84. NEGLIGENCE-Evidence.-Evidence of a lawyer's negligence in collecting a note transmitted to him for professional attention is not evidence that he was not a lawyer of reputed learning and ability, so as to render the person sending the note to the lawyer negligent in employing him.-PLYMOUTH COUNTY BANK V. GILMAN, S. Dak., 68 N. W. Rep., 735.

85. NEGOTIABLE INSTRUMENT — Accommodation Indorsement by Feme Sole. A married woman's renewal of a valid accommodation indorsement, made by her before marriage, is binding though such renewal be made after she has been released from liability on the original indorsement by failure of the obligee to protest for non-payment; it appearing that the parties intended the renewal to be as of the date of the note renewed, and a mere continuation of the indorser's original obligation. HARRISBURG NAT. BANK V. BRADSHAW, Penn., 35 Atl. Rep. 629.

86. NEGOTIABLE INSTRUMENT-Notes-Consideration. -The surrender to a surety of a bond on which he can be sued, and on which the result of a suit is open to doubt, is a sufficient consideration for notes given by him in settlement of an undisputed claim made on the bond.-FINK V. FARMERS' BANK, Penn., 35 Atl. Rep.

636.

87. NOTARY PUBLIC-Officer De Facto.-In an action in which the issue was whether plaintiff's mortgage was legally probated before a person who acted as a notary public, it appeared that it was nearly two years after his commission expired, and that the clerk decided when the mortgage was presented for registry that "the certificate is correct and sufficient." There was no proof that such person attempted any act as a notary public after his commission expired until the probate of such mortgage: Held, that he was not a notary de facto.-HUGAES V. LONG, N. Car., 25 S. E. Rep. 743.

88. NUISANCE - Pleading. In an action against a grantee for maintaining a nuisance, consisting of a dam erected by his grantor, a complaint alleging a request to the grantee for the removal of the dam; that plaintiff's damages were caused by "keeping up, maintaining, and continuing the dam;" that the nat ural flow of the water through the river and a branch has been and "now is" prevented; that the branch and river have been and "now are" prevented from effecting the natural drainage of plaintiff's land; and that the waters are caused to percolate through the landsufficiently avers damages to plaintiff after the request for the removal of the dam.-LEITZSEY V. COLUMBIA WATER POWER CO., S. Car., 25 S. E. Rep. 744.

89. PARTNERSHIP-Dissolution.-Where, on the death of one partner, the surviving partner continues the business just as he had done before her death no steps being taken to wind up the business or ascertain the share of the deceased, and it is impossible to determine with accuracy the condition of the firm at the time of the partner's death, the surviving partner cannot object to an accounting as if the partnership had continued to the time of the commencement, by the representatives of the deceased partner, of the suit therefor.-YOUNG V. SCOVILLE, Iowa, 68 N. W. Rep.

670.

90. PLEADING-Answer must be Responsive.-Under Rev. St. 1894, § 350 (Rev. St. 1881, § 347), providing that an answer shall "clearly refer to the cause of action intended to be answered," a paragraph of an answer in an action to recover for an assault and battery, which pleads justification of an assault therein mentioned, but not alleged to be the same declared on, and which is stated to have taken place on a different date from the date alleged in the complaint, is not responsive to the issue tendered, and is bad on demurrer.-PYLE V. PEYTON, Ind., 44 N. E. Rep. 925.

91. PROCESS-Service.-To overthrow the presump. tion of the validity of the service of original process and the return thereof where the original papers are lost, and cannot be found, positive testimony must be

introduced, sufficient to show that the summons was not in fact legally served, or that the return thereof was irregular. Evidence, which merely casts doubt upon such service or return is not sufficient.-STUNKLE v. HOLLAND, Kan., 46 Pac. Rep. 416. 92. QUO WARRANTO - Judgment of Ouster. — A judg. ment of ouster against the incumbent of a public office in quo warranto proceedings is self-executing, and by its own force divests the person ousted of all official authority, and such judgment is not suspended by the filing of an appeal bond, the effect of which, under the statute (Hill's Code, § 1408), is to "stay proceedings on the judgment or order appealed from." FAWCETT V. SUPERIOR COURT OF PIERCE COUNTY, Wash., 46 Pac. Rep. 389.

