a grant from the Governor of New Mexico, who, | under the laws then in force, had authority to make the grant. However, we do not wish to be understood as undervaluing the fact of a possession so long and uninterrupted as disclosed in this case. Without going at length into the subject, it may be safely said that by the weight of authority, as well as the preponderance of opinion, it is the general rule of American law that a grant will be presumed upon proof of an adverse, exclusive, and uninterrupted possession for 20 years, and that such rule will be applied as a presumptio juris et de jure, wherever, by possibility, a right ma, be acquired in any manner known to the law. 1 Greenleaf Ev. (12th Ed.) § 17; Ricard v. Williams, 7 Wheat. 59, 109 [5 L. Ed. 398]; Coolidge v. Learned, 8 Pick. [Mass.] 504. Nothing, it is true, can be claimed by prescription which owes its origin to, and can only be had by, matter of record; but lapse of time, accompanied by acts done, or other circumstances, may warrant the jury in presuming a grant or title by record. Thus, also, though lapse of time does not, of itself, furnish a conclusive bar to the title of the sovereign, agreeable to the maxim, 'nullum tempus occurrit regi;' yet, if the adverse claim could have a legal commencement, juries are advised or instructed to presume such commencement, after many years of uninterrupted possession or enjoyment. Accordingly, royal grants have been thus found by the jury, after an indefinitely long continued peaceful enjoyment, accompanied by the usual acts of ownership. 1 Greenl. Ev. § 45."

county clerk of Yell county, in which the lands were situated, that the N. W. 1⁄4 of the N. E. 4, or the land in controversy, had been sold to Eppy White and was subject to taxation. The date of this certificate is 1868.

Therefore we are of the opinion that the circuit court might reasonably have inferred that the record of the state land office did not show, as a matter of law, that the land in controversy had not been sold to Eppy White. When we consider the further fact that the land has been in possession of Eppy White and his grantees ever since the year 1857, and that these parties have cleared the land, made improvements on it, cultivated it, and paid taxes on it, we think the circuit court was justified in finding that a grant had been made to Eppy White. In addition to this, Richard Ellison testified that he had seen, among the papers of his father, a deed to this land from the state to Eppy White. Eppy White and his grantees have been in the exclusive and uninterrupted possession of the land for over half a century, and they are all, except the defendant Laura West, now dead. She was too young to remember anything about the original entry; and when all the facts and circumstances adduced in eviThe presumption of a grant from long-dence are considered, we are of the opinion continued possession is one of fact, and it is for the jury or court trying the case to determine the effect of the evidence in support of the presumption.

[2] It is contended by counsel for plaintiff that the records of the state land office conclusively show, as a matter of law, that no deed could have ever been issued by the state to Eppy White; but we do not agree with them in this contention. It was admitted by the commissioner of state lands that there was some confusion from the records in his office as to whether the entry by Eppy White was for the N. W. 4 of the N. E. 14 or the N. E. 4 of the N. E. 4. It is true he states that in his opinion the letter "S" was placed on the N. W. 4 of the N. E. 4 by mistake, and should have been placed on the N. E. 4 of the N. E. 14. He gave his opinion that this was a mere clerical error, because there was no other record in the land office tending to show that Eppy White had entered the land in controversy; that, on the other hand, there was a record in the land office showing that Eppy White had made application to purchase the N. E. 4 of the N. E. 4 and that the same had been sold to him. He admits, however, that it was the practice in the land office to place the letter "S" on the original plat on the subdivision of land when it was sold by the state and that pursuant to this custom the letter "S" was placed on the N. W. 4 of the N. E. 4. He also admits that by reason of this confusion of the records one of the clerks in his office sold the N. E. 4 of the N. E. 4 of said section 6, to Oscar Winn. Then, too, the auditor of state lands, pursuant to statute, certified to the

that the court was justified in finding that a grant of the land had been made by the state.

It follows that the judgment must be affirmed.

CORNEY v. CORNEY. (No. 139.) (Supreme Court of Arkansas. Sept. 28, 1914.) 1. EQUITY (§ 239*)-PLEADING COMPLAINT→ DEMURRER-ADMISSIONS.

A demurrer to the complaint admits the truth of the allegations thereof. Dig. 8 494; Dec. Dig. § 239.*] [Ed. Note. For other cases, see Equity, Cent

2. EQUITY (8 430*)-DECREE-VACATION FOR

FRAUD.

A decree of the Supreme Court will not be vacated, on the ground that it was procured by fraud, based on the act of the successful party in surreptitiously making a part of the record on appeal a pleading, not filed, containing statements defamatory of the character of the defeated party, and thereby affecting her credibility as a witness before the Supreme Court, lent pleading did not require a denial, and where the matter complained of in the fraudu could not have misled the Supreme Court.

