exclusion of evidence, or in declaring the law to the jury pertinent to that issue.

As to the measure of plaintiff's damages, the court declared the law, that if the defendant had no notice that the trees were shipped for delivery under sales theretofore made, the plaintiff could recover only the difference between their market value at the time and place when they ought to have been delivered and such value when they were delivered, and also any extra expense that he incurred in writing or telegraphing for the trees. This the appellant contends was error. He contends that he was entitled to recover the difference between the price for which he had contracted to sell the trees and their market value when and where they were delivered, although the defendant was not advised that they were shipped to complete contracts of sale theretofore made.

It seems to be conceded that the rule announced by the court is correctly stated as applicable to contracts between natural persons, and to contracts of shipment by railroad companies; but it is contended that a different rule applies to contracts of carriage by express companies. No authority is cited that sustains the distinction contended for, and we should be surprised to know that any existed. That the rule defining the duties of express companies under contracts of carriage differs from that applicable to primitive means of transportation is doubtless true; that a delivery by an express company would be negligent for unreasonable delay which would display the greatest diligence of a stage-coach, or might be more expeditious than a stage-coach could make by use of such diligence, is also true. But the difference is confined to the determination of the question of diligence or negligence, and does not affect the rule as to the measure of damages when negligence is proved. This rule is not affected by the character of the parties to the contract, but is uniform in its application, whether the breach be committed by natural or artificial persons. It requires the party guilty of the breach to compensate the innocent party, to pay the damages which are the direct and immediate consequence of the breach, and are deemed to have been contemplated by the parties when they made the contract: 3 Sutherland on Damages, 216; Western U. Tel. Co. v. Short, 53 Ark. 443. The fact that the guilty party is a corporation, or that it is a natural person, would neither enlarge nor curtail

the scope of damage within the contemplation of the parties as likely to arise from a breach of their contract. It cannot, therefore, affect the amount of such recovery.

Upon the law and the undisputed facts, the judgment was right, and will be affirmed.

CARRIERS MEASURE OF DAMAGES FOR DELAY IN DELIVERY. — The measure of damages against a carrier for delay in the transportation of livestock is the expense of keeping, shrinkage, and depreciation in value of the stock occasioned by the delay: Ayres v. Chicago etc. R'y Co., 71 Wis. 372; 5 Am. St. Rep. 226, and note. A loss by depreciation of market is the proximate result of a delay in transportation, and a carrier is liable therefor: Sisson v. Cleveland etc. R. R. Co., 14 Mich. 489; 90 Am. Dec. 252, and note. A carrier is liable for any injury to goods caused by a delay in transporta tion: Michaels v. New York Central R. R. Co., 30 N. Y. 564; 86 Am. Dec. 415, and note; Rathbone v. Neal, 4 La. Ann. 563; 50 Am. Dec. 579, and note; St. Clair v. Chicago etc. R'y Co., 80 Iowa, 304. The measure of damages for a delay in the delivery of goods given to a carrier for transportation is the difference in value between the time when they ought to have arrived and when they did arrive: Atlanta etc. R. R. Co. v. Texas Grate Co., 81 Ga. 602. See extended note to American Ex. Co. v. Smith, 31 Am. Rep. 567-570.

KILLOUGH V. HINTON.

[54 ARKANSAS, 65.]

ESTATES-LACHES IN APPLYING FOR ORDER TO SELL PROPERTY OF DECEDENT TO PAY DEBTS. — A delay of more than twenty years after letters of administration have been granted, before applying for an order to sell the lands of the decedent to pay his debts, is not unreasonable, when such lands have been set aside as dower, and the application is made upon the death of the widow.

Sanders and Watkins, for the appellant.

N. W. Norton, for the appellees.

HUGHES, J. This was an action of ejectment by appellant, as administrator de bonis non, to recover the possession of lands belonging to the estate of his intestate, which were in possession of the appellees, the heirs of the intestate, and which they had divided among themselves, and which were assigned to the widow of the intestate as dower in his real estate in the year 1873, and had been held by her till her death in 1887. The widow qualified as administratrix of her husband's estate in 1867, soon after his death, and made her final settlement of her administration in 1880, showing that she had exhausted the assets of the estate except this land in

controversy, which settlement was confirmed the 15th of October, 1880.

A large number of debts had been probated against the estate of appellant's intestate, and remained unpaid. The appellant, as sheriff, qualified as public administrator de bonis non of said estate, the 12th of October, 1887, and brought this suit soon after to recover possession of said lands, for the purpose of sale of same to pay the unprobated claims against the estate. More than twenty years had elapsed after administration was first granted upon the estate before appellant brought this suit.

Defendants, appellees, pleaded that there was unreasonable delay, and that the action was barred, the cause of action, as they averred, not having accrued within ten years next before the institution of this suit.

The widow had occupied the residence of the intestate after his death till her death, but had never selected a homestead, or had one assigned her out of the real estate of the deceased, which consisted of 2,000 acres, 640 of which was in a body and included the land in controversy, assigned to the widow as dower, and in possession of which she was at the date of her death.

The court below found that one quarter-section of the land, the northeast quarter of section 1, in controversy, was the homestead of the widow, and gave judgment as to it in favor of the administrator. As to the other quarter-section, the southeast quarter of section 1, in controversy, the court found for the heirs, holding that the homestead could not be sold in the lifetime of the widow, but that the reversionary interest in the other piece might have been sold, notwithstanding the life estate of the widow, and that as to this there was no good reason for the delay. Both parties filed raotions for new trial, which were overruled, and they appealed.

