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likely to be thrown off in the same manner and under United States, and that the practice, pleadings, and the same circumstances at any arrival of a postal car. forms and modes of proceedings in such cases shall conBy this knowledge the defendant was brought fairly form as near as may be to those of the courts of the States within the rule which enjvins care, not only on the in which the courts sit, is applicable only where there is part of itself and its servants, but also like care in pre- no rule on the same subject prescribed by act of Conventing injury from the careless or wrongful act of any gress, and where the State rule is not in conflict with any other person whom it permits to come upon its premi

such law.

The statute of New York, which permits a party to a suit to The occupants of the postal car are no exception to be examined by his adversary as a witness at any time this rule; they were not strangers or uninvited. They previous to the trial in an action at law, is in conflict with came under a contract voluntarily made by the de- the provisions of the Revised Statutes of the United feudant, and which secured the carriage and delivery States which enacts that “The mode of proof in the of the mails upon such conditions as it imposed or ac- trial of actions at common law shall be by oral testiceded to. Its police power extended over the persons mony and examination of witnesses in open court, except employed in it, while they were on the defendant's as hereinafter provided," track or on its stations, certainly not to interrupt them The courts of the United States sitting in New York have no in the discharge of their official duties, but so far as power therefore to compel a party to submit to such an practicable to prevent injury to those for whose examination, and no power io punish him for a refusal to safety it was bound to provide. So it was held in Stewart v. Brooklyn & Cross Town R., 90 N. Y. 588, Nor can the United States court enforce such an order made applying the rule to violence committed by strangers by a State court before the removal of the case into the and co-passengers in Flint v. Norwich & N. Y. Trans. Circuit Court of the United States. Co., 34 Conn. 554, to violence from whatever source Where a person is in custody, under an order of the Cirarising, and this although the aggressors were soldiers cuit Court, for contempt in refusing to answer under such received upon the boat on compulsion. The doctrine of an order, this court will release him by writ of habeas that case is approved and its reasoning followed in the corpus on the ground that the order of imprisonment was case of Putuam, supra.

without the jurisdiction of that court. Nor was it necessary in order to charge the defendant with the duty of care and vigilance, that on some

ETITION for writs of habeas corpus and certiorari. former occasiou a like injury bad happened. The act

The opinion states the facts. was itself dangerous. There was under the circum- MILLER, J. This is an application on the part of stances of which the defendant had notice, a natural

Clinton B. Fisk for a writ of habeas corpus, to be diand probable connection between the act of throwing rected to the marshal of the Southern District of New out a mail bag with its contents and the injury which York, in whose custody the petitioner is held under an actually happened. It could have been foreseen, and order of the Circuit Court for that district. the defendant owed a duty to those who might prob- The history of the case which resulted in this order, ably be on the platform, either to prohibit the prac- so far as it is necessary to the decision of the matter tice which made the place dangerous, or exclude the before us, may be briefly stated as follows: passenger until train time, or provide some other way Francis B. Fogg brought suit in the Supreme Court for ingress to the cars, or at least give notice to him of the State of New York against Fisk to recover the that he must take care and avoid the danger, or in sum of $63,250, on the allegation of false aud fraudusome other way use reasonable caution to prevent lent representations made by Fisk in the sale of cerdamage from the danger, of which it knew or ought to tain mining stocks. have known. Whether such reasonable care was In the progress of the suit, and before the trial, the taken by notice, guarding the way or otherwise, must plaintiff obtained from the court the following order: be determined as a matter of fact. So far as “ Ordered that the defendant, Clinton B. Fisk, be the case now discloses, the defendant failed to do examined and his testimony and deposition taken as either of these things. It seems to me therefore that a party before trial, pursuant to sections 870, 871, 872. the plaintiff's evidence tended to establish every pro- | 873, etc., of the Code of Civil Procedure, and that for position, which as set forth in his complaint, consti- such purpose he personally be and attend before the tuted a fair cause of action--damages occasioned by undersigned, a justice of this court, at the chambers the omission of duty which the defendant owed to thereof, to be held in the new county court-house, in him, and that he was not himself in default. These the said city of New York, on the 31st day of January, were questions for the jury and should have been sub- | 1883, at 11 o'clock in the forenoon of that day.” A momitted to them. The plaintiff was therefore improp-tion to vacate this order was overruled and the judg. erly nonsuited.

