doubtless competent for the legislature to prescribe many of the rules of evidence. The subjects of the competency of witnesses, the order of trial, the burden of proof, the effect of public records, the certification of copies of official documents, the prima facie character of certain evidence, and other like matters which pertain to the practice rather than the right of proving causes, are lawfully within the sphere of legislative regulation; but it is not within the power of the legislature to exclude from the courts that which proves the truth of a case, nor, on the other hand, to compel them to receive that which is false in character. A bill of lading contains two parts,-one, a receipt for the goods; the other, a contract for their carriage. As to the latter, it, as other written engagements, may not be contradicted by parol, but as to the former it stands on the same footing as other kinds of receipts. It may be shown to be incorrect. It may be shown to have been written by mistake or induced by fraud. Hutch. Carr. (2d Ed.) § 122. From time immemorial the mutual mistake of both parties to an instrument or the fraud of one of them has been admitted as a valid defense to the action. The allowance of such defense is part of the substantive justice of all actions on contracts. It inheres in the very right of such cases, and it cannot be denied by the legislature under the guise of a rule of evidence. In Cooley, Const. Lim. (5th Ed.) 453, it is said: "But there are fixed bounds to the power of the legislature over this subject which cannot be exceeded. As to what shall be evidence, and which party shall assume the burden of proof in civil cases, its authority is practically unrestricted, so long as its regulations are impartial and uniform; but it has no power to establish rules which, under pretense of regulating the presentation of evidence, go so far as altogether to preclude a party from exhibiting its rights. Except in those cases which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it. In judicial investigations the law of the land requires an opportunity for a trial; and there can be no trial if only one party is suffered to produce his proofs. The most formal conveyance may be a fraud or a forgery; public officers may connive with rogues to rob the citizen of his property; witnesses may testify or officers certify falsely, and records may be collusively manufactured for dishonest purposes; and that legislation which would preclude the fraud or wrong being shown, and deprive the party wronged of all remedy, has no justification in the principles of natural justice or of constitutional law." In Arkansas a statute was enacted which, according to a certain theory of construction, imposed upon railroad companies an absolute liability to pay for stock killed by their trains, and

withdrew from the jury all considerations of negligence of the owner of the stock or due care on the part of the company. The court held that such theory of construction could not be applied, notwithstanding the language of the act lent some countenance to it, because, as was said: "It is not within the province of the legislature to devest rights by prescribing to the courts what should be conclusive evidence. The legislature may declare what shall be received as evidence, but it cannot make that conclusively true which may be shown to be false,―at all events, if such facts are necessary to show that the substantial rights of property are to be affected, and he is made to lose his property." Railway Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55. In Minnesota a statute was enacted which made the fact that a person performed labor or furnished material in the erection of a house on another's land conclusive evidence that the labor was performed or the material furnished with the owner's consent, unless the latter had by suit in the courts enjoined the act as a trespass. Of this act the court said: "A man cannot be thus deprived of his property without his consent. The legislature may doubtless establish rules of evidence; but to enact a law making evidence conclusive which is not so necessarily in and of itself, and thus preclude a party from showing the truth, would be nothing short of confiscation of property, and a destruction of vested rights, without due process of law." Meyer v. Berlandi, 39 Minn. 438, 40 N. W. Rep. 513, 1 L. R. A. 777, 12 Am. St. Rep. 663. An act of congress in 1862, in relation to enlistments in the military service of the United States, provided that "the oath of enlistment taken by the recruit shall be conclusive as to his age." In an action of habeas corpus brought by the parent or guardian of a minor recruit it was held that the statute was not binding on the petitioner as establishing a conclusive presump. tion of age, for the reason that the declaration as to age was a "judicial act," a matter for judicial inquiry, from entering on which the courts could not be precluded. Wantlan v. White, 19 Ind. 470. The legislature of Minnesota enacted statutes providing that the schedule of rates for the transportation of property over the railroads of that state, made and published by the board of railroad and warehouse commissioners, should be final and conclusive as to what were equal and reasonable charges. The Supreme Court of the United States held the act void. Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. Rep. 702, 33 L. Ed. 970.A statute of this state assuming to authorize counties to pay bounties for the killing of gophers was held unconstitutional for the reason that the snbject had not been expressed in its title. Later, a statute was enacted, probably intended to be curative of the authority exercised under the former one, but which was so worded as to validate the mere ministerial act of issuing the warrants in payment of the bounty only, and not the original

