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RES GESTÆ-NEGLIGENCE-PROXIMATE CAUSE. -(1) In an action to recover damages for death caused by negligence, declarations of the deceased as to the cause of the injury sustained, made after he had returned home, and more than thirty minutes after the accident, are not admissible as part of the res gesta. It is difficult, if not impossible, to say definitely what constitutes a part of the res gesta. No absolute rule is or can be established in relation thereto. A discretion is and must be reposed in the court, and therefore each case must largely depend upon the circumstances surrounding the transaction or res gesta. If the proposed evidence is merely a narration of a past occurrence, then it cannot be received as proof of the existence of such occurrence. 1 Greenl. Ev., §§ 108110. The res gesta or transaction was the accident, and how it occurred. It is not essential that the declaration sought to be introduced in evidence was uttered at the identical time the accident occurred, but if made soon afterward, and explanatory thereof, it is admissible. State v. Jones, 64 Iowa, 349; Insurance Co. v. Mosley, 8 Wall. 397. In the former the declaration preceded the occurrence, but was made in anticipation of it, and explanatory of a purpose. In the last case the deceased, for a proper purpose, left his house in the night-time, and immediately upon his returning he stated that he had fallen down stairs and hurt his head. This evidence was held admissible, by a divided court; and in People v. Davis, 56 N. Y. 102, it said in relation thereto, that "what may be regarded as a part of the res geste was certainly carried to its utmost limit by a majority of the court." We are however, we think, asked to go a step further than that case. In the cited case the deceased left his bed, and passed out of his house for a certain purpose; and when he came back, said that in accomplishing such purpose he had fallen down stairs, etc. It seems to us that the declaration may be said to be explanatory of what occurred during his necessary absence; and while it may be difficult to draw a sharp distinction between that case and the one at bar, still we think there is a marked difference. In this case it does not appear when the deceased left home, or that he left there for the accomplishment of an avowed purpose. He did not voluntarily and of his own accord, return home after the accident, but he was taken home by others; and the declaration sought to be introduced was not made on his own motion, as explanatory of either his absence or the condition he was in. We feel constrained to hold that the evidence sought to be introduced does not constitute a part of the res gesta, and is therefore not admissible. People v. Davis, supra. (2) If this had not been done, the accident would not have occurred. The engine might have stood on the track until doomsday, and the plaintiff's hand could not have possibly got under the driving wheel. It is claimed however that when an act is illegal or mischievous, and thereby another person is damaged, that the "disposition of the courts is to make the party liable for consequences following from the illegal act, although they be very remote." Sedg. Dam., marg. p. 88. The cases referred to, and upon which this doctrine is based, are materially different from this. We are also referred to Guille v. Swan, 19 Johns. 381, In that case an aeronaut made an ascension in a balloon, which accidentally descended into the plaintiff's garden, and a great crowd of persons ran to the balloon, and trampled down and destroyed the plaintiff's vegetables; and he was permitted to recover, upon the ground that the aeronaut knew that he could not so control the balloon as to descend when and where he saw proper, and therefore it was immaterial that he descended into the garden accidentally, and that he should have known that his

descent, under the circumstances, would ordinarily and naturally draw a crowd, and therefore he was responsible for damages. We are also referred to Byrne v. Wilson, which after considerable search we found reported in 15 Ir. Law Rep. 333; and also Crowhurst v. Amersham Burial Board, 4 Ex. Div. 5. This case we were unable to find, but we assume the point decided is correctly stated by counsel. These cases, it seems to us, are in principle like the "Squib" case, and that the controverted question therein was the remoteness of the cause of the accident; that is, whether the first wrong-doer or some other person was liable; and the holding in this class of cases is that the first wrongdoer, or the person who first threw the squib is liable, although some one else may have thrown it at the person injured. We do not think such rule can possibly obtain in this class of cases. The throwing of the squib was the proximate cause of the accident, and in the case at bar the moving of the engine was such proximate cause; and the fact that the engine stood on the track did not cause the accident, or in fact contribute thereto. Iowa Sup. Ct., Oct. 29, 1886. Armil v. Chicago, B. & Q. R. Co. Opinion by Seevers, J.; Beck, J., dissenting.