ment finally affirmed by the Court of Appeals. It follows that the judgment of the Special and Gen- Thereupon the defendant appeared before the court eral Terms should be reversed and a new trial granted, and submitted to a partial examination, answering costs to abide the event.

some questions and objecting to others, until pending All concur, except Rapallo and Finch, JJ., dissent- one of the adjournments of the examination, he proing.

cured an order removing the case to the Circuit Court

Judgments reversed. of the United States. [To same effect is Snow v. Fitchburg R. Co., 136 Mass. In that court an order was made to continue the ex. 552, to appear in 49 Am. Rep. 40. ]

amination before a master, to whom the matter was

referred. The defendant refusing to be sworn and deFEDERAL PROCEDURE

clining to be examined, he was brought before the

PARTY BEFORE TRIAL-ORDER OF STATE Circuit Court on an application for attachment for a

contempt in refusing to obey the order.

Without disposing of this motion, the Circuit Court

made another order, to wit: SUPREME COURT OF THE UNITED STATES,

" It is hereby ordered and adjudged that the motion MARCH 2, 1885.

to punish the said defendant for such contempt stand MATTER OF CLINTON B. FISK, PETITIONER. adjourned to the next motion day of this court, to

wit, on the 28th day of March, 1884. The principle that in actions at law the laws of the States

shall be regarded as rules of decision in the courts of the “It is further ordered that the defendant, Clinton

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B. Fisk, be and he is hereby directed and required to attend personally on the 14th day of March, 1884, before the Honorable Addison Brown, one of the judges of this court, at a stated term thereof, at his chambers in the post office building, in said city of New York, at 11 o'clock in the forenoon of that day; then and there, and on such other days as may be designated, to be examined and his testimony and deposition taken and continued as a party before trial, pursuant to section 870, et seq., of the Code of Civil Procedure, and for the purposes meutioned in said order of January 12, 1883, and February 12, 1884, heretofore made in this action."

The defendant appeared before the court in pursuance of this order, and stating that he was advised by counsel that the court had no jurisdiction to require him to answer in this manner to the questions propounded to him by the counsel for plaintiff, he refused to do so.

For this, on further proceeding, he was held by the court to be in contempt, and fined five hundred dollars, and committed to the custody of the marshal until it was paid.

It is to be relieved of this imprisonment that he prays here the writ of habeas corpus.

The jurisdiction of this court is always challenged in cases of this general character, and often successfully. There can be no doubt of the proposition, that the exercise of the power of punishment for contempt of their orders, by courts of general jurisdiction, is not subject to review by writ of error, or appeal to this court. Nor is there, in the system of federal jurisprudence, any relief against such orders, when the court has authority to make them, except through the court making the order, or possibly by the exercise of the pardoving power.

This principle bas been uniformly held to be necessary to the protection of the court from insults and oppressions while in the ordinary exercise of its duties, and to enable it to enforce its judgments, and orders necessary to the due administration of law, and the protection of the rights of suitors.

When however a court of the United States undertakes, by its process of contempt, to punish a man for refusing to comply with an order which that court had no authority to make the order itself, being without jurisdiction, is void, and the order punishing for the contempt is equally void. It is well settled now in the jurisprudence of this court, that when the proceeding for contempt in such a case results in imprisonment, this court will by its writ of habeas corpus discharge the prisoner. It follows necessarily, that on a suggestion by the prisoner, that for the reason mentioned, the order under which he is held is void, this court will, in the language of the statute, make “inquiry into the cause of the restraint of liberty.” Section 752, Rev. Stat.

That the case as made by the petitioner comes, for the purposes of this inquiry, within the jurisdiction of this court, under the principles above mentioned, is established by the analogous cases: Ex parte Rowland and others, 104 U. S. R. 164; Ex parte Lange, 18

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of the defendant, after the removal of the case into the court of the United States, is asserted on two grounds:

1. That the order for his examination, having been made by the Supreme Court of New York, under its rightful jurisdiction, wbile the case was pending in it, is still a valid order, partially executed, which accompanies the case into the Circuit Court; and that in that court it cannot be reconsidered, but must be enforced.

