duct should be jealously preserved. The court says: "Truly, it must be a grievous and weighty necessity which will justify so arbitrary a proceeding whereby a candidate for office becomes the accuser, judge and jury, and may within a few hours summarily punish his critic by imprisonment. The result of such doctrine is that all unfavorable criticism of a sitting judge's past official conduct can be at once stopped by the judge himself, or, if not stopped, can be punished by immediate imprisonment. If there can be any more effectual way to gag the press and subvert freedom of speech we do not know where to find it." NOTES OF RECENT DECISIONS. INSOLVENCY-PREFERRED CLAIMS FOR LABOR -EDITORIAL WRITER. In Michigan Trust Co. v. Grand Rapids Democrat, 71 N. W.Rep. 1102, decided in the Supreme Court of Michigan, it was held that employees of a newspaper corporation, whose work consists of writing editorials, the preparation of copy for the printers, direction of the make-up of the paper, proof-reading, reporting and gathering news, as they are engaged in intellectual rather than manual labor, are not entitled to the benefit of a statute of Michigan providing "that all debts which shall be owing for labor by any corporation "that any duty rested on the county to furnish the sheriff's officers with horses to ride or drive in the service of process. It has usually been understood that such officers took their offices cum onere, and furnished their own conveyance. The officer, in making this arrest, was not the servant of the county, and the county is not liable for his action. He was engaged in a service due to the general public, and of no particular interest to Waukesha county, as a political organization. Kuehn v. City of Milwaukee, 92 Wis. 263, 65 N. W. Rep. 1030, and the cases cited. In such cases the county is not liable for the acts of its officers, unless such liability is put upon it by some statute. No statute declares a liability for such an act as this. Something is said in the argument about the power of the sheriff to call out the posse comitatus. No statute declares the liability of the county to persons called by the sheriff to form the posse. But the posse comitatus includes only the men of the county. It does not include the horses. The sheriff has no ex officio power to call out the horses." EVIDENCE PROOF OF PATERNITY.-It has always been a difficult matter for the courts to determine how far evidence of resemblance between persons should be admitted to prove relationship. In Copeland v. State (Tex.), 40 S. W. Rep. 589, the appellant was tried for larceny, and her defense being that the money had been given her by the prosecutor for the support of her grandchild, she offered the six weeks' old child in evidence to prove that the prosecutor was the father. It was held that the child was too immature in de at the time it shall become insolvent, shall be preferred claims against the estate of such insolvent debtor." It was further held that work performed by a mailing clerk, whose duty it is to address and otherwise deliver papers to the patrons, be-velopment to be inspected by the jury in coming mechanical and manual, is embraced within the terms of such statute. COUNTY LIABILITY FOR USE OF HORSE BY SHERIFF. The Supreme Court of Wisconsin, in Randles v. Waukesha County, 71 N. W. Rep. 1034, found a case of "first impression upon which no precedent could be found." It was held that where a sheriff having a warrant for the arrest of a man charged with felony took the horse of a citizen and pursued and overtook the felon and the horse was overdriven and injured, the county was not liable for the value of the horse. has never been supposed," says the court, "It parison with the prosecutor. As the same court had previously held, in Barnes v. State (Tex. Mar. 24, 1897), 39 S. W. Rep. 684, that a child of three months old could not be offered for the same purpose, the decision could not well have been otherwise. The general rule is that evidence of resemblance, as testified to by other persons, will not be received, as being only matter of opinion. U. S. v. Collins, 1 Cranch Circ. 592 (1809); Keniston v. Rowe, 16 Me. 38 (1839); Eddy v. Gray, 4 Allen (Mass.), 435 (1862). In some States it is further held that the child cannot be brought before the jury for their inspection. Risk v. State, 19 Ind. 152 (1862); State v. Danforth, 48 Iowa, 43 (1878), disapproving of Stumm v. Hummel, 39 Iowa, 478 (1874); People v. Carney, 29 Hun (N. Y.). 47 (1885); Hanawalt v. State, 64 Wis. 84 (1885); Robnett v. People, 16 Ill. App. 299 (1885); Clark v. Bradstreet, 80 Me. 454 (1888); Overlock v. Hall, 81 Me. 348 (1889). In most States, however, such inspection is allowed. Gilmanton v. Ham, 38 N. H. 108 (1859); Finnegan v. Dugan, 14 Allen (Mass.), 197 (1867); Paulk v. State, 52 Ala. 427 (1875); State v. Britt, 78 N. C. 439 (178); Gaunt v. State, 50 N. J. L. 490 (1888); especially if there is a question of mixed blood. Warlock v. White, 76 N. C. 75 (1877). In most of the cases in which the inspection was refused, though the reasons were stated in general terms, it will be found that the child was too young for any supposed likeness to be a safe guide in the determination of its paternity. In State v. Danforth (supra), the child was only three months old; in Clark v. Bradstreet (supra), the child was six months old, and it was held the