not, and the court instructed them that such was a question of fact, which they alone should decide, and kept them together until adjourning time, when they, under instructions, were permitted to disperse until 8 o'clock next morning, when they were called into court, and the court then further instructed them as follows: (3) "Wine is an 'intoxicating liquor,' within the meaning of the statute, and its sale or gift on election day is prohibited." Defendant objected to the giving of this instruction to the jury, but the court overruled the objection, and the defendant at the time excepted. Section 1850 of Mansfield's Digest makes the giving away of any intoxicating liquors on the day of any election or the succeeding night, in any county, city, town, or township in which said election may be held, punishable by fine of not less than $200, or imprisonment for not less than six months, or both. In matters not that the giving away of intoxicating liquor has no reference to the election. The statute makes no exception. The court takes judicial knowledge of the fact that wine is an intoxicating liquor. It is a matter of common knowledge. Black, Intox. Liq. § 5; 11 Am. & Eng. Enc. Law, 582; Jones v. Surprise, 64 N. H. 243, 9 Atl. 384: State v. Packer, 80 N. C. 439; State v. Williamson, 21 Mo. 496. The judgment is affirmed. REYNOLDS v. SHAVER et al. (Supreme Court of Arkansas. June 16, 1894.) DEED-CONSTRUCTION-QUITCLAIM. A deed which recites that the grantors grant, bargain, and sell unto the grantee all their "right, title, claim, and interest in and to the following described land." etc., and that hey do, for themselves and their "heirs and assigns, warrant and defend the same unto the said" grantee, is only a quitclaim, and the heirs of the grantors are not liable on the covenant for failure of title; especially where such land was conveyed to such grantors by the grantee as administrator of the estate of its former owner, while it was a part of the homestead of the widow and minor child of the decedent, and could not legally be sold by the administrator. Appeal from circuit court, Randolph county; John B. McCaleb, Judge. Action by D. W. Reynolds against Hattie Shaver and others to recover damages for breach of covenants of warranty contained in a deed. From a judgment for defendants, plaintiff appeals. Affirmed. The appellant sued the appellees in equity to recover damages of them for breach of covenant in the deed of appellees' ancestor to appellant for lands described in the complaint. The deed is as follows: "James M. Shaver to Dennis Reynolds: Know all men by these presents, that we, James M. Shaver and Caroline Shaver, wife of the said James M. Shaver, have for and in consideration of the sum of one thousand dollars to us in hand paid by Dennis W. Reynolds, the re ceipt of which is hereby acknowledged, have granted, bargained, and sold, and by these presents do grant, bargain, and sell, unto Dennis W. Reynolds, all our right, title, claim, and interest in and to the following described land, situated in the state of Arkansas and county of Randolph, bounded and described as follows, to wit: "The south west of the southeast, and the northeast of the southeast, of section thirty-three, township twenty north, range three east, of the fifth principal meridian, containing eighty acres, more or less,'-to have and to hold forever unto the said Dennis W. Reynolds, his heirs and assigns. And we, the said James M. Shaver and Caroline Shaver, do, for ourselves and our heirs and assigns, warrant and defend the same unto the said Dennis W. Reynolds. In testimony of which, we have hereunto set our hands and seals, this 28th of June, 1873. James M. Shaver. [Seal.] Caroline Shaver. [Seal.]" The deed was properly acknowledged and recorded. The appellees answered, denied that their ancestor executed a warranty deed to the appellant, and denied liability on the covenants contained in the foregoing deed, and alleged that the appellant had conveyed the lands to their ancestor by a warranty deed, and was thereby estopped from suing the appellees, and annexed the deed to their answer, which it is not necessary to set out or discuss, as we have not found it necessary to discuss the question of estoppel. The appellant had married the widow of A. G. Kelsey, and became the administrator of his estate. The decedent left a daughter, Hattie, a minor, who married James Jones when she was of the age of 17 years. The land was the homestead of A. G. Kelsey at the time of his death, and was the homestead of Mrs. Kelsey at the time appellant married her, and of Hattie, her minor daughter. Mrs. Kelsey died in 1869. Hattie Jones, née Kelsey, brought ejectment against