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Gr. 370; Boone v. Ridgeway Ex'rs, 2 Stew. Eq. 543; 1 Greenl. Ev., § 421; 3 id., § 369. (2) Though the party against whom an incompetent witness has given evidence may have lost his right to object to his evidence, yet the court may, on its own motiou, if it appears that the evidence is opposed to the policy of the law, and dangerous to the administration of justice, suppress it in suits where either party to the transaction put in contest by the suit was dead, the survivor should not be a competent witness unless his adversary chose to make him so by becoming a witness himself. The design was a highly salutary one. It is eminently just that when death has sealed the lips of one party the law should seal the lips of the other. The great object of the restriction, as stated by the chancellor in Colfax v. Colfax, 5 Stew. Eq. 206, was to guard against the injustice which would arise from a want of mutuality in the exercise of the right to testify. There can be no doubt that if the parties are allowed to testify in their own cases, the safe administration of justice requires that they should be put upon an equal footing, aud that if one is allowed to go upon the stand to testify, the other should have the right to go there also, either to confirm or to contradict his adversary's evidence, and that when the lips of one are closed, the other should not be tempted to commit perjury by being permitted to testify to matters which his adversary can neither contradict nor explain. If the evidence of one party was admissible when the other could not testify, the interests of mankind, an eminent English judge has recently said, would, in his opinion imperatively require that unless corroborated it should be wholly disregarded. He further said: "Nobody would be safe in respect of

his

pecuniary transactions if legal documents found in his possession at the time of his death, and endeavored to be enforced by his executors, could be set aside, varied or altered by the parol evidence of the person who had bound himself." Hill v. Wilson, L. R., 8 Ch. App. 888, 900. Monfort's Adm'r v. Rowland. Opinion by Van Fleet, V. C.

MAINE SUPREME COURT ABSTRACT.* CONTRIBUTION MON.-Two persons purchased timber-lands and gave their joint notes, secured by mortgage, for a portion of the purchase-money, then as co-partners they cut therefrom and manufactured a portion of the timber. About two years after the business of the firm ceased, one of the partners paid a judgment rendered on one of the mortgage notes, and both joined in a deed of quit-claim of the lands to the mortgagee as a compromise settlement of the mortgage debt. Held, that the one who paid the money could maintain an action at law against the other for one-half the amount so paid. Soule v. Frost. Opinion by Symonds, J.

PARTNERSHIP -TENANTS IN COM

MARRIAGE-DIVORCE-DOWER.-Cross libels for divorce pending between a husband and wife were heard together; the court first decreed a divorce on the husband's libel for the fault of the wife, and the next day decreed a divorce on the wife's libel for the fault of the husband, and decreed to her a certain sum in lieu of alimony. Eight months afterward the husband died and the wife then brought an action against his heirs to recover her dower. Held, that she was not endowable. When the final decree of divorce was entered on the husband's libel for the fault of the wife she was at once barred of her dower in his lands. Stilphen v. Houdlette, 60 Me. 447. True, the court had jurisdiction after the decree in favor of the husband on his libel to enter the decree in favor of the wife on her libel and grant her alimony; Stilphen v. Stilphen, *To appear in 76 Maine Reports.

58 Me. 508; but that decree in no way qualified or af fected the legal consequences of the prior decree. The bar is just as effectual when a day only intervenes between the decrees as if it was a year. Moulton v. Moulton. Opinion by Walton, J.

