a period expiring on that day in the succeeding month which corresponds numerically with the day on which the sentence is pronounced. The court could find no express authority on the point but argued from analogous cases. It has been held in many cases that, as a general rule, except where it is necessary in order to settle which of two actions on the same day is to prevail, the law takes no notice of parts of a day, and that the first day to be counted is the day, any part of which is occupied in the particular business which is to endure for a certain number of days in order to fulfill any requirement of the law. This principle is recognized in the often-cited case of Combe v. Pitt, 3 Burr. 1423; in Field v. Jones, 9 East, 154; in Glassington v. Rawling, 3 id. 407, where it was held that, under the statute which enacted that a trader lying in prison two months after an arrest for debt should be adjudged a bankrupt, the day of arrest was to be included in the computation of the two months; and also in Wright v. Mills, 4 H. & N. 488, and other cases: and this is stated to be the rule applicable "to all judicial acts" in the judgment of the Exchequer Chamber in Edwards v. The Queen, 9 Exch. 628. There are no doubt several cases in which, where the date is to run from an act done, it has been held that the day on which the act is done is to be excluded from the computation. See Lester v. Garland, 15 Ves. Jr. 254. There are also cases in which, where a payment is to be made or something to be done "within so many days or months," or "at the expiration of so many days or months," the day of the event within or at the expiration of so many days from which the payment is to be made, or the act done, is not included in the reckoning. The case of a bill of exchange is a familiar instance.

In Ready v. Koebke, just decided by the Supreme Court of Wisconsin, it was held that the defense of usury is personal to the debtor or his privies and is not available to one standing in the position of a second mortgagee. A strictly analogous question was considered in a very able opinion by the same court, in Bensley v. Homier, 42 Wis. 631, and the conclusion reached, that the defense of usury was personal to the debtor, his privies in blood or estate, or privies to the contract, and that principle and the weight of authority were against the right of a judgment creditor to set it up against a mortgage. It has been held in some cases that the purchaser generally-not of the mere equity of redemption of property charged with an usurious lien or claim can allege the usury and defeat the claim when the conveyance shows that the vendor conveyed the property discharged of such lien. Newman v. Kershaw, 10 Wis. 333; Ludington v. Harris, 21 id. 241; Hartley v. Harrison, 24 N. Y. 170; Bullard v. Raynor, 30 id. 197; and see Chamberlain v. Dempsey, 36 id. 144; Williams v. Tilt, id. 319. The reason given in some of these cases for such a ruling is that the purchaser under such circumstances succeeds to all the relations of his vendor in respect of the property, and therefore necessarily acquires the right to question the validity of the usurious secu

rity in protection of his title. But when the purchaser of land, subject to a mortgage or other lien, agrees to pay the debt, he cannot defend against the Cramer mortgage or debt on the ground of usury.

v. Lepper, 26 Ohio St. 59; S. C., 20 Am. Rep. 756; Hough v. Horsey, 36 Md. 181; S. C., 11 Am. Rep. 484. See, also, Ferris v. Crawford, 2 Denio, 595; Mason v. Lord, 40 N. Y. 476; Hardin v. Hyde, 40 Barb. 435; Freeman v. Auld, 44 N. Y. 50. That the purchaser of a mere equity of redemption, or one who purchases subject to the mortgage, cannot set up usury has also been held in Conover v. Hobart, 24 N. J. Eq. 120; Bridge v. Hubbard, 15 Mass. 103; Reading v. Weston, 7 Conn. 413; Stephen v. Muir, 8 Ind. 352. But see otherwise Gunnison v. Gregg, 20 N. H. 100; McAlister v. Jerman, 32 Miss. 142. For a full consideration of the question who can set up the defense of usury, see 13 Alb. Law Jour. 39 and 71.

