represents it to be, there is an implied war-] ranty that it is sound and fit for the purpose sold, and that this covenant runs with the property through any number of hands and inures to the benefit of the ultimate consumer. It is true this rule is opposed to one laid down in Nelson v. Armour Packing Co., 76 Ark. 352, 90 S. W. 288, 6 Ann. Cas. 237, but a careful consideration of that opinion leads one to the conclusion that it is unsound, and the rule laid down is wholly unsuited to the conditions existing at the present time. There is no rule of property in that case, and no reason exists why it should not be overruled if unsound. The opinion itself shows that the line of cases directly in point on the subject were not considered. I also think the opinion is cloudy upon what is necessary for the plaintiff to prove in an action for negligence in such cases. The federal act of June 30, 1906, prohibits interstate shipments of adulterated foods or drugs and makes a violation of the act a misdemeanor. One section of the act defines adulteration in the case of meats as consisting "in whole or in part of a filthy, decomposed, or putrid animal or vegetable substance, or any portion of an animal unfit for food, whether manufactured or not, or if it is the product of a diseased animal, or one that has died otherwise than by slaughter." The federal act of March 4, 1907 (34 Stat. 1265, c. 2907), provides that any person who shall "sell or offer for sale or transportation for interstate or foreign commerce any meat or meat food products which are diseased, unsound, unhealthful, unwholesome, or otherwise unfit for human food, knowing that such meat food products are intended for human consumption, he shall be guilty of a misdemeanor." This statute was passed for the protection or benefit of the ultimate consumer, and the manufacturer is liable to him for damages resulting from his failure to comply with the statute. Therefore a prima facie case is made out for the plaintiff by proof that the meat was sold in the original package, was diseased, and caused the death of plaintiff's wife. ALLOW Appeal from Circuit Court, Izard County; J. B. Baker, Judge. Petition in probate court by S. H. Turner and another, administrator of the estate of T. P. Turner, deceased, for sale of land for payment of debts against the estate and expenses of administration, opposed by certain heirs of the deceased. On appeal from judgment of probate court denying the petition, circuit court entered judgment directing sale of the lands, and the heirs appeal. Affirmed. John C. Ashley, of Calico Rock, for appellants. Woods & Sherrill, of Calico Rock, and Elbert Godwin, of Melbourne, for appellees. WOOD, J. T. P. Turner died about the 1. JUDGMENT 910(4)-PRO BATA ANCE A "JUDGMENT," WITHIN STATUTES OF year 1894. He left surviving him a widow LIMITATION. While a pro rata allowance of creditors' claims against the estate of a decedent is a and several children by her and of former marriages. S. H. Turner and George Turner, two of his children, were appointed ad (216 S.W.) ministrators of his estate. He was seized of the allowance cannot be barred by the statute 250 acres of land, and 190 acres of this were of limitations." set apart to the widow as her homestead and dower. The remaining 60 acres were barren and rocky land, which separate and apart from the other lands were of little, if any, value. Turner also left some personal property. The statute applicable to the settlement of administrators and payment of claims is found in sections 142 to 159, inclusive, of Kirby's Digest. [1, 2] It does not appear from the record that there has been any order of the probate court showing the settlement of the administrators, at which it was found that there was any money in their hands sufficient to pay the claims probated and allowed against' the estate, and an order made by the probate court for their payment in full or pro In 1895 and 1896 claims were presented and allowed against the estate in the sum of $535.15. The personal assets were duly administered. There were certain debts owing the estate, but only the sum of $50 was col lected which came into the hands of the administrators in 1918. The other debts were worthless, and the administrators took cred-rata, et cetera. it for them in their account current. The last account current which was approved by the probate court in 1899 showed a balance of $57.50 of doubtful notes due the estate in the hands of the administrators. Nothing was paid on the debts probated and allowed against the estate, for the reason that there were no assets in the hands of the administrators at the time to pay the same. The administrators made no effort to sell the 60 acres, which alone were subject