mencement of the action. The plaintiff responded, admitting such intermarriage, and asked that the cause proceed in her name, Regina Tomlinson Cleere, as administratrix, and that her husband be joined with her in the suit. She asked that she, in her own interest as widow, and Arthur T. Tomlinson, the infant son and only heir at law of said decedent as the next of kin, be also made parties plaintiff. These requests of the plaintiff were granted by the court, and the cause proceeded accordingly. The final judgment of the court awarding damages was rendered only in favor of the administratrix.

B. S. Johnson, for appellant. Ashley Cockrill and Murphy & Mehaffy, for appellee.

MCCULLOCH, J. (after stating the facts). 1. The initial question presented for our consideration is, should the action have been abated on account of the remarriage of the administratrix? In passing upon that point we waive the question whether, conceding that the remarriage of the administratrix ipso facto revoked her letters, and left no administration pending, the widow and heir at law could properly be made parties plaintiff, and the cause allowed to proceed in their names. This was done, and the cause proceeded in their names, as well as in the name of the administratrix, though the final judgment was rendered in favor of the administratrix. The statute provides that "every such action shall be brought by and in the name of the personal representative of such deceased person, and if there be no personal representatives, then the same may be brought by the heirs at law of such deceased person." Kirby's Dig. § 6290. But we uphold the ruling of the court upon a different ground from that of the right of the widow and heir to be substituted as parties plaintiff. The plaintiff derived her powers from letters of administration issued to her from the proper court exercising probate jurisdiction in the state of New York, where the decedent lived and claimed his citizenship at the time of his death, and where the plaintiff also resided. A foreign executor or administrator is permitted, by the statutes of this state, to sue here. Kirby's Dig. § 6003. Under the laws of that state, which must control us in determining the question, and of which we take judicial knowledge (Act April 11, 1901, Kirby's Dig. § 7823), married women are legally capable of acting as administratrices, and, that being true, it necessarily follows that the marriage of an administratrix did not revoke her letters. The course of legislation in that state on the subject is reviewed in the case of Re Benj. Curser Estate, 89 N. Y. 401. See, also, Hamilton v. Levy, 41 S. C. 374, 19 S. E. 610; Moss v. Rowland, 3 Bush, 505; Railway Co. v. Cutter, Adm'x, 16 Kan. 568. No error was committed in refusing to sustain the plea in abatement.

2. Numerous errors are assigned in the giv

ing of instructions asked by plaintiff and in refusing to give certain instructions and modifying others asked by the defendant. Nine separate instructions were given at the request of the plaintiff and 15 at the request of the defendant, some of which were modified. All of them need not be copied here, but only such as we deem it important to discuss. Instruction No. 3 given at plaintiff's request is as follows: "(3) If you find from a preponderance of the evidence that the defendant railway backed one of its engines over a track between the coaches and the platform, without a guard or lookout, or not having such guard or lookout, without signal or warning which, under the circumstances, would reasonably attract the attention of a man of ordinary care and prudence, who was rightfully engaged in passing between the coaches and the station platform, the railway was guilty of negligence, and you should so find." Error is alleged in that the word “guard” is used in the instruction, though the statute only requires a lookout to be kept; and that the instruction assumes the existence of the fact that plaintiff's intestate was rightfully upon the track. We do not think that the instruction is open to either of the objections named. The court was there telling the jury what would constitute negligence on the part of the railway company. It is true the statute only requires that a lookout be kept, but the court in effect said that if either a guard or lookout was kept, or if, in the absence of such guard or lookout, such signals or warnings were given as would, under the circumstances, reasonably attract the attention of a man of ordinary care and prudence rightfully engaged in passing between the coaches and station, then the company was guilty of no negligence. An instruction on that subject which omitted the word "guard" would have been erroneous and prejudicial to appellant's interest, as there was some testimony tending to show that a guard was maintained near by, who warned persons about the tracks, and in the face of that testimony it would have been improper to instruct the jury that the failure to keep a lookout was negligence. On the other hand, if the servants of the company kept neither a guard nor lookout, nor gave signals or warnings such as would reasonably attract the attention of a man of ordinary care and prudence rightfully engaged in passing between the station and the coaches, then open for the reception of passengers, then they were guilty of negligence, and the jury were properly so instructed. This instruction must, of course, be considered in connection with the others, and particularly the following, given at the instance of the defendant: "(17) The court instructs the jury that defendant's only duty in running said engine was to use ordinary care with reference to speed of same, to keep a lookout while passing through the station, and to give signals by

