ST. LOUIS, I. M. & S. RY. CO. v. SHAVER. (Supreme Court of Arkansas. July 29, 1905.) 1. RAILROADS KILLING OF STOCK - NEGLIGENCE-QUESTIONS FOR JURY.

In an action against a railroad for the negligent killing of horses, whether the engineer had time to sound the stock alarm after discovering the horses on the track, and whether, if the stock alarm had been given, the horses would probably have cleared the track, and whether the presumption of negligence raised against defendant under the statute had been overcome by proof, held, in view of the evidence, which was conflicting, questions for the jury.

[Ed. Note.-For cases in point, see vol. 41, Cent. Dig. Railroads, § 1637.]

2. APPEAL-REVIEW OF FACTS-CONCLUSIVENESS OF VERDICT.

A verdict of the jury sustained by the evidence will not be disturbed on appeal.

[Ed. Note. For cases in point, see vol. 3, Cent. Dig. Appeal and Error, § 3928.]

Appeal from Circuit Court, Greene County; Allen Hughes, Judge.

Action by A. S. Shaver against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Affirmed.

Appellee recovered judgment against appellant for the alleged negligent killing of two horses. The only question here is, was the evidence sufficient to sustain the verdict and the charge of negligence? The plaintiff testified that he saw tracks of horses where "they came on the track above the trestle, and they ran toward the trestle, and the train ran after them and caught them." He saw the tracks north of the trestle, 40 or 50 yards. To the best of his knowledge they were the tracks of his horses. "It seemed like the horses were killed close to the edge of the trestle." One was lying on the north side and the other on the south side of the trestle. The engineer testified that "as he came on the trestle there was a heavy fog lying over the creek, and he saw the horses in front of the engine." He did not see the horses come on the track. "It looked like they came right up the dump. They were not on the track there." He was "about twelve or fifteen feet from them." When he saw them he put on the emergency brakes. He did not have time to blow the whistle. He was keeping a lookout all the time, and his hand was on the brake valve when he saw them. The engine was within twelve feet of them before he saw them. He guessed the fog prevented him from seeing them before. They "seemed to be going straight across the track." "Question. They got on the track and undertook to cross? Answer. I don't know. They were not on the track, and all I could see was their neck." No earthly person could have prevented striking the horses. The fireman testified he was keeping a lookout. He saw a horse coming from the engineer's side. He did not see anything on the track before the horse was struck. He says, on the side he was on, he

88 S.W.-61

could not have seen anything on the track closer than 30 or 40 feet to the engine. The horse was knocked off on his side.

B. S. Johnson, for appellant. W. W. Bandy, for appellee.

WOOD, J. (after stating the facts). The evidence was sufficient to sustain the verdict. The jury were warranted in finding that the horses ran on the track 40 or 50 yards before they were knocked off and killed. The horses, it appears from the testimony of plaintiff, ran 120 or 150 feet. The engineer says he was looking out, but saw the horses first 12 or 15 feet in front of the engine, and only saw their necks, as they seemed to be "going straight across the track." If the horses ran upon the track 120 or 150 feet, as the evidence of plaintiff' would indicate, then from the time the engineer first saw them 12 or 15 feet ahead they must have run on the track, if plaintiff's evidence be true, about 108 or 140 feet. But the testimony of the engineer tended to show that the horses did not run down the track, but "came" right "up the dump," and "went straight across." This is in direct conflict with what the testimony of plaintiff tended to show. The fireman was not asked about the fog, but his evidence tended to show that on account of the "boiler head of the engine" he could not see anything "closer than thirty or forty feet to the engine." But for this obstruction it is not shown how far the fireman might have seen. There were such conflicts in the testimony as to make the proper deductions to be drawn from it a matter for the jury. Ry. v. Chambliss, 54 Ark. 214, 15 S. W. 469. It was for them, under the proof, to say whether the presumption of negligence under the statute had been overcome by the proof. The engineer testified that he did not have time to sound the whistle. But it was for the jury to say whether he had time to sound the stock alarm after discovering the stock, and whether, if the stock alarm had been given, the horses would likely have cleared the track. The jury found that there was negligence, and we will not disturb their verdict, as there is evidence to support it. Ry. v. Chriscoe, 57 Ark. 192, 21 S. W. 431; Ry. v. Costello, 68 Ark. 32, 56 S. W. 270. Affirmed.

buyer; Const. 1874, art. 9, § 1, and Kirby's Dig. 4966, providing that exemptions cannot be claimed in property in the hands of a buyer against a debt for the price.

