The action was tried before Grove, J., and a special jury, when a verdict was found for the plaintiffs for 3,500l. damages; but this verdict was set aside by the Queen's Bench Division, and judgment was entered for the defendants on the ground that there was no evidence of negligence on their part, and this judgment was affirmed in the Court of Appeal, as above meutioned.

Willis, Q. C., and Birrell appeared for appellants. Sir R. Webster, Q. C., and Noble, for respondents. EARL OF SELBORNE. My Lords: The husband of the plaintiff, appellant here, lost his life by falling down the well of a lift at the respondent's hotel at their St. Pancras station. The well in question was for a luggage lift, at the further end of a "service" room (used for the temporary deposit of luggage and other purposes incidental to the general service of the hotel), of which the door opened into a corridor on the third floor, containing sleeping apartments for guests, one of which apartments (nearly opposite to the service room) was occupied by the plaintiff and her husband, who had been for more than a day staying at that hotel. The door of the service room was shut, but not locked (I think it appears by the evidence that it had no key); the well, which was seventeen feet from the door, had been left unfenced. There were iron doors at the entrance to it, by closing which it might have been fenced; these were left open. I infer that this service room was not used by the servants of the hotel at night. I find no evidence that it was ever used after the gas was turned down, and I cannot in this inquiry attribute any importance to the statement of the witness Naef that he has "known the servants of visitors sometimes, but very seldom, go to the service room to get water at night." He does not say that he ever knew this done after midnight, when the light in that room was extinguished; and the place for water there was close to, and just within the door. He says he never knew any visitor go to that room at all. This 'accident happened three hours or more after midnight. 'The deceased had been out late with a friend, and had only just returned to the hotel. According to the evidence of his friend, the refreshments which he had taken had produced an effect, not enought to make him incapable of taking reasonable care of himself, but enough (as I cannot but infer) to make the absence of such care on his part less improbable than it might have been under other circumstances. He went to his own room, and having occasion to go to a water-closet, asked his wife, twice over, where the place was. Without waiting for her answer, he went out into the corridor, where the gas lights were turned down, as was usual at that hour, so that there was some, but not a clear or distinct light. No candles were used in the hotel; all the artificial light was from gas. There were proper water-closets, properly lighted within, with doors partly glazed, and having the letters "W. C." legible upon them, in an open recess of the same corridor, which the plaintiff's husband might have seen if he had gone only a few paces beyond the service room upon the same side. Those closets might have been seen by him as often as he ascended to or descended from the corridor, while staying at the hotel, as on every such occasion he passed to or from his room in front of the recess where they were. It must be taken however that he had not actually observed them. What he did was to open the door of the service room, the first door he came to on crossing the corridor toward the left. It was distinguished from the doors of the sleeping apartments by having glass on the upper part, on which the word "Service" was written, but not so as to be clearly legible by the light then in the corridor. There was no light within. Just within the door, to the left, there was a sink, in which there was some drip of

