Page images

there was any evidence that Charles C. had witness as to a certain item by requiring plaintiff, as a knowledge that Patterson was to sign the note.

condition of affirmauce, to deduct the amount allowed

for such item. The evidence sought to be contradicted The evidence relied upon by the plaintiff is a was only a portion of the witness testimony. Held, erportion of the intestate's testimony given upon a

ror; such course is only proper where the evidence of the former trial, and which was to the effect that he

witness relates solely to the itern rejected, and his whole

testimony can be stricken out without affecting the resitold Charles C. that Patterson was to sign the due of the recovery. note, and that Charles C, did not object. That

This action was brought by P., plaintiff's inportion of the intestate's testimony upon the foriner trial was read in evidence by the plaintiff, i testate, to recover for professional services as at

torney for defendants. On the trial one S., à against the defendants' objection upon the trial witness for plaintiff, and formerly managing from the rulings in which the appeal was taken. The defendants had, as they were entitled to do, tain conversations between P. and the defend

clerk for P., who was then dead, testified to cerread certain portions of the intestate's testimony

ant 0., which were material to the issues, at as his admissions. The admissions, as claimed

which conversations S. stated that he was presby the defendants, were to the effect that the intestate, when he obtained Patterson's signature,

cnt and that they took place at the office of P. O. did not inform him that the principal, Bean, the referee refused to allow him to testify as to

was called as a witness on his own behalf, but had declined to give a note with him as surety.

what was said or what was not said between him After the defendants had read so much of the in

and P. at those conversations. 0. was then asked testate's testimony as they desired to read as ad

whether he ever had any conversation with P. missions, the plaintiff insisted upon reading the rest, and the court allowed him to read a certain

at his office at which S. was present, and at

which 0. made certain statements to P., to portion but under the express ruling that it should

which S. had testified. These questions were be considered by the jury only as far as it had the

excluded. effect to explain or modify the intestate's admissions. In the portion thus read by the plaintiff lated to what was said between O. and the de

Held, No error; as the questions excluded reappears the statement made by the intestate upon_the former trial, that he told Charles C. ceased, and not merely to the fact of S.' presence that Patterson was to sign the note, and Charles

at an interview between them. C. did not object. Now it is very clear that we

The primary intent of 8 829 of the code, prohave no evidence of what the intestate told hibiting the examination of a party as a witness Chares C., if anything. What was admitted only

in his own behalf against the executor, etc., of a purports to be evidence of what the intestate tes- deceased person, "concerning a personal transtified to upon the former trial. As evidence of action or communication between the witness the fact sought to be established, it was inad

and the deceased person,” is to prevent a surviv. missable. As evidence of such fact it was not ing party from proving by his own testimony a admitted.

personal transaction or communication between The instruction asked, then, was based upon

himself and a deceased person, but it does not evidence which in no proper sense was in the preclude the survivor from testifying to extrancase. It was, we think, properly refused.

eous facts or circumstances which tend to show Affirmed.

that a witness who has testified affirmatively to

such a transaction or communication has testified EVIDENCE-PRACTICE.

falsely or that it is impossible that his statement

can be true, as for instance, that the survivor was NEW YORK COURT OF APPEALS.

at the time absent from the country where the

transaction is stated to have occurred, and that so PINNEY, ADM'RX v. ORTH ET AL.

long as the survivor refrains from testifying as to

anything that passed or did not pass personally be April 11, 1882.

tween himself and the deceased, it is not a valid One $., a.witness, having testified to certain conversa

objection to his testimony that the facts which tions between defendant , and plaiptiff's testator, at

he states bear upon the issue whether or not the which he was present, 0. was called and asked if he ever personal transaction in question took place, or had any conversation with testator at which S. was present, and in which defendant made certain statements

upon the truth of the testimony by which said testified to by S. Held, That the questions were properly

transaction is sought to be proved against him. excluded under $ 829, as they related to what was said Certain questions were asked defendant 0., between O. and testator, and not merely to the presence touching what the deceased did in a certain case; of S. at the interview, A surviving party is not precluded by 3 829 from testi.

