physical suffering, anguish of mind, shame and bumiliation, and loss of honor or good name. Stewart v. Maddox, 63 Ind. 51; Cox v. Vanderkleed, 21 id. 164; Taber v. Hutson, 5 id. 322; Fisher v. Hamilton, 49 id. 341; Lake Erie & W. Ry. Co. v. Fix, 88 id. 381; State v. Stevens, 2 N. E. Rep. 214. In a case like this, where these elements of damages are to be considered by the jury, the amount to be awarded must necessarily rest, to a large extent, in the discretion and sound judgment of the jury. Such a case is peculiarly one where this court should hesitate before overthrowing verdicts and judgments on the ground that the damages awarded are excessive. The general rule is that new trials will not be granted for excessive damages unless they are so clearly excessive as to indicate that the jury acted from prejudice, partiality, or corruption, or were mislead as to the measure of damages. Kelsey v. Hay, 84 Ind. 189, and cases there cited; Lake Erie & W. Ry. Co. v. Fix, supra, and cases there cited; Indiana Car Co. v. Parker, 100 Ind. 181, and cases there cited. Wolf v. Trinkle. Opinion by Zollars, J. [Decided Oct. 29, 1885.]

MASSACHUSETTS SUPREME JUDICIAL COURT ABSTRACT.

MASTER AND SERVANT-NEGLIGENCE.-The plaintiff seeks to recover for damages to his person, caused by his apron and jacket catching on a revolving shaft, while he was standing on a ladder and replacing a board upon a bell box, into which the shaft ran at right angles. The shaft was plainly visible, and seen by the plaintiff. If the ladder had been placed on the opposite side of the box there would have been no damage. The plaintiff could have moved the ladder. But according to his testimony it was standing where he mounted it at the time when he was ordered by the "boss" to go up and nail the board on, and the plaintift, although he had worked in mills for a long time, and was acting within the scope of the duties which he had undertaken, did not know any better way to do the work than that which he took. The court below directed a verdict for the defendant. The plaintiff excepts, and contends that he was sent into a concealed danger without due warning or instruction. The exceptions must be overruled. The plaintiff does not pretend that he was ignorant of the danger of a revolving shaft, nor that the order to him carried any prohibition to put the ladder in such position as he might deem best, nor that there was any thing in the form of it to hurry him, or disturb his judgment, but simply that he had not sufficient intelligencethat is what it comes to- to see that he was less likely to come in contact with the shaft if he had the barrier of the bell box between him and it, or taking a worse place, to keep away from the danger, which he knew. As it is not suggested that he was a man of manifest imbecility, we think that the foreman was entitled to assume that the plaintiff would protect himself by whatever precautions were necessary. Williams v. Churchill, 137 Mass. 243; Leary v. Boston & Albany R. Co., 1 East. Rep. 423. Russell v. Tillotson. Opinion by Holmes, J.

[Decided Oct. 24, 1885.]

IOWA SUPREME COURT ABSTRACT.

for

SURETY -RIGHTS AS TO SECURITIES IN HANDS OF CREDITORS-ATTACHMENT-RELEASE OF LIEN-EFFECT ON SURETY.-A surety has the right to demand that the securities in the hands of the creditor be either applied to the satisfaction of the debt, or that they be

preserved for his indemnity in case he is compelled to pay it. The relinquishment by the creditor, without the consent of the surety, of any hold which he has actually acquired on the property of the principal debtor operates to discharge the surety to the extent of the value of the interest so relinquished. The release of real estate from the lien of a judgment or the discharge of a levy whereby a lien on property has been created, will have this effect. Chambers v. Cochran, 18 Iowa, 159; Sherraden v. Parker, 24 id. 28; Rogers v. School Trustees, 46 Ill. 431; Ferguson v. Turner, 7 Mo. 498; Kuhns v. Westmoreland Bank, 2 Watts, 136; Com. v. Miller, 8 Serg. & R. 452; Bank v. Reynolds, 13 Ohio 84. Where a motion is filed for judgment against surety on a bond, such surety can avail himself of all the defenses he could in answer to a petition on the bond, and if he fails to do so at that time he is barred of his rights thereto. Dewey v. Peck, 33 Iowa, 242; Doyle v. Reilly, 18 id. 108; Savings Bank v. Stevens, 46 id. 429. Bedwell v. Gephart. Opinion by Reed, J. [Decided Sept. 26, 1885.]