water, the sound of which was perceptible outside. On opening the door it was apparent that the room was absolutely dark, and it must have been at once perceived that the drip of water came from the place where the sink was, which the deceased left behind him as he advanced into the room. He nevertheless instead of continuing his search along the corridor in search of a water-closet properly lightly (which he would have found within a very short distance if he had done so), went into this dark room. It contained one or more tables, on the same side as the sink, and some luggage was lying on the floor; but with these things he does not seem to have come in contact. He made his way through the darkness to the further end, and there met the danger which cost him his life. The door of the room seems to have been found closed when search was afterward made for him; this at least is the effect of the plaintiff's evidence, though the night watchman, Naef, says that the door was then open. This is a summary of the whole evidence, omitting nothing which can be regarded as favorable to the plaintiff's case. The statute under which the action was brought made it necessary for the plaintiff to prove that her husband's death was caused by such a "wrongful act, neglect or default" of the respondents as would have entitled him to maintain an action and recover damages for any injury (not mortal) which he might have sustained. This is not a question of any "act" done by the respondents; it is one of alleged neglect or default. Wrongful neglect or default there could not be, unless a duty which was not performed was previously owing by the respondents toward the plaintiff's husband, or toward persons in the same situation, in respect of the place where the accident happened. Prima facie, there was no such duty, for the service room was a place in which no guest of the hotel had any right or legitimate occasion to be, and into which no such guest was expressly or impliedly invited to go. I think it impossible to hold that the general duty of an innkeeper to take proper care for the safety of his guests extends to every room in his house, at all hours of night or day, irrespective of the question whether any such guests may have a right, or some reasonable cause, to be there. The duty must, I think, be limited to those places into which guests may reasonably be supposed to be likely to go, in the belief, reasonably entertained, that they are entitled or invited to do so. Unless there was evidence fit for the consideration of a jury that any guest in the position of the deceased would, in the darkness of night, have reasonable ground for believing this service room to be a water-closet, and for acting as he did, there is nothing else in the case which, as it seems to me, could make the respondents' omission to provide against dangers within that service room wrongful toward the plaintiff's husband or generally toward their guests; for there was no other ground on which the presence of any guest there could reasonably be explained or excused. then those circumstances connected with this room, which alone can be supposed to have suggested to the mind of the deceased that it might be a wa er-closet, enough to furnish reasonable ground for a belief ou which a guest in the situation of the deceased might reasonably act in the way he did, that this service room was a water-closet? This seems to me to be the question, putting it most favorably for the appellant. Those circumstances were the glass in the door and the audible drip of water within. I do not add the absence of light, for to me it would not seem reasonable to expect that water-closets intended for use at night in such an hotel would be left unlighted. But the glass in the door no more denoted a water-closet (there being no light within) than it did auy other kind of room, passage or place, which might receive

Were

borrowed light from the corridor, such, for instance, as a service room, a housemaid's closet, or the entrance to a passage or back staircase. And the drip of water would be left behind by any one advancing, as the plaintiff's husband did, into the room, and could not be supposed by any such person to denote the situation of the object of his search. At the most these circumstances might explain his first act, in opening the door to see what, if any thing, might be discernible within; but when he had done this, and found the room quite dark, I cannot regard either of them alone, or both together, as furnishing reasonable ground for his going forward in the dark to the place where he fell, instead of proceeding a little further along the corridor, where proper water-closets, with proper lights, might have been found. Would the respondents have been wrong-doers toward him, all other circumstances being the same, if he had come to a steep staircase instead of the unguarded well of a lift, and had fallen down it? I think not; and if not, I do not think they can be liable, because it was the well of a lift with iron doors, which had been purposely or inadvertently left unclosed. The magnitude of a particular danger to any one who may happen to come in the way of it unawares, may doubtless enhance the responsibility of the person to whom it is imputable, for the neglect of any duty which he owes to persons whom he leaves exposed to it; but I do not see how it can create such a duty, when the person who suffers would not, in the proper or ordinary course of things, or without his own unauthorized and unreasonable act, have been within the reach of the danger at all. I will not detain your lordships by considering some other things which might have happened, as e. g., if the plaintiff's husband had sustained serious hurt by stumbling over the luggage which was on the floor of the service room, or if there had been in the room brittle or perishable articles of value belonging to the defendants, which he might have broken or injured while groping about in the darkness. I doubt whether a judgment in the appellant's favor in the actual case could be justified, unless upon principles which would equally have entitled the plaintiff's husband to damages in the first of those cases, and have exonerated him from liability in the other. In considering whether there was any evidence of neglect of duty by the respondents, it would not in my opinion be right to leave out of sight the fact that they did not so conduct their hotel as to drive their guests to grope about in dark places or to explore unknown rooms in order to find water-closets. These conveniences were provided in that corridor, in positious easily accessible, and easily discoverable by any guests in the circumstances of the appellant's husband, who might endeavor, with reasonable care and patience, to observe or find them; and they were kept properly lighted at night. Much as I regret the terrible result to the plaintiff's husband, I cannot hold the respondents responsible for it. The majority of the learned judges in the Court of Appeal, and all the judges of the Queen's Bench Division, before whom the case came, thought that there was no evidence of any wrongful neglect or default toward the plaintiff's husband on the respondent's part. I am unable to differ from them. If the evidence, illustrated by the plans which were before us, would not have been enough to go to a jury without the view, I am unable to see how a view of the corridor lighted so as to reproduce, as far as possible, its condition at the time of the accident could make any material difference. I therefore move your lordships to dismiss this appeal. But as this is a case in which the appellant has been a great sufferer, for whom all your lordships must feel the greatest compassion, and as one of the learned

judges in the Court of Appeal, in a very able judgment, took a view different from that which I have submitted (of encouraging an appeal), and as some of your lordships-though I believe not a majority-concur in the opinion of that learned judge, I would propose to your lordships that the appeal should be dismissed without costs.