whether he put in an appearance, drew an anfying to extraneous facts and circumstances which tend swer, as testified to by S. These questions were to show that a witness who has testified to a transaction excluded. The general term held that such exor communication between the survivor and the deceased has testified falsely, or that it is impossible that

clusion was erroneous, as the questions did not his statement can be crue; and so long as he refrains relate to personal transactions with the deceased. from testifying as to anything that passed or did not pass the court attempted to cure this error by requirpersonally between himself and the deceased, it is not valid objection that the facts which he states bear on ing plaintiff

, as a condition upon which the the issue whether the transaction in question took place, judgment should be affirmed, to deduct from the or upon the truth of the testimony given to prove it. The appellate court attempted to cure an error in tbe re

recovery the amount allowed for services in that jection of evidence offered to contradict the evidence of a



Heli, Error; as this ruling deprived the de- made no difference so far as they were concerned. fendants of aay advantage they might have from At the closc of the charge he adds these words: a material contradiction of the plaintiff's wit- “The question of law, as to the effect of the ness. Such a course would be proper only in statute of West Virginia, we will reserve for case the evidence of the witness related solely to further consideration.” The verdict was for the the item rejected, and his whole testimony could plaintiff's for $4,900, “subject to the opinion of be stricken out without affecting the residue of the court on a question of law reserved.” In an the recovery

opinion subsequently filed, two questions of law Judgment of general term, modifying and af- are considered as having been reserved :- 1. firming as modified judgment for plaintiff, re- "Can the plaintiff's recover under the West Virversed and new trial ordered.

ginia Statute; and 2. Is there sufficient evidence Opinion by RAPPALO, J. All concur, except of negligence to justify a vedict against the deEarl and DANFORTH, J. J., dissenting.

fendant ?" Neither of these are shown by the

récord. Of the first it is said: “I do not think RAILROAD-ACCIDENT-DAMAGES. the statutes are substantially alike. In this

State the right of action by our statute is in the SUPREME COURT OF PENNSYLVANIA. .

widow and children, or parents. In the West

Virginia Statute the right of action is in the adPATTON ET AL.,

ministrator. We think this is decisive of the

question ; and as the action is by the widow and PITTSBURGH, CINCINNATI & St. Lours R.W. Co. children, it cannot be maintained."

Before the argument of the question a motion In an action brought by the widow and minor children had been made for amendment by adding the to recover damages for the death of an employee of a railroad company who was killed in West Virginia, the

name of the administratrix a legal plaintiff, for court, in answer to plaintiffs point, instructed the jury, use, in writ, record and pleadings, and at the unqualifiedly, in the language of the point, that the ac

present will be considered as having been altion could be ma'ntained if the statute in force in West Virginia, relating to cases of death caused by negligence lowed. If it was material to determine whether was similar to or substantially the same as the statuto on the statutes were substantially alike, it was for the saine subjert in Pennsylvania, and added, at the close

the court ; but it was submitted to the jury to of the charge, "The question of law as to the effect of the Atatute of West Virginia we will reserve for further con

determine, and if they were, it was ruled that sideration.” The verdict of the jury, after considering

the action could be maintained. Neither the the facts, was for plaintiff, “subject to the opiniou of fact nor question of law set forth in plaintiffs' the court on a question of law reserved.” After verdict and before judgment the plaintiffs moved

third point was reserved. The verdict was as to amend the record by adding the naino of the legal

indefinite as the remark at the close of the charge. plaintiff, which motion was refused. Held, to have been Under the Act of 1852 the courts have power, in

Every reservation of a question should place any stage of the proceedings, to change or add the names distinctly upon the record what the point is of parties so as to make the record conform to the issue

which is reserved, and the state of facts out of that was tried, and no verdict ought to be set aside where

which it arises : Ferguson v. Wright, 11 P. F. there has been a full trial upon the merits and the formal addition of a party will curē the defect of the record. Smith. 258 ; Wilde v. Trainor, 9 Ibid, 439. All the TRUNKEY, J.

