There was no error in the court's refusal to give instructions as asked by defendant below, as the decree was not in invitum, but by agreement and consent of the parties, in accordance with which the deed was executed, for breach of covenant against incumbrance in which this action was brought.

There was no prejudicial error in the instructions given by the court. The principles of law which they announce are correct. There was evidence which showed a breach of the covenant against incumbrances, and that the legal title to the land to which this controversy relates was defeated, and this was equivalent to eviction, the lands being wild and unoccupied. It was ascertainable from the evidence what the proportion of the value of the land lost bore to the whole number of acres sold. The measure of damages for breach of covenant of warranty in a deed to land against incumbrances, where the covenantee discharges the incumbrance, is the reasonable amount required to discharge the incumbrance, with reasonable cost of procuring the discharge. But in no event can this amount exceed the amount of the consideration paid, with interest. It is competent to show the real consideration to be more or less than that mentioned in the deed, though the recital that there was a consideration cannot be contradicted. But, where the covenantee's title is entirely defeated by the incumbrance being changed into a title adverse and indefeasible, the plaintiff is entitled to recover the money he paid for the land, with interest. Jenkins v. Hopkins, 8 Pick. 346; Chapel v. Bull, 17 Mass. 213; Patterson v. Stewart, 6 Watts & S. 527; Willets v. Burgess, 34 Ill. 500; Willson v. Willson, 5 Fost. (N. H.) 235; 4 Kent, Comm. 474. The purchaser need not wait till he is evicted, but may satisfy the incumbrance, and then bring this action to recover for breach of the covenant of warranty against incumbrances. Delavergne v. Norris, 7 Johns. 358; Stanard v. Eldridge, 16 Johns. 254; Garrison v. Sandford, 12 N. J. Law, 261. In such a case the measure of damage is the reasonable amount required to discharge the incumbrance and the cost of the discharge; "yet the purchaser is not bound to buy in the incumbrance, though it be offered to him on moderate terms." Miller v. Halsey, 14 N. J. Law, 48. When the incumbrance is changed into a title adverse and indefeasible, "the criterion of recovery is the value of the land lost by the eviction; or, if less than the whole is lost, the value of so much as is lost, proportioned to the original consideration paid." Hunt v. Orwig, 17 B. Mon. 85. There was evidence upon which the jury might have found the verdict they returned in the case. Finding no error, the judgment is affirmed.

RIDDICK, J., did not participate in the consideration and determination of this cause, having presided as circuit judge at the trial in the court below.

HOLLIS v. STATE.

(Supreme Court of Arkansas. June 2, 1894.) HOMESTEAD-RIGHTS OF WIFE OF FUGITIVE-LIABILITY OF COSTS OF CRIMINAL PROSECUTION.

1. A wife may claim a homestead which she continues to occupy with her family after the husband has become a fugitive from justice.

2. A homestead is not subject to the lien of the state for costs in a criminal prosecution Appeal from circuit court, Marion county; Brice B. Hudgens, Judge.

R. H. Hollis was convicted of murder, and judgment rendered against him for the costs. From an order that the homestead be sold for such costs, an appeal is taken. Reversed.

Crump & Watkins, for appellant. Jas. P. Clarke, Atty. Gen., for appellee.

RIDDICK, J. The facts in this case are as follows: Appellant, R. J. Hollis, a married man, the head of a family, and the owner of a homestead, was convicted of murder in the second degree in the Marion circuit court, and a judgment rendered against him for im prisonment, and the costs of prosecution. After his conviction he broke jail, and escaped. An execution on said judgment for the costs, amounting to about $800, was issued against him. He was a fugitive from justice, his whereabouts unknown,-but his family continued to remain and occupy the homestead. In the absence of her husband, his wife filed a schedule, claiming the homestead and some personal property as exempt from sale under execution. The clerk of the court issued a supersedeas staying the execution as to the homestead. On motion of the prosecuting attorney this supersedeas wasquashed by the court, and the homestead ordered sold. From this order an appeal was taken.

The question for this court to determine is whether the homestead is subject to sale under such circumstances. In other words, can the wife claim a homestead for herself and children after her husband has become a fugitive from justice? And is the homestead exempt from the lien of the state for costs in a criminal prosecution?