93. STREET RAILWAY-Injury to Passenger.-A streetrailway company is not liable to a passenger injured by a fall when alighting, it being caused by the push ing and jostling of passengers, and by a passenger stepping on her dress, and the conductor being at the time on the ground, lifting sald passenger's child from the car.-FURGASON V. CITIZENS' ST. R. Co., Ind., 44 N. E. Rep. 936.

94. RAILROAD COMPANY Street Railways Negli. gence. A special verdict in an action for injury to one struck by an electric street car while walking close beside the track for 25 feet fails to show absence of contributory negligence, though stating that he looked just before approaching the track, and saw no car, it appearing therefrom that there was nothing to prevent his seeing and hearing.-YOUNG V. CITIZENS' ST. R. Co. Ind., 44 N. E. Rep. 927.

95. RAILROAD COMPANIES-Injury to Live Stock.-In an action under Code, § 1289, to recover double damages for injury to live stock, plaintiff alleged that the stock was given access to defendant's track by reason of defendant's failure to maintain a substantial fence, as required by law. Plaintiff proved only that the stock went on defendant's right of way, and was killed by a locomotive: Held, that there could be no recovery on such a showing.-SCHMITT V. CHICAGO, ST. P. & K. C. KY. Co., Iowa, 68 N. W. Rep. 715.

96. RAILROADS-Negligence. -An ordinance requiring a railroad company to station watchmen at certain crossings, to protect persons about to cross the tracks "at any such crossing" is not admissible in an action for an injury received at a point several hundred feet from one of the designated crossings.-SPILLANE V. MISSOURI PAC. RY. Co., Mo., 37 S. W. Rep. 198.

97. RAILWAY COMPANY - Animals on Track. Where domestic animals are injured by a railroad train while trespassing upon the track of the company, and the owner of the animals is free from negligence contributing to their injury, the company will be liable for a failure on the part of those operating; the train to exercise ordinary care to avoid injury.-LAKE ERIE & W. R. Co. v. WEISEL, Ohio, 44 N. E. Rep. 923.

98. RECEIVERS-Right to Maintain Action-Foreign Insurance Company. - The principle of comity be. tween the States does not entitle the receiver of a foreign corporation, appointed in another State, to maintain an action in Iowa upon a contract between such corporation and a citizen of Iowa.-BARKER V. LAMB & SONS, Iowa, 68 N. W. Rep. 686.

99. REMOVAL OF CAUSES-National Bank.-A receiver of a national bank, appointed by the comptroller of the currency, when sued in a State court on a claim of less than $500, has no power to remove the case to a federal court.-HALLAM V. TILLINGHAST, U. S. C. c. (Wash.), W. D., 75 Fed. Rep. 849.

100. RES JUDICATA.-Plaintiff, who held two claims against defendant-one for an open unsecured account the other for a sum secured by mortgage-was, at its own request, allowed to Interplead and become a party to a creditors' bill against defendant, as to the first claim only, the order of the court reciting that plaintiff "be made party defendant for said purpose;" and the judgment did not purport to pass upon the second

claim: Held, that such action was no bar to a subsequent suit against defendant on the mortgage debt.SNOW STEAM PUMP CO. V. DUNN, N. Car., 25 S. E. Rep. 741.

101. RES JUDICATA-Accepting Offer of Judgment.After defendant in replevin had answered, claiming title to one of the chattels in suit, and asking judgment therefor, he made an offer of judgment for the other chattels and costs, which plaintiff accepted. Neither the offer nor the judgment referred to the chattels claimed by defendant: Held, that the judgment entered on such an offer was an adjudication in defendant's favor as to the other chattels, under Code Civ. Proc. §§ 788, 739, relating to offers of compromise by parties, the obvious purpose of which is to permit parties, by offer, acceptance, and judgment, to compromise and settle all matters involved in the action.SHEPHERD V. MOODHE, N. Y., 44 N. E.¡Rep. 964.

