said defendant the sum of $1,000, so found due as aforesaid by the verdict of a jury in this case, together with costs of suit, taxed at $To the introduction of this judgment the defendant objected, for the reason that there was a variance between the judgment and the recitals in the execution; which objection was overruled, and defendant excepted. If this variance will not excuse the sheriff for not having returned the execution within 60 days, as required by law, then the judgment of the court must be affirmed; for the law gives no discretion to the court, and the defendant has shown no other reason why the execution was not returned that would excuse him. The statute under which this motion was made is of a penal character; and, like all other penal proceedings, in its enforcement strict compliance with the requirements of law must be observed. And when a person desires to avail himself of this proceeding, he cannot complain if he is required to strictly conform to the letter of the law; for when it is enforced in many instances it works great hardship to the officer, who, while being negligent in doing some duty required of him, yet out of that negligence no injury has resulted to others. And while, as before stated, the court has no discretion in enforcing such proceedings, yet it ought to carefully guard against allowing amercements except in cases where the proceedings have been regularly and strictly followed. În this case the record further shows that the plaintiff suffered no loss by reason of the failure to return the execution, as it was clearly shown at the rendition of the judgment that the judgment debtor was insolvent. In Duncan v. Drakeley, 10 Ohio, 46, the court said: "In proceedings under the statute authorizing the amercement on an officer great strictness is required, and he who would avail himself of the remedy therein provided must bring himself both within the letter and spirit of the law. It is right that it should be so, because the remedy is summary, and in its consequences highly penal. There is no trial by jury, and little, if any, discretion left to the court." So also, in Moore v. McCliff, 16 Ohio St. 50: "The plaintiff's right to demand a judgment of amercement, in this case, can rest on no equitable ground, for the neglect of the official duty of which she complains has done her no injury. The execution debtor was wholly insolvent when the judgment was recovered against him, and has continued to be so ever since. Her rights then are purely statutory. And if she makes a clear case for amercement under the statute, it is no defense against her claim that she has not been damnified. The statute under which she proceeded was of a penal character; it affords a summary remedy, without trial by jury, for official delinquency; and, without regard to the amount of damages resulting in fact from such delinquency, it leaves no discretion to the court as to the amount of judgment to be rendered against the delinquent officer." See, also, Bond v. Weber, 17 Kan. 410.

Applying these rules to this case, we find that if the sheriff is to be amerced it must be for the amount named in the execution, which included $22.65 more than that set out in the judgment. Plaintiff insists that he has done all that was necessary for him to do; that the law enjoined and made it a part of the duty of the clerk of the court to tax the costs and insert them in the judgment. Section 593a of the Code of Civil Procedure is as follows: "The several clerks of the district courts shall tax the costs in each case, and insert the same in their respective judgments, subject to retaxation by the court on motion of any person." This statute clearly makes it the duty of the clerk of the court to tax the costs, and when so taxed to insert them in the judgment, and this ought to have been done before the execution issued. No presumption can be entertained in this case. The plaintiff must bring himself clearly within the rules as heretofore suggested. It was his right to have the costs included, and if he desired to enforce a penalty he ought to have seen that the execution was properly issued for the amount named in the judgHe could have had the judgment corrected and the costs inserted, and then his execution would have been properly issued on the judgment; and be

ment.

cause the clerk failed to do his duty will not excuse the plaintiff from proceeding to have the costs taxed. The clerk, like the sheriff, failed to do what the law made it his duty to do; but this failure of the clerk will not authorize the plaintiff to amerce the sheriff, and will not warrant the court to presume that the costs were properly taxed. If that were true, then a sheriff might be amerced upon an execution issued where no judgment had been rendered, simply because the sheriff refused to return the execution. The law would make it his duty to return the execution in that case, although no judgment had been rendered, as it would if issued upon a proper judgment. But where a plaintiff is seeking to amerce a sheriff he must show a valid judgment, and the execution must conform strictly to that judgment. If property had been found subject to seizure on this execution, and the sheriff had levied thereon, and collected the judgment, he would have collected $22.65 more than any judgment had been rendered for. This execution with this excess therein was suflicient to excuse the sheriff for not sooner returning the execution.

