such a lien can only be enforced under the general road, if it were built close to but not upon his land, statute concerning the liens of mechanies and others can not be considered for the purpose of lessening the (R. S. 1858, ch. 153, sec. 12), which applies only to damages; and an equally liberal rule in favor of the labor performed for or on account of the owner or his land-owners applies in case of a trespass by an illegal agent or assignee, or a sub-contractor. 2. Laths are taking for the same purpose. 3. The court below lumber, and are not timber within the meaning of the having improperly permitted questions to be proact of 1862. 3. In this action for a lien for work per- pounded to the jury (for special verdict) by which formed in a county to which the act of 1862 applies, they were required to state, not only the gross amount the court found that plaintiff worked for the defend- of plaintiff's damages, but the several items composant W "in sawing slabs out of logs for lath;' that a ing it, and having twice sent them out to re-consider certain'sum was due him for such work; and that their verdict in consequence of inconsistencies in the “the logs and lath upon which said labor was per- answers, and the jury having made successive materformed, were then and there the property of defend- ial changes in their assessments with no apparent reaants E.'' Held, that these findings do not show son except to make the general and special assess. plaintiff entitled to a lien upon the lath as against the ments consistent, this court holds that there was an defendants E. 4. The constitutionality of the act of abuse of the statutory right to a special verdict, and 1862, or of the provisions thereof of giving justices of reverses the judgment for a new trial on that ground. the peace jurisdiction of actions to enforce the liens Opinion by TAYLOR, J.-Blesch 1. Chicago &c. R. Co. there provided for, not here considered. Opinion by LYON, J.-Babka v. Eldred.


SUPREME COURT OF INDIANA. SPOLIATOREM.-1. In an action by D for the dissolution of a firm consisting of four members it was error

[Filed October, 1879.] to determine the rights and liabilities as between themselves of two members of the firm, growing SPECIAL AND GENERAL VERDICT INCONSISTEN out of the relations as partners in another firm, CY BETWEEN. — Suit by appellant against appellee consisting of those two only. 2. The maxim omnia

upon a promissory note. The complaint alleged that præsumunter contra spoliatorem, applied to a de

Samuel Harlow, who is a son of Garret Harlow, was fendant who, being employed upon a salary to keep

engaged in certain business and was accustomed to the books of the firm of which he was a member, kept use and sign the name of his father in contracts relathem in such a manner as to render it impossible to ting to his said business, his father agreeing that determine correctly the state of the accounts between he might so use his name and credit; that Samuel the partners. 3. It appearing, in such a case, that

borrowed of the plaintiff $ 600, to be used in his said goods sold by weight or measure were taken from the

business, and executed the joint note of himself and store to be used in said defendant's family, without ! father therefor; that the said Garret had acknowlhaving been weighed or measured, and that the ac

edged the note to have been executed with authority counts as shown by the books could therefore not be and had ratified the act of his son. This suit was to relied upon as accurate in that respect, the referee for recover a balance due upon the note. Samuel Hartrial did not err in resorting to other sources of in- low made default, and judgment was rendered against formation in order to get at the real amount and value him. Garrett answered in general denial, and on the of goods so used. 4. While it is the general rule that trial a general verdict was rendered in his favor. The one partner is not chargeable with interest on moneys jury also answered the following interrogatory as folof the firm in his hands, until a. balance has been lows: “Did the plaintiff read in evidence to the jury struck or an accounting had (Marsh v. Frasier, 37 Wis. a note purporting to be signed by Samuel Harlow and 149; Yates v. Shepardson, 30 Id. 173, yet, where one Garret Harlow, a copy of which is flled with the compartner kept the account books, and knew, or ought plaint?'' Answer: “Yes." Held, that the faets to have known, the precise amount in his hands be- stated in the complaint amounted in legal effect to an longing to the firm, and made at one time what pur- allegation that the appellee, Garret Harlow, acting hy ported to be a full statement of the business, which and through his son Samuel had executed the note in was incorrect: Held, that there was no error in

suit jointly with the said Samuel, and that the general charging him with with interest. Opinion'hy Lyon,

denial, not being sworn to, only put in issue the existJ.-Diamond v. Henderson.