to the debts, for the reason that, in the judgment of the administrators, separate and apart from the other tract, if put up and sold, it would not have brought enough to have paid the ex-vented from selling it, by the possibility that penses of the sale. In July, 1918, the widow of T. P. Turner died. No effort was made by the creditors or the administrators until the death of the widow to have the claims which had been probated against the estate paid. In September, 1918, after the death of the widow, the administrators filed a petition in the probate court, asking for a sale of all the land of the estate for the payment of the debts which had been probated against the same. Certain heirs of Turner resisted the petition, setting up the statute of limitations and laches. The probate court rendered judgment, denying the petition of the administrators, and on appeal to the circuit court the cause was tried anew, and that court entered a judgment directing that the lands be sold for the purpose of paying the debts probated against the estate and for paying costs of administration, from which judgment is this appeal. The only question for our determination is whether or not the appellees were barred, either by limitations or laches, from having the land described in their petition sold for the payments of the debts of the estate. In Mays v. Rogers, 37 Ark. 159, we said: "And as payment of claims can be enforced only as directed by the statute, and after the court has found, upon a settlement of the administrator, that there is money in his hands for the payment of them, and has ordered their payment in full, or pro rata, as it shall suffice, The administration is still pending. While a pro rata allowance is a judgment, within the meaning of section 5073, Kirby's Digest, requiring that an action on all judgments and decrees shall be commenced within 10 years after the cause of action shall accrue and not thereafter, yet under the above decision this statute does not operate to bar such a judgment while the estate is in course of administration and before an order of payment is made. Brown v. Hanauer, 48 Ark. 227–282, 3 S. W. 27. In Mays v. Rogers, supra, we also said: "The heirs should not be forever deterred from making improvements on the property, or pre The it may be sold for the debts of the estate. See, also, Stewart v. Smiley, 46 Ark. 373; Graves v. Pinchback, Adm'r, etc., et al., 47 Ark. 470, 1 S. W. 682. [3] So the next question is: Were the administrators of the estate of T. P. Turner, or the creditors, barred by laches? The homestead provisions of our Constitution suspend the right of creditors to subject lands constituting the homestead to the payment of their debts until the homestead right of the widow and minor children have ceased. Abramson v. Rogers, 97 Ark. 189, 133 S. W. 836. It appears that the widow of Turner occupied the lands constituting the homestead until her death in July, 1918, and that the proceedings to subject these lands were begun the following September. Whether or not the administrators and creditors have waited an unreasonable time must depend upon the circumstances. It is manifest from the undisputed facts of this record that the 60 acres not constituting a part of the homestead were of little, if any, value considered separate and apart from the homestead and dower tract, and it is equally clear that the sale of the reversion in the homestead and dower tracts would not have yielded sufficient proceeds to pay the debts, and, so far as results are concerned, would have been a fruitless proceeding. As was said in Killough v. Hinton, 54 Ark. 65, 14 S. W. 1092, 26 Am. | enforce their payment would defeat the lien St. Rep. 19: "To have sold them before her death would have been a sacrifice of the interests alike of the creditors and heirs." In Roth v. Holland, 56 Ark. 633, 20 S. W. 521, 35 Am. St. Rep. 126, we held that a delay "for more than 7 years is not reasonable, and therefore defeats the right of a creditor, or an administrator in his behalf, unless there is something to excuse the delay." The delay of more than 20 years after claims were probated and allowed against the estate before the proceedings were commenced to of creditors on the ground of laches or unreasonable delay, "unless there be something to excuse the delay." Brogan v. Brogan, 63 Ark. 405, 39 S. W. 58, 58 Am. St. Rep. 124. [4] But here the fact that the only asset of the estate in the hands of the administrator for the payment of debts was a piece of land valueless if sold separate and apart from the homestead and dower tracts, and that these were occupied by the widow and could not be sold until within 3 months before these proceedings were begun, constitutes a sufficient excuse for the delay of appellees. Affirmed. (216 S.W.) STATE V. CRAYNE. (No. 20951.) Christian name in full is unknown to said prosecuting attorney, late of the county' afore (Supreme Court of Missouri, Division No. 2. said, on the 28th day of March, 1917, at the Dec. 23, 1918.) 