evidence was too vague, uncertain, and fanciful; in Overlock v. Hall (supra), the child was six months old; Hanawalt v. State (supra), decided that a child less than a year old could not be admitted in evidence. There seems to be no fixed age limit after which the child will be admitted. In State v. Smith, 54 Iowa, 104 (1885), where the child was two years old, the jury were allowed to inspect, as it was considered that the circumstances differed from those of State v. Danforth (supra). The court said: "Though resemblance often exists between persons who are not related, still what is called family resemblance is sometimes so marked as scarcely to admit of mistake. We are of the opinion, therefore, that a child of the proper age may be exhibited to the jury as evidence of alleged paternity." The test of what is the proper age seems to be whether the child still retains the immaturity of features which render it unsafe for comparison; if so, as is plain in the case under discussion, it cannot be shown to the jury as evidence of paternity or other relationship. ing one who wrongfully seized his stock of goods under an attachment, cannot recover for lost profits for any time after that, when, with regard to all the circumstances, he could reasonably have had his stock replenished, and that injury to credit is too remote to be assessed in favor of one whose property is levied upon as the property of another. In this case it appeared that a vendee of goods sued a creditor of the seller for wrongfully attaching such goods as belonging to the seller. The evidence was sufficiently conflicting as to the bona fides of the sale to justify a submission of the question to the jury. It was held that the vendee was not entitled to exemplary damages, as the evidence did not show any gross negligence or malice on the part of such creditor. Bantz, J., for the court, says: WRONGFUL ATTACHMENT MEASURE DAMAGES EXEMPLARY DAMAGES.-It is decided by the Supreme Court of New Mexico, n Cunningham v. Sugar, that a plaintiff su The principal matter in controversy is in regard to the correctness of the measure of damages applied to this case in the court's instructions to the jury. The court below authorized the jury to assess as damages, (1) the full value of the property seized, (2) the loss of reasonable profits in the business from the date of the levy of the attachment to the time of trial, (3) damages to business standing and credit by reason of the levy. Leaving out of view wrongs done from a corrupt motive, which will be considered when we come to the subject of exemplary damages, the universal and cardinal principle in all civil actions, whether ex contractu or ex delicto, is that "the person injured shall receive a compensation commensurate with his loss or injury, and no more." 1 Suth. Dam. 17; U. S. v. Smith, 94 U. S. 214; Brewster v. Van Liew, 119 Ill. 554, 8 N. E. Rep. 842. No one is held responsible for all the consequences of his wrongful act, but only for those consequences which are natural and proximate; that is, such as might reasonably have been expected under the particular circumstances to ensue; such as, according to the common experience and the usual course of events, might reasonably be anticipated. 1 Suth. Dam. 21; Wood's Mayne, Dam. (Ed. 1880), § 52; McDonald v. Snelling, 14 Allen, 290; Smith v. Bolles, 132 U. S. 125, 10 S. C. Rep. 39; Warwick v. Hutchinson, 45 N. J. Law, 61. Damages which flow as the necessary result of the wrongful act need not be specially pleaded, but are recoverable under general allegations. Those damages which do not necessarily flow from the wrongful act, but do flow as a natural and proximate consequence of it, are classed as special damages, and to guard against surprise to the defendant these must be averred specially. 1 Chit. Pl. 395; Roberts v. Graham, 6 Wall. 578;1 Suth. Dam. 763; Uransky v. Dry Dock, 118 N. Y. 304, 23 N. E. Rep. 451; Butler v. Kent, 19 Johns. 223. For the conversion of personal property the measure of damage ordinarily is the value of the property at the time of the conversion and interest thereon to the day of the trial. This is the general rule established by the great weight of authority. 1 Suth. Dam. 488; Cattle Co. v. Mann, 130 U. S. 78, 9 S. C. Rep. 458; Seymour v. Ives, 46 Conn. 110; Fowler v. Merrill, 11 How. 375; Watt v. Potter, 2 Mason, 77 Fed. Cas. No. 17,291. This rule is especially true of articles of merchandise which can be replaced from the commercial markets at pleasure. Interest is allowed as damages for the deprivation of the use of the property, and this is the only damage which can ordinarily flow from the wrong. Whenever a different rule is to be applied, it is because peculiar circumstances introduce new elements, calling for the allowance of special damages in lieu of interest. To seize and convert the stock in trade of an established business not only involves the loss of the value of the property to the owner, but may also carry with it as a natural and proximate consequence the interruption of his business, and thereby loss to him of profits and trade. If the merchandise may be bought at will in the market, the taking of his stock in trade would be merely a temporary interruption of his business; and it must be remembered that the wrongful act consisted not in interrupting the business, but in the seizure of the property, and therefore the