oppressive and grossly unreasonable, whoever goes on board under ordinary circumstances contracts to obey such regulations, and may justly be refused a passage if he willfully resists or violates them.'" To the same effect, Summitt v. State, 8 Lea, 413; S. C., 41 Am. Rep. 637; Barney v. Oyster Bay, etc., Steamboat Co., 67 N. Y. 301; S. C., 23 Am. Rep. 115. We knew that the "installment plan " of selling goods prevails in respect to furniture, pianos and sewing-machines, but until just now we did not know that it prevails in respect to gravestones. In Fletcher v. Evans, Massachusetts Supreme Court, Oct. 26, 1885, it was held that the vendor of a tablet may remove it from a grave when it has been sold on installments to a widow, on her failure to pay, without consent of the owners of the lot, they having consented to the erection by the widow. The court said: "It is not necessary to consider whether a widow can, without the consent of the heirs, erect a monument at the grave of her deceased husband, and give to the contractor a license to enter the burial lot for the purpose of removing it if it is not satisfactory, or is not paid for according to the contract. In this case the heirs at law authorized her to erect the monument. Such authority, without any restriction, gave the widow the right to make any reasonable contract for a monument, and by implication the right to give to the contractor a license to enter the lot to build the monument, and to remove it if it was not satisfactory, or if she did not pay for it according to the contract. The contract which the widow made with the defendants was a reasonable one. Under it the monument would not become a part of the realty until it was accepted and paid for. To this extent the plaintiffs are bound by it. They knew of the contract, and knew that the defendants were putting up a monument under it. They did not object to it at the time, and cannot now deprive the defendants of their right to remove the monument because they did not inquire into its terms." We hope that Larson v. Berquist, Kansas Supreme Court, Nov. 7, 1885, 8 Pac. Rep. 407, is a case sui generis. The head-note is as follows: "In an action by a parent to recover damages for the willful negligence and misconduct of the defendants toward his infant daughter while in their service, the plaintiff alleged that the daughter was an inexperienced girl of tender years, who was employed by the defendants as a house servant to do such work as was suitable to her years and strength, and that during her employment her menses began, causing her great pain and sickness, and that after gaining her confidence the defendants took advantage of her weakness, youth and inexperience, and in order that she might continue in their service, and perform a great and unusual amount of labor for them, they negligently, willfully and wickedly advised her that menstruation was a dangerous disease, likely to cause insanity and death, and that the best and only known remedy therefor was hard and unremitting labor, and that by reason of this advice and the influence exerted upon her by the defendants, she was exposed to danger and hardship, and made to do work for them far beyond her strength, and compelled to perform the labor of two persons, by reason of which she became very sick, and was permanently crippled and disabled, and that ever since that time her father has been not only deprived of her assistance and service, but has been compelled to expend for her care and medical attendance a large sum of money." Held good on demurrer. good on demurrer. The petition also alleged that at one time the girl was, by command of defendants, engaged in helping them prevent their hogs escaping from corral, and for that purpose had caught and was holding by the ears a large hog, when defendant, Charles Berquist, in a rude, rough and angry manner threw a large stone, barely escaping said Tilda's person, and striking said hog on the head, or face, or snout, causing its instant death, and so frightening said Tilda that she fainted, and suffered great pain. (Note the ingenious description of the smitten part of the hog's person.) The court said: "By the strongest principles of morality and good faith they should have given her reasonable care and honest counsel. At no period of her life was such care more important or necessary. She was a motherless girl of tender years, who relied, as the defendants knew, upon their advice. For the purposes of gain they misused her confidence, took advantage of her immaturity, and her lack of discretion and judgment, and directly caused and compelled her to do that which resulted in great and permanent injury to herself, and consequent loss to her father. It is said by the defendants that she was under no obligation to perform labor beyond her strength, and might have declined the service exacted under the requirements of the