ringing the bell; and if the proof shows that these things were done, then there was no negligence, and your verdict should be for defendant." The two, when read together, constitute a correct and complete exposition of the law on the question of negligence as applicable to the facts of this case, and were quite as favorable to appellant as the facts warranted. No higher degree of care was exacted of appellant's servants by the instruction complained of than is done by the following language contained in the fourteenth instruction asked by appellant's counsel, viz.: "Although it is the duty of the railway company by lookout, by bell signals, and by such other means as ordinary prudence may dictate, to endeavor to protect him, it has the right to assume that he has knowledge of his surroundings, and knows that the engines and trains may pass, and that he will use ordinary care to protect himself," etc. Nor does the instruction involve an assumption by the court of the fact that Tomlinson was rightfully upon the track. The question whether he was, at the time he was killed, crossing the tracks upon the invitation of the railway company, was the chief point at issue in the case, and the proof and instructions were directed specifically to it. All the instructions must be considered together, and the question was plainly submitted to the jury for determination upon instructions given at the instance of each party, and the jury could not possibly have understood that the existence of that fact was assumed by the court. Brinkley Car Works v. Cooper (Ark.) 87 S. W. 645; Fort v. State, 52 Ark. 180, 11 S. W. 959, 20 Am. St. Rep. 163. The eighth instruction, given at the request of the defendant, is an example of the manner in which the question was submitted: "One who, after having escorted a passenger to his coach, leaves the coach, and then returns without any necessity therefor, and for his own pleasure merely, is a licensee, and cannot be said to have returned upon an implied invitation of the carrier, and the carrier owes him no duty save to keep a lookout, and not to wantonly injure him."

The next assignment of error is in the giving of instruction No. 7 asked by the plaintiff, which is as follows: "(7) You are instructed that the fact alone, if proved, that Tomlinson pulled his cape over his head in such manner as only partially to obstruct his ability to see or hear an approaching train, or both, and in that condition stepped or walked in front of an ap'proaching engine, does not necessarily render him guilty of contributory negligence; the question for you to determine being then whether Tomlinson exercised ordinary care and prudence under the circumstances." The court also gave, in the following modified form, instructions on the subject of contributory negligence, asked by appellant, viz.: "(7) The court charges the jury that if they

find from the evidence that Tomlinson, in order to keep the rain off, enveloped his head in the cape or hood of his coat just before he passed upon the track, so as to obstruct his vision or hearing, and in this condition stepped, ran, or walked upon defendant's track immediately in front of a backing engine, and was immediately struck and killed by it, when he would have seen or heard the engine approaching had his vision or hearing not been obstructed, then he was guilty of contributory negligence, and your verdict should be for the defendant." "(9) If the jury find from the evidence that the deceased attempted to cross over one of defendant's tracks during a heavy rain, with his head and ears so muffled up as to ob struct his hearing or seeing an approaching engine, and in making such an attempt stepped in front of a moving engine, was struck, and killed, then the court tells you that he was guilty of contributory negligence, and there can be no recovery against the defendant." And the following in the form asked by appellant, viz.: "(15) If the jury find from the evidence that Tomlinson pulled his cape or hood over his head, covering his eyes and ears so that he could only see directly in front, and in this condition plunged on the track just before the tender of the backing engine, then he was guilty of contributory negligence, and your verdict should be for the defendant." This court, on the former appeal of this case, said: "While it cannot be said as a matter of law that a person crossing a track of a railroad by invitation of the company should, under all circumstances, look and listen for approaching trains, neither, on the other hand, can it be said that they should not do so; the question, as before stated, being usually one for the jury to determine. Yet certainly a person in such situation should not lose sight of the fact that he is in a place of danger to a careless person. He should not close his eyes or stop his ears so that warning of danger would not reach him." It will be observed that the court did not hold that a partial obstruction to the sight or hearing would necessarily be contributory negligence, but said that, if Tomlinson "pulled his cape over his head, covering his eyes and ears, so that he could see directly in front only, and plunged, in this condition, on the track, just before the tender of a backing engine," he was guilty of such negligence as would bar a recovery. In other words, it was held that Tomlinson's failure to look and listen was not necessarily negligence, but that if he obstructed his vision and hearing so as to put it beyond his power to see or hear, he was, as a matter of law, guilty of contributory negligence. It follows from this that if, in crossing the track, he pulled his cape over his head in such manner as only partially to obstruct his vision or hearing, and not to put it beyond his power reasonably to hear the approach

