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though in modern cases it was held that there was, he did not think it necessary to add anything in if the finder knew the owner. Re Thorburn, 1
support of it. Den. Crown Cas. 387. The cases under this head,
DENMAN, J., however, who had tried and rehowever, established the doctrine that a person,
served the case, said he had come to the same to be guilty of larceny, must have intended steal
conclusion as his brother Cave and the Lord Chief ing at the time he took the thing; and if the pres- Justice, whose judgment he had read. If he had ent conviction was upheld, it would be quite in
thought the case covered by Reg. v. Middleton he consistent with those cases and cause a curious
should not of course have reserved it, but the opinanomaly in the law. It could not, he thought, be
ion of some of the judges referred to by his broheld that a mere alteration of intention after the
ther Manisty as conclusive was only a dictum, taking made the original taking felonious. The
and a dictum in which he himself had concurred, case showed that the first taking—the actual phy
but did not consider it decisive of this case. The sical taking-must have been felonious in order
case was stated carefully and designedly in a neuto make it a case of stealing. In the case of Reg.
tral way; not therefore of course stating a felonv. Glyde, L. R.1C. C. 139, in 1868, the prisoner had ious intention at the time of taking, and the very picked up a sovereign and intended to keep it, but
question reserved was whether the jury could did not know the owner, and was held not guilty rightly find that he was guilty of stealing the of larceny. In the cases of finding, the guilty coin. On the whole, he thought, there was eviknowledge—the knowledge of the owner-was re- dence on which the jury might find the prisoner quired to have been at the time of finding and guilty. There was no doubt as to the definition taking up. But in this case Ashwell received the of larceny, that is fraudulently taking anycoin honestly, not knowing it was a sovereign. thing with felonious intention; and the quesHe was, therefore, not guilty of larceny at com- tion was whether there was a felonious takmon law.. As to the point as to bailment, be ing. His brother Stephen put it as a case of agreed with Smith, J.
fraudulent retention after an honest taking, but HAWKINS, J., said he concurred in the judg- he denied that such was the case, for it could not ment of his brother Cave.
be said that the prisoner believed he was taking a MANISTY, J., agreed with his brother Stephen, sovereign at the time of taking of the coin. There after whose able and elaborate judgment he said, was some ambiguity in the use of the word “takhe need not add anything. He thought that the ing," and there was no real "taking” of the soveprisoner could not properly be convicted of lar
reign by the prisoner until he knew it was a soveceny, either at common law or upon bailment, be- reign, and so the case fell within the cases as to cause at the time of the delivery of the coin nei- finding, in which it was held that if a mau found ther party knew it to be a sovereign, so that there
something, and afterward found out the owner and was neither a felonious taking nor a "bailment," then resolved not to return it, he was then, and i. e., an intentional delivery of a sovereign. In not before guilty of larceny; so that the question his view, the law was well settled on the subject was not whether he stole it at the time he first in the case of Reg. v. Middleton (the case of a took it. He came to the conclusion, therefore, man taking up money at a post-office put before that the conviction ought to be upheld. him by mistake), and he thought it would be most
LORD COLERIDGE, C. J., then delivered his mischievous if it were now unsettled. That case,
judgment to the same effect as Cave, J., that the in his opinion, covered this case completely, as
prisoner was guilty of larceny at common law. the prisoner was held guilty, because at the mo
He doubted whether it could be said that there ment he took it up, he took it dishonestly; so that
was a “bailment” in the present case, as bailment the judges put that as the decisive time—the time
meant a “contract," and bere there was no conof the actual taking-not of a subsequent altera- tract as to the sovereign. As to the question of tion of intention. The real remedy of the prose- larceny at common law, he assumed tbat there cutor was to sue the prisoner for nineteen shillings
must be a felonious taking, but delivery and tak as money lent. That might be called “techni
ing must be acts into which intention entered. cal," but he was prepared to hold that that was
There must be an intentional intelligent taking, the proper course, as the prisoner might honestly knowing what the thing was, and a man could not have changed the sovereign and was only liable be said to take a thing when he did cot know what to return the nineteen shillings. Here the taking it was. It could not be truly said that a man took was lawful, and so the prisoner was not guilty of what he did not know of, and he did not think that larceny at common law, neither could he be con
it was law. In this case, therefore, he thought victed as a bailee, as there was no bailment of the that there was no delivery of the sovereign and sovereign.
