specific lien, nor does it come within the meaning of either of the other exceptions named. Homestead laws are intended for the protection of the families of those who are poor or unfortunate, and, in cases of this kind, there are no reasons why the state should be exempt from their operation. The supreme court of Illinois, in holding that the homestead could not be sold to satisfy a judgment against the husband for a fine and the costs in a criminal prosecution, said “that the object of these laws was to furnish a shelter for the wife and children which could not be taken away or lost by the act of the husband alone,” and that the state must submit to the same exemptions of a defendant's property that it imposes upon its citizens”: Loomis v. Gerson, 62 Il. 11.

The attorney general, with becoming candor, has furnished


us with this and other authorities, which conclusively show that a homestead is not subject to sale under an execution to satisfy a judgment for a fine or costs in a criminal prosecution: State v. Williford, 36 Ark. 155; 38 Am. Rep. 34; Massie v. Enyart, 33 Ark. 688; Fink v. O'Neil, 106 U. S. 272; Commonwealth v. Lay, 12 Bush, 283; 23 Am. Rep. 718; Smyth on Homesteads and Exemptions, sec. 185; Thompson on Homesteads, sec. 385.

We therefore conclude that the circuit court erred in quashing the supersedeas issued by the clerk, and its judg. ment is therefore reversed, and the motion to quash dismissed.

HOMESTEADS—WHAT DOES Not CONSTITUTE ABANDONMENT.—Desertion by the husband leaving the family still occupying the homestead is not an abandonment of the homestead. It still continues to be the home and residence of the husband, as well as of his family, at least until it is proved that he has acquired a residence elsewhere: Moore v. Dunning, 29 Ill. 130; 81 Am. Deo. 301, and note, with the cases collected.



tion that plaintiff should have sued as administrator, instead of merely denominating himself the administrator of deceased, and also that he failed to show his official character by a proper profert of his letters of administration, cannot be raised for the first time in the appellate court,

but should be taken advantage of by way of motion in the lower court. APPELLATE PRACTICE-AMENDMENT TO CONFORM TO PROOP.-If an action

by an administrator for the death of his intestate, caused by negligence, is erroneously brought for the benefit of the estate, instead of for the widow and next of kin, the appellate court must, in the absence of demurrer, treat the case as it was treated by the parties in the court below, as being a claim by the administrator for injury to the deceased in his lifetime, and consider the complaint as amended to correspond

with the proof. NEGLIGENCE-Live ELECTRIC WIRES IN STREET-DAMAGES. -Evidence that

an electric light company knew at night that its wires were grounded, that it nevertheless kept its power up, and that the next day a pedestrian was killed by coming in contact with a live wire in the street, is sufficient to establish gross negligence, and justify a verdict and judg.

ment for punitive as well as actual damages. NEGLIGENCE - CONTRIBUTORY-WHEN QUESTION FOR JURY.- Whether one

killed by a live electric wire which had become grounded during » storm, and which he undertook to move out of the way, was guilty of

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