Lord Watson and Lord Bramwell concurred.

Lords Fitzgerald and Ashbourne dissented from the judgment or the Earl of Selborne, holding that on the facts of the case there was evidence to go to the jury that the respondents had been guilty of a culpable breach of duty, and that the verdict ought not to be disturbed.

Judgment appealed from affirmed, and appeal dismissed without costs.

NEW YORK COURT OF APPEALS ABSTRACT.

CRIMINAL LAW-LIBEL EVIDENCE- CORROBORATION-RES GESTE.-In a criminal prosecution for libel against a newspaper, the writer of the libel and another member of the newspaper staff testified that they were sent to the comptroller's office in the city to verify the statement made, and reported to defendants that it was false; that defendants thereupon issued a second edition of the paper, in which the libel was repeated. Held, the testimony of a clerk in the comptroller's office as to the visit of the aforesaid witnesses to the office, and their inspection of the books, was admissible, both as evidence in corroboration of the evidence of accomplices, and also as evidence relating to the main issue involved and as part of the res gesta. Nov. 23, 1886. People v. Sherman. Opinion by Miller, J.

MASTER AND SERVANT-NEGLIGENCE-LIABILITY OF MASTER TO SERVANT-ASSUMPTION OF RISK.-In an action for damages for injuries resulting in death, sustained by an employee in consequence of stepping upon certain uncovered couplings in defendant's mill, where the evidence shows that deceased entered defendant's service with knowledge and appreciation of the risk resulting from leaving the coupling uncovered; that he was foreman, familiar with the machinery, and capable of appreciating the consequences of leaving the couplings uncovered; held, that he took upon himself the risk of injury, and an action for damages will not lie. In such a case, if it is proved that defendant's superintendent asked deceased if he wanted the couplings covered, and the latter declined the precaution, it shows defendant took on himself the risks of the omission, and frees, the employer from responsibility, and it is therefore error in the court below to charge the jury that it is a circumstance for them to consider upon the question of the assumption of consequent dangers by the deceased. Nov. 23, 1886. Shaw v. Sheldon. Opinion per Curiam.

NEGLIGENCE-RAILROAD COMPANY-BRIDGE OVER TRACK-EVIDENCE.-Where, in an action for damages against a railroad company for death alleged to have been caused by the deceased's falling off a bridge which defendant had built to carry a public way across their track, and which was alleged to be unsafe, the evidence shows that deceased was found lying on the track at night beneath the bridge, suffering from shock and concussion of which he soon died, and with injuries such as might have been caused by falling off the bridge or from a car, or from a blow, "but the probability was, from the general condition of the man, that it was a fall," but there is no evidence to show that deceased was seen at the bridge or upon or at its approaches, or that he was that evening going

toward the bridge, or his home beyond, or was intending to do so, the condition of the bridge is unimportant, and no case is shown for recovery. Nov. 23, 1886. Gardinier v. N. Y. C. & H. R. R. Co. Opinion by Danforth, J.

RECEIVER

-WHEN

APPOINTED

DAMAGE OR ACCOUNT.-In an action brought by a purchaser, for value, of the interest of a partner in a partnership, to recover his interest from the fraudulent vendees of a judgment creditor who had fraudulently acquired the partnership property under execution sale, and to which the other partner had not been made a party, and in which action plain

tiff seeks to have the fraudulent execution sale set aside, and the partnership property sold, and the share claimed by him paid to him out of the proceeds, the court has no power to appoint a receiver to make such sale and settlement, the ascertainment of the value of the property, of the use, and the amount of certain insurance realized thereon, involved in plaintiff's relief as prayed, being items of damage, and not of account. Nov. 23, 1886. Morrison v. Van Benthuysen. Opinion by Finch, J.