payment of the debt Mrs. Nash brought a foreclosure suit. Mrs. Bendy filed a crosscomplaint against her father in that suit, alleging that he had fraudulently taken the deed from Mrs. Attaway to himself, instead of taking it to her; that it was with her money, procured on her note and mortgage from Mrs. Nash, that the Attaway judgment was compromised and title obtained from her; and that she had only recently learned of her father's fraud, and praying that the land be deeded to her subject to the Nash mortgage. Mudford denied all the material allegations of the cross-complaint, and the issues were found in his favor by the chancellor. Mrs. Bendy supported her contentions as to the deed being fraudulently taken in her father's name instead of her own by her own testimony alone. Mudford positively denied all of these statements, and he is corroborated by several witnesses to this extent. When the compromise was consummated with Mrs. Attaway and the deed delivered, Mrs. Bendy was present, and signed and acknowledged the mortgage to Mrs. Nash, and the transaction was fully discussed. Mudford accounts for his daughter's signing the note and mortgage by the fact that the deed to him from his wife had not been recorded, and the title was incomplete, and

she did it as an accommodation to him. Mrs. Bendy also procured a subsequent deed from Mrs. Attaway, and she conveyed one-half interest in the land to Mr. Garrison. Mrs. Bendy has deeded her interest to her father since this appeal was taken, and asks that the decree be affirmed.

The rights of Garrison remain to be determined, and they depend upon the rights of his grantor at the time of the conveyance to him. Mrs. Bendy testifies positively that she knew nothing of her mother's deed to her father, and relied on her father's statements that it was her mother's property, inherited by her, when she swore to the intervention in his presence and at his request, which contained such allegations. Mudford swore his daughter knew of the deed, but makes lame and impotent explanations of the intervention. It is evident he was guilty of subornation of perjury, if his present statements are true, when he procured his daughter to make this oath, and ought to be prosecuted therefor; but that does not affect the title to the property. The title unquestionably passed to Mrs. Attaway, and this intervention did not prevent it, as he sought it to do, and the only issue here is one of fact whether Mudford was the purchaser from her or whether the daughter was. Mudford's statements are corroborated by several witnesses who were present when the transaction took place, and are reputable and disinterested, and their account of Mrs. Bendy's conduct and acquiescence in the proceeding is wholly inconsistent with her present contention. The chancellor has found in his favor on this

state of the evidence, and the court cannot say that finding is against the preponderance of the evidence. The daughter's testimony is wholly without support, and he is supported by these witnesses who were present when the transfer was made. A great deal of corroboration is needed to give any credence to any testimony of Mudford's, in view of his reprehensible conduct disclosed in this record; but it is possible for him to tell the truth, and from the testimony of the other witnesses it appears that he did on this occasion, and the chancellor's finding adding persuasive weight to that side necessarily calls for an affirmance, and it is so ordered.

BATTLE, J., absent.

TOWN OF BENTON v. WILLIS. (Supreme Court of Arkansas. July 29, 1905.) 1. STATUTES-CONSTRUCTION-PRESUMPTIONS. The Legislature must be presumed to have known of a prior statute, and to have had reference thereto in enacting a subsequent one on the same subject.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, § 303.]

2. SAME REPEAL BY IMPLICATION.

Repeals by implication are not favored, and to work such a repeal there must be a repugnance between the earlier and later law, or the latter must clearly cover the whole subjectmatter of the former.

[Ed. Note. For cases in point, see vol. 44, Cent. Dig. Statutes, §§ 228–230.]

3. ANIMALS IMPOUNDING - STATUTES PEAL.

RE

Act May 23, 1901 (Kirby's Dig. § 5450), authorizing cities of the first and second classes and incorporated towns to prevent the running at large of certain animals within their corporate limits, and to restrain and impound such animals when running at large in violation of ordinance, does not repeal Act April 20, 1895 (Kirby's Dig. § 5451), prescribing the procedure in case animals are impounded, and requiring the giving of notice to the owner, if known, and the publication of notice if the owner is not known, and providing for the redemption of the animal by the owner.

Appeal from Circuit Court, Saline County; Alexander M. Duffie, Judge.

Replevin by E. S. Willis against the incorporated town of Benton. From a judgment for plaintiff, defendant appeals. Affirmed.