no taking by the prisoner until he knew what FIELD, J., also concurred in the opinion that it was, so that here at the time of taking the sovthe prisoner was not guilty of larceny and could ereign as such he intended to steal it, and so took not be convicted of any crime by our law. He it feloniously, that is the sovereign was taken and had had the advantage of reading the judgments stolen at the same moment. The conviction could of bis brethren who had held the same view, and not be disturbed without overruling the decisions they had so abundantly and ably supported it, that of Lord Eldon in Cartwright v. Green, and of
Parke, B., in Merry v. Green, and the decision of the judges in Reg. v. Middleton. The view he thus took was also in accordance with a case not cited in the argument, Reg. v. Riley (Dearsley's Crown Cases Reserved, 149), which was a distinct authority for upholding the present conviction. In this judgment his lordship said his brothers Grove, Pollock, and Huddleston concurred. There were, therefore, seven judges for affirming and seven for reversing the conviction, and as the rule in this court was presumitur pro negante, the conviction would be affirmed.
NOTE.-Larceny is “the felonious taking and carrying away of the personal goods of another."1 Unless the act falls within the above definition, it is not larceny. The cases are very numerous, and the distinctions drawn are very subtle, and the decisions of the courts cannot always be reconciled. We will call attention to various cases which are held to come under the above definition.
Where one takes his own goods from another, who has special property in them, with intent to charge another person with their value, he is guilty of larceny. The least removal of the thing taken, from where it was before, is sufficient.3 Taking another's property in sport, by mistake, under a fair color of right, or under direction of one, to whom he believes it to belong, is not larceny, 4
In one case it was held, that the giving away of his employee's goods in charity by a servant was not larceny.5 The animus furandi must exist at the time of the taking. If a man rightfully gets hold of property, without at the time any intention of stealing, a subsequent conversion is not larceny. Whether the taking must be animo lucri is a disputed point, but the better opinion seems to be, that, if the property is taken with the intention to deprive the owner permanently of the use of it, with no advantage to the party taking it, it is larceny.8
In every larceny there must be a trespass; so, if the orignal taking was lawful, there can be no larceny.? If the property-owner transfers the property intending to pass title, the receiver cannot be guilty of larceny, though the sale was induced by false representations.10 A fraudulent taking is necessary; no subse
quent connection with the property can be larceny, as where one buys the stolen goods from the thief. But if one unlawfully obtains possession of another's property and subsequently converts it intended to steal it, this is larceny. The conversion reverts to the original trespass.12 A distinction is drawn between the transfer of the title to property and a transfer of the possession. Where the owner voluntarily transfers the title, though induced to do so by fraud, the receiver of it cannot be guilty of larceny. But where only the possession, and not the title, is transferred, he may be guilty of larceny.
If one obtains the possession of property from the owner on false pretenses, intending to appropriate it, his taking is felonious and is a trespass, and his conversion thereof is larceny.13 If one finds anything, which was lost, and there are no indicia about it to disclose the ownership,fhe is not bound to hunt the owner, illud is not guilty of larceny in conventing it; but if it has indicia of ownership, bis taking is feloni. ous and is a trespass, and his conversion thereof is larceny.14 Where one parts with possession of property, but expects it to be returned to him, or that it shall be disposed of on his account in a designated way, the following cases hold, that the conversion of this prop. erty by the receiver is larceny.15
The following cases hold, that the last proposition is not correct, unless the disposition referred to was to be part and parcel of the delivery, and that such disposition not being made, there was no delivery and no transfer of the possession.16 Where a man purchased a trunk, in which by mistake some clothes had been left, which, when he subsequently found them, be appropriated, it was held, that his taking did not accrue till he found the goods, when the rule as to finding lost property applied, and that he was guilty of larceny.17 The same ruling, where a man purchased a bureau, in which be found a purse, which he appropriated.18
Where a man overpaid another by mistake as to the amount he was giving, the receiver also being mistaken as to the amount, and upon demand to return the excess the receiver refused to do so, it was held that the excess was taken without the owner's consent, and the receiver was guilty of larceny.19 These last three decisions sustain the case under review, on the theory that there can bo no giving and no receiving so as toaffect the moral action of men, until it is known wbat is given and received, until there is an intelligent giving and receiving.
