created right (by section 5225) results from, and accrues on, the death of 223 the injured party. Both actions are prosecuted in the name of the personal representative, where there is one, and may proceed pari passu, without a recovery in the one having the effect of barring a recovery in the other, because the suits are prosecuted in different rights, and the damages are given upon different principles to compensate different injuries. One is for the loss sustained by the estate and for the suffering from the personal injury in the lifetime of the decedent, the recovery of which goes to the benefit of the decedent's creditors, if there are any; the other takes no account of the wrongs done to the decedent, but is for the pecuniary loss to the [widow and] next of kin, occasioned by the death alone. The death is the end of the period in the one case, and the beginning in the other. In the one case the administrator sues, as legal representative of the estate, for what belonged to the deceased; in the other, he acts as trustee for those upon whom the act confers the right of recovery for the pecuniary loss inflicted upon them."

The suit at bar must be regarded as an action by the plaintiff as administrator for the benefit of the estate of the deceased; and, viewing it as such, the complaint, which lays its damages for the death of the deceased, would be bad on demurrer; for damages for the death of decedent, when recovered, are no part of the assets of the estate, to be distributed to creditors and so forth. But as no demurrer was interposed, and since the manner of eliciting the testimony, the language of the instructions, the argument of counsel, and the verdict of the jury and judgment of the court all go to show that the parties, the jury, and the court all treated the claim of the plaintiff as one for the injury to deceased in his lifetime, that is to say, for the pain and suffering he endured from the moment he was stricken until the moment of his death, which was legitimate, 224 we will also treat the case in that way, and consider the complaint as amended to correspond with the proof.

The court is of the opinion that the evidence of negligence on the part of the defendant company, and its servants and employees, is sufficient to authorize the verdict of the jury, and that the evidence as to pain and suffering is sufficient to justify the verdict for actual damages; and a majority is of the opinion that there is evidence of wanton disregard of the rights and safety of others on the part of the defendant's

AM. ST. REP., VOL. XLIII.—3

employees, upon which the jury may have assessed punitive damages, as they did.

As to the defense of contributory negligence, a majority of the court is of the opinion that, whether or not the conduct of deceased in handling the broken wires was careless, somewhat depends upon the object he had in so doing, and also upon his knowledge or ignorance of all the elements of danger connected therewith, and that the jury may have found from the evidence that he was not guilty of contributory negligence, notwithstanding the warnings that were given him.

Thus, having in view the prerogative of the jury, we do not feel justified in disturbing their verdict.

The instructions of the court, as given, when taken all together, we think fairly and substantially declared the law to the jury.

The judgment is therefore affirmed.

NEGLIGENCE-LIVE ELECTRIC WIRES IN STREETS. -Electric corporations permitted to use the public streets for their own purposes must be required to use the utmost degree of care in the construction, inspection, and repair of their wires and poles, to the end that travelers along the highway may not be injured by their appliances: Haynes v. Raleigh Gas Co., 114 N. C. 203; 41 Am. St. Rep. 786, and note, with the cases collected.

NEGLIGENCE-CONTRIBUTORY -WHEN A QUESTION FOR JURY.- When considerable doubt exists as to whether or not the plaintiff is guilty of contributory negligence, that question should be submitted to the jury for its determination: People's Bank v. Morgolofski, 75 Md. 432; 32 Am. St. Rep. 403, and note. When contributory negligence is relied on as a defense, unless evidence thereof is so plain and convincing as to leave no doubt in the minds of reasonable men, it is error for the court to peremptorily instruct for the defendant: Nesbitt v. Greenville, 69 Miss. 22; 30 Am. St. Rep. 521, and note, with the cases collected.

WOLF V. STATE.

[59 ARKANSAS, 297.]

INTOXICATING LIQUORS-ELECTIONS-CONSTRUCTION OF STATUTE.—Under a statute making the giving away of intoxicating liquor on an election day a misdemeanor it is no defense that the giving away of such liquor on such day has no connection with or reference to the election then being held.

EVIDENCE. JUDICIAL NOTICE is taken of the fact that wine is an intoxicating liquor.

A. S. McKennon, for the appellant.

J. P. Clarke, attorney general, and C. T. Coleman, for the appellee.

297 HUGHES, J. The appellant was convicted of giving away intoxicating liquor in Logan county, in this state, 298 on the day of a general election for state officers, and appealed to this court. The liquor given away was wine. He con-tends that the court improperly refused an instruction whieh he asked, and committed error in the three instructions given.. These instructions are as follows: 1. "The jury are instructed that if the defendant, in Logan county, Arkansas, on election day mentioned in the indictment, within one year next beforethe finding the indictment, gave or sold to witness Weeks any quantity of intoxicating liquors, you will find him guilty, and assess his punishment at a fine," etc; 2. "If defendant conducted witness to the place, and assisted him in procur ing intoxicating liquors in any quantity, defendant is as guilty as if he sold or gave it from his own hand." The defendant objected to the giving to the jury each of said instructions, but the court overruled his objections, and the defendant at the time excepted.