TRAIN-NEGLIGENCE

EXPERT-CONTROLLING -DUE CARE ON SUFFERER'S PART.-The opinion of an expert as to whether freight trains crossing a certain place where there was a sag, a "hog's back," and then a down grade, should have been controlled when the fore part was on the "hog's back," by applying the brakes at the front, rather than at the rear, is not admissible. Conceding that the brakes should be applied, we think it is for the jury to say to what part of the train such application should be made. When the train began the ascent of the "hog's back" there would be slack, and when it went over and pitched down the grade the slack would be exhausted in a greater or less period of time. Now if either end of the train was held back, the tendency would be to ease the train, and make the jerk or tension less than it would otherwise be. We mean, of course, if the brakes were applied to the rear end, as that portion went down the sag. Whether the train would be more likely to break in two if brakes were not applied to the front part of the train, or whether it was safe and prudent to do so, it seems to us, the facts being shown, could be determined by the jury as well as by the witness. The evidence in question we think is similar, if not identical, in principle as that held inadmissible in Hamilton v. Des Moines Val. R. Co., 36 Iowa, 31; Muldowney v. Illinois Cent. R. Co., id. 462; Way v. Same, 40 id. 341; Belair v. Chicago & N. W. R. Co., 43 id. 667; McKean v. Burlington, C. R. & N. R. Co., 55 id. 193. The question as to the proper position of brakemen on a train is materially different, and so is the question as to the possibility of so controlling a train as to avoid injuring stock on the track which came thereon within a certain distanee of the train, and so is the proper construction of cars, under the circumstances appearing in Baldwin v. Cedar Rapids, I. & P. R. Co., 50 Iowa, 680; and therefore that case and Cincinnati & Z. R. Co. v. Smith, 22 Ohio St. 246, and Bellefontoine & I. R. Co. v. Bailey, 11 id. 333, are distinguishable. (2) A brakeman on a freight train was found dead on the track, having been thrown from the train apparently by the same separating and breaking in two. About & minute before he was at his post attending to his duties, and there was evidence that he was experienced and of good habits. Held, that there was sufficient evidence of due care on his part to go to the jury. There are cases which hold when the evidence wholly fails to show that the deceased was using due care that there cannot be a recovery. Corcoran v. Boston & A. R. Co., 133 Mass.

507; Riley v. Railroad Co., 135 id. 292. It has been said that "when the circumstances point just as much to the negligence of the deceased as to its absence, or point in either direction, the plaintiff should be nonsuited." Cordell v. New York Cent. & H. R. R. Co., 75 N. Y. 330. This court however has held that the jury may infer due care under circumstances quite similar, if not in principle identical, with the case at bar. Greenleaf v. Illinois Cent. R. Co., 29 Iowa, 14. See also Allen v. Willard, 57 Penn. St. 380; Gay v. Winter, 34 Cal. 153; Strong v. City of Steven's Point, 22 N. W. Rep. 425. This last case is much like the case at bar. We are not prepared to say that there was no evidence which authorized the court to submit the question of due care on the part of the deceased to the jury, who had the right to consider all the circumstances, including the known habits of the deceased, and the instincts of self-preservation with which all men are imbued. If the cause or manner of the death was wholly unknown, it may be a different rule should prevail. Iowa Sup. Ct., Oct. 8, 1886. Burns v. Chicago, M. & St. P. R. Co. Opinion by Seevers, J.

FRAUD-SETTING ASIDE DEED-CONVEYANCE TO BE

TROTHED.-A bill in equity, alleging the plaintiff, being a widow, and engaged to marry C., was persuaded by him to convey to him certain real estate owned by her, being all of her property, under a promise that she should have it all back, and as much more besides, and with the understanding that he was merely to manage it for the benefit of herself and her children; that they afterward married, and in a few

years he died, still holding the title to said property,

and having meanwhile collected and used all the rents thereof; and that his children by a former wife now claim the absolute title thereto; and asking to have the deed set aside, and for a reconveyance and accounting, is not demurrable. Mich. Sup. Ct., Oct. 28, 1886. Carney v. Carney. Opinion by Champlin, J.

