sponsible for the goodness of the title beyond the covenants in his deed": Patton v. Taylor, 7 How. 159; 2 Sugden on Vendors, c. 12, sec. 2, p. 421; 2 Kent's Commentaries, 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 Devlin on Deeds, sec. 931, and cases cited. Tiedeman on Real Property, section 858, says: "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 to that right or interest, and will not be broken by the enforcement of a paramount title outstanding against the grantor at the time of the conveyance." Affirmed.

DEEDS-QUITCLAIM-WHAT INTEREST CONVEYED BY.-A quitclaim deed wests in the purchaser only what the grantor himself could claim: Allison v. Thomas, 72 Cal. 562; 1 Am. St. Rep. 89, and note. A quitclaim deed only purports to release whatever interest the grantor possesses at the time: San Francisco v. Lawton, 18 Cal. 465; 79 Am. Dec. 187, and note; Johnson v. Williams, 37 Kan. 179; 1 Am. St. Rep. 243, and note; in Bramlett v. Roberts, 68 Miss. 325. See, also, the notes to Merrill v. Hutchinson, 23 Am. St. Rep. .718, and Thorn v. Newsom, 53 Am. Rep. 749.

DEEDS-QUITCLAIM-WARRANTY.-The covenant of warranty runs with the land, and the vendee, through a sheriff's deed or a quitclaim, may recover pon the covenant: Saunders v. Flaniken, 77 Tex. 662.

HOUSTON, CENTRAL ARKANSAS, AND NORTHERN RAILWAY COMPANY V. BOLLING.

[59 ARKANSAS, 395.]

RAILROAD COMPANIES-LIABILITY TO PERSON RIDING ON HANDCAR.-A young child cannot recover from a railway company for injuries received through the negligence of the company's employees while the child was riding on a handear, if such employees had been expressly forbidden by the rules of the company and otherwise to permit persons not employees to ride on such cars, and there was no custom to permit persons to so ride, shown to have been known to, or acquiesced in by, the officers of the company.

ACTION by Falls Bolling against the Houston, Central Arkansas, and Northern Railway Company, to recover damages for personal injury. Mike O'Connor was the foreman of a section crew employed by said railway company. Among

the machinery furnished this crew to enable them to perform their work was a handcar furnished them for the express purpose of transporting the section laborers with their tools and materials to and from the several places on the line of the road within the section where needed, and for no other purpose. The rules and regulations of the company expressly forbade the section foreman or any of the section-men to allow any one to ride on the handcar except the laborers on the section. They were also forbidden to use such car except in their work, and of these rules and regulations O'Con nor had express notice. On March 29, 1892, after the sec tion crew had quit work, for the day, they used the handcar for the purpose of transporting a couple of ladies from the section-house to a place on the road where they desired to go. Falls Bolling, the plaintiff, a child about four years old, asked to be taken on the trip. Mike O'Connor was much attached to the child and asked his mother to allow him to go. Mrs. Bolling consented, and the boy was taken on the trip. The party arrived at the destination of the ladies in safety. On the return trip, however, O'Connor noticed that the boy was becoming sleepy, and moved him to a place on the car which he thought to be safe. Shortly thereafter the boy fell asleep and in some unexplainable manner got his hand caught in a cogwheel and crushed. On the trial he recovered a judgment against the company for five thousand dollars, and it appealed.

Dodge & Johnson, for the appellant.

Wells & Williamson, and Jones & McCain, for the appellee. 402 HUGHES, J. In Flower v. Pennsylvania R. R. Co., 69 Pa. St. 210, 8 Am. Rep. 251, the facts were as follows: "A train of defendant's coming into the city, the engine, tender, and one car were detached from the remainder, and run, under the charge of the fireman in the engineer's place, to a water-station belonging to the defendants. At the station the fireman asked a boy ten years old, standing there, to turn on the water; while he was climbing the tender to put in the hose, the remainder of the train came down with their ordinary force, struck the car attached to the engine, the jar threw the boy under the wheels, and he was killed." action by the parents for his death it was held that, it not being in the scope of the engineer's or fireman's employment to ask any one to come on the engine, the defendants were

In

not liable; that the boy, in climbing on the tender at the request of the fireman, did not come within the protection of the defendants, and they therefore owed no duty to him. The appeal in this case was before Justices Agnew, Sharswood and Williams. Judge Agnew delivered the opinion of the court. He said: "Whether the boy could be treated as 403 a mere trespasser is scarcely the question. His youth might possibly excuse concurrent negligence, where there is clear negligence on the part of the company. The true point of this case is that, in climbing the side of the tender or engine, at the request of the fireman, to perform the fireman's duty, the son of the plaintiffs did not come within the protection of the company. To recover, the company must have come under a duty to him, which made his protection necessary. . . . . Nor can the mere youth of the boy change the relations of the case. That might excuse him from concurring negligence, but cannot supply the place of negligence on the part of the company, or confer an authority on one who has none. It may excite our sympathy, but cannot create rights or duties which have no other foundation."

...

In Eaton v. Delaware etc. R. R. Co., 57 N. Y. 382, 15 Am. Rep. 513, it is said that railroad companies have the right to make a complete separation between their freight and passenger business. When this is done, the conductor of a freight train has such general authority only as is incidental to the business of moving freight, and no power whatever as to the transportation of passengers; and notice of this limited authority will be implied from the natural and apparent divisions of the business. "In the great transactions of commercial corporations convenience requires a subdivision of their operations among many different agents. Each of these may have a distinct employment, and become a general agent in his particular department, with no powers beyond it."

