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water which was pumped as an independent cause of were inserted in the body of the quotation by Mr.
action would occasion an injury without damage. The Justice Woodward, who delivered the opinion of this
pollution of a clear stream might inflict an injury for court.
which damages would be recoverable, but we can- The doctrine declared in Fletcher v. Rylands, re-
not see how damages could be estimated for the pol- garded as a goneral statement of the law, is perhaps
lution of a stream which had already become foul not open to criticism in England, but it is subject to
from other causes for which the law gave 20 rem- many and obvions exceptions there, and bas not been

generally received in this country. A rule which casts It is said the defendants created an artificial water- upon an innocent person the responsibility of an incourse from their mine to Meadow brook, but this surer is a hard one at the best, and will not be generartificial water-course was upon their own land, and ally applied unless required by some public policy or conducted no more water to the brook than by the the contract of the parties. The later decisions in the natural conformation of the surface could otherwise | English courts seem to encourage, rather than to dishave reached it. If it be suggested that the defend. courage, exceptions to it. But we regard the rule in ants might have extended this artificial water-way, Fletcher v. Rylands as wholly iuapplicable to the case in form of a sewer, to some point of safety, it may under consideration. Referring to the judgment, wo be asked where short of the sea might the sewer be find the facts of that case to have been as follows: discharged, that the same complaiut might not be the plaintiff was damaged by his property being made?

flooded with water, which without any fault on his We do not say that a case may not arise in which a part, broke out of a reservoir constructed and mainstream, from such pollution, may be regarded as a tained on the defendant's land by the defendpublic nuisance, and that the public interests, as in. ants' orders. The coal under the defendants' volved in the general health and well-being of the land had, at some remoto period, been worked community, may not require the abatement of that out, but this was unknown at the time the nuisance. This is not such a case. It is shown that defendants gave directions to erect the reservoir. the community in and arouud the city of Soranton, Although the persons employed did not in fact use including the complainant, is supplied with abundant proper care and skill to provide for the sufficiency of pure water from other ources. There is no complaint the reservoir with refrence to these old shafts, the deas to any injurious effects from this water to the gen. tendants were personally free from all blame. The eral health. The community does not complain on any consequence was that the reservoir, when filled with ground. The plaintiff's grievance is for a mere personal water, burst into the shafts. The water flowed down inconvenience; and we are of opinion that mere private through them, into the old workings, and thence into personal inconveniences, arising in this way and under the plaintiff's mine, and there did the mischief. “We such circumstances, must yield to the necessities of a thiuk that the true rule of law is," says Blackburn, J., great public industry, which although in the hands of that the person, who for his own purposes brings on a private corporation, subserves a great public inter- | his lands, and collects and keeps there, any thing est. To encourage the development of the great nat- likely to do mischief if it escapes, must keep it in at ural resources of a country trifling inconveniences to his peril, and it he does not do so, is prima facie anparticular persons must sometimes give way to the swerable for all the damage which is the natural connecessities of a great community. Nor do we say that sequence of its escape. He can excuse himself by a miner, in order that his mines may be made avai)- showing that the escape was owing to the plaintiff: able, may enter upon his neighbor's lands, or inflict default; or perhaps that the escape was the consoupon him any other immediate or direct injury, but quence of vis major or the act of God; but as nothing we do say, that in the operation of mining in the or- of this sort exists here, it is unnecessary to inquire dinary and usual manner, he may, upon his owui lauds, what excuse would be sufficient. The general rule, lead the water which percolates into his mine into the as above stated, seems on principle just." Then streams which form the natural drainage of the basin follows the clause which we fiud quoted in the opinin which the coal is situate, although the quantity as ion of Mr. Justice Woodward. well as the quality of the water in the stream may But the defendants in the case at bar brought noththereby be affected.