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MALICIOUS PROSECUTION EXCESSIVE DAMAGESPROBABLE CAUSE-ADVICE OF COUNSEL.-In an action for malicious prosecution, for causing plaintiff's arrest upon a warrant charging him with forgery by making unauthorized entries in certain books of accounts, and upon his discharge, by causing his arrest upon another warrant charging him with embezzlement amounting to larceny, held, that a verdict in favor of the plaintiff in the sum of $1,100 was not excessive. Humphries v. Parker, 52 Me. 502. In an action for malicious prosecution, where the defendant claims that he acted under the advice of counsel, it is for the jury to say whether the fact that the attorney and counsellor whose advice was sought was the attorney in a civil suit to recover of this plaintiff the sum alleged in the criminal proceeding to have been embezzled, made the attorney an improper person to consult-whether he was carrying on the suit under such circumstances and with such motives as prejudiced him and rendered him unfit to give fair and impartial advice in the premises. The true doctrine is, that previous consultation with and favorable advice of counsel learned in the law, are facts which have a bearing, both upon the existence of probable cause and the presence or absence of malice in the prosecution complained of (which last is always a question for the jury); but the conditions under which such consultation and advice will amount to a valid defense are such as almost inevitably to require the submission of the evidence to the jury, under proper instructions. to find whether those conditions exist in the case on trial. If they do, the jury are to give them effect by applying the instructions to the facts as they find them. It is not every member of the bar whose character and standing are sufficiently known to the court to enable the presiding judge to say that he answers the description of "counsel learned in the law." See Stevens v. Fassett, 27 Me. 266. Of those whom he might so regard, the situation may be such in relation to the particular case, as to prevent their opinion from amounting to a justification, or at least to make it doubtful whether it was the unbiased, deliberate opinion of counsel learned in the law and properly informed respecting the case. White v. Carr, 71 Me. 555. In Hewlett v. Cruchley, 5 Taunt. 277, it was well said, that "it would be a most pernicious practice if we were to introduce the principle that a mau by obtaining au opiuion of a counsel, by applying to a weak man, or au ignorant man, may shelter his malice in bringing an unfounded prosecution." But in addition to this, it is an essential condition that there should be pleuary proof that the client communicated to the counsellor all knowledge and information which he had, respecting the material facts-and not that aloue-but also all such knowledge and information as in the exercise of reasonable care and prudence (with due regard to the rights of the party against whom he proposes to proceed) he might have obtained. Stevens v. Fassett, supra; White v. Carr, supra. Watt v. Corey. Opinion by Barrows, J.

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for a period of seven days, where the slippery and dan-
gerous condition of the pavement could have been
seen and avoided by the person injured. Denhardt v.
City of Philadelphia. Opinion per Curiam.
[Decided Feb. 4, 1884.]

MUNICIPAL CORPORATION-ICY SIDEWALK-CON-
TRIBUTORY NEGLIGENCE.-The owner of an ice-house,

fronting upon a public street in the city of Lock
Haven, constructed, without the consent of the muui-
cipal authorities, a slide of heavy timbers in front of
his premises, extending entirely across the street.
Many lumps of ice had fallen from the slide upon and
near the pavement in front of the ice-house, so that
the only safe way for foot passengers was to turn out
into the street, and cross the slide at a point where ap-
proaches to it had been constructed. A. lived next
door to the ice-house, and during a period of about
two weeks, while the obstruction continued, became

it, he is not bound to give to another that which rightly belongs to himself." Of course if a sheriff's sale of the landlord's title, under a judgment which incumbered it, would vest it in the tenant when he was the purchaser, it would vest it for the same reason in a stranger should he become the purchaser. In Heritage v. Wilfong, Sharswood, J., said: "This undoubtedly makes it the duty of the justice to hear any lawful defense which the tenant may offer. It would be such a defense if he could show that the title of his landlord had come to an end since the commencement of the lease. It would therefore be competent for him to plead and prove that under a judgment against the lessor his estate had been sold by the sheriff, and that he had attorned to the purchaser." It is true that in the foregoing case the judgment was against the tenant's immediate landlord. But we can see no differ. ence in substance between the determination of the landlord's title by a sale under a judgment against

where the sale was made under a judgment which was a lien upon the landlord's title at the time of its inception. The legal result is the same in both cases, the title, the very title of the immediate landlord is divested in each instance, and it is this divestiture which a tenant may set up against his landlord. The same doctrine was repeated by the same eminent judge in Koontz v. Hammond where he said, speaking of the rights of defense by the tenant: "He might

