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otherwise than by sale of the security. It | fendant and deceased were both armed with was agreed that Taylor should take charge pistols. There was testimony tending to for himself and the other 12, and, as Taylor show that the deceased made the first demlived in St. Louis, he and Richmond agreed onstration of violence by attempting to draw on a man (Hatley) to do all those things his pistol; that the defendant first succeeded which a trustee is required to do. That, as in getting his pistol in condition for use, and further evidence of his intention to dispose fired while the deceased was attempting to absolutely of the property, Richmond on the extricate his pistol from entanglement in a day of the execution of the several convey- handkerchief which he carried in the same ances drew orders on George Taylor & Co. | pocket; that, while the defendant fired, the in favor of each of his non-preferred credit- deceased slowly moved off, seeking conors for the amounts due them, respectively, stantly an opportunity to return the fire. and directed that the same should be paid out He never passed the door of the room, and of the surplus proceeds of the property, after fell with his pistol in his hand. The court first paying those whom he had named in the instructed the jury, among other things, as deeds. In his letter to plaintiff, dated Octo- follows: "The jury are instructed that the ber 11, 1886, inclosing this order, speaking killing of a human being can be justified of the conveyances just made, he says: "I only in necessary self-defense, and the slayer regret the necessity, but it protects all from is guilty of murder when he pursues an adcomplications." There was ample evidence versary and kills him in retreat, unless the to establish the fact that it was the intention proof should show that the deceased at the of the parties that the various instruments time had given such provocation as to evishould operate as an absolute conveyance of dence a sudden and irresistible passion, in the property, to raise a fund to pay debts; which case it would be manslaughter." The and that Taylor, either personally or by Wy-deceased never retreated to a place from lie Hatley, should be the trustee for the execution of the trust. The orders drawn on George Taylor & Co. ignored the other mortgagees. It was to the trustee that they were directed. He was expected to honor them. The transactions between Richmond and Taylor on October 9, 1886, constituted a general assignment, and the provisions in the deeds requiring the execution of the trust in a manner prohibited by law rendered it void as to the other creditors.

The circuit court found that the defendant had procured the goods replevied by fraudulent misrepresentations, and declared the law to be that the plaintiff had a right to repudiate the contract of sale and sue for the goods. There was evidence to sustain the finding of fact, and the law was correctly stated. The judgments are affirmed.

LUCKENBILL v. STATE.

(Supreme Court of Arkansas. June 22, 1889.) HOMICIDE-SELF-DEFENSE.

The evidence tended to show that while deceased and defendant were together in a room, deceased attempted to draw his pistol to shoot defendant, but had difficulty in getting it from his pocket, and moved slowly towards the door, seeking constantly to get his pistol in position to shoot. Held that, notwithstanding such retreat, defendant was justified in shooting deceased while so engaged in the attempt to use his pistol, and the court erred in charging the jury, without the proper qualification, that it was murder or manslaughter, to pursue an adversary and kill him while in retreat. COCKRILL, C. J., and BATTLE, J., dissent. Appeal from circuit court, White county; M. T. SANDERS, Judge.

J. W. House, for appellant. kinson, Atty. Gen., for appellee.

W. E. At

PER CURIAM. The appellant was convicted of murder in the second degree. The killing was admitted and the plea of necessary self-defense interposed. The altercation began and ended in a store-room. The de

which he could not, if he had desired, have shot the defendant. The evidence tended to show that he was not attempting to retire from the combat, but was merely seeking a situation more favorable for waging it. If such were true, it was not incumbent on the defendant to suspend his defense until the deceased had gained the situation he sought; but he had the same right to defend himself as if the deceased were standing and attempting to shoot him. If the deceased was in fact seeking to retire from the combat, and his conduct manifested such purpose, the defendant was not justified in shooting him. The instruction quoted properly declared the law in the view of the facts taken by the state, but fails to state it in the view taken by the defense. The law shold have been declared as applicable to any view that might be taken. We do not think it is sufficiently done in any other instruction given. If the seventh instruction asked by the defense had been given without modification, it would have supplied the omission in the instruction quoted. But this instruction as modified, with the instruction quoted, might reasonably have impressed the jury that the defendant could not excuse himself for shooting the deceased while withdrawing, although he were doing so to secure a position from which he might renew the combat more effectively. For this reason, the judgment is reversed, and the cause remanded.