In Carl v. The Sheboygan & Fon Da Lac R. R. Co., recently decided by the Supreme Court of Wisconsin, the action was for a continuing trespass in occupying and using the street in front of plaintiff's premises- the fee of which was in plaintiff - for and as a railroad without plaintiff's consent and without compensation. The court held that the measure of damage was not the amount which the premises had been lessened in value by the trespass, as the action was in no sense a substitute for proceedings to ascertain and recover compensation for the taking of the premises, but that the measure of damage was the difference in value of the use of the premises without the railroad track and with the railroad track from the date of the trespass to the commencement of the action. If the measure of damage in such cases was the amount which the real estate had been lessened in value, then a recovery in the action would bar a recovery in any future action for a continuance of the nuisance; such, however, is not the case. The recovery in such an action will be a bar only as to damages sustained previous to the commencement of the same, and the plaintiff can recover in another action, for any injury caused to the lot by the maintenance of such railroad subsequent to the commencement of the action. Blesch v. Railroad Co., 43 Wis. 183–195; Ballishill v. Reed, 18 C. B. 696; Bare v. Hoffman, 79 Penn. St. 71; Sedgwick on Damages, 162, and note; Field on the Law of Damages, § 748; Holmes v. Wilson, 10 Ad. & E. 503; Thompson v. Gibson, 7 M. & W. 456; Bowyer v. Cook, 4 C. B. 236; Pennoyer v. City of Saginaw, 8 Mich. 534; Davis v. Lambertson, 56 Barb. 480; Blunt v. McCormick, 3 Denio, 283; Waggoner v. Jermaine, 3 id. 306; Cumberland and Orford Canal v. Hitchings, 65 Me. 140. The only way the defendant can prevent liability on its part for the continuance of the trespass or nuisance, either to the plaintiff or his grantees, is to proceed under the laws of the State to appropriate the lands for the use of its road, and pay the compensation to the owners which shall be fixed by such proceeding, as a just compensation for taking the same. Pettibone v. Railroad Co., 14 Wis. 443-448; Ford v. Railroad Co., id. 609-617; Loop v. Ohamberlain, 17 id. 504; 20 id. 135. There are a few cases which seem to hold a different rule of damages, or that damages for the permanent injury can be recovered. See Troy v. R. R. Co., 3 Fost. (N. H.) 83; Powers bill, 50 Ill. 240. v. Council Bluffs, 45 Iowa, 652; R. R. Co. v. GraBut the authorities first above cited are in harmony with the great weight of authority, both in this country and in England.

PHOTOGRAPHS AS EVIDENCE.

N the case of Eborn v. Zimpelman, 47 Tex. 503;

INt. c. 30 fm. Rep. 315, on a question of the

handwriting of A, in Texas, the court admitted depositions of witnesses in another State, that they knew the handwriting of B, but not that of A. Attached to the interrogatories were photographic copies of the writings in question, purporting to have been executed by A, and the witnesses in those depositions testified to their belief that if the copies were exact, the original writings were in the hand of B. Held, that the depositions were erroneously received; (1) because they were secondary evidence; (2) that the mere fact that the original writings were on file in a Texas court, and thus could not be produced to the witnesses in the other State, did not authorize their admissions; (3) because the witnesses did not know the handwriting of A. See, also, note, p. 319.

Photographs have been admitted as evidence in several classes of cases.

I. From necessity, as for example, to present accurate copies of public records which cannot be permitted to be withdrawn from the files. Thus in In re Stephens, L. R., 9 C. P. 187; 8 Eng. Rep. (Moak) 481, certain documents had been annexed to a commission returned and filed in that court, and a mandamus had been issued for the examination of witnesses in the Court of Exchequer, which would involve the production of those documents; an application was made in this court for leave to take them from the office for that purpose. The application was denied, but Coleridge, C. J., said that, if the identification of the handwriting became necessary, "that difficulty might be got over by taking photographic copies a thing which is by no means uncommon at the present day." In Leathers v. The Salvor Wrecking Co., 2 Wood, 682 (U. S. Cir., South Dist., Miss.), it was held that photographic copies of public documents on file in the public departments at Washington, which public policy requires should not be removed, are admissible in evidence when their genuineness is authenticated in the usual way by proof of the handwriting. Within the same principle is Daly v. Maguire, 6 Blatchf. 137, an action for infringement of copyright of a play, a printed programme of a theatrical performance at San Francisco, and newspaper slips had been annexed to a deposition on file. Application was made for leave to take them from the files and annex them to a commission about to be sent in the cause to San

Francisco. The application was granted on condi-, tion that their place should be supplied, under the direction of the clerk, by photographed fac similes. Here was no question of handwriting, and the witnesses were not to be required to inspect and swear to the copies, but to the originals. See, also, Luco v. U. S., 23 How. 515.