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, 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 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, laborer's or mechanic's liens for improving the same, or for taxes, or against executors, administrators, guardians, receivers, attorneys for moneys collected by them and other trustees of an express trust for moneys due from them in their fiduciary capacity." Const. art. 9, § 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 many 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; Massie v. Enyart, 33 Ark. 688; Fink v. O'Niel, 106 U. S. 272, 1 Sup. Ct. 325; Com. v. Lay, 12 Bush, 283; Smyth, Homest. § 185; Thomp. Homest. § 385. We therefore conclude that the circuit court erred in quashing the supersedeas issued by the clerk, and its judgment is therefore reversed, and the motion to quash dismissed.

& Co., Bank of Newport interpleaded. Judgment for plaintiffs. Bank of Newport appeals. Reversed.

Rose, Hemingway & Rose and J. W. & J. M. Stayton, for appellant. Morris M. Cohn, for appellees.

BATTLE, J. On the 30th of January, 1892, Hirsch Bros. instituted an action against Jones Bros. & Co. to recover a debt, and sued out an order of attachment that was levied upon 364 bales of cotton as the property of the defendants. The Bank of Newport claimed the cotton, and the sheriff, by order of the plaintiffs, released 300 bales, but still held 64 bales under the levy. The bank filed a complaint in the action, and claimed the 64 bales as its own property. On a trial by the court sitting as a jury, the cotton was held to be the property of the defendants; and the bank having retained possession of it, by giving bond, and sold it, and converted the proceeds of the sale to its own use, judgment was rendered against it for the value thereof.

The evidence adduced at the trial tended to prove, substantially, the following facts: In the fall of 1891. Jones Bros. & Co. and the bank entered into an agreement in respect to buying cotton in the market at Newport, in this state. The bank agreed to advance money to them to buy cotton. and they were to draw checks on the bank to pay for it, and were to pay the purchase money in full, and in cash, so as to get a good and unincumbered title. The cotton was to be delivered for storage to the compress and storage company at Newport, when it was purchased; and as it was received the compress company was to issue warehouse receipts therefor, which were to be delivered on the same day, or as soon thereafter as practicable, to Jones Bros. & Co., and they were to transfer them to the bank. This agreement was carried into effect. Jones Bros. & Co. purchased the cotton; the bank paid for it; the compress company received it for storage, and issued to Jones Bros. & Co. warehouse receipts for the same, and they transferred them to the bank. As the cotton was shipped, the bank would deliver to the compress company its receipt for the number of bales that Jones Bros. & Co. wanted to ship; and the bills of lading were taken in their names, with drafts for the amount paid for the cotton attached, and were indorsed and delivered to the bank.

It was agreed at first that every bale should be represented by a warehouse receipt of the compress company, and that the receipt should be kept by the bank until the cotton should be shipped; but the compress company represented that it could not issue receipts for each bale on the day of its receipt, and one receipt was issued for all the cotton received on the same day. The cotton was not described in the receipts, but the books of the compress company showed the 'marks of each bale, from whom it was received, by

what route, and the date of its receipt. It was marked with blue tags, and was marked from 5,000 upwards. No other cotton was marked in this way. The receipts issued

were transferred and delivered to the bank on the night of the day on which the cotton was received, "or, at the latest, a day or two thereafter."

In shipping the cotton, no attention was paid to the dates of the receipts, or to the weights of the bales. Some bales remained at the compress several months. Others were shipped shortly after their receipt. The receipts were considered only as representing the number of bales of cotton for which they were issued. The cotton was shipped in this way until there were only 64 bales in the possession of the compress company, only one of which was received on any day on which the receipts now held by the bank were issued. The bank held two warehouse receipts of the compress company as evidence of its rights to these bales. of them bore date the 24th of November, 1891, and was issued for 49 bales; and the other was dated November 30, 1891, and was issued for 35 bales,-the two receipts being for 84 bales, in the aggregate. In this there was an error. The receipts should have called for 20 bales less. The 64 bales were marked with blue tags, and numbered as stated (all numbers being above 5,000). The books of the compress company showed that they were received from Jones Bros. & Co.