ing upon the land; they accumulated pothing In the previous disposition of this case in this court, there; the water was there without any act of as reported in 86 Pemu. St. 401, the principle of law theirs; and it was the accumulation of it which they mainly relied upon was stated as follows: "If a man sought to prevent. They were in the natural user of brings or uses a thing of a dangerous nature on his owli their lands for a lawful purpose, and the discharge of land, he must keep it at his own peril, and is liable for the mine water was an absolute necessity in order to the consequences if it escapes and does injury to that use of the land. The distinction is obvious; and another. Jones v. Festiniog R.Co., L. R., 3 Q. B. 1936." we cannot see how Rylands v. Fletcher can be sup"The person whoso grass or com is eaten down by the posed to have any application in the oonsideration of escaping cattle of his neighbor, or whose mine is this case. tlooded by the water from his neighbor's reservoir The case was taken to the House of Lords on a pro(Harrison v. Great Northern R. Co., 3 Hurl. & C. 238), ceeding in error against the judgment of the exchequer or whose habitation is made unhealthy by the fumes chamber, which bad reversed the judgment of the and noisome vapors of his neighbor's alkali works court of exchequer. The judgment was there af(St. Helen's Smelting Co. v. T'ipping, 11 H. L. Cas. 612), firmed (Rylands v. Fletcher, L. R., 3 H. L. 330), and is damuified without any fault of his own, and it seems the ganeral legal proposition involved in the case thus but reasonable and just that the neighbor who has stated by Lord Cranworth: “If a person bring or brought something on his own property which was not accumulate on his land any thing which is it should naturally there, harmless to others so long as it was escape may cause damage to his neighbor, he does so confined to his own property, but which he knows at his peril. If it does escape, and cause damage, he will be mischievous il it gets on his neighbor's, should | is responsible however careful he may have been, and be obliged to make good the damage which ensues if whatever precautions he may have taken to prevent he does not succeed in confining it to his own prop- damage." erty, Fletcher y. Rylands, L. R., 1 Exch. 280."

But tbe very distinction we have endeavored to The parenthetic references to authorities are not point out between that case and this was suggested in found in the opinion in Fletcher V. Rylands, but the judgment of the House of Lords in the case re

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ferred to. Lord Cairus says: “The defendants cases (Rylands v. Fletcher and Smith v. Fletcher) is in
might lawfully have used that close for any purpose direct conflict with the law as settled in this country.
for which it might, iu the ordinary course of the em- Here if one builds a dam upon his own premises, and
ployment of land, be used; and if in what I may term tbus holds back and accumulates the water for his
the patural user of that land, there had been any ac- benefit, or if he brings water upon his premises into a
cumulation of water, either on the surface or under- | reservoir, iu case the dam or the banks of the reser-
ground, and it by the operation of tbe laws of nature, voir give way, and the lands of a neighbor are thus
that acoumulation of water had passed off into the flooded, he is not liable for the damage without proof
close occupied by the plaintiff, the plaintiff could not of some fault or negligence on his part. Ang. Water-
have complained that the result had taken place." courses, $ 336; Laphan v. Curtis, 5 Vt. 371; Todd v.

A lina was thus drawn between the rule recoguized | Cochell, 17 Cal. 97; Everett v. Hydraulic, etc., Co., 23
in the case adjudged and the general immunity whicbid. 225; Shrewsbury v. Smith, 12 Cush. 177; Livingston
the law extends to land-owners for acts done in the V. Adams, 8 Cow. 175; Bailey v. Mayor, etc., of N. Y.,
natural and lawful user of their land. In the first 3 Hill, 531; S. C., 2 Denio, 433; Pixley v. Clark, 35 N.
head-note of the case, as reported in L. R., 3 H. L. Y. 520, 524; Sheldon v. Sherman, 42 id. 484."
330, the general legal proposition embodied in the The true rule is laid down in the case of Livingston
judgment of the House of Lords is thus stated: V. Adams, as follows: “ Where oue builds a mill-dam
"Where the owner of land, without willfulness or upon a proper model, and the work is well and sub-
negligence, uses his land in the ordinary manner of stantially done, he is not liable to an action though it
its use, though mischief should thereby be occasioned break away, in consequence of which his neighbor's
to bis neighbor, he will not be liable for damages."' dam and mill below are destroyed. Negligence should
Thus it seems that the liability, even under the ruling be shown in order to make him liable."
of Rylands v. Fletcher, is rested on the manifestly haz. In Marshall v. Welwood, Beasley, C. J., says:
ardous state of things artificially maintained on the fallacy in the process of argument by which judgment
land, and not on the natural user of it.