II. For the purpose of identification of an individual. Thus, in the case of Udderzook v. Commonwealth, 76 Penn. St. 340, it was held that on the trial of an indictment for murder, a photograph of

Goss taken in life, testified to be like a mutilated body found, was evidence to go to the jury that the body was that of Goss. Here, certainly, it was not the best evidence of which the case was capable, because witnesses could have viewed the body and testified from observation of it and acquaintance with the deceased. But there was corroborative evidence, and the court said: "Happily the proof of identity in this case is not dependent on the photograph alone." The court say on the general subject: "The Daguerrean process was first given to the world in 1839. It was soon followed by photography, of which we have had nearly a generation's experience. It has become a customary and common mode of taking and preserving views as well as the likenesses of persons, and has obtained

universal assent to the correctness of its delineations. We know that its principles are derived from science; that the images on the plate, made by the rays of light through the camera, are dependent on the same general laws which produce the images of outward forms upon the retina through the lenses of the eye. The process has become one in general use, so common that we cannot refuse to take judicial cognizance of it as a proper means of producing correct likenesses." To the same effect are Luke v. Calhoun County, 52 Ala. 118, and Ruloff v. People, 45 N. Y. 213. In both these cases there was other evidences of identity, and in the latter the court said "the photographs were competent though slight evidence in addition to the other and more reliable testimony." In Washington Life Ins. Co. v. Schaible, 1 Weekly Notes of Cases, 369* the action was on a policy of life insurance, and the defense was a breach of warranty. There was evidence that the deceased died of consumption shortly after the policy was issued. On the offer of the plaintiff a colored photograph of the deceased taken a short time before her death, which several witnesses testified was a good likeness, was admitted. The Supreme Court of Pennsylvania, on appeal, held that this was not error.

III. To identify and describe premises in dispute. In Blair v. Pelham, 118 Mass. 421, an action to recover for injuries from a defect in a highway, a photograph of the place was held admissible, when verified by proof of its correctness, to assist the jury in understanding the case. To the same effect

is Cozzens v. Higgins, N. Y. Ct. App., 33 How. Pr. 439. In Church v. Milwaukee, 31 Wis. 512, the action was to recover damages for an injury to plaintiff's premises by reason of the change of grade of a street, and the court held that a photograph of the premises proved to be correct was properly admitted, it being impracticable for the jury to view the premises. Cole, J., delivering the opinion, said:

"The plaintiff had a photograph taken of the premises, which was received in evidence against the objection of the defendant. The city engineer was present when the photograph was taken, and the plaintiff testified that the picture was as perfect as it could be. No effort was made to impeach the general correctness of the photograph, and we are really unable to perceive any valid objection to

.

their character copies to the same extent that other copies carefully compared would have been." If this reasoning is sound, a photographie copy cannot be much relied on for correctness; and indeed it must be confessed that photographs sometimes lie as grossly as "figures." In respect to letter-press copies, it is a little troublesome to discover the objection to them where there is no question of genuineness of handwriting, but where the object is simply to introduce the contents of an undisputed docu

ment or letter.