Reynolds, the appellant, for the lands in controversy, and a judgment was rendered against him for 60 acres of the land and $200 for the detention thereof. The chancellor found in the case at bar that the appellant, as administrator of A. G. Kelsey, had conveyed the land in controversy to the appellees' ancestor, and had afterwards purchased it from him, and that, by reason of his conveyance as administrator, he was estopped from maintaining an action upon the deed of appellees' ancestor to him, and that there was no equity in the bill, and dismissed the same, and the appellant seeks to reverse the decree on appeal. J. C. Hawthorne, for appellant. P. H. Crenshaw, for appellees. HUGHES, J. The contention of the appellant is that the covenants in the deed of Shaver and wife, Caroline, to him, apply to the land described in the deed, and not to whatever "right, title, claim, and interest" the appellees' ancestor may have had at the time of the execution of the deed, which was all that the deed, in terms of the granting clause, purports to convey. The warranty is: "And we, the said James Shaver and Caroline Shaver, do, for ourselves and our heirs and assigns, warrant and defend the same unto the said Dennis W. Reynolds." It appears from the language in the granting part of the deed that Shaver and wife intended to convey only their "right, title, claim, and interest" in the land, and that they intended only to "warrant and defend the same." This is the legal import of their warranty; that is, that they would warrant and defend such "right, title, claim, and interest" as they had in the land at the date of their conveyance, which was all they had conveyed. The conclusion that such was their intention seems apparent from the language of the conveyance, and is strengthened by the facts that Reynolds, as administrator of the estate of Kelsey, had conveyed this land to Shaver, while it was a homestead, and could not legally be sold by the administrator. The conveyance of Shaver and wife to Reynolds was therefore nothing more than a quitclaim deed. In Van Rensselaer v. Kearney, 11 How. 322, it is said: "The general principle is admitted that a grantor conveying by deed of bargain and sale, by way of release or quitclaim of all his right and title to a tract of land, if made in good faith and without any fraudulent representations, is not responsible for the goodness of the title beyond the covenants in his deed." Patton v. Taylor, 7 How. 159; 2 Sugd. Vend. p. 421, c. 12, § 2; 2 Kent, Comm. 473, and other cases cited. "Where a deed purports to convey only the right, title, and interest of the grantor, the scope of the covenant of warranty may be limited by the subject-matter of the conveyance." 2 Devl. Deeds, § 931, and cases cited. Tiedeman on Real Property (section 858) says: "Thus, if a deed purports to convey in terms the right, title, and interest of the grantor to the land described, instead of conveying in terms the land itself, a general covenant of warranty will be limited, and will not be broken by the enforcement of a permanent title outstanding against the grantor at the time of the conveyance. [Cases cited.]" Affirmed. FLORSHEIM BROS. DRY-GOODS CO. v. TORNEY. 1. Where a person, at the time he places a writ of attachment in the hands of the officer, tells him not to serve it unless some other person gets out an attachment, another writ, placed in the officer's hands before such order is countermanded, will have priority. 2. In a contest between attachment creditors as to priority, the sheriff testified that appellant's attorney, when he handed him the writ, said that he was not to serve it unless the appellee got out one. The circuit clerk testified that another of appellant's attorneys told the sheriff that he need not serve the writ immediately, unless some one else got out a writ. The attorney testified that he did not tell the sheriff not to serve it unless appellee got out a writ, but only to wait a few minutes, while he got another writ from a justice of the peace; that he wanted to make the first levy, and was not afraid of a damage suit. Held, that the evidence is sufficient to support a finding of the court that the sheriff was told not to serve the writ unless appellee got out one. Wood and Hughes, JJ., dissenting. Appeal from circuit court, La Fayette county; Charles W. Smith, Judge. Motion and petition by George Taylor Commission Company against Florsheim Bros. Dry-Goods Company to have its attachment against Joseph Taylor given priority. There was a judgment for plaintiff, and defendant appeals. Affirmed. The evidence was as follows: "On their intervention, appellee introduced as a witness the deputy sheriff, J. J. Le May, who