WISCONSIN SUPREME COURT ABSTRACT.

EMINENT DOMAIN

DAMAGES FOR LOCATION OF RAILROAD-ESTIMATE OF VALUE BASED ON FUTURE

CONTINGENCIES.-Damages based upon the value of lands adjoining a tract taken for right of way for a railroad, estimated upon the fact that the crossing of such lands by the railroad would prevent the excavation of a canal the full length of said tract, by which such lands could be filled up and made available for business (the same being then mostly under water), and that such canal could not be so excavated without connection with an extension of another canal proposed to be built by other parties, and depending upon many uncertain contingencies are too remote, and cannot be allowed. The learned counsel on both sides cite the same authorities to sustain their adverse and opposite positions as to the true ground of estimating damages in respect to future and expectant conditions of this kind. These authorities do not appear to be difficult to understand. In Snyder v. Railroad Co., 25 Wis. 60, the controversy was as to the damages to the lands adjoining those actually taken, arising from the inconvenience and trouble of crossing the railroad, in going from one part of the land to another, with cattle and agricultural implements, and the danger to person and property, and exposure to fires, frightening teams, etc. Such damages were liable to occur at any time from present conditions, and were said in that case not to be remote and speculative. In Washburn v. Railroad Co., 59 Wis. 379, the damages were allowed to be estimated from the present adaptability of the lands to uses to which they might be put in the future, as that they might be platted into city lots. The rule in Boom v. Patterson, 98 U. S. 410, is that the jury might estimate the value of the land "for the This rule limits the estimate to present and certain most advantageous use to which it may be applied." adaptability, independent of future contingencies and especially relied upon to sanction the grounds of the conditions uncertain and speculative. These cases are estimate in this case, which were the building of a canal on the south side of this tract by other persons or by the public authorities, some time in the remote future, which may or may not be done, and the feasibility of excavating through the tract a canal in connection with such expected canal for the purpose of filling it up and making it available for business purposes, which would be prevented or obstructed by the railroad. The cases are very wide apart. Watson V. Railway Co., 57 Wis. 332, in commenting on the charge of the court and

In

the

instructions asked, Mr. Justice Taylor uses following language, specially applicable to the above testimony: "The evidence of the probabilities of any part of the lands taken being more valuable for the use relied upon by the appellants were so remote, and depended so much upon matters resting in the volition of persons over whom the appellants had no control, we think the court did its entire duty when it permitted the appellants to present their theory of the evidence and argue it by counsel to the jury without making it a matter of special comment in his charge." The following charge was specially approved: "What was the fair market value of the land at that time for any purpose for which it might be reasonably used in the immediate future? Not what would lots sell for in the distant future if a street were opened and lots offered for sale," etc. This same limitation of the conditions of the land is made in many earlier cases in this court. In Welch v. Ry. Co., 27 Wis. 108, Chief Justice Dixon said in his opinion: "And while speculative damages cannot be allowed, yet actual damages, its value to the owner, his use being considered, must

of the deed in his own handwriting. In the letter he said: "We all know life is uncertain, and we don't know the moment we may be called away. I therefore want you to know you are provided for under any circumstances. My intention is to provide for you while I live, and if it should please God to call me away, you will have your own property to depend on, sufficient to make you independent while you live." The letter and copy of the deed were offered together for probate as the will of decedent. Held, that they constitute a good olographic will when taken together, being wholly written by the testator, and dated and signed by him, and the words above showing the animus testandi; but that when taken separately, neither is sufficient as a will, nor is the original deed, which was neither written by the testator nor dated nor delivered admissible as such. Matter of Skerrett. Opinion by Myrick, J. [Decided Oct. 9, 1885.]