102. SALE-When Title Passes.-The title to property sold will pass to the purchaser at the time of the sale where such is the clear intention of both parties, though the amount to be paid therefor is left to be determined by the price at which it is resold by the purchaser.-PACIFIC LOUNGE & MATTRESS Co. v. RUDE. BECK, Wash., 46 Pac. Rep. 392.

103. SCHOOL DISTRICTS-Powers to Issue Warrants.A school district of the class involved in this action cannot contract an indebtedness for furnishing the school building, and issue, as evidence of that indebtedness, warrants or orders, payable to a party on his order, and at stated intervals after date, with interest at a certain rate provided for in the terms of the instruments. Any such instruments are invalid and unenforceable.-ANDREWS V. SCHOOL DIST. OF CITY OF MCCOOK, Neb., 68 N. W. Rep. 631.

104. SPECIFIC PERFORMANCE-Vendor's Title. - Specific performance will not been forced against a vendee where the title offered by the vendor can only be held good by declaring a particular statute unconstitutional, and where, if this were done, and the vendee compelled to accept such title, he would still be exposed to suit by interested persons who are not parties, and who would not, therefore, be bound by the judg. ment.-DANIEL V. SHAW, Mass., 44 N. E. Rep. 991.

105. STATUTE-Time of Taking Effect.-Where a legis. lative act is by its provisions to take effect on its approval, the presumption is that it goes into effect at the beginning of the day on which it is approved by the governor.-CROVENO V. ATLANTIC AVE. R. Co. of BROOKLYN, N. Y., 44 N. E. Rep. 968.

106. TAXATION OF CITY LOTS.-The vacation by the owner of a plat of an addition to a city, the land being within the corporate limits, does not ipso facto disconnect the land platted from the corporation.-KERSHAW V. JANSEN, Neb., 68 N. W. Rep. 616.

107. TRESPASS TO LAND Measure of Damages.In trespass for entering plaintiff's pasture and driv. ing into such pasture a herd of cattle, the measure of damages for the destruction of the grass and turf, and for injury to troughs and fences, is the diminished value of the premises; and an instruction that the measure of damages was the difference in the market value of the land before and after the trespass was not objectionable on the ground that the measure of damages for the injuries to the troughs and fences was the cost of repairing the same.-BAKER V. MIMS, Tex., 87 S. W. Rep. 190.

108. TRIAL IN ABSENCE OF COUNSEL.-A trial court should not commence the trial of a case where the counsel for one of the parties is absent arguing a case in the supreme court; Sup. Ct. Rule 41 declaring that during the period assigned to argument of cases from the county of Philadelphia engagement of counsel in the lower courts will not be recognized as a reason for continuance or postponement of a cause, except when they are actually engaged in a trial which commenced in a previous week, and is unfinished.-PETERSON V. ATLANTIC CITY R. Co., Penn., 35 Atl. Rep. 621.

109. TRIAL-Remarks of Court.-In the submission of special questions to the jury upon the request of either party it is material error, prejudicial to the rights of the party requesting the submission of the questions, for the judge to make the following statement to the jury: "I want the jury to understand that these questions are got up to befuddle and mislead the jury, so that there will be error in the trial of this case, so that the verdict may be set aside."-CONE V. CITIZENS' BANK, Kan., 46 Pac. Rep. 414.

110. VENDOR and PurchaSER-Forfeiture.-Where a contract for the sale of land provides that, on failure of the vendee to pay his notes promptly when due, the vendor "shall have the right to declare this agreement null and void," the vendee's default does not ipso facto work a forfeiture, and, unless the vendor elects to declare a forfeiture, the contract remains in force.GAUGHEN V. KERR, Iowa, 68 N. W. Rep. 694.

111. VENDOR'S LIEN Enforcement.-Under Sayles' Civ. St. art. 2279, providing that when an execution, or any writ in the nature thereof, requires the sale of any specific real property, it may be issued to the county where the property, or some part thereof, is situ. ated, the sale of an entire tract, lying partly in two counties, to enforce a vendor's lien, may be made in the county where part only of the land is situated.MILLER V. EDINBURGH AMERICAN LAND MORTGAGE Co., Tex., 37 S. W. Rep. 181.