Appeal from Circuit Court, Clay County, Eastern District; Allen Hughes, Judge.

Action by W. G. Jones against Robt. Liddell. From a judgment for plaintiff, defendant appeals. Reversed.

Hawthorne & Hawthorne, for appellant. J. H. Hill and F. G. Taylor, for appellee.

HILL, C. J. The appellee, Jones, purchased two horses and harness of one Strong for $180, and to secure payment of the purchase money executed a mortgage to Strong on the horses and harness and also one log wagon. Strong was indebted to Hancock, who sued him, and caused attachment to issue, and ran a garnishment on Jones. The result of this proceeding was the sustaining of the attachment and a judgment against Jones in favor of Hancock for the debt of $180 which he owed Strong for the horses. Hancock caused execution to issue, and the horses, harness, and wagon were levied on. Jones filed a schedule of his personal property, and claimed this property as exempt. The circuit court held it exempt, and the sheriff, representing the rights of Hancock, the judgment plaintiff, prosecuted this appeal.

There are two lines of decisions on the effect of a garnishment; one holding that it amounts to a compulsory assignment of the debt, and carries with it the liens securing the debt; the other holding that it does not operate as an assignment, but is an impounding of the debt for the garnisher's benefit. The cases on this subject are collected in a note under section 192, Rood on Garnishment. This court, in Smith v. Butler, 72 Ark. 350, 80 S. W. 580, held that the garnishment, when carried into judgment, operated to transfer to the garnisher all the rights of the judgment defendant, and give him the rights and remedies possessed by him, including a lien to secure the indebtedness. Therefore it follows that Hancock became the owner of the debt of Jones and the mortgage securing it, and became possessed of the same rights which Strong, the mortgagee, possessed. When Hancock levied on the property in question he waived the mortgage which he then owned by operation of law. No one else could levy on the property, because mortgaged chattels are not subject to execution. Jennings v. McIlroy, 42 Ark. 239, 48 Am. Rep. 61. The mortgagee, however, can waive his mortgage rights, and levying an execution upon the property is inconsistent with the mortgage, and a waiver of it. Cox v. Harris, 64 Ark. 213, 41 S. W. 426, 62 Am. St. Rep. 187. It follows that the levy was proper, and the property subject to the execution.

The next question is whether Jones could claim the property as exempt. It is provid

ed by article 9, § 1, Const. 1874, and section 4966, Kirby's Dig., that exemptions cannot be claimed in property in the hands of the vendee against the debt for its purchase. It is contended that Hancock, as an involuntary assignee of Strong, is not clothed with Strong's rights in this regard; but these cases settle that question against the appellant: Creanor v. Creanor, 36 Ark. 91; Morris v. Ham, 47 Ark. 293, 1 S. W. 519; Smith v. Butler, 72 Ark. 350, 80 S. W. 580. The log wagon was properly held to be exempt, as there was no debt for the purchase money due against it, and no mortgage was sought to be enforced against it in this action. In fact, a position inconsistent with the mortgage, so far as Hancock's rights were concerned, was taken. The court erred in holding the horses and harness exempt from seizure under the execution, as it was levied to enforce a debt for purchase money while the property was in the hands of the purchaser. Reversed and remanded, with directions to enter judgment in conformity herewith.

WOOD, J. The appellant was convicted on a good indictment of the crime of grand larceny. The only question presented on this appeal was whether or not the evidence was sufficient to support the verdict. The appellant was found in possession of a coat and vest worth, according to the proof, $10.35. The proof tended to show that the coat and vest had been sent by express, C. O. D., to one Whittaker, at Forrest City. It remained at the express office for some time before it was stolen. Appellant was told that he was suspected of having stolen the express package containing the coat and vest, and if he wanted to keep out of trouble he had better produce it. Appellant acknowledged that he had a coat and vest of the description named, but explained that he had bought it from a little black negro at Forrest City, and he said that he had worn it openly since he purchased it. Other witnesses were introduced, tending to corroborate appellant, but there were some contradictions and inconsistencies in their testimony, and upon the whole the jury was not satisfied with appellant's explanation of how he came into possession of the property alleged to have been recently stolen; and, while the evidence of appellant's guilt is not

very satisfactory to us, we think it was sufficient to support the verdict of the jury, and the judgment is therefore affirmed.

HUNTON v. MARSHALL.