special damage could only continue so long as the interruption may reasonably continue as the natural and proximate consequence of the wrongful act. The question is not what plaintiff may have gained as the fruit of an unrealized speculation, but what he has lost by the act of the defendant. Smith v. Bolles, 182 U. S. 129, 10 S. C. Rep. 39. In the case at bar the property was an ordinary stock of merchandise. It was seized on January 30th, and Sugar (plaintiff below) resumed business, and realized the profits of it. In Crymble v. Mulvaney, 40 Pac. Rep. 501, the Colorado supreme court say: "The profits resulting from an injury to the business after its resumption, and until the commencement of the action, and the loss of credit, were too remote and speculative, and are not allowable under the clear weight of authority." The same rule was made in Anderson v. Sloane (Wis.), 40 N. W. Rep. 222. If he can recover from the defendants for the same period, he would be making the defendants pay again after the interruption of his business had ceased. The court's instruction authorizing recovery of profits up to the time of trial was, therefore, clearly erroneous. We will now turn to the question as to the proper rule on this subject. It seems quite clear that when the loss of profits may be assessed as damages, the period for which they may be recovered cannot depend upon the time when the plaintiff may have chosen to replenish his stock and resume business. If it did, he might wait at ease till the period of limitation was about to expire, and, without actually incurring the hazards of mercantile pursuits, recover the estimated profits of a long period of idleness. In Luce v. Hoisington an ox had been seized under attachment, and in an action for damages it was held that the failure to raise a crop by reason of being deprived of the use of the ox was not the natural or proximate cause of the wrongful levy. The plaintiff could not allow his land to go uncultivated, and then ask the jury to speculate as to his loss. 56 Vt. 436. In Luse v. Jones, 39 N. J. Law, 707, the action was for wrongfully seizing a boarding house keeper's furniture, and she was allowed to recover damages to her business through the loss of boarders, and by having to turn others away in the interval "before she could, with proper diligence, furnish her house." In Allison v. Chandler, 11 Mich. 555, though damages were allowed for injury to business by disturbing a tenant's possession of a storeroom, he having an established business at that place, the court say: "Where, from the nature and circumstances of the case, a rule can be discovered by which adequate ompensation can be accurately measured, the rule would be applied in actions of tort as in those upon contract. Such is quite generally the case in trespass and trover for the taking or conversion of personal property, if the property (as it generally is) be such as can be readily obtained in the market, and has a market value." In France v. Gaudet, L. R. 6 Q. B. 199, the action was for conversion of a quantity of wine. No other wine of the same brand and quality was to be had in the market, and the owner had procured a purchaser of it at a certain price. The queen's bench held that the measure of damage was the actual price at which the wine could have been so sold. This, of course, included the profits. But, say the court, per Mallor, J.: "Under ordinary circumstances the direction to the jury would simply be to ascertain the value of the goods at the time of the conversion; and, in case the plaintiff could, by going into the market, have purchased other goods of like quality and description, the price at which that could have been done would be the measure of damages. It was, however, admitted on the trial, in the present case, that course could not have been pursued, inasmuch as champagne of the like quality and description could not have been purchased in the market, so as to enable the plaintiff to fulfill his contract with Capt. H." It was not deemed necessary in that case to determine whether notice of special circumstances of damage is or is not necessary on trover, in order to recover from them; but the learned judge was inclined to think that either express notice must be shown or arise out of the circumstances of the case. See Sedg. Dam. (4th Ed.) 559. If by reason of distance from the supply market, or like circumstances, an interval must reasonably elapse before business can be resumed, the loss of profits or injury of business by the diversion of trade during that period may be shown, as the natural and proximate result of closing up a mercantile store; but this must be based upon actual conditions previously existing for a period sufficiently long to afford reasonable certainty to it as evidence of damage. In Minnesota it is held that the evidence is limited to cases where the business had become so established at the time of interruption as that a uniform and actual condition of profits and losses could be shown with reasonable certainty, otherwise the profits would be purely speculative. Casper v. Klippen (Minn.), 63 N. W. Rep. 737; Goebel v. Hough (Minn.), 2 N. W. Rep. 849. While the law requires that damages must be proved with certainty, there is nothing requiring a higher degree of certainty upon that than any other branch of the cause, and as upon other matters the proofs may