authority to issue them. The warrants so issued were declared "hereby legalized and hereby made county charges and payable out of the general fund of the county." This so-called "curative act" was held to be in the nature of a legislative judgment against the county in favor of the holders of the warrants, an endeavor to preclude investigation into the rightfulness of their issuance, and therefore a usurpation of the judicial function to try and determine causes, and consequently void. Felix v. Board, 62 Kan. 832, 62 Pac. Rep. 667. The theory on which all these cases proceed is that an act of the legislature which undertakes to make a particular fact or matter in evidence involving the substantive right of the case conclusive upon the parties, and which precludes inquiry into the meritorious issues of the controversy, is an invasion of the judicial province and a denial of due process of law. The legislature may regulate the form and the manner of use of the instruments of evidence, -the media of proof,—but it cannot preclude a party wholly from making his proof. A statute which declares what shall be taken as conclusive evidence of a fact is one which, of course, precludes investigation into the fact, and itself determines the matter in advance of all judicial inquiry. If such statutes can be upheld, there is then little use for courts, and small room indeed for the exercise of their functions.

It will be observed that the statute in question by its terms shuts out all proof as to the occurrence of fraud or mistake in the making of the bill of lading. Admitting, however, that of necessity there must be read into the act an exception against fraud, why should there not be an exception in favor of mistake as well, for, if the bill of lading was executed by the mutual mistake of both parties, it does not evidence the contract of either one. In order to constitute a contract, the minds of the parties thereto must have met. If by reason of mutual mistake no such concurrence has been had, it follows that no contract has been entered into, notwithstanding the fact that written evidence of one may have been executed. Therefore, to give effect to the act in question, we must say that the legislature has the power to force contracts upon parties by making indisputable that which in reality is only evidence of their contract. It is hard to see where this would end were its entrance admitted. Of course, the contracts of parties are binding on them. It does not require an act of the legislature to make them so. It is the function of the court, and not of the legislature, to determine when contracts exist, and what they are. To shut out proof that what purports to be a contract is not really such, by reason of the mutual mistake of the parties therto, is in effect to require the performance of an act which was never agreed on between them; or, in other words, it is to allow the legislature to make for parties a contract which they never made for themselves. It is claimed that this sort of legis

lation is defensible and proper under the law of estoppel and that, where the parties have entered into the seeming contract, they may be prohibited by the terms of their act from denying its effect as written. The trouble, however, lies in the application of the rule of estoppel, and in the assumption that the bill of lading speaks the contract of the parties. Whether it does is the very question at issue,-the very question on which the plaintiff in error sought to offer evidence. If the writing was not the expression of the contract of the parties to it by reason of mutual mistake or fraud, then how could either be estopped by it? Estoppel is only predicated of contracts which parties have really made. We do not intend to rule that there are no classes of acts or contracts that may not be made conclusive upon the parties thereto by the legislature, but we do intend to hold that it is incompetent for the legislature to make that conclusive of the fact and character of a contract which does not in reality express a contract because of fraud or mistake that may inhere therein.

