McCarthy v. McCarthy, ubi supra. No such recognition is averred. Philippi v. Philippe. Opinion by Woods, J.

[Decided May 4, 1885.]

EQUITY PRACTICE -PARTIES RIGHTS BETWEEN

PARTIES-STATUTE OF LIMITATIONS ADVERSE POS

SESSION. One defendant cannot have a decree against a co-defendant without a cross-bill, with proper prayer and process, or answer, as in an original suit; and if one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter. The decree of the Circuit Court was justified by the facts appearing of record, unless one or both of the defenses set up in the answers of Smith were maintained. We shall consider first the defense of set-off based upon the record of the proceedings and decree of the Circuit Court of Chicot county. We are of opinion that the decree of the Chicot Circuit Court, made on the 28th day of October, 1878, was so far as it concerned Joseph S. Woolfolk and Lucy D., his wife, a final decree in the cause, and they were bound to take no notice of the subsequent proceedings, unless they were served with process or entered their voluntary appearance. By that decree the rights of the parties then before the court, as stated in the original bill, and all the assets of the estate of Craig actually or constructively within the jurisdiction of the court, were disposed of. It is true, the receiver was directed by the decree to proceed to collect the available assets of the estate. But as has been stated, only a small sum, barely sufficient to pay the receiver's compensation, was collected by him, and this he was allowed to retain by the decree of the court. The petition filed by Todd, and the proceedings thereon subsequent to the decree of October 28, 1868, had no reference to any additional assets collected by the receiver after that date. If the matter set up in the petition of Todd had been offered as an amendment to the original bill when the latter was on final hearing and Woolfolk and wife were before the court, there is no rule of equity pleading and practice, or of the jurisprudence of Arkansas, by which such an amendment could have been allowed and have become the basis of a decree. Shields v. Barrow, 17 How. 130; Hardin v. Boyd, 113 U. S. 756; Walker v. Byers, 14 Ark. 246. As was said by this court in Shields v. Barrow, ubi supra: "It is far better to require the complainant to begin anew. To insert a wholly different case is not properly an amendment, and should not be considered within the rules on that subject." So that even if the decree made on the original bill was not final, the petition filed by Todd was so radical a departure from the case made and relief prayed by the original bill as to be a new suit and require service of process on the parties made defendant thereto. It instituted a new litigation on new and distinct issues not raised by the original pleadings, and between parties who were complainants in the original cause. It is settled that one defendant cannot have a decree against a co-defendant without a cross-bill, with proper prayer, and process or answer as in an original suit. Walker v. Byers, 14 Ark. 246; Gantt Dig., § 4559; Cullum v. Erwin, 4 Ala. 452; Cummings' Heirs v. Gill's Heirs, 6 id. 562; Shelby v. Smith's Heirs, 2 A. K. Marsh, 514. It follows, from the reason of this rule, that if one complainant can, under any circumstances, have a decree against another upon a supplemental or amended bill, it must be upon notice to the latter. After a decree disposing of the issues, and in accordance with the prayer of a bill, has been made, it is not competent for one of the parties, without a service of new process or appearance,

to institute further proceedings on new issues and for new objects, although connected with the subjectmatter of the original litigation, by merely giving the new proceedings the title of the original cause. If his bill begius a new litigation, the parties against whom he seeks relief are entitled to notice thereof, and without it they will not be bound; for the decree of a court rendered against a party who has not been heard, and has had no chance to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other court. Windsor v. McVeigh, 93 U. S. 274. Upon the original bill, filed in the Chicot Circuit Court by Todd, it was not possible therefore for Todd to get a valid money decree against Woolfolk and his wife without new and adversary pleadings and service of process on Woolfolk, giving him his day in court. Woolfolk and wife had the right to rely on these principles of law, and were not bound to take notice of the petition of Todd, and the proceedings thereunder. Todd and his counsel appeared to have seen the necessity of notice to Woolfolk and his wife, and made an attempt to give them notice of the petition filed by Todd; but the record shows that no lawful notice was served on them. It fails to show notice of any kind. The only service which the defendants assert to have been made on Woolfolk and wife was the service on Carlton, as their attorney, who was not their attorney, but, as he averred, the attorney of Todd, the petitioner, and the mailing to their address by the sheriff of the copy of the order. Conceding that these kinds of service, if executed according to law, were good under the statute of Arkansas, which they are not, they would have been but substituted service, and could not support a personal decree against Woolfolk and wife. Penuoyer v. Neff. 95 U. S. 714; Harkness v. Hyde, 98 id. 476; Brooklyn v. Insurance Co., 99 id. 362; Empire v. Darlington, 101 id. 87. It follows that the record of the proceedings and decree of the Circuit Court of Chicot county, subsequent to the decree made in the case of The Creditors of Junius W. Craig v. Emma J. Wright, Executrix, and others, on October 28, 1868, was not binding upon Woolfolk and wife, and could not be received in evidence against them. As this record contained the only proof offered by the appellants of any set-off, in behalf of any one whatever, against the mortgage debt due from Todd to Woolfolk, which the present suit was brought to enforce, it follows that the defense of setoff pleaded in the answers of the appellants failed for want of proof, even conceding that they were entitled to make the set-off. It remains to consider the plea of the statute of limitations. The note secured by mortgage, which is the basis of this suit, fell due October 30, 1870, and the suit was brought October 27, 1879. It is insisted that the suit to foreclose the mortgage was, under the law of Arkansas, barred in seven years from the maturity of the note. In the case of Birnie v. Main, 29 Ark. 591, it was declared by the Supreme Court of Arkansas that "to bar a suit for the foreclosure of a mortgage, there must not only be an adverse possession for such length of time as would bar an action of ejectment, but there must be an open and notorious denial of the mortgagee's title; otherwise the possession of the mortgagor was the possession of the mortgagee." And in Coldcleugh v. Johnson, 34 Ark. 312, it was said by the same court that "the possession of a mortgagor is not to be deemed adverse until he makes some claim or does some open and notorious act adverse to the rights of the mortgagee." See also Hardin v. Boyd, 113 U. S. 756. Smith v. Woolfolk. Opinion by Woods, J. [Decided May 4, 1885.]