In the Texas case counsel made an ingenious argument for the admission of the photographs, in the course of which he remarked:

"Every object seen with the natural eye is only seen because photographed on the retina. In life the impression is transitory; it is only when death is at hand that it remains permanently fixed on the retina. Thus we are secure in asserting that no witness ever swore to a thing seen by him without swearing from a photograph. What we call sight is but the impression made on the mind through the retina of the eye, which is nature's camera. Science has discovered that a perfect photograph of an object, reflected in the eye of one dying, remains fixed on the retina after death. (See recent experiments stated by Dr. Vogel in the May number, 1877, of Philadelphia Photographic Journal.) Take the case of a murder committed on the highway; on the eye of the victim is fixed the perfect likeness of a human face. Would this court exclude the knowledge of that fact from the jury, on the trial of the man against whom the glazed eye of the murdered man thus bore testimony? In other words, would a living eye-witness, whose memory only preserved the fleeting photograph of the deed, be heard, and the permanent photograph on the dead man's eye be excluded? We submit that the eye of the dead man would furnish the best evidence that the accused was there when the deed was committed, for it would bear a fact, needing no effort of memory to preserve it. It would not be parol evidence based on uncertain memory, but the handwriting of nature, preserved by nature's camera."

The natural photographs spoken of, we imagine, are more fanciful than real. We have never yet heard of a case where the dead man's eye bore the likeness of the last man on whom he looked. But if it were so, it would only prove that the process of nature is more exact and trustworthy than that of the camera.

OF

DOGS.

course one cannot write an article on dogs without quoting Dr. Watts, so we will do so at once and get over it.

"Let dogs delight to bark and bite." Their right to bark, at all events, was admitted by Lord Kenyon. In a case where one Street proved that his neighbor Tugwell kept six or seven pointers so near his house that Mr. Street and the little Streets were kept awake at night by the canines baying at the moon and disturbed in the day time by their noisy yelpings, and the jury had declined to order Tugwell to pay any damages to Street for the nuisance, his lordship refused a new trial, although he said he knew that it was very disagreeable to have such neighbors. But he endeavored to console Street by remarking that if there was

no reform in Tugwell's establishment he might bring a new action, and would, perhaps, then obtain relief. Street v. Tugwell, S. N. P. 1119.

In the land of freedom, however, where Columbia's banners wave, strange to say, dogs are not allowed such liberty, for it was decided by Judge Nelson (Bull v. Flagler, 23 Wend. 354), that one man may lawfully kill the dog of another when it is in the habit of day and by night disturbs the peace and quiet of his "haunting his house, and by barking and howling by family, if the dog cannot be otherwise prevented from annoying him. "It would be mockery," quoth the judge, to refer a party to his remedy by action; it is far too dilatory and impotent for the exigency of the case."

66

The law laid down in this latter case is certainly more pleasing to the natural heart of man than the decision of Lord Kenyon, but its correctness may perchance be doubted when we have looked at more "dog cases" and when we find that the strumming of a piano next door and the crying of the neighbor's children are noises that we must expect in this world of woe and to a considerable extent put up with (per Mellish, L. J., L. R., 8 Ch. 471), and that the wheeling of a baby-carriage, the rocking of a cradle, the whirling and clicking of a sewing-machine, and the discordant notes of ill-played music, are sounds which, as a rule, will not be prevented in the present evil age. Pool v. Higinson, 18 Alb. L. J. 82. The Roman law held that it is the nature of dogs when unrestrained to do mischief, and that hence their owner is liable for the mischief they do when unrestrained. This was Plato's doctrine as well, Whether because in the course of centuries under the mollifying and improving effects of increasing civilization the nature of the domestic dog has become essentially changed, or whether, as it is most likely, the English judges were influenced by the desire not to impose too great a liability upon those who kept dogs for hunting and sporting purposes, the English common law at an early period assumed that to make the owner of dogs liable for their mischievous acts he must be shown to have been aware of their particular tendency to such acts. Wharton on Negligence, § 912. Sydney Smith said that pointers have always been treated by the Legislature with great delicacy and moderation, and that to wish "to be a dog and to bay at the moon," is not quite so mad a wish as the poet thought.

