and customs by which the rights of the parties are governed, and whether the parties have, in fact, conformed to such local laws and customs, the courts of the United States have no jurisdiction of the cases under the provisions of the act giving jurisdiction in suits "arisiug under the constitution and laws of the United States."

3. REQUISITES OF PETITION.-A petition for the transfer of a suit from a state to a national court on the ground that it arises under the constitution and laws of the United States must state the facts and indicate the questions arising thereon, which are claimed to give the national court jurisdiction, so that the court can determine for itself from the facts the question of jurisdiction.

4. WHEN CASE MUST BE REMANDED.-A petition which only states the opinion, or conclusion of the petitioner, that the case arises under the constitution and laws of the United States, is insufficient, and a suit transferred on such petition will be remanded to the state courts on the ground that it does not appear from the facts alleged either in the pleadings, or the petition asking a transfer, that the case is one arising under the constitution or laws of the United States, within the meaning of the act of Congress, of March 3, 1875.

SAWYER, Circuit Judge:

I have had no little difficulty in satisfactorily construing this act. In the broad sense claimed by some, nearly all cases relating to the title to lands would be swept into the national courts; for, in the new states, in every action of ejectment involving a question as to the real title, one party or the other goes back to a patent or other grant under the laws of the United States. Since the passage of the act of Congress of 1866, and subsequent acts upon the same subject, expressly declaring the public lands to be free and open to exploration and occupation for mining purposes, subject to the local laws, regulations and customs of miners; also, authorizing a sale and patent to parties establishing a right under such local laws, regulations and customs, it seems to be claimed on this broad principle that all suits relating to disputes about mining claims may be transferred to the national courts. But, clearly, the great majority of such cases only involve a litigation of precisely the same questions as were litigated in those classes of cases for the many years since the acquisition of California prior to the passage of those acts of Congress; and they turn upon no disputed construction of the constitution or the statutes of the United States. In fact, where a patent is authorized to be issued to the possessor under these acts in a contested case, the statute refers the parties to the ordinary tribunals of the country to determine under the local laws and customs, irrespective of the acts of Congress, which party is entitled to the mining claim, and the patent issues to the party so determined to have the right. The 420 Mining Company v. the Bullion Mining Company, 3 Sawyer. Thus the rights of the parties are determined by the laws, regulations and customs of the locality outside the acts of Congress, without any discussion or controversy as to the construction of those acts. Since some of this class of cases transferred to this court were retained, but with no little hesitation, the Supreme Court of the United States has decided several cases which afford a rule for the future, and which, it seems to me, exclude jurisdiction in many cases which the bar appears to have supposed could be transferred.

The case of McStay v. Friedman, 92 U. S. R. 724, was a case in which one of the parties relied, first, on the statute of limitations; second, on the title acquired through the city of San Francisco, under the wellknown Van Ness Ordinance, and the act of the legislature confirming it. On a writ of error to the state court, it was sought to sustain jurisdiction of the United States Supreme Court, on the ground that the title derived through the city depended upon the act of Congress of 1866, 14, St. 4, granting the land to the

city in trust for those who held under the ordinance of the city, state statutes, etc. The court says: At the trial no question was raised as to the validity or operative effect of the act of Congress." * The

city title was not drawn in question. The real controversy was as to the transfer of that title to the plaintiffs in error; and this did not depend upon the constitution, or any treaty statute of, or commission held or authority exercised under the United States." Romie v. Casanova, 91 U. S. R. 380, is a similar case. At the present term of the Supreme Court, in a case which was actually transferred from the state court to this court, under section 2 of the act of 1875, the same ruling was made. One party claimed certain lots in San Francisco, by virtue of possession in pursuance of the provisions of the Van Ness Ordinance and the statutes of the state and of the United States confirming said title, while the city claimed the same as being p part of the public squares reserved and set apart for public purposes in pursuance of the same ordinance and statutes. After the transfer a demurrer was interposed to the jurisdiction of this court, on the ground that it presented no question arising under the act of Congress, the rights of the parties depending upon the construction of the ordinances of the city and the state statutes alone. On the other hand, it was earnestly urged that it was necessary to construe the act of Congress, in order to find out who the beneficial grantee intended by the act of Congress was. The court, however, held that the act of Congress referred the question, as to who was entitled to the land, to the city ordinances and the statutes of the state upon the subject; and that their rights must be determined by a construction of those ordinances and statutes. The Supreme Court affirmed this ruling at the present term, thus holding that the same principle adopted in relation to the section provided for writs of error to the state courts, is also applicable to cases of transfer from the state to the national courts, under section 2 of the act of 1875; that is to say, that, unless there is some contest as to the construction of the act of Congress, there is no jurisdictional question in the case.