well acquainted with its dangerous nature; she testi-him personally, and such determination in a case
fied that she always crossed it with great care, and fre-
quently after crossing it continued on some distance
up the middle of the street instead of turning on to
the sidewalk. She might have avoided passing the
slide altogether by using an alley near her house,
which would however have made her go a short distance
further than if she crossed the slide. A snow having
fallen which partly covered the ground, and ice blocks
fallen from the slide, A. started out from her house in
the day-time, crossed the slide in the middle of the
street, and then finding the street slushy, turned to
go upon the sidewalk near the slide. In so doing she
slipped and fell upon the blocks of ice lying there. In
an action by her against the city to recover damages
for the injuries sustained: Held, that she had been
guilty of such contributory negligence as warranted
the court in giving to the jury binding instructions to
find for defendant. Fleming v. City of Lock Haven.
Opinion by Trunkey, J.

[Decided Oct. 6, 1884.]

8

LANDLORD AND TENANT-DISPUTING LANDLORD'S
TITLE-MAY SHOW IT HAS TERMINATED.-Altenant in a
proceeding by his landlord to recover possession may
show in defense that the title of the plaintiff has come
to an end by expiration, by his own act, or been di-
vested by act of the law. Newell v. Gibbs, 1 W. & S.
496;
Menough's Appeal, 5 id. 432; Elliott V.
Smith, 11 Harr. 131; Heritage V. Wilfong,
P. F. S. 137; Koontz
Hammond,
V.
12 id.
177. In Newell v. Gibbs, supra, Rogers, J., said on p.
498: "For although the defendant is not permitted to
show that his lessor never had title to the demised
premises, he may, on admitting that he once had title,
prove that his interest has expired." In Menough's
Appeal the landlord's title during the term of the
lease was purchased at sheriff's sale under a judgment
obtained prior to the commencement of the term.
The rent for the year fell due at the end of the term,
and was claimed by one to whom the landlord had as-
signed it, by the purchaser of the landlord's title and
by au execution creditor of the tenant. The rent was
awarded to the purchaser of the landlord's title on the
express ground that the judgment under which the
land was sold was paramount to the lease, and it was
at the purchaser's option to disaffirm the lease or to
affirm.it and to recover the rent, and that as the rent
ran with the land it could not be assigned by the land-
lord after the judgment so as to defeat the right of the
purchaser to have it. In Elliott v. Smith we said: "A
tenant cannot dispute the title of his landlord, nor can
he purchase an outstanding title,and under it withhold
the possession from his landlord. When however he
becomes the owner of the very title under which his
landlord claims, either by purchase from the landlord,
or at a sheriff's sale upon a judgment which incumbers

have shown that the title of the plaintiff had come to
an end by expiration, by her own act, or been divested
by act of law." For these reasons we think that the
ceived, in so far as they related to the divestiture of
defendant's offers of testimony should have been re-
the plaintiff's title by judicial sale, and because of
their rejection the case must be reversed. Smith v.
Crossland. Opinion by Green, J.
[Decided May 26, 1884.]

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OUR LONDON LETTER.

[N Lord O'Hagan, the United Kingdom has lost one of the most distinguished of her lawyers. His career was extraordinarily felicitous. A Roman Catholic, an ally of the Repeal Association, the champion of the accused in countless crown prosecutions, he nevertheless found himself promoted from office to office until he finally was created lord chancellor of Ireland, amidst the combined applause of the conser. vative and the liberal press. All this is matter of common knowledge for the daily papers, and those which deal solely in legal commodities have published lengthy obituary notices in a biographical form. There is nothing new to be said about the departed judge, except that his career was such as to be a lesson to his fellow countrymen who may learn from it the generosity of the English government, a quality which they are somewhat slow to acknowledge. The present generation was more familiar with Lord O'Hagan as a judge than as an advocate. In the latter capacity fresh and vivid tradition gives us a portrait of a man endowed with extraordinary eloquence of that fiery yet pathetic kind which is distinctly high and wonderfully effectual. On the bench, primus inter pares, he was remarkable for clearness of thought and absolute impartiality. Moreover he was dignified beyond the ordinary run of judges. This brings me gradually to a topic which now attracts very considerable attention, and deserves to attract more. The majesty of a judge of the present day is not to be compared to that of a judge in the past. Not long since a polemical correspondence appeared in the Times, and it was more than suspected that two judges were the main combatants. Whenever a question of intricacy crops up