NOTE.-Power of the Legislature to Give Conclusiveness to Certain Forms of Evidence.-The legislature has complete control over rules of evidence, and may alter, amend or repeal the same, so long as vested rights are not impaired. Provision may therefore be made that certain circumstances shall constitute prima facie evidence of the facts in issue or shall, or shall not, be admissible or competent. The law of evidence, being a part of the remedy, is within legislative control. Webb v. Weatherford, 17 How. (U. S.) 576; Howard v. Moot, 64 N. Y. 262; State v. Cunningham, 25 Conn. 195; In re Wright, 3 Wyo. 478; People v. Mortimer, 46 Cal. 114; Rich v. Flanders, 39 N. H. 301; Herbert v. Easton, 43 Ala. 547; Commonwealth v. Curran, 119 Mass. 206; Ex parte Bethurum, 66 Mo. 545; Lindzey v. State, 65 Miss. 542. That rule applies to the repeal of existing rules as in the making of new ones. The right to have one's controversy determined by existing rules of evidence is not a vested right which a party may seek to enforce, and such rules are subject to continuous modification and con. trol by the legislature; and the changes effected may be made applicable, even to existing causes of action, without trespassing upon constitutional prohibitions respecting retrospective enactments. Coe v. Ritter, 86 Mo. 277; Carothers v. Hurley, 41 Miss. 71; Howard v. Moot, 64 N. Y. 262. The only limitation on the power of the legislature in this regard is that the party affected by the change must not be left without any remedy at all. Tabor v. Ward, 83 N. Car. 291. In other words, rights which have already vested cannot be destroyed by legislation simply because such legislation assumes the form of changing the rules of evidence. State v. Beswick, 13 R. I. 211; Little Rock, etc. R. R. v. Payne, 33 Ark. 816, 34 Am. Rep. 55.

The last case cited in the preceding paragraph (Little Rock, etc. R. R. v. Payne, 33 Ark. 816), leads us right into the heart of the question, the right of the legislature to give conclusive effect to certain evidence. The syllabus in that case declares the law to be that a legislature has no power to devest rights by prescribing to the courts what shall be conclusive evidence. In this case the legislature made the killing of stock by a railroad conclusive evidence of negligence.

The court said: "Railroads are useful to all the com. munity, in the development of the resources and increase of the wealth of the state. The exercise of their franchises and the pursuit of their business is lawful, and to hold them liable for unavoidable accidents which could not have been prevented by due care, is contrary to reason. It is not within the province of the legislature to devest rights by prescrib ing what should be conclusive evidence." The court cites in support of its position the case of Cairo, etc. R. R. v. Parks, 32 Ark. 131, which arose under a statute, which endeavored to make a county clerk's deed of lands sold for taxes conclusive of its recitals against the true owner. In that case the court said: "The legislature may declare what shall be received as evidence, but it cannot make that conclusively true which may be shown to be false; at all events, if such facts are necessary to show that the substantial rights of property are to be affected, and he is made to lose his property." It might be mentioned in connection with the last case cited that it is now well settled that the legislature has no authority to make a tax deed conclusive evidence that the tax warrant was sufficient. White v. Flynn, 23 Ind. 46; Corbin v. Hill, 21 Iowa, 70. In the later case of Martin y. Cole, 38 Iowa, loc. cit. 154, the Supreme Court of Iowa pointed out the exact extent of this doctrine. The court in this case held that an act making a tax deed conclusive evidence of the regularity and sufficiency of all proceedings upon which the sale and deed are based, is in conflict with the constitution in so far that it makes the deed conclusive evidence of matters jurisdictional and essential in their nature to the exercise of the taxing power, such as the assessment, levy and sale. As to non-essentials, or matters merely directory, or pertaining to the manner of the sale and conveyance, the court held the deed to be conclusive evidence.

One of the most interesting things about the principal case is the dissenting opinion of Chief Justice Doster. He offers the following review and criticism of the cases cited in the majority opinion: "There is not a case in the books which in principle or in simularity of facts affords ground for the majority opinion. The instances in which the exercise of the power in question has been attempted are not numerous. Nearly all of them were cases in which the legislature sought to give tax deeds a conclusive effect to establish the substantive rightfulness of tax sale proceedings. This class of cases was not adverted to by the majority because of the obvious fact that in such cases the act from which it was sought to derive a conclusive effect was clearly the act of an adversary party, and the effort was to find those in which the legislature had exceeded its authority by undertaking to found a presumption of conclusiveness upon the act of the party himself. This could not be done. There are no such cases; that is, there are no cases in denial of the legislative right to found an estoppel upon the contract act of party, and that-and it alone - is the case in hand. There are, however, decisions of a different character, which my associates have mistakenly regarded as authority for their holding. For instance, in one of them, as cited in the majority opinion, it appeared that the legislature had declared a conclusive presumption of negligence from the killing of live stock (Railway Co. v. Payne, 33 Ark. 816, 34 Am. Rep. 55), in another it declared a conclusive presumption of assent to a trespass from a failure to apply to the