NEGLIGENCE-CIRCUMSTANTIAL EVIDENCE — PROVINCE OF JURY-VERDICT.-In an action to recover

the land was separately owned, or separately used or intended for some other purpose or belong

circumstantial, it is the province of the jury to determine the facts and proper inferences from them establishing the negligence. The verdict of the jury on such evidence should not be set aside unless when in the judgment of reasonable men no such deduction as that expressed in the verdict could be properly drawn from the facts in evidence. This is an action brought to recover damages for a loss by fire caused by the negligence of defendants. It is argued that the evidence is insufficient to sustain the verdict, which was

ages are too remote and speculative to be estimated in The learned counsel of the respondent such a case. contends that as the jury were allowed to view the premises their estimate cannot be reviewed. The view of the premises by the jury is for the purpose of assisting them in weighing and applying the evidence, and notwithstanding their view their estimate must be supported by the evidence in the case. Neilson v. Ry. Co., 58 Wis. 523; Washburn v. R. Co., supra. It is clear that the damages to the land contiguous to that actually taken by reason of the railway were estimated by the witnesses at $4,000, in view of such uncertain contingencies as were not proper to be considered for such purpose, and that the verdict and judgment to that extent rested upon such improper evidence, and are therefore erroneous. It is assigned as error by the appellant to have asked the witness Dohlman, who was one of the commissioners, what was the amount of the award. That would have been error if the witness had been so asked merely to affect his own estimate of the damages, for the award has nothing to do with the case on trial, and the appeal opened the whole case for new evidence. Wooster v. R. Co., 57 Wis. 311. But the witness had given an opinion adverse to the award, and he was being crossexamined, and it might have been proper to call his attention to his award for the purpose of affecting the weight of his testimony if he had joined in the award. In that view we could scarcely say that it was improper and erroneous. But as he had not joined in the award the question was improper. Munkwitz v. Chicayo, etc., R. Co. Opinion by Orton, J. [Decided Nov. 3, 1885.]

CALIFORNIA SUPREME COURT ABSTRACT.

WILL-PROBATE OF DEED AND LETTER AS.-Decedent executed a deed of gift to his' sister, but did not deliver the same. He then wrote to his sister telling her of the fact of the execution, and inclosing a copy

Shaf

The testimony given in this case to prove negligence acter which must have been submitted to the jury. was circumstantial, and it was the province of the jury to determine the facts and all proper inferences from them, establishing the negligence alleged. ter v. Evans, 53 Cal. 32; Chidester v. Consol. Ditch Co., 59 id. 201; N. E. Glass Co. v. Lovell, 7 Cush. 321. The above rule we consider settled law in this State. The verdict of the jury on such evidence should not be set aside unless when in the judgment of reasonable men no such deduction as that expressed in the verdict could be properly drawn from the facts in evidence. The rule is so settled with us. See Chidester v. Consol. Ditch Co., supra; Fernandes v. Sacramento City R. Co., 52 Cal. 45; McKeever v. Market St. R. Co., 59 id. 300; Longenecker v. Penn. R. Co., 105 Penn. St. 328; Beach Con. Neg., § 161, and cases there cited. McDermott v. S. F. & N. P. R. Co. Opinion by Thornton, J.

[Decided Nov. 21, 1885.]

MICHIGAN SUPREME COURT ABSTRACT.

GUARANTY CONTINUING GUARANTY-WHEN NOT. - A guaranty reciting that A. is about to purchase on credit sewer-pipe of B., and that C. guarantied the payment of all goods purchased by A., or that he might thereafter purchase, held, not a continuing guaranty. The important question in the case is raised by the defendants' fourth assignment of error, and wherein the learned Circuit judge gave his construction of the contract between the parties. Upon this subject he charged the jury as follows: "Now I give you, gentlemen, as the legal construction of this instrumeut, that this was a continuing obligation of these parties to be responsible to this company not exceeding $3,000 for any indebtedness that might exist for sewer-pipe purchased on the credit of Ganser until it should be revoked, until their obligation should be revoked by some notice to the company that they would be no longer responsible." We are

The Albany Law Journal.

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ALBANY, DECEMBER 19, 1885.

CURRENT TOPICS.