S. S. MERRILL.
14 BI. Com. 230.
2 Palmer v. People, 10 Wend. 165; Wall v. Adkins, 59 Mo. 144; Adams v. State, 45 N. J. 448.
3 2 East P. C. 555; State v. Gazelle, 30 Mo. 92.
4 2 Bish. on Crim. Law, 840-852; Witt v. State, 9 Mo. 671; State v. Waltz, 52 Iowa, 227; State v. Homes, 17 Mo. 379; State v. Mathews, 20 Mo. 55.
5 State v. Fritchler, 54 Mo. 424.
6 Regina v. Box, 9 Car. & P. 126; State v. Wall, 62 Mo. 597; Blunt v. Com., 4 Leigh. (Va.) 689; Keely v. State, 14 Ind. 36; Kuntson v. State, 14 Tex. \p. 570; Fill v. State, 57 Wi . 377.
7 Reg. v. Riley 14 Eng. L. & E. 544; 2 East P. C. 665; People v. Wood, (Cal.) 16 Rep. 648.
8 Dignowitty v. State, 17 Tex. 521, 530; Warden v. State, 60 Miss. 638; State v. South, 4 Dutch. (N. J.) 177; Keily v. State, 14 Ind. 36; People v. Juarez, 28 Cal. 380: Williams v. State, 52 Ala. 411; Rex v. Cabirage, 1 Russ. & Ry. 292; Rex v. Morfet, 1 Rus, & Ry. 307; State v. Brown, 3 Strohb. (S.C.) 516; State v. Slingerland, (Nev.) not yet reported but found in 6 Crim. L. Mag. 686, where the question is reviewed extensively.
9 Rex v. Hart, 6 Car. & P. 106; Cartwright v. Green, 8 Ves 405; Beatty v. State, 61 Miss. 18; Iall v, Idkins, 59 Mo. 144.
10 Lewen v. Com.. 15 Serg & R. 93; 2 East P. C. 816; State v. Watson, 41 N. H. 533; Welch v. People, 17 m), 339; Murphy v. People, 104 NI. 528.
11 McAfee v. State, 14 Tex. Ap. 668.
12 Beatly v. State, 61 Miss. 18; Reg. v. Riley, 14 Eng. L. & E. 544.
13 Pear's Case, 2 East P. C. 695; State v. Williams, 35 Mo. 229; (om. v. Barny. 1:24 Mass. 325; Lewen v. Com., supra; Stitte v. Watson, supra; Murphy v. People,supra.
14 Reginil v. Riley, supra: Tanner v. Com., 14 Gratt. 635 ; Stair. v. Dean, 49 Iowa 73.
15 Murplır v. People, 104 III. 528; State v. Inderson, 25 Minn. 66; Farrell v. People, 16 Ill. 506.
16 Rex 1. Thomas, 9 Car. P. 741; Rex v. Slowter, 12 Cox C. C. 269; Rex v. McHale, 11 Cox C. C. 32; Hildebrand v. People, 56 Y. Y. 394.
17 Robinson v. State, 11 Tex. Ap. 403.
2, 9, 10, 23, 25, 26
4. CRIMINAL LAW.-Conviction for Murder-State
ment of Instruction as to Official Character of Deceased when Officer of State.-Where the State relies on the fact that the victim of the homicide was an officer in the discharge of his duty, the existence of such fact must be submitted to the jury by an appropriate instruction, and a failure to so instruct is a reversible error. State v. Grant, 76 Mo. 236; State v. Underwood, 75 Mo. 230; 15 Mo. 28. State v. Hays, s. C. Mo., June 21, 1886.