legal propositions had been absolutly ruled; and In answer to the plaintiffs' third point the

what was distinctly stated in the so called reser

vation ? It may be conceded that the court intion can be maintained if the statute in force in te

tended the precise question substantially stated West Virginia, relating to cases of death caused

in the opinion, but the record does not show that. by negligence, was similar to or substantially

On the contrary, it shows that question was afthe same as the statute on the same subject in stantially of the same import. Judgment might Pennsylvania. The only statute of West Virginia, given in evidence, is the fifth and sixth

be entered upon the verdict, but most cases which

have been reviewed in this court where the point sections of an Act relating to actions where death of a person was caused by wrongful act, back for another trial. A judgment upon this

was not well reserved, the cause has been sent neglect or default, which provides among other

verdict (or the reason that the record shows no things, that “every such action shall be brought definite point on which the verdict depends, is by and in the name of the personal representative

not what was intended. of such deceased persons and the amount recovered in every such action shall be distributed

The record reveals nothing of what is called to the parties, and in the proportions provided

the second reserved question. It is error to subby law in relation to the distribution of personal mit a fact to the jury and after its finding enter estates left by persons dying intestate." What judgment for the defendant on the ground that the law provides in relation to said distribution

the evidence was insufficient to establish it : was not proved. The learned judge in the

North America Oil Co. v. Forsyth, 12 Wright, 291. charge said it was his impression that the After verdict and before judgment the plaintiffs statute in West Virginia was so different from moved to amend by adding the name of the legal the statute in this State, that the action would plaintiff, which was refused. The cause had not lie, but instructed the jury that the fact of been tried, and the evidence, under the instrucMr. Patton having been killed in West Virginia tions; warranted the verdict. In all actions, in


any stage of the proceedings, the courts have upon by the prosecution was mainly circumstantial, a power to permit amendments by changing or

persou called as an expert testified, against objection,

that he had made a coin parison of hair taken froin the adding tne name or names of any party, plaintiff head of the deceased with hair found (together with or defendant, whenever it shall appear to them blood) upon a wheelbarrow belonging to the accused; that a mistake or omission has been made in the

that such comparison was founded on his experience, he

having made a very careful study of hair; and that the name or names of any such party : Act of 1852, P. hair was precisely the same in length, magnitude, and L. 574, $ 2. It very clearly appeared there was color, and in every other respect, so that any person could a mistake in omitting the name of the auminis

have tuld it as well as himself; and he added that, as the re

sult of that comparison, he could say that it was from the tratrix of William Patton, dec'd, for the statute

head of the same person." Held,that the statement last reunder which the action was brought directed it cited was improperly admitted in evidence, as it appears should be by and in the name of the personal

to have been based inerely upon facts open to common

observation, and undertook to determine a question representative. Legislation and adjudication which was for the jury. have favored amendinents to the end that causes 2. Where a medical witness has testified as from his may be speedily tried on the merits, or when so

own knowlege anıl experience to a matter which

is within his province as an expert, (as that bloodtried that the result shall be preserved. Thus, stains were caused by human blood corpuscles,) he canthe Act of 1872, P. L. 25, provides that no verdict not be impearhed by reading to the jury extracts from shall be set aside for defectiveness or indefinite

mcilical books.

3. Incrinuinal as in civiltrials this court reviews the inness in its form, or by reason of the want of a dec

structions given to the jury only so far as exceptions laration or plea, but the court shall have power have been taken thereto. at any time to direct the filing of a declaration,

4. The decision in Dickinson », State, 48 Wis, 238, that

it was not error to instruct the jury that their verlirt the entering of a plea, or filing a description if

must either be "guilty of murder in the first degree" or in ejectinent, as shall make the pleading and rec- “not guilty," applies only to cases in which there is no ord conform to what was tried before the jury and

evidence to sustain a conviction for any lower grade of

homicide. found by the verdict. Under the Act of 1852 the

COLE, (, J. courts have power, in any stage of the proceedings,

The defendant, and plaintft in error, was charged and to change or add the names of parties so as to make

tried for the crime of having wilfully and feloniously the record conform to the issue that wils trieci, killed, with malice aforethought, one Charles Rohde on and no verdictought to be set aside where there has