WILL CONSTRUCTION - VESTED INTERESTS-TENANTS IN COMMON.-Under section 40, 1 Rev. St. N. Y. 721, providing that "when in consequence of a valid limitation of an expectant estate, there shall be a suspension of the power of alienation or of the ownership, during the continuance of which the rents and profits shall be undisposed of, and no valid direction for their accumulation is given, such rents and profits shall belong to the person presumptively entitled to the next eventual estate," an estate given by will to trustees to apply the income thereof equally among the wife and six children of the testator during the life of the wife, and after her death, the estate to be divided equally among the children living at her death, and if any child should die leaving issue, such issue to take the share that their parent would take if living, vests their respective interests in the beneficiaries as tenants in common, and the child of a daughter who dies during the life of the testator's widow is entitled to its mother's share of the income of the estate. Warner v. Durast, 76 N. Y. 133; Smith v. Edwards, 88 id. 82; Shipman v. Rollins, 98 id. 311. The whole income is not given to the children during the life of the widow, and during her life the estate is vested in the trustees. There is no direct gift to the children, but simply a direction for a division among them after the death of the widow. In Warner v. Durant, Folger, J., said: "Where there is no gift, but a direction to executors or trustees to pay, or to divide and to pay, at a future time, the vesting will not take place until that time arrives." In Smith v. Edwards, Finch, J., said that "it has been often held, that if futurity is annexed to the substance of the gift, the vesting is suspended;" and that "when the only gift is in the direction to pay or distribute at a future time, the case is not to be ranked with those in which the payment or distribution only is deferred, but is one in which time is the essence of the gift." These general rules must control the construction of this will, as there is nothing in its context or general language which renders them inapplicable. This construction too is in harmony with the presumed intention of the testator. He vested the whole estate in the trustees during the life of his widow, and during that time evidently intended that it should remain there, and not be subject to the disposal of his children, or liable to be seized by their creditors; and after the death of his widow, he gave it, not to the children living at his death, but to the children, and descendants of children deceased, living at her death. It is clear that the testator intended that his wife and children should take the surplus in

come, not as a class, not as joint tenants, but distributively as tenants in common. Such is the plain language of the will. The trustees were to divide the surplus "equally between" his wife and six children, so as to give each "an equal share," and "each one was to defray, out of his or her share," his or her personal expenses. Such language is always held to constitute the beneficiaries tenants in common, and to show that they take distributively, unless there is something in other provisions of the will to show that the testator intended that they should take as a class; and so it was held in Hoppock v. Tucker, 59 N. Y. 202. Here there is nothing in the will to control, modify, or limit the plain meaning of this language. The testator's wife was not old, and it appears that he contemplated that one or more of his children might, during her life, marry, die, and leave descendants. He made no provision for the the support of such descendants in the family home, and it cannot be supposed that he intended they should, during the life of his widow, be left without any means of support. He put such descendants in the place of their deceased parents after the death of his widow, and it is fair to infer that he expected that they would in some way take the place of their parents during her life. A construction giving such effect to the will, will certainly come nearest to the presumed intention of the testator. Nov. 23, 1886. Delafield v. Shipman. Opinion by Earl, J.

UNITED STATES SUPREME COURT ABSTRACT.

CORPORATIONS-RIGHT TO SELL FRANCHISE-MORTGAGE OF FRANCHISE-WATER-POWER.-When the charter of a corporation giving the exclusive right to use certain water-power, gives it power to sell all the rights it has under the charter, it may mortgage the same. The charter itself seems to have given unlimited power to the company to sell every thing it had, including its exclusive right to the hydraulic powers and privileges created by the water which it takes from the Santiam river. Such is the express language of the sixth section of the charter. Describing what it is that is granted to this corporation with regard to the water and its use, and in the same language, what it may do in the way of disposing of it, it says "said corporation shall have the exclusive right to the hydraulic powers and privileges created by the water which it takes from the Santiam river, and may use, rent or sell the same, or any portion thereof, as he may deem expedient." There seems to be here no limitation upon the power of the corporation to dispose of whatever it acquired under the statute which called it into being. Describing in the same sentence that it shall have the exclusive right to the hydraulic powers and privileges created by the water which it takes from the Santiam river," it declares that it "may use, rent or sell the same," which means all of it; and to show that it does mean all of it, there is added after the words "sell the same "the further clause, or any portion thereof, as it may deem expedient." It is hardly necessary to say that this right to sell in these general and strong terms, or to rent or to use it, must include the power to mortgage it. A mortgage is in effect a sale with a power of defeasance, which may ultimately end in an absolute transfer of the title. This language is in its nature inconsistent with a limitation upon the power of the company to transfer its rights and privileges. If there is any thing peculiar in the word franchise" it must include, in any definition that can be given it, this word "privileges," especially when the statute speaks of "the exclusive