5. DEED.-Adrerse Possession. A deed by one to
land which is in the adverse possession of another is void as against such adverse claimant. When by written agreement between opposing counsel, it is admitted that “the defendant was in the actual possession of the land sried for, claiming the same adversely to the plaintiff and all others," this court cannot infer that the defendant was a trespasser. B. makes a deed to land to D.,while N.is in adverse possession thereof: Held, that the deed is only void as to N., and as against him the title still remains in B., who may sue for and recover the land, that such recovery will inure to the benefit of D., as the deed from B. to D. is valid as between them. Nelson v. Brush. S. C. Fla., June 17, 1886.
Contract – Rule of — Construction of. – -In construing a written agreement in which the parties claim that the words and expressions contain their true intent and 'meaning, and there is no claim of fraud or mistake, there should be given to each word and expression that plain and obvious meaning which the context and the whole instrument require to make each part consistent with the whole, and which will secure and carry into effect the object of the parties. When a written agreement consists of more than one distinct writing or contract, the different provisions of all the parts should be given due weight in ascertaining the intended meaning of any portion of the same; but if the language is clear and distinct, and the plain and obvious meaning of the words is consistent with the whole instrument, such meaning must be taken as the intended meaning of the meaning of the parties, unless other parts of the agreement not only admit of, but require, a different construction. Cincinnati, etc. R. Co. v. Indiana, etc. R. Co., S. C. Ohio, June 1, 1886, 3 West. Rep. 606.
21 5, 7, 22
1, 4, 20
1. ACTION FOR FRAUD AND DECEIT.-Party must
2. CONTRACTS.-[Railroads.]-When want of Mu
quality Cannot be Set Up.- Where the owner of lands, through or near which it is proposed to run a railroad, binds himself by writing, under seal, to convey to the projectors, their associates or successors, all the coal and iron upon and in certain designated lands, and to secure to them the right of way, in consideration that they would construct the road to a named point within a specified time, and a bill filed to compel the specific performance of the contract, the objection that it is wanting in mutuality, because of a stipulation that the projectors should not be liable for damages if they failed to construct the road, comes too late after the completion of the work. Wilks v. Ga. Pac. R. CO., S. C. Ala., December Term, 1885-86.
3. CORPORATION.- Municipal Corporation-Duties
-- Vegligence-Drainage Evidence-Drainage Defectire Plan.-While the duty of the authorities of a municipality in determining the plan of drainage and location of sewers is quasi judicial, the construction and repair of sewers in accordance with such plan are simply ministerial duties, and for negligence in their performance the municipality is liable to one whose property is injured thereby. In an action against a municipality to recover for injuries done by an overflow from a sewer,evidence tending to show that the plan upon which the sewer has been constructed by the authorities has not been judiciously selected, is incompetent. In such action evidence of what, in case of a freshet or great fall of rain, would be the consequence of the difference in level between the sewer in question and one connecting with it is inadmissible. Johnston v. District of Columbia, S. C. U. S., April 19, 1886, The Reporter, Vol. 22, 7.
7. EQUITY PRACTICE.-Injunction-For what that
Writ will lie.--The remedy by injunction is a preventive one only,and when the act which is sought to be prevented is done and accomplished, if a party is aggrieved thereby, he must resort to some other remedy for redress. This court, on appeal from an interlocutory decree of the circuit court, refusing to grant an injunction, the record showing that the act sought to be prevented had been done and accomplished, after the refusal of the injunction and before the appeal, is without power to afford relief to the appellant, and will not inquire whether the court erred in its decree. There is no error in a judge of the circuit court refusing leave to a complainant who had filed an original bill for an injunction which had been denied by the judge, to file a supplemental bill, when the bill showed that the act which the original bill sought to prevent had been done. Smith v. Davis, s. C. Fla., June 17, 1886.
8. ESTOPPEL.- Pleading.-When a party claims a
former adjudication of matter set up in an action to be an estoppel, such judgment should be plead
ed; and where the same is not pleaded when it can be, it is not evidence conclusive of an estoppel; and testimony may be given to show the truth. Meiss v. Gill, S. C. Ohio, May 11, 1886, 3 West. Rep., 624.
in fact the property of a third person. Cook v. Prentice, s. C. Oreg. June 1, 1886. 11 Pac. Rep. 226.