the fourth of March, 1879. The evidence ruleil upon

by the state to prove the accused guilty of the crime been a full trial upon the merits and the formal

charged against him was mainly circumstantial. It app addition of a party will cure the defect in the peared that the deceased had been in the employ of the record. When the amendment is a formal one,

defendant for a short time, and the weight of testimony

tends to show that he was last seen alive in the early part introducing no new or different cause of action,

of the evening of the third of March, at the defendant's depriving the opposite party of no substantial saloon. Ilis body was found on the twenty-tifth of the right, and which ought to have been made in the same month in an unfrequented place in a swamp, about

40 rods south of a railway ı rack, and about one-half mile court below, it will be considered in this court as

south-west of the defendant's residence. There were having been made : Fritz v. Heyl, 12 Norris, 77. four cuts or stabs on his left breast, iind iwo on the front This case was tried just as if the legal plaintiff part of each ley between the knee and thigh. Medical

witnesses who made a post-mortem examination of the had brought suit and was upon the record, and

body, testitied that there was a fracture of the skull on the amendment ought to have been allowed. the right side of the forehead extending backward and When it was moved a year had not elapsed from

downward to about the margin of the ear; that his bowels the date of the decedent's death. It was within

had been severely injured from blows; and that death

was probably caused by the injury to the head and the terms of the statute, prejudiced the rights of bowels combined. The theory of the prosecution was no one, and if trial was free of error, it would

that the defendant bad killeil Rohde on the night of have saved the verdict. Where nothing else in

March 4th in bis barn, and had then taken the body to

the place where it was found for the purpose of concealthe way of entering judgment upon the verdict ing the crime. we would treat the motion as having been

Åmong other evidence given to sustain this theory the granted, but as the cause goes back to the Com

state produced as a witness one Jolin Timmens, who

lived very near the railroad, and who testified that about mon Pleas the amendment will there be made midnight, March 3rd, he saw froin the window of his nunc pro tunc.

house a man come along the track with a wheelbarrow The important question to the plaintiffs,

and something in it. The witness described the wheel.

barrow and the man. There was a wheelbarrow in the whether this action can be maintained in Penn- possession of the defendant answering this description, sylvania, is not and cannot be raised by them, and the defendant in size was about such a man as witför decision upon the record as it comes ; and we

ness saw. There were some blood and hair found apon

the wheelbarrow which the defendant bad. One Dr. Piexpressly exclude an inference, from the disposi- per was sworn as a medical expert. . He had made a tion of the assignments of error, that we are of

micrscopical examination of blood found on the barrow opinion that the action will lie.

and on pieces of wood taken from the same; had exain.

ined pieces of cloth and bair,-hair taken from the skull Judgment reserved and a venire facias de novo of tho deceased, and hair found on the wheelbarrow. awarded.

This witness was permitted to state, against defendant's

objection, that he had made a comparison of the hair CRIMINAL LAW-EXPERT TESTIMONY.

found on the wheelbarrow and that taken from the skull, such comparison being founded on his experience, he

having made as he said, a very careful study of hair. He SUPREME COURT OF WISCONSIN.

was asked to state, and did state under objection, the re

sult of that comparison. He said that the hair was preKNOLL v. STATE OF WISCONSIN.

cisely the same in every respect, in length, magnitude, color, and in every other respect, so that any person could

have told it as well as himself, and he added: "As the May 10, 1882.

result of the comparison, I can say that it was from the 1. On a trial for murder, where the evidence relied head of the same person."

