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bill of lading or in a charter party the effective cause is to be looked to, and not the immediate cause, in the sense of its being causa proxima, as in the case of a policy of insurance. That is the defect in the careful and elaborate judgment which he has given.

For the purpose of regularity in business, and in order that people may know what their liabilities are, and what they are undertaking, it seems to me that we must revert back to the old rule, and say that where the effective cause of a loss under a charterparty or a bill of lading is the damage to the cargo by rats that is not a peril excepted, and where the rats, by being the effective cause, let in the sea, this letting in of the sea is not a cause at all. It is the effect of what was done by the rats, and the rats were the effective cause.

I cannot therefore agree with the judgment, and I am of opinion that it must be overruled.

BOWEN, L. J. The judgment I am about to read is the judgment of my Brother Fry and myself.

This was an action brought against the owners of a ship to recover damages for sea injury to the cargo caused by a leakage of which rats were the authors. The defendants' ship had been chartered by the plaintiffs to proceed to Akyab and there load a cargo of rice for Liverpool. The excepted perils in the charter party were the act of God, and all and every other dangers and accidents of the seas, rivers, and steam navigation of whatsoever nature and kind and errors of navigation during the voyage, and the tenor of the bills of lading was the same. It appeared that the damage was caused during the voyage to Liverpool, after the ship had left Akyab, by sea water passing through a hole in a metal pipe connected with a bathroom in the vessel, this pipe having been gnawed through by rats.

It was not disputed at the trial that all reasonable precautions had been taken by the captain and his crew to keep down the rats on the voyage from Liverpool to Akyab. The jury found further that the rats which caused the damage were not brought on board by the shippers in the course of shipping the rice at Akyab, and that those on board had taken reasonable precautions to prevent the rats coming on board at Akyab during the shipping of the cargo. There was on the other hand no finding of the jury, and no admission by the parties as to the condition of the vessel in respect of rats when she left Liverpool for Akyab, or as to the original cause of the presence of rats on board the ship.

The case was dealt with by Lopes, L. J., on further consideration, and he directed a verdict for the defendants on the ground that the case was one of danger or accident of the seas within the exception in the shipping documents, and that the shipowners were thereby exonerated. From this judgment the plaintiffs now appeal.

That damage done to cargo by the direct action of rats, which devour it on the voyage, is not due to a peril of the sea, was decided in Kay v. Wheeler, L. R., 2 C. P. 302, by the exchequer chamber. See Laveroni v. Drury, 8 Ex. 166; 22 L. J. (Ex.) 2, and Aymar v. Astor, 6 Cow. 266. It was contended however in the present case, on behalf of the shipowners, that the question is a different one where cargo is directly damaged by sea-water entering a ship through leaks which rats have caused, and that although the shipowner is not excused when the rats eat a cargo of rice directly-if a rat eats through a pipe which lets the sea-water in upon the rice, the accident is one for which the shipowner will not be responsible-a distinction, which if it exists, must be admitted to savor of subtlety. By the common law of this country, which in this respect is stricter than either the civil law or the law of many continental nations, a carrier

by sea was liable for loss or damage to goods, except only in the event of accidents caused by the act of God or of the king's enemies.

In Dale v. Hall, 1 Wils. 281, the loss was occasioned by a leakage caused by rats gnawing a hole in the bottom of the vessel. The goods were not carried under any bill of lading, and it was held that by the common law the hoy man was not excused on the ground of any act of God. The larger exception to the carrier's liability contained in the exception of perils of the seas or accidents and dangers of the seas has sprung up gradually since the reign of Queen Elizabeth, no such provision being found in the forms of charterparties or of bills of lading given in West's Symboleographie, but being known apparently in the reign of Charles 1. See Pickering v. Barkley, 1 Style, 132; Mors v. Slew, 3 Keb. 73; and Barton v. Wolliford, 3 Comb. 56. The cargo in the present case was carried under a bill of lading containing the now familiar exception, and we have to consider accordingly whether a carrier who would not be excused by the common law for loss due to leakage caused by rats, can find protection under the express term "accident or dauger of the sea."

