« ForrigeFortsett »
had no application, and it was not a proper with "intentional,” yet there can be no doubt guide for the jury. It was held that the in- that the destruction must be designedly done struction was too broad and indefinite in say, with the purpose of suppressing evidence. ing that “everything may be presumed against Taking into consideration all the facts and cirthe destroyer of the will,” as it should have cumstances relative to the burning of the been limited to intendment and presumption books by Peterson, including the opportunity as to the terms of the will, if given at all. The afforded for the examination of them for days instruction given in the case at bar was to the after the decease of his employer, and that effect that if the plaintiff destroyed the books there was not, probably, a very diligent search of account of the deceased, or any of them, a by him of all the books of account, as one was presumption arose that, bad the truth appeared found with but little effort, and a calendar by said books, it would have been against his was left hanging on the wall containing some interest. This excludes wholly the circum- statements against his interest, his apparent stances surrounding the destruction of the candor and promptness in acknowledging the books, and the explanation of the plaintiff
. It burning of the books, and the explanation that also assumes that the books of account con- he gave that it was done at the direction of his tained charges against the plaintiff. It is to employer, and his evidently regarding his unthe destruction of "evidence” relevant to the usual act as nothing exiraordinary, do not case, or where it was the duty of the plaintiff fully convey the belief that the destruction of to preserve the evidence, that the rule applies. the books by him was designedly done for the Lawson, Presumptive Ev. p. 140, rule 24. It purpose of suppressing evidence against him. does not appear that the books destroyed were Certainly, the presumption resulting from the relevant or material to tbe case, or that their destruction of the books was not an absolute contents would have disclosed charges against or conclusive one, and the instruction was 100 or settlements with the plaintiff, Peterson. sweeping in its terms, as it neither by qualify. Another book found disclosed payments made ing words limited the presumption to intention to the plaintiff, but this does not warrant an or design, nor to the fact that the jury shonld absolute or controling inference that the first find tnat the books contained evidence burned books contained like charges, or any against him. Although entitled to an instruccharges against Peterson. Drosten v. Mueller, tion upon this point, it was not the duty of the 103 Mo. 624, 633. But the destruction of the court to give a proper instruction, unless rebooks must be a wilful act, as the presumption quested in positive terms. If an instruction is is that evidence "wilfully” suppressed would requested, and cannot properly be given withbe adverse if produced. 1 Rice, Ev. S 37, out modification, the judge may, for that reasubd. c.
While the word "wilful” might, in son, refuse to give it, because to entitle it to common parlance, be held to be synonymous' be given it must be wholly correct in point of
who would not be mulct to make proof to the con- The principle was applied in a case where it had trary. Tedder v. Stiles, 16 Ga. 2.
been the duty of a person to keep strict account of The important question then is the amount. In the workings of a mine extending under another's Lord Melville's Trial, 29 How. St. Tr. 1194, 1195, Sir land; failing to do so he was deemed to be chargeaSamuel Romilly said in his argument: "My lords, ble with the full amount taken out unless he could in civil cases a party who destroys evidence of a prove it was not taken out during the time which transaction is always charged to the full extent the account was directed to embrace. Dean v. that it was possible that that transaction could have Thwaite, 21 Beav. 621. gone." (He based his remarks upon the preceding The rule then may be stated to be that if you esgreat cases of White v. Lady Lincoln, and Duke tablish the fact of spoliation against the defendNewcastle v. Kinderley, 8 Ves. Jr. 363.)
ant, and he will not show the sum spoliated, the A still stronger case than the celebrated Armory court will presume it to be the sum alleged by the v. Delamirie is Mortimer v. Cradock, 7 Jur. 45, 12 plaintiff, the same being in harmony with the other L. J. C. P. N. S. 166, in wbich a necklace contain- facts in the case. Lancaster v. Atkinson, 2 Russ. ing fifty-six diamonds was lost and soon thereafter Ch. 60. found in the possession of the defendant, a jeweler, When the destruction is freed from the inferbut only thirty-one of the diamonds were seen. ence of a fraudulent design, then the presumption Upon defendant's failure to establish satisfactorily is not of maximum damages but of a minimum how he came in possession of those he bad, and amount. failure to deny that he ever bad the whole number It being proved by servants that a certain num. (the whole having been dishonestly taken by some ber of full bottles of liquor were delivered to the person), the jury were instructed to presume that defendant, the jury were directed to presume that the defendant had the whole number and to find they were filled with the cheapest liquor in whicbthe damages accordingly, which they did--£500. the plaintiff dealt, viz., porter, and they awarded
The maxim that everything will be presumed damages upon that scale accordingly. Clunnes v.. against the destroyer "has often been a most effect. Pezzy, 1 Campb. 8. ive instrument in the hands of justice to punish Following this case, where a bank note (a loan of wrongdoers."