is reached in the case of Rylands v. Fletcher, appears
As we have said, even in England the later decis- to me to consist in this, that the rule, mainly appli-
ions favor exceptions to the rule of Rylands v. Fletcher. cable to a class of cases, which I think should be re-
Thus in Nichols v. Marsland, L. R., 10 Exch, 255, the garded as in a great degree exceptional, is ampli-
defendant was an owner of artificial pools formed by fied and extended into a general, if not universal, prin-
damming a natural stream into which the water was ciple."
fiually let off by a system of weirs. The rainfall ao- In Garland v. Towne, Ladd, J., referring to the case
companying an extremely violent thunder-storm broke of Rylands v. Fletcher, says: “ I am not aware that
the embankments, and the rush of water down the any court this side of the Atlantic has gone so far as
stream carried away four county bridges, in respect this, and I apprehend it would be a surprise, not only
of which the action was brought. It was held that to that large class of our people engaged in various
the rule referred to did not apply iu the operation of manufacturing operations, who use water-power to
natural forces so violent and unexpected that human propel their machinery, and for that purpose maintain
foresight could not have been reasonably expected to reservoirs, but to the legal profession, to hold that in
anticipate it. So it has been held not to apply where case of the breaking away of such reservoirs, there is
the immediate cause of the damage is the act of a no question of care or negligence to he tried, but that
stranger (Box v. Jubb, 4 Exch. Div. 76), nor when the he who has thus accumulated water in a non-natural
artificial construction is maintained for the common state, on his own premises, is liable at all events, as
benefit, and the immediate cause of the injury of such matter of law, in case it escapes, for the damage
a trivial character as to have been wholly unexpected caused by it. As a general proposition, it is safe to
(Carstairs v. Taylor, L. R., 6 Exch. 217), or in the ex- say that the owner of the land has a right to make
ercise of powers specially conferred by law. Madras reasonable use of his property, and that right extends
Ry. Co. v. Zemindar, etc., L. R., 1 Ind. App. 364. as well to an unlimited distance above the earth's sur-

The principle of Rylunds v. Fletcher was again en- face as to an unlimited distance below."
forced by the court of exchequer in Smith v. Fletcher, See also Whart. Neg. 934; Ang. Water-courses, 336;
L. R., 7 Exch. 305, a case referred to in the argument | Washb. Easem., ch. 3, § 7; Jones v. R. Co., 27 Vt.
of counsel, growing out of injury from the same prem- 399.
ises. The case was carried up however to the exche- If a man erect a mill upon a stream of water, and
quer obainber, where the judges thought that under build a dam wholly upon his own land in order to ap-
the circumstances of the case, evidence might have ply the weight and power of the water to the propel-
been received to show that every reasonable precau- ling of his mill, or if he erect tanks or basins to retain
tiou had been taken to guard agaiust ordinary emer- water for the irrigation of his land, it seems a severe
geucies, and that it was desirable the opinion of the rule to put upon him the strict and unbending obliga-
jury should be taken as to whether the acts of the de- tion of an insurer, to hold him liable for any injury
fendants wer done in the ordinary, reasonable, and whatever which may result from the escape of the
proper mode of working the mine. It was not alto-water, whether in the construction and maintenance
gether clear therefore since the decision of this case of the works he was negligent or not. As a general
in the exchequer chamber, what the English doctrine rule, those who engage in an undertaking attended with
is as to cases which are not strictly like Rylands v. risks to their neighbors are auswerable for the con-