The exact deînition of the term "dangers or acci dents of the sea," or of the cognate expression "perils" of the sea, which latter name is only the Latinised equivalent for " dangers," has been the subject of perpetual discussion both in England and America. On the one side it has been sought to confine it to calamities which occur only through the violence of the elements (ex marina tempestatis discrimine) or (to use the language of Marshall, vol. 2, p. 487, part I, ch. 12, § 1), "such as arise from stress of weather, winds and waves, from lightning and tempests, rocks and sands," etc. By others it has been sought to extend it so as to include all inevitable accidents which occur upon the seas, or at all events all such as occur by the action of sea-water in the course of navigation, for which human negligence, or for which at all events the carrier's negligence is not responsible. The term "peril of the sea" is one which has long been employed in policies of insurance as well as in contracts of carriage, though losses which fall within the meaning of the policy (owing to the different nature of the contract) are not always losses which would fall within the bill of lading exception. But it may be at least considered probable (subject always to any question of usage or construction) that if a loss is not due to a peril of the sea within the meaning of a policy of insurance, neither will it be due to a peril of the sea within the meaning of the ordinary bill of lading. According to Lord Tenterden the decision of the judge upon what is a peril of the sea may be guided by usage and the course of practice among merchants, and it is observable that the case in which pirates were first held to be a peril of the sea was decided upon a certificate of merchants, read in court, that they were so esteemed. Style, 132. It is not necessary in the present instance, and not being necessary it would be undesirable to lay down an exhaustive definition as to the meaning of the term "perils of the sea," either in contracts of carriage or in policies of insurance. We desire to leave ourselves entirely free to consider (whenever the necessary occasion arises) whether the term "perils of the sea" may not embrace other dangers beyond those which are due directly to the violent action of the elements. Unless there be some exception to such a definition it is difficult to account for the fact that pirates by mercantile custom are a peril of the sea, or that shipwreck upon a hidden boulder, when not due to the negli gence of the master, would be due to the same excepted cause.

It is sufficient to affirm broadly that within the

meaning of an ordinary charter-party or bill of lading a loss cannot be due to the perils of the sea which the exercise of reasonable skill and diligence on the part of the shipowner might have averted.

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In the case of The Schooner Reeside (A. D. 1837), 2 Sum. 571, Story, J., thus expresses himself: "The phrase danger of the seas,' whether understood in its most limited sense, as importing only a loss by the natural accidents peculiar to that element, or whether understood in its more extended sense, as including inevitable accidents upon that element, must still, in either case, be clearly understood to include only such losses as are of an extraordinary nature, or arise from irresistible force, or some overwhelming power, which cannot be guarded against by the ordinary exertions of human skill and prudence.' So again in Marshall Ins., vol. 1, p. 234, Part I, ch. 7, §4: "If any loss or damage happen to the goods, from any fault or defect of the ship (not arising from sea damage, or from any accident or misfortune in the voyage, but from some latent defect before she sailed), the owner of the goods has his remedy against the owners of the ship for such loss or damage." The judgment of Lopes, L. J., in the court below, accepts this principle, but proceeds upon the basis that the action of the rats in gnawing through the pipe and letting in the seawater upon the cargo was a matter beyond all human control, that it was, to adopt his own words, a case "of sea damage at sea and nobody's fault." The burden of proof of this rested upon the shipowner, but the admission made during the trial of the case and the finding of the jury seem to us to fall far short of establishing the inference drawn by Lopes, L. J. It is consistent with both the verdict and the findings that the presence of rats may have constituted an original vice in the ship when she sailed to take in cargo, which continued down to and at the time when she in fact took it in. Their presence at such a time, so far as their presence constituted any element of danger to the cargo, was to that extent a defect in the ship. Even if it were shown to be impossible to have excluded the rats which caused the mischief to the pipe, a topic which it may be said we have not the materials before us for discussing exhaustively, it would still we think be doubtful whether a ship with rats on board her that receives goods into her hold ought not to bear the responsibility for all damage done to the goods by the rats.