Wo have dotailed enough of the facts to show the very what questions a witness muy testify to luis opinion as a important bearing of this inculpatory testimony. One conclusion of fact. Lumingi. State, Pin. 284; Burnexception relied on for a reversal of the judgment is the har v. Mitchell, 334 Wis, 1:33; Olson v. Talford, 37 Wis. admission of this testimony against the defendant's ob- 3:37; Beneliet v. Fond du Lac, 41 Wis 195; Mellor v. jection; and the question presented for decision is, was Town of lica, 18. Wis 157; Yinke v. State, 51 Wis. 464 ; it competent and proper testimony under the circum- Noonan ». State. post. But none of these cases go to the stances? The objection to its aclmission is that the wit- length of siunctioning the admiss:o! of such testimony ness was pern ted to state or give his opinion upon a ils that given by Dr. Piper. We think it was clearly invital fact in the case, which it was the province of the competent, and must work a reversal of the judgment. jury to determine from the evidence given. The witness While this result disposes of the case, it may be proper said that the hair which he had examined found on the to-nake it few further rem:urks on one or two other wheelbarrow and that taken from the skull of the dire points which wrre much discussed by counsel. Dr. Piceased was from the head of the same person. The wit- per also trstitied as an expert in regard to examinations ness reached this conclusion, as we understand his testi- made by him with a microscope of certain blood-stains mony, not from any scientific tests or peculiarities in foued upon pieces of cloth and wood. IIc gave it as his the structure of the hair which an examination by a opinion, founded upon such (xamination, that some of microscope would disclose, but from tho length, magni- thiese stains were cansal by human blood corpuscles. tude, and color, or those obvious marks and resem. for the purpose of discrediting the witness it was problances which one person of good vision would observe poscel on the part of the defence to reau opinions stalo us readily as another. The comparison mule required .in ccrtain medical works on this subject. Tho court no peculiar skill nor scientific knowledgr. It wils no would not permit this to be done, holding in effect as Dr. more in the province of an expert than of an ordinary Piper haul not referred to any mclical work, and did not person to make it. It related to a matter of common oli- rely upon the authority of medical writers to support servation. The jury were as competent to make the his views, but testified from his own knowledge and excomparison from the description given of the hair, anel perience, it was not proper to rear from medical works draw the conclusion whether it came from the heart of io contradiet him. There can be no doubt of the correctthe same person, as way the witness. The opinion of the ness of this clecision, which is sustained by the authoriwitness as to the fact that the hair came from the licad tics referred to by Mr. Justice ('ilssoily in Stilling v. of the same person was not adinissible on the ground Town of Thorp, 11 N. W. REP. M. that the inquiry related to a scientific subject_one Amber of objections :v'e taken to the charge of the which reqạired peculiar knowledge or previous study court given on the trial. It is perhaps sufficient to say, and exporience to give information about. But it re- in inswer to all of them, that the accusel doos not prelated to a matter within the observation, judgment and sent a singlo exception to the chargo, nor is it pretended knowledge of any ordinary man; for the resemblances that any was ever taken to it. But, notwithstanding relied upon in making the comparison, as the length, this, the learned counsel for the clofendant insisteil that magnitude and color of the hair, were as open to the ob it was the duty of this court to review the chargo, event servation of the jury, or the jury could draw their infor- though it was 1100 excepted to, and if found incorrect in ence from theso resemblances as well as any one. The the propositions of law laid down for the guidanco witness, then, could not testify to his opinion on the of the jury to reverse on that ground. That would be ground that the subject-matter of the inquiry related to contrary to the uniform practice of this court since its a scientitic subject, and was expert testimony.