So with reference to mining claims, the act of Congress grants certain rights to those who discover, take up and work mining claims. But it refers the parties to the local law of the states and territories, and to the rules, regulations and customs of miners of the district where the mines are situated, for the measure of their rights. If a dispute arises, as in the cases referred to, the act of Congress refers the parties to the ordinary tribunals to determine it by the local laws and customs, and not by the act of Congress. Upon the trial of the rights to a mining claim, precisely the same questions are tried, and they are determined by the same laws and customs that were invoked as the measure of the rights of the parties before the act of Congress had been passed. Clearly, the great mass of these cases can not involve the discussion or any dispute as to the construction of any act of Congress; and when they do not, under the decisions cited, this Court is without jurisdiction so far as this provision of the act is concerned. Where the controversy is upon matters other than the consideration of the constitution or an act of Congress, the "correct decision" of such controversy can not possibly "depend upon the right construction of either." No controversy can possibly arise under the constitution or an act of Congress, when all parties agree as to its construction. There may be a contest as to other matters, but not as to the constitution or laws in such cases.

This action was brought in the state court in Placer County, to recover for trespass upon a gravel gold mining claim, and seeking an injunction restraining the working of the claim by the defendant. There is no

fact alleged, either in the complaint or the petition for transfer, indicating that there is any question involved other than those that usually arise in the trial of a right to a mining claim. And it affirmatively appears from the views stated in the petition that such are in fact the questions to be tried. It is alleged in the petition, it is true, that defendant located and held his claim under the several acts of Congress relating to the subject. But this is no more than can be said, in a general sense, of all mining claims since the passage of the several acts referred to. But, as we have seen, that does not necessarily, nor even ordinarily, in this class of cases, involve any question of disputed construction of the act, or any right or question which is not to be determined by the local laws, rules and customs, without reference to the acts of Congress, precisely as they were before there was any such act in existence.

The only other allegation is, that the "right to said mining ground by plaintiff depends upon the laws of Congress, and the right or title of defendant to said mining ground aforesaid must also be determined by the acts of Congress under which defendant and petitioner claim title; and that the rights of the plaintiff as against defendant must be determined under the laws of Congress of the United States." This is in substance two or three times repeated; but it is only the statement of a legal conclusion rather than a fact; and a conclusion manifestly founded upon the general idea that all mining claims are so held, that an action relating thereto, involving the rights of the parties to the mine, necessarily arises under the acts of Congress within the meaning of the act giving jurisdiction to this court-an erroneous conclusion, if I am right in the views before expressed. These allegations express merely the opinion of the petitioner that a jurisdictional question will arise. In my judgment such averments are insufficient to justify a transfer, or retaining the case when brought here. The precise facts should be stated, out of which it is supposed the jurisdictional question will arise; and what the question is, and how it will arise, should be pointed out, so that the court can determine for itself whether the case is a proper one for consideration in the national courts. Otherwise the administration of justice will be greatly obstructed, and intolerable inconvenience be the result. Under the fifth section of the act, it is made the imperative duty of the court at any stage of the proceedings, when it appears that "such suit does not really and substantially involve a dispute or controversy properly within its jurisdiction," to stop the proceeding and remand the cause. Where a suit presents no disputed construction of an act of Congress-where there is no contest at all as to what the act means, or what right it giveswhere the only questions are as to what are the local mining laws, rules and customs, and as to whether the parties have in fact performed the acts required by such local laws, rules and customs-how can it be said, in any just sense, that such a suit "really and substantially involves a dispute or controversy" arising under an act of Congress? The location of the mine involved in the case is more than one hundred and fifty miles from San Francisco, where the court is held, and many other cases may arise in this state, Nevada and Oregon, in regard to claims lying from three to five hundred miles distant from the places where the national courts are held, and between which places the means of communication are by no means easy or cheap. Generally, in this class of cases the testimony rests mainly in parol, and there is a multitude of witnesses. The expense of prosecuting or defending such suits, at a large distance from the location of the mines, would be enormous. If the court should accept a petition containing a bare statement of the opinion of the petitioner, that the rights of the parties are derived under an act of