contract, and also that she had no right to rely upon misreprentations of the defendants, as she had equal means of information with them. This would be true if the person injured had been an adult of ordinary prudence and discretion, but as we have seen, a different rule applies in the case of a child of tender years, who is unable to appreciate the dangers to which she would be subjected in performing the service required of her." SAVINGS. A savings bank deposit book provided that no payment should be made without the production of the book. The depositor died, and his family refused to give the book to the administrator. Held, that he could recover the deposit without producing the book, and without giving a bond of indemnity. Palmer v. Providence Institution for Savings, 14 R. I. 68. and paid for it. Held, a sale at Little Rock. State v. Carl, 43 Ark. 353. The complainant, of improvident habits and inexperienced in business, applied to defendant, a broker from whom he had previously borrowed, for the loan of $1,000 on the security of an undivided interest in real estate worth $10,000. The defendant objected to the security, prolonged the negotiations for a month, and finally lent him $2,000 on his note and the said security, payable in six months, with interest at five per cent a month, payable monthly in advance till the principal should be paid, whether at or after maturity, and all installments of interest in arrear to bear BASTARD.-The father of a bastard may prop-interest at the same rate till paid. The legal rate erly apply for the appointment of a guardian for of interest was six per cent in absence of different him. Pote's Appeal, 106 Penn. St. 574. CARRIER. A railway company is not liable for the neglect of its conductor to fulfill his promise to wake a passenger, whereby he is carried beyond his destination. Nunn v. Georgia Railroad, 71 Ga. 710. The shipper of cattle by railway having assumed, by special contract, the duty of loading and unloading, and having accepted and loaded a car without objection, knowing that it was not "bedded," cannot hold the railroad company for negligence in failing to bed or for insufficient bed- | ding of the car. East Tennessee, Virginia and Georgia Railroad Co. v. Johnston, 75 Ala. 596. If one to procure the transportation of goods by railroad pays illegal rates under protest he may recover them, even although by arrangement the payments were made monthly. Peters v. Railroad Co., 42 Ohio St. 275. A statute forbidding common carriers to impose restrictions of their liability is not infringed by a provision in a bill of lading that the carrier shall have the benefit of any insurance to the owner on the freight. British and Foreign Marine Ins. Co. v. Gulf, C. & S. F. Railway Co., 63 Tex. 475. CONSTITUTIONAL LAW.-A statute forbade the possession, with intent to sell or exchange, of adulterated milk. A subsequent statute provided that milk should be deemed adulterated if it contained more than eigyty-eight per cent of watery fluids, or less than twelve per cent of milk solids, or less❘ than two and a half per cent of milk fats. Held, constitutional. State v. Smyth, 14 R. I. 100. A statute authorizing the election of four members of a police board in a city, but denying the right to any voter to vote for more than two candidates, is unconstitutional. State v. Constantine, 42 Ohio St. 437. Where the sheriff is bound to board his prisoners, the compensation provided therefor by law is an "emolument," not to be changed during his term. Apple v. County of Crawford, 105 Penn. St. 242. CONTRACT.-Davidson, at Ozark, sent a written order to Carl & Toby, merchants at Little Rock, to send him one gallon of whisky by express, C. O. D. It was sent accordingly, the sellers agreeing with the express company that if it was not taken within thirty days it might be returned, and they would pay freight both ways. Davidson received agreement. Held an unconscionable contract, and that a reasonable rate of interest not less than six per cent should be ascertained and fixed. Brown v. Hall, 14 R. I. 249. DEED.- A grantee under a recorded quit-claim deed is subordinate to a prior unrecorded mortgage by his grantor. Snow v. Lake's Adm'r, 20 Fla. 656. EJECTMENT. — Ejectment will lie for a railway by one having title only to the right of way. see and Coosa Railroad Co. v. East Alabama Railway Co., 75 Ala. 516. Tennes ELECTION BALLOT --"DEVICE."- A diamondshaped ballot is not a device" " within a statute prohibiting "devices" on ballots. State v. Phillips, 63 Tex. 390. EXTRADITION.- Where one charged with crime in Illinois was brought thither from California on a requisition, held immaterial that he had been forcibly and illegally brought to California from a foreign country. Ker v. People, 110 Ill. 627. INSURANCE. Where an insolvent takes out a policy of insurance on his life for the benefit of his wife and children, his creditors can recover only the amount of the premiums paid by him subsequent to his insolvency. Central National Bank v. Hume, 3 Mackey, 360. MANDAMUS.