such a lien can only be enforced under the general -statute concerning the liens of mechanies and others (R. S. 1858, ch. 153, sec. 12), which applies only to labor performed for or on account of the owner or his agent or assignee, or a sub-contractor. 2. Laths are lumber, and are not timber within the meaning of the act of 1862. 3. In this action for a lien for work performed in a county to which the act of 1862 applies, the court found that plaintiff worked for the defendant Win sawing slabs out of logs for lath;" that a certain sum was due him for such work; and that "the logs and lath upon which said labor was performed, were then and there the property of defendants E. Held, that these findings do not show plaintiff entitled to a lien upon the lath as against the defendants E. 4. The constitutionality of the act of 1862, or of the provisions thereof of giving justices of the peace jurisdiction of actions to enforce the liens there provided for, not here considered. Opinion by LYON, J.-Babka v. Eldred.

INTEREST-APPLI

PARTNERSHIP-ACCOUNTING CATION OF MAXIM OMNIA PRÆSUMUNTER CONTRA SPOLIATOREM.-1. In an action by D for the dissolution of a firm consisting of four members it was error to determine the rights and liabilities as between themselves of two members of the firm, growing out of the relations as partners in another firm, consisting of those two only. 2. The maxim omnia præsumunter contra spoliatorem, applied to a defendant who, being employed upon a salary to keep the books of the firm of which he was a member, kept them in such a manner as to render it impossible to determine correctly the state of the accounts between the partners. 3. It appearing, in such a case, that goods sold by weight or measure were taken from the store to be used in said defendant's family, without having been weighed or measured, and that the accounts as shown by the books could therefore not be relied upon as accurate in that respect, the referee for trial did not err in resorting to other sources of information in order to get at the real amount and value of goods so used. 4. While it is the general rule that one partner is not chargeable with interest on moneys of the firm in his hands, until a balance has been struck or an accounting had (Marsh v. Frasier, 37 Wis. 149; Yates v. Shepardson, 30 Id. 173, yet, where one partner kept the account books, and knew, or ought to have known, the precise amount in his hands belonging to the firm, and made at one time what purported to be a full statement of the business, which was incorrect: Held, that there was no error in charging him with with interest. Opinion by LYON, J.-Diamond v. Henderson.

CONDEMNATION OF LAND - DAMAGES-MODE OF COMPUTING.-1. It is res adjudicata in this case (43 Wis. 183), that plaintiff is entitled to recover all the damages he had sustained up to the commencement of the action, from defendant's trespass in constructing, maintaining and operating its railroad on his land in a public street (only six inches in width of the track being upon said land), and that the fact that a part of the road was at the same time constructed and operated upon adjoining lands not owned by the plaintiff, can not be considered for the purpose of lessening the damages. 2. Under the Constitution and laws of this State where lands are legally taken for the purpose of building and operating a railroad thereupon, the "just compensation" which the railroad company is required to pay, includes the value of the lands actually taken, and the damages sustained by the owner by reason of the taking thereof" for such purpose; and the fact that the value of the owner's other lands, adjoining those taken, and used in connection with them, would be diminished by the proximity of the

road, if it were built close to but not upon his land, can not be considered for the purpose of lessening the damages; and an equally liberal rule in favor of the land-owners applies in case of a trespass by an illegal taking for the same purpose. 3. The court below having improperly permitted questions to be propounded to the jury (for special verdict) by which they were required to state, not only the gross amount of plaintiff's damages, but the several items composing it, and having twice sent them out to re-consider their verdict in consequence of inconsistencies in the answers, and the jury having made successive material changes in their assessments with no apparent reason except to make the general and special assessments consistent, this court holds that there was an abuse of the statutory right to a special verdict, and reverses the judgment for a new trial on that ground. Opinion by TAYLOR, J.-Blesch v. Chicago &c. R. Co.

SUPREME COURT OF INDIANA.

[Filed October, 1879.]

INCONSISTEN

SPECIAL AND GENERAL VERDICT CY BETWEEN. - Suit by appellant against appellee upon a promissory note. The complaint alleged that Samuel Harlow, who is a son of Garret Harlow, was engaged in certain business and was accustomed to use and sign the name of his father in contracts relating to his said business, his father agreeing that he might so use his name and credit; that Samuel borrowed of the plaintiff $600, to be used in his said business, and executed the joint note of himself and father therefor; that the said Garret had acknowledged the note to have been executed with authority and had ratified the act of his son. This suit was to recover a balance due upon the note. Samuel Harlow made default, and judgment was rendered against him. Garrett answered in general denial, and on the trial a general verdict was rendered in his favor. The jury also answered the following interrogatory as follows: "Did the plaintiff read in evidence to the jury a note purporting to be signed by Samuel Harlow and Garret Harlow, a copy of which is filled with the complaint?"" Answer: "Yes." Held, that the facts stated in the complaint amounted in legal effect to an allegation that the appellee, Garret Harlow, acting by and through his son Samuel had executed the note in suit jointly with the said Samuel, and that the general denial, not being sworn to, only put in issue the existence of the note. The answer to the interrogatory was materially inconsistent with the general verdict. The fair implication from this answer was that the note set out in the complaint was in existence and had been produced upon the trial, and such note having been read in evidence, the appellant became entitled to have his damages assessed upon it, and to judgment for the amount found to be due upon such an assessment. Reversed.-Hall v. Harlow.