ence of the note. The answer to the interrogatory CONDEMNATION OF LAND – DAMAGES-MODE OF was materially inconsistent with the general verdict. COMPUTING.–1. It is res adjudicata in this case (43

The fair implication from this answer was that the Wis. 183), that plaintiff is entitled to recover all the note set out in the complaint was in existence and damages he had sustained up to the commencement of had been produced upon the trial, and such note har. the action, from defendant's trespass in constructing,

ing been read in evidence, the appellant became entimaintaining and operating its railroad on his land in a tled to have his damages assessed upon it, and to public street (only six inches in width of the track be- judgment for the amount found to be due upon such ing upon said land), and that the fact that a part of an assessment. Reversed.-Hall v. Harlov. the road was at the same time constructed and operat- PROMISSORY NOTE - NEGLIGENCE IN SIGNING ed upon adjoining lands not owned by the plaintiff, DEFENSE AGAINST IN HANDS OF IXXOCENT HOLDcan not be considered for the purpose of lessening ER.-Suit on a promissory note. Answer of non est the damages. 2. Under the Constitution and laws of factum. The evidence was heard by a jury, and the this state where lands are legally taken for the purpose plaintiff demurred thereto, the demurrer was sus. of building and operating a railroad thereupon, the tained by the court and the jury were discharged. “just compensation" which the railroad company is The evidence for the defendant showed that defend. required to pay, includes the value of the lands ac

ant was a carpenter, whose eyesight was defective, tually taken, and the damages sustained by the owner and it was growing dusk in the evening when the by reason of the taking thereof' for such purpose; note was signed, so that he could not see well to read and the fact that the value of the owner's other lands, it; that the parties who procured the execution of the adjoining those taken, and used in connection with note told him he would have nothing to pay unless them, would be diminished by the proximity of the he made the amount out of the sale of a certain arti

cle, and that defendant relied upon this statement and signed the note without reading it. Held, that a party whose signature to a paper is obtained by fraud as to the character of the paper itself, and who is ignorant of such character, and has no intention of signing it, and who is guilty of no negligence in affixing his signature, or in not ascertaining the character of the instrument, is no more bound by it than if it were a total forgery, the signature included. 42 Ind, 227. But where the maker of a promissory note, governed by the law merchant, is induced by the fraud of the pavee to sign his name thereto, he is liable to a bona fide indorser for value if he was guilty of any negligence in failing to inform himself of the contents of the note; though he may not be liable to the original payee or his assignee who acquires the paper after the same has become due. The evidence in this case shows that the defendant was guilty of negligence in signing the note. Affirmed.- Thomas 0. Ruddell.

CRIMINAL PRACTICE CHANGE OF JUDGE.-Appellant was indicted for arson. At the September term, 1878, on account of the sickness of the presiding judge, one Porter was appointed to hold the residue of the term, and the cause was continued until the next term. At the next term, the regular judge still being ill, Mr. Porter was again appointed to hold that term of court. At that term, on proper affidavit fled, a change of judge was granted, and the case continued until the next term. At the next term of the court, the regular judge having died in the meantime, his successor, one Denbo, presided. Defendant was put upon trial, and the jury having failed to agree were discharged. Afterwards appellant moved for a change of judge upon a sufficient affidavit, but the motion was overruled on the theory that the defendant had had one change of judge on the same ground. Appellant was then tried and convicted. Held, that a defendant in a criminal prosecution is entitled to only one change of judges on account of bias or prejudice. But he is entitled to only one change on that ground, and the court has no discretion to refuse it. Judge Porter ordered that a change of judge be granted, and continued the cause, but neither appointed nor called any judge to try the case. Judge Denbo found the case upon the docket, and it became his duty to try it by virtue of his officr. The change of judge had been ordered but not perfected, and the cause comes before Judge Denbo in precisely the same manner that it would if no change had been ordered. The court erred in refusing the change applied for. Reversed.-Duggins v. State.

this volume, twenty-five pages in small type and double columns, to understand how often lawyers have advised their clients that an act was injuria, only to find after an expensive and tedious litigation that in the opinion of the court it was only damnum.