The burden, as we have said, rests upon the shipowner. An owner of cargo has no means of knowing what has been done by the ship in respect of rats or what is the condition of the vessel. He has a right to assume that the ship is reasonably fit for the carriage of his goods. The broad inference of fact which most persons would accordingly be inclined to draw is that rats capable of doing substantial mischief to a ship or cargo, and which do not come on board with the cargo itself, are not the kind of inevitable misfortune which happens to ships fit to carry cargo; that a rat and all the direct or indirect mischief a rat does is, in other words, a peril of the ship and not a peril of the sea. Sir William Jones (Essay on the Law of Bailments, 105), commenting upon the case of Dale v. Hall, 1 Wils. 281, in which the rats had gnawed out the oakum and made a small hole through which the water gushed, says that it must have been at least ordinary negligence to let a rat do such mischief in a vessel, and quotes the Digest (19, 2, 13, 6): "Si fullo vestimenta polienda acceperit, eaque mures roserint, ex locato tenetur, quia debuit ab hac re cavere. "The court of exchequer in Laveroni v. Drury, 8 Ex. 166; 22 L. J. (Ex.) 2, seem to have been of the same opinion. Speaking of a passage from Roccus, which states that keeping cats on board excused the shipowner from damage by rats, Pollock, C. B., says: "Whatever might have

beeu the case when Roccus wrote, we cannot but think that rats might be now banished from a ship by no very extraordinary degree of diligence on the part of the master." 8 Ex. 172. It is not impossible that it was on some such broad common sense view of the case that Lord Ellenborough proceeded when in Hunter v. Potts, 4 Camp. 203, he held that a loss arising from rats eating holes in the ship's bottom is not within the perils insured against by the common form of a policy of insurance. As a rule, rats can be kept out of ships which are fit to carry cargo, and speaking broadly, a loss which is due to leakage caused by rats will probably be found to be due not to the perils of the sea, but to the defects of the ship or the want of precautions of the shipowner. In his chapter dealing with policies of insurance, the learned author of Kent's Commentaries, says: "It has even been a vexed question whether the damage done to a ship by rats was among the casualties comprehended under perils of the sea, and the authorities are much divided on the question. The better opinion would however seem to be that the insurer is not liable for this sort of damage, because it arises from the negligence of the common carrier, and it may be prevented by due care, and is within the control of human prudence and sagacity." Vol. 3, pp. 300, 301. He adds in a note some references to a number of foreign juridical writers, who have all maintained the principle that the owner, and not the insurer, is liable for an injury by rats, and states that the only case which he has met with directly to the contrary is that of Garrigues v. Coxe, 1 Bin. 592. Story Bail., § 513, adds, that "it seems that a loss occasioned by a leakage which is caused by rats gnawing a hole in the bottom of the vessel is not in the English law deemed a loss by a peril of the sea." Lord Tenterden in his work on Shipping, part IV, ch. 5, § 4, adopts language to the same effect: "Where rats," he says, "occasioned a leak in the vessel, whereby the goods were spoiled, the master was held responsible for the damage notwithstanding the crew afterward, by pumping, etc., did all they could to preserve the cargo from injury. And this determination agrees with the rule laid down by Roccus, who says: If mice eat the cargo and thereby occasion no small injury to the merchant, the master must make good the loss, because he is guilty of a fault. Yet if he had cats on board his ship he shall be excused.' This rule and the exception to it, although bearing somewhat of a ludicrous air, furnish a good illustration of the general principle, by which the master and owners are held responsible for every injury that might have been prevented by human foresight or care. In conformity to which principle, they are responsible for goods stolen or embezzled on board the ship by the crew or other persons, or lost or injured in consequence of the ship sailing in fair weather against a rock or shallow known to expert mariners."

It is not strictly necessary to decide what would be the result in the somewhat improbable case of a shipowner who succeeded in proving that the presence of rats that have caused mischief by leakage to the cargo, was neither due to any defect in the reasonable condition of his ship nor a matter which by reasonable precautions could have been prevented. This hypothetical case of a possible exception to what we may call the broad and natural inference of fact is reserved by Marshall, vol. 1, p. 235, part 1, ch. 7, § 4, where he says that the owners are liable for damage done by rats, unless it appear that all necessary precautions were used to prevent it. The academical question which Marshall and other writers have left open it is not necessary in the present case to close, so far as relates to leakage caused by rats as distinguished from damage done by them to the cargo directly.