[Ed. Note. For other cases, see Equity, Cent. Dig. §§ 1034-1047; Dec. Dig. § 430.*]

Appeal from Crawford Chancery Court; W. A. Falconer, Chancellor.

Suit by Mary F. Corney against Robert B. Corney. From a judgment for defendant, sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

Mary F. Corney, of Little Rock, for appellant. Robert L. Rogers and Vaughan & Akers, all of Little Rock, for appellee.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

KIRBY, J. The history of this case is court reversing and vacating the decree of found in Corney v. Corney, 97 Ark. 117, 133 the chancery court setting aside the decree S. W. 813, and 108 Ark. 415, 159 S. W. 20. of divorce, because of the fraudulent falsifyIn the first of these cases the court reversed ing of the record of the case by the interpolaa decree vacating and setting aside a de- tion of the answer here, when none had been cree of divorce theretofore granted by the filed in the lower court-the complaint alCrawford chancery court to R. B. Corney | leging that this answer is material, “in that against Mary F. Corney, appellant herein, it contains, among others, the following false holding that the fraud shown to have been practiced in procuring same was not a sufficient ground for vacation of the decree, and that the appellant herein was guilty of laches in waiting more than two years after the rendition of the decree, and until Corney had married again, before proceeding to have it vacated. She thereafter filed a complaint in the chancery court of Crawford county, asking that the judgment of this court be reviewed and set aside, leaving the original order and decree of divorce in full force, and alleging as ground therefor that the decree of this court had been obtain ed by fraud practiced by the successful party in surreptitiously introducing an answer into the record of the case here that had not been filed nor considered in the lower court. A general demurrer was interposed and sustained to this complaint, and upon appeal the case was affirmed. Corney V. Corney, 108 Ark. 415, 159 S. W. 20. Appellant then instituted this suit in the court below to vacate the former decree of reversal by this court on account of fraud practiced by the successful party in obtaining it, and a general demurrer was interposed to this complaint and sustained, and the case is here on appeal.

In 108 Ark. 415, 159 S. W. 20, on the last appeal, the court said:

"In order to show that the judgment of this court was obtained by fraud, it is necessary to allege specifically what the fraud consisted of and that it was material, so that it can be seen that the judgment of the court was or might have been affected by it. Fraud is never presumed, and must be specifically alleged and proved in order to entitle the complaining party to relief. The judgment of this court should not be set aside merely because the answer was wrongfully put into the record, unless it be shown that it was material and had some bearing upon the decision of the case."

and fraudulent statements referring to appellant derogatory to her character and credibility"-setting out a page of highly denunciatory condemnation and villification of appellant; that these derogatory statements as set out in the fraudulent answer did or might have influenced the Supreme Court in their decision of the case, being such as tended to show her unworthy of belief; that because thereof her testimony in the lower court might have been given by the Supreme Court little or no weight. The complaint also alleges that her attorney, without any knowledge of the fact that the answer had not been filed in the lower court, and without any authority from her or knowledge on her part that he had done so, stipulated that the answer should become a part of the record of the Supreme Court. The demurrer, of course, admits the truth of the allegations of the complaint, and the sole question for determination is whether its allegations are sufficient to warrant the granting of the relief asked.

[2] No contention is made that any allegation of the complaint to set aside and vacate the decree of divorce was admitted or established by the failure to answer, conceding that no answer was made, but only that the interpolated answer contained statements so derogatory to and defamatory of the character of the appellant as tended to and might have affected her credibility as a witness before the Supreme Court. The matter complained of in the fraudulent answer is not such as would have required its denial by a reply under our system of pleading, and could not have had effect to impose upon and mislead the Supreme Court in its decision of the cause before it, nor materially to prevent a fair hearing and correct deter

after careful deliberation the decree was reversed by a divided court; the writer hereof concurring in Mr. Justice Hart's dissenting opinion. The complaint makes no such material allegations of fraud from which it can be seen that it had any bearing on the court's decision, or that its judgment was or might have been affected by it. Its allegations of fraud were insufficient, and the chancellor did not err in sustaining the demurrer thereto.

[1] The complaint herein includes sub-mination thereof. The case was heard, and stantially the allegations of all the other complaints by appellant, reciting the wrongs suffered by her at the hands of the appellee, and the frauds claimed to have been practiced in the procuring of the divorce, the rendition of the decree setting it aside, the reversal of this decree by the Supreme Court, leaving the decree of divorce in effect, as well as the facts alleged in the first suit to set aside and vacate the decree of the Supreme Court, and charges fraud of appellee herein in procuring the decree of this

The judgment is affirmed.

COLYAR v. LITTLE ROCK BOTTLING

WORKS. (No. 103.)

(Supreme Court of Arkansas.