(Supreme Court of Arkansas. July 22, 1905.) REAL ESTATE BROKERS RIGHT TO COMMISSIONS PROCURING CAUSE OF SALE.

On the listing of property with a real estate agent he showed it to a prospective purchaser, who said that he would not buy for a short time. The agent informed the owner, who agreed to sell it for the price at which the agent had offered it if the purchaser would pay the agent's commission. The agent communicated the price to the purchaser, stating what his commission would be, and the purchaser promised to decide the matter in a few days. While these negotiations were pending, the owner sold the property to the prospective purchaser for a sum which exceeded the original offer. by about the amount of the agent's commission, which, as between the seller and buyer, was deducted from the price. Held, that the agent was the procuring cause of the sale, and entitled to commission.

[Ed. Note. For cases in point, see vol. 8, Cent. Dig. Brokers, § 74.]

Appeal from Circuit Court, Sebastian County, Ft. Smith District; Styles T. Rowe, Judge.

Action by J. E. Marshall against Mrs. E. H. M. Hunton to recover the amount of commission alleged to have been earned by the plaintiff as a real estate agent under employment by the defendant for the sale of certain real estate in the city of Ft. Smith, owned by her. The plaintiff recovered judgment for the amount sued for, and defendant appeals. Affirmed.

Mechem & Mechem, for appellant. Winchester & Martin, for appellee.

MCCULLOCH, J. (after stating the facts). No exceptions were saved below on the introduction of testimony, and none to the rulings of the court in giving or refusing instructions. The only question presented by counsel here is whether or not the plaintiff was the procuring cause of the sale, so as to entitle him to commission. It is not disputed that plaintiff was a real estate agent, that defendant listed her property with him for sale at the stipulated price of $2,250, and that he at once opened up the first negotiations with one Crawford, who finally became the purchaser. Appellee testified that as soon as appellant placed the property in his hands he offered it to Crawford, and showed it to him, and that Crawford was pleased with it, but said he would not buy for a short while; that the next day he informed appellant of these facts, and she then told him that she had decided to put the price up to $2,400, but finally agreed that it might sell to Crawford for $2,250, net to her, Crawford to pay the commission; that he communicated this price to Crawford, with a statement that his commission would be $115, and Crawford replied that he was still

not quite ready to purchase a house, but would decide about it in a few days. Some days later, while the negotiations were still pending between appellee and Crawford, appellant sold the property to Crawford for $2,400, less the commission, and refused to pay appellee a commission.

We think it is quite clear that appellee was the procuring cause of the sale under his employment for that purpose, and is entitled to the commission, though the sale was made and consummated by the owner. Scott v. Patterson, 53 Ark. 49, 13 S. W. 419. Affirmed.

MILLER v. GRADY. (Supreme Court of Arkansas.

July 8, 1905.) 1. EXECUTION-SALE-RIGHTS OF PURCHASER -RETURN-OMISSIONS OF Officer.

The purchaser at execution sale by a constable is not precluded from setting up his rights acquired at the sale by any failure of the constable to make proper return of the execution.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Execution, § 793.]

2. SAME-LEVY-PRIORITIES.

Where a constable had levied on property under an execution issued by a justice, he secured a prior lien as against the sheriff subsequently levying under an execution issued from the circuit court.

[Ed. Note. For cases in point, see vol. 21, Cent. Dig. Execution, §§ 226-239.]

Appeal from Circuit Court, Sevier County; James S. Steele, Judge.

Action by G. M. Miller against one R. M. Grady. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action in replevin, brought by appellant against appellee. Appellee claimed the property by virtue of a levy made by him as sheriff under an execution issued by the circuit clerk of Sevier county on June 16, 1902. Appellant claimed the property in controversy by purchase at an execution sale made by a constable of Sevier county on July 2, 1902, under an execution issued by a justice of the peace for said county on June 16, 1902, and levied upon the property in suit before the appellee, as sheriff, levied upon same. It appears that certain laborers filed before one J. L. Flanigan, a justice of the peace of Sevier county, their claim against the Star Antimony Company, for work and labor performed by them for said company amounting to $74. They prayed and were granted a writ of attachment, which was issued, and executed by the con stable on the 3d day of June, 1902, by taking possession of the property in controversy, and duly serving the writs on the Star Antimony Company, and summoning it to appear and answer the plaintiffs' claims. On the 16th day of June, 1902, the return day of the summons, judgment by default was rendered in favor of the plaintiffs for the amounts claimed, but the record does not show what disposition was made of the at