Was appellant's right of action barred? Were the creditors guilty of such laches as barred their right to have these lands subjected to sale for the payment of their unpaid claims probated against the estate?

Only the reversionary interest could have been sold while the widow's dower continued. Were the creditors bound to have that sold within the ordinary period of limitation?

"The necessity for a prompt and speedy settlement of the administration of the estates of deceased persons, in order that creditors may be satisfied and devisees and heirs be put

in the indisputable possession of their inheritance as early as a just regard for the right of creditors will permit, requires a limitation upon the time when either creditors or executors and administrators may apply for the subjection of real estate to the payment of debts. It is admitted by all the authorities, that, in the absence of statutory regulation of the subject, it is the duty of courts to determine what shall be considered a reasonable time in this respect, and to refuse the application if the parties who demand it have been guilty of palpable laches. Courts have found this duty not without difficulty, and no precise rule to be inflexibly followed has been anywhere laid down": 2 Woerner's American Law of Administration, sec. 465.

There is no statute bar in this state against the enforcement of allowances of claims against estates by the probate court: Mays v. Rogers, 37 Ark. 155. "The analogy of the statute of limitation is followed in many of the American states."

In Mays v. Rogers, 37 Ark. 155, it was said: "The power of the administrator must be exercised in a reasonable time, and will be lost by gross laches or unreasonable delay. .... The heirs should not be forever deterred from making improvements on the property, or prevented from selling it, by the possibility that it may be sold for the debts of the estate. What is such reasonable time must be determined by the court, in its sound discretion." And it was held in this case that a delay of ten years, where there was no hindrance of proper cause therefor, was unreasonable, and that the lien on the real estate was lost thereby. There were other lands than the interest the administrator was seeking an order to sell, and he had made no effort to sell any lands for ten years after grant of letters to him as administrator de bonis non.

That was unlike the case at bar, where the administrator had exhausted the assets, except the lands assigned to the widow as dower, and which he applied for an order to sell soon after her death.

Upon consideration of the circumstances of this case, we cannot say there has not been reasonable cause for delay, or that the creditors or the administrator have been guilty of gross negligence or palpable laches.

The lands were assigned to the widow as dower in 1873, and she occupied and held them till 1887, when she died.

To have sold them before her death would have been a sacrifice of the interests alike of the creditors and heirs. How

.

hazardous a speculation would a purchaser have made! "Who would have bid, except a price proportioned to such hazard?" Liddel v. McVickar, 11 N. J. L. 58; 19 Am. Dec. 369; 2 Woerner's American Law of Administration, sec. 465; Moore v. Ellsworth, 51 Ill. 310.

Had the land been forced to sale encumbered by the widow's dower, the creditors "would not have derived any appreciable benefit from the sale; the heirs would have lost the lands, and the creditors their debts. . . . . What just cause of complaint have the heirs that that result was not precipitated? We think it unreasonable to hold the creditors bound to resort to a fruitless and destructive sale": Bursen v. Goodspeed, 60 Ill.

277.

Whether there was a homestead or not in the lands, the dower interest covered both tracts, and the court erred in holding the action barred as to the southeast quarter of section 1, township 8 north, range 3 east, as it was not barred as to either tract. For this error, the cause is reversed and remanded, with directions to the circuit court to render judgment for the appellant as administrator for the recovery of the northeast quarter and the southeast quarter of section 1 in township 8 north, range 3 east.

Laches in Applying for Orders to Sell Real Property of Decedent to

Pay Debts.*

In Absence of Statute, What is Reasonable Time is within Discretion of Court. -The law favors the speedy settlement of estates, to the end that the creditors may receive their pay, and the heirs their inheritance. It is therefore necessary that some limitation should be placed upon the time within which either creditors, executors, or administrators may apply for the subjection of the real estate of the decedent to the payment of debts. The authorities are agreed that, in the absence of statutory regulation, it is the duty and within the discretion of the courts to determine what is a reasonable time in this respect, upon consideration of all the circumstances of each particular case, and to refuse the application to sell the land when the party applying has been guilty of such gross laches or unreasonable delay as to render a sale inequitable: Hatch v. Kelly, 63 N. H. 29; Mays v. Rogers, 37 Ark. 155; Liddel v. McVickar, 11 N. J. L. 44; 19 Am. Dec. 369; Estate of Godfrey, 4 Mich. 308; Mooers v. White, 6 Johns. Ch. 360; McCoy v. Morrow, 18 Ill. 519; 68 Am. Dec. 578; Hall v. Woodman, 49 N. H. 294; Estate of Crosby, 55 Cal. 574; Estate of Arguello, 85 Cal. 151; Gunby v. Brown, 86 Mo. 253; Ferguson v. Scott, 49 Miss. 500.

In Mays v. Rogers, 37 Ark. 155-159, the court said: "The lands and tene

REFERENCE TO MONOGRAPHIC NOTES.

Laches as a ground for denying relief in equity: 54 Am. Dec. 180-184; 23 Am. St. Rep.

148-151.

Limitations in equity: 12 Am. Dec. 368-373,

Stale claims: 2 Am. St. Rep. 795–808.