112. WILL.-A rehearing of a case on appeal suspends the former opinion rendered, and no portion of the former opinion will be operative unless affirmatively adopted on the final determination on rehearing. A testator bequeathed to his daughter a pecuniary legacy; and devised to his son certain described real estate, and the residue of all his estate, real and personal: Held, that the legacy to the daughter was not a charge on the property of the estate specifically devised to the son.-PITKIN V. PEET, Iowa, 68 N. W. Rep. 705.

113. WILLS-Bequest-Nature of Estate.-A will recited: "I give, devise, and bequeath all my estate, real and personal, of whatever (kind, and wherever situated, unto my three sisters, Mary, Annie, and Louisa:" Held, that under 1 Rev. St. pt. 2, ch. 1, tit. 2, art, 1, § 44, providing that every estate granted or devised to two or more persons in their own right shall be a tenancy in common, unless expressly declared to be in joint tenancy, the legatees took as tenants in common.-IN RE KIMBERLY'S ESTATE, N. Y., 44 N. E. Rep. 945.

114. WILLS-Devise--A devise of land in trust for a daughter of the testator "and all her children, if she shall have any," vested an estate in fee in the daugh ter, she having no children at the death of the testator; and such estate was not divested by the subsequent birth of children.-SILLIMAN V. WHITAKER, N. Car., 25 S. E. Rep. 742.

115. WILLS-Trust Estate.-A bequest by testatrix of the entire income of her residuary estate directly to her husband, with power to collect and enjoy the same for life, to occupy the real estate, and lease it as he may deem proper, and to collect the proceeds of paidoff securities, and reinvest them with the assent of the executors, gives the legatee an absolute life estate, subject to the claims of his creditors, though the will declares that it shall not be liable for the legatee's debts.-WANNER V. SNYDER, Penn., 35 Atl. Rep. 604.

116. WITNESS-Testimony to Impeach.-On an issue as to the fraudulent character of representations made by the debtor to plaintiff's salesman for the pur pose of obtaining credit, a letter, which it was not claimed that the plaintiff ever saw, written by the debtor to another firm, making a statement to obtain credit, and differing in some respects from the statement made to plaintiff, was inadmissible for the purpose of impeaching the testimony of the debtor as to the truth of his statement to plaintiff.-CAHN V. LADD, Wis., 68 N. W. Rep. 652.

Central Law Journal.

ST. LOUIS, MO., DECEMBER 4, 1896.

ant

Those interested in the question, discussed in recent issues of this JOURNAL, whether "a bicycle is baggage," may be interested in knowing that the exact question has just come, for the first time, before an English court, as we learn from the Solicitors' Journal. In the case reported the defendcompany declined to carry a bicycle without extra compensation therefor, and the court decided in its favor, holding that "a bicycle could not be treated as passengers' luggage." In Hudston v. The Midland Railway Co., L. R. 4 Q. B. 366, the court of Queen's Bench held that a "spring horse" for a child to ride on is not "personal baggage." But in Macrow v. The Great Western Railway Co., L. R. 6 Q. B. 612, two years afterwards, the same court stated very broadly the rule as to what constitutes baggage, and said, in terms, that it would include the gun case or fishing apparatus of the sportsman, the easel of the artist, or the books of the student. These words are wide and would seem to include the bicycle of the traveler. But it is clear from the "spring horse case" that considerations of the dimensions and weight of the particular article are not to be disregarded in deciding whether it is personal luggage or not. On the whole, the better view would seem to be that a bicycle is baggage, within reasonable rules adopted by carriers, but the question is not free from doubt. This latest English case, the report of which is very meager, like the Missouri case heretofore mentioned, was decided by a nisi prius court. It will be of value to get the decisions of the highest courts on this perplexing question.