PROMISSORY NOTE- NEGLIGENCE IN SIGNING DEFENSE AGAINST IN HANDS OF INNOCENT HOLDER.-Suit on a promissory note. Answer of non est factum. The evidence was heard by a jury, and the plaintiff demurred thereto, the demurrer was sustained by the court and the jury were discharged. The evidence for the defendant showed that defendant was a carpenter, whose eyesight was defective, and it was growing dusk in the evening when the note was signed, so that he could not see well to read it; that the parties who procured the execution of the note told him he would have nothing to pay unless 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 payee 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 v. 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 filled, 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 office. 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.

BOOK NOTICE.

THE DOCTRINE OF DAMNUM ABSQUE INJURIA, Considered in its relations to the Law of Torts. By EDWARD P. WEEKS, Counselor at Law. San Franeisco. Sumner, Whitney & Co., 1879.

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.

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

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 on 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 nonfeasance, misfeasance, and malfeasance of public officers, the subject of injuries arising from negligence, and certain cases of misrepresentation and deceit."

39. WILL-DEVISE-CONSTRUCTION.-In Pennsylvania, 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 permit my wife to occupy and enjoy the same, and receive the rents and profits 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 during 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

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 the estate, and it should be the survivor of the two grandchildren and its mother, who will be the legal représentatives 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.

ANSWERS.
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 satisfaction. 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.

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. 53, 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 H. G. PLATT, enforce it.

San Francisco, Cal.

NOTES.

son.

on

The annual election of officers of the St. Louis Bar Association took place on Monday night last. The officers 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 Admissions, Shepherd Barclay, Alexander Martin, H. A. Haeussler and J. D. Law-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 presented 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 Baron Platt de men, " he was once heard to remark. 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 always a great distinction, and rendering him favorite with the jury. The judge, like many of the others down to those and including present time, was very severe on witnesses who would not "speak out;' "they should lose their verdict; he would not allow their expenses;" he 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 • thun whisper. Then if you are a butcher, man. dered Platt, "speak like a butcher, can't you?" Baron Platt remained junior judge of his court until his retirement in 1856.

The Central Law Journal.

ST. LOUIS, NOVEMBER 14, 1879.

CURRENT TOPICS.

In the case of Costigan v. Lunt, argued at the November term, 1878, of the Supreme Judicial Court of Massachusetts, AMES, J., who delivered the opinion of the court says: "It is a well established rule of evidence that in case of the death of a witness who testified at a trial, it may be shown at any subsequent trial between the same parties and upon the same issue, what his testimony was. Any competent witness who heard it may testify what the evidence was. Com. v. Richards, 18 Pick. 434; 1 Phil. Ed. 230, 231. 1 Green Ed. 202; Young v. Dearborn, 2 Fost. 372.

The purpose of such secondary evidence is to reproduce the testimony of the deceased witness, in order that the jury may have it as given by him under oath, and as qualified and explained (if such were the fact) upon cross-examination. The witness who, at the subsequent trial, undertakes to give an account of the previous testimony is not at liberty to describe it in general terms, or to say what it was in its general effect. Whether it is sufficient that the new witness should give only the substance of the former testimony, instead of an exact recital of its language, is a question that has been often discussed in the courts of this country.

Ruck v. Rock Island, 97 U. S. 694We see no sufficient reason for departing from the rule laid down by this court in Com. v. Richards, 18 Pick. 434, and in Warren v. Nichols, 6 Met. 261, and re-affirmed in Corey v. James, 15 Gray, 543. Our rule requires that the new witness is to furnish the same testimony which the former witness gave, because it is given to the jury under his outh and it is to be weighed and judged of as he gave it. It must be given to the jury in the language in which it was originally given, substantially and in all material particulars, because that is, the vehicle by which the testimony is transmitted, of which the jury are to judge. We do understand this rule to require the ipsissima verba of the forVol. 9-No. 20.

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 the third person- The language must be given substantially and in all material particulars' 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 been admissible, even under the strict rule adopted by this court. He testified that he could give the 'substance of the words used ;' -that the words were 'substantially these;" -and that he thought these were 'the exact words.' He took notes at the time, and had a right to use those notes for the purpose of refreshing his memory."