— Mandamus does not lie to compel the transfer of stock by a private corporation to a purchaser. Freon v. Carriage Company, 42 Ohio St. 30. MARRIAGE DIVORCE. A single whipping or beating of a wife by her husband is "extreme cruelty" justifying a divorce, although she provoked the assault by words. Albert v. Albert, 5 Mont. 577. It is "extreme cruelty" justifying a divorce, to expel a wife and a young and dependent step-daughter and make their separation a condition of taking back the wife. Friend v. Friend, 53 Mich. 543. It is "extreme cruelty" warranting a divorce for a wife publicly to accuse her husband of adultery. Kelly v. Kelly, 18 Nev. 49. MASTER AND SERVANT.-A storekeeper having sold merchandise, permitted or directed the purchaser's servant to remove it by throwing it from an upper window into the street. The servant did this carelessly and injured the plaintiff. Held, that the storekeeper was not liable. McCullough v. Shoneman, 105 Penn. St. 169. MISTAKE.— Equity will correct a misdescription of lands in a married woman's deed. Gardner v. Moore, 75 Ala. 394. PARDON. A pardon after expiration of the offense is effectual to restore competeney as a witness. Hunnicutt v. State, 18 Tex. Ct. App. 498. RAILROAD. A traveller about to cross a railroad is not relieved from the duty of looking both ways by the omission to give warning signals, or the fact that the railroad had just made a flying switch. Ormsbee v. Boston & Providence Railroad Corporation, 14 R. I. 102. The statutory duty imposed on railroads to give warning signals at and near highway crossings is intended for the benefit of persons travelling on a parallel highway as well as those intending to cross the track. Ransom v. Chic. St. P., Minn. & Omaha Ry. Co., 62 Wis. 178. SLANDER. Where one falsely reports to a third person that a clerk in the employ of the government has spoken disrespectfully of his chief, and this coming to the knowledge of the latter, he discharges the clerk in consequence, held, that an action of slander will not lie. Knight v. Blackford, 3 Mackey, 177. STATUTE. A "child" is a boy not above four teen, or a girl not above twelve years of age. Bell v. State, 18 Tex. Ct. App. 53. Under a statute barring dower if the wife "voluntarily leave her husband and go away and continue with an adulterer," dower is not barred where the husband under the pretense of joining the Confederate army abandoned the wife, and she being informed by his relatives that he was dead, married another man. Payne v. Dotson, 81 Mo. 145. A statute enacted that the "owners, superintendents or managers of factories should provide fire escapes therein. Held, that the tenant under lease of a factory, and not the landlord, was the "owner." Schott v. Harvey, 105 Penn. St. 222. A statute imposing upon the owners of factories and workshops the duty of providing fire-escapes is not applicable to the owners of premises in possession of lessees. Lee v. Smith, 42 Ohio St. 458. A statute authorized railroads to charge for freight "not exceeding the rate of fifty cents per hundred pounds per hundred miles. Held, that they might charge fifty cents for less than one hundred pounds. Murray v. Gulf, C. & S. F. R. Co. 63 Tex. 407. A statutory power to a married woman to "sell and convey "" her lands, as if unmarried, authorizes her to lease them, and she may lease them in conjunction with her husband. Warren v. Wagner, 75 Ala. 188. The County Court having the discretion to grant or refuse to grant license to sell intoxicating liquors in a particular locality, having licensed some applicants may not arbitrarily refuse others in the same locality, who are of good moral character and comply with the statute. Ex parte Levy, 48 Ark. 42. TELEGRAPH COMPANY.- For non-delivery of a cipher dispatch, the meaning of which is not TRESPASS. The owner of land may expel, with reasonable force, a wrongful occupant, without being liable to any civil action, although he may be liable for breach of the peace or for forcible entry. Souter v. Codman, 14 R. I. 119. WATER land subject to the reservation of the right in B. AND WATER-COURSE.-A. purchased to conduct water from a spring thereon to his adjoining land. A. in good faith dug a well on his own land, some forty feet from the spring, and the subterranean supply to the spring was thereby cut off. Held, that A. should not be restrained. Lybe's Appeal, 106 Penn. St. 626. WITNESS. The fact that a female child of seven years of age was held incompetent to testify on a prosecution for attempt to have carnal intercourse with her does not affect her competency on a new trial, when she is above eight years old. Kelly v. State, 75 Ala. 21. known or explained to the company, a telegraph ervation. MUNICIPAL CORPORATION-STREETS - NEGLI- TINUANCE.. SUPREME COURT OF INDIANA, OCTOBER 27, 1885. CITY OF NORTH VERNON V. VOEGLER.