courts to enjoin it (Meyer v. Berlandi, 39 Minn. 438 40 N. W. Rep. 513, 1 L. R. A. 777, 12 Am. St. Rep. 613), in another it declared an officially published schedule of railway rates conclusive evidence of their reasonableness (Chicago, M. & St. P. Ry. Co. v. Minnesota, 134 U. S. 418, 10 Sup. Ct. Rep. 702, 33 L. Ed. 970), and in another it sought to make a minor's declaration as to his age conclusive on his legal guardians. Wantlan v. White, 19 Ind. 470. It must be observed that, in the cases of the tax deeds and the schedule of railway rates and the minor's enlistment oath, the legislature sought to bind interested parties by the adversary action of others, not by any action of its own; and, in the cases of the imputed negligence and the imputed assent to the trespass, sought to bind them by accidental circumstances involving them in no manner of contractual relation. Manifestly, all such cases are to be governed by a principle different from that to be applied when it is sought to found the presumption on the conventional act or agreement of the party himself. I may well object to a law which from the hostile act of another seeks to raise against me a conclusive presumption, and I may well object to a law which seeks to found an estoppel against me upon some undesigned and easily explicable circumstances; but 1 have no objection to a law which merely seeks to give to my own deliberate business engagement a conclusive and irrevocable effect."

Justice Cooley in his work on Constitutional Limitations, in discussing the power of the legislature over the rules of evidence, says: "Except in these cases which fall within the familiar doctrine of estoppel at the common law, or other cases resting upon the like reasons, it would not, we apprehend, be in the power of the legislature to declare that a particular item of evidence should preclude a party from establishing his rights in opposition to it." On this point Chief Justice Doster says: "The legislature in this case, bas rested its enactment on the very exception noted by Judge Cooley, viz., estoppel or like reasons."

One of the most important decisions on this point is that of Insurance Co. v. Daggs, 172 U. S. 557, 19 Sup. Ct. Rep. 281. In this case a statute of Missouri declared that "in all suits upon policies of insurance against loss or damage by fire, hereafter issued or renewed, the defendant shall not be permitted to deny that the property insured was worth at the time of the issuance of the policy the full amount insured therein on said property; and in case of total loss of the property insured, the measure of damages shall be the amount for which the same was insured," etc. Rev. St. 1899, § 5897. The court said: "The specific objection which, it is claimed, brings the statute within the prohibition of the constitution, in the last analysis, may be reduced to the following: That the statute takes away a fundamental right, and precludes a judicial inquiry of liability on policies of fire insurance by a conclusive presumption of fact." Replying to this, the court, among other things, said: "It [the statute] makes no contract for the parties. In this it permits absolute freedom. It leaves them to fix the valuation of the property upon such prudence and inquiry as they choose. It only ascribes estoppel after this is done,-estoppel, it must be observed, to the acts of the parties, and only to their acts in open and honest dealing. Its presumptions cannot be urged against fraud. The cases cited by plaintiff in error which hold that the legislature may give the effect of prima facie proof to certain acts, but not

conclusive proof, do not apply. They were not of contract, nor gave effect to contracts. It is one thing to give effect to the convention of parties, entered into under the admonition of the law, and another thing to give to circumstances, it may be accidental, conclusive presumption and proof to establish and force a result against property and liberty." We believe this case accurately distinguishes the law on this important question. It would seem quite ridiculous for the judiciary to set its fiat on the attempt of the legislature to make the contract act of any party binding on him. A superficial glance at the cases illustrating various phases of the law of presumptions will demonstrate to any candid observer how far the courts themselves have gone on this question into what is termed the field of judicial legislation, yet when the legislature, who are absolutely without power to prevent the encroachments of the judidiary, attempt to exercise their legitimate prerogatives in a field in which the courts themselves have presumed to legislate, the latter deem it incumbent upon them to frown it down. Indeed, it is deplorable to be compelled to admit that the judiciary in some places do not evidence that reverential respect for the acts of the legislative department which is observed in the earlier cases; seeming to forget that the voice of the people is speaking with as much authority, if not more, through that channel as through the one which they for the time represent. As far as the principle case is concerned, the legislature simply said that who ever entered into a certain kind of contract would be considered conclusively bound by such contract. This is not subjecting him to the consequences of circumstances over which he has no control, but to the consequences of his own act. The principle of estoppel so clearly substantiates the reason and purpose of this legislation that its constitutionality cannot for a momont be questioned.