currency) was asked and given, and no proof made Where, however, goods are taken from a store the of the denomination of the note, the jury were presumption does not arise that goods have been instructed to presume it to be one pound sterling taken of the bigbest value of the best grade and the lowest in circulation. Lawton v. Sweeney, largest quantity within the store; but only of the 8 Jur. 964. precise thing shown to have been taken. Harris v. The fabrication of evidence, as well by interlineRosenberg, 43 Conn. 227.
ations as by intermingling, gives rise to a preIf one in the possession of property prevents the sumption in odium spoliatoris, and will be the subowner from sbowing its quality he may be charged ject of a subsequent note.
R. S. for the best quality of such article. Bailey v. Shaw, 24 N. H, 297, 55 Am. Dec. 241; Clark v. Miller, 4 Wend. 628. 34 L, R. A.
law. Mere nondirection, partial or total, is reasonably be considered to be such. The pot ground for a new trial, unless specific in- most liberal rule was adopted by the supreme structions, good in point of law, and appro court of Vermont in Gleason v. Kinney, 65 Vt. priate to the evidence, are requested and 560, where the diary of a decedent for a cerrefused. 2 Thomp. Trials, SS 2321, 2349. tain year was held rightly admissible in evi.
The trial court refused to admit in evidence dence against an administrator. But the entry a certain calendar found in the place of busi- was in the form of an original entry of a charge ness of Strom, upon which was written ip in a book account, rather than a memorandum Strom's bandwriting certain statements. It from which such charge could be formulated. was marked for identification, and upon the There were regular books of account kept in. refusal of the court to receive it as evidence that case, but the entry was found under the the counsel for defendant below offered to proper dates in a diary. The court said: prove by it that in the handwriting of Strom, When the transaction requires and furnishes the deceased, across the date of January 30, only a memorandum, its entry on a daybook, 1892, appeared the words, "Severin paid for a journal, or ledger, intermingled with proper month," and across the 31st day of December, accounts, does not render it any more admis1892, also in the handwriting of the decedent, sible in evidence. But when it is of such a appeared the words, "Severin Peterson paid to nature that it is the proper subject of a charge this day in full.” This calendar was found upon book, and the party enters it as such a hanging on the wall, and one account book charge, although on a book other than his reg. was found under a barrel by a son of decedent, ular books of account, such entry is an origin a room wbere the safe was kept. The wit- inal entry in book account. Nor is its cbarness was not produced, nor his deposition acter changed by his failure to transfer it upon taken, as he was in Sweden; but the fact of bis regular books of account.” It was also rethe discovery of these papers and books was marked that the nature of the transaction and shown by the affidavit of the executor, which entry marks the determinative characteristic was admitted in evidence in order to prevent between a charge in book account and memoa continuance. This affidavit states that other randum, and that this is the doctrine in all memoranda in Strom's handwriting appeared the cases in Vermont. There is a marked difupon the calendar, but no reference is made to ference between the charges made in that case such matters other than the two entries men on the diary of the decedent and upon the tioned in the offer of counsel when the calen- calendar in the case at bar. There the entry dar was
ought to be introduced. Nowhere was in each instance, “Liberty T. Kinney, Dr. in the record is it disclosed what these other To paid
for you," while on the calenentries were, and the contents of the calendar dar offered in this case the entry was, "Severin are not before us in any form, except as to paid for a month," and, “Severin Peterson them. It is asserted that it was shown that it paid to this day in full.” These entries do not was the custom of the decedent to make memo- disclose the amount paid in either case, and randa upon the calendars, but this is not borne the memorandum on the calendar, although a out by the testimony. The calendar was not proper subject for book charge, was not entered a book of original entry, peither does it appear as such charge.”—an omission that appears to have been kept in the usual course of busi. to be studied. But this Vermont case does not ness of the decedent. It cannot be said that it appear to be in barmony with other cases in was one of the books of account of the de- that state, or with cases elsewhere. Said the ceased. The statute applicable to such evi. court in Barber v. Bennett, 58 Vt. 476, 483, 56 dence, among other things, provides that a Am. Rep. 565. "But it has generally been party shall pot testify where the adverse party held that to lay the foundation for the admisis an executor or administrator, with certain sion of that kind of evidence, it must be shown exceptions, one of which is as follows: "Sixth. that the entries [of a deceased person] were If the claim or defense is founded on a book made in the usual course of business of