2. That if this be not a sound proposition, the Circuit Court made an independent order of its own for the examination of the defendant, which order is justified by the principle that the Code of Civil Procedure of New York, under which both orders were made, is a part of the law governing the courts of the United States sitting within that State.

We will inquire into the latter proposition first, for the points to be considered in it lie at the foundation of the other also.

The general doctrine that remedies, whose foundations are statutes of the State, are binding upon the courts of the United States within its limits, is undoubted. This well-known rule of the Federal courts, founded on the act of 1789 (1 U. S. Stat. 92; Rev. Stat., $ 721), that the laws of the several States, except when the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law, was enlarged in 1872 by the provision found in section 914 of the revision. This enacts that “the practice, pleadings, and forms and modes of proceeding in civil cases, other than equity and admiralty causes in the Circuit and District Courts, shall conform as uear as may be to the practice, pleadings, and forms and modes of proceeding existing at the time in like causes in the courts of record of the State within which such Circuit or District Courts are held, any thing in the rules of courts to the contrary notwithstanding."

In addition to this, it has been often decided in this court that in actions at law in the courts of the United States, the rules of evidence and the law of evidence generally of the States prevail in those courts.

The matter in question here occurred in the court below in regard to a common-law action. It was in regard to a method of procuring and using evidence, and it was a proceeding in a civil cause other than equity or admiralty.

We entertain no doubt of the decision of the Court of Appeals of New York, that it was a proceeding authorized by the statutes of New York, under which, in a New York court, defendant was bound to answer,

The case as thus stated, is a strong one for the enforcement of this law in the courts of the United States. Ex parte Boyd, 105 U. S. 647.

But the act of 1789, which made the laws of the States rules of decision, made an exception when it

“otherwise provided by the Coustitution, treaties, or statutes of the United States."

The act of 1872 evidently contemplates the same exception by requiring the courts to conform to State practice as near as may be. No doubt it would be implied, as to any act of Congress adoptiug State practice in general terms, that it should not be inconsistent with any express statute of the United States on the same subject.

There are numerous acts of Congress prescribing modes of procedure in the Circuit and Distriot Courts of the United States at variance with laws of the States in which the courts are held. Among these are the modes of impavelling jurors, their qualifications, the number of challenges allowed to each party. Two chapters of the Revised Statutes, XVII and

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Wall. 163.

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But did the court transcend its jurisdiction in fining the petitioner for contempt? Or rather did it have the power to make the order requiring him to submit to the preliminary examination? For if it had that power it clearly could enforce obedience to the order by fine and imprisonment, if necessary. The record of the entire proceeding in this branch of the case, both in the State court and the Circuit Court, is before u9, and we are thus enabled to form an intelligent opinion on the question presented. The power of the court to continue the examination

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XVIII, embracing sections 858 to 1042, inclusive, are as a court of equity, may according to the usages of devoted to the subjects of evidence and procedure chancery direct depositions to be taken in perpetuam alone.

rei memoriam, if they relate to any matter that The case before us is eminently one of evidence and may be cognizable in any court of the United procedure. The object of the orders is to procure evi- | States." dence to be used on the trial of the case, and this ob- Section 867 authorizes the courts of the United ject is effected by a proceeding peculiar to the courts States, in their discretion, and according to the pracof New York, resting alone on a statute of that State. tice in the State courts, to admit evidence so taken; There can be no doubt that if the proceeding here au- and sections 868, 869, and 870 prescribe the manner of thorized is in conflict with any law of the United taking such depositions, and of the use of the subpoena States, it is of no force in the courts of the United duces tecum, and how it may be obtained. States. We think it may be added further in the same No one can examine these provisions for procuring direction, that if Congress has legislated on this sub- testimony to be used in the courts of the United States ject and prescribed a definite rule for the government and have any reasonabte doubt, that so far as they apof its own courts, it is to that extent exclusive of any ply, they were intended to provide a system to govern legislation of the State in the same matter.

the practice in that respect in those courts. They A striking illustration of this effect of an act of | are, in the first place, too complete, too far-reaching, Congress in prescribing rules of evidence is to be found and too minute to admit of any other couclusion. But in section 858 of the Revised Statutes originally en- we have not only this inference from the character of acted in an appropriation bill in 1864, and the amend- the legislation, but it is enforced by the express lanment to it passed in 1865.