* A municipal corporation is responsible for negligence in devising a plan for a public improvement, as well as for negligence in carrying the plan into execution. For mere error of judgment in devising the plan of a public improvement a municipal corporation is not liable; but where the lack of care and skill is so great as to constitute negligence the corporation is liable. Rozell v. City of Anderson, 91 Ind. 591, explained. A municipal corporation is not liable for consequential damages resulting from the improvement of a street if the work is carefully and skillfully done. For an injury to real estate resulting from the negligence of a municipal corporation in permanently improving a street, all damages, past and prospective, may be recovered in one action. In such case a judgment in the first action is such an adjudication as constitutes a former recovery, although additional damages may have been sustained since the judgment was rendered. The improvement of a street by a municipal corporation is not a nuisance, although done in a negligent manner: and the rule declaring that each day's continuance of a nuisance gives a cause of action does not apply in such case. A 91 Ind. 591, but that decision is very far from sustainTM ing such an answer as the one before us. In that case the evidence was not in the record, as the opinion shows, and the court was simply called upon to determine whether the instruction assailed was correct upon any supposable state of the evideuce admissible under the issue in the case. We have no doubt that the ruling in that case was right upon the question as the record presented it. We hold now, as we held then, that as an abstract rule of law, a municipal corporation is not liable for mere errors of judgment as to the plan of a public improvement; but we did not then hold, nor do we now hold that for negligence, whether in the plan of the work or its execution, a municipal corporation is not liable. That we did not then hold that for negligence the municipal corporation is not liable is evident from the fact that the court, in the opinion given in that case, cites with approval the cases which hold a municipal corporation liable for negligence in the plan of an improvement as well as in the manner of executing the work. We have many cases extending from City of Indianapolis v. Huffer, 30 Ind. 235, down to City of Crawfordsville v. Bond, 96 id. 236, holding that for negligence in devising a plan, as well as for negligence in executing it, the municipal corporation is liable. This was in effect the decision in the case appealed to this court by the appellant involving the sufficiency of just such an answer as that now before us. City of North Vernon v. Voegler, 89 Ind. 77. The question was fully considered, and the authorities cited in the cases of City of PPEAL from Jennings Circuit Court. The opin- Evansville v. Decker, 84 Ind. 325; Cummins v. City of iou states the case. John G. Berkshire, for appellant. ELLIOTT, J. There are two paragraphs in the appellee's complaint, both alleging that the appellant so negligently and unskillfully graded one of its public streets as to change the flow of surface water, gather it in one channel, and pour it upon the lots of the appellee, greatly injuring her property. The first paragraph of the complaint differs from the second, in one particular, and that is in alleging that a former action was commenced by the appellee which resulted in a judgment in her favor. The allegations upon this subject are these: "That in September, 1879, the plaintiff brought suit against the defendant for the damages then accrued to her by reason of the overflowing and injury of her premises up to that time; that in March, 1880, she recovered judgment in that action for $80 so accrued up to September, 1879; that all of said overflowings of said premises have continued, as also the other said injuries to plaintiff's premises ever since September, 1879, when the former action was brought, but the defendant has done nothing and made no effort to change or prevent said flow of water over the lot of plaintiff." On these averments the appellant founds the objection to the complaint that it shows on its face that the matter pleaded has been adjudicated; but as there are answers which more clearly present the question, we defer our consideration of it until we take up those answers. The second paragraph of the answer is in substance this: The improvement of the street was made under an ordinance and a plan of the common council, duly enacted and adopted; that the improvement of the street was, in the judgment of the common council, necessary and proper; and that the injuries complained of were the unavoidable result of the improvement of the street. The sufficiency of this answer is