testified: 'M. S. Wood gave me an attachment in the clerk's office, and told me to note the time it came to my hands, but I understood him to say that I was not to serve it unless the George Taylor Commission Company had an attachment issued, or made a break. I was under the impression, from what he said, that Mr. Wood did not want his service until some one else had one served; that he was afraid of a damage suit, and did not want to close up the house. Mr. Wood said he wanted to get an attachment on a smaller claim of John O'Connell against the same party before J. P. Wilson. and I told him he would find me at the post office, to give me that writ, or I would go to J. P. Wilson's. I was about to go to the post office, which is between here and Joe Taylor's. A few minutes afterwards, at the post office, I met Mr. Paul Jones, attorney for interpleader, and also Mr. Blake, their agent. Mr. Jones asked me if I had any papers against Joe Taylor. I told him that I had; that I had an attachment for Florsheim Bros. Dry-Goods Company, represented by King & Wood. He asked me if they had pointed out any property, or told me to levy on Jos. Taylor's stock of goods. I told him they had not. He then asked me to wait till he and Mr. Blake could go to the clerk's office and back. I waited, and they soon returned with an attachment against Joe Taylor in favor of interpleader, and ordered me to levy it on Jos. Taylor's stock of goods, and started with me. We had proceeded towards Mr. Taylor's store about one block when we met Mr. Wood, who then handed me an attachment in favor of John O'Connell v. Jos. Taylor, from Justice of the Peace Wilson. We proceeded to the storehouse of defendant, Jos. Taylor, when Mr. Jones pointed out to me the property, and I made the levy shown by my returns. Mr. Wood did not point out to me any property. At Mr. Jones' request, I gave defendant Taylor the George Taylor Commission Company attachment first, and then gave him the other two. I am certain I handed him the George Taylor Commission Company attachment first, but do not know which one of the other two I handed him next, but think I handed him both at once. M. S. Wood, at that time, was a member of the firm of King & Wood, but has since moved to Texas. Before I left the clerk's office, and after Mr. Wood had handed me the Florsheim writ, D. L. King, the senior member of King & Wood, talked to me about the Florsheim writ and the J. P. case of O'Connell against same defendant, and gave instructions. I think that M. S. Wood was the one that gave me the writ in the Florsheim case, but I know that King talked to me about it, though I can't exactly remember what passed between us. I know that Mr. King came up in a hurry, and was nervous about Mr. Jones, who was then in the clerk's office. He and Mr. Jones seemed to be watching each other. Mr. King, when he left me to go to J. P. Wilson's office, said he didn't care for me to serve the Florsheim writ immediately, unless Mr. Jones got out papers. I left the courthouse, and went to the post office. I think King said they were going to Wilson's to get an attachment on another claim,-a small one,-but don't remember whether I promised to go to Wilson's after it. At the post office I met Mr. Jones and Mr. Blake, as I before stated. The Florsheim Dry Goods Company attachment came to my hands first, and I at once indorsed on it the time it came to my hands. About fifteen minutes later the attachment of interpleader, the George Taylor Commission Company, was handed to me, with orders to levy. One or two minutes later the O'Connell writ was handed me by Mr. Wood. It was about eighteen minutes from the time the first attachment reached my hands before they were served.' "The appellant then introduced W. L. Connevy, who testified: 'I am county and circuit clerk, and remember the occasion of writs being issued by me against Jos. Taylor. The Florsheim Bros. writ was issued by me first, and my recollection is that I handed the papers, as soon as issued, to Jos. Le May, deputy sheriff, myself, in the presence of D. L. King, who, as attorney for Florsheim Bros., was having the writ issued, and that Le May remarked, "Do you want this served at once?" And King replied, "Yes, I do want it served first; but you need not serve it immediately unles some one makes a break, as I want to go to J. P. Wilson's to get out an attachment in a case where the circuit court has no jurisdiction." There were many things said that I do not remember.' "Appellants then introduced D. L. King, who testified: 'I am the D. L. King referred to as attorney for Florsheim Bros., and a member of the law firm of King & Wood at that time. Mr. Wood has since moved to