be probable and inferential as well as direct and positive. Much must be left to the good sense of the jury under guarded and discriminating instructions. In measuring the reasonable time within which the replenishing of stock should occur, regard must be had to all the surrounding circumstances; and for that period loss of profits and injury to business may be assessed, but beyond that period the damage would be 6 per cent. per annum to the time of trial, in addition to the market value of the goods taken. Injury to credit is too remote, and cannot be assessed in behalf of one whose property is levied upon under an execution or an attachment against another person. We have thus far considered the case from the standpoint of compensatory damages. Exemplary damages are awarded when the wrong is done under circumstances indicating malice, wantonness, oppression or gross negligence. Railway Co. v. Prentice, 147 U. S. 107, 13 S. C. Rep. 261. When the wrong is committed by mistake in the assertion of a supposed right without any actual wrong intention, and with. out such recklessness or negligence as evinces malice, or a conscious disregard of the rights of others, exemplary damages will not be warranted. 1 Suth. Dam. 724; 5 Am. & Enc. Law, 21. Hence such damages will not be allowed for seizure of the property of a stranger to the execution when not done wantonly. Phelps v. Owens, 11 Cal. 22. When attachment process is sued out or executed in good faith, though by a mistake not attributable to gross negli gence, exemplary damages cannot be recovered. Beveridge v. Welch, 7 Wis. 465; Crymble v. Mulvaney (Colo. Sup.), 40 Pac. Rep. 501. The wrong must be willful, malicious, or the result of gross negligence, and it will be error to charge the jury that such damages can be recovered if defendants at the time had good reason to believe that the act was wrongful. Inman v. Ball, 65 Iowa, 543, 22 N. W. Rep. 666. Something more must be shown than "mere disregard of the rights of others." Wilkinson v. Searcy, 76 Ala. 176. The evidence in this case did not warrant the giving of an instruction upon exemplary damages. CRIMINAL LIABILITY OF WAREHOUSEMEN. It had become a custom among warehousemen, and particularly with that class of warehousemen with whom grain was stored by their customers, to sell and dispose of the property stored with them without the knowledge or consent of the real owners, and trust to luck to be able to replace it, when demanded, with property of like quality stored with them by others, or to pay for it at the market price, if not able to return or replace it. These warehousemen did not stop and consider that they were infringing upon the rights of the owners of the grain or other property stored with them; that they were selling and disposing of that which belonged to others, and upon which they had no claim, either legal, equitable, or moral, except a claim to be paid a reasonable sum for its storage when delivered to its owner on demand, or that they might not be able to return the property stored, or replace it with property of like kind and quality when demanded. This state of affairs continued for such a great length of time unchallenged, and the custom became so flagrant, that these warehousemen, storing the property of others for their own pecuniary benefit, eventually, to all appearances, reached the satisfactory conclusion that, whenever grain was deposited in a warehouse for storage, it became the property of the warehouseman and he had a perfect right to sell and dispose of the same whenever he saw fit to do so; and, more especially was this the case, if the grain, when delivered, was commingled with the grain of the bailee, or with that of others stored with him. In other words, it was contended, and sometimes successfully in criminal prosecutions against such bailees, that, in the case of grain thus stored in a warehouse, the transaction constituted a sale and not a bailment. Such has ever been the holding of some courts in civil cases.1 At length the people were aroused. They reached the sensible conclusion that they would, if possible, put a quietus upon these fraudulent and swindling operations, and learn even warehousemen that they must respect the property rights of others. When you touch men's pockets you touch most of them "where they live ;" all of them may stand it for a time, some of them may "grin and bear it" all the time, but most will endeavor to ascertain if there is not some way in which their pockets can be protected. It is human nature to get all that one can honestly get and to hold with a firm grasp all that one is justly entitled to. Resort was bad to the civil courts, but, unless the bailee had property which could be reached by execution, a judgment was a barren victory. Equity, it is true, would partition the grain still in store, if any, pro rata among those holding receipts, but in this way the parties regained only a small portion of that which rightfully belonged to them. Where one deposits in a warehouse wheat, which is mingled in a common mass with the wheat of others, this constitutes a bailment, and the depositor does not lose the right to reclaim it;2 and if several depositors have wheat stored in a warehouse in a common mass, and a deficiency occurs from whatever cause, not occasioned by the fault of any such depositors, the loss must be borne by each of them in the proportion which the amount of his wheat bears to the whole amount deposited ; and in cases of this character the suit to establish and en 1 Rahilly v. Wilson, Assignee, etc. 1 Cent. L. J. 80; Chase v. Washburn, 1 Ohio St. 244, 6 Am. Law Review, 450; Lonergan v. Stewart, 55 Ill. 44. 