organization. In no caso, civil or criminal, has this Is there any other principle ipon which the testimony court reviewed ihe charge of the trial court where no exwould be admissible? At first we had some doulit ception was taken to it. In the absonce of all legislation whether it should not be received on the ground that the on the subject we do not consider it to be our duty to witness was merely stating his opinion as to the identity change a rule of practice so long established in this and of the hair, and that it was adniissible upon the same other courts. In this case the defendant was assisted by principle as an opinion in respect to the value of prop- able and intelligent counsel, alundantly competent to erty, or damage done to it, or the identity of a chatiel or protect his rights and scoture for him a fair trial. If they person, or facts of that nature. In regarri to this class of did not see anything in the charge of the court which facts a witness can only testify by using languago which they dleemed unfavorable to their client, or objectionable amounts to little more than giving his opinion about in law, why should this court le called upon to review them. But this kind of evidence is admitted that it? (sounsel says that it is a humane principle recogclass of cases from necessity, because it is impossiblo, loy nizcil in criminal law, especially in case of murder, any mere words of description, to give the jury a proper that the acilised stands upon ull his rights, waiving understanding of the facts. But, of course, the general nothing which can possibly prejudice him. In the rule is that a witness cannot testify as to his opinion, but sense in which this principle is sought to be applied it is is limited to stating facts. Respectable authorities may not strictly correct. For example: an objection to the be found which go nearly, if not quite, the length of sus. audmission of impropor testimony must be taken in time taining the admission of the testiinony which we are to be available; so must an exception to the chargo. considering. See Com. v. Dorsey, 103 Mass. 412; Com. v. There are many things in the conduct of the case which Sturdevant, 117 Mass. 122. But it seems to us such evi- the accused loses the right to object to unless he takos dence is of a most dangerons character, especially when the objection at the proper time. It is needless to mienia witness is allowed to testify, as Dr. Piper did, that in tion them, for they will readily occur to every intellihis opinion the hair found on the wheelbarrow and that gent lawyer. The claim, therefore, that the accused removed from the skull of the desceased was from the waives nothing, or that he can always insist and take adhead of the saine person. The witness had stated with- vantage of any error in the proceedings, cannot be mainout objection that the hair found on the wheelbarrow tained. Ofteii a plca of guilty is entered by the accused was human hair. Possibly this might be said to involve and acted upon by the court. In that case the party a question of special knowledge, learning, or experience. waives his right to a trial. We have said this much in But the witness then described the hair, and said that roply to the argunent which wils so seriously presscal from comparison of its length, magnitude and color it npon us that we could review the charge though no exmust, in his opinion, all have come from the same head. ception was tahen to it. But no inference inust be mailo That conclusion was the precise fact which the jury were from this that we consider the charge erroneous in any called upon to determine. It is not entirely clear from material point. We simply decline to review it. the record whether the hair taken from the skull and To guard against any possible misapprehension we that found on the wheelbarrow were before the court deem it proper to say a word on a remark in the charge. and jury, though we infer such to be the case. If so, it The circuit court, among other things, told the jury that is obvious the jury could make the comparison for them- their verilict must be simply murder in the first degree, selves, for the resemblance o marks of similarity were or not guilty, according as they should find the fact. obvious. But, if we are mistaken in this supposition, This same charge was given in the case of Dickinthe hair in both instances had been so fully described- son v. State, 48 Wis. 2:28, and held by this court the points of resemblance or identity had been so fully not to be error. Of

what is there said given-that the jury could draw their own conclusion as in the opinion had reference to the facts and circumto whether it came from the bead of the same person stances of that particular case. There it was plain, from or not.

all the ovidence, if the accuscil was guilty of the comIn a number of cases which will be found in our re- mission of any otfence whatever it was of the crime of ports the rule had been laid down as to when and upon murder in the first degree. The charge was considered

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with reference to that state of facts. But whether the case, the monotony of the proceedings is not rechargo would have been sustained had there been evidence in the case which would support a conviction of

lieved by a counter-claim or two for assault and a lesser grade of homicide is a question not decided in battery, to which possibly the wife of one or the Dickinson Case. This observation, it must be un- other of the parties is made third party. There derstood, has no reference to the facts or circumstances

is, in fact, no reason why the litigation should of the case before us. It would be very improper for us to indicate any impression as to the guilt of the defend- not go on for one-and-twenty years, and such ant, which we may have derived from an examination time afterwards as judges and jurymen can be of the evidence, and we do not do so. The Dickinson

made to understand the case. This dicture may Case was commented on in the argument at the bar, and hence this explanatory remark as to what was intended

seem extraguvant. It is enough if it is a possito be decided in that case.

ble picture, unless some limit be placed on the The judgment of the circuit court is reversed, and the

right to counter claim. The decision in Toke cause remnandod for a new trial. The warden of the state prison will surrender the plaintiff in error to the sheriff

v. Andrews allows an unlimited right to counterof Outagamie county, who will hold bim in custody claim in either plaintiff or defendant. With until he shall be discharged or his custody changed by this must be contrasted the decision of the Masdue course of law.-[N. W. Reporter, Vol. 12, No. 5.