It is however obvious that the continental writers to whom Story refers as entertaining a view that in such a case the owner would be protected, wrote at a time when ships were very different from the carrying ships of the present day, nor indeed were their views followed by the court of exchequer in Laveroni v. Drury, 8 Ex. 166; 22 L. J. (Ex.) 2, or by the exchequer chamber in Kuy v. Wheeler, L. R., 2 C: P. 302. It never must be forgotten that the English law is less indulgent to the carrier than either the Roman law or the law of many continental nations. In the present instance, the burden of proof resting with the shipowner, no facts have been established which raise this speculative point. It was consistent with all the findings that the mischief done to the pipe and the incursion of sea-water which followed would never have hap pened but for either a defect in the condition of the ship or some want of providence in the shipowner or his servants. The question therefore does not arise whether there may not be a conceivable case of leakage caused by rats which would not fall within the broad and every-day rule.

For these reasons we are of opinion that the judgment of the court below must be reversed, and the appeal allowed with costs.

Appeal allowed.

Judgment for the plaintiffs.

Solicitors for plaintiffs: Hollams, Son and Coward.
Solicitors for defendants: W. A. Crump & Son.

LICENSE TO CUT TIMBER-EXTENSION-SALE
OF LAND-LIABILITY OF GRANTEE.

MICHIGAN SUPREME COURT, NOV. 4, 1886.

WILLIAMS V. FLOOD.

A. agreed in writing to sell to B. the timber standing on certain land, and provided that the same should be cut and removed in two years. Afterward he agreed orally with B. to extend the time for cutting and removing the same, but before the time had expired A. made a sale of the land to C., who had actual notice of the parol agreement with B., and forbade his cutting any more. In the action of trespass on the case by B. against C. for the value of the timber, held, that the agreement for extension was a license to B, which C. had a right to revoke; that B. had a right only to remove the timber which he had cut, until forbidden by C. to cut any more; and that he could maintain no action against C. for the value of the standing

timber.

ERROR

to Berrien.

Williams went on and took off a portion of the timber within the two years, and before the time limited had expired he agreed with James Ford, the owner of the land, verbally, for an extension of time for one year in which to cut and remove the balance. Before this extended time expired, he and Ford agreed upon another extension, to and including the winter of 1885-6. This agreement was also verbal, and both of them were withont any new consideration passing from Williams to Ford. November 27, 1885, defendants purchased the lands upon which the trees were standing from their uncle, and received a deed executed on that day. It was not a full covenant warranty deed, but contained a covenant against the grantor's own acts. At the time of their purchase however they were fully informed that the plaintiff had purchased the timber, and that the time in which he was to cut and remove it had been extended by verbal agreement, as above stated. Shortly after New Year's of 1886 the plaintiff commenced to cut the timber with a view of removing it, when he was forbid. den to do so by the defendants, who claimed to own the timber by virtue of their deed.

Plaintiff desisted, and brought this action to recover the value of the timber, both standing and severed, left on the land covered by his bill of sale from James Ford. The Circuit judge instructed the jury to reader a verdict for the plaintiff, but how much the verdict should be was left to the jury to determine under the testimony. The jury returned a verdict in favor of the plaintiff for $546.33.

One of the principal questions presented for consideration is whether the limitation of time for the removal of the timber from the land is a covenant that the purchaser will remove the timber in two years, or a condition subsequent of the contract of sale, which upon default would terminate the right of removal, and revest the title to such timber as remained upon the land in the vendor. The question was raised, but not decided, in Green v. Bennett, 23 Mich. 464, as the facts of the case showed that the vendor had treated the limitation of crime as a covenant, and had sued the vendee for a breach thereof, and obtained judg ment.