The defendant asked the court to instruct the jury as follows: "If you find from the evidence that defendant was not a dealer in liquors, and was in no way connected with the sale of, or traffic in, liquors of any kind, and that the winegiven by him to the witness had no connection with, or reference to, the election then being held, you will find the defendant not guilty." The court refused this instruction, and the defendant excepted.

After argument of counsel the jury retired to consider their verdict at about 2:30 P. M., and during the afternoon were called into court twice, and interrogated by the court why they could not agree upon a verdict, and they replied that they differed as to whether the wine given to witness by defendant was intoxicating or not, and the court instructed them that such was a question of fact which they alone should decide; and kept them together until adjourning time, when they, under instructions, were permitted to disperse until 8 299 o'clock next morning, when they were called into court, and the court then further instructed them as follows: 3. "Wine is an intoxicating liquor within the meaning of the statute, and its sale or gift on election day is prohibited." Defendant objected to the giving of this instruction to the jury, but the court overruled the objection, and the defend ant at the time excepted.

Section 1850 of Mansfield's Digest makes the giving away

of any intoxicating liquors on the day of any election, or the succeeding night, in any county, city, town, or township in which said election may be held, punishable by fine of not Jess than two hundred dollars, or imprisonment for not less than six months, or both. It matters not that the giving away of the intoxicating liquor has no reference to the election. The statute makes no exception.

The court takes judicial knowledge of the fact that wine is an intoxicating liquor. It is a matter of common knowledge: Black on Intoxicating Liquor, sec. 5; 11 Am. & Eng. Ency. of Law, 582; Jones v. Surprise, 64 N. H. 243; State v. Packer, 80 N. C. 439; State v. Williamson, 21 Mo. 496.

The judgment is affirmed.

EVIDENCE.-JUDICIAL NOTICE As to What are Intoxicating Liquors: See the notes to Snider v. State, 12 Am. St. Rep. 353, and Lanfear v. Mestier, 89 Am. Dec. 694.

REYNOLDS V. SHAVER.

[59 ARKANSAS, 299.]

DEEDS-QUITCLAIM-LIABILITY UNDER.-A grantor conveying by deed of bargain and sale all his right, title, claim, and interest in and to a tract of land is not responsible for defects in the title beyond the covenants in his deed.

DEEDS OF ALL TITLE AND INTerest-Effect of Covenant of Warranty.— If a deed purports in terms to convey only the right, title, and interest of the grantor to the land described, instead of conveying in terms the land itself, a general covenant of warranty is limited to that right or interest, and cannot be broken by the enforcement of a paramount title outstanding against the grantor at the time of the conveyance.

SUIT in equity to recover damages for breach of covenant an a deed. A. G. Kelsey died, leaving a wife and minor daughter. D. Reynolds then married Kelsey's widow, and became the administrator of his estate, including the land in controversy, which was the homestead of Kelsey at the time of his death, and continued to be the homestead of Mrs. Kelsey and her daughter at the time that Reynolds married the former. As such administrator Reynolds conveyed the land in dispute to J. M. Shaver, who, in conjunction with his wife, subsequently conveyed the same land to Reynolds by a deed purporting to bargain and sale "all their right, title, claim, and interest in and to" the said land, describing it, "to have and to hold forever unto the said Dennis W. Reynolds, his

heirs and assigns. And we, the said James M. Shaver and Caroline Shaver, do, for ourselves, and our heirs and assigns, warrant and defend the same unto the said Dennis W. Reynolds." After the death of Mrs. Reynolds her daughter, before mentioned, brought ejectment against Reynolds for the land in controversy, and recovered judgment against him for a portion thereof. Reynolds then brought this suit against the heirs of James M. and Caroline Shaver, for am alleged breach of covenant of warranty contained in the deed from them to him. The trial court dismissed his suit for want of equity, and he appealed.

J. C. Hawthorne, for the appellant.

P. H. Crenshaw, for the appellees.

302 HUGHES, J. The contention of the appellant is that the covenants in the deed of Shaver and wife, Caroline, to him apply to the land described in the deed, and not to whatever "right, title, claim, and interest" the appellees" ancestor may have had at the time of the execution of the deed, which was all that the deed, in terms of the granting clause, purports to convey. The warranty is: "And we, the said James Shaver and Caroline Shaver, do, for ourselves and our heirs and assigns, warrant and defend the same unto the said Dennis W. Reynolds." It appears from the language in the granting part of the deed that Shaver and wife intended to convey only their "right, title, claim, and interest" in the land, and that they intended only to "warrant and defend. the same." This is the legal import of their warranty, that is, that they would warrant and defend such "right, title, claim, and interest" as they had in the land at the date of their conveyance, which was all they had conveyed. The conclusion that such was their intention seems apparent from the language of the conveyance, and is strengthened by the facts that Reynolds, as administrator of the estate of 302 Kelsey, had conveyed this land to Shaver while it was a homestead, and could not legally be sold by the administrator. The conveyance of Shaver and wife to Reynolds was, therefore, nothing more than a quitclaim deed.

In Van Rensselaer v. Kearney, 11 How. 322, it is said: "The general principle is admitted that a grantor, conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith and without any fraudulent representations, is not re