judges, under familiar signatures, 'rush into print and to the belief that the loss ought to fall not on the inexpress unasked opinions. The result is a loss of dig-nocent owner of the securities but upon the banker. nity. They are flouted at by Mrs. Weldon and others like her, the public stands by and applauds more or less vociferously according to its temper, and the judge is impotent. Finally later on in the afternoon, he revenges himself upon some innocent junior, and one goes away from the scene of action with impressions any thing but pleasant.

The latter can best afford to lose, and further, if the law were other than it is, would be remarkably careful before he placed himself in a position of possible loss. A case remarkably illustrative of this difficulty was tried at the end of the last sittings. A manufacturer handed over to his bankers the delivery order for some raw material, paid for by a worthless bill of exchange at three months, as security for a loan. It was argued on behalf of the banker that this was an ordinary trade transaction, the impeachment of which tended to destroy the whole system of credit. Plain men, amongst whom the presiding judge was one, were of opinion that if the system of credit rested on

exactly be a subject for public sorrow.

These personal plaintiffs and defendants, whose name is not indeed legion, but according to recent returns forty, are a source of serious alarm to the profession in this country. Men complain not of the loss of some fifty or sixty briefs, for what are they amongst so many thousands, but at the inexcusable waste of time which amateurs, in their ignorance of law, prac-such foundations as were disclosed, its ruin would not tice, and the rules of evidence, invariably cause. One party in person causes the suit to consume at least five times as much time as one properly conducted under professional guidance. But worse that parties in person are those who sue in forma pauperis. They go up to the House of Lords without hesitation, they bother their counsel at all hours of the day or night without the smallest consideration, and worst of all, they fancy themselves to possess some knowledge of law upon which they chatter unendurably. Once a pauper suitor plants his foot in a man's chambers he hangs on like a leech, sucking the brains of unfortunate counsel without mercy. Amongst other sufferers your correspondent has his private affliction; a man who ap parently possesses no papers, and has been hopelessly beaten in half a dozen legal conflicts, until at last his legal adviser, whose peaceful advice is never followed, has adopted the expedient of being always on circuit.

A recent decision on Leeman's Act, proves the Stock Exchange to be stronger than the Legislature. The Legislature, inconveniently and perhaps foolishly, said that contracts for the sale and purchase of shares in joint-stock banks should be void unless the distinguishing numbers of the shares were set out in the contract note. This edict was issued in the full knowledge that the practice ordained would be full of inconvenience to the members of the Stock Exchange, and it has never been obeyed by them. Finally Mr. Jus tice Mathew, who is fully as affectionate toward business considerations as toward the majesty of the law, has so interpreted the statute that until his judgment is reversed by a higher authority the act must remain a dead letter. It comes to this: The Legislature commands speculators to abstain from a particular kind of speculation, speculators deliberately disobey, and mirabile dictu, the law backs them in their disobedience. But one doubts whether this view of the functions and authority of the judges will obtain pub

Amongst the main legal topics of the day are a pending reform in the details of the Bankruptcy Act, the queen's counsel question, and the law of equitablelic recognition, and whether Parliament, if the Dynadeposits. The alteration in bankruptcy law will be merely this, that professional work in the Bankruptcy Court will obtain reasonable instead of ridiculously small remuneration.