In applying rules of construction, the language employed in the instrument, the circumstances under which the contract was made, and the purpose for which it was made, are to be taken into consideration. The operative words in the written agreement are: "The party of the first part, for and in consideration of the sum of $500, to us in hand paid by Henry W. Williams, the receipt whereof is hereby acknowledged, does by these presents sell, assign and convey to the said Henry W. Williams all the standing tim

C. B. Potter (Clapp & Bridgman, of counsel), for her," etc. The words express the intention to sell and plaintiff.

N. A. Hamilton and Edward Bacon, for defendants and appellants.

CHAMPLIN, J. This is an action of trespass on the case, to recover the value of certain standing and down timber on a parcel of land described in plaintiff's declaration. On the 16th day of September, 1882, James Flood, who is an uncle of defendants, was the owner in fee of the land, and on that day, by a writing under seal, sold to the plaintiff "all the standing timber from and over the size of nine inches in diameter on the stump, situated, standing, or being upon the land" in question. The instrument contained the following clause: "Giving and granting the said Henry Williams the undisputed right, for two years from this date, to enter upon the said premises and remove the said timber, the same as if he, the said Henry W. Williams, was the owner in fee of said land."

convey the standing timber as timber attached to and
a part of the freehold, by which a present title was to
pass, and cannot be construed into an executory agree-
ment to sell and convey the timber when it should be
thereafter severed.

The agreement conveyed an interest in the land,
and was such as the statute of frauds required to be in
writing to be valid. Russell v. Myers, 32 Mich. 522;
Wetmore v. Neuberger, 44 id. 362; Spalding v. Archi-
bald, 52 id. 365; Putney v. Day, 6 N. H. 430; S. C., 25
Am. Dec. 470: Owens v. Lewis, 46 Ind. 488; S. C., 15
Am. Rep. 295; Daniels v. Bailey, 43 Wis. 566; Slycum
v. Seymour, 36 N. J. L. 138.

When conveyed it was an interest in lands, and did not cease to be such thereafter until severance. If the limitation as to time of removal should be construed as a covenant on the part of the purchaser that he would remove the timber in the time specified, the title to the timber would remain in the purchaser after the time limited bad expired, and he could still

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enter upon the premises, and remove the same at his pleasure, being liable to the vendor for such damages as he should cause in so doing. The vendor would also have a right of action against his vendee for a breach of the covenant in not performing the covenant as agreed. But it is perceptible at a glance that this might be a very inadequate remedy. The standing timber would be an incumbrance upon his land, and would deprive him of its use for agricultural pur- | poses and it would be a constantly-recurring injury quite incapable of estimation in dollars, and would depreciate the marketable value of his land while the timber remained. It cannot be claimed that the words employed in the agreement amount to an express covenant to remove the timber in the time named. Nor do I see that one is implied from the nature of the agreement.

licensee, or would be productive of great hardship, in such cases treating the license as an agreement to give the right.

The Circuit judge rightly left it to the jury to find whether the defendants refused to permit the plaintiff to remove such of the timber as he had severed before the license was revoked, but he was wrong in instructing them to return a verdict in favor of the plaintiff for the value of the standing timber.

The judgment should be reversed, and a new trial ordered.

Campbell, C. J., and Sherwood, J., dissent.

UNITED STATES SUPREME COURT AB-
STRACT.

EVIDENCE-DECLARATIONS OF AGENTS-MEMORANDUM.-(1) In an action against a railroad company to recover damages for injuries received by a passenger on a train, a declaration of the engineer, made be

It appears to me that the parties intended the one to sell and the other to purchase the standing timber, upon the condition that it should be removed from the land within the time specified, and that the title to such as should remain upon the land at the expira-tween ten and thirty minutes after the accident oction of the time should revest in the vendor, the effect of the whole transaction being a sale of so much of the timber as the vendee should remove from the land within the time limited in the agreement for its removal. That this was the intention of the parties, as expressed by the contract, is borne out by the conduct of the parties, who appear to have placed this construction upon it. The vendee asked for and obtained a verbal extension of the time upon two different occasions; and it is upon this extension of the time that the rights of the parties depend in this controversy. The breach of the condition worked a forfeiture of the plaintiff's right and title to the remaining timber.