SANDELS, HUGHES, and HEMINGWAY, JJ.,

concur.

COCKRILL, C. J., (dissenting.) The charge of the court fairly defines the law of selfdefense. The shortcoming of the instruction upon which the case is reversed was, I think, fully supplied by the learned judge in other portions of the charge upon the same subject, and it does not seem to me probable

that the jury was misled by the court. The SANDELS, J. Suit by appellant against a oft-repeated rule of this court, that the sheriff and his bondsmen for damages alwhole charge must be looked to for the pur-leged to have been sustained in the seizure pose of testing the accuracy of any part of it, together with the allegiance we owe to a jury's verdict when it is obviously justified by the evidence, seem to me to demand that the judgment be affirmed.

BATTLE, J., concurs in this view.

SICELUFF v. State. (Supreme Court of Arkansas. June 29, 1889.) INTOXICATING LIQUORS.

A liquor dealer may be convicted of selling liquor to a minor, though it afterwards appears that the minor bought it as agent of his father. Error to circuit court, Lee county; M. T. SANDERS, Judge.

One Siceluff was indicted and convicted of selling liquor to a minor, who without the knowledge of Siceluff bought it for his father. Defendant brings error.

D. N. Hutton, for appellant. kinson, Atty. Gen., for the State.

W. E. At

of certain goods by the sheriff. The only question was as to the character of an instrument of conveyance from one Foster to West. The deed executed by Foster to West recited the parties, being Thomas Foster of the one part, N. Straub and Henry Lohman and D. C. Smith of the second part, and P. C. West, as trustee for said Straub & Lohman, and D. C. Smith of the third part, described the debt due to Straub individually, the debt due to the firm of Straub & Lohman, and the debt due to Smith, the desire of Foster to secure the payment of the same, and then conveyed, in consideration of $10 then received to said West "all the stock of merchandise, consisting of dry goods, groceries, boots, shoes, hardware, hats, caps, and other such articles usually kept in a country store, now in the store-house of said Thomas Foster, in the town of La Grange, in the county of Lee, and state of Arkansas, an inventory and schedule of which is hereto attached, marked No. 1,' and made part of this deed as if copied herein,' to be held by said West in trust that he should take immediate possession of and sell said goods at private sale for thirty days, for cash, at not less than the cost price of same in said store. Then, if said goods were not all sold, to sell at public auction, and with the proceeds of sale to pay, first, all ex

PER CURIAM. As between a seller and an agent who deals with him, without disclosing the fact that he acts as agent, the latter, as well as the principal, is the purchaser. A liquor seller who contracts with a minor may therefore be convicted of sell-penses, then said debts, and the balance to ing liquor to a minor, notwithstanding the fact may subsequently be disclosed that the minor acted as agent for his parent. Gillan v. State, 47 Ark. 555, 2 S. W. Rep. 185; Foster v. State, 45 Ark. 365; Ritcher v. State, 63 Miss. 304; Ross v. People, 17 Hun, 591; People v. Garrett, 36 N. W. Rep. 234; Com. v. McGuire, 11 Gray, 460. Affirmed.

STATE, to Use of WEST, v. DUPUY et al. (Supreme Court of Arkansas. June 22, 1889.)

FRAUDULENT CONVEYANCES.

A debtor executed and delivered to a creditor an instrument in writing, to be delivered to a third person therein named as trustee, by which he conveyed to said trustee a stock of merchandise to be by him disposed of as therein directed, and the proceeds, after paying expenses, applied to payment of specified debts due to three of his creditors therein named, reserving the balance of the proceeds to himself. The trustee took possession of and held said stock of goods under said instrument. Held, the instrument in writing was not a deed of trust in the nature of a mortgage, but an assignment of the goods for the benefit of creditors, and was fraudulent and void.

Appeal from circuit court, Lee county; M. T. SANDERS, Judge.

Action by P. C. West, as trustee of Thomas Foster, against Dupuy, sheriff, and his bondsmen, for damages sustained in the seizure by him of certain goods under writs of attachment. Judgment for defendant. Plaintiff appeals.