In re Hall, 12 Ch. L. N. 68 decided by the Probate Court of Cook County, Illinois, on the 1st. inst., on the application for the dis-tribution of the estate of the deceased it ap peared that he and his wife had been killed together in the Ashtabula Bridge disaster in 1876. No evidence of survivorship was offered, but the question was important as, in the event of his wife not having survived him, his brothers and sisters became his heirs, while if the wife had survived, other parties would be entitled to share the estate. The court held that, in the absence of other proof, they must have died at the same moment; that neither transmitted any rights to the other, and that the next of kin of the husband were therefore entitled. The rule of the common law where several persons perish in the same catastrophe is that no presumption is to be indulged in. It will not raise a presumption by balancing probabilities, either that there was a survivor, or who it was. In this respect the common law differs from the civil law. Under the latter, certain rules prevail in respect to age, sex, and physical condition, by which survivorship may be determined, but nothing can be more uncertain or unsatisfactory than this conjectural mode of arriving at a fact, which from its nature must remain uncertain, and often upon the existence of which the title to large amounts of property depends. There are cases where a strong probability in theory at least would arise, that one person survived another, and perhaps as strong as that there was a survivor,

and yet the common law wisely refrains from acting upon it in either case. It is regarded

as a question of fact to be proved, and evidence merely that two persons perished by such a disaster is not deemed sufficient. If there are other circumstances shown tending to prove survivorship, courts will then look at the whole case for the purpose of determining the question, but if only the fact of death by a common disaster appears they will not undertake to solve it, on account of the nature of the question and its inherent uncertainty. It is not impossible for two persons to die at the same time, and when exposed to the same peril under like circumstances, it is not a question of probability very unlikely to happen. At most the difference can only be a few brief seconds. The scene passes at once beyond the vision of human penetration, and it is as unbecoming as it is idle for judicial tribunals to speculate or guess whether during the momentary life struggle one or the other may not have ceased to gasp first, especially when the transmission of title to property depends upon it, and hence in the absence of other evidence the fact is assumed to be unascertainable, property rights are disposed of as if death occured at the same time. This is done not because the fact is proved, or that there is any presumption to that effect, but because there is no evidence, and no presumption to the contrary. Newell v. Nichols, 12 Hun, 604.

and

The cases are uniform to this effect, but the expressions of some of the judges in announcing it as in re Harris where the court adopts the presumption that both husband and wife perished at the same moment-might be understood as indicating a presumption of simu-taneous death, which is not the rule of the common law. Thus in Rex v. Heuss, 2 Salk. 533, 5 B. & Ad. 91, the court said: "I always thought it the most natural presumption that all died together and that none could transmit rights of property to another." In re Selwyn, the court said: "But in the absence of clear evidence, it has generally been taken that both died in the same moment." So the judge in Taylor v. Diplock, 2 Phill. 261, remarked. "I assume that both perished in the same moment" and in Sollerthwarte v. Powell, 1 Curteis, 705, another judge said. "The parties must

be presumed to have died at the same time." But these expressions, though ambiguous, are only intended to mean that as the fact is incapable of proof, the one upon whom the onus lies fails, and persons thus perishing must be deemed to have died at the same time, for the purpose of disposing of their property. The Lord Chancellor in Wing v. Underwood, 4 De Gex. M. & G. 633, recognized the distinction, and explained the meaning of the rule. In commenting upon a similar expression of the Master of the Rolls to the effect that he must assume that Mr. and Mrs. Underwood both died together, the chancellor said: "From personal communication with his honor, I know that he is is not aware that he ever used such an expression, and all he ever meant to say was that the property must be distributed just as it would have been if they had both died at the same moment." Best in his work on Evidence, after laying down the general rule, states that it is not correct to infer from this that the law presumes both to have perished at the same moment, and adds: "The practical consequence is however nearly the same, because if it can not be shown which died first, the fact will be treated by the tribunal as a thing unascertainable, so that for all that appears to the contrary, both individuals may have died at the same moment.”

SUGGESTIONS UPON CODE PROCEDURE AND CODE REVISION.

VI. APPELLATE PROCEEDINGS.

It is proposed to close this series of articles by a few suggestions upon the peculiarities of appellate proceedings, in the reformed system of procedure, and the necessity of some reformatory legislation.

At the common law, as every well read lawyer is aware, the only method of review of the proceedings of an inferior court by a superior appellate court was by writ of error, by which the whole record, including the pleadings and enteries and whatever else had been placed in the record of the lower court by bill of exceptions, was brought before the appellate court for review, upon questions of law only, upon an assignment of errors, specifically pointing out the errors complained of. This might be done formerly without any motion for a new trial, even where the alleged