guage of the law in providing a defined mode of proof It now reads: “In the courts of the United States in those courts, and in specifying the only exceptions no witness shall be excluded in any action on account to that mode which shall be admitted. of color, or in any civil action because he is a party to This mode is “by oral testimony and examination or interested in the issue tried : Provided, that in ac- of witnesses in open court, except as hereinafter protions by or against executors, administrators, or vided." guardians, in which judgment may be rendered for or Of course the mode of producing testimony under against them, neither party shall be allowed to testify the New York Code, which was applied to petitioner, against the other as to any transaction with or state- is not oral testimony and examination of a witness in ment by the testator, intestate, or ward unless called

opeu court, within the meaning of this act of Conto testify thereto by the opposite party, or required to gress. This obviously means the production of the testify thereto by the court."

witness before the court at the time of the trial, and This act of Congress when passed made competent his oral examination then; and it does not mean proof witnesses in the courts of the United States many mil- by reading depositions, though those depositions may lions of colored persous who were not competent by have been taken before a judge of the court, or even the laws of the States in which they lived, and prob- in open court, at some other time than during the ably as many more persons as parties to suits, or in- trial. They would not, in such case, be oral testiterested in the issues to be tried, who were excluded mony. The exceptions to this section, which all reby the laws of the States. It has never been doubted late to depositions, also show that proof by deposition that this statute is valid in all the courts of the United cannot be within the rule, but belongs exclusively to States, not only as to the introduction of persous of the exceptions. color and parties to suits; but in the qualification

We come now to inquire if the testimony sought to made by the proviso where its language differs from be obtained from petitioner by this mode comes within provisions somewhat similar in State statutes, the act

the exception referred to in section 861. These excepof Congress, critically construed, has always been held

tions relate to cases where it is admissible to take to govern the court. Monongahela Bank v. Jacobus, 109 depositions de bene esse under section 863, or in perU. S. 275; Potter v. Bank, 102 id. 163; Page v.

petuam rei memoriam and under a dedimus potestatum Burnstine, id: 664; King v. Worthington, 104 id. 44.

under section 866. Coming to consider whether Congress has enacted

In the first of these, the circumstances which auany laws bearing on the question before us, we find the following sections of the Revised Statutes, in chapter the trial are mentioned with great particularity. They

thorize depositions to be taken in advance for use on XVII, on evidence, which we here quote together:

all have relation to some conditions of the witness; to “Section 861. The mode of proof, in the trial of actions at common law, shall be by oral testimony and

residence more than a hundred miles from the court, examination of witnesses in open court, except as

or bound on a sea voyage, or as going out of the United

States or out of the district, or more than a hundred hereinafter provided.” “Section 863. The testimony of any witness may be

miles from the place of trial before the time of trial,

or an ancient or infirm witness. taken in any civil cause, pending in a Distriot or Cir. cuit Court, by deposition de bene esse, when the wit

None of these things are suggested in regard to petiness lives at a greater distance from the place of trial tioner, nor were they thought of as a foundation of than one hundred miles, or is bound on a voyage to

the order of the State court or of the Circuit Court. Bea, or is about to go out of the United States, or out The statute of New York, under which both courts of the district in which the case is to be tried, and to actej, makes no such requirements as a condition to a greater distance than one hundred miles from the the examination of the party. It is a right which, if place of trial, before the time of trial, or when he is the judge may possibly refuse to grant, he is in that ancient or infirm.” The remainder of this section, matter governed by none of the conditions on which and sections 864 and 865, are directory as to the officer the deposition may be taken under the act of Conbefore whom the deposition may be taken, the notice gress. to the opposite party, and the manner of taking, testi- Nor does the case come within the principle or profying and returning the deposition to the court. fess to be grounded on the power conferred by section

"Section 866. In any case where it is necessary, in 866, which is another exception to the rule established order to prevent a failure or delay of justice, any of by section 861. It is not according to common lisage the courts of the United States may grant a dedimus to call a party in advance of the trial at law, and subpotestatum to take depositious according to commonject him to all the skill of opposing counsel to extract usage; and any Circuit Court, upon application to it something which he may then use or uot, as it suits