Tappan & Hornor, for appellant. E. D. Robertson, for appellees.

pay over to said Foster, said West to have the power to appoint suitable assistants to possess said goods and to make sale of same; and in the event of his death, refusal to act, neglect, or inability, the said second party had power to appoint another trustee, who should have all the powers therein conferred upon said West." The court found the facts from the evidence, and declared the law as follows: Thomas Foster, a merchant, was indebted to the firm of Straub & Lohman and D. C. Smith, and on the 2d day of February, 1885, executed and delivered to D. C. Smith, one of said creditors, to be by him delivered to P. C. West, the trustee therein named, the instrument of writing introduced in evidence. By the terms of the instrument Foster sold and conveyed to said West a stock of merchandise in his store-house in La Grange, Lee county, Ark., which was to be disposed of by West as therein directed, and the proceeds applied after paying expenses to the payment of the debts due Straub & Lohman and D. C. Smith, reserving the balance of the proceeds to himself. West took possession of and held said stock and merchandise under and by virtue of said instrument. Afterwards, within a few days, the defend ant, as sheriff, levied several valid writs of attachment upon the stock, and took it from the possession of West. The suits in which said writs of attachment were issued and so levied were against said Foster, and were duly prosecuted, and judgment recovered against him for amounts which exceeded the

value of the goods taken, and the latter were | held as collateral security for a debt, and the duly condemned and sold to satisfy said judg- landlord thereafter redeems the note, and the ments, no surplus remaining. The instru- same is redelivered by the creditor to him, ment of writing by virtue of which West took and held possession of the stock of goods was not given by way of security as a mortgage or deed of trust. There is no defeasance. It does not create a lien upon the goods, but conveys them absolutely for the purpose of raising a fund to pay debts, and until this was done Foster had no legal or equitable interest in the property that could be sold by him or reached by his creditors. The instrument was not a deed of trust in the nature of a mortgage. By its terms it was an assignment for the benefit of creditors, and, considering it as a deed of assignment, it is clearly fraudulent, and void as to the attaching creditors. The circuit court was right upon both the law and facts, and its judgment is affirmed.

DICKINSON v. HARRIS et al. (Supreme Court of Arkansas. June 29, 1889.) LANDLORD'S LIEN.

A land-owner, who assigns as collateral security for a debt owed by him a note given by his tenant for rent, still retains an interest in the note, and has a suspended lien on the crop of his tenant, enforceable when he redeems the note, and the purchase of the crop of the tenant, or any part of it, by third parties, with notice that the note remains unpaid, will not defeat such right against the crop purchased, or the proceeds of the sale thereof, when the landlord regains possession of the note, and the right to use it as his own unincumbered property.

the debt for rent, and the right to enforce satisfaction thereof out of the crop of the tenant, reunited in the landlord. Roberts v. Jacks, 31 Ark. 597; Bernays v. Feild, 29 Ark. 218; Varner v. Rice, 39 Ark. 344. The effect of the assignment of the note as a collateral security for a debt is not to divest the landlord of all interest and property in the note. He still has an interest in the note, and as an incident to this interest a lien on the crop of the tenant, subject to be enforced when the note is redeemed. The lien, and the right to enforce it, remains dormant or suspended until the debt is redeemed, when both reunite in the landlord. The lien being still alive while the note for rent is held as a collateral security, the purchase of the crop of the tenant, or any part of it, by third parties, with notice that the note remains unpaid, will not defeat the right to enforce it against the crop purchased, or the proceeds of the sale thereof, when the landlord regains the possession of it, and the right to hold, control, and use it as his own unincumbered property. Harris & Cotham are liable to Dickinson on account of the eight bales of cotton, the same having been disposed of by them. One hundred dollars were paid by them on the note. The proceeds of the sale of the eight bales of cotton amount to $301.79. Dickinson is entitled to recover of them the $301.79, less the $100 paid on the note, if there be so much due him for rent; and,

Appeal from circuit court, Drew county; if not, so much of the rent as remains unC. D. WOOD, Judge.