The Massachusetts case of Vegelahn v. Guntner, which will be found in full on page 464 of this issue, was, without a doubt, correctly decided, both from the standpoint of principle and authority. That the acts complained of by plaintiff were sufficient to entitle him to an injunction against defendants who, as strikers, were picketing his place, seriously menacing his business and threatening him with irreparable loss and damage, seems reasonably clear. The dissenting opin

ion of Mr. Justice Holmes, though exhibiting much learning and nice discriminations, some of which, however, the ordinary mind will find it difficult to grasp, is of more value as a political than a strictly legal discussion. A very recent English case-Lyons v. Wilkininvolves somewhat the same question, as to how far workmen can carry a strike accompanied by picketing, and much the same conclusion is reached as in the Massachusetts case. In the English case some of plaintiff's workmen went on strike. They afterwards not only picketed plaintiff's place but threatened another employer (an outside firm) with whom they had no dispute that if he, the outside firm, dealt with the plaintiff, they, the workmen, would bring out the outside firm's hands and picket the place. The plaintiffs applied for an injunction to restrain the defendants from inducing, or conspiring to induce, persons not to enter into contracts with the plaintiffs, and the court granted the injunction. The defendants took the case to the court of appeal, and submitted that there was no evidence whatever of malicious intention, and that a strike on the part of the workmen being legal, it could not be illegal to induce persons to do a legal act. The respondents pointed to the facts of appellants causing workmen to leave another employer in order to injure respondents, by preventing that employer doing work for them, and those were malicious acts which justified the injunction. The court of appeal adopted the respondent's views and rejected the appellants' contention. The appellants were committing an illegal act which might have the effect of ruining the business of the respondents if it was not interfered with by injunction. This trade union had gone far beyond any right which the statute gave them, and what they were doing was calculated and intended to injure the plaintiffs in their business. An injunction was accordingly issued to restrain the defendants, their servants and agents from watching or besetting the plaintiff's works for the purpose of persuading or otherwise preventing persons from working for them, or for any purpose except merely to obtain or communicate information, and also from preventing other persons from working for the plaintiffs by withdrawing workmen from the employment of those per

sons.

NOTES OF RECENT DECISIONS.

INSOLVENCY DISCHARGE NON-RESIDENT PARTNER.-In Chase v. Henry, 22 N. E. Rep. 988, it was held by the Supreme Judicial Court of Massachusetts, three judges dissenting that where one of the partners of a firm doing business in the State, to whom a citizen of the State is indebted, is a resident of another State, a discharge of the debtor in insolvency by a court of the State does not affect the debt due the firm. The court says:

There has been some difference of opinion among learned judges in former years in regard to the extent to which State insolvency laws can be made applicable to debts contracted and payable in the State where the insolvency proceedings are, when the creditor is at the time of making the contract, or at the time of the insolvency proceedings, an inhabitant of another State. So far as insolvency proceedings assume to affect a resident of another State, they involve questions arising under the constitution of the United States, the decision of which by the Supreme Court of the United States is authoritative and binding upon all the courts of the several States. The general doctrine stated by that court is that a discharge in insolvency granted by a State court is of no effect against a creditor residing in another State who does not submit himself to the jurisdiction of the insolvency court on the ground that, as a non-resident, he is not amenable in any way to the jurisdiction of the State in which the discharge is granted, and that the courts of such a State can do nothing that will affect his rights under contracts outstanding in his favor. If, at the time of making the contract, the statute is in force, and the parties are within the State where the proceedings in insolvency are subsequently had, and the contract is to be performed there, so that the statute does not impair the obligation of an existing contract, these facts are not enough to make a discharge effectual if the creditor is a resident of another State. Baldwin v. Hale, 1 Wall. 223; Denny v. Bennett, 128 U. S. 489, 9 Sup. Ct. Rep. 134; Kelley v. Drury, 9 Allen, 27; Guernsey v. Wood, 130 Mass. 503; Bank v. Batcheller, 151 Mass. 589, 24 N. E. Rep. 917; Mill Co. v. Holmes, 156 Mass. 12, 30 N. E. Rep. 176; Pullen v. Hillman, 84 Me. 129, 24 Atl. Rep. 795; Norris v. Atkinson, 64 N. H. 87, 5 Atl. Rep. 710; Roberts v. Atherton, 60 Vt. 563, 15 Atl. Rep. 159. So far as any of our earlier decisions are inconsistent with this doctrine, they are overruled or modified by the controlling authority of the Supreme Court of the United States. See also Pennoyer v. Neff, 95 U. S. 714; Freeman v. Alderson, 119 U. S. 185, 7 Sup. Ct. Rep. 165; Elliot v. McCormick, 144 Mass. 10, 10 N. E. Rep. 705. The intimations in some of the earlier cases in that court that a discharge might be given effect in the courts of the State in which it was granted, when it would be held invalid in the courts of other States and of the United States, have never been incorporated into the law, and our own decisions are to the contrary. Bank v. Batcheller, 151 Mass. 589, 24 N. E. Rep. 917; Murphy v. Manning, 134 Mass. 488; Kelly v. Drury, 9 Allen, 27.