Congress, as in this case, the result in most cases would be that the court would not be able to determine whether the case "really and substantially involves a dispute or controversy properly within the jurisdiction of the court," until the close of the testimony, when it would be necessary to remand the cause at last. Such results would largely obstruct the due administration of justice, and work an intolerable inconvenience to honest suitors. Besides, it would encourage transfers of cases, over which the court has no jurisdiction, by unscrupulous parties, for the very purpose of deterring the adverse party from pursuing his rights, by reason of the delays, inconvenience and enormous expense of prosecuting an action of this class at a great distance from home. These difficulties would be especially onerous in cases relating to mining rights, where time is often as important as the right, in the several large states of the Pacific Coast and interior of the continent, and where a court is held at but one point. A single state, in some instances, it must not be forgotten, contains more territory than all the Middle and New England states together.

In view of these, in my judgment, weighty considerations, therefore, I think it of the highest importance to the rights of honest litigants, and to the due and speedy administration of justice, that a petition for transfer should state the exact facts and distinctly point out what the question is, and how and where it will arise, which gives jurisdiction to the court, so that the court can determine for itself from the facts, whether the suit does really and substantially involve a dispute or controversy properly within its jurisdiction.

Whenever, therefore, the record fails to distinctly show such facts in a case transferred to this court, it will be returned to the state court, and under the authority given by section five, at the cost of the party transferring it. If I am wrong in my construction of the act, and of the recent decisions of the Supreme Court, the statute (section five) happily affords a speedy remedy by writ of error, upon which this decision and the order remanding the case may be reviewed without waiting for a trial, and the question may as well be set at rest in this case as in any other. It is of the utmost importance that a final decision of the question be had as soon as possible. If counsel desire, I will order the clerk to delay returning the case, till they have an opportunity to sue out and perfect a writ of error.

Let an order be entered returning the case to the state court from whence it came, with costs against the party at whose instance it was brought here.

with the compromise and satisfaction that the debtor should save the creditor harmless from the claim of the assignee, is not equivalent to a consent to the previous assignment.

4. WHEN ASSIGNMENT WILL BE ENJOINED.-And after such compromise and satisfaction, notwithstanding such knowledge, record and contemporaneous agreement, the assignee on application of the judgment-debtor will be enjoined from collecting by execution the moiety assigned. ERROR to Jackson Circuit Court.

SHERWOOD, C. J., delivered the opinion of the court: The record discloses that, in January, 1871, a judgment by default for the sum of $500 was rendered in the Kansas City Court of Common Pleas, in favor of one John Geis, and against William Burnett, in an action for an assault and battery. On the day of its rendition, Geis, by an instrument to that effect, assigned one-half of the judgment to the defendant Crandell, who was his attorney in the action referred to. After vainly endeavoring to set the judgment thus obtained aside, and of which, it seems, he had no knowledge until seeing an account of such recovery in the city papers, Burnett gave bond and took an appeal to the supreme court.

In the June following Geis made a formal assignment on the record to Crandell, in accordance with the items contained in the paper before mentioned. In the next succeeding July, Geis, for the sum of seventy dollars, "and for other good and valuable considerations," as recited in a paper to that effect signed by him, "settled with William Burnett the judgment in the above entitled cause (referring to the judgment already mentioned), and accepted and received the above sum in full satisfaction and discharge of the same." The paper in question also authorized the judgment to be "cancelled and dismissed at the cost of said William Burnett." At the time of this adjustment Geis received from Burnett a writing which, after reciting the settlement made by them, contains. in addition thereto, this clause:

"Now, this is to certify that I agree to protect and to indemnify and save harmless the said John Geis against all claims for damages which J. J. Crandell, the attorney of said Geis, may have against him on account of said settlement of said judgment."