Texas. I handed the writ of attachment of Florsheim Bros. v. Jos. Taylor to Deputy Sheriff Le May myself, and this was in the court room, adjoining the clerk's office. Mr. Paul Jones was at the time in the clerk's office, and I called Le May out in the court room to hand him the writ. My firm also had a small claim of John O'Connell against the same defendant, too small for circuit court, and I was in a hurry to get down to the justice's office to see that my partner, Wood, got that attachment out, and in Le May's hands. I said to Le May, “You need not serve this immediately, unless Paul Jones gets out papers, as I am going to Justice Wilson's to get out one for Mr. John O'Connell for a small debt." He said something about coming to Wilson's office by the time I got the writ issued, and I left to go there to hurry up Wood, but I was detained on the way by a client; and seeing Wood at a distance, coming from Wilson's, I overtook him, and he informed me that while waiting at Wilson's for Le May, who had promised to come there, Le May had waited at the post office for Mr. Paul Jones, and that Jones had got ahead of him on the O'Connell attachment. So I hurried on to defendant Jos. Taylor's store, and got there about the time the writs were levied. My conversation with Le May was after he says he talked with Wood, and I never told him not to serve the Florsheim writ first, nor to hold it until another writ was put in his hands, nor that I didn't want to make the first levy. On the contrary, I did want to make the first levy. We were not afraid of any damage suit. All I told Le May was, as I stated, that, as we had a little justice of the peace claim, on which we were then issuing, he need not serve the Florsheim writ immediately, unless Mr. Jones got out papers, in which event to serve at once, as the Taylor Commission Company's claim, represented by Mr. Jones, would, I was satisfied, cover all that would be left after the levy of the Florsheim writ. If Mr. Jones was not then getting out papers, I knew we could get the O'Connell writ in the deputy sheriff's hands within a few minutes, and he could serve both at once."" D. L. King and T. E. Webber, for appellant. Scott & Jones, for appellee. RIDDICK, J. On March 1, 1892, the ap pellant, by its attorneys, King & Wood, filed a complaint in the La Fayette circuit court against Joseph Taylor for an amount due it on a promissory note executed by said Taylor. Appellant caused a writ of attachment to be issued, and the same was placed in the hands of the deputy sheriff at 11:15 a. m. on the same day. Appellee also on the same day commenced suit against said Joseph Taylor, and had a writ of attachment issued, which came to the hands of the sheriff at Both 11:30 a. m., 15 minutes after the attachment in favor of appellant was received. writs of attachment were served and returned by the deputy sheriff, who indorsed the same return on each, except the difference in the time at which they came to his hands. Judgments were obtained and attachments sustained in both suits. Appellee filed a motion and intervening petition to have the lien of its attachment given priority over that of appellant; alleging, in effect, that the appellant, at the time of the delivery of the writ of attachment to the sheriff, had directed the sheriff not to serve said writ, and that before this order was countermanded the writ in favor of appellant had been placed in hands of sheriff, and was first levied. Appellant denied the allegations contained in the motion and petition of appellee, and the matter was submitted to the court, who, after hearing the evidence, found, in favor of appellee, that the lien of its attachment was entitled to priority over the writ of appellant. A motion for new trial was made, and, the same being overruled, the appellant appealed. The deputy sheriff, who was sworn as a witness, testified as follows: M. S. Wood, attorney for appellant, "gave me an attachment in the clerk's office, and told me to note the time it came to my hands; but I understood him to say that I was not to serve it unless the George Taylor Commission Company had an attachment issued, or made a break. I was under the impression, from what he said, that Mr. Wood did not want his service until some one else had served; that he was afraid of a damage suit, and did not want to close up the house." He also testified that "he gave the defendant the attachment of the George Taylor Commission Company, first, and then gave him the other two." There was other testimony tending to contradict this statement of the officer, and to show that the attorney only requested the officer to wait a few moments, until he (the attorney) could get another