In the present case the plaintiffs are copartners, engaged in the business of manufacturing slippers in New Hampshire, and having a store and office in Massachusetts. Two of them are citizens and resi

dents of Massachusetts. The other never resided in this commonwealth. The defendant obtained a discharge in insolvency, but the plaintiffs never proved or offered to prove their claim. Under the rules of law to which we have referred, it is clear that, if the plaintiffs had all been residents of Massachusetts, the discharge would be a bar, and, if they had all been residents of New Hampshire, it would not. They were copartners, having a common interest in their claim. The cases go upon the ground that doing busi. ness and making contracts in this State gives no jurisdiction to discharge a debt. As against the plaintiff Griffin, who resided in New Hampshire, the courts of Massachusetts could do nothing to impair his right to hold the debtor responsible for his debt. Looking to Griffin alone, his rights and property in the claim are precisely the same as if no insolvency proceedings had intervened. As we have already shown, our courts will recognize these substantive rights to the same extent as would the courts of New Hampshire or of the United States. As a member of the firm he is entitled to have this debt collected if it can be, so that he may have it included in the assets which he will share. The fact that his copartners reside here gives no jurisdiction to our court to deprive him of his property. Phelps v. Brewer, 9 Cush. 390; Stone V. Wainwright, 147 Mass. 201, 17 N. E. Rep. 301. The fact that in suing upon his claim he must join his copartners is not a good reason for denying him the right to prosecute it. The determining point in reference to the question whether the discharge is a bar to the claim is the fact that doing a part of his business in this commonwealth, and associating himself with partners who reside here, do not operate to give the courts of our State jurisdiction to discharge a debt which is either partly or wholly his, unless he chooses to submit himself to the jurisdiction of the court by participation in its proceedings. In a case like this the debt is an entirety. It is either discharged altogether, or it remains unchanged. It cannot justly be held that the entire debt should be barred because two of the partners are residents of Massachusetts, and that these two should make up, from their own property, to the non-resident partner, the share to which he is entitled. The result is that, inasmuch as his rights cannot be affected, the debt as a whole, cannot be affected by the discharge.

-

TORT JOINDER OF ACTIONS INJURY BY DOGS.-The decision of the Supreme Court of New Jersey in State v. Wood, 35 Atl. Rep. 654, involves the question of liability for damage done by dogs. It was held that a joint action will not lie against the separate owners of dogs which unite in destroying the property of a third person. Each owner is liable only for the damage done by his own dog, and not for that which is done by the dogs which do not belong to him. This case recalls the humorous opinion of Judge William F. Allen in Wiley v. Slater, 22 Barb. 506, which discussed to an extent the moral agency of the dog, and also his legal agency, as bearing upon his capacity of making his owner responsible for his acts. See, also, Goodbridge v. Marks, 14 Misc.

Rep. 368. The court in the New Jersey case says.

This action was brought by Wood, the plaintiff below, against the prosecutors, Nierenberg and Zukug. man, jointly, to recover compensation for damages done by two dogs, one owned by Nierenberg, and the other by Zukugman, in trampling down and destroying certain cabbage plants, beans, etc., which were growing in Wood's close. The property was all destroyed at the same time, the two dogs uniting in committing the mischief, and a judgment was entered in the court below against the prosecutors, by which each was made responsible for the whole of the injury done.