MINNESOTA SUPREME COURT ABSTRACT.

AGENCY-AUTHORITY OF SEVERAL TO SELL LAND— REVOCATION-SUBSEQUENT SALE.-The defendant, on the 9th day of September, 1884, specially authorized one Wheeler, as his agent, to sell the real property in controversy, and to execute a contract for the sale of the same. He in like manner on the same day empowered one Fairchild to sell the same land; the authority of the agent in each instance being limited to the particular trausaction named. On the same day Wheeler effected a sale of the land, which was consummated by a conveyance. Subsequently, on the 10th day of September, Fairchild, as agent for defendant, and having no notice of the previous sale made by Wheeler, also coutracted to sell the same land to this plaintiff, who, upon defendant's refusal to perform on his part, brings this action for damages for breach of the contract. This is a case of special agency, and there is nothing in the case going to show that the plaintiff would be estopped from setting up a revocation of the agency prior to the sale by Fairchild. A revocation may be shown by the death of the principal, the destruction of the subject-matter, or the determination of his estate by a sale, as well as by express notice. The plaintiff had a right to employ several agents, and the act of one in making a sale would preclude the others without any notice, unless the nature of his contract with them required it. In dealing with the agent, the plaintiff took the risk of the revocation of his agency. 1 Pars. Cont. 71*. Ahern v. Baker. Opinion by Vanderburgh, J. [Decided July 24, 1885.]

RAILROAD COMPANIES-NEGLIGENT FIRES-EXPERTS —EVIDENCE.-This is an action for damages for the alleged destruction of plaintiff's elevator and its contents by fire escaping from defendant's locomotive engine on account of its careless and negligent construction and management. Held, that evidence offered to show a "negligent habit" on defendant's part as respects the construction and use of its engines was properly confined to such as tended to show the prevalence of such "habit" at or about the time of the fire complained of. Held, that persons who have been employed on or about locomotive engines, and have had to do with them in varying circumstances for lengths of time running from ten to twenty-five years as engineers, conductors, or master mechanics in railroad shops, as also a brakeman and yard-master of three years' service, each of whom, from his situation and the nature of his occupation, appears to have had special advantages, opportunities and means for observing the nature, operation and effect of sparks is suing from coal-burning engines, and appears also to speak from his own observations so made, are competent to testify as to the size and effect of sparks issuing from a coal-burning engine, the time during which they would remain alive, and the distance at which fire could and could not be communicated by them. Their testimony as to sparks, though it would seem to be treated by counsel as all expert testimony, was really in some part to matter of fact as distinguished from opinion; as for instance, the testimony as to the time during which a spark would remain alive, and as to the size of a spark which could escape from the engine depending on the known size of the meshes of the netting, or other spark-arresting contrivances. See Elfelt v. Smith, 1 Minn. 125 (Gil. 101). | Certainly the persons mentioned may properly be regarded as experts, within the following authoritative definitions of an expert as "one who by practice or observation has become experienced in any science, art, or trade," (Rog. Exp. Test., § 1), "a person having skill, experience, or peculiar knowledge on certain