In Stone v. Hills, 45 Conn. 47, 29 Am. Rep. 635, it is said: "The rule is that for all acts done by a servant in obedience to the express orders or directions of the master, or in the execution of the master's business, within the scope of his employment, and for acts in any sense warranted by the express authority conferred upon him, considering the nature of the services required, the instructions 404 given, and the circumstances under which the act is done, the master is responsible; for acts which are not in these conditions the servant alone is responsible."

In Storey v. Ashton, L. R. 4 Q. B. 476, Cockburn, C. J. said: "We cannot adopt the view of Erskine, J., in Sleath v. Wilson, 9 Car. & P. 607, that it is because the master has intrusted the servant with the control of the horse and cart that the master is responsible. The true rule is that the master is only responsible so long as the servant can be said to be doing the act, in the doing of which he is guilty of negligence, in the course of his employment as servant. Thus, it will be seen that, in the absence of express orders to do an act, in order to render the master liable, the act must not only be one that pertains to the business, but must also be fairly within the scope of the authority conferred by the employment": Wood's Law of Master and Servant, 546. In the case at bar the section foreman was not only not authorized, expressly or by implication, to permit persons to ride on the handcar, but had been expressly forbidden by the rules of the company and otherwise to permit it, and there was no custom to permit persons to ride on the handcar shown to have been known to, or acquiesced in by, the officers of the railroad company. "In order that the corporation should be made responsible by reason of such a custom it was necessary to show that it was actually known to the officials who conducted its business, or that it was so general and of such long continuance that it must be fairly inferred that it was known and assented to by them": Powers v. Boston etc. R. R., 153 Mass. 191. Such is not shown to have been the case here. The court deems it needless to set out or discuss the instructions. The court is therefore of the opinion that there is a total failure in 405 this case of evidence to show any liability upon the part of the railroad company. Wherefore the judgment is reversed and the cause is dismissed.

WOOD, J., being disqualified, did not participate in the determination of this cause.

RAILROADS-LIABILITY TO PERSONS INJURED WHILE RIDING ON HANDCARS.-In the absence of proof that a railway company is accustomed to carry passengers upon handcars one who is injured while thus riding has no cause of action against the company, although thus invited to ride by the section foreman: Hoar v. Maine Cent. R. R. Co., 70 Me. 65; 35 Am. Rep. 299. A railroad company must exercise ordinary and reasonable care for the safety of a passenger lawfully on its handcar: International etc. Ry. Co. v. Prince, 77 Tex. 560; 19 Am. St. Rep. 795, and especially note. See, also, International etc. R. R. Co. v. Cock, 68 Tex. 713; 2 Am. St. Rep. 521.

WOOD v. WOOD.

[59 ARKANSAS, 441.]

APPELLATE PRACTICE-REVIEW OF DECREE.-A bill to review a decree of divorce, on the ground of alleged errors of law apparent on the face of the record, may be filed without first obtaining leave of court; but an erroneous order of court to strike the bill from its files should not be reversed, unless prejudicial to the appellant.

PRACTICE ON BILL OF REVIEW.-In an attack upon a decree by a bill of review for errors of law the court cannot examine the evidence to see whether the decree is based upon a correct finding of facts. In such case it is the sole duty of the court to inquire whether the record, exclusive of the evidence, contains any substantial error of law. pointed out by the bill.

MARRIAGE AND DIVORCE-DIVORCE ON AMENDED COMPLAINT REVIEW OF DECREE.-If a plaintiff in an action for divorce who has not acquired the statutory residence within the state before bringing suit acquires such residence before filing an amended complaint setting up a distinct and separate cause for divorce the amended complaint is equivalent to bringing a new action, and a decree of divorce rendered therein is regu. lar so far as the question of residence is concerned, and cannot be set aside as erroneous on a bill of review.

MARRIAGE AND DIVORCE-ALIMONY IN GROSs.-An allowance of alimony in gross by consent of the parties at the time the decree of divorce is rendered is not error.

DOWER-EFFECT OF DIVORCE. - A decree of divorce from the bonds of matrimony bars the wife's claim of dower. MARRIAGE AND DIVORCE-ALIMONY-CONCLUSIVENESS OF DECREE.-A wife who, in her action for divorce, fails to show by her complaint in what her husband's estate consists, or that it is within the jurisdiction of the court, cannot, after obtaining a decree of absolute divorce, with a large sum as alimony, have the decree vacated or amended on a bill of review, on the ground that the court failed to set apart to her one-third of her husband's estate as by statute provided.

Martin & Murphy, for the appellant.

Rose, Hemingway & Rose, and J. M. Moore, for the appellee.

444 BATTLE, J. The chancery court erred in striking from its files appellant's bill of review for the reason that it was filed without leave first had and obtained. It was brought to procure an examination and reversal of a decree made on a bill for divorce on account of alleged errors of law apparent on the face of the record. It is not necessary to obtain leave of the court before a bill of this kind can be filed: Perry v. Phelips, 17 Ves. 178; Story's Equity Pleading, secs. 404, 405; Mitford's Equity Pleading, 84. In Jacks v. Adair, 33 Ark. 173, and Webster v. Diamond, 36 Ark. 538, this court held that a bill of review founded on newly discovered evidence