CORRESPONDENCE.

VALIDITY OF CHANCE OR QUOTIENT VERDICTS. To the Editor of the Central Law Journal:

I call your attention to a note on "Validity of 'Chance' or Quotient Verdicts," 54 Cent. L. J. 22. In this note occurs the statement that "the vitiating element, however, [in chance verdicts] is in all cases a previous agreement to be bound by the result of such a determination of the question."

This statement is questioned. A previous agreement to be bound is not always the vitiating element in the case as will be seen from authorities given below. In no event is it permissible for a jury to compromise a liquidated demand; if they do so, it is believed that the verdict will always be set aside, whether there was a previous agreement to be bound by the quotent verdict.

"Where the verdict which the jury return cannot be justified upon any hypothesis presented by the evidence, it ought obviously to be set aside. Thus, if a suit were brought upon a promissory note, which purported to be given for $100, and the only defense was that the defendant did not execute the note, and the jury should return a verdict for $50 only, it would not be allowed to stand; for it would neither conform to the plaintiff's evidence, nor to that of defendant; it would be a verdict without evidence to support it. And it is not to be tolerated that the jury should thus assume, in disregard of law and evidence, to arbitrate the differences of parties, or to decide according to some supposed natural equity, which in reality is

merely their own whim. When, therefore, there was a claim and a counterclaim, and the damages in each case were certain and the only question was whether there was such a contract as that which was set up by defendant in support of his counterclaim, and the jury found for the plaintiff in the amount of his claim, and for the defendant for a portion of the amount of his counterclaim, it was held that there was no hypothesis of fact on which the verdict could be justified, that, as it must have been the result of a compromise or a mistake, the judgment must be reversed. The principle upon which cases of this kind proceed could not be made clearer by multiplying illustrations. This principle, however, applies only to cases where the damages sought to be recovered are liquidated. In suits for unliquidated damages where the jury give a round sum, the amount of their verdict is, in many cases, necessarily the result of concession or compromise. In such cases a verdict will not be set aside, although the amount of the verdict itself raises a strong inference that it was arrived at as the result of striking an average-as where in such case, the verdict was five hundred and sixty dollars and fifty cents."

The authorities cited as sustaining the text, are,— St. Louis Brewing Co. v. Rodman, 12 Mo. App. 537; Roeder v. Studt, Mss., St. Louis Ct. App.; Todd v. Boone, 8 Mo. 431; and Ellsworth v. Central R. R. Co., 31 N. J. Law, 93.

A late case on this subject very much in point is that of Conrad Seipp Brewing Co. v. Peck, 95 Ill. App. 137, where the court held:

"In a suit on a promissory note, where the defense goes to the whole note, the verdict must be either for the amount claimed or for nothing, and a verdict for part of the claim will be set aside as not warranted by the evidence."

In Taylor v. Evans (Tex. Civ. App.), 39 S. W. Rep. 172, the court held:

"Where a money verdict as returned by a jury does not accord with the theory upon which it was found, the error in its computation requires a reversal of the judgment rendered upon it."

I think that your note should have been made to apply only to damage cases, cases of unliquidated demand, and that no case cited is a case where the quotient verdict was rendered upon a liquidated demand. BENJ. F. MARTIN.

Anderson, S. Car.

WEEKLY DIGEST.

Weekly Digest of ALL the Current Opinions of ALL the State and Territorial Courts of Last Resort, and of all the Federal Courts

CONNECTICUT, 50, 74, 92, 97, 103, 105, 107, 138, 146, 164, 170 176, 187, 190, 193, 195 DELAWARE.....