HOMESTEAD-HOTEL.- Under the Constitution of Wisconsin, a person living in a building used solely as a hotel, which is erected upon a parcel of land from half an acre to an acre in extent, and which is not situated in a city or a village, is entitled to a homestead exemption therefor, even though the statute carrying the constitutional provision into effect limits the exemption to land "used for agricultural purposes." This brings us to the question, do the words "used for agricultural purposes," as employed in the statute, exclude the appellant from the benefit of the homestead exemption therein given? To ascertain the literal meaning of the words "agricultural purposes" resort must be had to the lexicons for definitions of "agriculture." Webster tells us (accurately enough, no doubt) that it is "the art or science of cultivating the ground, especially in fields or in large quantities, including the preparation of the soil, the planting of seeds, the raising and harvesting of crops, and the rearing, feeding, and management of livestock, tillage, husbandry, farming." The defendant did none of these things on his Sullivan land, unless perhaps he kept and fed his horse there; and if the literal construction of the statute prevails, he had no homestead rights in the property, unless the same were saved by the keeping and feeding of the horse on the premises. If that was one of the purposes for which he used the premises, it must be conceded, we think, that they were used for one "agricultural purpose," at least. But we do not think the statute should receive a literal construction. Our Constitution contains an imperative mandate to the Legislature to enact exemption laws. It is ordained in article 1, section 17, of that instrument, that "the privil. ege of the debtor to enjoy the necessary comforts of

life shall be recognized by wholesome laws, exempting a reasonable amount of property from seizure or sale for the payment of any debt or liability hereafter contracted." This provision was inserted in the Consti tution for the benefit of all resident debtors, and an exemption law which protects only certain classes of debtors, leaving others unprotected, would not be a compliance with the constitutional mandate. The enactment of a homestead exemption law was absolutely essential to the proper execution of such mandate, because without it in many cases debtors would fail to realize the full benefits which the fram. ers of the Constitution, and the people who adopted it, intended they should receive under the exemption laws which the Legislature was required to enact. Many personal property exemptions would be comparatively valueless to a debtor unless his homestead is protected from seizure. Moreover a home is one of "the necessary comforts of life," in the enjoyment of which the Legislature was required to protect every debtor. The homestead exemption law, above quoted, was enacted pursuant to the mandate of the Consti tion, and there is no reason to doubt that the Legisla tur thereby intended fully to execute such mandate. By such statute therefore the Legislature intended to exempt to every debtor in the State the homestead which he owns and occupies, with a specified quantity of land appurtenant thereto, without regard to the uses to which he puts such land, or the business he pursues upon it. All that is required is that it be his homestead, and the statute was intended to protect the owner in the enjoyment of it. The fisherman may only for the spreading of his nets and the mooring of build his home upon the barren beach, using his land his vessels; or the hunter may build his home in a forest, and make no use whatever of his land appurtenant to his dwelling except to pass over it; yet we entertain no doubt whatever that the Legislature in tended, by the enactment of section 2983, to protect these men by exempting their homestead from seizure for debt. The same is true of the present case, where the debtor used his lands appurtenant to his residence exclusively in connection with his hotel business. It would be a gross imputation upon either the intelligence or honesty of the Legislature-indeed of many Legislatures-to say that in this case, and in the cases of the fisherman and hunter above suggested. no exemption was intended; but that if either of these owners should raise a bushel of beans or other produce annually upon his land, or pasture a cow upon it, then in such case an exemption was intended. The first homestead exemption law was enacted in July, 1848, at the first session of the Legislature after the adoption of the Constitution. It has been amended from time to time, but those provisions which affect the question under consideration have remained unchanged to the present time. The law has frequently been before the courts for construction. Before this case arose the unchallenged practical construction given the law by bar and bench was that it' secured an exemption to every owner of a homestead, without regard to the uses to which the land appurtenant to his dwelling and residence might be put. Now however after the lapse of nearly forty years, it is contended for the first time, so far as we are advised, certainly for the first time in this court, that a debtor owning a homestead outside a village or city can have no benefit of the homestead exemption law unless he raises produce or domestic animals on his land. It goes for nothing that he rears a family upon it, and that a homestead is exempted from seizure for debt chiefly to enable its owner to do so. We are of the opinion, and so hold that the practical construction above mentioned is the true one, and hence that the defendant's Sullivan property was exempt from seizure and

sale for his debts while he owned it. Wis. Sup. Ct., Nov. 3, 1886. Binzel v. Grogan. Opinion by Lyon, J.