July 6, 1914.) 1. EXPLOSIVES (§ 9*)-PERSONAL INJURIES— ACTIONS-PRIVITY.

Where defendant sold soda pop, to be retailed in a business owned jointly by plaintiff and her husband, there was sufficient privity between plaintiff and defendant for her to maintain an action for injuries received by the bursting of a bottle, though plaintiff might not be a partner with her husband, and was merely acting under his direction.

[Ed. Note. For other cases, see Explosives, Cent. Dig. § 6; Dec. Dig. § 9.*]

2. EXPLOSIVES (§ 9*)-PERSONAL INJURIES"ACTIONABLE NEGLIGENCE" WHAT CON

STITUTES.

"Actionable negligence" being breach of duty resulting in injury to some person to whom that duty is legally owing, a company engaged in bottling soda pop and charged waters is guilty of actionable negligence in overcharging the bottles in such a manner that they will explode, because it owes the duty of care, not only to prospective purchasers, but to its employés.

[Ed. Note.-For other cases, see Explosives, Cent. Dig. § 6; Dec. Dig. § 9.*

For other definitions, see Words and Phrases, First and Second Series, Actionable Negligence.] 3. PRINCIPAL AND AGENT (§ 177*)-NOTICE TO PRINCIPAL-KNOWLEDGE OF AGENT.

The knowledge of an agent of a bottling works that the bottles were so heavily charged that they burst without any other cause is imputable to the bottling company.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 670-679; Dec. Dig. § 177.*]

4. EXPLOSIVES (§ 9*)-PERSONAL INJURIES— LIABILITY-KNOWLEDGE OF DEFECTS.

Where a bottling company had knowledge that bottles in the past had broken by reason of being too heavily charged with gas, it is liable for the injuries received by a purchaser of bottled goods upon the explosion of a surcharged bottle.

[Ed. Note. For other cases, see Explosives, Cent. Dig. § 6; Dec. Dig. § 9.*]

5. EXPLOSIVES (§ 9*)-PERSONAL INJURIESACTIONS-EVIDENCE-SUFFICIENCY.

Appellant sued appellees alleging they were partners engaged in business in the city of Little Rock, manufacturing and selling soda pop and kindred articles, that plaintiff and her husband sell soft drinks in said city, and that about October 21, 1913, they bought from the defendants a case of their goods, and after same was delivered at her place of business she lifted one of the bottles from the case and was carrying it to the ice box, and while so doing, in the exercise of due care, the said bottle, without coming into contact with anything, exploded and so injured her left eye that it had to be removed, whereby she not only lost the sight of her eye, but suffered great disfigurement and untold physical pain and mental anguish, and incurred large expense for medical attention and nursing.

A demurrer to the complaint was filed and overruled, and upon motion appellant elected to proceed in her name alone; her husband having been joined with her at the institution of the suit.

Appellees answered, denying the allegations of the complaint, and stating that they purchased the bottles used by them from a reputable, well-known, and reliable bottle manufacturer, and filled them with due care, and, if plaintiff was injured by one of them, it was not due to their negligence, but to that of appellant in handling and using same.

Appellant testified that she was engaged in running a little grocery and confectionery store in the city of Little Rock, and that she handled cold drinks, and that the business was owned by herself and her husband; that as she took a bottle of soda pop from the case in which it had been delivered to put it in the ice box, having picked it up with her right hand, and while in the act of putting it in the ice box with her left hand, the bottle exploded and put her eye out; that she handled the bottle carefully, and did not strike it against anything, yet it exploded, and blew glass all over the floor where she was standing. She testified that she had purchased this soda pop from appellees, and been delivered at the time of her injury. She was taking it out of the case in which it had further testified that she had been engaged in this business for some years, during which Where a bottling company purchased its time a number of bottles had broken, and bottles from a responsible manufacturer, and that sometimes these bottles would break in they were of the standard grade and quality, it the case, and at other times they would is not liable for injuries received by a purchaser of its goods upon the explosion of a bottle, which was properly charged, but contained a hidden defect.

In an action for injuries received by a purchaser of soda pop upon explosion of a bottle, evidence of defendant's negligence in overcharging the bottle held sufficient to go to the jury.

[Ed. Note. For other cases, see Explosives, Cent. Dig. § 6; Dec. Dig. § 9.*]

6. EXPLOSIVES (§ 9*)-PERSONAL INJURIESLIABILITY-DEFENSES.

[Ed. Note.-For other cases, see Explosives, Cent. Dig. § 6; Dec. Dig. § 9.*1

break on the ice.

A witness, R. E. Sallie, testified that he had worked for appellees for a period of 31⁄2 years, during which time he had been engaged in the delivery of bottled drinks to the

Appeal from Circuit Court, Pulaski Coun- appellees' customers, and that it was rather ty; Guy Fulk, Judge.