U. M. & G. B. Rose, for appellant. Wells & Williamson and W. S. McCain, for appellees.

BATTLE, J. On the 14th day of March, 1884, T. W. Hemingway rented a farm from J. W. Dickinson, and executed to him a promissory note, and thereby promised to pay to him, on the 15th of November, 1884, the sum of $500 for the rent of the farm, and for the use of four horses and mules and plows and gear on the place. Hemingway raised a crop of cotton on the farm during the time for which he rented it. Dickinson assigned the note to Thomas H. Allen & Co. as collateral security for a debt he owed them. Afterwards, and before he redeemed it, Heming way sold eight bales of his cotton crop to Harris & Cotham, who at the time of their purchase had notice that the note Hemingway had given for rent was unpaid. Afterwards Dickinson redeemed the note. Did Harris & Cotham acquire the eight bales of cotton free from and unincumbered by Dickinson's lien for rent? It has been held by this court that the law gives to the landowner a lien on the crop of the tenant for rent for his personal benefit, and that it does not pass to the assignee of the note for rent; and that when the note of the tenant is assigned to a creditor of the landlord, to be

paid. But it does not appear from the evidence how much of the note was given for rent. It is evident, however, that a part of the rent still remains unpaid, how much the evidence does not disclose. The de ree of the court below is therefore reversed, and this cause is remanded, with instructions to the court to ascertain, through a master appointed for that purpose, what proportion of the note was given for rent of land, and the amount due on such proportion, and to render judgment against Harris & Cotham according to this opinion, and for other proceedings.

HANGER et al. v. LITTLE ROCK J. Ry. Co. (Supreme Court of Arkansas. June 29, 1889.)

FERRIES LICENSE.

By Mansf. Dig. Ark. § 3311, no ferry can be kept nor tolls collected without a license; and, by section 3319, such licenses are granted for a term of one year. Held that, in an action for damages by the erection of a bridge across and within the limits that plaintiffs, or those under whom they claim, of plaintiffs' ferry-right, the complaint must state had a license after the bridge was constructed; that they were authorized to receive tolls; that damage was occasioned by building the bridge; that defendant unlawfully collected tolls; and that plaintiffs had other riparian rights in the land upon which the bridge rested. Following Organ v. Memphis & L. R. R. Co., ante, 103.

Appeal from circuit court, Pulaski county; J. W. MARTIN, Judge.

John Fletcher, for appellants. J. M. river, and could not have been injured by the Moore, for appellee.

running of the transfer boat, and can claim nothing on that account." It does not appear that the plaintiffs, or those from whom they claim, ever had a license after the bridge was constructed. The license to Peter Hanger, if it appears upon demurrer that he obtained one, expired in 1866. It may be that none was subsequently granted. Bell v. Clegg, 25 Ark. 26. It follows that the complaint does not state facts authorizing a recovery for damages resulting from a diversion of business, because it does not show that the appellants were authorized to receive tolls. No damage to the franchise is alleged to have been occasioned by building the bridge, but all is claimed on account of the use of it as a toll-bridge. It is not alleged that the defendant collected tolls without lawful authority. The appellants could not complain of losses sustained from lawful competition, and the complaint should have stated that its action was without authority. It does not appear that they had any other riparian right in the land upon which the bridge rests, and therefore no cause of action is set out, within the rule announced in the case of Railway Co. v. McGehee, 41 Ark. 203. The judgment is affirmed.

M. FOSTER VINEGAR Co. v. GUGGERMOS. (Supreme Court of Missouri. June 24, 1889.)

SALE-WARRANTY-EVIDENCE.