ter of the Rolls in The Original Hartlepool Com

pany v. Gibb, 46 Law J. Rep. Chanc., 311, which COUNTER-CLAIM ON COUNTER-CLAIM.

drew so strict a limit to counter-claims as to

exclude damages suffered by a defendant. since main portion of the science of procedure re- the date of the writ. On the general principle solves itself into the problem where to draw the we prefer the decision of the Master of the Rolls line. A proceeding may seem from many points to the present; that is, so far as the Master of the of view to be reasonable and just, and yet it may Rolls held that a limit must exist. We, on a not be permissible as a rule of procedure, which

previous occasion, expressed disapproval of the must be governed by rules at once the strictest, actual limit placed by the learned judge. His and framed accordirg to the most general con- mistake, which is now generally admitted, prosideration. We are inclined to think that the

ceeded apparently from a want of experience in necessity for drawing the line so us to run in a cases in which damages were claimed, the Masmanner most convenient to the average of cases ter of the Rolls being under the impression that has not been sufficiently dwelt npon in the de- damages since the date of the writ could not be cision of Toke v. Andrews, reported in the May recovered by a plaintiff, and, therefore, holding number of the Law Journal Reporls. The action

that they could not be recovered by a defendant was for rent due at Midsummer, 1881. The writ

on a counter-claim. Mr Justice Fry, in Beddall was issued on August 26, the statement of claim v. Maitland, 50 Law J. Rep. Chanc., 401, declined delivered on November 29, and the statement of to follow the Master of the Rolls, and held that defense on December 22. The tenancy subsisted a cause of action arising since the writ may be until Michaelmas Day, and the defendant al

the subject of counter-claim. These two cases leged that he was entitled to an outgoing valua- are far from standing and falling together. It tion, which he accordingly claimed by way of does not follow, because damages since the writ counter-claim, although it had accrued since the may be recovered on a counter-claim, that a issuing of the writ. On the same day, however, cause of action arising since the writ may be the the plaintiff would be entitled to another instal- subject of a counter-claim. The state of facts ment of rent. He accordingly proceeded to which arose in Toke v. Andrews, in so far as claim this sum by means of a counter-claim to they throw light on Beddall v. Maitland, tend the defendant's counter-claim-a new and rather to throw doubt on the principle there laid hitherto unheard-of proceeding, which, however, down. The defendant's counter-claim in Toke has now received the sanction of Mr. Justice V. Andrews arose since the date of the writ, and Field and Baron Huddleston. If this decision the plaintiff's counter-claim arose at exactly be right, there is no end to the vitality of an act- the same date. To allow the defendant to set ion under reasonably favorable circumstances.

up this cause of action and to shut the plaintifi There is, let us suppose, a twenty-one years' out of a cause of action arising at the same time, lease subsisting between plaintiff as landlord hus the appearance of inequality. It may well and defendant as tenant, who is sued for his

be said that, in order to prevent a confused pile tirst quarter's rent. The defendant sets up a of counter-claims, the line ought to be drawn counter-claim that the plaintiff covenanted to at the date of the writ. We do not think this put a new roof on the house. The plaintiff does is necessarily so, because the Judicature Acts not deliver his reply until a second quarter's speak of a counter-claim as a cross-action; and rent is due, when he counter-claims in respect it the plaintiff' is so back ward in pressing forof that amount. By the time the defendant de- ward his claim as to give time for a counterlivers his rejoinder a fresh grievance of his is claim to issue against him, he has only himself ripe, possibly that the plaintiff undertook to to blame. The proposition at present in quespaint in the first six months. The action is

tion is, whether the plaintiff can be allowed a now ready for trial; but before it is reached an- counter-claim. The foundation of the law of other quarter-day pusses, and the plaintiff adds counter-claim is to be found in subsection 3 of a fresh counter-claim. It will go hard if the de- section 24 of the Judicature Act, 1873, and in fendant does not cap the effort, and if, under Order XIX, Rule 3. Neither in the act nor in the rather exasperating circumstances of the the rule is to be found anything to suggest that

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