66

right to the hydraulic powers and privileges." As we have already said, it would be unprofitable to go into an inquiry of how far the corporation could have transferred these exclusive rights and privileges to any body else, and how far it could have divested itself of them, and of its power to use them if no such language had been in the charter. But the supreme leg. islative power, which had the right to make this corporation, and to which it would be subject more or less in its exercise of the powers conferred upon it, has also said, as it had a right to say, that it may sell these privileges, may part with them, and may transfer them to other persons, and we think this language is sufficient warrant for any thing actually conveyed by the mortgage and by the decree of the court. Nov. 29, 1886. Willamette Woolen Manuf'g Co. v. Bank of British Columbia. Opinion by Miller, J.

COUNTIES-COURT-HOUSE-CHANGE OF SITE-COURTHOUSE BURNED-ACTS N. C. 1868, CH. 20.-Where a court-house has been destroyed by fire, the renting of a building to be used for a court-house in another locality cannot be considered as a removal or a designation of a new site for a court-house within the meaning of the statute of North Carolina (acts of 1868, ch. 20), providing that the site of any county building shall not be changed unless by vote of the county commissioners previously had, and notice given. After the occupation of the rented building for five years as a court-house, the change of title from that of lessor for a term of years to an ownership in fee by reason of purchase is not a change of the site of a county building, within the meaning of the statute. Nov. 29, 1886. Board of Com'rs of the County of Washington v. Sallinger. Opinion by Matthews, J.

JUDG

JURISDICTION-NON-RESIDENTS-PERSONAL MENT-SALE OF LANDS.-The courts of a State have no jurisdiction over the persons of non-residents; and where judgment for costs was rendered in an action of trespass to try title to lands against a non-resident defendant not personally served with process, and who did not appear, a sale of other lands of defendant to satisfy the judgment is void. The State has jurisdiction over property within its limits owned by nonresidents, and may therefore subject it to the payment of demands against them of its own citizens. It is only in virtue of its jurisdiction over the property, as we have said on a former occasion, that its tribunals can inquire into the non-resident's obligations to its own citizens; and the inquiry can then proceed only so far as may be necessary for the disposition of the property. If the non-resident possesses no property in the State, there is nothing upon which its tribunals can act. Pennoyer v. Neff, 95 U. S. 723. They cannot determine the validity of any demand beyond that which is satisfied by the property. For any further adjudication the defendant must be personally served with citation, or voluntarily appear in the action. The laws of the State have no operation outside of the territory, except so far as may be allowed by comity; its tribunals cannot send their citation beyond its limits, and require parties there domiciled to respond to proceedings against them; and publication of citation within the State cannot create any greater obligation upon them to appear. Penuoyer v. Neff, 95 U. S. 727. So necessarily such tribunals can have no jurisdiction to pass upon the obligations of non-residents, except to the extent and for the purpose mentioned. This doctrine is clearly stated in Cooper v. Reynolds, 10 Wall. 308, where it became necessary to declare the effect of a personal action against an absent party without the jurisdiction of the court, and not served with process or voluntarily appearing in the action, and whose property was attached, and sought to be subjected to the payment of