tachments. The record shows, however, that on the 16th day of June, 1902, execution was issued by the justice, made returnable on the 2d day of July, 1902, and delivered to the constable. The justice docket shows the above. It also contains this entry: "Return of execution satisfied." "On the 2d of July, 1902, the constable returned the execution satisfied in full. Jno. L. Flanigan, J. P." A copy of the execution is set forth in the record, and it does not show any return indorsed upon it. Flanigan, who rendered the judgment and issued the executions, testified that the constable to whom he delivered the executions advertised the property for sale on the 2d of July, 1902, and did sell the same to the appellant for a cash consideration of $400, the appellant being the highest bidder at the sale. He further testified that he thought it was several days after the executions were placed in the hands of the constable that the appellee, sheriff, came out to the mines and levied his execution on the property. The appellant introduced in evidence a bill of sale from the constable to appellant for the property in controversy, showing a consideration of $400, in hand paid. Appellant also introduced one Paul Knod, Sr., who testified without objection "that defendant [appellee], Sheriff Grady, did not come out to the mine and levy his execution upon the property involved in this suit for several days after the constable, John E. Dorsey, had levied on said property and advertised it for sale." The appellee showed by the clerk of Sevier county that he issued an execution in favor of Smith, Allen & Co. against the Star Antimony Company on the 16th day of June, 1902, and on the same day delivered it to R. M. Grady, the sheriff. Appellee testified that he, as sheriff of Sevier county, levied the execution on the property involved in this suit as the property of the Star Antimony Company. He did not remember what day he levied the execution, but thought it was soon after it was delivered to him. He returned the execution to the clerk. The clerk further testified that the execution which he issued had been lost. S. A. Downs, for appellant. Lake & Wingo, for appellee.

WOOD, J. (after stating the facts). No question was raised in the court below as to the manner in which the levy was proved, nor as to the proof of the satisfaction of the execution directed and delivered to the constable, Dorsey, from whom appellant claims. Appellee virtually concedes that appellant would not be precluded from setting up his rights as a purchaser at the execution sale by the constable by any failure of the constable to make proper return of the execution, showing what had been done under it. It clearly appears that the constable levied on the property in controversy prior to the levy that was made by the appellee, and under the decision of this court in Derrick v.

Cole, 60 Ark. 397, 30 S. W. 760, secured the prior lien; and it is also reasonably clear from the evidence that appellant purchased at the sale made by the constable under this levy. Appellant's claim to the property in controversy is therefore prior and superior to the claim of appellee.

The judgment is therefore reversed, and the cause is remanded for new trial.

LONG v. MCDANIEL.

(Supreme Court of Arkansas. July 8, 1905.) 1. STATUTE OF FRAUDS-DEBT OF ANOTHERPROMISE WITHIN STATUTE-CONSIDERATION.

Where a plumber and the lessee of premises used as a barber shop agreed on a price for the placing of certain plumbing in the shop, but the plumber did not order the materials or commence work until the owner of the building had agreed with him to pay if the lessee did not, the owner's promise was not within the statute of frauds.

[Ed. Note.-For cases in point, see vol. 23, Cent. Dig. Frauds, Statute of, §§ 16-18.] 2. NEW TRIAL DENCE.

NEWLY DISCOVERED EVI

A new trial will not be awarded for newly discovered evidence which is merely cumulative. [Ed. Note. For cases in point, see vol. 37, Cent. Dig. New Trial, §§ 218-220.]

Appeal from Circuit Court, St. Francis County; Hance N. Hutton, Judge.

Action by A. P. McDaniel against E. A. Long. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

The

E. A. Long was the owner of a building in Forrest City, Ark., known as the "Imperial Hotel." One of the lower rooms of the building was rented by Long to D. F. Keath to be used as a barber shop. E. P. McDaniel, a plumber, fitted up this room with bath tubs, a range, boiler, and heater, drain pipes, etc. He afterwards brought his action against Long, the owner of the building, to recover $186.40, the value of his work and labor, and for material and merchandise furnished in making such improvements. defendant denied that the plaintiff had done any work or labor or furnished any materials or merchandise at his instance or request. He further denied that he had any control over the barber shop at the time the improvement was made, or that he has any interest in the bath tub, boiler, and heater, etc., for which suit is brought. On the trial the plaintiff testified, in substance, that Keath wanted the bath tubs and other improvements put in his barber shop; that he agreed with Keath upon the price, but that before he ordered the material or did the work he went to see the defendant, Long, and asked him what he thought about it. Long replied, "You go ahead and put the stuff in, and if Mr. Keath don't pay for it I will, but don't say anything about my agreement, for I don't want him to know about that; but I want the fixtures to stay in the house." He further testified that but for