MAJORITY of the New York City Bar Association have decided that they would have none of Mr. Field's Code. It certainly was foreseen by Mr. Field that such would inevitably be the result, for the majority of that particular society have long evinced great hostility to Mr. Field's measure. His friends and the friends of the measure did not therefore think his challenge to his enemies was expedient, but Mr. Field is a most courageous man, a born gladiator, invincible and formidable. Yet no man could have spoken with great beauty of style to a hostile jury, or to a judge whose semblance of fairness was politic rather than profound. Chilled by the atmosphere, or hurried into personal encounters, was the inevitable alternative of an appearance in such an arena, and it is to be regretted that the attempt was ever made. Yet not because of the result, for the verdict of a majority of the City Bar Association had long been known. The friends of codification must now rely on the good sense of the plain people of this State, and on the undeniable fact that legal reforms have in all historic instances been promoted by statesmen, and not by the lawyer class, indeed in the teeth of the brightest and most distinguished of them. But Mr. Field is a veteran legislator - he is great as a legislator- and long after his enemies have sought oblivion Mr. Field will rise like a Phoenix from his ashes, and put them all to shame. Still, great as is Mr. Field, the cause which he advocates is greater, above all individuals, above all lawyers. The question is perennial: Shall the people of this State have a simple, concise and useful code of their law? And we shall see that they will answer yes, the factionists of the City Bar Association to the contrary notwithstanding.

It seems to us that the action of the Bar Association was procured by a species of sharp practice. The facts are stated as follows to the Mail and Express, by Mr. Raphael J. Moses, Jr.: "A special notice was sent to each member of the association that the questions to be discussed last night were: First, whether the law ought to be codified as far as possible. Second, whether it was possible to codify the law on three special branches stated in the resolution real property, contracts and bills of exchange. I was in favor of both of these resolutions, and went to the meeting to advocate these views. Instead of the resolution we were invited to discuss being presented, another, and to my mind intensely different question, the advisability of adopting Mr. Field's Civil Code, was presented, without notice to those in favor of its adoption, VOL. 32-No. 25.

and after five hours' struggle by 29 members of the association against 184, to obtain a hearing on the motion we had been notified would be discussed that evening, and had come prepared to meet, the Bar Association refused to hear us at all on the motion we had been invited to discuss, and after refusing to grant even a week's adjournment to enable the advocates of the Field Code to produce the documents to refute the statements contained in the report, forced a vote on the question of the adoption of that report, although it was claimed, believe rightly, that the principal authority against and as far as I was able to remember the report, I the Field Code relied on by the committee, Mr. Pomeroy, had been incorrectly reported, and his views misrepresented." Mr. Moses further says: "I am personally opposed to the adoption of the Field Code, because I believe the codification of the law ought to be intrusted to specialists in each branch, and one branch of the law passed on at a time. I am also opposed to allowing Mr. Field or any one who has been for many years closely identified with one side of a particular branch of the law to act as a codifier of that branch of the law. Had the question been, in my judgment, fairly noticed to the advocates of the Field Code, I would have voted with the majority; as it was, I voted with the minority, as I prefer defeat to victory, which to me seems to have been unfairly obtained." Such tactics as these are discreditable to the grave and dignified leaders of the opposition; they cannot prevail in the long run, and simply go to confirm our reiterated assertions that these men are opposed to all codification. Our New York correspondent gives a more particular account of the meeting.

In the New York Times of December 8th Mr. Chauncey Depew is reported to have uttered some slighting remarks about lawyers' and brokers' combinations by injunctions against corporations. If Mr. Depew so stated, we beg to remind him in behalf of the lawyers that the merger in any form of competing and parallel railroads is contrary to the law and policy of this State. This is a wise, sound policy, and we hope that the attorney-general, at least, will not suffer any invasion of the public rights. Lawyers are not infallible, indeed about matters of legislation and political reforms they are in no country safe criterions. But Mr. Depew's vocation has not been such as to entitle him to condemn those lawyers who oppose corporate outrages and corporate shortcomings.

The death of so distinguished a lawyer as Francis N. Bangs is a great loss to the bar of the city of New York. He was a man of immense fortiter in re, and possessed of a very active and penetrating intellect. His many admirable qualities were generally appreciated. This permits us to express the hope that tributes of respect to deceased lawyers of distinction shall take another form than the pres