sought to be maintained upon the decision in Rozell v. City of Anderson, *2 N. East. Rep'r, 821. Seymour, 79 id. 491; S. C., 41 Am. Rep. 618; Weis v. City of Madison, 75 Ind. 241; S. C., 39 Am. Rep. 135; City of Indianapolis v. Tate, 39 Ind. 282; City of Indianapolis v. Lawyer, 38 id. 348. The doctrine is not only sustained by authority, but is sound in principle. Suppose that a common council of a city determine to build a sewer and cover it with reeds, can it be possible that the corporation can escape liability on the ground that the common council erred in devising a plan? Or to take such a case as City v. Huffer, suppose the common council undertake to conduct a large volume of water through a culvert capable of carrying less than one-tenth of the water conducted to it by the drains constructed by the city, can responsibility be evaded on the ground of an error of judgment? Again, to take an illustration from a somewhat different class of cases, suppose the common council to devise a plan for a bridge that will require timbers so slight as to give way beneath the tread of a child, cau the city escape liability on the ground that there was only an error of judgment in devising the plan? Illustrations might be indefinitely multiplied, but it is unnecessary to pursue the subject. The only rule that has any valid support in principle is that for errors in judgment in devising a plan there is no liability, but there is liability where the lack of care and skill in devising the plan is so great as to constitute negligence. Our decisions have long and steadily maintained that municipal corporations are not responsible for consequential injuries resulting from the grading of streets where the work is done in a careful and skillful manner; but they have quite as steadily maintained that where the work is done in a negligent and unskillful manner, the corporation is liable for injuries resulting to adjacent property. City of Kokomo v. Mahan, 100 Ind. 242, see page 246; City of Crawfordsville v. Bond, supra; Princeton v. Gieske, 93 Ind. 102; Weis v. City of Madison, 75 id. 241; S. C., 39 Am. Rep. 135; City of Evansville v. Decker, supra, and authorities cited; Macy v. City of Indianapolis, 17 Ind. 267. The complaint in this case very fully alleges the negligence and unskillfulness of the defendant, and an answer admitting these allegations cannot avoid them by averring, as the one before us does, that the negligence and want of skill were not in doing the work, but in devising the plan. We have not considered the fugitive denials cast into the answer, for the reason that it is now well settled that pleadings are to be judged by their general scope and tenor, and not by detached and isolated statements thrown into them. Neidefer v. Chastain, 71 Ind. 363; W. U. Tel. Co. v. Reed, 96 id. 195, see p. 198. There are several paragraphs of answer pleading a former adjudication, and we perceive no substantial difference between them; but as we are not aided by a brief from the appellee, and as the third paragraph presents the question in a clearer light than the others we confine our investigation and decision to that paragraph. The material averments of this paragraph, exhibited in a condensed form, are these: On the 18th day of September, 1879, the appellee filed her complaint in the Jennings Circuit Court against the appellant, and in the action thus begun the appellee recovered judgment for $80 at the March term, 1880. This judgment remains in full force. The complaint in that action stated as a cause of action the injuries to the same property from the same negligent and unskillful improvement of the same street as that described and charged in the present action. The appellant has made no other improvement than the one described in the former complaint, and the injuries resulting to appellee's property were such only as were caused by the improvement inade prior to the filing of the complaint in the action begun in September, 1879. The concluding averment of the answer is this: "And it is the grading of the same street, and the building of the same culverts, and the identical negligence and want of care and skill now complained of, that was complained of in the former action, and no other." The answer presents a question of great importance and much difficulty. The theory of the appellee, as we infer from the record, is that the former action embraced only such damages to the real estate as occurred prior to the recovery of the judgment in that action. The theory of the appellant is that the former action embraced all damages resulting to the ap. pellee's property from the negligent improvement of the street, and that a second action cannot be maintained for the same breach of duty that formed the basis of the first action. There is a material distinction between damages and injury. Injury is the wrongful act or tort which causes loss or