The leading principle of Mr. Chamberlain's act appears to have been that lawyers, rather than live idle, would work for nothing, and he has found himself mistaken in so much that solicitors are practically "on strike." The other principles of the act were, firstly, that as much business as possible should be transacted by government officials, and secondly, that in the administration of insolvent estates the wishes of creditors should be consulted. Upon the first point the public is dissatisfied with the result of the altered system, upon the second the act had, up to the end of December, been consistently disregarded. At that time however a severe blow was dealt at officialism by Mr. Justice Cave, to the infinite delight of the profes sion in general and bankruptcy practitioners in particular.

The queen's counsel question is still in statu quo, and Lord Selborne's reluctance to add to the members of the inner bar remains unconquered by the protest of the victims of delay.

A reform in the law of equitable deposits ought to be a subject of immediate and strong agitation. There are one or two men in America who could tell more than an honest correspondent of the manner in which the present law works for the benefit of the fraudulent and to the ruin of the innocent. Messers. Parker and Parker, especially, are familiar with this fact. Day after day in in the Bankruptcy Court and elsewhere, it is discovered that these colossal swindlers-I do not think you need fear an action for libel-had deposited the securities of their clients with this or that banker and received personal advances in return. In these cases the public opinion is clearly coming round

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mitards allow it to meet, will not parody the rebuke addressed to the men of Succoth.

I fear that the virtuous tone of opinions in regard to Mrs. Yseult Dudley is confined to the press, and that the general public feels toward her as France felt to Madame Clovis Hugues, that her offense should be excused by its result.

NEW BOOKS AND NEW EDITIONS.

HALL'S MEXICAN LAW.

The Laws of Mexico, a compilation and treatise relating to real property, mines, water rights, personal rights, contracts and inheritances. By Frederick Hall. San Francisco: A. L. Bancroft & Co., 1885. Pp. cxxiv, 840.

well-arranged and practically useful digest of the peThis is apparently an exhaustive, and is certainly & culiar law which it purports to) give. The publisher has done his work well.

IX SAWYER'S REPORTS.

This volume, published by A. L. Bancroft & Co., of San Francisco, contains interesting cases, but we suppose it has been in great measure anticipated by the Federal Reporter. Those who have the preceding volumes of the series however will probably keep it up, and the series is of especial value.

WAPLES ON ATTACHMENT AND GARNISHMENT.

This volume, published by Callaghan & Co., of Chicago, wil not supersede Drake on Attachment, but the other topic is important and fairly treated. The book will be of considerable practical value.

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The Albany Law Journal.

ALBANY, MARCH 7, 1885.

CURRENT TOPICS.

thoughtful letter of our correspondent "Y.,"

Tin our issue of February & let last, called pub

plans suggested for the relief of our appellate tribunal, that of "Y." to make judgment debtors pay up before appealing is probably as incisive as any, but we fear it is too radical, and might work hardship in individual cases. Reforms are rarely accomplished by riding rough-shod over the rights of the minority, a tendency to be guarded sedulously in a republic.