The

Mr. Campbell (Negligence, § 27) remarks: domestic dog has occasioned many legal disputes, and the presumption of the Common law of England is that he is tame, and therefore the owner is not held responsible, unless the dog in question is by disposition ferocious and reasonable ground be shown for presuming that this ferocious character is known to the owner. This is technically called "proof of the scienter," from the terms anciently used in pleading. But this presumption was carried to an absurd extent when the wolfish nature of the creature was deemed so completely extinguished that it was against his nature to worry sheep and cattle. And it did astonish the Scotch sheep farmers (incapable as they were of seeing the joke), when this doctrine was brought to their notice by the decision of a Scotch appeal by Lords Brougham and Cranworth (Fleming v. Orr, 2 Macq. 14), who applied the rule to Scotland, so that, as Lord Cockburn observed, "every dog became entitled to at least one worry!"

In speaking of a monkey which did attack, bite, wound, lacerate and injure Mrs. Sophia May, "Whoever, ," said Lord Denman, "keeps an animal accustomed to attack mankind, with knowledge that it is so accustomed, is prima facie liable in an action for damage at the suit of any person attacked or injured by the animal without any averment of negligence or default in the securing or taking care of it. The gist of the

action is the keeping of the animal after knowledge of its mischievous propensities (May v. Burdett, 9 Queen's Bench, 110; Card v. Case, 5 C. B. 633); not the negligent keeping. Murray v. Young, 12 Bush (Ky.), 357; Kightlinger v. Egan, 75 Ill. 141; Partlow v Haggarty, 35 Ind. 178; Kelly v. Tilton, 2 Abb. C. P. (N. Y.) 495. Hence so far as members of the genus 'homo" are concerned, every member of the family of Canis has the right to one bite, or worry, before his or his master's conduct, can be called in question. When once a dog has erred from the right path his owner must look out; if he has once bitten a man without provocation or under circumstances which would not excite any dog of good temper to bite and the owner has notice of it, it is his duty to chain up or muzzle the dog; and if he lets him go about, or lie at the door unmuzzled and another person is bitten under similar circumstances, the owner of the dog will be responsible for the injury. Charlwood v. Greig, 3 C. & K. 48.

"Gentle when stroked;

Fierce when provoked,"

is the motto of the canine tribe, and as sufficient provocation will reduce what would otherwise be murder to justifiable homicide, so it will deliver a dog and his master from punishment. What is sufficient provocation is not clear. In the State of Illinois a bite given on repelling a kick or other aggression and not from any mischievous propensity, is pardonable. Kightlinger v. Egan, 65 Ill. 235.

Treading on the dog's toes is not sufficient in England if he has bitten human flesh before. Smith v. Pelah, 2 Str. 1264. But hurting the feelings of a noble animal by offering him candy when unaware of his stern and cross nature, is no excuse for his springing at a lady and biting her, no matter what kind of stuff the candy may be. Lynch v. McNally, 17 Alb. L. J. 414. Nor was another lady unsuccessful in her action for damages against the owner whose dog she had insulted by undue familiarity. She was coming out of a butcher's shop with some meat in a satchel under her arm, but a dog with a muzzle on lay across the doorway. Thoughtfully she said: “Doggie, aint you going to let me out?" Without a reply the dog rose up and bit her. Searles v. Ladd, 123 Mass. 580. One would think that if it had been sausages that the lady had been taking home for her breakfast the dog might have been justified in his action, as the lady's conduct would have been so harrowing to his paternal feelings that it might be affirmed that she brought the injury upon herself. Lynch v. McNally, supra.

A dog has no right to punish a child of seven years old by throwing her down and biting her for merely meddling with the whip which was lying in his master's sleigh, although he had been left in charge of the team. "Ignorantia legis neminem excusat,' would appear to apply to a dog, and this one should have known that such a child was prima facie "doli incapax." And that dog's master was held to be liable as he knew of his ferocious disposition and that he was accustomed to bite people. Meibus v. Dodge, 38 Wis.

300.