The case was submitted on the following agreed statement of facts, to wit: That plaintiff is the owner of the 11 hogs sued for; that plaintiff resides outside the incorporated town of Benton; that the hogs were taken up by the poundmaster while running at large within the incorporated town of Benton, and by him put in the town pound; that plaintiff, within 24 hours after they were im. pounded, made demand for said hogs, but did not pay the impounding charges, nor offer to pay them; that defendant refused to deliver up said hogs; and that this occurred on the 28th day of March, 1903. The

cretia A. McGinty, Bernice W. McGinty, and Lois L. McGinty, against the Kansas City Southern Railway Company, to recover judgment for the damages to them caused by the killing of Joseph W. McGinty by the negligent operation of defendant's railway. Ida L. is the widow of the deceased, and Lucretia A., Bernice W., and Lois L. McGinty are minors and the children of Joseph W. and Ida L. McGinty. The widow and children are residents and citizens of the Indian Territory, and the defendant is a corporation created and existing by virtue of the laws of the state of Missouri, and operates a railway from the city of Ft. Smith, Ark., to the town of Spiro, in the Indian Territory, and from thence to the town of Panama, in the same territory, and elsewhere. The action was brought in the Sebastian circuit court for the Ft. Smith district. Plaintiffs alleged in their complaint the foregoing facts and as follows:

"That upon the 9th day of October, 1900, the said Joseph W. McGinty was at the station of Spiro, Indian Territory, and desired to take passage upon the train of the defendant railway company from said station of Spiro to the station of Panama, Indian Territory.

"That the defendant railway company was operating a passenger train from said station of Spiro to the station of Panama, and inviting the public to take passage upon said train, which was what is commonly designated a local freight, and which said local freight carried passengers for hire.

"That the said Joseph W. McGinty went to the station of the defendant railway company at Spiro, Indian Territory, to take passage upon said train to the station of Panama, Indian Territory, at the time when the said train was about to leave said station at Spiro for said station of Panama, and at the usual place of taking passage upon said train; and that he was in the act of embarking thereon as a passenger, when the defendant, carelessly, negligently, and without due regard for the safety of said passenger caused said train to be suddenly and violently jerked backwards, thereby causing the said Joseph W. McGinty to be thrown under the wheels of said train, whereby he was instantly killed. That the employés of the defendant railway company did see, or by the exercise of ordinary care and caution could have seen, the said Joseph W. McGinty was in the act of taking passage upon said train when said employés caused the same to be violently and suddenly jerked backward.

"That the plaintiff as widow, and the said minor children, have been damaged by the loss of the life of the said husband and father in the sum of twenty-five thousand dollars."

The defendant, on September 9, 1901, it being the first day of the Sebastian county circuit court for the Ft. Smith district held after the commencement of the action, filed

a petition and bond asking for the removal of the action to the United States Circuit Court for the Western District of Arkansas.

The first ground of removal is the parties are citizens of different states, the plaintiffs being citizens and residents of the Indian Territory and the defendant a citizen and resident of the state of Missouri, it being organized under the laws of that state; and the second ground is stated as follows in the petition: "The property of the defendant against which this action is leveled is located in the county of Sebastian, Ft. Smith district, and state of Arkansas, in which county this suit is brought and is now pending. Under the laws of the state of Arkansas, judgment, if obtained, will be a lien on property of the defendant located in the Ft. Smith district of Sebastian county. The plaintiffs in their complaint ask for judgment against your petitioner for the sum of twenty-five thousand dollars, and also pray other and general relief; and part of the relief to which the plaintiffs are entitled under that prayer is that said judgment, if obtained, can be declared a lien on all the property of your petitioner located in the Ft. Smith district of Sebastian county and state of Arkansas. And therefore the plaintiffs seek to have judgment declared a lien against defendant's property located in said county and district."

This petition was denied. Thereafter an amended petition was filed, and, it being filed out of time, was also denied; the time to plead or answer plaintiff's complaint allowed by the statutes having expired. The defendant then answered, denying the allegations of the complaint and alleging contributory negligence. Evidence was adduced in the trial in the case, which tended to prove the following facts:

On the 9th day of October, 1900, a freight train of the defendant, with caboose attached, in which passengers for hire were carried, stood upon the track at the station of Spiro, in the Indian Territory. The caboose was a little north of the door of the station. The defendant's employés rearranged the train, taking out and putting cars in. When this work was about completed, Joseph W. McGinty approached the caboose, put one foot on its step as if in the act of entering it, and stood with his foot in that position, with the other on the platform, and one hand on the shoulder of a friend, and so stood for a few minutes, talking to the friend; and while he was standing in this position the train was moved back suddenly for the purpose of coupling cars. He was knocked down by the movement, jerked under the train, and killed.

Mrs. Ida L. McGinty was his wife, and the other plaintiffs were his children.

The court gave the following, among other, instructions, over the objections of the defendant, to the jury:

"(12) If the position in which deceased