12. Insurance.-Life Insurance-Mutual Relief As
sociation-Beneficiary's Name Inserted after Assured's Death-Omission. The name of a proposed beneficiary may be inserted in a certificate of membership in a mutual relief association after the assured's death, when it is shown that both he and the officers of the association understood, when he made his application, that the proposed name should be entered on the record without fur. ther direction. Scott v. Provident etc. Ass'n., S. C. N. H. March 12, 1886. 4 Atl, Rep. 792.
9. EVIDENCE.—[Charge to Jury Upon.)-Credibility of Testimony Submitted to Jury-Exception. - The credibility of oral testimony is an inquiry of fact, which must be submitted to the jury, except as to those matters of law or fact which are admitted expressly or by implication; hence the rule that in charging juries, it is improper to assume, or state as fact, any material matter which depends on the sufficiency of oral testimony for its establishment. In delivering the opinion of the court upon this point, Stone, C. J., said: “The contestants are usually agreed on many questions, frequently very important questions. These become the incident-an indispensable incident-in the cause; but they are not the real subject in contestation. They are material facts, but they are not disputed facts. If the trial judge, in giving his charge to the jury, were required to state all such non-contested facts in the form of hypothesis, his charges would frequently become cumbersome and confusing, if not misleading. The exception to tbe rule is, that when the record shows affirmatively that certain facts are clearly shown and not disputed, not made part of the contention, then it is not error if they be assumed in the charge to be facts, and stated as such without hypothesis. Henderson v. Mabry, 13 Ala. 713; Gillespie v. Battle, 15 Ala, 276; Kirkland v. Oates, 25 Ala. 465; S. & N. Ala. R. R. Co. v. McLendon, 65 Ala. 266.” Carter v. Chambers, $. C. Ala., Dec. Termi, 1885-86.
10. FRAUD.-Misrepresentation – Warranty – Pat
ent defect s.-On a sale of chattels, a misrepresentation of a material fact by the vendor, on which the purchaser has a right to rely, and on which he does in fact rely, as an inducemeut to the contract, is a fraud, and furnishes a defense to an action for the purchase-money, or a separate cause of action in favor of the purchaser. A representation which is in the nature of an expressed opinion does not constitute a fraud, unless it was knowingly false, made with intent to deceive, and accepted and relied on as true; and when made under these circumstances, it may often constitute a warranty. Whether the representation is intended as a statement of a fact, or as the mere expression of an opinion, when it does not involve the contruction of a written instrument, is a question for the determination of the jury. Although representations and warranties do not cover patent defects, such as are external and obvious on casual inspection; yet the purchaser may rely upon the war. ranty except as to such defects, and is not found to make any examination. In the absence of fraud or a warranty, the purchaser must offer to restore the goods, before he can defeat an action for the price; but, in an action for the purchase-money, he may set up the defense of fraud, or want of consideration, without offering to restore the goods, or to rescind the contract. Brown v. Free
man, S. C. Ala. May 18, 1886. 11. INNKEEPER.—Lien for Board-Property of
Third Person Received as Property of Guest.-An innkeeper who receives a piano in his character as innkeeper, and as the property of his guest, is ertitled to his lien against the piano for board and lodging furnished bis guest, although the piano is
13. JOINT TENANTS AND TENANTS IN COMMON.
Tax Title Acquired by Co-Tenants—Statute of Limitations- Rents Received by Co-Tenants-Evidence, Taxation, Tax Deed – Presumption of Validity-Description in Deed-Suficiency of.The purchase of land sold for taxes by a tenant in common, who is in possession, and receiving the rents and profits, vests no title to the land in such purchaser, against his co-tenants, nor entitles bim to invoke the statute of limitations in aid of his claim of title. Evidence of the amount of rents received by a co-tenant in possession is admissible, in a suit wherein such co-tenant claims title through a tax sale. Section 90, c. 57, Misc. Laws, making a tax deed good in certain cases, does not extend to a case where the party taking the deed had no right to take it. Premises described in sheriff's deed as “Minter's donation, T. I. S. R., 2 west, 320 acres,” held sufficient, where there is a parcel of land in said township answering to the description, and no similar piece of land in the township. Mint er v. Durham, S. C., Oreg. June),