One

R.M. Johnson testified that he was the cashier of the bank and president of the compress company, and, among other things, as follows: "As the cotton was taken out and shipped, Jones Bros. or the compress company would send word to us, and we would send receipts for the numbers of bales they wanted to ship; and the bill of lading would be taken in the name of Jones Bros., with draft attached, and delivered to the bank. The bank kept a separate account of its cotton dealings with Jones Bros. I had full access to the books of Jones Bros., their office being only about forty feet from the bank. I went to their office frequently, and tried to keep a close watch on all cotton received. Don't think they could have bought any cotton without my knowing it. Samples were kept at the office of Jones Bros., and they were to keep an account of the marks, etc., of the cotton at the press, corresponding with the record kept at the compress; and the samples were open to my daily inspection, as were also the books of Jones Bros. The samples and tags, and the ac count kept in the books of Jones Bros. and the compress company, enabled me to keep track of the cotton received. When Jones Bros. wanted to ship a lot of cotton, they would get from us receipts enough to cover the number of bales, get a bill of lading for it from the railroad, and indorse that to the bank, with a draft for the amount of the cotton, which would be placed the credit

*

*

of the cotton account of Jones Bros. I have two receipts covering the remaining sixtyfour bales, which are as follows:

"Newport, Arkansas, November 24, 1891. Newport Cotton Compress and Storage Co. Received in good order, of Jones Bros. & Co., one bale cotton, forty-nine (49) b. c., No. to be delivered on return of this receipt properly indorsed, and payment of storage. E. B. Douglass, Secretary and Manager. [Indorsed] Jones Bros. & Co. H.'

We

"When they [Jones Bros. & Co.] began business, they did not have much money,not over $500. We kept an account with them of all money received for their account, and money paid out. We paid out money for their account on check or draft. credited them with all money received on sales of cotton. When cotton was shipped, and drafts drawn against same, we credited their account when the draft was paid. We charged them interest for the amount they received. The transactions would range sometimes very high during the month. All told, I don't know how much it would be. The largest would be about $70,000 per month. They bought somewhere about 7,000 bales of cotton, I think, all told, during the season. The account was kept with them as a separate account. We kept no other account with them. There was no difference, to outside appearances, between this account and any other account kept by the bank with cotton factors. The cotton sold, for which the bank has interpleaded in this case, was not credited on the account of Jones Bros. & Co. until after the sale. It produced $1,723.52. They still owe us $2,968."

E. B. Douglass testified that he was the secretary and manager of the compress company; that Jones Bros. & Co. did business with the bank; that they stored about 7,500 bales of cotton at the compress; that he issued receipts for the cotton to them, but thinks the bank got them all; that it was understood that all the receipts would be transferred to the bank, which was done; that he never shipped or delivered any of the cotton until the warehouse receipts were delivered to him; that he had to go to the bank to get the receipts when the cotton was shipped; that all he demanded, when the cotton was shipped, was a receipt for the number of the bales shipped; that no par ticular attention was paid to the dates of the receipts, or anything else, except the num ber of bales represented by each receipt; that when the order of attachment in this

action was issued the bank held two receipts for 84 bales in the aggregate, but "there was some error in the matter;" that the receipts should have called for 20 bales less; and that he does not know how the error occurred.

This is all the evidence that the record shows was adduced to prove the ownership and identity of the 64 bales of cotton in controversy. From this it appears that the compress company issued receipts to Jones Bros. & Co. for the cotton that they stored with it, and that these receipts were transferred to the bank. The secretary and manager of the compress company testified that the transfer was made. He could do so, because the receipts were surrendered to the compress company when the cotton was taken out of its possession. Only 64 bales of the cotton stored with it by Jones Bros. & Co. remained in its possession at the bringing of this action, and that is the cotton in controversy. The compress company has taken up receipts for the cotton that it has delivered. Two of its receipts remain outstanding in the hands of the bank, and the cotton in controversy is the only means it has with which to discharge these obligations. It is obvious that this cotton was stored with it by Jones Bros. & Co., and that the receipts issued therefor were transferred to the bank. The trial court evidently found that this cotton was subject to the attachment because it was not received on the day the receipts in question were issued. Was it correct?