Both the papers above mentioned contained, in their respective captions, a recital of the pendency of the appeal in the supreme court. Notwithstanding his agreement and receipt in full satisfaction, Geis (at whose instigation does not clearly appear) presented a transcript in the supreme court, and had the judgment affirmed. This occurred in July, 1872. Shortly thereafter, Crandell caused an execution to issue on the judgment thus affirmed, and made an indorsement on the writ as attorney and assignee requiring the sheriff to collect one-half the judgment for his use, and stating that the residue had been remitted and satisfied.

Thereupon Burnett filed his petition making Geis and the sheriff, Gray, defendants. Crandell was subsequently added as party defendant. Geis made no answer. A temporary injunction was granted; but, on final hearing, the restraining order was so far modified as to allow the collection of the amount claimed by Crandell. In consequence of this ruling the plaintiff' has appealed.

The case at bar presents but two salient questions: 1. Whether it is permissible for a claimant or creditor to assign a portion of his claim or debt without the consent of the person against whom the claim is made or the debt asserted?

2. If the transfer of a moiety occur without such assent, whether it is competent for the original claimant to effect a compromise of the whole claim?

1. It is a familiar doctrine at law that a portion of a debt, claim or judgment, is incapable of assignment in

the absence of the debtor's consent. This was so ruled in this court in Love v. Fairfield, 13 Mo. 300, under circumstances very similar to those now before ns. It is true, that was a case which arose on a motion filed by the attorneys of the plaintiff, who were also assignees of a portion of the judgment, to set aside the entry of satisfaction made on the execution under the plaintiff's instructions, and to award another execution; but it is difficult to see why the same principle should not dominate, even where equitable interposition is invoked. For it must, it would seem, be obvious that the mischief incident to these partial assignments, these unauthorized divisions of a single debt into numerous and disconnected fractions, would be as great, and therefore the prohibitory reasons of equal cogency in a court of equity as in a court of law. This, for the most part, was the view taken in the case of Mandeville v. Welch, 5 Wheat. 277, on which the decision in our own court already referred to was chiefly based. The doctrine here asserted has also found direct recognition in courts possessing chancery powers. Collyer v. Fallon, 1 Turn. & Russ. 470, 475, 476; Gibson v. Finley, 4 Md. Chy. 75.

The learned judge and accomplished author who delivered the opinion in Mandeville v. Welch, supra, would seem to have expressed a somewhat different view in his admirable work on Equity Jurisprudence (Sto. Eq. Jur., vol. 2 §, 1044); but it will perhaps be found, on close examination of the authorities cited in the margin in support of the text, that they scarcely give sanction in all its broadness to the idea that a credit or, in ruthless disregard of the wishes or interest of his debtor, may divide and assign the debt into as numerous portions as there are dollars in the indebtedness, and yet successfully appeal to a court of conscience to countenance and enforce such oppressive and inequitable transfers. For if you once grant the premise that a creditor, without the consent of the debtor, may split and assign the debt into two portions, you thereby pave the way for the inevitable corollary that no bounds can be fixed or limits assigned in this regard to the creditor's gracious option. The mind of every just man might well hesitate before adhering to such a doctrine, however sustained by precedent or fortified by authority. But, as before intimated, it is not thought to be thus sustained by the authorities, to which reference has been made as cited in a note appended to the text. The case of Lett v. Morris, 4 Sim. V. C. 607, was more in the nature of an appropriation out of a particular fund than the assignment of a portion of a debt. In addition to that, Morris, on whom the order was drawn by his builder, Greenaway, received without objection a duplicate of this order on the day it was drawn, and subsequently paid one of the instalments ($80) to Greenaway, who immediately paid it over to Lett, who had been previously notified to be present by a letter from Bray, the architect of Morris. And then after that, the second instalment was paid by Morris himself directly to Lett's clerk. It is true that Morris, in his answer, denied Bray's authority to write the letter, and denied that both the installments were paid to Greenaway, but the case says: "It appeared by the evidence that those two sums were paid as before stated." Now it would have been a palpable fraud on Lett to have allowed Morris to seemingly approve the order on which he knew the former relied as security for the lumber he was furnishing, and then in the end repudiate the appropriation to which he had impliedly, if not expressly, assented, and on the faith of which the material was furnished. Most clearly, he was equitably estopped from urging the defence that he had not consented to the appropriation.

