so far as it affects defendant's track. In view of the ' un reasonableness' of the present ordinance, both the streets and the tracks are unaffected thereby." So it seems that street railway companies have some rights that courts are bound to respect. Street cars do not raise all the dust that blows, as the fly on the wheel in the fable thought he did, and it is absurd to charge their proprietors with the duty of keeping it all down. Shape of Homestead. — A queer question came up in Clements vs. Crawford Co. Bank, 64 Ark. 7, namely, whether a homestead right could exist in two tracts which were not contiguous except by merely touching at a corner of each. It was decided in the affirmative. They touched, and as they were all the land the claimant owned, that was enough, just as the slightest unlawful touching is sufficient to consti tute an assault. Hut one cannot gerrymander a homestead. The court said : — "A homestead cannot be laid off in an arbitrary, capricious and unreasonable shape, where it is prac tical to do otherwise. Sparks vs. Day, 61 Ark. 570. In Jeffrey vs. McGouch, 88 Ala. 651, Judge Somerville humorously says: ' A homestead, if we could suppose such a case, fenced in the shape of an ani mal, a bird, a flower garden, or other fantastic shape, would not cease to be exempt from execution on this account, provided it be of lawful area and value, and the entire tract owned was in this particular form. Although it is manifest that a selection in these quaint forms, made from a large tract of land, would be unreasonable and capricious and not allowable.'"
Out of Tune. — We find a pleasant touch of Chief Justice Bleckley's humor, in Peavy vs. Georgia K. & B. Co. 81 Ga. 485, The action was by a pas senger against a railroad company for the shooting of him by a conductor. The passenger, "with sev
eral drinks in his bosom and a pistol in his posses sion," became profane and obscene, and when the conductor tried to expel him, he drew his pistol. The conductor retired and borrowed a gun from a sheriff, providentially on board with a prisoner, and then returned and backed the plaintiff off the train. Once on mother earth, the plaintiff hurled a filthy in sult at the conductor, and he fired, hitting the plain tiff three times, and the plaintiff fired, but in Spanish fashion, not hitting his target at all. The plaintiff (of course) got two verdicts, one of 81500 and the other of $2200, but they were both set aside by the trial judge, and the last action of this sort was affirmed, the chief observing: " The plaintiff spoiled the instrument, and then sued the manager because the performer did not make good music. It was the plaintiff's fault that the conductor was out of tune," etc. The case is cited in a dissenting opinion in St. Louis &c, Ry. Co. vs. Jones, 64 Ark. 613: 39 L. R. A. 784, where it is held that a railway com pany is liable for any great excess of force used by a conductor in an encounter with a passenger. This was when the conductor interfered to protect a girl of seventeen from a drummer who was endeavoring to " mash " her, and mashed the masher.
That a person's looks may be testified to is im plied in Merriman's Appeal, 108 Mich. 461, where it was held that evidence that one charged with hav ing unduly influenced a testator " always looked rather shy, and generally confused, as though he wanted to do something he was ashamed of," was properly excluded because it was not offered in re spect to any particular occasion when the person's appearance was a part of the res gesta. And in Cleveland &c. Ry. Co. vs. Gray, 148 Ind. 278, it is said that one may testify that another appeared to be sad or sick." Grant all this, looking frightened is a very different matter.
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