duct of that undertaking with diligence proportioned Nor has the doctrine of Rylunds v. Fletcher been to the apparent risk, and this would seem to be the generally received in this country. It has been cited better rule. Where one places a steam-boiler upon with approval in Massachusetts (Shipley y. Fifty As- his premises, and operates the same with care and sociates, 106 Mass. 194; Gorham v. Gross, 125 id. 232; skill, so that it is no puisance, in the absence of proof Mears v. Dole, 135 id. 508), but it has been expressly of fault or negligence upon his part. he is not liable for denied in New York (Losee v. Buchanan, 51 N. Y. damages to his neighbor, occasioned by the explosion 477), in New Jersey (Marshall v. \Velwood, 38 N. J. of his boiler. Losee v. Buchanan, supra. A railway Law, 339), and in New Hampshire (Swett v. Cutts, 50 company may bring upon its lands locomotive engines, N. H. 439; Garland v. Towne, 55 id. 57).

and if notwithstanding the best practicable care and In Losee v. Buchanan, Earl, C., says: “It is suffi- caution, and the use of the best approved appliances, cient however to say that the law as laid dowu ju these sparks escape, and fire the property of the adjaceut

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land-owners, the company will not be held for the Pennsylvania has been brought to our notice in which consequences. So with fires necessarily employed in the precise question appears to have been decided. the clearing of laud, and for domestic purposes; in the As the discharge of mine water is incident to all accumulation of materials for building of dwelling- mining, it is probable that there is scarcely a stream in houses, or other necessary structures on the laud, for the mining regions of Lackawanna county which is the enjoyment thereof.

not, to a greater or less extent, similarly affected; but In the first place then we do not regard the rule in adopting the language of our Brother Paxson in his Rylands v. Fletcher as having any application to a dissenting opinion (6 Wkly. N. Cas. 100): "The popu. case of this kind, and if it had we are unwilling to lation, wealth, and improvements are the result of recognize the arbitrary and absolute rule of responsi-mining, and of that alone. The plaintiffs knew, when bility it declares, to the full extent at least to which they purchased their property, that they were in a its general statement would necessarily lead.

mining region. They were in a city born of miniug The case of Mason v. Hill, 5 Barn. & Adol. 11, is in operations, and which had become rich and populous no respect inconsistent with the view we have ex- as the result thereof. They knew that all mountain pressed, and we cannot see how it can be supposed to streams in that section were affected by mine water, have any important bearing on the case.

or were liable to be. Having enjoyed the advantages The only case cited by the defendants in error which coal mining confers, I see no great hardship, wbich would seem to sustain their view of this case is nor any violence to equity, in their also accepting the the rather recent case of Pennington v. Brinsop Coal inconveniences necessarily resulting from the busiCo., L. R., 5 Ch Div. 769, where an injunction was uess. granted to restrain the coal company from pumping We are of opinion, for the reasons stated, this judgwater from their colliery into Borsdave brook, by ment should be reversed. It is with the greatest remeans whereof the water used in the plaintiff's cot- luctance we conclude to revise and reverse a former ton-mill was corrupted. The claim in that case how- judgment of this court. We feel much more embarever included the distinct assertion by the plaintiff of rassed in so doing because of the well-known ability a prescriptive right to the use of the water for the and learning of the distinguished judge who delivered supply of his boilers, and for the other purposes of the the previous opinion, and of the fact that two, at least mill in its natural purity. That the plaintiff had all of our number have given that opinion their formal the rights of a riparian owner, and also a right by pre-approval; but a majority of this court, as it is now scription, was conceded. Upon this the court granted constituted, satisfied that the rule laid down in that an injunction. What the plaintiff's rights as a ripa- opivion and judgment is a wrong one, feel constrained rian owner were, was not separately discussed in the to adopt a different rule, and enter a different judgjudgment of the court. Indeed that question was not ment. The view which we have taken of this case rendisscussed at all, and cannot be said to have been de- ders it unnecessary that we should consider the other cided, because as we have said, the defendant con- errors assigned. ceded the prescriptive right. The opinion of the court The judgment is reversed. (Fry, J.) is wholly occupied with the discussion of a Merour, C. J., and Gordon and Trunkey, JJ., disquestion which is irrelevant here, whether where the sent. right is conceded, damages might or should be awarded in lieu of the injunction. As the question now under consideration was neither discussed nor decided, we