In Smith v. Everett, 4 Bro. Ch. 64, the order of Maton, who was a government contractor, was held to

constitute a specific lien on and appropriation of the particular fund on which it was drawn, in favor of certain sub-contractors, because they had contracted to furnish and did furnish supplies to certain encampments on the faith of and with reference to an articled stipulation, whereby Everett to whom the order was directed, and who was one of the sureties of Maton for the performance of his contract to the government, was to have the disbursement of all the moneys paid by the government on the contract. And so Lord Commissioner Eyre well remarks: "As Everett was Maton's security, it was provided that the money should be paid to the sub-contractors by him, and he had the bills in order to draw upon government. There could not be a stronger appropriation of the fund than this." And Lord Commissioner Ashhurst distinctly says: "This is not a debt, but a standing authority to Everett to give the other parties (meaning the sub-contractors) the same remedy." So that it will be readily observed, that not only was there the element of equitable estoppel in that case also, but Everett had previously stipulated to do the very thing which Maton's order requested him to do. The case of Watson v. the Duke of Wellington simply decides that, to create an equitable assignment, there must be an engagement on the part of the debtor to pay out of a particular fund. The case of Morton v. Naylor, 1 Hill (N. Y.), 583, was one at law, and merely establishes that, when a landlord draws on his tenant for a certain sum and the latter accepts, it is not within the power of the former to revoke the order so given.

I have thus briefly reviewed the cases on which the doctrine laid down in the text is supposed to rest, but find none of them to go to the extent there claimed. And since the evidence shows, in the most pronounced manner, that Burnett never consented to the assignment made by Geis, it must follow, if the foregoing reasoning be correct, that whatever equities may have arisen or rights been created, as between Geis and Crandell, such rights and equities can not be regarded as having any obligatory force on Burnett. Nor can the agreement of the latter, made when effecting the compromise with Geis, be tortured into such assent. He, well knowing that no consent on his part had been given to the assignment of half of the judgment, might well conclude that he ran no risk in agreeing to indemnify Geis for making a compromise, which he had the perfect right to effect as owner of that judgment. And the intention of Burnett in this respect is made more pointedly apparent, when it is remembered that the contemporaneous agreement of Geis recites that the judgment is "to be canceled and dismissed" at the cost of Burnett. Surely, no reasonable inference of intended recognition of the rights of a partial assignee in a judgment is to be drawn from a compromise which contemplates the practical obliteration of such judgment.

2. This brings us to the second point proposed for examination. And in relation to this we regard the case of Kendall v. United States, 7 Wall. 113, as conclusive authority on that point; for Mr. Justice Miller, when speaking of a claim of certain attorneys against the United States, where a claim of the Cherokee Indians, of which the attorneys were to receive directly from the United States five per cent. on all sums that might be collected on the claim, was compromised by treaty, says: "It is supposed that the doctrine of an equitable assignment of a debt or fund due from one person to another, by the order of the creditor to pay it to a third party, when brought to the notice of the debtor, is a sufficient foundation for the claim. * *The debt or fund as to which such an equitable assignment can be made must be some recognized or definite fund or debt in the hands of a person who admits the obligation to pay the as

signor, or at least it must be some liquidated demand capable of being enforced in a court of justice. We apprehend that the doctrine has never been held, that a claim of no fixed amount, nor time, or mode of payment-a claim which has never received the assent of the person against whom it is asserted, and which remains to be settled by negotiation or suit at law-can be so assigned as to give the assignee an equitable right to prevent the original parties from compromising or adjusting the claim on any terms that may suit them."

Here" the obligation to pay the assignor" had never been admitted; nor was the judgment, at the time the compromise was effected, a "liquidated demand capable of being enforced in a court of justice;" for the bond was given, appeal taken and cause pending in this court. What might have been the ultimate result of such appeal, it is impossible now to determine, and therefore the whole matter was manifestly one remaining to be settled “by negotiation or suit at law." This shows very plainly that this case falls within the principle of the rule laid down by Mr. Justice Miller, and consequently fully authorizes and gives validity to the compromise which Geis, without Crandell's consent, effected. So that, should it be urged that our conclusion as to the first point considered was incorrect, still our second conclusion, supported as it is by high authority, remains intact.

The result is, that the judgment must be reversed and the cause remanded, with directions to proceed in accordance with this opinion. All concur.