Mr. Weeks' work is written in a readable and attractive style, and will be read with interest and instruction by the profession. Its plan may be best given in his own words: “The general plan of the work is to consider the subject of damnum absque injuria as follows: It is true, as a general proposition, that a person has a right to be secure in his life, his person, his liberty, health, reputation and property, real and personal; and further that for a violation of this security, for an injury to any of these things, he or his representatives can recover some sort of damages. We shall consider in their order those cases of injury to these things where no damages can be recoveredwhere the law imputes no wrong and therefore gives no redress. The subject of injuries to real and personal property includes chapters injuries to the holders and owners of stocks and shares in incorporated companies, coming under the general head of conversion of personal property, and the subject of injuries to real property includes a chapter on injuries from mining operations and one on interference with subterranean and surface streams and percolating waters. This is followed by a consideration of subjects which it has been found convenient to consider separately viz. injuries from nonfeasapce, misfeasance, and malfeasance of public officers, the subject of injuries arising from negligence, and certain cases of misrepresentation and deceit.”




38. DOES A RETURN INDORSED on an alias execution as follows: “No property found on which to levy this writ'' release a levy on real estate made previously under the original execution, there having been no appraisement or advertisement of the land and the levy having been made two years before. A.

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Considered in its relations to the Law of Torts. By EDWARD P. WEEKS, Counselor at Law. San Francisco. Sumner, Whitney & Co., 1879.

Most law treatises are written for the purpose of showing the remedies which, under certain circumstances, the law will give for violations of conduct or breaches of legal duty. The book before us, on the contrary, treats of those injuries which are remediless, and which so far as courts are concerned are, in the language of the law, damnum absque injuria. To lawyers a work of this character must be of much value, since it is quite as important to understand the cases in which an action will not lie as to know the cases in which a suit may be entered. It is only necessary to glance at the table of cases which covers, in

39. WILL-DEVISE-CONSTRUCTION.-In Penysyl. vania, land was devised by A in this manner: "I give and devise to B and C, and to their heirs and assigns forever'' (describing the real estate), “to have and to hold the same in trust to per nit my wife to occupy and enjoy the same, and receive the rents and protits thereof so long as she may remain my widow. But should my wife marry again, her interest and claim in the said real estate shall cease and determine, and it shall remain in trust for the use of my child and grandchildren dwing their joint lives and the life of the survivor of them; and at the decease of such survivor the same shall be sold, and the proceeds of the sale divided amongst the legal representatives of my said child and grandchildren." The will was executed in 1840. The widow never married. Two grandchildren were alive at the time of the execution of the will and death of the testator-children of the testator's son, who was dead. The testator's child, a daughter, after her father's death married and had one child. No further provision was made concerning the real estate. Would the child inherit directly from the widow? By the widow not marrying, did the child and grandchildren inherit the estate discharged of the trust? Does the NOTES.

child of the daughter at its birth become a joint owner with its mother and the other grandchildren, the widow having died after it was born? If the child of the daughter has a joint interest in, and it should be the survivor of the two grandchildren and its mother, who will be the legal representatives referred to in will. A subscriber requests an answer to these queries, which appeared in our columns over a year ago but received no solution at the hands of our correspondents.


M. D. Ector, Presiding Justice of the Texas Court of Appeals, died at Tyler, on the 29th ult.-John Rodman has been appointed reporter of the Kentucky Court of Appeals, vice W.P. D.Bush.- -Two English lawyers whose names are familiar on this side of the Atlantic died last month. The first of these, Sir Anthony Cleashy was for many years a baron of the Court of Exchequer. He was born in 1805, and called to the bar in 1831. In September 1868 he ascended the bench where he remained until last year when ill health compelled him to retire. The other, Mr. Robert Alexander Fisher, judge of the Bristol Court, was born in 1817. He practised for several years as a special pleader, and was called to the bar in 1850. He practised for many years but was best known as a legal author. He edited “Grant on the Law of Bankers, and also brought out a treatise on the Stamp Act of 1870, but his chief work is the well-known "Fisher's Digest,'; which was continued annually until his death.