UNITED STATES SUPREME COURT ABcannot see how the case can be supposed to have any

STRACT. importance here. If it be assumed however that it was decided upon the plaintiff's rights as a riparian INDIANS-TREATIES - CONSTRUCTION CESSION OF owner alone, we think the case was not well consid- LANDS.—By the Treaty of 1820, between the United ered. The authorities cited by the learned judge, in States and the Choctaws, the latter ceded a small porthat view, certainly do not sustain him.

tion of their lands east of the Mississippi to the forThere is a well-known line of cases in Pennsylvania mer, in part payment for which the United States and elsewhere which decide that a stream of water ceded to them a tract west of the Mississippi-tbe exmay not be fouled by the introduction into it of any pressed object of the treaty being to promote the civforeign substance, to the damage and injury of the ilization of the Choctaws by establishing schools among lower riparian owners. Howell v. McCoy, 3 Rawle, them, and to perpetuate them as a nation, by exchang256; Barclay v. Com., 25 Penn. St. 503; McCallum r. ing for a small part of their land in Mississippi a coun. Germantown Water Co., 54 id. 40; Wood v. Sutcliffe, 16 try beyond the Mississippi; and it was stipulated that Jur. 75; Wood v. Waud, 3 Exch. 748; St. Helen Smelt- “the boundaries hereby established between the Chocing Co. v. Tipping, 4 Best & S. 608; S. C., 11 H. L. 642, taw Indians and the United States, on this seast) sido are cases of this kind. But we do not understand the of the Mississippi river, shall remain without alteraprinciple of these cases to be denied, and we think tion until the period at which said nation shall become they are not pertinent to the question now under con- so civilized and enlighted as to be made citizens of the sideration. The defendants introduced nothing into United States." Afterward it became desirable to the water to corrupt it. The water flowed into

obtain the remaining lands held by the Choctaws east Meadow brook just as it was found in the mine. Its of the Mississippi, and great pressure being brought to impurities were from natural, and not from artificial bear upon them, they finally conserted to the Treaty

It may be said, that if the mines had not been of 1830, by which they ceded their remaining lands opened, the water which flowed into the stream would east of the river, and in pursuance of this they rehave been pure; but as Chief Justice Lewis said in moved west of the river to the tract before ceded to Wheatley v. Baugh, 25 Penu. St. 532: “The law has them. No payment was pretended to be made for the never gove so far as to recognize in one man the right lands thus taken; and the only money payments seto convert another's farm to his own use for the pur- cured by the Treaty over and above the necessary expose of a filter."

pense of moving the Indians, providing for their subIn the case of New Boston Coal Co.v. Pottsville Watersistence for twelve months after reaching their new Co., 54 Penn. Penn. St. 164, a question of a somewhat homes, and paying for their cattle and improvements, similar nature was sought to be raised in this court, was an annuity of $20,000 for twenty years, and cerbut the cause was determined on other grounds, and tain sums to be expended for education, public build. the question referred to was not decided. No case in ings, and furuishing tools, implements and weapous in


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addition to several annuities secured under former visor, for the purpose of billing it under section 1, 1
treaties. By the treaty large reservations of land east Gross St. (3d ed.) 1869, ch. 103, art. 7, pp. 750, 751, and a
of the river were made, and those Indians desiring to vacancy in the office of the retiring justice, for the
remain and become citizens of the United States were purpose of the town clerk and the other justice, as the
promised grants in fee-simple, after a certain term of remaining officers of the appointing board, to appoint
settlement thereon. The Uvited States failed to ful. a supervisor under section 2 of the same act. The
fill the obligations imposed upon it by this treaty in fraud or circumvention intended by the eleventh sec-
various particulars, especially as to the lands reserved: tion of the Illinois statute (1 Gross St. [3d ed. 1869), ch.
and as to some of the claims, but not all, arising from 73, p. 462) is not that which goes merely to the consid-
such violations, made a settlement with the Indians eration of the instrument, but it must go to the execu-
in making which advantage was taken of their neces- tion or making, and there must be a trick or device by
sities. Held, that under the circumstances the award which one kind of instrument is signed in the belief
of the Senate, under the Treaty of 1855 (giving to the that it is of another kind, or the amount or nature or
award the effect of prima facie evidence of the correct- terms of the instrument must be misrepresented to
ness of the claim thereby reduced to judgment), by the signer. Query, as to the application of this statute
which the United States was required to account to to town bonds and their coupons. Nov. 15, 1886. Town
the Choctaws for all the pecuniary benefits derived of Oregon v. Jennings. Opinion by Blatchford, J.
from the land ceded by the act of 1830, was a fair, just