HEMINGWAY, J. The appellants brought this action against the appellee for damages to ferry-rights. The appellee demurred to the complaint, the demurrer was sustained, the cause dismissed, and this appeal taken. Did the complaint allege facts that constitute a cause of action? It alleges, in substance, that the appellants are the owners of an ancient ferry franchise, entitling it to transport passengers and property, for hire, from either bank of the Arkansas river to the other, at points along the river between the Quapaw line on the east and the west boundary line of the city of Little Rock; that they and Matilda J. Hanger, from whom they inherited the franchise, had of right used, owned, and enjoyed the ferry, in transporting persons and property for hire, for more than 20 years next before the injury complained of; that the defendant is a railroad corporation authorized to construct and operate a railway from a point in the city of Little Rock to a point on the opposite side of the river; that in January, 1885, it erected a bridge across the river, within the limits of their ferry-right, upon which it constructed and opened a roadway for the crossing of persons and property; that, against their will, it had permitted persons and property to cross over the roadway of the bridge, for hire, when not transported in its cars, and thereby collected bills amounting to a large sum, which it had wholly converted; that it delivered, defendant pleaded that plaintiff had 1. In an action for the price of vinegar sold and had thus diverted valuable traffic from their guarantied the vinegar to be "forty grains, standferry; that this diversion of traffic had ren-ard proof," suitable for pickling pigs' feet and dered the enjoyment and possession of their tongues, for which defendant designed it, but that right, and the privilege itself, valueless, suffered loss by the spoiling of the meats he atthese representations were false, and defendant whereas they had previously received from it tempted to preserve. It was proved that portions $5,000 per annum. They file with the com- of the meats were spoiled, and that an agent of plaint, as an exhibit, a transcript of the rec- that he knew the vinegar was of inferior grade. plaintiff had stated that plaintiff's manager said ords of the Pulaski county court, wherein it This the agent explained by saying that he said it appears that on the 1st day of May, 1865, the in order to procure payment, even at a loss. The said court granted to Peter Hanger, in right latter also testified that defendant, when he bought of his wife, Matilda J. Hanger, a license to for himself, and return it if it was not up to stand. the vinegar, said that he would test the vinegar keep a ferry within the limits described, for ard, and defendant admitted that he might have a term of 12 months. It nowhere appears done so. There was expert evidence that no pigs' that a license was afterwards granted, either feet, pickled at the time of year and in the manner defendant pickled his, could be preserved in to the appellants or their ancestors, author- that climate. Defendant diluted the vinegar used izing either of them to keep the ferry. Ferry on the pigs' feet, but not more than was customlicenses are for a term of one year. Mansf. ary among packers. The vinegar used on the tongues was not diluted, but they were all lost. Dig. § 3319. No person can keep a ferry He had used nearly all the vinegar before its weakand collect tolls without a license. Id. Sness was discovered. Held, that the evidence 3311. This court, in the case of Organ v. Memphis & L. R. R. Co., ante, 103, declared the law which is decisive of this cause. Judge BATTLE, delivering the opinion of the court, said: Appellants further insist that they have been damaged by appellees running a transfer boat across the river, and attempt to show that it sometimes transported persons across the river for pay, * * * but there is no evidence that appellants, or any of them, ever had a license to keep a public ferry. If they did not, they have no right to keep a ferry, so as to charge a compensation for transporting persons or property over the

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supported a verdict for plaintiff.

behalf of plaintiff, that if it furnished defend-
2. While it is error, in such case, to charge, on
ant with the vinegar sued for, and the same was
used, and not returned, plaintiff could recover its
price, the error is cured if other instructions in-
furnished vinegar of the quality ordered.
form them that the only issue is whether plaintiff

3. It is not error of which defendant can complain that the court charged that the only question was as to the quality of the vinegar, that being the only defense made by the answer.

4. There being evidence that defendant said it would return the vinegar if it fell below 40 grains, and that it was to be sent in 10-barrel lots, and defirst lot was good, and, after receiving the second, said he had no complaint to make, an instruction

fendant was to test it, and that defendant said the

that, if defendant was to test the vinegar himself,
to determine its quality, he could not recover on
his counter-claim, is warranted by the testimony.
5. Defendant having admitted diluting the vine
gar, and submitted instructions leaving it to the
jury to determine whether the dilution injured the
vinegar for its intended use, cannot object to an
instruction that defendant cannot recover if he
diluted the vinegar, and thus made it inferior.

Appeal from St. Louis circuit court;
WILLIAM H. HORNER, Judge.
Transferred from the St. Louis court of ap-

peals.