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his purpose. This is a very special usage, dependent The petitioner having removed his case into the Cirwholly upon the New York statute.

cuit Court has a right to have its further progress govNor is it in any manner made to appear that this ex- erned by the law of the latter court, and not by that aminatiou " was necessary in order to prevent a delay of the court from which it was removed; and if one of or failure of justice in any of the courts of the United | the advantages of this removal was an escape from this States," nor is any such proposition the foundation of examination, he has a right to that benefit if his case the court's action.

was rightfully removed. These are the exceptions which the statute provides This precise point is decided, and in regard to this to its positive rule that the mode of trial in actions at very question of the differing rules of evidence prevaillaw shall be by oral testimony and examination of ing in the State and Federal courts, in King v. Worthwitnesses in open court. They are the only exceptions ington, 104 U. S. 44. thereinafter provided. Does the rule admit of others ? In that case, after it had been once heard on appeal Can its language be so construed ?

in the Supreme Court of Illinois, it was removed into On the contrary its purpose is clear to provide a the Circuit Court of the United States. mode of proof in trials at law to the exclusion of all The Supreme Court had reversed the judgment of other modes of proof; and because the rigidity of the the iuferior court, because among other things the evirule may in some cases work a hardship, it makes ex- dence of witnesses had been received whom that court ceptions of such cases as it recognizes to be entitled to held to be incompetent. another rule, and it provides that rule for those cases. On the trial in the Circuit Court they were held to Under one or the other all cases must come. Every be competent and admitted to testify, notwithstandaction at law in a court of the United States must be | ing the decision of the Supreme Court of the State, on governed by the rule, or by the exceptions which the the ground that section 858 of the Revised Statutes of statute provides. There is no place for exceptions made the United States, already copied in this opinion, by State statutes. The court is not at liberty to adopt made them competent, and although it differed in that them, or to require a party to conform to them. It respect from the statute of Illinois on the same subject, has no power to subject a party to such an examina- it must prevail in the Circuit Court. tion as this. Not only is no such power conferred, but It was strongly urged here that this was error, and it is prohibited by the plain language and the equally | as to that case the decision of the Illinois court, made plain purpose of the acts of Congress, and especially | while it was rightfully before it, should control. But the chapter on Evidence of the Revision. The New this court held otherwise, and said: "The Federal York statute would, if in force, repeal or supersede court was bound to deal with the case according to the the act of Congress.

rules of practice and evidence prescribed by the acts It does not require much deliberation to see that if of Congress. If the case is properly removed the the acts of Congress forbid the use of this kind of tes. party removing it is entitled to any advantage which timony in the courts of the United States, no order the practice and jurisprudence of the Federal courts for taking it made in the State court while the case give him." was pending in that court, with a view to its use on a The Circuit Court was therefore without authority trial there, can change the law of evidence in the Fed- to make the orders for the examination of petitioner eral court. Without deciding now, for the question in this case, and equally without authority to enforce is not before us, whether the testimony actually given these orders by process for contempt. Its order fining under that order and transmitted with the record of him for contempt and committing him to the custody ihe case to the Circuit Court, can be used when the of the marshal was without jurisdiction and void, and trial takes place, we are well satisfied that the latter the prisoner is entitled to his release. court cannot enforce the unexecuted order of the State It is supposed that the announcement of the judgcourt to procure evidence, which by the act of Cou- ment of the court that he is entitled to the writ will gress is forbidden to be introduced on the trial, it it render its issue unnecessary. If it shall prove othershould be so taken.

wise the writ will be issued on application to the The provision of section 4 of the act of March 3, 1875, clerk. 18 U. S. Stat. 470, declares orders of the State court, in 2 case afterward removed, to be in force until dissolved or modified by the Circuit Court. This fully recogni- | NEW YORK COURT OF APPEALS ABSTRACT. zes the power of tbe latter court over such orders. And it was not intended to enact that an order made PARTNERSHIP FICTITIOUS - "AND Co." - CONin the State court, which affected or might affect the STRUCTION.--Section 1, ch. 281 of the Laws of 1883, mode of trial yet to be bad, could change or modify reads as follows: “No person shall hereafter transthe express directious of an act of Congress on that act business in the name of a partner not interested in subject.