PUBLIC LANDS-GRANT OF 1864 TO NORTHERN PAand equitable settlement, and the amounts thereby

CIFIC RAILROAD COMPANY INDIAN TITLE. - The awarded should be adjudged due in this action, de

grant by the act of Congress of July 2, 1864, to the ducting the amount of a payment made on account of

Northern Pacific Railroad Company of lands to which said award under the act of March 2, 1861. Upon this

the Indian title had not been extinguished, operated principle of settlement, and in accordance with the

to convey the fee to the company, subjeot to the right award, the Choctaws are ordered to receive the pro

of occupancy by the Indians. The manner, time and ceeds of the sales of the lands by the government, de

conditions of extinguishing such right of occupancy ducting expenses of survey and sale, and reckoning the

were exclusively matters for the consideration of the unsold portions at an estimated value of 1215 cents per

government, and could not be interfered with, nor put acre, and deducting payments and expenditures made

in contest by private parties. The agreement of tho under the Treaty, but disregarding the release exe

Sisseton and Wahpeton bands of Dakota or Sioux Incuted in pursuance of the settlement referred to.

dians for the relinquishment of their title was acHeld, also, a mistake having been made by the gov

cepted on the part of the United States when it was ernment in surveying the territory west of the Mis

approved by the secretary of the interior, on the 19th sissippi ceded to the Indians, so that a large tract was

of June, 1873. That agreement stipulating to be bindexcluded therefrom which should have been included, ing from its date, May 19, 1873, and the Indians having that the value of this should be paid to the Indians.

retired from the lands of their reservations, the relinHeld, also, that unpaid annuities due under treaties

quishment of their title, 80 far as the United States prior to that of 1855 should be included in the judg

are concerned, held to have then taken place. Upon tho ment. Nov. 15, 1886. Choctaw Nation v. United

definite location of the line of the railroad on the 26th States. Opinion by Matthews, J.

of May, 1873, the right of the company, freed from any MUNICIPAL CORPORATION-TOWNSHIP BONDS-BONA incumbrance of the Indian title, immediately attached FIDE HOLDER-RECITALS-ESTOPPEL-ILLINOIS ACT to the alternate sectious; and no pre-emptive right OF MARCH 30, 1869, $ 6.—The supervisor and the town could be initiated to the land, so long as the Indian clerk of the town of Oregon, Ill., under section 6 of title was unextinguished. When the general route of the act of March 30, 1869, providing for the issuance of the road provided for in section 6 of the act of July 2, bonds, etc., in aid of the Ogle & Carroll County Rail- 1864, was fixed, and information thereof was given to road Company, by towns and villages along its route,