PORTRAIT OF CHIEF JUSTICE SPENCER PRESENTED TO THE STATE BAR ASSOCIATION.

JUDGE

OGE EARL, of the Court of Appeals, has presented the State Bar Association an elegant and truthful oil portrait of Chief Justice Ambrose Spencer. The softness, grace and accuracy of its composition, the exquisite blending of its lights and shades, the intellectual expression that presides over it, and the historic memories connected with its original, give it inestimable value.

The learned and distinguished donor is tendered the sincere thanks and gratitute of an organization, one of whose primal duties is the preservation in various ways of the memory of the great jurists of the State of New York.

The judicial, legal and political career of Ambrose Spencer is almost unexampled in distinction and success. He was a brother-in-law of DeWitt Clinton. As a statesman and political leader, he stands in history next to his great brother-in-law.

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In the zenith of his political career, his "bossism held the powers and towering ambition of DeWitt Clinton, and Martin Van Buren, largely under his control, often neutralizing their plans in advancing his own.

At the bar he was the compeer of Hamilton, Burr, Van Vechten, Henry, Josiah Ogden, Hoffman and Wells. His judicial brethren were Chancellors Kent, Lansing, Livingston, Walworth, and Judge Brockholst Livingston.

Mr. Hammond, in his political history of the State, says: "Ambrose Spencer was truly a great man, not only fond of power, but fond of exercising it-one of the ablest judges in the nation."

He was a deep, accurate thinker, a professional scholar, familiar with the classics and the æsthetics of antiquity. His taste was refined, largely exercised in the study of the literature of all ages. As was said by Rufus Choate, "he united the most profound knowledge of law with perfect literary culture. Literature to him was of essential service; it quickened his ingenuity; it rendered his logic flexible; it enlarged his mind without taking from him the power to narrow down its proportions again to practical legal dimensions. In every way he made literature subservient to law, not dominant over it."

As we have said of Judge Spencer on another occasion, he combined, in a remarkable degree, the qualities of a great judge. He occupied a seat on the bench of the Supreme Court over nineteen years. Many volumes of reports in which his opinions are preserved attest the extent and importance of his judicial labors. In all coming time the lawyer and the student will discover in them that intellect and power, that depth of investigation and wisdom, which gave him such a commanding position among the jurists of his time. "His opinions, always brief, are characterized by such instinctive neatness and precision that no superfluous thought or word interrupts the full force of his reasoning. The rare faculty he possessed of detecting intuitively the decisive points in a case was another of his distinguishing characteristics." He always carried on his examinations, reflections and consultations with impartiality, steadiness and clear

ness.

In his personal appearance, Chief Justice Spencer was commanding and impressive. He was above the ordinary height, formed in the harmony of manly beauty. His features, as seen in the portrait, are strongly marked. The forehead high and massive, in

dicating intellectual strength; the complexion dark; the eye dark and expressive; the lines of the mouth indicate firmness, decision and self-reliance. It is easy to imagine, from the expression the artist has given the face, that Ambrose Spencer is before us as he appeared when listening to an argument, perhaps by that great master of jurisprudence he so much admired, Thomas Addis Emmet.

He was urbane and dignified in his manner. Though inclined to taciturnity, when his words began to flow he was the center of a refined and polished circle, for he was an eloquent and instructive conversationalist. He was the father of John C. Spencer, whose name and distinguished career as a statesman, cabinet minister, lawyer, writer and scholar, adds lustre to the history of the State and nation.