the account, a party may testify that the book is party making them, and at or about the time of his account book, that it is a book of originalibe transaction to which they refer. This qualientries, that the entries were made by himself, fied right to use such evidence in favor of the a person since deceased; or a disinterested per- party making the entries is in contravention of son nonresident of the county; whereupon the one of the primary rules of evidence, which book shall be competent evidence; and such forbids the manufacture of evidence by a party book may be admitted in evidence in any case, in his own favor.” The rule announced in without regard to the parties, upon like proof Welsh v. Barrett, 15 Mass. 380, is commended, by any competent witness." Rev. Stat. $ 2590. and that is tbat, 'what a man has actually done Unfettered by statutory provisions, the Ameri. and committed to writing, when under obligacan cases, taken together, are to the effect that tion to do the act, it being in the course of the entries made in the regular and usual course business be bas undertaken, and he being dead, of business are admissible in evidence after the there seems to be no danger in submitting to death of the person who made them, on proof the consideration of the jury.” The Vermont of his handwriting; and during his life, if au court would not apply the rule in the case last thenticated by himself. Other private entries cited from that state, as the memoranda were may be used to refresh the memory, but are made by the decedent, in his lifetime, upon not admissible in evidence. Notes to Price v. loose pieces of paper; and said further: "A Earl Torrington, 1 Salk. 285; Doe. Patteshall, memorandum is defined to be a note to help v. Turford, 3 Barn. & Ad. 890; 1 Smith, Lead. the memory; and this paper, considered in conCas. 581. The statute does not seem to change nection with the circumstances under which it this rule, and it is necessary to show that the was found, partakes of that character. It cerbook offered is an account book, or wbat may lainly was not an account so kept and proved as to be admissible as evidence. It has been the books of a tradesman and a banker, if uniformly held in this state that memoranda within the statutory conditions, as the purpose are not independent evidence in chief, even of the law is to secure authenticity and crediduring tbe lifetime of the party making them."|bility in respect to the evidence, rather than to In the case of Callaway v. McMillian, 11 Heisk. prescribe forms. Woolsey v. Bohn, 41 Minn. 557, the evidence consisted of entries in a 238. There are respectable courts that hold memorandum book carried by decedent in his that a debtor's books of account are pot evi. lifetime, which was found by his executors dence to prove payments by him to his credafter his death, and the entries therein were itors (Hess's Appeal, 112 Pa. 168), yet the liberal proved to be in the testator's handwriting, and tendency of modern decisions is in the other it was also proved by the executors that they direction. These payments, however, ought bad no other means of proving these items to be charged on something that might be conThey were clearly stated in amounts and dates, sidered a book of account kept in the usual but were rejected by the court, which held course of business. The proof lacks this cruthat the entries were not admissible either un-cial test in regard to the calendars, and the der the statute or the general common-law calendars were pot admissible as primary principle, as the book was not a book of ac evidence. They are under the ban as seccount, por were the entries made in the usual ondary evidence, as there is nothing to show course of business or professional employment, that the entries were ever made in the books but the book was but a mere private memoran- of account, or that it is impossible for the dum, and upon no principle admissible. So it executor to show tbat fact. Even if the was beld in the case of Robinson v. Hoyt, 39 destruction of the books by Peterson preMich. 405, that where payments alleged to have vented the executor from giving secondary been made by a deceased mortgage debtor were evidence of their contents, and although denied by the creditor, they were not suffi- sligbt evidence, under such circumstances, ciently proved by entries in the handwriting may be admitted, and will be deemed satisof the debtor in an unusual place in bis day- factory, there is nothing to show that any book, from which the immediately preceding entry on the calendar was ever the subject leaves bad been torn, wbile the regular entries j at any time of book account. Because the were followed by a number of blank pages. entries were not in definite form to constitute The following cases tend to support these a charge as to the amounts paid, and were not views: Vina v. Gilman, 21 W. Va. 309, 45 shown to have been kept in the usual course of Am. Rep. 562; Peck v. Valentine, 94 N. Y. 569; business or to have been transferred to books New York v. Second Ave. R. Co. 102 N. Y. 581; of account, the calendar was properly rejected Bates v. Preble, 151 U. S. 149, 157, 38 L. ed. by the trial court. 