1. GAMING 90(2)-INFORMATION MUST DESCRIBE DEVICE. | Information, charging that defendant "set up a gambling table or gambling device, commonly called a poker table, adapted, devised, and designed for the purpose of playing a certain game of chance, commonly called poker," etc., was insufficient to charge a crime under Rev. St. 1909, § 4750; it being essential where device is not of the kind named in statutes to describe it, so as to bring it within class of named devices. 2. CRIMINAL LAW 1134(3) INFORMATION BEING INSUFFICIENT, OTHER POINTS WILL NOT BE PASSED UPON. Since there is no sufficient information, assignment of error concerning sufficiency of evidence and admissibility of certain evidence will not be discussed, since discussion of points other than sufficiency of information would rise to no higher standard than mere dictum. county of Jackson, state of Missouri, unlawfully and feloniously set up a gambling table or gambling device, commonly called a poker, purpose of playing a certain game of chance table, adapted, devised, and designed for the commonly called poker, for money and did then and there unlawfully and feloniously entice, induce, and permit divers persons whose names to said prosecuting attorney aforesaid are unknown, to play and bet at and upon said table and gambling device, against the peace and dignity of the state." [1] The sufficiency of the above information is challenged by appellant on the ground that it does not contain averments sufficient to charge a crime under the gambling device statute, viz. section 4750, R. S. 1909. The learned Attorney General in his brief confesses error in the above regard. Upon an inspection of the information we find that the above assignment of error is well taken. The reasons therefor having been so recent Appeal from Criminal Court, Jackson ly and fully stated in the cases of State v. County; Ralph S. Latshaw, Judge. Jesse Crayne was convicted of setting up and operating a gambling device, and he appeals. Reversed and remanded. Wade, 267 Mo. 249, 183 S. W. 598, and State v. Morris, 272 Mo. 522, 199 S. W. 144, further treatment of the subject is now deemed unnecessary. For the reasons stated in the Wade and Morris Cases, supra, we hold that George A. Neal and Clinton A. Welsh, both the information is fatally defective, and that of Kansas City, for appellant. Frank W. McAllister, Atty. Gen., and George V. Berry, Sp. Asst. Atty. Gen., for the State. WILLIAMS, J. Upon a trial in the criminal court in Jackson county, defendant was convicted of setting up and operating a gambling device, commonly called a poker table, and his punishment was assessed at 2 years' imprisonment. Defendant has duly appealed. The amended information upon which trial was had was (formal parts omitted) as follows: "In the Criminal Court of Jackson County, Mo., at Kansas City, Mo., April Term, A. D. 1917. "Now comes Hunt C. Moore prosecuting attorney for the state of Missouri, in and for the body of the county of Jackson, and upon his oath informs the court that Jesse Crayne, whose the judgment below cannot stand. [2] Appellant makes further assignment of error concerning the sufficiency of the evidence to support the verdict, and the admissibility of certain evidence. Since there is no sufficient information in the case, it becomes at once apparent that we are left without a proper standard to measure the sufficiency of the evidence, or to pass upon the relevancy of admitted testimony. Neither can we foreknow the contents of a new information, if the prosecuting officer should find it advisable to proceed further in the case. That being true, any discussion of the other points raised would necthetical, case, and would rise to no higher essarily be based upon a supposed, or hypostandard than mere dictum. For that reason we decline further discussion of the case. The judgment is reversed, and the cause is remanded. All concur. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (279 Mo. 569) STATE V. CANTRELL. (No. 21383.) (Supreme Court of Missouri, Division No. 2.. Oct. 31, 1919.) CRIMINAL LAW 1088 (20)-DISMISSAL OF APPEAL FOR FAILURE TO FURNISH COMPLETE TRANSCRIPT. Where the indictment in a murder case has been lost, on appeal it is defendant's duty to perfect his appeal during the 12 months provided by Rev. St. 1909, § 5313, by supplying such lost indictment, and if he fails to do so, the appeal will be dismissed because of the appellant's failure to furnish a complete transcript of the records, as required by section 5309. Neither "a full transcript of the record in the case," nor the "judgment and sentence," as the statute requires (section 5309, supra), was included among the documents so caused to be filed. This status inured till after the expiration of the 12 months period limited by section 5313, supra, upon which, and on the 14th day of April, 1919, the Attorney General filed his said motion to dismiss the appeal. Pending this motion, and evidently being spurred to some action thereby, defendant suggested diminution of the record, and prayed for our order in certiorari to the circuit court of Wright county to send up a true, complete, and correct copy of the record in this cause. This writ issued, and in return thereto the clerk of the Wright coun Appeal from Circuit Court, Wright County Circuit court certified and sent up to us ty; C. H. Skinker, Judge. Robert Cantrell was convicted of murder in the second degree, and he appeals. Appeal dismissed. George C. Murrell, of Hartville, and L. O. Nieder, of Willow Springs, for appellant. The Attorney General and Henry B. Hunt, Asst. Atty. Gen., for the State. FARIS, J. Defendant, convicted in the circuit court of Wright county of murder in the second degree, for that, as it was alleged, he had shot and killed one Samuel McAllister, has after the usual motions appealed. The state by the Attorney General, prosecuting in this behalf its pleas, has filed its motion to dismiss this appeal. The circumstances of the homicide of which defendant was convicted are therefore not material to the question confronting us, which is: Should this appeal be dismissed for the failure of the defendant to perfect it within 12 months after it was granted? Section 5313, R. S. 1909. In full the section of the statute relied on by the state reads thus: "If any person taking. an appeal to the Supreme Court, on a conviction for a felony, other than those wherein the defendant shall have been sentenced to suffer death, shall fail to perfect the appeal within twelve months from the time the appeal is granted, the Attorney General may file his motion before the Supreme Court asking that the appeal may be dismissed, whereupon the court shall make an order that the appeal be dismissed, unless the defendant shall show to the satisfaction of the court good cause for not perfecting his appeal." The Attorney General, invoking the application of the statute supra, moves the dismissal of defendant's appeal upon the facts below: The appeal was granted on the 4th day of April, 1918. On the 22d day of March, 1919, defendant caused to be filed in this court (sections 5308, 5309, R. S. 1909; State v. Pieski, 248 Mo. 715, 154 S. W. 747) a certified copy of the bill of exceptions. the entire record proper in. this case, save and except the "original files" as his return shows, all of which files, including (so far as is lacking for the uses of this review) the indictment, the return says are lost and cannot be found, and therefore are not included in the record sent up to us. Other orders, not pertinent to the point before us, were made by this court, and which therefore, lest they obscure the one salient question, it is not necessary to set down here. Thus stand the record and the facts on the record before us. Upon these facts, should the motion of the state to dismiss this appeal be sustained? It is obvious, we think, that the question in the final analysis resolves itself into the query whether the duty incumbent upon defendant of perfecting his appeal in 12 months (section 5313, supra), and of causing a full transcript of the record to be filed here within that time, carries with it the further duty of supplying lost documents which are vital to an appeal. We have reached the conclusion that it does include such a duty, in a criminal case, in the light of the provisions of sections 5309 and 5313, supra. Pieski, supra. There is no doubt any longer State v. existing as to the inherent power of the circuit court to permit the supplying of a lost indictment, which, as we have seen, is the only pertinent document missing in the instant case. Nor is there any doubt that the circuit court which tries a case subsequently appealed has ample power to supply lost papers in the case after the appeal is taken, and while the appeal is pending here, and to such end and extent at least retains jurisdiction in the case. So much being settled law, it is clear that there rests upon some one the duty of supplying this lost indictment, in order that appellate review may be had. Ought this duty to be saddled upon the state, which prevailed below, or upon the defendant, who seeks to nullify the judgment nisi upon the ground of alleged error occur. |