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and tongues, upon which defendant's evidence shows plaintiff's vinegar had been used, were returned to defendant by the purchasers thereof, as unfit and spoiled. Defendant testifies that he examined the pigs' feet when returned, and that, though sound, they had no taste,-that is, that they had no sour taste, which the vinegar was designed to give,-but were "just like they had been in

rain-water." Several witnesses testified that Mr. Wey, who was the agent of plaintiff in the sale of the vinegar and in the attempted collection of the claim, stated to defendant, in their presence, that Mr. Foster, the general manager of plaintiff, knew that he sent defendant the 29-grain vinegar during the last month. Defendant says that Mr. Wey stated that said Foster admitted the vinegar was only 29 grains. Mr. Wey himself says, on cross-examination, that he told defendant, in the presence of the witnesses referred to, that the last lot of vinegar was not over 30 grains, which he says he did because he thought it better to lose a cent on the last lot, in order to get the money. This, we think, suffices to show that there is evidence of a tendency contrary to that in plaintiff's behalf, as to the vinegar being up to the agreed quality and standard of 40 grains. Besides this, the plaintiff tried the case, and by instructions induced the court to declare that this was the only question in the cause. On the other hand, the contention of the defendant that there is no evidence that defendant agreed to test the vinegar for himself must, we think, be also regarded as not well taken. The testimony of Wey, for example, is direct and positive that defendant, at the time of the sale, said he would send the vinegar back if it did not come up to the 40-grain standard, and that the understanding was that plaintiff was to furnish the vinegar in 10-barrel lots, and that defendant was to test it for himself. Defendant himself testifies, on cross-examination, that "it may be that I told Wey I would have his vinegar tested. I don't deny that." This is, we think, to be taken for the jury to consider in connection with other statements of defendant in this behalf, and other evidence of a contrary tendency. The evidence shows that defendant used the vinegar upon fresh products, that is, upon products not cured in brine. The defendant so testifies. There is evidence by experts that pigs' feet, put up in warm weather and not cured in brine, will not keep, and cannot be safely shipped to

RAY, C. J. This is an action by plaintiff on an account, to recover a balance of $345.66 for a certain lot of vinegar sold and delivered to defendant between September 26 and November 10, 1884. Defendant admits in his answer that he received the vinegar as charged in the petition, but denies his indebtedness therefor; and sets up, by way of counter-claim, that he bought the vinegar upon the guaranty of plaintiff that it would be of a certain grade, to-wit, of "forty grains, standard proof, suitable for pickling pigs' feet and tongues, in which business he was then engaged, and for which purpose, as plaintiff knew, he designed to use the vinegar; that, in reliance upon the said agreement and representation of plaintiff, he used the said vinegar in his said business of pickling, but that plaintiff knowingly delivered to him vinegar of inferior quality, and less than 40 grains, standard proof; and that, by reason of its unfitness, the whole of the product upon which he used the same was lost to him, to his damage in the sum of $10,000. The reply of plaintiff denied the new matter set up in the answer, and alleged further that it was understood at the time of the sale of the vinegar that defendant would test for himself the vinegar, as the same was received from time to time, and determine its fitness and suitableness for his uses; that the vinegar, when delivered, was of good quality and proper strength, and that, if it became otherwise, it was by reason of adulteration thereof by defendant; that defendant used all the vinegar, without returning, or offering to return, any part thereof, and without complaint until payment was demanded. Under the pleading, defendant assumed the burden of proof, and claimed, and was given, the right to open and close the case. The trial resulted in a verdict for plaintiff in the amount sued for, and against defendant on his said counter-southern climates; and that during the time claim, and from the judgment had thereon defendant has appealed.

It is not disputed that plaintiff agreed to furnish defendant with vinegar of 40 grains, standard proof, but plaintiff insists that the evidence shows that the vinegar furnished was of that grade; that there is no evidence to the contrary, and for that reason the case should not be further reviewed by this court. As to this, the evidence shows that portions of the products, both pigs' feet

in which defendant put up his said products the weather was, in St. Louis, too warm for the business of pickling fresh meat. There is also evidence that parties in St. Louis, New Orleans, and other points, to whom defendant sold portions of these products put up with the vinegar in question, returned the same in a spoiled condition; that these were sold, for practically nominal sums, for soap grease, and that other portions were sold at auction in New Orleans, and perhaps

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