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In a paper recently read before the Albany Instilic attention to various remedies for the relief of tute, Mr. Gilbert M. Tucker, an accomplished philour Court of Appeals. The calendar of this tribuologist, accused our profession of perverting the nal is fast accumulating beyond the power of the meaning of the word "enjoined." He said: "It judges. The frequent suggestion to augment the can hardly be necessary to remark that to enjoin' sum involved so as to confine appeals to larger a course of conduct is to urge that it be followed; amounts than at present meets with just disfavor. the lawyers, oddly enough, have so perverted the The court is not for the rich, nor are appeals in meaning as to reverse it completely; in their lanthemselves an evil. A litigious nation is always a guage to enjoin an act is to forbid it! Thus I read free nation, and even a prudent nation. Controver- in the ALBANY LAW JOURNAL (Vol. 28, page 43), sies as to legal rights are the food of freedom, that 'in Leet v. Pilgrim Church, St. Louis Court of and an apathetic nation is a melancholy spectacle Appeals, the ringing of the church chimes between in history. There is no question in our minds that 9 P. M. and 7 A. M. was enjoined. The court reone immediate remedy is to cut off interlocutory fused to enjoin the ringing for worship on Sunday appeals, except in the single cases where personal or in the daylight hours,' and continued: 'But the liberty is involved. Final appeals alone should striking of the clock at night must, we think, be bring up all interlocutory questions. If judgments relegated to the category of useless noises. * ** * were a lien notwithstanding security to stay execu- We therefore think that the striking of the hours tion, many dilatory appeals would also disappear. upon the largest bell between the hours of 9 P. M. But the main remedy is to raise the standard of the and 7 A. M. ought to be enjoined.' Of course this courts of first instance. Codification of substantive means that while the court declined to order the law will do something toward relieving the courts ringing of the church bells on Sunday or by dayof last resort, but the main remedy must be found light during the week, it did command that the in higher education of the bench and bar, and a chimes should be faithfully operated between 9 at greater division of skilled labor. Our omnibus law-night and 7 in the morning. Of course, also, the yers are breaking down, and the courts derive painfully little assistance from the advocates, because the latter most frequently are, improperly familiar with the line of discussion. Their efforts being tentative, not confident nor to the main issue. A class of counsel for the Court of Appeals and for work in banc would mightily aid the Appellate Courts. We concede that this supposition needs to be carefully elaborated so as to prevent a noblesse de la robe, unfitted for democracy. This however can be done, and meanwhile we only suggest that the folly of saying that a division of labor is expedient for a cotton factory and bad for a "law factory," must be patent to the reflecting. Much of the evil complained of is due to the selfishness of our leading advocates, and their willingness to deprive the State of their services, if only they can be employed in purely ministerial attorney business. Some of our leading advocates, instead of aiding legal administration become the mere agents of corporate speculation, of indigent juniors at the bot. tom of the legal firm, or of other bad or doubtful agencies. Owing to counsel's partnerships, again, attorneys frequently refrain from employing counsel, there being no esprit d'honneur among them not to ultimately engage the attorney's client. All these are elements of our present difficulty. Some day we shall elaborate them to the point of demonstration; here we crudely suggest them. Of all the VOL. 31-No. 10.

writer of the paragraph, and the learned judge who prepared the opinion, intended that their words should mean the precise opposite. * * * Meaning forbid, why could they not say forbid? Or if it is considered desirable to have a special word to signify the formal forbidding of an action by a writ, far, far better would it be to raise to respectability a term which is now ranked with the vilest newspaper slang, and say that the action is "injuncted." It may be answered that this horrible word, if it means any thing, must be synonymous with enjoined; but the fact is, it has never been used except to signify forbidden by injunction; and as for its irregular formation, one who cares more for the substance of the language, its real serviceableness in expressing thought, than for the refinements of grammatical science, will easily disregard that objection." Mr. Tucker is unquestionably right. Now let him "go for" the barbarians who use garnishee" as a verb.

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We once asserted that the State of New York had never paid a dollar for a statue, bust or portrait of any one of her public men. This it seems was a slight mistake. The State did once, we believe, buy a very bad portrait of Lincoln, which is somewhere it does not matter where in the Capitol. Meanwhile the State has spent fifteen millions on its

capitol, and is likely, we think, to spend as much more. But an appropriation of a very trifling amount to purchase Palmer's statue of Chancellor Livingston has been twice vetoed by over-prudent governors. This bronze statue, by our honored and talented townsman, a duplicate of one in the National Capitol, has stood for several years in the State Capitol, and for a year in the Court of Appeals chamber. It is the noblest statue of a public man that we know of, unique in its simplicity, grace, dignity and refinement. Its subject was the first chancellor of our State. His fame as a magistrate is traditional, because there was no reporter of his court in his day, and he shares the fate of the heroes who lived before Agamemnon, and who had no poet to commemorate them. But his reputation as a statesman and citizen is on a firm basis. He was one of the most useful and far-sighted citizens of his time. Our State owes much to such as Livingston and DeWitt Clinton. This statue ought to remain where it is, fronting the bench of our highest court, and the cost of it would be a very small acknowledgment of the services of the great man whom it figures, and of the genius which has created it. We hope the legislature will resolve to buy it, and that the governor will approve the resolve. Let it not be said that the State of New York is squandering hundreds of thousands of dollars on useless and inappropriate ornamentation of its capitol, but is too poor to buy a statue of one of its chief men who made the State rich and great.