We are therefore of the opinion that the judgment of the court below was wrong, and we recommend that the cause be reversed, and remanded to the court below with an order to render judgment for the defendant below for costs.

BY THE COURT. It is so ordered; all the justices concurring.

MISSOURI PAC. R. Co. v. DELANEY.

(Supreme Court of Kansas. January 7, 1888.)

EMINENT DOMAIN-COMPENSATION-SPECIAL FINDINGS AS TO ELEMENTS OF DAMAGES. On the trial of an appeal from the award of commissioners appointed to condemn a small triangular piece of ground for the use of a railway company, the jury made special findings as to elements of damage, estimating inconvenience, disfigurement, and damage, and stating the amount of each. They were not required to make the special finding as to damage more definite, or to recite and estimate other elements than those two mentioned, but a motion was made to strike them all out. Held that, in this particular case, there were other elements of damage than inconvenience and disfigurement, and that it was not error to overrule the motion.1 (Syllabus by Simpson, C.)

Commissioners' decision. Error to district court, Atchison county; DAVID MARTIN, Judge.

This was an action brought by the Missouri Pacific Railway Company to condemn certain land of Martin Delaney. From the award of the commissioners, the railway company brings writ of error.

B. P. Waggener, for plaintiff in error. Hudson & Tufts, for defendant in

error.

SIMPSON, C. This was an appeal from the award of commissioners appointed to condemn a small piece of land in the city of Atchison for the use of the railway company.

There are but two assignments of error; and the first is as to the admissibility of certain parts of the testimony of one John Barry, a witness for the plaintiff below. He had stated that he knew the property in controversy; had lived in Atchison since 1872; that he knew the market value of the property before the railway company "took any off;" that the value of the strip taken was from $90 to $100; that the value of the property after the taking off

As to what elements of damage may be considered in awarding damages to the owner of land taken for a railroad, see Railroad Co. v. Kuhn, (Kan.) ante, 75; Railroad Co. v. Kregelo, (Kan.) 5 Pac. Rep. 15.

the strip was so much; that the property was used as an hotel; and was then asked, "What would be the principal damage to the property?" This question was objected to "as calling for the opinion of the witness," "not a proper subject of expert testimony," "incompetent, irrelevant, and immaterial. The objections were overruled, and exceptions noted. He answered, "The closer the road comes to the property the worse and more damage it does." This is the particular question and answer complained of. The rule is for the witness to state the value just before and just after the appropriation, and the difference is the amount of damages that the witness fixes. Is it improper to ask him what is the principal damage; that is, what acts tend to form his estimate? What things does he take into consideration in fixing the difference in value just before and just after the taking? All such questions are proper on cross-examination; why not in chief? It may be a matter of opinion, (in the nature of things it probably is,) but so were the answers to preceding questions, and this necessarily grew out of them. We think the question was proper, even if the answer was not directly responsive. The answer was a statement within the common knowledge of any ordinary man. It cannot be, in view of all the other evidence in the case, if the question was improper, that it was such a material or prejudicial error that the case ought to be reversed for that reason.

The other assignment is that the court erred in overruling the motion of the plaintiff in error to strike out of the general finding of the jury the following items, to-wit: The item for disfigurement, $100; the item for inconvenience, $100; the items for damages, $150. The jury were requested to answer the following question: "No. 6. What are the several elements or sources of damages which make up the aggregate of the answer to special question No. 5, and how much of said aggregate is made up by each of said elements or sources of damage? Answer. Disfigurement of property, and inconvenience and damage of sale;" giving the figures for each as above stated. In answer to question No. 5, the jury fix the amount of real and actual damage to the remainder of the property at $350. They fix the value of the land taken at $75. The property was a lot on the corner of Main and Fourth streets in the city of Atchison, 50 feet front by 90 feet. There is an hotel on the lot, 50 by 70 feet, built of brick, two stories and a basement, containing about 30 rooms, constantly in use for all the purposes of an hotel. The strip of ground condemned lies in the rear of the hotel building, had been used for a yard, had a coal-house and chicken-coop thereon. The portion taken was a strip triangular in form, being 4 feet wide at one end, and 12 feet 6 inches at the other, containing about 25 square feet of ground. It is said that the two items of inconvenience and damage should be stricken out. Counsel for plaintiff in error contend that, according to the decisions of this court, inconvenience as an element of damage is only allowed where the land is cut in two, so that the tract is divided, and one part rendered less easy of access, on account of the road-bed or the taking of the right of way. It may be that in the reported cases this is the only example of inconvenience that is cited and commented on, but it surely does not require much argument to show that the lessening of the area of the yard, the dangers and difficulties of approach from that direction, the loss of room for coal-houses, chickencoops, and other necessary and indispensable out-buildings, and many other things, are to be considered in determining inconvenience as an element of damage. Disfigurement is an element, in this case, in its most simple form. The usual proportion of a town-lot in the form most universally used, and accepted as best by the experience of many years, is destroyed by taking a triangular portion of it and dedicating it to an entirely different use than that of the remainder of the lot,--a use so inconsistent with that of the remaining portion of the lot, that there can be no benefit derived from mutual effort or combined interest. The portion taken is to be used for the track of a rail

road. It is as pure an example of disfigurement as can be imagined, as distinguished from inconvenience. As we regard it, inconvenience is experienced in the use and enjoyment of property, but disfigurement affects the property itself. Of course, the value of the piece taken is adjudged and paid, but the irregular, ill-shaped remainder is a perpetual reminder that disfigurement is an element to be taken into consideration in estimating damage. There are very many other things that might have been considered by the jury as elements of damage, than disfigurement and inconvenience, that are grouped together in the last item of "damage, $150." No objection was made by counsel to the form of the answer, and we do not now understand him as objecting on that account; his contention seems to be one of logical deduction, rather than of mere formality. In other words, the "marrow" of his proposition is that when inconvenience is assessed at $100, and disfigurement at $100, the elements of damage in this particular are exhausted. We do not think so. Among the various, if not many, things that might operate to the prejudice of the owner of the irregularly shaped lots, bounded on two sides by railroad tracks, is the effect these things would have, not on his possession and enjoyment, but on the market value of the property, its undesirableness for all kinds of residence or business purposes, the annoyance of the trains, crossing the tracks to approach it from two sides, and the danger attending the operation of the railroad. Where a part of a brick-yard was taken, and the owners prevented from enlarging it, 11 Amer. Ry. Rep. 364; the increased hazard of fire, causing increased rates of insurance, Harrington v. Railroad Co., 17 Minn. 215, (Gil. 188;) Colvill v. Railway Co., 19 Minn. 283, (Gil. 240;) Curtis v. Railroad Co., 20 Minn. 28, (Gil. 19;) also injuries to the premises, as a house of public entertainment, Railroad Co. v. Partlow, 5 Rich. Law, 428; White v. Railroad Co., 6 Rich. Law, 47; Railroad Co. v. Blake, 12 Rich. Law, 634. However speculative or inappreciable some of these items may be, and more especially the latter, they are nevertheless held to be subjects of compensation in the courts. 1 Ror. R. R. 388, and authorities cited. The jury estimated inconvenience, disfigurement, and other damage. If the plaintiff in error was dissatisfied with this answer, he should have asked the court to send the jury back, and require them to specify the other elements of damage besides the two mentioned. This is not done, but a motion is filed, after the jury is discharged, to strike them all out of the special verdict. If insisted on, the jury might have enumerated other elements.

We do not see that such material error is shown as compels us to reverse the case. While the record shows that a judgment was rendered, it nowhere recites it. A literal transcript of the precise judgment, in all its terms, ought to be contained in the case made; and it may happen that, if it is not, this court would not consider the error assigned. Here, there is a specific averment that the court rendered a judgment on the general verdict, but the judgment itself ought to have been set out word for word.

We recommend an affirmance of the judgment.

BY THE COURT. It is so ordered; all the justices concurring.

SHARON . SHARON. (No. 9,984.)

(Supreme Court of California. January 31, 1888.)