the land department by the filing of a map thereof are the officers to sign the bonds, and the “corporate with the secretary of the interior, the statute withauthorities " to act for the town in issuing them to the drew from salo or pre-emption the odd sections to the company, and are the persous intrusted with the duty extent of forty miles on each side thereof; and by of deciding, before issuing the bonds, whether the con- way of precautionary notice to the public, an execuditions determined at the election authorizing the is- tive withdrawal was a wise exercise of authority. The Bue existed. Having certified to that effect in the general route may be considered as fixed wheu its bonds, the town is estopped from assertivg, as against general course and direction are determined, after an a bona fide holder, that the conditions prescribed by actual examination of the country, or from a kuowlthe popular vote were not complied with. The effect edge of it, and it is designated by a line on a map, of section 6, Illinois aot of March 30, 1869, that the showing the general features of the adjacent country, election to pass upon the issuance of bonds, etc., in aid and the place through or by which it will pass. That of the Ogle & Carroll County Railroad Company, by part of section 3 of said act which excepts from the towus along the route, should ** be held and con- grant lands reserved, gold, granted, or otherwise ducted, and returu thereof made, as is provided by appropriated, and to which pre-exemption and other law." is that the election in the town of Oregon could rights and claims have not attached, when a map of properly be conducted in t be manner prescribed by definite location has been filed, dves uot include tho law for the election in towns of town officers, viz., by Indian right of occupancy within such “ other rights a moderator and the town clerk, the town clerk hav- and claims;' nor does it include pre-emptions, where ing given, as required by the act, the prior notice of the sixth section declares that the land shall not be the election, and the return of the election being filed subjeot to pre-emption. Nov. 15, 1886. Bultz v.Northin the office of the town clerk, and the two officers ern Pacific R. Co. Opinion by Field, J. being paid by the town. The officers of a town organized under the Illinois Township Organization Law are one supervisor, two justioes of the peace, and one

ABSTRACTS OF VARIOUS RECENT DEtown clerk; and where the supervisor has resigned

CISIONS. December 30, 1870, and one of the justices March 2, 1871, his successor not being elected until April 4, 1871, EVIDENCE-AGE OF WRITING-EXPERTS. --The age there is on April 3 a “vacanoy" in the office of super- or date of the actual execution of a written paper is

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not a question of science, skill or trade, nor one of the give to the case has led me to the conclusion that it
like kind, upon which a witness may testify and give does not present a question of science, skill or trade,
bis opiniou as an expert upon its mere inspection. nor one of a like kind. Iu other words, I do not thiuk
Greenleaf thus states the case : "On questions of sci- that any amount of science, study or skill would en-
ence, skill or trade, or others of the like kiud, persons able a person, by mere inspection, to judge or testify of
of skill, sometimes called experts, may not only tes. the age of handwriting with that accuracy necessary to
tity to facts, but are permitted to give their opiuions in its value or safety in judicial proceedings. The ap-
evidence." 1 Greenl. Ev., $ 440. Having examined the pearance of a written paper, some years, or even
books as thoroughly as the time at my disposal will per- months, old, will depend greatly upon the color, kiud
mit,and failed to find any case involving facts'similar to and quality of the iuk used, and greatly upon the re-
to those of this case, and none being cited by counsel, ceptacle or place where the paper has been kept-
the question of the sufficiency of the evidence to sus- whether excluded from the air or sunshine; whether
tain the finding and judgment must be determined in in a dry or damp, hot or cool, place; aud other condi-
the main by origiual considerations. I have found tions, the knowledge of wbich must be derived from
two cases however which will be cited as worthy of sources other than inspection. Again, there is no rec-
some consideration in support of the conclusion to ognized science or trade in which it can be said to be
which I have arrived. The case of Clark v. Bruce, 12 necessary that persons engaged in it should be skilled
Hun, 271, was brought upon three promissory notes. in detecting the age of writings by inspection. The
Tue statute of limitations was set up as a defeuse. science of the law perhaps comes nearer to it than any
The plaintiff relied upon certain partial payments in: other, and the instances in which it becomes necessary
dorsed thereon. Stephen Lockwood was called as a or even useful, that the legal practitioner should pos-
witness by the defendant, and testified "that he was sess such skill, are very rare, Neb. Sup. Ct., Oct. 27,
and had been an attorney for over twenty years; that 1886. Cheney v. Dunlap. Opinion by Cobb, J.
in his business he had had occasion to examine old
and new writings, and to examine when they were