That the vendor could waive the forfeiture or breach of condition cannot be disputed. That he did so in this instance cannot be denied, if it was competent for him to do so by parol. The defendants insist that the contract, being of that nature which the statute of frauds requires to be evidenced by writing, any extension of time in which it was to be performed must also be in writing to be binding. Abell v. Munson, 18 Mich. 306; Cook v. Bell, id. 393.

This position would seem to be consistent with the rulings of this court, holding that such a sale of standing timber conveys an interest in real estate, and is not valid unless in writing; for if the interest of the vendee in the standing timber would cease at the expiration of the time limited in the contract for its removal, the effect of the extension would be to grant a new or further interest in the land, and would require a contract in writing as much as the original

contract.

If however the agreement for the extension was invalid as a contract, it would be good as a license, and a protection to the vendee for any act done under it until it was revoked. He would have the right to remove all the timber which he had cut up to the time the defendants forbade his cutting more; and if they refused to permit him to enter upon their land for that purpose, it would in law amount to a conversion by them of the timber so cut. They would not be liable in this action for the timber standing upon the land at the time the license was revoked. This must be the result in an action at law, especially in those States where the jurisdiction of courts of law and equity are administered separately. In some States, where the courts of law have equitable cognizance, re. lier is granted upon proper pleadings in common-law courts. Courts of equity have in proper cases en. forced a license, and restrained its revocation, where such revocation would operate as a fraud upon the

curred, as to the rate at which the train was going at the time, is not admissible in behalf of the plaintiff. The acts of an agent, within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the principal, and may be proven without calling the agent as a witness. So in consequence of the relation between him and the principal, his statement or declaration is, under some circumstances, regarded as of the nature of original evidence; “being,” says Phillips, "the ultimate fact to be proved, and not an admission of some other fact." 1 Phil. Ev. 381. "But it must be remembered," says Greenleaf, "that the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency, in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act, and part of the res geste, that it is admissible at all; and therefore it is not necessary to call the agent to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it." 1 Greenl. Ev., § 113. This court had occasion in Packet Co. v. Clough, 20 Wall. 546, to consider this question. Referring to the rule as stated by Mr. Justice Story in his Treatise on Agency, § 134, that "where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject-matter will also bind him, if made at the same time, and constituting part of the res gestæ," the court, speaking by Mr. Justice Story, said: "A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence, or by an isolated conversion held, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the res gesto." We are of opinion that the declaration of the engineer, Herbert, to the witness Roach was not competent against the defendant for the purpose of proving the rate of speed at which the train was moving at the time of the accident. It is true, that in view of the engineer's experience and position, his statements under oath as a witness in respect to that matter, if credited, would have influence

with the jury. Although the speed of the train was in some degree subject to his control, still his authority in that respect did not carry with it authority to make declaratious or admissions at a subsequent time as to the manner in which, on any particular trip, or at any designated point in his route, he had performed his duty. His declaration, after the accident had become a completed fact, and when he was not performing the duties of an engineer, that the train at the moment the plaintiff was injured was being run at the rate of eighteen miles an hour, was not explanatory of any thing in which he was then engaged. It did not accompany the act from which the injuries in question arose. It was, in its essence, the mere narration of a past occurrence, not a part of the res gesto simply an assertion or representation in the course of conversation as to a matter not then pending, and in respect to which his authority as engineer had been fully exerted. It is not to be deemed part of the res gestæ simply because of the brief period intervening between the accident and the making of the declaration. The fact remains that ths occurrence had ended when the declaration in question was made, and the engineer was not in the act of doing any thing that could possibly affect it. If this declaration had been made the next day after the accident, it would scarcely be claimed that it was admissible evidence against the company. And yet the circumstance that it was made between ten and thirty minutes-an appreciable period of time-after the accident, cannot upon principle make this case an exception to the general rule. If the contrary view should be maintained, it would follow that the declarations of the engineer, if favorable to the company, would have been admissible in its behalf as part of the res gesta, without calling him as a witness a proposition that will find no support in the law of evidence. The cases have gone far enough in the admission of the subsequent declarations of agents as evidence against their principals. These views are fully sustained by adjudications in the highest courts of the States. (2) In an action brought by a husband and wife to recover for injuries to the latter, a written statement of her physician as to the nature and extent of her injuries, made at the request of the husband after the writer had been attending the wife for some time, is not admissible, in connection with the physician's testimony that it correctly stated her condition at the time-it not appearing that the witness could not recall the facts therein stated at the time of giving his testimony; and although the witness testified, apart from the writing, to the material facts embodied in it, the admission of it in evidence is ground for reversal, as it cannot be determined what weight may have been given it by the jury. The authorities are uniform in holding that a witness is at liberty to examine a memorandum prepared by him, under the circumstances in which this one was, for the purposegarded by the government without a breach of good of refreshing or assisting his recollection as to the facts stated in it. But there are adjudged cases which declare that unless prepared in the discharge of some public duty, or of some duty arising out of the business relations of the witness with others, or in the regular course of his own business, or with the knowledge and concurrence of the party to be charged, and for the purpose of charging him, such a memorandum cannot under any circumstances be admitted as an instrument of evidence. There are however other cases to the effect, that where the witness states under oath that the memorandum was made by him presently after the transaction to which it relates, for the purpose of perpetuating the recollection of the facts, and that he knows it was correct when prepared, although after reading it he cannot recall the circumstances so as to state them alone from memory, the paper may be received as the best evidence of which