No. 3.

[8 Cent. L. J. 59.] 1. In those States in which the distinction between sealed and unsealed instruments is retained, a release not under seal, from a debt given upon payment of a part, will not constitute a valid defense to an action for the residue, 45 N. Y. 670. 2. The statutes of every State prescribe the modus operandi of entering satis faction. If this be complied with it will release a defendant with a sealed or unsealed receipt. 46 N. Y. 670. 3. & 4. The release of A. discharged C. & D.; Storey on Bills 269, 270, 430, 431.

H. G. PLATT, San Francisco, Cal.

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No. 55.

[7 Cent. L. J. 179.] This query published some time ago was as follows: “Can a parol contract between principal and agent, whereby the agent is to sell lands and sign principal's name as agent of principal, be enforced in equity, and can evidence of third parties who heard principal and agent separately ratify said parol contract be introduced.” Subsequently an answer appeared citing two Minnesota cases. See 7 Cent. L. J. 199. This answer may be law in Minnesota, but not in California. By our code of civil procedure, section 1973, an agreement by an agent for the sale of lands is invalid unless his authority be in writing. The law in Minnesota may be as it was in N. Y., (10 Paige 386), requiring an agent's authority to be in writing if he makes a conveyance in presenti, but not when he simply enters into an agreement to convey. This was formerly the law in California. Heinlen v. Martin, Supreme Court, California, March 28, 1879. But if, as I suspect it is, the questioner lives under a code, requiring as does the California code, every authorization to be in writing, if the act to be done must be in writing, the answer must come from the rules of equity. Judge Story, in 3 Story C. C. 181 says that the rule in equity always has been that the statute is not to be allowed as a protection to fraud, or as a means of seducing the unwary into false confidence, whereby their intentions are thwarted or their interests betrayed,” and in 1 P. Wms. 618, it is said that “in cases of fraud, equity would relieve even against the words of the statute'' In 21 Cal. 93 it is held that parol evidence will be admitted even against the words of the statute for the purpose of showing fraud. Finally in 1 Russ. & M. .33, equity compelled an agent, verbally employed to negotiate a purchase, who did purchase, but in his own name, to convey over to his employer, and that too, on the ground of agency. We therefore think that the query can be answered in the affirmative if the grantee is in such a position that the conveyance or contract will be a fraud upon him unless equity will enforce it.

San Francisco, Cal.

The annual election of officers of the St. Louis Bar Association took place on Monday night last. The of. ficers elected for the ensuing year were as follows: President, Henry Hitchcock; Vice Presidents, A. W. Slayback, G. M. Stewart, E. C. Kehr; Secretary, J. E. Withrow; Tresurer, Eugene Tittman; member of Executive Committee John W. Dryden; members of Committee on Admissions, Shepherd Barclay, Alexander Martin, H. A. Haeussler and J. D. Lawson.- -- If a large and powerful frame, a jolly countenance and a deep stentorian voice are the qualities which distinguish a truly British judge, the late Baron Pratt, says the Leisure Hour, was happy in the possession of all these endowments. He had been a good speaker at the bar in London and on the Home Circuit, with, it was said, but poor legal acquirements; but on the Bench he had the good fortune to be the junior judge in the Court of Exchequer, his seniors being Lord Chief Baron Pollock, with Barons Parke, Alderson, and Rolfe, four men of illustrious attainments, legal as well as general, whose judgments and opinions Baron Platt invariably acquisced in when present. ed to him, writing “I agree.-T. J. P." on the manuscript, often without opening it! “It would be presumptuous in me to differ from-or even to read, with a hope of understanding them—the judgments of such men,” he was once heard to remark. Baro n Platt de lighted to sit in solitary granduer at Nisi Prius, and upon the trial of prisoners; and both these duties he performed with singular ability, his good common sense and thorough knowledge of the world often making up for the want of any niceties of legal distinction, and rendering him always a great favorite with the jury. The judge, like many others down to and including those of the present time,