106, 110; Anchor Mill. Co. v. Walsh, 108 Mo. This cause was twice tried, the second trial 277: Robinson v. Smith, 111 Mo. 205; Buckley resulting in a much larger verdict for the V. Buckley, 12 Nev. 423, 442; Libby v. Brown, plaintiff than was first awarded to him. 78 Me. 492: McDonald v. Carnes, 90 Ala. 147; W bile there is undoubtedly a sufficient reason Doolittle v. Stone, 136 N. Y. 613: Abel v. Fitch, for instituting the proceedings in error, and our 20 Conn. 96; Bridgewater v. Roxbury, 54 Conn. impressions are that, were we to decide the 217; Beak v. House, 141 III. 290. In one state, cause in the first instance, we might bave at least, such memoranda of a decedent as dis reached a different result than that arrived at closed by these calendars offered in evidence by the jury and the trial court, yet, upon the at the trial below are by statute made compe- whole, we cannot say that there was not suffi. tent evidence. Craft's Appeal, 42 Conn. 153. cient evidence to sustain the judgment. The But we have no such statute, and the rule claim was a stale one, and the plaintiff below ought not to be relaxed without it, even under stated that the deceased owed bim nothing. the circumstances disclosed in tbis case. He did not deny this, although he was a compe
Another objection to the entries on this tent witness to make the denial or explain his calendar is that they were not shown to be con- admission; yet there is sufficient evidence to tipuous, as the entries must be in a book used sustain the judgment. The law was fairly continuously for the purpose (1 Whart. Ev. presented to the jury with one exception, – $ 683, citing Kibbe v. Bancroft, 77 III. 18); for, the matter of the destruction of the books, although the affidavit admitted as evidence and a proper instruction was not requested states that there were other entries besides the upon this point. T'he services rendered were two relevant to the case, the offer does not of the most medial character, and were pershow this fact, and we have no means of de- formed at unusual bours, and the circumtermining what those entries were, as there is stances of the case lead us to believe that no proof of the nature and character of the Peterson was relying largely upon the bounty other entries on the calendar, whether of daily of his employer, and expected provision to be entry or of less frequent periods. While our made for bim in the will. It seems as if much statute ought to be liberally construed, and difficulty could have been avoided in the case, the liberal rule followed uoder the common and the truth clearly ascertained, either by law, to admit a memorial of business transac- probing the conscience of the plaintiff below tions which cannot ordinarily be carried in the by interrogatories as to the original contract mind, yet, recognizing the wide application and as to payments, by permitting him to given to books of account under statutes akin testify to the facts in court, or by calling bim io ours, it will not do to admit matters that as a witness. The executor cannot be deprived have not been the subject of book accounts. of bis rigbt to compel the adverse party to nor registered in usual, regular, and ord testify as be might any other witness under nary course of business. The account books our Code provisions. What is intended for of the illiterate ought to be as admissible as the protection of the estate in guarding it
against fraudulent claims or unfounded causes | statutory provisions identical with ours, inof action should not be permitted to operate as cluding the provision that an adverse party a source of injury, and many times the interests may be compelled to testify the same as any of an estate may urgently require that an ex- other witness. Wyo. Rev. Stat. $ 259.. While ecutor or an administrator should waive what counsel are not compelled to resort to such belongs to bim as a privilege, and call the means in a case like the one under consideraopposite party as a witness. The facts upon tion, such a course would be highly comwhich he founds his defense, or upon which he merdable, and would tend to dissipate the bases his claim, may be locked in the breast of doubts and difficulties that render ihe case the adverse party, and without bis testimony a obscure. We do not intend these remarks as a failure of justice may ensue. The legislature censure or rebuke to the eminent counsel who could not have designed to place the estates of participated in the trial of this cause, but they deceased persons at such disadvantage by de. may serve to hereafter secure the elicitation of priving them of evidence within reach neces- truth in a parallel case,-the great object in sary to their protection against imposition and view in the administration of justice. fraud. The adverse and surviving party, when The judgment of the District Court for Laracompelled to testify by the executor or admin. mie County is affirmed. istrator, cannot reasonably complain; for, though a party, he can then be examined fully Mr. Justice Potter having been of counsel in his own behalf on the subject of his examina- in the trial court, Hon. J. H. Hayford, tion in chief. Niccolls v. Esterly, 16 Kan, 32: judge of the district court of the second judi. Whart. Ev. $ 475a.” Roberts v. Briscoe, 44 cial district, sat in his stead. Conaway, J., Obio St. 596, 602. These extracts are from and Hayford, Special Judge, concur. the opinion of the supreme court of Ohio under
PENNSYLVANIA SUPREME COURT.