this agreement on the part of Long he would not have ordered the material unless Keath had "put up the money for it." In other parts of his testimony he spoke of Long as being "security" for the debt, but said that he ordered the goods on the promise of Long to pay for them. The plaintiff was corroborated by testimony of the traveling salesman through whom the material was purchased by McDaniel. He said: "I was showing plumbing goods to Mr. Keath in the presence of Dr. Long and S. P. McDaniel, and, after explaining same to both Mr. Keath and Dr. Long, I named the price of these goods. Dr. Long turned to McDaniel, and said, 'Mack, you had better order the goods.' On the other hand, the testimony of the defendant tends strongly to show that the material was purchased and the work done by McDaniel for Keath, and that Long took no part in the transaction, and made no promise, in reference thereto. After being instructed by the court, the jury returned a verdict in favor of the plaintiff for $96.45, and defendant appealed.

S. H. Mann, for appellant. John Gatling, for appellee.

RIDDICK, J. (after stating the facts). The question presented by this appeal is whether the promise of the defendant upon which the plaintiff seeks to recover comes within the statute of frauds, and is invalid, because not in writing. Counsel for defendant contends that, conceding the testimony of plaintiff to be true, as the jury has found it, the substance of the whole transaction was an agreement by the defendant Long to pay the debt of the barber, Keath, and that such an agreement is within the statute, and must be in writing, in order to bind the defendant. But, while the price of the work and the material had been agreed on between McDaniel and Keath, McDaniel did not order the material or commence the work until Long promised to pay for it if Keath did not. The bath tubs, fixtures, and other improvements were to be put in a building owned by Long, and the jury were justified in finding that it was beneficial to him to have such improvement made, and that, in order to induce McDaniel to order the material and do the work, he made the promise. If the testimony of McDaniel was true, he was induced to order the material and do the work by virtue of this promise of Long that he would see that plaintiff was paid. It was then a debt of Long as well as of Keath, and the promise of Long to pay was founded on a consideration directly beneficial to him, and the statute does not apply. "When," says the Court of Appeals of New York, "the primary debt subsists and was antecedently contracted, the promise to pay it is original when it is founded on a new consideration moving to the promisor and beneficial to him, and such that the promisor thereby comes under an independent duty of

Kirby's Dig. § 2005, defines rape as the carnal knowledge of a female forcibly and against her will. Section 2008 provides for the punishment of any person who carnally knows and abuses a female under the age of 16 years. Section 2413 authorizes a conviction of any offense included in that charged in the indictment. An indictment charged that defendant raped "a female under the age of 16 years The forcibly and against her will." evidence showed carnal knowledge, but failed to show force. Held, that a conviction of carnal abuse was sustained by the indictment, and was proper.

[Ed. Note. For cases in point, see vol. 27, Cent. Dig. Indictment and Information, § 616; vol. 42, Čent. Dig. Rape, §§ 42, 99.] McCulloch, J., dissenting.

Appeal from Circuit Court, Pulaski County; Robert J. Lea, Judge.

Dave Henson was convicted of carnal abuse of a female, and appeals. Modified. John D. Shackleford, for appellant. Robt. L. Rogers, Atty. Gen., for the State.

BATTLE, J. Dave Henson was indicted by a grand jury of the Pulaski circuit court for rape committed upon the person of Lula Hoheimer, a female under the age of 16 years, and was convicted of carnal abuse of a female under the age of 16 years, and his punishment was assessed at 5 years' imprisonment in the penitentiary, and he appealed. The indictment against him is as follows: "The grand jury of Pulaski county, in the name and by the authority of the state of Arkansas, accuse Dave Henson of the crime of rape, committed as follows, to wit: The said Dave Henson, in the county and state aforesaid, on the 18th day of February, A. D. 1905, in and upon one Lula Hoheimer, a female under the age of sixteen years, forcibly, violently, and feloniously did rape and assault her, the said Lula Hoheimer, then and there violently, forcibly, and against her will, feloniously did ravish and cruelly know, against the peace and dignity of the state of Arkansas. [Signed] Lewis Rhoton, Prosecuting Attorney."

Could appellant be lawfully convicted of carnal abuse of a female under 16 years of age under this indictment?