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, so 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 Ill. 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 214 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 Ill. 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. Dec. 301, and note, with the cases collected.

TEXARKANA GAS AND ELECTRIC LIGHT Co. v. ORR.

[59 ARKANSAS, 215.]

APPELLATE PRACTICE-OBJECTION FIRST RAISED ON APPEAL.-An objec 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 PROOF.-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 a storm, and which he undertook to move out of the way, was guilty of

contributory negligence in so doing, is for the jury to decide, from a consideration of the object he had in view, his knowledge or ignorance of all the elements of danger connected therewith, and previous warn ings to him of the danger of handling grounded wires.

ACTION to recover for death caused by negligence. The Texarkana Gas and Electric Light Company was a corporation operating electric lamps and wires in the city of Texar kana for the purpose of furnishing lights to its inhabitants. During the night of August 22, 1891, a severe storm raged in the city, and a portion of the wires of the company became broken and grounded about midnight. Information that the wires were down reached the power-house of the company about two o'clock A. M., but it continued to keep power on, and to send the electricity through its system of wires. Some hours after daylight, about six o'clock A. M., Ed Wallace was crossing one of the streets of the city, and caught hold of a dead wire lying in the street. He was informed by one Cole of the danger of meddling with the wires, and that a hog had been seriously shocked a short time before by coming in contact with a live wire. Notwithstanding this warning he continued to drag the wire across the street until ordered by a policeman to put it down. In apparent obedience to this order he grasped the wire with both hands, tossing it back and forth, preparatory to throwing it aside.. While so engaged the wire in his hands crossed a live wire, thus bringing him in contact with the electricity, and he fell dead almost immediately. From the evidence it appeared that the deceased was a boy, not yet arrived at the age of manhood; and Chief Justice Bunn said, in writing a statement of the facts in the case, that the deceased “ appears to have been of that indiscreet age which is between the irresponsibility of youth and the full responsibility of manhood. He appears to have been at an age when it might fairly be left to the jury to say how far he should be held responsible in any given state of case." After verdict and judgment against the electric light company for both actual and punitive damages it appealed.

Scott & Jones, for the appellant.

J. D. Cook, for the appellee.

221 BUNN, C. J. The objections 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, should have been made and insisted on, by way of motion, at an earlier stage of the proceedings, and are not available now.

At common law no action lay for the death of a person produced by the negligence or wrongful act of another. Now, by statute (Mansfield's Digest, sections 5225 and 5226), an action lies for damages growing out of the death, at the instance of the administrator, for the benefit of the widow and next of kin, and, in the absence of an administrator, at the instance of the heirs at law, for the same purpose. The suit authorized by these two sections is not for the benefit of the estate of deceased. 222 The proceeds do not go into the hands of the legal representative, to be distributed to creditors and heirs, and others entitled under the statute of administration, but to be distributed to the widow and next of kin "in the proportion provided by law in relation to the distribution of personal property left by persons dying intestate"; and the damages are to be such as the jury, in each case, "may deem a fair and just compensation, with reference to pecuniary injuries resulting from such death, to the wife and next of kin of such deceased person."

Again, a suit for damages to person or property, which might be brought by the injured person, did not, at common law, survive to his legal representative, and if it had been instituted by the deceased in his lifetime it abated at his death. Now, by statute, however (Mansfield's Digest, section 5223), an "action may be maintained against the wrongdoers, and such action may be brought by the person injured, or, after his death, by his executor or administrator, against such wrongdoer, or, after his death (that of the wrongdoer), against his executor or administrator, in the same manner and with like effect in all respects as actions founded on contracts."

In construing these several statutes together (for they bear some relation to one another) this court, in the case of Davis v. Railway Co., 53 Ark. 117, said: "The right of action given by the latter statute (Lord Campbell's act, sections 5225 and 5226) to the personal representative of one whose death has been caused by the default of another, is created by the statute, and is not a continuation of the right of action which the deceased had in his lifetime. . . . . The right which accrued to the deceased survives to his administrator by virtue of the former statute (Mansfield's Digest, section 5223); the newly

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.-8