Annie C. PETERSON, by Next Friend, was refused, and judgment entered on the
verdict. We now have this appeal by defendATLANTIC CITY RAILROAD COM- ant, assigning for error the action of the court PANY, Appt.
below in proceeding with the trial in absence
of its counsel. Rule 41 of the supreme court (177 Pa. 335.)
is as follows: “That the hour list be suspended
in the eastern district during the period asA judgment in a trial court against a party signed to the argument of cases from the
whose counsel is, to the knowledge of the court, county of Philadelphia. The argument of at the time present in the supreme court in obe- each cause shall be limited to one hour, unless dience to its rule will not be permitted by the the chief justice, upon an examination of the latter court to stand.
paper books, shall consider more time to be (October 5, 1896.)
necessary. Sixty causes shall be assigned to
each week, and a list thereof shall be made up A the
the Court of Common Pleas, No. 1, for Saturday preceding. Said causes shall be set Philadelphia County in favor of plaintiff in down in the order of their term and number, an action brought to recover damages for per- and shall be numbered on said list consecusonal injuries alleged to have been caused by tively. The first twelve cases on said weekly defendant's negligence. Reversed.
list shall be assigned for argument on Monday, The facts are stated in the opinion.
and for each succeeding day of the week, exMr. Gavin W. Hart for appellant. cept Saturday, the first twelve cases theretofore Mr. D. B. Meany for appellee.
undisposed of on said list shall be assigned for
argument. No cause on said list shalĩ be conDean, J., delivered the opinion of the tinued when reached, except for a sufficient court:
Engagements of counsel in the lower This action was for damages for personal courts will noi be recognized as a reason for injuries from negligence of defendant. It was the continuance or postponement of a cause, tried in the court below on January 25, 1895, except when they are actually engaged in a in the absence of defendant's counsel, and a trial which bas been commenced in a previous verdict for $6,000 given for plaintiff. The week and is unfinished.” absence of counsel, Gavin W. Hart, Esq., was As by the Constitution the jurisdiction of the owing to his presence in this court at the supreme court extends over the state, it must, argument of a cause in which he was of as an inherent judicial power, necessary to the counsel for appellee (Sheehan v. Railroad, on exercise of its jurisdiction, have authority to supreme court calendar for same week, and for make rules which, in its opinion, will enable argument same day). The court below was it to dispose of the business which comes bemoved for a new trial on this ground, which | fore it from every court in the state. Whether its rules, intended to speed hearings, are the dar, and continue about one half of the cases very best to accomplish the purpose, or for a year; and, if such a course were allowed, whether they in any particular instance operate it would not be three years until the Philadelhardly, are proper subjects of discussion in pbia list would be encumbered with cases wbich determining whether they shall be abrogated would not be reached for several years. This or amended; but when adopted such discussion would be a denial of justice. In adopting is out of place in determining whether they and enforcing this rule, we appreciate the dif. should be recognized by the lower courts. If ficulties of the common pleas in disposing the supreme court have authority to adopt promptly of all the cases on their calendars in rules which, in its judgment, are necessary for the order in which they are called. while this the prompt transaction of the public business court is engaged on the list of appeals for we think no lawyer will doubt its power to en: Philadelphia. But their cases are more comforce them; and this without regard to a differ. pletely in their control than ours. The coun. ence of opioion as to their equitable operation. sel and parties concerned, in most instances, all Clearly, then, it is the duty of the lower courts reside in the city. During our session they to have regard to them, not because they, have twenty weeks for Pbiladelphia, wbile we in all cases, are the best, but because, being have but seven. Under such circumstances, in the judgment of the supreme court the not without inconvenience, we admit, but withbest, it has adopted them. They then, neces-out seriously delaying suitors, such order sarily, become a rule of action for the lower could be made by ihe lower courts as would courts, in so far as their business is affected by guard against an adverse judgment to a client them, because they are the law. The common while his counsel was attending to his profespleas courts have power to adopt rules which sional