Action by Rebecca Colyar against the Little Rock Bottling Works. From a judgment for defendant, plaintiff appeals. Reversed and remanded, with directions.

a common occurrence for these bottles to burst while he was handling or hauling them, and that he had had them burst on his wagon without any cause of which he was aware, and that some had exploded by being struck

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

against something, while others broke while | of the complaint that the packing company he was handling them; that he had had cus- had been guilty of negligence in putting up tomers tell him of the soda pop bottles burst- the meat for sale. If appellees are liable at ing, and that it was his duty to take up all under the evidence in this case, a recovthese bursted bottles, as he had instructions ery on account of that liability cannot be to replace the broken ones with other bot- defeated because of the lack of privity. tles containing soda pop; that they broke The proof is that the bottles were sold and through being overcharged, or from the bot- | delivered to the appellant, who was engaged tles being defective; and that you could not tell by looking at the bottles whether they would break or not. He further testified that he cautioned appellees that too many bottles were bursting and that they would have trouble about it; that they were charging the bottles with too much gas and that the overcharge was sufficient to burst them and was the cause of their bursting.

in business with her husband, although so far, at least, as the bottles in question are concerned, the business was in her charge and under her control.

It is urged that the business being conducted by her could not be hers, nor could she be a partner therein on account of the interest of her husband, as the wife cannot engage in a partnership business with A witness, Anderson, testified that he was her husband. But, whatever her relaengaged in the distilled water and soda water tionship to her husband in regard to this business, and had been in the latter busi- business may have been, the fact remains ness for 7 years, and knew the methods of that she was in charge of it, and was injured charging such bottles; that unless a bottle while handling one of the bottles in the usual was cracked it could not be told whether it and necessary course of business. This was defective or not, but that charging the handling of the bottle by the vendee, or his bottle was the usual test to discover that fact, employé, was necessarily within the conand that if the bottle was not defective it templation of the parties when the sale was would not ordinarily explode, if it was prop-made, and if privity is essential to a recovery erly charged; that cold water will absorb where negligence is alleged on the part of at moderate pressure a great deal more of the vendor, there is such privity here as is the carbonic acid gas, with which it is charg- necessary to sustain a recovery. If the vened, than it will when the water is warm. dor is to be held liable at all for his negliHe further testified that his experience has gence in cases of this character, there is no been that some bottles would burst without reason for limiting that liability in favor of any apparent cause, and that the bottles used the vendee individually, who may never perby appellees were bought from a factory sonally be exposed to the danger resulting which is considered one of the largest and from this negligence. best glass companies in the world.

At the conclusion of appellant's evidence, the court, upon motion of appellees, directed the jury to return a verdict in appellees' favor, which was done, and this appeal is duly prosecuted from the judgment rendered upon that verdict.

Bradshaw, Rhoton & Helm and Marshall & Coffman, all of Little Rock, for appellant. Carmichael, Brooks, Powers & Rector, of Little Rock, for appellee.

SMITH, J. (after stating the facts as above). [1] It is urged there can be no recovery here because of the lack of privity between appellant and appellees, and the case of Nelson v. Armour, 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237, is cited to sustain that position. The facts in that case were that plaintiff had purchased from a dealer a can of lunch tongue, which the dealer had purchased from the Armour Packing Company, the defendant, and the court held in that case that a demurrer to the complaint was properly sustained, because there is no privity of contract between the vendor in one sale and the vendees of the same property in the subsequent sale, and that each vendee must resort as a general rule only to his immediate vendor. No reference was made in the opinion in that case to the allegations

[2] Actionable negligence has been defined as a breach of duty resulting in injury to some person to whom that duty is legally owing, and the duty here is not merely to so charge a bottle as that its contents may not be wasted, but also to exercise that care which an ordinarily prudent person would use to avoid the infliction of an injury which might reasonably be expected to follow the failure to use this care; and that duty is owing, not only to the vendee, but also to his employés, who perform the service which the parties must have contemplated as necessary to be performed when the sale was made.

[3-5] There is a case reported in 138 Mich. 567, 101 N. W. 828, 68 L. R. A. 342, 110 Am. St. Rep. 321, 5 Ann. Cas. 177, the style of which is O'Neill v. James, where the facts are strikingly similar to the facts in the instant case, except that the party injured by the explosion of the bottle was an employé of the owner of the business, and there was no proof of knowledge upon the part of defendant that the bottle which exploded had been improperly charged with the gas. In that case the plaintiff had recovered a substantial judgment, which was reversed on appeal because of the insufficiency of the evidence to sustain the allegations of the complaint, which allegations were held sufficient to support a recovery. The court, in

Appeal from Circuit Court, Pulaski Coun- appellees' customers, and that it was rather ty; Guy Fulk, Judge.

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes