and on foot, on said sidewalk, as she lawfully might, and that a large quantity of ice, which had accumulated and formed on the said building of the defendant, was precipitated and fell upon the plaintiff. The second count is like the first, except that it contains an allegation that the roof and eaves of the defendant's building project over and into Elm street, and also the following: "And while so passing along and on said sidewalk, as aforesaid, a large quantity of ice and snow, which had accumulated on the roof of the said defendant's said building, and which the said defendant, though well knowing thereof, had long and negligently suffered to be and remain upon the roof and eaves of the building aforesaid, endangering the life and limbs of those having occasion to pass over and along said street, was precipitated and fell upon the plaintiff, striking her upon the head," etc. The defendant demurred, generally, to each of the counts of the declaration, and the questions thereon arising were reserved. Morrison, Stanley & Hiland, for the plaintiff; S. N. Bell, for the defendant. LADD, J.-In the trial of this cause, I think it will be for the jury to say whether the injury of which the plaintiff complains was caused by the negligence, that is, the want of due care on the part of the defendant. I suppose the fact that ice slid from the roof upon the sidewalk on this particular occasion is evidence to be considered on the general question of the defendant's negligence; and I see no reason why the jury might not legally find negligence from that circumstance alone, if unexplained. It was the general duty of the defendant to prevent the sliding of snow and ice from her roof upon the sidewalk; she was bound to guard against such a result by the exercise of due and proper care. When, therefore, the thing she was thus bound to guard against and prevent, happened, I should say res ipsa loquitur, and if no explanation were offered, the jury might find negligence without other proof. It is much like the recent case of Kearney v. The London, Brighton, etc., Railw. Co., Law Rep., 6 Q. B. 759. There, as the plaintiff was passing along a highway under a railway bridge of the defendants, which was a girder bridge resting on a perpendicular brick wall with pilasters, a brick fell from the top of one of the pilasters on which one of the girders rested; a train had passed just previously. The question was, whether, there being no other evidence of negligence, a verdict for the plaintiff could be allowed to stand; and it was held that the defendants being bound to use due care in keeping the bridge in proper repair, the falling of the brick was evidence from which the jury might infer negligence in the defendants. It has been thought that the doctrine laid down in Rylands v. Fletcher, Law Rep., 1 Exch. 65, affirmed on error, Law Rep., 3 H. L. 330, is applicable to cases of this sort. In that case the defendants constructed a reservoir on land separated from the plaintiff's colliery by intervening land; mines under the site of the reservoir, and under part of the intervening land, had been formerly worked, and the plaintiff had, by workings lawfully made in his own colliery and in the intervening land, opened an underground communication between his own colliery and the old workings under the resorvoir. It was not known to the defendants, nor to any person employed by them in the construction of the reservoir, that such communication existed, or that there were any old workings under the site of the reservoir, and the defendants were not personally guilty of any negligence; but, in fact, the reservoir was constructed over five old shafts leading down to the workings. On the reservoir being filled, the water burst down these shafts, and flowed by the underground communication into the plaintiff's mines. Held, reversing the judgment of the Court of Exchequer (3 H. & C. 774), that the defendants were liable for the damage so caused. In the opinion of the court, by Blackburn, J., the decision is placed distinctly and emphatically on the ground that one who, for his own purpose, brings upon his land, and collects and keeps there, anything likely to do mischief if it escapes, is prima facie liable for all the damage which is the natural consequence of its escape. Water is, in this respect, put in the same category with beasts wont to rove and to do mischief, filth and noxious odors. And the same view was taken by Lord Cairns, Chancellor, and Lord Cranworth, who delivered opinions in the house of lords. I am not aware that any court on this side the Atlantic has gone so far as this; and I apprehend it would be a surprise, not only to that large class of our people engaged in various manufacturing operations, who use water-power to. propel their machinery, and for that purpose maintain reservoirs, but to the legal profession, to hold that, in case of the breaking away of such reservoirs, there is no question of care or negligence to be tried, but that he who has thus accumulated water in a non-natural" state on his own premises is liable, at all events as matter of law, in case it escapes, for the damage caused by it. See Mayor of New York V. Bailey, 2 Denio, 433. But however that may be, it is to be borne in mind that ice and snow, although the material of which they are composed is water, are, nevertheless, solids, and, as such, are no more liable to escape control and pass upon the premises of an adjoining proprietor and there do mischief, than any other solid bodies of a similar material construction, that is, of like specific gravity and external form. Water, on the other hand, being a liquid, the particles of which move easily upon each other, is constantly seeking a level, and so exerts a constant force which must be constantly restrained; and all the mischiefs of an inundation are certain to follow the breaking away of the barriers erected for its control. This is its nature as much as it is the nature of cattle to rove and eat a neighbor's corn, or of filth from a privy to be offensive, or of unwholesome stenches to be diffused, so as to contaminate the air which a neighbor is compelled to breathe. has a right to make a reasonable use of his property; and that As a general proposition, it is safe to say that the owner of land surface as to an unlimited distance below. He may not only dig right extends as well to an unlimited distance above the earth's for a foundation and a cellar as deep as he pleases, but he may erect his building as high as he pleases into the air, subject all the time of course, to a proper application of the doctrine contained in the maxim sic utere tuo ut alienum non lædas. The erection and maintenance of buildings for habitation or business, is a customary and reasonable use of land. Of course the land owner, in mak ing such erections, must be held to the exercise of all due care against infringing the legal rights of others, to be determined by the nature of the rights and interests to be affected, and all the circumstances of each particular case. In this climate, where snow is sure to fall in considerable quantities, at intervals during a considerable portion of the year, and equally sure in the end to melt and find its way back into the earth, in the form of water, or to ascend into the clouds as vapor, the builder must undoubtedly be held to the exercise of all due and reasonable care against injury to others from the effects of these natural causes, operating, according to the known laws of nature, in the situation of things as altered from their natural state and condition by his own acts. I think this case falls within that class of cases referred to by Bronson, C. J., in his elaborate and useful opinion in Radcliff's Executors v. Mayor of Brooklyn, 4 N. Y. p. 200, where it is held that a man will not be answerable for the consequences of enjoying his own property in the way such property is usually enjoyed, unless an injury has resulted to another from the want of proper care or skill on his part. The doctrine is clearly stated in the first head-note to Rylands v. Fletcher, as reported-Law Rep. 3 H. L. 330-as follows: "Where the owner of land, without wilfulness or negligence, uses his land in the ordinary manner of its use, though mischief should thereby be occasioned to his neighbor, he will not be liable in damages." This is a broad statement of a general legal proposi-gree of care necessary to the exigency, and in the circumstances tion, and must not be regarded as an expression of opinion upon in which he was placed." any specific question of evidence that may arise on the trial of this case. It is quite possible these views may be found, on careful examination, not to be so much at variance with the recent decisions in Massachusetts, in the case of Shipley v. Fifty Associates, 101 Mass. 251, and 106 Mass. 194, as they at first appear, although both the learned judges who delivered the opinions of the court gave expression to remarks implying that the doctrine of Rylands v. Fletcher may have application in such a case,—to which, with very great diffidence, I find myself unable to agree. It appears to me that the eminent judge who delivered the opinion in this case has given in these few words a clear and intelligithe case of Brown v. Collins, 53 N. H. 442, the doctrine laid ble statement of a principle of law of universal application. In down by Shaw, C. J., in the case of Brown v. Kendall, 6 Cush. elaborate and exhaustive discussion, and must now be taken to 292, and above cited by us, is affirmed and approved after a very be the law of New Hampshire. There may be cases where the very fact that the accident has happened may justly be considered as evidence tending to show neglect. In the case under discussion, it is not alleged that the defendant, in erecting and maintaining her building, had violated any local statute or by-law of the city of Manchester, nor does it appear that the act of erecting and maintaining the building was unlawful,—so that the defendant is not liable unless there has been a want of due care; and the first count of the declaration, which seeks to charge her absolutely, can not be maintained. By Gen. Stats., ch. 70, sec. 11, the erection or continuance of a building upon or over any highway is punishable by indictment and fine, and the building so erected is a nuisance. If, therefore, the building of the defendant is, as alleged in the second count of the plaintiff's declaration, so built as to project over the highway, it is a nuisance, and the maintaining of it an indictable offence. This being so, the injury to the plaintiff would appear to have been produced by the unlawful act of the defendant, and she would be liable without proof of negligence. If a man must, at all hazards, keep upon his own premises the snow which is arrested in its natural fall to the earth by the roof of his house, it seems to me some very inconvenient, not to say absurd, consequences may follow. We all know that in this climate a heavy fall of snow, is not unfrequently followed immediately by wind; and when that happens, it is a probable if not an inevitable consequence that the snow, which has been arrested in its natural fall, and accumulated on roofs, will be carried off and deposited by the wind in a different place from where it would have finally rested but for the roof,—hence, in very many instances, the act of the land-owner in maintaining his building, concurring with the natural operation of the elements, will cast upon the premises of an adjoining proprietor snow with which, otherwise such adjoining proprietor would not have been annoyed, incumbered, or damaged. I do not see why such a doctrine, if carried to its logical results and strictly applied, would not practically prevent the building of cities. I think the injury which results in such a way, from a customary and reasonable use by the land owner of his FOSTER, C. J., C. C.—I agree with my learned brethren that property, he using due care (which would doubtless be a very high the first count in the plaintiff's declaration can not be sustained, degree of care), to guard against damage to his neighbor, does not and that the demurrer thereto must be allowed. The second furnish a legal course of action, but must be regarded as dam- count not only alleges positive negligence and want of proper num absque injuria. I make this remark simply with reference to care in suffering the snow and ice to accumulate upon her buildthe supposed application of the doctrine of Rylands v. Fletcher, ing and to remain there, and, moreover, that the building was "so to this case, and I purposely abstain from any extended discussion constructed" as to obstruct the fall of snow and ice and cause it of the legal questions which may arise in the case, because those to accumulate thereon, and to cause ice to form on the roof and questions can be better and more intelligently considered when be precipitated upon the sidewalk below, but it also contains the the actual facts, as shown upon a trial, are before us. distinct allegation that "the roof and eaves of the defendant's The conclusion I come to is, that the demurrer must be sustained building "project over and into Elm street," thus charging the as to the first count, and overruled as to the second. defendant with maintaining a nuisance, in violation of express statutory law. The demurrer to the second count must, therefore, be overruled. If the allegation of the projection of the eaves and roof over and into the street should be proven on the trial of the cause, the plaintiff will be entitled to a verdict, without any evidence of actual negligence or want of care on the part of the defendant be CUSHING, C. J. The declaration contains two counts. In the first, it is alleged that the defendant's building is placed by the side of the highway, and so constructed that the snow and ice may accumulate upon the roof, and from the roof fall into the street; and it does not allege any negligence or want of due care in the construction or management of the building, and therefore assumes as law, that if under any circumstances, snow and ice should falling required. from the roof and injure a passenger in the highway, the defendant would be liable absolutely. The second count alleges that the roof was constructed so as to overhang the highway, and that, through the negligence of the defendant, the snow and ice fell into the street and injured the plaintiff. In Brown v. Kendall, 6 Cush. 292, Shaw, C. J., says, arguendo: "If in the prosecution of a lawful act, a casualty purely accidental arises, no action can be supported for an injury arising therefrom." In using this term, ordinary care, it may be proper to state that what constitutes ordinary care will vary with the circumstances of cases. In general, it means that kind and degree of care which prudent and cautious men would use, such as is required by the exigency of the case, and such as is necessary to guard against probable danger." "To make an accident, or casualty, or as the law sometimes states it, inevitable accident, it must be such an accident as the defendant could not have avoided by the use of the kind and de The existence of the nuisance, and the injury therefrom to a person using ordinary care on his part, are sufficient to sustain an action against the author or maintainer of the nuisance. Shearman & Redfield on Negligence, sec. 363, and authorities cited. Elliott v. Concord, 27 N. H. 208. Independently of this consideration, I am not prepared to hold that the mere fact of the injury to the plaintiff from the falling of the ice from the defendant's roof is anything more than evidence competent for the consideration of the jury upon the question of the defendant's negligence. I am not prepared to say that it is prima facie evidence of negligence, in so far as evidence thus denominated is sometimes said to be sufficient to require the defendant to assume thenceforward the burden of proof, or to rebut any presumption arising from the fact. The fact raises no presumption, nor touches the burden of proof. It is evidence simply, which, with or without other evidence bearing upon the general question of negligence, the jury may consider and weigh. The general reasoning of my brother Ladd, as expressed in his opinion, seems to me logical and sensible. Certainly it is not op posed to any authority in this state, though its results have not been expressed as settled law. No more appropriate encomium can be said, than was spoken of him by Judge Porter, during his summing up to the jury. ComDemurrer sustained as to first count, and overruled as to menting upon the participants of the case, he took occasion to second. say: Often the great work, the results of which are recognized by all men, are A Bird's-Eye View of the Court and Counsel in credited mainly to those who are the least deserving, and my friend Abbott the Tilton-Beecher Case. X. JOHN L. HILL. In a case of the magnitude and multifariousness of the one under consideration, there is necessarily a vast amount of side-work, office labor, the closeting of witnesses, and the searching out of testimony, and the like, in which this counsel has taken a lively part. John L. Hill, is a native of Montgomery county in New York state, and graduated at Union College. He is the son of the late distinguished advocate, Nicholas Hill, who was for many years widely known in the western part of that state, and in Albany and Saratoga, where his practice largely retained him. He was a man of infinite wit, and before a jury had a most engaging manner and winning enunciation. 44 Of the father of the subject of our sketch, Mr. Charles O'Connor has somewhere said: When summoned from earth, though he had only attained his fifty-third year, he had confessedly the first place at the bar. A purity of life that knew no blemish; an integrity that no man ever impeached, even in thought; a love of justice that shone out in every word he uttered as an advocate or as an advisor; a calm, clear-sighted, investigating intellect, ripened to fullest maturity and energy by fixed habits of intense application, which never left, in any case, a relevant fact undiscovered, or overlooked a pertinent legal principle." Hence, with such an example constantly before him, it is not surprising that his son should possess application and analytical modes of thought, and thus he was well fitted to work up the facts in the great crim. con. case. Three earnest workers will do as much actual labor as six single handed. And as the preacher says (Eccles. iv. 9, 10): “Two are better than one, because they have a good reward for their labor, for if they fall, the one will lift up his fellow." The old proverb, thus applies :-Two heads are better than one. Two dry sticks will kindle a green one. Or, as some one has poetically put it: "Good riding at two anchors, men have told, For if one break, the other may hold." Our subject is a man of robust physique and character; large features, full habit, partly bald, above the medium height, sandy complexion, and, taken together, is altogether pleasing as a companion, gentleman and advocate. In the limited part he took in way of examining witnesses, he manifested a vigorous, robust, bluff manner, and incisive style of putting questions, and of commenting upon the evidence. XI. AUSTIN ABBOTT. This gentleman, whose name and fame is country-wide, from his extensive authorship of law-books, needs no extended notice at our hand. This wonderful litigation, occupying about six months of time, from the date of its being called on the calendar to the giving of the case to the jury, has made some men famous, and some the opposite. Although Mr. Abbott's voice has scarcely been heard in the court room above a whisper, he has been constantly busy-has been the silent, earnest worker up of the volume of points which have been raised and discussed by the senior counsel for the defence, will pardon me for saying at this moment, that if your verdict shall vindicate Henry Ward Beecher from this foul charge, not even my friend Shearman, with all his devotion and ability; not even Gen. Tracy, with a chivalric fidelity that has ennobled him in the estimation of his brethren here and everywhere, and has made us love and honor him; not even the splendid ability of my senior associate who is to follow me, will have contributed as much to that result as one [turning to Mr. Abbott] whose voice you have scarcely heard from the commencement of this trial. I desire to avail myself, as I am compelled to do, and as Gen. Tracy was from time to time, of his researches and his groupings of this evidence, for the purpose of bringing to your minds facts which should be controlling and vital in the discussion of this case.. Mr. Abbott was born in Boston (where, as John G. Saxe says: "Once born, needs no second birth a conclusion rather questionable, we think), forty-four years ago, and graduated at the 1852 he was admitted to the bar and began his profession with University of the city of New York in his twentieth year. In drew from active practice to enter upon the arduous task of his elder brother, Benjamin Vaughn Abbott, but soon after withcompiling the New York Digest—a work of great worth and usefulness to the profession. Some years afterward he edited the National Digest of United States Reports and Statutes, and a work on United States Courts Practice. assistance to his associates, his great familiarity with cases and As an advising counsel in this case, he has been of incalculable authorities illustrative of certain law points being remarkable. Ask him for an authority on a given point of law, and he can at once refer you to the case and volume containing it, so well acquainted is he with the current run of decisions. tache, of sandy or auburn complexion, thin features and of sedate He is above the average height, wears side whiskers and musmaking briefs, rather than in making speeches as an advocate. cast of countenance. His forte lies in working up law points and for the defence, Mr. Abbott presented fifty-four requests to the At the close of this case-after the summing up of Mr. Beach court to charge, covering all the points raised pro and con in the case, fifteen of which were charged as matter of law, and ten rejected as improper. After presenting certain points to the effect that innocence is presumed until guilt is affirmatively established; that there was not sufficient proof to sustain a verdict for the plaintiff; that the defendant is not required to prove his innocence, which latter "point of course the court allowed and charged; that the verdict must be for the defendant, unless the result of the whole evidence be such as to produce in the deliberate conclusion of the jury a legal certainty of guilt, Citing Clare v. Clare, 19 N. J. Eq. 37; Cooper v. Cooper, 10 La. R. 249; Bentley v. Bentley, 7 Cow. R. 701; Smith v. Paese, 27 N. Y. Rep. 45, the counsel gave as the twenty-first point which the court charged: "No charge or confession on the part of the plaintiff's wife is evidence against the defendant," and cited Baker v. Morley, Buller, N. P. 28; McVey v. Blair, 17 Ind. 590; Montgomery v. Montgomery, 3 Barb. Ch. 133, and other authorities. Request number thirty-seven was: "Testimony of witnesses, that a party charged, in conversation admitted his guilt of adultery, is the weakest and most dangerous evidence that is received by law." Greenl. Ev. by Redf. sec. 200; Malin v. Malin, 1 Wend. 625, 652; Law v. Merrills, 6 Wend. 268; Earle v. Picken, 5 Carr. & P. 542; Myers v. Baker, Hardin, 544; Stone v. Ramsey, 4 Monroe, Ky. 237; Carr v. State, 18 Texas, 387; Horner v. Speed, 2 Patt. & H. 616. A point was charged to the effect that " none of the defendant's letters and writings put in evidence, upon their face as matter of law, import adultery or sexual indelicacy, or furnish any proof of either, by themselves;" that they only declare and express the fend where he was not assailed, is one which he must regret himemotions of the defendant. The forty-sixth request was: "The fact that the plaintiff continued to cohabit with his wife, after her alleged communication to him of the charge, and up to July, 1874, is cogent evidence against the truth of the present charge." Citing State v. Marvin, 35 N. H. 22; Harris v. Rupel, 14 Ind. 209; Dillon v. Dillon, 1 Notes of Cases, 415, 439; Houliston v. Smyth, 3 Bing. 127, and also, that after the plaintiff learned of the facts alleged, became recon ciled with the defendant and with his wife. The fifty-third request was: "That if the jury believe that the plaintiff or any other witness of his has wilfully sworn falsely on a material point, they should disregard the whole testimony of such witness," and cited People v. Evans, 40 N. Y. 1; People v. Davis, 15 Wend. 607. Correspondence. LANGDEAU V. HANES. self when his enthusiasm cools down and gives place to sober reflection. To justify an unprovoked assault on an adversary (who is known because he never takes shelter behind an anonymous name), he travels far out of the record, into the mythical regions of his own imagination, and subordinates a state of supposed facts, which have no foundation either in or out of the record. He says of Langdeau v. Hanes: "It was evidently brought by the plaintiff as a speculation he had obtained from heirs of an ancient claimant, a conveyance of property in which they had not supposed for nearly half a century they possessed any interest, or if they had so supposed, had remained during that period perfectly silent respecting it, and allowed the landlord of the defendant to purchase the property, improve it upon the idea that he had a good title to it, and thus render it of great value. The case, as I am informed, was a pioneer one; a great number of cases were to follow, designed to strip a large community of their possessions. When a speculator, mousing into the flaws of his neighbor's titles, fails, lovers of justice generally feel great satisfaction at the result." TRINIDAD, COL., June 21st, 1875. EDITORS CENTRAL LAW JOURNAL:-Your Washington correspondent "Lex," under date of June, 1st (ante, 386), grows very Where does "Lex" get this information? Certainly from no facetious in criticising my views of the opinion in Langdeau v. authentic source either in or out of the record. Desperate, indeed, Hanes, and accounts to me an unlimited capacity to "amuse all must be the cause which draws to itself such adjuncts as these. lawyers," because I "gravely urge" that the American State Pa- The prejudice and argument drawn from these gratuitous statepers published by authority of Congress, may be used as evidence ments dekors the record, are never permitted by courts sworn to of the highest anthority, in the investigation of claims to lands in administer the law. They are as indecorous in a court of justice courts of justice. The critic is not always above criticism. We will as they are presumptuous and disparaging to its duties and intellilet the high tribunal he so rashly defends, judge between us. The gence. But I will not further "question, as perhaps others might, "verity " which I accord to these state papers, at which "Lex' the good taste of" "Lex" in creating and subordinating such a state so much "smiles," was taught me by the learned judges of the of imaginary facts in defence of a judicial opinion and judgment, Supreme Court of the United States. In Watkins v. Holman, 16 the soundness of which I have only assailed by use of the ever lePeters, 55, the court say, in speaking of the verity which attaches to gitimate weapons of reason and law. That Lex may see how far these papers: "The volutne of documents was offered to show the he has suffered his highly wrought imagination to lead him, I will report of certain commissions under an act of Congress confirm-state for his benefit that the plaintff in Langdeau v. Hanes is ing the title in question. Now this original report, duly authenti- not and never was a speculator. He is and was always poor; is cated by the treasury department, to which it was made, would be old, verging on the grave, and has been for a series of years totally evidence, and it is evidence in the published volume. The very blind and helpless. He is the grandson of Tongas, to whose chilhighest authenticity attaches to these state papers, published under dren the land in dispute was confirmed by Congress. The plainthe sanction of Congress." The italics are mine. ་་ Again in Bryan et al. v. Forsyth, 19 Howard, 338, Judge Catron says of these papers: These state papers were published by order of Congress, and selected and edited by the secretary of the Senate and clerk of the House; they contain copies of legislative and executive documents, and are as valid evidence as the originals are, from which they were copied; and it can not be denied that a record of the report of Edward Coles, as found in the printed journal of Congress, could be read on mere inspection as evidence that it was the report sent in by the secretary of the treasury. The competency of these documents as evidence in the investigation of claims to lands in the courts of justice has not been controverted for twenty years, and is not open to controversy." The italics are mine. Again, in Gregg et al. v. Forsyth, 24 Howard, 180, Justice Campbell in delivering the opinion of the court, says: "The volumes of the American state papers, three of which were published by Duff Green, under the revision of the secretary of the Senate, by order of the Senate, contain authentic papers, which are admissible as testimony without further proof." The italics are mine. So much for "Lex's smile" at my statement, that these state papers "import absolute legal verity." But I care nothing for his facetious display of wisdom at the expense of my ignorance; it is a pardonable error,in which greater men than "Lex" have fallen, and I willingly throw the mantle of charity over it, with the kind admonition, that but few men have ever possessed the ability to answer grave argument to the satisfaction of thinkers, with unsupported assertions. But the gravest error into which "Lex's " enthusiasm to de tiff's grandfather Tongas, was killed by Indians in 1797, in the vicinity of Vincennes, Ind., and his widow, with three little girls, (the confirmees in this case), immediately after his death removed to St. Louis, Mo., where the plaintiff was born and has lived all his life. These little girls grew up in utter ignorance of their rights, and the family remained in this ignorance until 1869-70 when they were first discovered by John C. Langdeau, son of the plaintiff and great-grandson of Tongas. The land was surveyed in 1820, at the instance of a stranger to these children and their title, and without any authority from, or knowledge of them. That it was surveyed at the instance of a stranger appears in the record. The land in question has never been improved, as "Lex" states, and thus rendered valuable; but a few acres were cleared on it, when the suit was instituted; no building was then on it. In 1870, Theotiste Langdeau, the mother of the plaintiff, and only surviving child left by Tongas at his death, finding no one on the property, took peaceable possession of it, but the shanty or cabin which she occupied was torn down over her head by a lawless mob, who left the old lady defenceless and exposed, from which she sickened and died at a very advanced age. On her death-bed she deeded the land to her son, the plaintiff. John Law, the defendant's landlord, was a lawyer, and never enhanced the value of the property, because he knew he had no title other than that which the limitation laws of Illinois might confer. I make these statements in the interest of truth, and that justice which "Lex" so much admires. If it is laudable to pervert facts and volunteer abuse of such a plaintiff, then "Lex" is welcome to the consolation which he finds ir mousing into his neighbor's" business. The assertion that "the DANVILLE, ILL., June 22nd, 1875. EDITORS CENTRAL LAW JOURNAL:- Our attention has been called to the decision of the Supreme Court of Wisconsin, in the case of Pierce v. Chicago & Northwestern R. R. Co., published with an able note, in CENTRAL LAW JOURNAL of June 11th, 1875, wherein the court held, that although the defendant had paid the debt sued for, under a regular proceeding in attachment in Illinois, wherein defendant was garnished, yet because defendant had not given plaintiff notice of such attachment proceeding, the judgment and payment thereunder was no bar to plaintiff's recovery, and the company was compelled to pay the same debt twice. The more we reflect, the stronger is our belief that this decision is unjust, and contrary to the weight of authority. To our minds it is in direct conflict with the weight of authority, and with the principle of law, that where a party has paid money by compulsion under the judgment and process of a court of competent jurisdiction, he will not be compelled to pay the same a second time. And again, "At common law, the seal of no municipal corporation was judicially known, except that of London." Now, in Missouri, a copy of the record proceedings of a county court, duly attested by its seal and the signature of the clerk, is properly admissible without further evidence. But suppose a county bond, attested with the same county seal, and by the same clerk, is presented to the court, why does it not prove itself in the same way? I have a case in mind, where in such a suit, the plea of non est factum was sworn to, and I could not understand the logic of the court, in admitting without proof the certified record of the county court subscribing the stock, but requiring parol proof of the impress of the seal and the genuineness of the signature of the clerk, when plaintiff sought to introduce his bond. Please, also, give the distinction, if any, between a recognition of public officers de facto and de jure. Respectfully, In reply to the above, I would say, that in the case supposed, two facts are to be established: First, the subscription to the stock, and second, the execution of the bond. It is assumed that both are authorized by law, and to prove the subscription, the action of the county court authorizing some one to make it, is a material part of the evidence. It is to this action I suppose you refer. And inasmuch as the proceedings of the county court, whether judicial in their character, or whether merely the acts of the board of officers representing the county are required to be recorded, and can only be evidenced by their entry in the proper record, they must be proved by the record itself, or by a certified transcript. The law permits secondary evidence of records by a copy officially certified by the officer in whose legal custody they are placed. cate proves nothing, except the correctness of the copy, and only saves the ne cessity of producing the original record. But, second. After the authority to make the subscription for stock, and to pay for it in county bonds is shown, the execution of the bond itself must be proved, if denied. And it must be proved under the same rules that would apply to evidence of the execution of a bond, by a private person, or by a corporation. Non est factum makes an issue for the jury to be decided by evidence. No issue can be made in re 1 Greenl. Ev., 498, 503. Records of all courts are evidenced by transcripts duly certified by its clerk under its official seal, and all other courts within the state will judicially know both the seal and signature. 2 Phil. Ev., ? 346 n. 4 Drake on Attachment, Ch. 37, sec. 706; Ch. 19, sec. 478, 3rd and C. and H. n. 372. This would necessarily apply to the official certificate Ed.; 2 Kent's Com. 11th Ed. 95; 2 Parsons on Contracts, 5th Ed. authenticating a transcript of the proceedings of a county court, as to matters 607, n.; Story's Conflict of Laws, sec. 550; Freeman on Judg-properly of record and which can only be shown by the record. This certifiments, sec. 167; Bissell v. Briggs, 9 Mass. 467; Hull v. Blake, 13 Mass. 153; Parker v. Danforth, 16 Mass. 303; Meriam v. Rundlett, 13 Pick. 515; Barrow v. West, 23 Pick. 267; Ocean Ins. Co. v. Portsmouth R. R. Co., 3 Met. 422; Warren v. Copelin, 4 Met. 594; Wilkinson v. Hall, 6 Gray, 568; Lawrence v. Lane, 4 Gilm. 355; Holmes v. Remsen, 4 John. Ch. 465; Embree & Collins v. Hanna, 5 John. 101; Holmes v. Remsen, 20 John. 267; Andrews v. Herriott, 4 Cow. 521, note; Wheeler v. Raymond, 8 Cow. 315, note; Donovan v. Hunt, 7 Abbott's Pr. 29; Taylor v. Phelps, I Harris & Gill, 492; Gunn v. Howell, 35 Ala. 144; Mills v. Stewart, 12 Ala. 90; Wallace v. McConnell, 13 Peters, 151; Gould v. Webb, 4 Ellis & B. 933; Allen v. Dundas, 3 Durn. & East, 66; McDaniel v. Hughs, 3 East, 376. It will be apparent from reading the above cases, that in many instances the creditor of the garn-proof as that of a private person. The principle is recognized in Masterson v. ishee had no actual notice of the attachment proceeding; yet the objection that the garnishee had not given his creditor notice, was made only in three cases, and in each instance overruled. McDaniel v. Hughs, 3 East, 376; Holmes v. Remsen, 20 John. 238267; Embree & Collins v. Hanna, 5 John. 103. gard to the truth of a matter of which the court takes cognizance. The only tiel record, when the court decides from inspection whether the paper offered as apparent one, is the isuse of mixed law and fact involved in the plea of nul a record, is in fact such a one as is set out in the pleading. When the execu- . tion of the bond is denied, it must be proved by such evidence as will satisfy the jury, and the court can not take it from the jury. Again, the court will only notice the signature and seal of an officer in the discharge of his official duty, and his signature otherwise requires the same Le Claire, 4 Minn. 163, and in Dyer v. Flint, 21 Ill. 80. Now, the signature and seal of a county clerk, is not the act of an officer of the court as such, but of a person designated by the statute to represent the county, for the specific purpose. It might just as well have been any one else. In Missouri, county lands are sold by a commissioner, appointed for the purpose (W. S. 273 ? 4), and his deed binds the county. Can not there be an issue of fact, as to the execution of a deed alleged to be made by the county, when executed by him? Further: The county is a quasi corporation. Its seal to acts, other than acts of proceedings of the county court, is like the seal of any other corporation, and corporate seals are not judicially noticed. The fact that the seal of the county and the seal of the court may be the same, does not matter. They might just as well be different, and the clerk when executing a corporate obligation, would use the seal of the corporation, and when certifying the proceedings of the court, would use the seal of the court. As to the recognition of the acts of public officers, de facto and de jure, I suppose courts will only take judicial cognizance of those of the former. They know who are acting officially. They can not so act without a constant recognition of their acts. The sheriff is called upon to open or adjourn the court, to make an arrest or to serve a process; the court does not stop to enquire who is rightfully entitled to the office-that can only be ascertained by judgment-the one who is recognized by the court, is the de facto officer, until the right can be judicially determined. P. BLISS. HOMESTEADS IN KANSAS-LANDS "CORNERING ON EACH OTHER. FREDONIA, KANSAS, June 17th, 1875. EDITORS CENTRAL LAW JOURNAL:-Under the Kansas homestead act, can A., who resides on an 80 acre tract of land, claim as his homestead, an other 80 in the same section, but in a different quarter that only corners with the first 80 claimed? X. |