his firm, and where the designation and Company' Nor does the language of the court in Duncan v. or * & Co’is used, it shall represent an actual partner Greghan, 101 U. S. 810, go so far. When it is there or partners.” This statute does not appear to be a said that “the Circuit Court has no more power over very useful one. It does not compel partners to dis. what was done before the removal than the State close their true names, or any of their names, in the court would have had if the suit had remained,” it is partnership designation. They may still do business in effect affirmed that it has at least that much power. under any style, not untruly containing the name of There can be no doubt that on a proper showing before any person which they choose to assume, such as the the State court it could have discharged the order for “Union Towing Company,” the “Eureka Company" this examination or suspended its further execution. or other fanciful names (Crawford v. Collins, 45 Barb. In acting on such a motion as this it would have been 269; Wright v. Hooker, 10 N. Y. 51); and it may be governed by the laws of the State of New York. In very difficult in such cases to ascertain who the nudeciding whether it would continue the execution of merous persons are composing the partnership. Even this order or decline to execute it further the Circuit an individual may transact his business under such a Court was governed by the Federal law. If the law name without violating the statute.

So these plaintgoverning the Circuit Court gave it no power to make iffs could have done business under the name "Gay & or continue this examination, but in fact forbid it, Co.," and the public would have been just as liable to then it could not enforce the order.

imposition as when the business was done under the

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name of Gay Brothers & Co. Persons giving credit to and stow live-stock as other ordinary inapimate
a firm, either rely upon the responsibility of the firm, freight, is a question upon which much has been writ-
by whomsoever it may be constituted, or they rely ten, and some diversity of opinion has been expressed.
upon the members thereof, whose names by inquiry, It is not necessary here to analyze the adjudged cases,
or in some other way, become known to them. With- wor indicate the weight of reason or authority. Betts
out this statute, one imposed upon by a fictitious firm v. Farmers' L. & T. Co., 21 Wis. 81, was an action for
would have his civil remedy for the fraud or deceit, injuries caused by the carrier's negligence in carrying
and there would generally also be a remedy by indict- the plaintiff's cattle in a car with defective aud imper-
ment for false pretenses. So the statute is not only fectly fastened doors, which were thrown open by the
not very beneficial, but it is also highly penal and it motion of the cars so that the cattle escaped. The cat-
should therefore be strictly construed. Where there- tle were shipped under a special contract, which,
fore in a bond given to said firm, which used the among other things, provided that the company should
"& Co.," the names of the actual partners were “not be liable for loss in jumping from the cars." In
stated, and it was known to all the obligors that they that case, Dixon, C. J., giving the opinion of the court,
alone constituted the firm, heid, that the case was said: “As to this species of property, we think it
not within the purpose or intent of the statute, aud competent for the carrier to contract the owner shall
that the use of the fictitious designation was not a de- assume all risk of damage or injury, from whatever
fense to an action upon the bond. It is a rule peculi- cause, happening in the course of transportation."
arly applicable to the construction of penal statutes, See also C. & N. W. R. Co. v. Vau Dresar, 22 Wis. 512;
that thing within the letter of a statute Morrison v. Phillips & Colby Constr. Co., 44 id. 405.
is not within the statute unless within the This proposition seems to cover more ground thau the
jutention thereof; and too in the construc- | point actually decided in that case, but the English
tion of remedial statutes, it is generally held that cases cited by the learned chief justice seem to sustain
a thing within the intention is within the statute the proposition. To them others may be added: Mc-
though not within the letter; and these rules have Cance v. London & N. W. Ry. Co., 7 Hurl. & N. 477:
many illustrations in the books. People v. Utica Ins. Gannell v. Ford, 5 Law T. (N. S.) 604; Robinson v.
Co., 15 Johns. 358, 380; Holmes v. Carley, 31 N. Y. 289. Great Western Ry. Co., 35 L. J. C. P. 123; Harrison v.
It is said in an old case (Eyston v. Studd, 2 Plow. 465), London, etc., Co., 2 Best & S. 122; Manchester v.
“it is not the words of the law, but the internal sense Brown, 50 L. T. Rep. (N. 8.) 281. But there are cases
of it that makes the law, and our law, like all others, even in England which seem to hold a contrary doc-
consists of two parts, viz., of body and soul; the letter trine. McManus v. Lancashire, etc., Co., 4 Hurl. &
of the law is the body of the law, and the sense and N. 327; Allday v. Great Western Ry. Co., 5 Best & S.
reason of the law is the soul of the law." " Quia ratio