.......................64, 69, 101, 160 ILLINOIS, 1, 3, 4, 6, 7, 8, 12, 14, 16, 21, 24, 27, 28, 29, 34, 36, 37, 41, 42, 59, 65, 67, 73, 77, 78, 80, 81, 85, 86, 104, 106, 108, 112, 115, 118, 126, 129, 140, 144, 145, 147, 148, 149, 152, 155, 161, 165, 173, 174, 175, 180, 194, 197, 198, 199, 200, 203, 204, 205 INDIANA.. ..........................13, 109, 111, 134, 141, 186 IOWA, 9, 10, 15, 18, 19, 32, 52, 55, 58, 82, 84, 88, 95, 106, 117, 133, 136, 158, 192 MARYLAND.......

..90, 93, 137

...5, 45, 48, 66, 98, 114, 121, 125, 150, 177

......87, 131

.51, 132, 183, 185

NEBRASKA.........

.80, 33, 100, 124 NEW JERSEY, 49, 60, 61, 63, 89, 102, 151, 153, 154, 156, 166, 167, 172, 184, 189, 196, 201

NEW YORK, 2, 11, 17, 20, 31, 39, 40, 43, 47, 54, 56, 72, 75, 76, 83, 91, 94, 96, 99, 110, 113, 122, 127, 139, 142, 157, 159, 162, 163, 169, 171, 178

PENNSYLVANIA....................................

.135, 143, 188, 191 RHODE ISLAND.............................................................................. .53, 168 SOUTH DAKOTA............ .206 WISCONSIN, 22, 23, 25, 26, 35, 39, 44, 46, 57, 62, 68, 70, 71, 79, 119, 120, 123, 128, 130, 179, 181, 182

...............

1. ACCOUNT STATED Matter Included.-A creditor may overcome the presumption that a certain item of indebtedness was included in a general settlement between himself and his debtor, by proof that such item was not at the time due.-Beebe v. Smith, Ill., 62 N. E. Rep. 855.

2. ACTION- Complaint for Equitable Relief.-A complaint by a newspaper proprietor on a contract for booming corporate stock on the stock market held to be framed solely for equitable relief, and hence not sustainable for legal redress, where no answer bad been interposed.-Black v. Vanderbilt, 74 N. Y. Supp. 1095.

3. ADMINISTRATION

Adverse Possession.-Where one who was in possession of land as purchaser of the equity of redemption contracted to purchase the legal title from one who held it as successor to the mort. gage sale purchaser, his possession under the contract was not adverse to his vendor as long as the purchase money was not paid.-Alsup v. Stewart, Ill., 62 N. E. Rep. 795.

4. ADMINISTRATION-Tax Deed.-Under Hurd's Rev. St. 1893, ch. 83, § 7, a purchaser of land from a party who had paid taxes for the statutory period under color of title held to acquire a title capable of being affirmatively asserted in a suit to remove cloud from title.-Mickey v. Barton, Ill., 62 N. E. Rep. 802.

5. ANIMALS-Excessive Demand.-Person having lien on horse for expenses of keeping, and refusing to deliver possession except on payment of excessive sum, held entitled to hold owner personally for expenses incurred after demand for possession.-Folsom v. Barrett, Mass., 62 N. E Rep. 723.

6. APPEAL AND ERROR-Alteration of Written Instru. ment.-Objection by counsel to the consideration of written instruments on the ground of fraudulent alteration held not sufficient, in the absence of testimony as to such alteration, or the presence of the instru ments in the record, to authorize consideration of the alleged defect on appeal.-Mickey v. Barton, Ill., 62 N. E. Rep. 802.

7. APPEAL AND ERROR-Affirmance by Appellate Court. Where the judgment of the trial court in an action against a railroad company for negligent injury is affirmed by the appellate court, the whole question of negligence, as a question of fact, is thereby settled.-Chicago & W. I. R. Co. v. Doan, Ill., 62 N. E. Rep. 826.

8. APPEAL AND ERROR-Appeal Bond.-Where, on an appeal to the appellate court, no bond was filed, and no objection to the failure to file a bond was made in that court, the objection was waived, and cannot be raised in the supreme court.-Sherwood v. Illinois Trust & Savings Bank, Ill., 62 N. E. Rep. 835.