Now let us consider what notice is sufficient to compel a man to tie up or muzzle his dog or else bear the consequences with his pocket. Bovill, C. J., in the case of a milkman's dog, said that he was not prepared to hold that notice to an ordinary servant, or even to a wife, would in all cases be sufficient to fix the owner with notice of the mischievous propensity of his dog. But in the case then under consideration as the wife attended to the milk business which was carried on upon the premises where the dog was kept (diluting, watering and chalking the lacteal fluid, we presume), and as a formal complaint had been made to her when on the premises and for the purpose of being communicated to the husband, the chief justice held that the good

man had due notice and that the Gladman must have present joy in success for his past sorrows. Gladman v. Johnson, 36 L. J. C. P. 153. This was a hard case, as the plaintiff was actually breaking the Sabbath day by trying to buy milk thereon (and perchance the dog had been brought up in a Puritan family and knew the Decalogue as well as Dr. Watts' "Divine and Moral Songs,") and the plaintiff was at the back door. Four years, too, had passed since the previous biting affair, during which time the dog had only torn a woman's dress; yet the owner had to pay £15 damages.

Since then it has been held that if the owner of a dog allows it to run about his business premises, and into the street near his shop during his absence, and his servants ordinarily serving in the shop are informed of the dog's ferocity, the fact of their knowledge is evidence sufficient to be left to the jury of the master's knowledge. Applebee v. Percy, L. R., 9 C. P. 647. And if the owner appoints a servant to take charge of a dog the servant's knowledge of the animal's ferociousness is the master's. Baldwin v. Casella, L. R., 7 Ex. 325.

In Illinois it would appear to be necessary to show that the owner knew not merely that his dog was in the habit of biting quadrupeds, but of biting clothesbearing bipeds. Kightlinger v. Egan, 65 Ill. 235.

In New Hampshire and Connecticut, one bite before that complained of is sufficient to charge the owner with notice of the dog's bad habits (Arnold v. Norton, 25 Conn. 92; Kittredge v. Elliot, 16 N. H. 77); but in the Empire State there must be two instances of such bad behavior. Buckley v. Leonard, 4 Denio, 500; see Loomis v. Terry, 17 Wend. 496. In England it has been lately held that to maintain an action against a person for keeping a ferocious dog, it is not necessary to show that the animal had actually nipped a person aforetime; it is enough to prove that it has, to the knowledge of the owner, evinced a savage and anthropophagical disposition by attempting to bite (Worth v. Gilling, L. R., 2 C. P. 1), and it has been very similarly decided in New York State. Rider v. White, 65 N. Y. 54.

If it be shown that the poor dog has once before relapsed into habits more consistent with the wildness and savageness of primitive days, than with the boasted civilization and mildness of this nineteenth century, it is clear that evidence of intermediate good conduct is irrelevant. Wharton, § 924. The practice, however, on the point is somewhat fluctuating, some judges leaning more on the side of mercy than others. In an English case, the dog, whose conduct was in question, was brought into court in order that the jury might have a view and inspection, and so judge themselves of its disposition. Line v. Taylor, 3 F. & F. 731. And when in Paris, Madame Leclerc was sued by a person who had been bitten by her donkey, she was allowed in defense of its character to give a certificate, signed by the pastor and five of the most respectable inhabitants of the village where the ass resided, as to its innocency and goodness. Zimmern, p. 31. But in a New York case, evidence as to general good character was held not to be admissible. Jewett, J., remarked that if the evidence proved that the dog bit the plaintiff, that the defendant was the owner, and knew or had notice that the dog was accustomed to bite people, he was responsible for the injury, however high the character of the dog for mildness stood among the neighbors. Buckley v. Leonard, 4 Denio, 500.

It is enough to make one liable that he keeps the dog complained of, that he harbors him on the premises, or allows him to be or resort there. It is not necessary that one be the actual owner of the canine. As soon as a dog is known to be mischievous, it is the duty of the person whose premises the dog frequents to send.. him away or cause him to be destroyed. McKone v. Wood, 5 C. & P. 2. But one is not liable for the depredations of a strange dog which he has not tolerated and has sought to drive off. This was settled in the