1. MARRIAGE-WHAT CONstitutes-SecRET AGREEMENT.

Civil Code Cal. § 55, provides that consent alone will not constitute marriage, but must be followed by a solemnization, "or by a mutual assumption of marital rights, duties, or obligations." Held, that under this provision it is not necessary to the

validity of the marriage that the relation of the parties be made public; but, evidence of consent being given, proof of cohabitation is sufficient to show a mutual assumption of marital rights and duties.1

2. DIVORCE-ALIMONY-ORDER DIRECTING PAYMENT TO THIRD PERSON-FEES OF UNNECESSARY COUNSEL.

Civil Code Cal. § 137, provides that in an action for divorce the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to prosecute or defend the action. Held, that the money must be paid to the wife; and it is not within the discretion of the court to order it paid to any other persons, nor to allow the wife money for unnecessary counsel in the action. 3. SAME AMOUNT OF ALLOWANCE.

Plaintiff and defendant had been secretly married, and the wife agreed to keep the marriage secret. The husband agreed to allow the wife a certain amount of money per month until the marriage was acknowledged. Held, in an action for divorce, upon application for temporary alimony, that it was an abuse of discretion to allow the wife more than the husband had agreed to allow her until the marriage was acknowledged.

THORNTON, SHARPSTEIN, and MCFARLAND, JJ., dissenting.

In bank. Appeal from superior court, city and county of San Francisco; J. F. SULLIVAN, Judge.

Action for divorce and alimony, brought by Sarah Althea Sharon against William Sharon. Judgment was rendered for the plaintiff, and defendant appealed. Pending the appeal, defendant died, and Frederick W. Sharon, executor of William Sharon, was substituted as party defendant. For former opinions in this case, see 7 Pac. Rep. 456, 635, 639; 8 Pac. Rep. 614, 709; 9 Pac. Rep. 187.

W

W. H. L. Barnes, Oliver P. Evans, J. P. Hoge, and H. J. Kowalsky, for appellant. Tyler & Tyler, Flournoy, Mhoon & Flournoy, D. S. Terry, and Walter Levy, for respondent.

MCKINSTRY, J. The appeals herein were taken in the life-time of William Sharon, the original defendant. The first is from a judgment determining and declaring the validity of an alleged marriage of plaintiff and defendant; decreeing a divorce, and that plaintiff is entitled to one-half of the community property. The second appeal is from an order directing the payment of counsel fees and alimony. The court below found:

(2) "That on the twenty-fifth day of August, A. D. 1880, the plaintiff and defendant each signed a certain declaration of marriage, in the words and figures following, to-wit:

"In the city and county of San Francisco, state of California, on the twenty-fifth day of August, A. D. 1880, I, Sarah Althea Hill, of the city and county of San Francisco, state of California, age twenty-seven years, do here, in the presence of Almighty God, take Senator William Sharon, of the state of Nevada, to be my lawful and wedded husband, and do here acknowledge and declare myself to be the wife of Senator William Sharon of the state of Nevada. SARAH ALTHEA HILL.

"AUGUST 25, 1880, SAN FRANCISCO, CAL. “I agree not to make known the contents of this paper, or its existence, for two years, unless Mr. Sharon himself see fit to make it known.

"S. A. HILL.'

An actual ceremony of marriage is not essential to the establishment of the relation of husband and wife. It is sufficient that the parties, no impediment existing, consent to take each other as husband and wife, and cohabit as such. Peet v. Peet, (Mich.) 18 N. W. Rep. 220. As to the requisites of such agreement, see Clancy v. Clancy, (Mich.) 33 N. W. Rep. 891. A written contract of marriage, although not provided for by statute, is a good contract of marriage, per verba de præsenti. Mathewson v. Foundry Co., 20 Fed. Rep. 281. By the laws of Arizona, marriage may be established by contract, without ceremony. U. S. v. Tenney, 11 Pac. Rep. 472. So, also, in Kansas, State v. Walker, 13 Pac. Rep. 279. Such is also the law in many other states, in the absence of statutory regulations. Maryland v. Baldwin, 5 Sup. Ct. Rep. 278. But common-law marriages are not recognized as valid in West Virginia. Beverlin v. Beverlin, 3 S. E Rep. 36.