"Like Calhoun, whom he resembled in many os his characteristics and personal appearance, John C. Spencer was gifted, ambitious and indomitable; deficient in the plastic and congenial qualities that attach followers to party leaders, and yet from nis great moral worth, useful and powerful talent, he was always popular with the masses.'

Ambrose Spencer was born at Salisbury, Conn., December 13, 1765. In the autumn of 1779, he entered Yale College, and in 1782 Harvard University. His mind, method, and taste for polemics naturally led him to adopt the legal profession as his occupation in life.

After his admission to the bar he established himself at Hudson, N. Y., entering rapidly into a lucrative and extensive practice, soon attaining a national reputation.

The profession of law, inter-woven as it is with the preservation and protection of personal and political rights, almost necessarily brings its members into the political arena. So it was with Ambrose Spencer.

In 1794 he represented Columbia county in the Assembly. Two years later he was elected a member of the State Senate, in which body he had a seat eight successive years. On January 9, 1797, he was chosen a member of the council of revision, exercising with the executive the veto power over the laws enacted by the Legislature. In 1802 he was appointed attorney-general, serving two years. In 1803 he removed to Albany where, with the exception of a few years, he spent the remainder of his life. On February 4, 1804, he was appointed an associate justice of the Supreme Court, serving with great ability until 1819, when he received the appointment of chief justice. The position rendered him an ex-officio member of the court for the correction of errors, superseded by the Constitution of 1846, by the Court of Appeals.

In 1821, he was a member from Albany, of the convention of that year which formed the second Constitution of the State. It has been said with great truth that no deliberative body ever convened in the State or in the Nation, in which so many great jurists and wise legislators occupied seats. In this distinguished assemblage, Ambrose Spencer and James Kent were the acknowledged leaders in all the discussions on the judiciary, and on the elective franchise. Spencer's speech on the latter question was read with interest throughout the Nation.

The Judiciary Bill adopted by the convention, constitutionalized Spencer out of office, and he retired to private life.

From 1829 to 1833, he was a representative in Congress from the Tenth Congressional District. In 1839, he removed to Lyons, N. Y., where, on March 13, 1848, he died.

Such in brief is the original of the portrait, which now ornaments the rooms of the New York State Bar Association.

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CORRESPONDENCE.

CODE OF CRIMINAL PROCedure.

Editor of the Albany Law Journal:

I have read with interest your comments, and those of your correspondents, upon the inconsistencies of the Criminal Code, but there are provisions in the Code of Civil Procedure, which though they may be consistent with each other, work disastrously to property interests, and should be denounced in terms equally unqualified. My particular "pique" is directed to subdivision 7 of section 382, and other sections defining its application. Prior to the enactment of this Code the limitation on a justice's court judgment was twenty years, and no good reason can be found for its change. Nevertheless the change occurred, and no judgment creditor could have been specially grieved by it, if its application was confined to judgments afterward rendered, but subdivision 3 of section 414 makes it retrospective, and causes the demise of all justice's court judgments unless an action is brought on them within two years thereafter. This appears to approach dangerously close to the constitutional prohibition, that no "Ex post facto law" shall be enacted. Section 3352 properly prescribes that the law in force the day before the Code takes effect (ch. 4, ou Sept. 1, 1877) are deemed to remain in force, notwithstanding this repeal, "excepting chapter 4," which latter provision seems most prejudicial, severo and uncalled for. I know of an estate with justice's court judgments aggregating $4,000, mostly good, so far as the ability of the judgment debtor to pay is concerned, but killed by this unjust law. A judgment creditor obtaining judgment in, say 1870, has a right to repose sufficient confidence in the stability of the then laws, to excuse him from vigilance each year afterward in ascertaining whether there has been a change affecting his property interests. As the twenty years are about expiring he naturally commences to think about perpetuating his claims against his several judgment debtors, and then for the first time learns that they died an unnatural death in 1879.

It is vicious and our Legislature would act wisely in rectifying it.

Very respectfully,

CHAMPLAIN, N. Y., Dec. 1886.

THE

WILMER H. DUNN.

COURT OF APPEALS DECISIONS.