1886. Pac. Rep. Vol. 11, 23. 14.
..Account-Evidenee-Res Adjudicata–Evidence-Parol Evidence-Deed-Ambiguity.--The parties are tenants in common of the strip of land in question; plaintiff owning seven twenty-sevenths and defendant twenty twenty. sevenths. The defendant has absolutely excluded the plaintiff and his testator, against their objection, from all use and benefit of one-half part thereof since 1875, and the remainder has been and is occupied by both parties as tenants in common. Held, that under Pub. St. R. I. c. 236, the plaintiff is entitled to an account. He had an undoubted right to the use of the entire strip in common with the defendant, and the latter could not assume the right, because of his larger ownership therein, to make partition thereof, and thereby exclude bis co-tenant from any particular part. Held, further, therefore, that evidence to show the plaintiff had the use and benefit of fully seven twenty-sevenths is inadmissible. In a previous suit between the same parties, the title to the same strip of land was passed upon by the court. Held, that, although it was not strictly necessary for the court to have passed upon the question, it was now res adjudicata; the point having been distinctly raised by the pleadings, fully argued by counsel, and deliberately passed upon by the court. The usual rule applied, that parol evidence is admissible to ex. plain an ambiguous deed, or repugnant clauses therein. Almy v. Daniels, 11 R. I. 250, and Water. man v. Andrews, 14 R. I. 589, affirmed. Almy v. Daniels, s. C. Rh. I. May 13, 1886, 4 Atl. Rep. 753.
15. JURY.- Grand Jury-Contempt by Witness
Appeal- Criminal Law-Indictment bg Grand Ju
ry de Facto-Validity-De Facto Jury-Contempt of.-A grand jury is a part of the court by which it is convened, and is under its control, and witnesses who appear before it are subject to the lawful authority and control of the court in the same manner as are witnesses before a trial jury. The court has, therefore, jurisdiction to deal with a witness who defies the authority of the grand jury, and to adjudge him guilty of contempt of court for such conduct, and punish him therefor, and if no excess of jurisdiction appears in the proceedings which resulted in the conviction and punishment, the judgment rendered is final and conclusive, and not the subject of review. An indictment found by a de facto grand jury is regular as one found by a de jure grand jury. Tne tide of one is not collaterally assailable any more tban that of the other. The validity of the de facto grand jury cannot be called into question in a collateral proceeding to punish a party as a contumacious witness for defying its authority. In re Gannon, S. C. Cal. May 22, 1886. Pac. Rep. Vol. 11, 240.