NOTE.-The first position in the foregoing opinion seems to have been taken by Judge Sherwood with some hesitation; but, we believe, with few exceptions, he is supported by all the decisions. Judge Story, who delivered the opinion in Mandeville v. Welch, cited in the principal case, afterwards affirms the doctrine there declared. Shankland v. Corporation of Washington, 5 Pet. 394. So, in Ingraham v. Hall, 11 Serg. & R. 78, the supreme court of Pennsylvania held that a party can not, by assigning a part of his claim to another, divide an entire cause of action, nor by any means sustain more than one suit for it; and, if two suits be brought, a recovery in the first for one part is a bar to an action for the other part. In Massachusetts the same position is taken in an elaborate opinion by Judge Shaw in Palmer v. Merrill, 6 Cush. 282. This was an action on an order given by the assured in a life policy on the insurance company, to pay the plaintiff a certain portion of the amount insured, and it was held that an assignment of a chose in action vests in the assignee an equitable interest; but, in order to constitute such an assignment, "the transfer should be of the whole and entire debt or obligation in which the chose in action consists, and, as far as practicable, place the assignee in the condition of the assignor, so as to recover the whole debt due, and to give a good and valid discharge to the party liable." Says the distinguished judge: "We do not question that an assignment may be of an entire fund in the form of an order drawn by the owner on the holder of the fund or party indebted, with authority to receive the money or discharge the debt; but, if it be for a part only of the fund or debt, it is a draft or bill of exchange, which does not bind the drawee or transfer any proprietary or equitable interest in the fund, until accepted by the drawee; it therefore creates no lien upon the fund." The supreme court of California, in Marziou v. Pioche, 8 Cal. 536, held, the creditor has no right to assign the debt in parcels, and thus, by splitting up the cause of action, subject his debtor to the costs and expenses of more suits than the parties originally contemplated. And afterwards, in Wheatley v. Strobe et al., 12 Cal. 97, Judge Field held that a bill of exchange, not accepted, can not operate as an equitable assignment of the fund against which it is drawn, unless it is drawn for the full amount of the fund, so that there may not be any splitting of the amount due into distinct causes of action. So, in Dwight v. Pease et al., 3 McLean, 94, it was held, 1, that a promissory note given to two or more payees, who are not in partnership, must be assigned by all of them; 2, that an assignment by one of two payees at most can convey but one-half of the interest in the note; 3, that this does not enable the assignee to sue the drawer; that a note can not thus be cut up, and suits against the drawer multiplied.

The same general doctrine is maintained in the following: 1 Salk. 658; Farrington v. Payne, 15 Johns. 432; Smith v. Jones, Ib. 229; Colvin v. Corwin, 15 Wend. 557; Miller v. Covert, 1 Wend. 487; Coster v. N. Y. & Erie R. Co., 6 Duer, 46; Bowdoin v. Coleman, 3 Abb. 431; Freeman on Judgments, § 241; Secor v. Sturgis, 16 N. Y. 58. Contra, in Field v. Mayor of New York, 6 N. Y. 179, where a person, having a demand due him, assigns part of it to different persons, to secure the payment to them of specific sums in succession, it was held, a court of equity had jurisdiction of a suit by one of the assignees to collect his part of the demand, without making the other assignees parties to the proceedings. It was further held that payment by the debtor of his debt to the original creditor, after notice that a part of the debt has been assigned, constitutes no defense to a suit brought by the assignee of such part. See also Poor v. Guilford, 10 N. Y. 273. After the decision in Field v. Mayor of New York, the supreme court of New York, in Cook v. Genesee Mut. Ins. Co., 8 How. Pr. 514, held that, while a court of equity would entertain an action to recover a part of a debt assigned, yet in such action it was necessary that the other assignees or holders of the entire debt must be brought in as parties.

1. STATUTE CONSTRUED-PLEADING-The act of Feb. 27, 1873, providing that any one taking care of an intoxicated person may recover a reasonable compensation from the parties causing such intoxication for every day spent in such service, must be construed to authorize such recovery only during the time such person may remain intoxicated; and where the complaint alleged that the plaintiff was compelled to nurse and take care of a person for three months, on account of injuries received while in a state of intoxication, the case is not brought within the eighth section of the statute, because it does not show that the intoxication continued during that time or any part of it.