HE following decisions were handed down Friday, Dec. 17, 1886:

Order of General Term affirmed with costs-In re Petition of the New York Cable Co.-Judgment reversed, new trial granted, costs to abide the eventAnn Craston, administratrix, respondent, v. N. Y. C. & H. R. R. Co., appellants; Michael Martin, general guardian of Sarah Quigley, administrator, respondent, v. New York, New Haven and Hartford R. Co., appellants.Order of General Term, affirming decree of the surrogate, affirmed, with costs-In re Accounting of John J. Jones et al., executors, respondents, v. Margaret A. Jones, appellants.-Order affirmed on the merits and judgment absolute ordered for the defendant, with consts-Ida May Morse, administratrix, etc., appellant, v. N. Y. C. & H. R. R. Co.-Judgment affirmed, with costs-Sarah McCallum, administratrix, etc., respondent, v. Long Island R. Co., appellant; Francis E. Johnson, administrator, respondent, v. Andross B. Stone et al., appellant; Thomas Anderson,

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respondent, v. Barbara Goldschmidt, appellant; Dennis Sullivan, administrator, respondent, v. Buffalo Grape Sugar Co., appellant; Joseph T. Watson, administrator, respondent, v. Brooklyn City R. Co., appellant. Appeal dismissed, with costs-Lizzie H. Clark, respondent, v. Marion B. Clark, appellant; John R. Hurtz, administrator, respondent, v. John H. Starin, appellant.-Motion for reargument denied. without costs-Johnson v. Myers.- -Order affirmed with costs Benj. Wright, receiver, appellant, v. Mary A. Nostrand, impleaded, respondent; In re Final Accounting of Joseph B. Spencer, testamentary trustee, appellant; In re Application of N. Y., L. E. & Western R. Co., to acquire land of Sprague, etc., respondent; Benjamin Fitch, respondent, v. Patrick McWalon, appellant; Alex. S. Turner, appellant, v. Wm. W. Watson et al., respondents; Jacob Hoag et al., respondents, v. Charles Hillmeier, appellant; Mary Emma Wyckoff v. Seth W. Scofield (petition of W. S. Maddock).

Adjourned until Monday, January 17, 1887, at 10 o'clock A. M.

NOTES.

"A Lawyer's hands must be clean," says the American Law Review. This implies that he must have plenty of "soap."

Mr. Justice Day evidently believes in a judge understanding his work; his lordship has already had a turn at the treadmill. His latest achievement was at Liverpool the other day, when he visited the most notorious neighborhoods of low life to be found in that city. He first visited, in company with his son, Rose Hill Police Station, situated in the centre of a very disreputable quarter, and then "The Long Jigger," and Ben Johnson Street, a narrow thoroughfare well known to the police. Entering a thieves' lodginghouse, called by them "The Loose Box," the usual Saturday night scene of rowdyism met his lordship's view. To satisfy his curiosity still further, he proceeded toward Athol street, a neighborhood identified with the "High Rip Gang." It is not recorded that his lordship went arrayed in judicial wig and gown. It is fortunate none of the members of the "High Rip Gang" recognized him. Shortly before he had in flicted some very severe sentences on members of that community.-Gibson's Law Notes.

The late Enoch H. Rosekrans was one of the greatest wits that ever sat on the bench of this State. He loved to tease his dignified brother-in-law, the late William A. Beach. On one occasion the latter made a motion before him, in which the judge intimated pretty plainly that he thought he was wrong. But Beach was not to be put down in this way, and persisted in his argument, citing a decision which he de clared was the latest, and to which he said he hoped his honor would yield. "But there is a later decision the other way," said the judge, "I am not aware of it," said Beach very stiffly; "where may it be found?" "It is the one I made in this case about ten minutes ago. Any other motions, gentlemen?" On another occasion he was hearing an action for an assault and battery committed on the day of a political conven tion in the interest of Gen. McClellan. An old soldier had testified, and on cross-examination was asked if he was attending the convention. "No, sir," said the witness; "that wasn't my stripe." Great laughter ensued, and the judge, who also was not of "that stripe," rapped to order, observing with a deprecatory air, "the witness has a right to exculpate himself,"

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