writ from a justice of the peace, on a claim that was below the jurisdiction of the circuit court, so that both writs could be served at the same time. Such a request as this, with no Intention of causing any material delay in the service of the writ, we do not think would have the effect of giving priority to a subsequent attaching creditor. But the circuit judge having found against appellant, and being of opinion that, with the witnesses before him, his means of arriving at the truth of the matter was vastly superior to ours, we must, without undertaking to determine the weight of the evidence, uphold his finding, if the proof is sufficient to support it. After considering all the evidence a majority of the court are of the opinion that it is sufficient to support a finding by the court that the writ of attachment in favor of appellant was delivered to the officer with direction not to serve it unless some other v.27s.w.no.2-6 creditor of Joseph Taylor had an attachment issued; that before this order was countermanded the writ of appellee was issued, and placed in the hands of the officer, with a direction to levy at once. The question for the court to determine is, what is the effect of a direction to the officer holding the writ not to levy unless some other creditor gets out an attachment? Section 325 of Mansfield's Digest is as follows: "An order of attachment binds the defendant's property in the county, which might be seized under execution against him, from the time of the delivery of the order to the sheriff or other officer; and the lien to the plaintiff is completed upon any property or demand of the defendant by executing the order upon it in the manner directed in this chapter." The object of this section was to aid the diligent creditor in the enforcement of the writ, and the collection of his debt. It was not intended that a creditor, by placing a writ of attachment in the hands of an officer, should secure a lien, and bind the property of the defendant, and then, by directing the officer not to levy unless some other creditor got out an attachment, convert the lien of the writ into a security in the nature of a mortgage. Under statutes which make an execution a lien on the property of the debtor from the time of its delivery to the proper officer, it has been frequently held that a delivery of an execution with a direction to the officer not to levy, or not to levy unless forced to do so by a junior execution, avoids the lien, and is of no more effect than if the execution creditor had kept the writ in his own pos session. Until such an order to the officer is countermanded with an order to execute the writ, the officer is considered to be holding the writ, not in his official capacity, but only as the agent of plaintiff. Freem. Ex'ns (2d. Ed.) § 206; Gilmore v. Davis, 84 Ill. 489; Landis v. Evans, 113 Pa. St. 334, 6 Atl. 908; Howes v. Cameron, 23 Fed. 324; Blakely v. Smith (Ky.) 26 S. W. 584. We see no good reason why the same rule should not apply in attachments when a creditor or his attorney directs the officer having the writ in his possession not to levy on the same unless some other creditor gets out an attachment. Blakely v. Smith (Ky.) 26 S. W. 584. A direction to the sheriff not to sell, by the execution creditor, after the execution was levied, has been held to avoid the lien as to subsequent purchasers and creditors securing valid liens; but this rule would not apply in cases of attachments after the levy is made, or, at most, only to a limited extent, for the reason that attachments are levied, not like executions, for the purpose of making a sale, but only to hold the property of the debtor subject to the order of the court. But the attaching creditor, no more than the execution creditor, can use the writ for an improper purpose; and an attempt to do this by directing the officer not to levy will suspend the lien as to subsequent purchasers, mortgagees, and attaching creditors, who secure valid liens before such order is countermanded. Most of the cases cited by counsel for appellant are cases where the delay in executing the writ occurred after the levy was made. After the levy of an execution or an attachment is made, the possession of the officer, or the acts of the officer in making the levy, give notice to the defendant, and to others dealing with him, of the existence of the lien, and the effect of delay is not likely to be so mischievous. But until the levy is made the lien given by the statute is a secret lien, and liable to jeopardize the rights of subsequent purchasers and creditors. He who wishes to avail himself of it should place no obstruction in the way of having it perfected by the levy of the writ. We conclude that the evidence is sufficient to support the finding of the circuit court, and the judgment is affirmed. WOOD and HUGHES, JJ., concur as to the rules of law announced, but are of opinion that the evidence is not sufficient to support the finding of the circuit court. FORDYCE et al. v. RUSSELL et al. (Supreme Court of Arkansas. June 16, 1894.) PLEADING-FILING OF AMENDMENT-PRESUMPTION ON APPEAL-NUISANCE-LIABILITY OF VENDEE OF PROPERTY-JETTIES IN RIVER. 