The indorsement and delivery of a receipt of a warehouseman to secure the payment of a debt passes the title and right of the property described in the receipt to the party to whom it is so indorsed and delivered. If the transfer is made by the owner of the property, to whom the receipt was given, for the purpose of securing a debt for advances of money made on the faith of such transfer, it is a symbolic delivery of the property that the receipt purports to represent sufficient to create a pledge, and is equivalent to an actual delivery, and will protect the person to whom it is transferred against the claims of creditors and purchasers. The indorsement and delivery of the receipt have the same effect in transferring the title as the delivery of the property. The warehouseman becomes the bailee of the holder of the receipt, to whom it is transferred, and ceases to hold for the former owner. Acts 1887, p. 86; Shepardson v. Cary, 29 Wis. 34; Harris v. Bradly, 2 Dill. 284, Fed. Cas. No. 6,116; Puckett v. Read, 31 Ark. 131; Durr v. Harvey, 44 Ark. 301; Ferguson v. Bank, 14 Bush, 555.

The receipt is not required to be in any particular form. In Gibson v. Stevens, 8 How. 384, McQueen & McKay purchased of Hanna, Hamilton & Co. 350 barrels of mess pork, and received from them the following memorandum, receipt, and guaranty:

"Fort Wayne, April 4th, 1844. Messrs. McQueen & McKay: Bought of Hanna, Hamil. ton & Co. 350 barrels mess pork, to be delivered on board of canal boats soon after the opening of canal navigation, at $8.31. $290.50. Received payment in full. Hanna, Hamilton & Co.

“We guaranty the inspection of the above pork at Toledo, and the delivery on board of canal boats at this place, soon after the opening of canal navigation. Hanna, Hamilton & Co. Fort Wayne, April 4, 1844."

The pork was at the time of the sale in the warehouse of the vendors. On the same day, McQueen & McKay purchased of D. & J. A. F. Nichols 200 barrels of flour, and received from them a memorandum and receipt as follows:

"Fort Wayne, April 4th, 1844. Messrs. McQueen & McKay: Bought of D. & J. A. F. Nichols two hundred barrels of superfine flour, at $3.564. $712.50.

"Received, Fort Wayne, April 4th, 1844, payment in full. D. & J. A. F. Nichols.

"Received the above flour in store, at Fort Wayne, April 4th, 1844, which we agree to deliver on board of canal boats here, soon after the opening of the navigation, subject to the order of McQueen & McKay. D. & J. A. F. Nichols."

The flour was at the time of the sale in the warehouse of the vendors. One Gibson advanced to McQueen & McKay, on the faith of this pork and flour, and the evidence of title thereto, the sum of $2,787.50, and took from them an assignment of the memorandums, receipts, and guaranties, in the words and figures following, to wit:

"Deliver the within two hundred barrels of flour to E. T. H. Gibson or order. McQueen & McKay.

"Deliver the within 350 barrels of pork to E. T. H. Gibson or order. McQueen & McKay."

The court held that the documents executed by the warehousemen transferred the property and the possession of the pork and flour to McQueen & McKay, and the vendors from that time held it for them, and as their bailees; that the indorsement and delivery of the warehouse documents to Gibson, in consideration of the advances of money he made to McQueen & McKay, transferred to him the legal title and constructive possession of the property; that the warehouseman, from the time of this transfer, became his bailee, and held the pork and flour for him; and that the delivery of the evidence of title and the orders indorsed upon them were equivalent, in the then situation of the property, to the delivery of the property itself.

In Harris v. Bradly, 2 Dill. 284, Fed. Cas. No. 6,116, it was held that: "An instrument executed and signed by warehousemen in the following words: 'Received in store, for account of Bailey & Weightman, 3,000 sacks of corn,' is a warehouse receipt, and has an assignable or negotiable quality; and its in

dorsement and delivery by the persons to whom it was issued pass the title to the corn, and the makers of the instrument are liable to the holder or assignee."

In Puckett v. Read, 31 Ark. 131, an assignee based his claim upon a receipt in the following words and figures: "Mount Olive, Ark., Nov. 27th, 1871. Received of William Riley seventeen hundred and forty-two (1,742) lbs. seed cotton, to be ginned and baled for toll, and delivered to the holder of this receipt. A. & A. Jeffrey & Co." The court held that the delivery of it to the assignee passed to him the title to the cotton.