2. DAMAGES-IMMEDIATE AND REMOTE CAUSE OF INJURIES. The twelfth section of the above act provides that any person who shall be injured in person, property or means of support, in consequence of the intoxication of any person, shall have a right of action against the party causing such intoxication. Held, that, where a husband became grossly intoxicated, and while being hauled home in his wagon, received injuries by means of a barrel of salt falling upon him, from which injuries he died, his widow had no right of action under this statute, because the immediate cause of the injury to the plaintiff was the death of the deceased, and his intoxication only the remote cause. Held, that a person is answerable for the conse. quences of his fault only so far as they naturally result from it and may therefore be foreseen; and that in this case the parties selling the liquor could not have anticipated that, on his way home, the intoxicated man would be fatally injured by the salt barrel.

APPEAL from the Vanderburg Civil Circuit Court. WORDEN, C. J., delivered the opinion of the court: Complaint by the appellee against the appellants, in two paragraphs. Demurrer to each paragraph, for want of sufficient facts, overruled, and exception. Issue, trial by jury, verdict and judgment for plaintiff. The complaint is as follows: "Catharine Heilman complains of John Krach and Christian Stock, and says that, on the 1st day of December, 1873, the said John Krach obtained a permit in due form of law, to retail spirituous and intoxicating liquors in quantities less than a quart, for one year from that date, at his store,

situated on the Petersburg road in Scott township in the county of Vanderburg, State of Indiana, about eight miles from the city of Evansville, and from that day to the present time he has been, and still is, engaged in that business. The plaintiff further avers that Edward Heilman, late of Warrick county, was for many, to wit, twelve years next previous to his decease, as hereinafter described, the husband of the plaintiff, and that during all that time they lived together as husband and wife, and that they became the parents of seven children, the fruit of their marriage; that he was a farmer by occupation, and lived on a small farm in said county of Warrick, and that the plaintiff and the said children were dependent upon the said husband and father for their support; that he was an affectionate husband, a kind father and a good citizen, and had always been of sober habits, which the defendant well knows. The plaintiff further avers that, on the 31st day of December aforesaid, the said Edward Heilman was in full life and good health, and about thirty-five years of age, and was living happily on his farm with his family; that on the said day he was traveling on his return home from the city of Evansville (to which he had, on that day, been with his wagon and two-horse team), and, on the evening of that day, he stopped at the store of the said defendant John Krach, of whom the said Edward bought intoxicating drink, to wit, peach brandy in small quantities called drinks, in all amounting to one pint, which the said Edward then and there drank in the store of the said Krach, and that the said defendant, Christian Stock, being then and there present, sold to the said Edward a certain quantity of other intoxicating drink, to wit, whiskey in small quantities, called drinks, in all amounting to two gills, which the said Edward then and there drank, the said Stock then and there drinking with the said Edward; that the said defendants, in selling the said liquors to the said Edward, were then and there acting in concert, and with the design and intention of making him drunk, by means whereof the said Edward became and was drunk, so that he was not able to walk, stand or sit, and in consequence of which drunkenness he was laid in his wagon, and hauled in that drunken condition, in the night of the said day, to his own home, his team having been driven by one of his neighbors, who himself was in a state of intoxication, which the defendants then and there well knew. The plaintiff further avers that, while the said Edward was lying in his wagon in that drunken condition, and while being driven to his home as aforesaid, he was severely and fatally injured by means of a barrel filled with salt in the same wagon, which fell over and struck the face and head of the said Edward with great force and violence, by means of which his face was frightfully cut and wounded, and his scalp bruised and his skull fractured; and he was also greatly injured in other parts of his body, to wit, his shoulders, back and sides, while being so driven and hauled, which were also greatly bruised and wounded by the motion of the said wagon; that all of said injuries, wounds, cuts and bruises were made while the said Edward was in his drunken and helpless condition, and within a short time, to wit, one hour, after he left the store and premises of the defendant Krach, as aforesaid. And the plaintiff further avers that the said fit of drunkenness was caused by the said intoxicating liquors, so sold by the said Krach and the said Stock to the said Edward Heilman, and drunk by him as aforesaid. The plaintiff further avers that the said Edward would not have been injured, wounded, cut and bruised but for the drunken and helpless condition aforesaid; and she further avers that, on the night of said day, he was brought to his home and family in the state of drunkenness and with