1. Where an amendment to an answer filed after the trial had begun recited that it was made "by leave of the court had and obtained," and was treated by the lower court as having been properly filed, it will be so regarded on appeal. 2. On appeal, a general objection to the giving of several instructions will not be considered if any one of them is good. 3. In an action for negligently causing an overflow of plaintiff's land, it appeared that the jetties extending into the river, which caused the overflow, were built by a railroad company to protect its bridge. The property of this company was afterwards transferred to a company of which defendants were the receivers. The jetties were not on the right of way, and it was not shown that defendants ever assumed control of them or tried to maintain them. Held, that defendants were not liable. Appeal from circuit court, La Fayette county; Thomas E. Webber, Special Judge. Action by J. C. and W. H. Russell against the St. Louis, Arkansas & Texas Railway Company, and S. W. Fordyce and A. H. Swanson, receivers of said company. From a judgment for plaintiffs, defendants appeal. Reversed. Gaughan & Sifford and Sam. H. West, for appellants. Scott & Jones, for appellees. FLETCHER, Special Judge. This is an action by J. C. and W. H. Russell against the St. Louis, Arkansas & Texas Railway Company, and Fordyce and Swanson, as re ceivers of said railway company, for damages alleged to have been occasioned to the farm and crops of the Russells, by reason of the improper construction of the roadbed of the company through their farm, and also by a number of jetties constructed in Red river, on which said farm is situated. There was a verdict for the Russells, against both the railway company and receivers, and they have appealed. The original answer did not deny that the defendant railway company built the jetties, but there appears in the record an amendment to the answer, indorsed by the clerk as having been filed after the trial had begun. This amendment denies that the jetties were built by the defendant company, and alleges that they were built by S. W. Fordyce, as receiver of the Texas & St. Louis Railway Company. There is no record entry of the filing, and it is contended on behalf of appellees that the amendment was not filed by permission of the court, and should not be regarded by this court. It is stated in the amendment that it is made "by leave of the court had and obtained," and evidence was introduced, without objection. to sustain it. It was treated as having been properly filed, and we will so regard it. Railway Co. v. Harper, 44 Ark. 527; Railway Co. v. Triplett, 54 Ark. 289, 15 S. W. 381, and 16 S. W. 216; Fordyce v. Hardin, 54 Ark. 554, 16 S. W. 576. It is urged on the part of appellants that the court erred in giving numerous instructions for appellees, and in refusing and modi fying instructions asked by appellants. The record shows that a general objection was made to the giving of instructions asked by appellees, but it does not appear that any objection was made at the time to the refusing or modifying of instructions asked by appellants. The only objection to the court's ruling on appellants' instructions is disclosed in the motion for a new trial. It is the settled practice of this court that objections to the rulings of the trial court shall be specifically pointed out, and that a general objection to several instructions, in gross, will not be entertained if any one of them be good. Atkins v. Swope, 38 Ark. 528; Neal v. Peevey, 39 Ark. 337. The only question left for us to consider is as to the sufficiency of the evidence to sustain the verdict. The railroad passes through the farm of appellees, and one end of its bridge across Red river is constructed upon the farm. The farm borders upon the river for half a mile or more above the bridge. The jetties are 6 in number, commencing about one-fourth of a mile above the bridge, and are placed about 150 or 200 yards apart, extending from the bank on which the farm is situated into the river about 150 feet. They were built principally in 1885, by S. W. Fordyce, as receiver of the Texas & St. Louis Railway Company. Before that time the bank of the river above |