There are two important legal compilations in course of publication, continually coming to us, and calling for and deserving remark - the American Decisions and Myer's Federal Decisions. Of the former, now in the 61st volume, and brought down to the year 1854, we have so often spoken in terms of praise, that the doctrine of stare decisis alone would compel us to stand by our opinion. But we see no reason to change our judgment. Everything about the series is excellent, and its usefulness must increase every day. Of the other publication, volumes six and seven of which are about to appear, we have formed a very favorable impression. The scheme is admirable, and the editorial staff is unprecedented for special learning and reputation, and from what we have seen of the series we believe the work will be very useful. The usefulness of this series also must increase with time, as the snowball of adjudication grows too unwieldly to be rolled. These are two very great works, and much depends on them for the relief of the coming lawyer.

NOTES OF CASES

IN County of Butler v. Seibold, Pennsylvania Supreme Court, October 22, 1884, 15 Week. Notes Cases, 464, it was held that the owner of a horse let for hire and sold by the hirer, pursuing and cap

turing the hirer, is entitled to the statutory reward for the apprehension of horse thieves. The court said: "The statute makes no distinction between the owner of the horse stolen and any other person. The reward is to any one who shall pursue and apprehend the thief. We see no reason for excluding the owner from the benefit of a statute which seeks to encourage the most active pursuit of a thief, who takes property susceptible of such rapid removal to a distant place. It does not matter by what mode the larceny be committed, whether by a bailee or otherwise, the requirement of the statute is fulfilled provided the person pursued and apprehended shall have stolen one of the animals named, and shall have been duly convicted thereof."

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In Sullivan v. Kuykendall, Kentucky Court of Appeals, January 22, 1885, 6 Ky. L. J., and Rep. 481, where A., desiring to talk over phone with B., asked the operator to call him, and the operator thereupon had a conversation with B., reporting to A., who was standing by, what B. said as it came over the wire, held, in a subsequent action between A. and B. that the former might prove by himself and others what the operator reported to him as coming from B., the operator being called and not remembering the conversation. The court said: "It would beyond question have been competent to prove by the Morgantown operator what Sullivan said to him; but whether his report to the appellee of what Sullivan was saying, made as the conversation progressed, is competent or falls within the domain of incompetent hearsay testimony is a question of importance in view of the astonishing growth of the business to which it relates, and one not free from difficulty. In the case of a telegram the original must usually be produced in evidence, or its loss shown, before its contents can be proven or the copy delivered by the operator to the party receiving the message used, useless it be where the copy becomes primary testimony by the telegraph company being the agent of the sender. In the use of the telephone however the parties talk with each other as if face to face; and save where a message is sent, there is no written evidence of what has passed. By inventive means they are brought together for the transaction of business. It is a well-settled rule that where one through an interpreter makes statements to another, the interpreter's statement made at the time of what was so said is competent evidence against the party. The interpreter need not be called to prove it; but the interpreter's statement made at the time may be proven by third persons, who were present and heard it. Camerline v. Palmer Co., 10 Allen, 539; Schearer v. Harber, 36 Ind. 536; 1 Greenl. Ev., S 183; 1 Phillips Ev., 519 (side page). The reason of this rule is, that the interpreter is the agent of both scope of his authority; and we have been unable to draw any satisfactory distinction between this case and the one under consideration. The argument is at

parties, and acting at the time within the

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