16. LANDLORD AND TENANT-Lease-Execution by
Agent- Tenant at Will— Use and OccupationEridence – Covenant — Dependent Covenant s.Where an agent, without authority from his principal,executes a lease in his own name an “agent,” and the lessee executes it, no term vests in him, and bis covenants cannot be enforced against him. If, in such a case, the lessee enters, he is a tenant at will, liable to the lessor for use and occupation, and the lease is admissible in evidence on the question of value. In many cases when a deed contains covenants on both sides, the covenants being in consideration of each other, the one executing the deed may be bound, although the other has not executed it; but, when the covenants are dependent, the one executing the deed is not bound until performance by the other party. Jennings v. McComb, s. C. Penn. May 10, i886, 4 Atl. Rep. 812. 17. LIBEL AND SLANDER.-Publication in Judicial Proceeding Privileged.—The publication in an insolvency proceeding by an attorney, in the course of his employment as such, of facts of which he was informed by his client, to the effect that the insolvent, while acting in a fiduciary capacity, committed acts of fraud in contracting debts for which he became insolvent, it being his duty, in resisting for his client as an opposing creditor the application of the debtor, to publish the facts, constitutes an absolutely privileged publication, of which malice cannot be predicated, no one being permitted to allege that what was rightly done in a judicial proceeding was done with malice. Hallis v. Maux, S. C. Cal. May 26 1886, Pac. Rep. Vol. 11, 248. 18. LIMITATIONS.-Statute of Limitations-Disability Where defendant, a resident of Austria, there accepted a bill and soon after absconded from there and came to this State and hid himself here, une der an assumed name, for more than six years, he can not be said to have been during that time "without the State," within the meaning of the Statute of Limitations. Although the statute is resorted to defeat a just claim, it must have its operation. Its plain language cannot be preverted, to remedy the bardship of any particular case. Where the debtor was continuously within the State for more than six years after the cause of action accrued, he cannot be deemed to have been
without the State, and thus the running of the statute defeated, because he concealed his abode, and thereby his creditor was unable to discover him and serve him with process. Engel v. Fischer,
N. Y. Ct. App., June 1, 1886, 3 Cent. Rep. 303. 19. MASTER AND SERVANT-Servant's Negligence
Combined Negligence of Servant and Defendant. -By intrusting bis team to a servant, in the prosecution of his business, the plaintiff assumes the risk of the servant's negligence in protecting it against the negligence of third parties; and if the servant negligently leaves the team unattended, to engage in a personal combat with the defendant, and the horses, frightened by the noise, run away, and damage the carriage, the defendant is not liable therefor, though his conduct contributed to it. Page v. Hodge, S. C. N. H., March 12, 1886. 4 Atl.
Rep. 805. 20. NEGLIGENCE-Evidence-Physician and Patient, Privileged Communication, Waiver of-Injury to Wife, Husband may Sue Alone and Recover damages for Loss of Services, His Own Time and Society of his Wife. It is competent for a patient to waive the protection of $ 4017 R. S. 1879, of Mo. and allow an attending physician to testify as to statements made to such physicion, in reference to sickness or injuries of such patient. And even though the patient be dead, it has been held, that those who represent him after his death may do the like, for the protection of the interest they cliam under him. 42 Mich. 206. And the right of waiving the privilege is as broad as the privilege itself. A husband may sue alone for injuries to his wife and recover for loss of services, although the contract to carry the wife safely was made with her alone, and the failure to do so resulted in the tort growing out of the breach of contract. 2 Rorer on R. R. 1093, 1094, 1095; 21 Com. 557; Iowa, 420; 75 N. Y. 192; 26 Iowa, 124; 36 N. H. 9; 2 Thomp. Neg. 1240 $ 15; 49 N. Y. 47; Cooley on Torts, 226, 227 and cases cited. The gravamen of such an action of the husband being a breach of duty by the common carrier, privity of contract is not essential. “Anyone sustaining damages by reason of such breach of duty, may maintain his action therefor. In such case the tort does not spring from nor arise out of a breach of contract, but the action lies against the carrier on the custom of the realm.” 7 Eng. L. & Eq. 519; 12 East 89; 18 Eng. Com. L. Rep. 227; Bliss on Code, Pl. $ 14; 117 Mass. 541; 78 Mo. 245. And cases like this, where the husband is compelled to attend his wife, he may recover damages for the loss of his time while so at. tending, (Smith v. City, 55 Mo. 456 ) as well as for the loss of his wife's society. 2 Rorer on R. R. 1094-1095; 4 Iowa, 420; 21 Com. 557; Cooley on Torts, 226. Blair v. Chicago & Alton R. R. Co.,
S. C. Mo., June 21, 1886. 21.
Instruction-Erroneous-To Seem to authorize Jury to Establish their own Standard of Care.-In an action against a railroad company for injuries received by being run over by one of its trains, a new trial will be granted when the charge of the court tends to create in the minds of the jury the impression that they may go beyond the general inquiry as to reasonable care and dilligence and establish some particular standard of their own. Springman v. Baltimore etc. Co., S. C. Dist.
Columbia, April 19, 1886. 3 Cent. Rep. 281. 22. PRACTICE-Pleading.–The transcript of the pro
ceedings should show affirmatively the making of