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ent. Formerly when the bar of the city of New York was few in numbers a bar meeting was inaugurated by intimate, personal associates of the dead, and the testimonial to the deceased took the form fitted to the smaller social organization. few eulogies were pronounced by those who knew the dead well, and there the matter ended, and oblivion often ensued. In so great a city as New York at present few lawyers now know their dead brothers well, and the eulogies contained in the speeches usual on such occasions consist mainly in a rhetoric founded on de mortuis nil nisi bonum. Oftentimes the speaker, rather than the dead, is the real subject of laudation- for certain minds are strongly attracted by pageants and public occasions. Thus we are painfully reminded of the instance of the local politician who, on hearing of Mr. Buchanan's death, said "another great man dead; it may be my turn next." Let us suggest that in the case of the death of Mr. Bangs the memorial to his professional usefulness take a more permanent form than a meeting, and that an artistic portrait for a public library, or a printed biography, detailing his great professional activity, and the judicial principles he helped to maintain, be made, so that it may be more enduring than the empty, and often painful generalities of those who love the occasion rather than the honored dead. Our New York correspondent gives an interesting account of the meeting.

The last act of the tragedy associated with the Wall street career of the great soldier, General Grant, seems coming to a close. Let us hope it may teach its useful lesson to youth and to age, and that a chapter of accidents may not bury in a ruin of public clamor and distrust those innocent of real crime. It has always seemed to us that if the business of the firm of Grant & Ward was, as is said, all the figment of Ward's own brain, still those outside of the firm were perhaps justified in treating the business as a reality. Why impute blame or omission to one who was not willing to believe that so great a firm could err? Mayor Grace's arrest of the editor of the New York World simply brings to us the reflection that Mr. Grace's political career rather than his business career was defective. A great political party cannot be wrecked by one man with the aid of a brace of lawyers. The voters of America are not proletaries to be tried here and there, and they know in the long run their true friends. As to the sharers in the imaginary profits of Grant & Ward it seems to us that the true way to get rid of this business, and a restitutio in integrum, is for the receiver of the Marine Bank to treat all the sharers in the profits of Grant & Ward as partners of the firm. This is a far easier way than imputing guilty knowledge in a case where confidential trust may have been legitimately reposed from unfortunate

circumstances.

IN

NOTES OF CASES.

N Lucas v. Bishop, Tennessee Supreme Court, September, 1885, 20 Rep. 702, it was held that the conveyance of a spring carries with it no easement in the shade of a tree ten feet distant on other lands of the grantor. The court said: "The reservation and grant are not of the use of the spring, but of the spring itself, and convey the land which the spring occupies. The grant includes what is reasonably necessary to the enjoyment of the thing granted and appurtenant thereto. 3 Wash. Real Prop. 336, 340 (3d ed.). A thing appendant or appurtenant is defined to be 'a thing used with and related to, or dependent upon another thing more worthy, and agreeing in its nature and quality with the thing whereunto it is appendant or appurte nant.' It results therefore say the authorities, that land can never be appurtenant to other land, or pass with it as belonging to it. Id. 340. The grant being of the land containing the spring, which would no doubt include so much of the land as was essential to the enjoyment of the spring in the usual mode, would not extend to other land beyond what was reasonably necessary to its use. A tree is, of course, a part of the land on which it grows, although the roots below and the branches above may extend beyond the boundary of the tract. If therefore the tree in controversy was not on the land covered by the grant of the spring it could not be claimed as appendant or appurtenant to the spring, or essential to its enjoyment. The proof does not show that the tree was inclosed by the fence which the plaintiff erected around the spring, nor does the plaintiff claim it as being on his land. The fair inference, on the contrary, is that the damage insisted upon was merely caused by the loss of the shade of the heavy top and overhanging branches. And although the roots of the tree extended to the spring it is not shown that they were material to the walls of the spring. Nor if they were, is it seen how the fact would give the plaintiff any right to the tree any more than the existence of a rim of limestone at the spring would give a right to the limestone under the tree. That the shade of a tree may happen to extend to a spring cannot possibly be held to make the tree an appurtenant to the spring, even without the general rule already cited." In Barrett v. Bell, 82 Mo. 110, it was held that the lease of a house and lot for hotel purposes would not carry as appurtenant a kettle situated on the lessor's adjoining land not necessary, although convenient for the use of the hotel, and formerly used with it.

In Walter v. Emott, Ct. of App., July, 1885, 53 L. T. Rep. (N. S.) 437, the principal proprietor of the Times newspaper and his predecessors for nearly a century published three times a week, at the price of 2d., a newspaper for many years under the title of the Evening Mail, and subsequently under the name of the Mail. The newspaper consisted of a