duty in this court. But, however ibis shall facilitate the transaction of their business. may be, the inconvenience to suitors in a few We have always rigorously sustained this cases ought not to be permitted to work the power, unless in (rare cases, where the rules eventual vexatious delay and gross injustice were in violation of law. We cannot, how which otherwise would be suffered by all the ever, sustain a rule or an order, even though parties to all the appeals from final judgments made with a view to compel prompt trial of in all the courts of the city. In view, then, an issue in the common pleas, if the effect of these facts, and the further fact that neiof such rule is to deny other litigants their ther the learned judge of the court below nor right to a bearing in an appellate court. In we can add anything to the fifty-two weeks of that case it is a manifest violation of law, the year, wbat is bis plain duty? As we see and our judgment is final on that question. it, it is, not only in letter, but in spirit, to recBesides, not only should we bave the aid of the ognize this rule, and to so arrange the trial list court below in ihe enforcement of rule 41, be of causes before him that counsel, by obeying cause it is a lawful exercise of the power of it, shall not put in peril the interests of their this court, but also because it is a reasonable clients. We think it not improbable, when the exercise of that power. There are in the com- learned judge remarked, “I doubt the right of monwealth fifty-four judicial districts, with the supreme court to make any such rule, and ninety-nine judges. From the final judgments I would like to test it,” he for the moment misand decrees of these courts there come before apprehended our relations to each other and to us annually, approximately 1,000 appeals, the public. Neither be nor we, as against each which ought to be heard while this court is in other, bave any rights to assert. Both of us session. After argument, many of these cases have only very plain judicial duties to perform. demand prolonged investigation and careful The public alone have rights to be insisted op, consideration. If we are to dispose of this and rights which both of us are bound to keep litigation promptly, that disposition of it can in mind. These are to bave justice adminis. only be accomplished by strict order of hearing tered without "denial or delay.” If, in work and rigorous enforcement of the order by such ing together for this object, our rules or orders rules as 41. The court sits in Philadelphia should, in rare cases, come into conflict, then five inontbs. Seven weeks of that time are set the only question is, not which shall assert aside for bearing appeals from the courts of a right, but which has the authority to finally that county; and this, in view of the whole determine what shall best promote the public calendar, is all we can afford to give, and, in interests. We feel sure a glance at the Conour judgment, all it is entitled to, exclusively, stitution, from which both of us derive whatin an equitable distribution of our time among ever judicial authority we bave, furnishes a all the litigants of the state. All the appeals complete answer. If the authority to finally assigned to the two Philadelphia' periods are selo decide is reposed in us, then we are bound to dom got through with in that time. Those not exercise it, not as asserting a right, but as perreached are heard as we can find time on weeks forming a public duiy. assigned to other counties, and, if not beard It would serve no good purpose to take up then, they go over for a year. To keep down and discuss at length the conflicting statements the number of those that go over, many of them of facts by the learned judge of the court beinvolving large sums of money, it is imperative low and the able counsel for defendant. The upon us to insist on the presence of counsel contradictions are more apparent than real, when their cases are called. The rule is not and such as usually arise where each of the for our convenience, but to promote the in- parties, under a sense of injury, strenuously in. terests of suitors. In some cases, such as ill. sists on what he conceives to be his personal pess or recent death of counsel, and like causes, rights, not regarding the situation from the the rule is relaxed, but not to suit the con standpoint of official duty; and, although we venience of counsel who have causes for trial have carefully considered the testimony, it on the common pleas calendar. That, if per- would only, perbaps, aggravate the irritation mitted, would practically break up our calen. I were we to atiempt to reconcile these conflict
NOTE.-As to the absence of counsel, caused by Junction for a default judgment, see note to Merrisickness or death, to constitute ground for an in- I man v. Walton (Cal.) 30 L. R. A. 795, 796.