harm to another. Damages are allowed as an indemnity to the person who suffers loss or harm from the injury. The word "injury' denotes the illegal act; the term damages" means the sum recoverable as amends for the wrong. The words are sometimes used as synonymous terms, but they are in strictness, words of widely different meaning. There is more than a mere verbal difference in their meaning, for they describe essentially different things. The law has always recognized a difference between the things described, for it is often declared that no action will lie because the act is damnum absque injuria. Brown Leg. Max. 195; Weeks Dam. Iuj. 7; Brown Comm. (4th ed.) 75, 621. In every valid cause of action two elements must be present, the injury and the damages. The one is the legal wrong which is to be redressed; the other, the scale or measure of the recovery. Mayne Dam. 1; 1 Suth. Dam. 3. As there may be damages without an injury, so there may be an injury without damages. It has been many times said that no action will lie because the injury produced no damages, or as the law phrase runs, the wrong is injuria sine damno. The distinction between injury and damages is an important one in this instance, and for this reason we have been careful to mark the difference and to enforce our statement by reference to authorities, although the principle involved is a rudimentary one. The distinction is important, for the reason that the law is, that fresh damages without a fresh injury will not authorize a second or subsequent action. The rule is thus tersely stated in Warner v. Bacon, 8 Gray, 397: "A fresh action cannot be brought unless there be both a new unlawful act and fresh damage." The rule is illustrated by many cases. Mr. Mayne refers to the case of Howell v. Young, 5 Barn. & C. 259, and commenting on it, says: "The statute of limitations runs from the act of negligence, not from the time an injury accrues. Such injury is merely a consequential damage, not a fresh cause of action. The damages then in the original action must cover all the loss that can ever arise, because no such loss can afterward be compensated." Mayne Dam. 611. An American author says: "A cause of action and the damages recoverable therefor are an entirety. The party injured must be plaintiff, by the common law, and he must demand all the damages which he has suffered or ever will suffer from the injury, grievance, or cause of action, upon which his action is founded. He cannot split a cause of action and bring successive suits for parts because he may not be able to prove at first all the items of the demand, or because all of the damages have not been suffered." 1Suth. Dam. 175. The rule we are discussing applies to cases of personal injuries, for among the earliest of the reported cases, we find it laid down for law that in an action for trespass to the person the recovery of damages must be once for all, including past as well as prospective damages. Fetter v. Beale, 1 Salk. 11; S. C., 1 Ld. Raym. 339. In Hodsoll v. Stallebrass, 39 E. C. L. 94, it was held that both injury and damage must concur to give a cause of action; that the damages were not the sole cause of action; and the jury were directed to assess both present and prospective damages, because a second action could not be brought for damages resulting from the same injury. Upon this ancient doctrine rest the cases which hold that where personal injuries are received from the negligent act of a carrier of passengers, or are caused by the negligence of a municipal corporation, all the damages present and prospective must be assessed in one action, because a second action cannot be brought. Town of Elkhart v. Ritter, 66 Ind. 136; Weisenberg v. City of Appleton, 26 Wis. 56; Whitney v. Clarendon, 18 Vt. 252; S. C., 46 Am. Dec. 150; 1 Suth. Dam. 197, authorities in note, p. 198. Mr. Mayne, in discussing this general subject, says: "Similar questions often arise in cases where a person, by digging, mining, building, or the like, affects the plaintiff's house in such a manner as to produce injurious consequences which manifest themselves at a later period. Hence it is now well settled that all subsequent or recurring damages may be assessed, and can only be recovered in a suit brought upon the original cause of action." Mayne Dam. 138. In Backhouse v. Bonomi, 9 H. L. Cas. 503, the doc. trine declared by the author from whom we have quoted is asserted. There is however a later English case which seems to break in upon the rule of the earlier cases, and to shake in some degree at least their authority. It does indeed expressly overrule the case of Lamb v. Walker, & Q. B. Div. 389. The case to which we refer is Mitchell v. Darley Main Colliery Co., 21 Cent. Law J. 148; S. C., 24 Am. Law Reg. 432. If that case can be regarded as well decided, it must be deemed an exception to the general rule, for the gen |