The theory upon which the suit was tried and judgment rendered seems to have been that, as the loss suffered by the plaintiff was the result of the joint act of the two dogs, their respective masters stood in the same position, so far as liability to respond for the damage done was concerned, as if they personally had broken and entered the plaintiff's close and destroyed his growing plants. But the reason which makes one who personally aids in or abets the wrong done by another liable for the whole amount of the injury done does not apply in a case like that under consideration. In the case of a joint tort, each offender's liability arises out of the fact that his participation in the wrongful act was voluntary and intentional, and the law, as a punishment for his wrongdoing, as well as for the protection of the rights of the injured party, makes him answerable for all the consequences of that act; but in the case of animals which wander off and unite in perpetrating mischief there is no actual culpability on the part of their owners. Liability in such a case only exists by reason of the negligence of the owners in permitting their animals to stray away and commit the depreda tions, and it has therefore always been held, when the question has come before the courts, that a joint action will not lie against separate owners of dogs which unite in committing mischief. One of the earliest cases on this subject is Russell v. Tomlinson, 2 Conn. 206, in which the plaintiff sought to hold the defendants jointly liable for injuries done to his sheep by their dogs. Swift, C. J., in delivering the opinion of the court, said: "Owners are responsible for mischief done by their dogs; but no man can be liable for the mischief done by the dog of another unless he had some agency in causing the dog to do it. When the dogs of several persons do mischief together, each owner is only liable for the mischief done by his own dog; and it would be repugnant to the plainest principles of justice to say that the dogs of different persons, by joining together in doing mischief, could make the owners jointly liable. This would be giving them a power of agency which no animal was ever supposed to possess." A similar view is expressed in Van Steenburgh v. Tobias, 17 Wend. 652; Auchmuty v. Ham, 1 Denio, 495; Partenheimer v. Van Order, 20 Barb. 479; Adams v. Hall, 2 Vt. 9; Buddington v. Shearer, 20 Pick. 477; and Denny v. Correll, 9 Ind. 73. Nor does the fact that there may be difficulty in ascertaining the quantum of damage done by each dog afford any ground for holding their owners jointly liable. As was said in Van Steenburgh v. Tobias, supra, the difficulty of such ascertainment is not an argument of sufficient strength to warrant the injustice of punishing a man who is entirely inno cent.

The liability of the prosecutors in this case for the mischief done by their respective dogs was a separate

and not a joint one; and the plaintiff, in order to recover for the loss which he had sustained, should have brought actions against each of them for so much of the injury as was caused by the dog which he owned. By doing so, he would have been fully indemnified, for the recovery in any action against one owner would have been no bar to the action against the other.

THE DOG IN LAW.

This animal which has been the theme of the poet's song and the hero of many daring and noble deeds on the one hand, and an almost universal outcast and object of contempt on the other; in some instances having a fabulous value, in others being worse, if anything, less than worthless and base, and whose name is a common synonym for reproach, has been the subject of frequent and sometimes animated litigation in the courts. Springing from an existence perhaps almost coeval with that of mankind, and with a nature that adjusts itself to almost any condition or climate, he has been known in the law for centuries. A domestic animal by nature, he is prized for many valuable qualities in his highest state of perfection. Not being suitable for food, however, at common law, while he was recognized as a species of property, yet he was a kind of base property, was considered of no intrinsic value, and did not attain that dignity, as such, enjoyed by other animals possessing more general desirable qualities. He was not the subject of larceny.1 And this was true though the owner would have a right of civil action to recover from a wrongdoer for any injury sustained to his dog. Or he might repossess himself thereof from one who had wrongfully taken him, by the action of replevin. At the present day, more generally than anciently, perhaps, the dog is in many ways regarded in the law as property. Sometimes he is the subject of taxation to the great annoyance of his owner, and is usually held to be such property as will ground an action for his value for his wrongful killing and doubtless for his theft. So, in an action for the value of a dog, the characteristics and qualities of which is his ability and fitness for herding cattle and horses, it is competent to show by those acquainted with the dog's 12 Bl. Comm. (Cooley's Ed.) p. 443; Woolf v. Chalker, 31 Conn. 121.

2 2 Bl. Comm. (Cooley's Ed.) p. 443. 3 Haywood v. State, 41 Ark. 479.