9. APPEAL AND ERROR-Appealable Orders.- Where a trial results in a disagreement, and no judgment is rendered, an appeal cannot be taken from an order denying a motion to direct a verdict.-Crowley v. Richards, Iowa, 69 N. W. Rep. 103.

sation to attorney for incompetent for services in habeas corpus proceeding held error. -In re Larner, N. Y., 62 N. E. Rep. 761.

12. APPEAL And Error-Curing of Error.-Error in admitting testimony held 'cured by subsequent action of the court in excluding similar testimony and in. structing the jury not to consider that already admitted.-Ide v. Fratcher, Ill., 62 N. E. Rep. 814.

13. APPEAL AND ERROR Death of Appellee.-Burns' Rev. St. 1894, §§ 644, 645, 648, 649. considered in connection with Acts 1897, p. 227, authorize an appeal from a judgment giving damages for failure to transmit a tel. egraph message, though plaintiff dies between the entry of judgment and the filing of the transcript, by substituting h's personal representative as appellee and serving a notice of appeal on him.-Western Union Tel. Co. v. Adams, Ind., 63 N. E. Rep. 125. 14. APPEAL AND ERROR Deficiency Judgment.When an appeal is taken from a decree of foreclosure, a deficiency decree, entered after the affirmation of the decree and sale of the property, is binding on the principal and sureties on the appeal bond in an action thereon. Monson v. Meyer, Ill., 62 N. E. Rep. 827.

15. APPEAL AND ERROR-Denial of New Trial.-Under Code, § 4101, an appeal may be taken from an order overruling a motion for a new trial.-Boyce v. Timpe, Iowa, 89 N. W. Rep. 83.

16. APPEAL AND ERROR - Direction of Verdict.Where, in a personal injury case, defendant did not ask for the direction of a verdict, and the verdict was affirmed by the appellate court, the supreme court cannot consider the evidence and determine what it proves or tends to prove.-Chicago, B. & Q. R. Co. v. Pollock, Ill., 62 N. E. Rep. 831.

17. APPEAL AND ERROR Direction of Verdict.Where each party asked for the direction of a verdict, and neither asked to go to the jury on an issue as to whether there was a breach of the warranty in an ap plication for life insurance, and the court directed a verdict, it will be presumed that the court found the facts in a manner to support the verdict.-Seldenspin. ner v. Metropolitan Life Ins. Co., 74 N. Y. Supp. 1108.

18. APPEAL AND ERROR-Divorce.-Where the evidence does not clearly show the commission of adul tery, the denial of a divorce on such ground will not be disturbed.-Wells v. Wells, Iowa, 89 N. W. Rep. 98. 19. APPEAL AND ERROR-Exception.-Exception to decree is not necessary for a hearing de novo on ap. peal.-Sarvis v. Caster, Iowa, 89 N. W. Rep. 84.

20. APPEAL AND ERROR - Failure to Plead Infancy.Where defendants, in an abutter's action for damages from the building of an elevated railroad, failed to set up in their answer the defense that one plaintiff was an infant, they could not rely thereon in the appellate court.-Walsh v. Brooklyn Union Elevated R. Co., 74 N. Y. Supp. 1019.

21. APPEAL AND ERROR - Finding of Fact.-A finding of the appellate court on the facts different from the finding of the circuit court is conclusive on the su preme court.-Schwartz v. Supreme Court of Honor, Ill., 62 N. E. Rep. 777.

22. APPEAL AND ERROR-Former Appeal.-Where, after the decision of an appeal in the supreme court, a cause is retried, error cannot be assigned to the com. pliance by the trial court with such decision.-New Home Sewing Mach. Co. v. Simon, Wis., 89 N. W. Rep.

144.

23. APPEAL AND ERROR-Harmless Error.-Incidental admission of declarations of a person as to his agency held harmless; the jury having been told they could not be taken as proof of his agency.-Domasek v. Kluck, Wis., 89 N. W. Rep. 139.

24. APPEAL AND ERROR- Harmless Error.-The er roneous admission of evidence as to the number of children of a servant held harmless error, in an action against the master for damages by personal injuries, when considered in connection with an instruction