From the foregoing authorities, it appears no particular or minute description of property is required to be given in the receipt. But it is also true that "a warehouse receipt for a part of certain goods stored in bulk passes no title until such goods are separated-set apart-so as to distinguish them from the general mass unless the receipt provides the means of making such separation." Ferguson v. Bank, 14 Bush, 555; Trust Co. v. Trumbull (Ill. Sup.) 23 N. E. 355, 361; Jones, Pledges, § 317. In such a case no particular part of the goods can be said to be mentioned in the receipt, or claimed under it. There is no individuality until the separation is made.

In this case a warehouse receipt was given to Jones Bros. & Co. for each bale, as it was delivered, or for all the cotton received from them on the day of its date. As it was received, it was tagged and numbered, and the compress company entered upon its books the marks of each bale, from whom it was received, by what route, and the date of its receipt. In every instance the cotton covered by each receipt was marked and identified so as to distinguish it from the other cotton held by the company.

After the cot

ton was thus identified the receipts for it were transferred to the bank, and in this way the title to all of it passed to the bank, and the compress company became its bailee, and held the cotton for it.

It is contended by the appellee that the bank holds no receipt of the compress company for the 64 bales in controversy, and that the two receipts now held by the bank were issued for other cotton. But it is not controverted that receipts similar to these were issued for every bale delivered by Jones Bros. & Co. to the compress company, and transferred to the bank. It is therefore evident that the bank, if it did not acquire the cotton in controversy as a security by the receipts now held by it, it did by some others. There is no contention that the bank has ever transferred its title to the 64 bales of cotton. The evidence clearly precludes such a conclusion. Receipts for them may have been surrendered when the same number of bales were delivered by the compress company, but the bank has never relinquished its right to them, and is still entitled to hold and subject them to sale for the satisfaction of

the debt owing to it by Jones Bros. & Co. The loss or destruction of the evidence of the title did not destroy the title. Reversed and remanded for a new trial.

WOLF v. STATE.

(Supreme Court of Arkansas. June 16, 1894.) CRIMINAL LAW-GIVING AWAY INTOXICANTS.

1. Under Mansf. Dig. § 1850, making it an offense to give away intoxicating liquors on the day of an election in any county in which the election may be held, it is immaterial that the giving away of the intoxicating liquor has no reference to the election, as the statute makes no exception.

2. Wine is an "intoxicating liquor," within the meaning of such statute.

Appeal from circuit court, Logan county; Jephtha H. Evans, Judge.

William Wolf was convicted of an offense, and appeals. Affirmed.

A. S. McKennon, for appellant. James P. Clarke, Atty. Gen., and Chas. T. Coleman, for the State.

HUGHES, J. The appellant was convicted of giving away intoxicating liquor in Logan county, in this state, on the day of a general election for state officers, and ap pealed to this court. The liquor given away was wine. He contends that the court improperly refused an instruction which he asked, and committed error in the three instructions given. These instructions are as follows: (1) "The jury are instructed that if the defendant, in Logan county, Arkansas, on election day mentioned in the indictment, within one year next before the finding the indictment, gave or sold to witness Weeks any quantity of intoxicating liquors, you will find him guilty, and assess his punishment at a fine," etc. (2) "If defendant conducted witness to the place, and assisted him in procuring intoxicating liquors in any quantity, defendant is as guilty as if he sold or gave it from his own hand." The defendant objected to the giving to the jury each of said instructions, but the court overruled his objections, and the defendant at the time excepted. The defendant asked the court to instruct the jury as follows: "If you find from the evidence that defendant was not a dealer in liquors, and was in no way connected with the sale of or traffic in liquors of any kind, and that the wine given by him to the witness had no connection with or reference to the election then being held, you will find the defendant not guilty." The court refused this instruction, and the defendant excepted. After argument of counsel, the jury retired to consider their verdict at about 2:30 p. m., and during the afternoon were called into court twice, and interrogated by the court why they could not agree upon a verdict, and they replied that they differed as to whether the wine given to witness by defendant was intoxicating or