the demand of the resident plaintiff. After stating the general purpose of the action, and the inability to serve process upon the defendant, and the provision of law for attaching his property in such cases, the court, speaking by Mr. Justice Miller, said: "If the defendant appears the cause becomes mainly a suit in personam, with the added incident that the property attached remains liable, under the control of the court, to answer to any demand which may be established against the defendant by the final judgment of the court. But if there is no appearance of the defendant, and no service of process on him, the case becomes, in its essential nature, a proceeding in rem, the only effect of which is to subject the property attached to the payment of the demand which the court may find to be due to the plaintiff. That such is the nature of this proceeding in this latter class of cases is clearly evinced by two well-established propositions: First. The judgment of the court, though in form a personal judgment against the defendant, has no effect beyond the property attached in that suit. No general execution can be issued for any balance unpaid after the attached property is exhausted. No suit can be maintained on such a judgment in the same court, or in any other; nor can it be used as evidence in any other proceeding not affecting the attached property; nor could the costs in that proceeding be collected of defendant out of any other property than that attached in the suit. Second. The court in such a suit cannot proceed unless the officer finds some property of defendant on which to levy the writ of attachment. A return that none can be found is the end of the case, and deprives the court of further jurisdiction, though the publication may have been duly made and proven in court." 10 Wall. 318. To this statment of the law it may be added what indeed is a conclusion from the doctrine, that while the costs of an action may properly be satisfied out of the property attached, or otherwise brought under the control of the court, no personal liability for them can be created against the absent or non-resident defendant; the power of the court being limited. as we have already said, to the disposition of the property, which is alone within its jurisdiction. Nov. 29, 1886. Freeman v. Alderson. Opinion by Field, J. MUNICIPAL BONDS-INVALID ON FACE-BONA FIDE CERTIFIPURCHASER-DIFFERENT ACTS-AUDITOR'S CATE OF REGULARITY.—(1) Where township bonds in the hands of bona fide purchasers for value are invalid on their face under the act under which they were issued, they will not be declared valid under another act under which they might have been issued, when, if so issued, they would have been valid on their face, but the act was not complied with, and they would have been invalid under it in fact. The purchaser, having had notice of the invalidity of the bonds, cannot maintain their validity under an act to which they do not refer, as valid on their face under such act, if such act was not complied with, and the bonds were actually invalid under it. (2) Where the recitals in township bonds show that they were issued under an act under which the auditor had no authority to register them, and certify that they were regularly and legally issued, a recital of such registration and certificate, although conclusive, when authorized upon the facts (as when the bonds are held by bona fide purchasers) will in such case be ineffectual to make valid such bonds under a general act to which they do not refer, and under which in fact they were not issued. Nov. 29, 1886. Crow v. Township of Oxford. Opinion by Blatchford, J.

recover damages for a personal injury the written statement of the plaintiff's physician attached to his deposition representing her condition as it appeared when he first saw her, and as it continued up to a certain time, not being made under oath and in defendant's presence, or with its knowledge and consent, is incompetent and inadmissible against the objections of the defendants, as evidence before the jury. Where a physician testifies on behalf of a plaintiff in an action for a personal injury, against a railroad company, apart from his certificate, as to the material facts embodied in it, which certificate was allowed to go to the jury as evidence of the condition of the plaintiff when she left his charge, a reversal will nevertheless be directed upon the ground of the admission of such certificate, unless it appears beyond doubt that the admission did not and could not have prejudiced the rights of the company. The authorities are uniform in holding that a witness is at liberty to examine a memorandum prepared by him, under the circumstances in which this one was, for the purpose of refreshing or assisting his recollection as to the facts stated in it. But there are adjudged cases which declare that unless prepared in the discharge of some public duty, or of some duty arising out of the business relations of the witness with others, or in the regular course of his own business, or with the knowledge and concurrence of the party to be charged, and for the purpose of charging him, such a memorandum cannot under any circumstances be admitted as an instrument of evidence. There are however other cases to the effect that where the witness states under oath that the memorandum was made by him presently after the transaction to which it relates for the purpose of perpetuating his recollection of the facts, and that he knows it was correct when prepared, although after reading it he cannot recall the circumstances so as to state them alone from memory, the paper may be received as the best evidence of which the case admits. The present case does not require us to enter upon an examination of the numerous authorities upon this general subject, for it does not appear here but that at the time the witness testified he had, without even looking at his written statement, a clear, distinct recollection of every essential fact stated in it. If he had such present recollection, there was no necessity whatever for reading that paper to the jury. Applying then to the case the most liberal rule announced in any of the authorities, the ruling by which the plaintiffs were allowed to read the physician's written statement to the jury as evidence in itself of the facts herein recited was erroneous. (2) It is however claimed in behalf of the plaintiffs that in his answer to other interrogatories the physician testified, apart from the certificate, to the material facts embodied in it, and that therefore the reading of it to the jury could not have prejudiced the rights of the defendant, and for that reason should not be a ground of reversal. We are unable to say that the defendant was not injuriously affected by the reading of the physician's certificate in evidence. It is not easy to determine what weight was given to it by the jury. In estimating the damages to be awarded in view of the extent and character of the injuries received, the jury, for aught that the court can know, may have been largely controlled by its statements. The practice of admitting in evidence the unsworn statements of witnesses, prepared in advance of trial at the request of one party, and without the knowledge of the other party, should not be encouraged by further departures from the established rules of evidence. While this court will not disturb a judgment for an error that did not operate to the substantial injury of the party against whom it was committed, it is