the case admits. The present case does not require us to enter upon an examination of the numerous authorities upon this general subject; for it does not appear here but that at the time the witness testified he had, without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection, there was no necessity whatever for reading that paper to the jury. Applying then to the case the most liberal rule announced in any of the authorities, the rul ings by which the plaintiff's were allowed to read the physician's written statement to the jury as evidence, in itself, of the facts therein recited, was erroneous. It is however claimed in behalf of the plaintiffs that in his answers to other interrogatories the physician testified apart from the certificate to the material facts embodied in it, and that therefore the reading of it to the jury could not have prejudiced the rights of the defendant, and for that reason should not be a ground of reversal. We are unable to say that the defendant was not injuriously affected by the reading of the physician's certificate in evidence. It is not easy to determine what weight was given to it by the jury. In estimating the damages to be awarded, in view of the extent and character of the injuries received, the jury, for aught that the court can know, may have been largely controlled by statements. The practice of admitting the unsworn statements of witnesses, prepared in advance of trial, at the request of one party, and without the knowledge of the other party, should not be encouraged by further departures from the established rules of evidence. While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was committed, it is well settled that a reversal will be directed unless it appears beyond doubt that the error complained of did not and could not have prejudiced the rights of the party. Smiths v. Shoemaker, 17 Wall. 630, 639; Deery v. Crary, 5 id. 795; Moores v. National Bank, 104 U. S. 630; Gilmer v. Higley, 110 id. 50; S. C., 3 Sup. Ct. Rep. 471. Nov. 1, 1886. Vicksburg & M. R. Co. v. O'Brien. Opinion by Harlan, J. Waite, C. J., Field, Miller and Blatchford, J.J., disseuting.

POST-OFFICE-CONTRACT IMPLIED FROM SERVICESGOVERNMENT MAIL CONTRACTS.-Where in the condition for the carrying of the United States mails, attendant upon the land grant to a railroad corporation, the postmaster-general is empowered to establish the price until fixed by Congress, such power includes the power to prescribe the period of its duration which is in his discretion, unless collateral stipulations, which could not be enforced without consent of the company, are annexed to the agreement with him. In that case a contract is created which cannot be disre

faith. The plaintiff, a railroad company, carried the United States mails for four years under a written contract with the postmaster-general. It was bound to carry the mails, under the terms of its land grant, at such prices as Congress should by law direct. After the expiration of the written contract the company continued to perform the same services for four years more, receiving pay for some months at the old rate, then at a reduced rate fixed by the postmaster-general, and then at rates reduced twice successively by acts of Congress, of which the plaintiff received notice. Held, on an action to recover the difference between the rates as reduced by Congress and the rates fixed by the postmaster general, no right could be implied against the government from the continuance of the services, nor was plaintiff bound by the terms of its written contract. Nov. 1, 1886. Jacksonville, P. & M R. Co. v. United States. Opinion by Field, J.

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