2 McBee v. Caesar, 15 Oreg. 62; Hall v. Pillsbury, 44 N. W. Rep. 673; Nelson v. Brown, 5 N. W. Rep. 718; Young v. Miles, 20 Wis. 615; Dows v. Eckstrom, 1 McCrary, 434; Greenlief v. Daws, 3 McCrary, 27; Ledyard v. Hibbard, 14 Rep. 213. And the bailee cannot deny the title of his bailor. Pulliam v. Burlingame, 18 Cent. L. J. 314. 3 Brown v. Northcutt, 14 Oreg. 529. force a ratable distribution of the grain remaining in store must be brought in equity. Very little redress could, therefore, be had in courts of civil jurisdiction; the people then appealed to the courts of criminal jurisdiction, but here they were often told that they had not stored their grain, but had sold and had parted with all interest in it. The law❘ made a contract of sale for them when they had made a contract of bailment only, and they met defeat. Men do not enjoy being swindled even when it is done under color of the law, and at length application was made to the legislature, the source from which the people can seek relief when the doors of the courts of justice are practically closed against them. Laws have been enacted in several of the States requiring every person operating, managing or controlling a warehouse for the storage of grain, etc., to deliver to the owner of the property stored a receipt, which receipt must bear the date of its issuance, shall state from whom grain received, the number of sacks, if sacked, the number of bushels or pounds, the condition or quality of the same, and the terms and conditions upon which it is stored. They further provide that no receipt shall be issued for any property not actually in store, and that no person operating any warehouse, etc., shall sell, incumber, ship, transfer, or in any manner remove, or permit to be shipped, transferred or removed beyond his custody and control any grain, etc., for which a receipt has been given by him, whether received for storing, shipping, grinding, manufacturing, or other purposes, without the written assent of the holder of the receipt. They also provide for the punishment of any violation of their provisions by these bailees. Statutes creating new offenses and their punishment are usually crude and experimental. Members of our legis latures are often men who are without any practical experience either in law or legislation, and frequently they know nothing even of the theory of either, consequently these acts require, in many important particulars judicial interpretation in order that their meaning and application may be rendered definite and certain. They are, however, of recent enactment, and but few cases have reached the courts of last resort, or received a construc 4 Hamilton v. Blair, 23 Oreg. 65; Dows v. Eckstrom, supra. tion that is binding and where written opinions are filed. Statutes of this character ought to be in force in all the States in order that the rights of the citizens may be fully protected, and when enacted they should certainly receive a liberal construction and be rigidly enforced, for, although they are penal in their nature, they are also remedial. In view, therefore, of the importance of this class of legislation to the people of the country, and especially those who are necessarily compelled to use warehouses, etc., for storage purposes, those cases, which have been passed upon by appellate tribunals, are of exceedingly great importance. It is a general rule of law that, when an act is made criminal by statute, unless knowledge or intent is by such statute made necessary in order to constitute the offense, neither knowledge nor intent need be alleged or proved." It will be apparent from reading these warehouse statutes that an intent, deliberately formed, to dispose of the property of another is not made necessary by the statutes to complete the offense, but that, if a warehouseman receive and receipt for the property of another to be held in store and then sells or disposes of the same without the written assent of the holder of the receipt, the offense is complete and the warehouseman is liable to the punishment prescribed. In the case of Sykes v. People," where the defendant was indicted, under Sec. 25 of the Illinois warehouse act of 1871, imposing a penalty for issuing a receipt for property not actually in store, for issuing warehouse receipts to the Merchants' Loan & Trust Company on property claimed to be in store as collateral security for money loaned, when such property was not actually in store, it was held that the intent of the defendant might be shown for the purpose of fixing "the degree of criminalty and the punishment commensurate thereto," but that the intent to defraud the party to whom the receipt was issued was immaterial on the question of defendant's guilt. "The warehouse act was intended for the protection of the public, and the issuance, by a warehouseman, to a bank, of receipts, transferable by endorsement, purporting to be property in store 5 State v. Hartfiel, 24 Wis. 60; State v. Probasco, 62 Iowa, 400, 17 N. W. Rep. 607; Com. v. Emmons, 98 Mass. 6; Com. v. Zelt, 21 Atl. Rep. 7. 6 2 L. R. A. 461, 127 Ill. 111. |