well settled that a reversal will be directed unless it appears beyond doubt that the error complained of did not and could not have prejudiced the rights of the party. Smiths v. Shoemaker, 17 Wall. 630, 639; Deery v. Cray, 5 id. 795; Moores v. National Bank, 104 U. S. 630; Gilmer v. Higley, 110 id. 50; S. C., 3 Sup. Ct. Rep. 471. (3) In an action against a railroad company for a personal injury, the declarations of the engineer to a witness, called on behalf of plaintiff, after the accident had become a completed fact, and when he was not performing the duties of engineer, are not competent against the defendant, for the purpose of proving the rate of speed at which the train was moving at the time of the accident. There can be no dispute as to the general rules governing the admissibility of the declarations of an agent to affect the principal. The acts of an agent, within the scope of the authority delegated to him, are deemed the acts of the principal. Whatever he does in the lawful exercise of that authority is imputable to the principal, and may be proven without calling the agent as a witness. So in consequence of the relation between him and the principal, his statement or declaration is under some circumstances regarded as of the nature of original evidence; "being," says Phillips, "the ultimate fact to be proved, and not an admission of some other fact." 1 Phil. Ev. 381. "But it must be remembered," says Greenleaf, "that the admission of the agent cannot always be assimilated to the admission of the principal. The party's own admission, whenever made, may be given in evidence against him; but the admission or declaration of his agent binds him only when it is made during the continuance of the agency in regard to a transaction then depending et dum fervet opus. It is because it is a verbal act and part of the res gesta that it is admissible at all; and therefore it is not necessary to call the agent to prove it; but wherever what he did is admissible in evidence, there it is competent to prove what he said about the act while he was doing it." 1 Greenl., § 113. This court had occasion in Packet Co. v. Clough, 20 Wall. 540, to consider this question. Referring to the rule as stated by Mr. Justice Story in his treatise on Agency (§ 134), that "where the acts of the agent will bind the principal, there his representations, declarations and admissions respecting the subject-matter will also bind him, if made at the same time and constituting part of the res gesta," the court, speaking by Mr. Justice Story, said: "A close attention to this rule, which is of universal acceptance, will solve almost every difficulty. But an act done by an agent cannot be varied, qualified or explained, either by his declarations, which amount to no more than a mere narrative of a past occurrence or by an isolated conversation held, or an isolated act done, at a later period. The reason is that the agent to do the act is not authorized to narrate what he had done, or how he had done it, and his declaration is no part of the res gesta." We are of the opinion that the declaration of the engineer Herbert to the witness Roach was not competent against the defendant for the purpose of proving the rate of speed at which the train was moving at the time of the accident. It is true that in view of the engineer's experience and position, his statements under oath as a witness, in respect to that matter, if credited, would have influence with the jury. Although the speed of the train was in some degree subject to his control, still his authority in that respect did not carry with it authority to make declarations or admissions at a subsequent time as to the manner in which, on any particular trip, or at any designated point in his route, he had performed his duty. His declarations after the accident had become a competent fact, and when he