303; Gregory v. West Midland Ry. Co., 2 Hurl. & C. legis est anima legis." Guy v. Siebold. Opinion by Exch. 944; Rooth v. Northeastern Ry. Co., L. R., 2 Earl, J. (See 60 How. Pr. 163; 83 N. Y. 74.)

Exoh. 173; Doolan v. Directors, L. R., 2 App. Cas.792; [Decided Dec. 2, 1884.)


Law, 65. Just how far the cases cited were controlled CREDIBILITY OF WITNESS.-Hypothetical questions are

by the presence or absence of local statutes it is not allowed to be put to experts; but the hypothesis upon

necessary here to determine. It is well settled that a which they are examived must be based upon facts ad.

carrier of ordinary inanimate freight cannot by any mitted or established by the evidence, or which if con

agreement, however plain and explicit, wholly relieve troverted the jury migbt legitimately find on weigh

itself from all liability whatsoever resulting from its ing the evidence. Purely imaginary or abstract ques

own negligence. Black v. Goodrich Transp. Co., 55 tions, assuming facts on theories for which there is no

Wis. 319. Just the extent that a carrier of such inanifoundation in the evidence, are not admissible as mat

mate freight may by express contract exempt itself ter of right. On cross-examination, such abstract or

from liability for its own negligence need not here be theoretical questions, not founded upon the facts of determined. Certainly there is a broad distinction the case on trial, may be put, for the purpose of test

between the risks incident to the carriage of such oring the knowledge and information of the witness, as

dinary inanimate freight, and that of live animale to the subject upon which he bas been examined, and

having instincts, habits, propensities, wants, necessihis competency to give the opinion which he may have

ties and powers of locomotion. Requisite care in case pronounced on his direct examination. But the al

of the transportation of such live-stock therefore veceslowance of such questions, like other collateral in- sarily implies food and water periodically, and at quiries touching only the credibility of the witness,

times especial care and shelter outside the vehicle of rests in the discretion of the court, and when the dis- carriage. All these things would require help, applicretion is fairly exercised, it is not error to exclude

ances, conveniences and extra arrangements not rethem. Dilleber v. Home Life Ins. Co., 87 N. Y. 79-88;

quisite in the case of ordinary inanimate freight, La Beau v. People, 34 id. 223. Were the rule others which a carrier might be unable or unwilling to furwise, there would be no limit to the cross-examination nish, and yet if furnished by the owner of such liveof a witness called as an expert. It could be protracted

stock, and the risk incident to them assumed by such as long as the fertility of the imagination of the exam- owner, the carrier might be able and willing to underining counsel might enable him to suppose cases, and take such transportation. And yet, with all reasonsthe mental and physical powers of endurance of the ble care, it would be impossible to secure at all times witness would permit him to frame answers. People v. absolute safety in the transportation of such live aniAugsbury. Opinion by Rapallo, J.

mals. This broad distinction between that class of [Decided Dec. 16, 1884.)

freightage and ordinary inanimate freight has fre-
quently been observed by the courts. Blower v. Great

Western Ry. Co., L. R., 7 C. P. 655; Shir. Lead. Cas.,

No. 22, p. 50; Clarke v. Rochester, etc., Ry. Co., 14 N.
Y. 570; Penn v. Buffalo, etc., Ry. Co., 49 id. 204; Cra-

gin v. New York Central Ry. Co., 51 id. 61; Holsapple CARRIER-LIVE-STOCK--DELAY IN SHIPMENT-DAM

v. Rome, Wat. & Ogd. R. Co., 3 Am. & Eng. Ry. Cas. AGES.--Whether a railway company is under the same

487; Smith v. New Haven, etc., R. Co., 12 Allen, 531; obligations to furnish cars for, and receive, safely carry

Evans v. Fitchburgh R. Co., 111 Mass. 142; Michigan

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