very severe on witnesses who would not “speak out;" they should “lose their verdict;'' he would not allow their expenses;" be would commit them,” etc. “What are you?'' roared he to a burly witness some six feet high, who spoke with a voice of a maiden of bashful fifteen. “I am a butcher, my lord,” replied the witness, in a whisper. "Then if you are a butcher, man.

thundered Platt, “óspeak like a butcher, can't you?'' Baron Platt remained junior judge of his court until his retirement in 1856.


The Central Law Journal. mer witness to be reproduced. He may have

testified, speaking in the first person, and his

testimony may be repeated as if he spoke in ST. LOUIS, NOVEMBER 14, 1879. the third person The language must be given

substantially and in all material particulars' CURRENT TOPICS.

as he used it, but not necessarily with absolute verbal identity. In the case at bar, the

testimony given by Reed appears to us to have In the case of Costigan v. Lunt, argued at been admissible, even under the strict rule the November term, 1878, of the Supreme avlopted by this court. He testified that he Judicial Court of Massachusetts, AMES, J., could give the “substance of the words used ;' who delivered the opinion of the court says: --that the words were “substantially these ;' " It is a well established rule of evidence that —and that he thought these were the exact in case of the death of a witness who testified words.' He took notes at the time, and had at a trial, it may be shown at any subsequent a right to use those notes for the purpose of trial between the same parties and upon the refreshing his memory." same issue, what his testimony was. Any competent witness who heard it may testify what the evidence was. Com. v. Richards,

In re Hall, 12 Ch. L. N. 68 decided by the 18 Pick. 434; 1 Phil. Ed. 230, 231. 1 Green Probate Court of Cook County, Illinois, on Ed. 202 ; Young v. Dearborn, 2 Fost. 372.

the 1st. inst., on the application for the disaThe purpose of such secondary tribution of the estate of the deceased it ap evidence is to .reproduce the testimony of the

peared that he and his wife had been killed deceased witness, in order that the jury may

together in the Ashtabula Bridge disaster in have it as given by him under oath, and as

1876. No evidence of survivorship was offerqualified and explained (if such were the

ed, but the question was important as, in the fact) upon cross-examination. The witness

event of his wife not having survived him, who, at the subsequent trial, undertakes to

his brothers and sisters became his heirs, give an account of the previous testimony is

while if the wife had survived, other parties not at liberty to describe it in general terms,

would be entitled to share the estate. The or to say what it was in its general effect.

court held that, in the absence of other proof, Whether it is sufficient that the

they must have died at the same moment; new witness should give only the substance of

that neither transmitted any rights to the the former testimony, instead of an exact re

other, and that the next of kin of the husband cital of its language, is a question that has

were therefore entitled. The rule of the been often discussed in the courts of this

common law where several persons perish in country. Ruck v. Rock Island, 97 U. S. 694

the same catastrophe is that no presumption We see no sufficient reason for

is to be indulged in. It will not raise a predeparting from the rule laid down by this

sumption by balancing probabilities, either court in Com. v. Richards, 18 Pick. 434, and

that there was a survivor, or who it was. In in Warren v. Nichols, 6 Met. 261, and re-affirm

this respect the common law differs from the ed in Corey v. James, 15 Gray, 543. Our

civil law. Under the latter, certain rules prerule requires that the new witness is to furn

vail in respect to age, sex, and physical conish the same testimony which the former wit

dition, by which survivorship may be deterness gave, because it is given to the jury un

mined, but nothing can be more uncertain or der his outh and it is to be weighed and judg- unsatisfactory than this conjectural mode of ed of as he gave it. It must be given to the

arriving at a fact, which from its nature must jury in the language in which it was origi

remain uncertain, and often upon the existnally given, substantially and in all material

ence of which the title to large amounts of particulars, because that is, the vehicle by

property depends. There are cases where a which the testimony is transmitted, of which strong probability in theory at least would the jury are to judge. We do understand this arise, that one person survived another, and rule to require the ipsissima verba of the for- perhaps as strong as that there was a survivor,