HEARSAY-IDENTITY CLAIM UNDER WILLclaimed not to be genuine; and that he had examined One seeking to establish title nuder a will cannot the notes in suit, and the indorsements on them of prove her identity by unrelated persons, acquainted 13th June, 1858, and 3d January, 1862. He was then with the family, and its history, by information deasked: 'In your opinion, were the indorsements of rived from inembers of the family. The declarations June 13 upon those notes written as long ago as they of different members of the family that are deceased bear date?' He was also asked: "Are the indorse- can be proved, but if they are alive they must tbemments of 13th June, 1858, and 3d January, 1862, written selves be called. The party herself is competent. The with the same pen and ink?' The defendant also of- appellee undertook in the court below to prove her fered to show by the witness that each of the indorse- identity as the Mrs. Henderson, now Mrs. Gagoni, by ments, in the opinion of the witness, was written at a N. P. Moss, who swore that he had kuown George S. more recent time than its date, and that they were all Badger and wife, Jane D. Chitwood, and Mary A. written within two years past, judging from the ap- Gagoni for about fifteen years, and that from the pearance or the writing and ink." Upon objection, family history derived from these parties he knew the evidence was rejected. There was a judgment for that Mrs. Henderson, named in the will of Baker the plaintiff. Upou appeal, the Susreme Court say: Woodruff, was Mrs. Gagoni, the appellee. Mr. Green“The questions and offer called for the opinion of the leaf, in the first volume, $ 103, of his work on Eviwimess. He was not asked to state facts-to describe dence, says: “But the rule is now settled tbat the law the appearance of the indorsements in any respect- resorts to hearsay evidence, in cases of pedigree, upon but to give an opinion as to the time when the indorse- the ground of the interest of the declarants in the perments were made, based upon the appearance of the son from whom the descent is made out, and their writing and the ink. What was the appearance of the subsequent interest in knowing the cornections of tho writing and the ink does not appear by the evidence. family. The rule of admission is therefore restricted We do not think the witness had showu himself to be to the declarations of deceased persons who were reau expert on that subject. To judge of the genuine- lated by blood or marriage to the person, and thereness of handwriting--that is, to judge whether it was fore interested in the succession in question; aud written by the person whose handwriting it purports to general repute in the family, proved by a surviving be-is one thing: to determine its age from its ap- member of it, has been considered as falling within pearance is quite attother. The wituees may have had the rule.” It is only in the instance that the declaroccasion to pass upon the genuineness of many writ- ant is dead, and was related to the person in question ingy, old and new, and yet never have been called on by blood or marriage, that his declarations as to tho to form an opinion from the appearance of bandwrit. relationship, and the degree of it, of such person can ing as to whether or not it was written at the time it be proved by third persons; and any other, whether bore date.

We think the objection was prop related or not, if otherwise competent as a witness, erly sustained.” The other case is that of Ellingwood | who heard such declarations, may prove them. If v. Bragg, 52 N. H. 290. I will quote only a part of the however such relationship is attempted to be proven byllabus: “Upon the question of whether a long ac- by the general repute in the family, and not by the count upon a party's books was written at different declarations of its deceased members, then the proof times, as it purported to be, or whether it was all writ- must be confined to the surviving members of it. If ten with the same pen and ink, and at the same time, a the declarant is not dead, then it is not competent to witness testified that he had been in practice as a law- prove his declarations, because he can himself testify yer some forty years, and had about the same expe- to the fact, which is the best testimony. The record rience as lawyers in general in the examination and does not show that these declarants were cead, por that comparison of handwritings; that he had been en- they were related to the devisor. They were all, as far gaged in one or two cases which had led him particu- as the record shows, competent to swear to the fact in lariy to examine and compare handwritings, but he question; and if their evidence was desired, they did not claim to be able to give an opinion upon which should have been introduced as witnesses, in person or any great reliance could be placed. Held, that the ad- by deposition. Besides the appellee was herself a commission of the witness to testify as an expert was er- petent witness to prove the facts. She was not intro. roneous." A new trial was granted. Whatever read. duced at all. Ky. Ct. App., Oot. 28, 1886. Dupoyster ing, examination and reflection I have been able to V. Gagoni. Opinion by Bennett, J.


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