Vol. 9-No. 20.

and yet the common law wisely refrains from be presumed to have died at the same time." acting upon it in either case. It is regarded But these expressions, though ambiguous, are as a question of fact to be proved, and evi- only intended to mean that as the fact is incadence merely that two persons perished by pable of proof, the one upon whom the onus such a disaster is not deemed sufficient. If lies fails, and persons thus perishing must be there are other circumstances shown tending deemed to have died at the same time, for the to prove sarvivorship, courts will then look at purpose of disposing of their property. The the whole case for the purpose of determining Lord Chancellor in Wing v. Underwood, 4 De the question, but if only the fact of death by Gex. M. & G. 633, recognized the distinction, a common disaster appears they will not un- and explained the meaning of the rule. In dertake to solve it, on account of the nature of commenting upon a similar expression of the the question and its inherent uncertainty. It Master of the Rolls to the effect that he must is not impossible for two persons to die at assume that Mr. and Mrs. Underwood both the same time, and when exposed to the same died together, the chancellor said: “From peril under like circumstances, it is not a personal communication with his honor, I question of probability very unlikely to hap- know that he is is not aware that he ever used pen. At most the difference can only be a such an expression, and all he ever meant to few brief seconds. The scene passes at once say was that the property must be distributed beyond the vision of human penetration, and just as it would have been if they had both

Best in his work tribunals to speculate or guess whether during on Evidence, after laying down the general the momentary life struggle one or the other rule, states that it is not correct to infer from may

not have ceased to gasp first, this that the law presumes both to have perespecially when the transmission of title ished at the same moment, and adds: “The to property depends upon it, and hence in practical consequence is however nearly the the abserce of other evidence the fact same, because if it can not be shown which is assumed to be unascertainable, and died first, the fact will be treated by the tribuproperty rights are disposed of if nal as a thing unascertainable, so that for all death occured at the same time.

This is that appears to the contrary, both individuals done not because the fact is proved, or that may have died at the same moment." there is any presumption to that effect, but because there is no evidence, and no presumption to the contrary. Newell v. Nichols, 12 SUGGESTIONS UPON CODE PROCEDURE Hun, 604.


it is as unbecoming as it is idle for judicial died at the same moment.”


VI. APPELLATE PROCEEDINGS. The cases are uniform to this effect, but the expressions of some of the judges in announc- It is proposed to close this series of articles ing it—as in re Harris where the court adopts by a few suggestions upon the peculiarities the presumption that both husband and wife of appellate proceedings, in the reformed perished at the same moment might be un- system of procedure, and the necessity of derstood as indicating a presumption of simu-- some reformatory legislation. taneous death, which is not the rule of the At the common law, as every well read lawcommon law. Thus in Rex v. Heuss, 2 Salk. yer is aware, the only method of review of the 533, 5 B. & Ad. 91, the court said: "I always proceedings of an inferior court by a superior thought it the most natural presumption that appellate court was by writ of error, by all died together and that none could trans

which the whole record, including the pleadmit rights of property to another.” In re Sel- ings and enteries and whatever else had been wyn, the court said: “But in the absence of placed in the record of the lower court by clear evidence, it has generally been taken that bill of exceptions, was brought before the both died in the same moment.” So the judge appellate court for review, upon questions of in Taylor v. Diplock, 2 Phill. 261, remarked. law only, uponan assignment of errors, speci“I assume that both perished in the same mo- fically pointing out the errors complained of. ment” and in Sollerthwarte v. Powell, 1 Curteis, This might be done formerly without any 705, another judge said. “The parties must motion for a new trial, even where the alleged

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