66

subjects or in certain professions" (Heald v. Thing, 45 Me. 392), "one instructed by experience in a course of previous habit and practice or study, so as to be familiar with the subject (Nelson v. Sun Mut. Ins. Co., 71 N. Y. 453), a person of large experience in any particular department of art, business, or science" (Dickenson v. Fitchburg, 13 Gray, 546); and see also 1 Greenl. Ev., § 440. Their testimony as experts to matter of opinion was admissible within the rule recognized and applied in Krippner v. Biebl, 28 Minn. 139. In that case a witness was permitted to state how far in his opinion a fire in stubble land would be likely to jump" under certain conditions of wind and vegetation; the witness being shown to have had actual knowledge of such conditions, and sufficient experience of such fires as to the fact of "jumping." The court say: "We think it is not one of common knowledge, concerning which it could be presumed that the jury could form a judgment as well as a witness, who from actual experience, had become capable of judging with some degree of accuracy. We cannot assume that the jurors * were possessed of knowledge or experience upon this subject. The law is thus well expressed in 2 Tayl. Ev., § 1275: 'It may be laid down as a general rule that the opinion of a witness possessing peculiar skill is admissible whenever the subject of inquiry is such that inexperienced persons are unlikely to prove capable of forming a correct judgment upon it without such assistance.'" See also 1 Greeul. Ev., § 440, 440a, and Rog. Exp. Test., §§ 5, 6, 105. Davidson v. St. Paul, etc. R. Co. Opinion by Berry, J. [Decided July 23, 1885.]

BOUNDARY-BY STREET OR HIGHWAY-CARRIES TO CENTER.-Where, by the terms of a deed, the land conveyed is bounded by a street or highway, the grantee takes presumptively ad filum via as the natural boundary line between opposite proprietors; the reason of the rule being that the adjoining owners are presumed to have originally furnished the land in equal proportions for the purpose of a highway. Dunham v. Williams, 37 N. Y. 251; Stiles v. Curtis, 4 Day, 333; Woolr. Ways, *5. So a deed of lots conveyed as represented in a town plat, is presumed to indicate a grant of the soil to the center of the street, and it passes as parcel of the land, and not as an appurtenant. Bissell v. Railroad Co., 23 N. Y. 64. This presumption however yields when a different intention is clearly manifested, or when the evidence shows there could be no foundation for it, as where the grantor at the time owned no part of the street, the same being laid wholly on the land of another. Dunham v. Williams, supra; Kings Co. Ins. Co. v. Stevens, 87 N. Y. 293, 294; 3 Kent Comm. *434; Champlin v. Pendleton, 13 Conn. 27; Watrous v. Southworth, 5 id. 305-309; Peck v. Smith, 1 id. 146. In arriving at a proper construction of the effect of a deed granting lots bounded on a street, and the intention of the parties thereto in respect to the extent of the grant in the street, regard must be had to the situation of the lots and streets and the state of the title, as well as the language of the deed. "This is the recognized rule of interpretation, and it is a question of interpretation and intent." Mott v. Mott, 68 N. Y. 253; Bliss v. Johnson, 73 id. 532; Webber v. Railroad Co., 2 Metc. 151. Ordinarily the ownership of the soil of the street is of no practical use to the grantors of abutting lots, and accordingly there is usually no purpose to be served in the retention by them of narrow strips or gores of land between the land conveyed and that of other proprietors; while for many purposes such ownership is of special importance to the purchaser, because the owner of the fee of the highway is entitled to proprietary and beneficial use thereof, subject only to the public easement, and may maintain trespass for an injury to or the exclusive appropria

tion of the soil, or other acts done on the land not necessary to the enjoyment of easement. Peck v. Smith, 1 Conn. 145. It is presumed therefore that a grantor's land in a street passes under the general description in his deed of the adjoining land with which it is connected, or to which it belongs, as being part of the same tract, subject to the public easement. Berridge v. Ward, 10 C. B. (N. S.) 400; Bissell v. Railroad Co., 23 N. Y. 64. Applying these principles to an exceptional class of cases like the present, and we think it must follow that the entire street abutting the lots in question belonged to and passed with them under the general description in the deed of the original proprietor. Taylor v. Armstrong, 24 Ark. 107. It does not differ from the case of an alley laid off by the original proprietor from the rear portion of a tier of lots next adjoining an adjacent proprietor. Subsequent purchasers of lots take the whole alley as part of the grant, the original owner retaining no portion of the fee. We have not overlooked the case of Brisbine v. Railroad Co., 23 Minn. 130. In that case the plaintiff owned land extending to low-water mark on the bank of the Mississippi river, in the city of St. Paul, subject to the easement of a public street laid out on the river margin thereof, and intervening between it and lots bounded thereon which he had sold, and it was held, in an action between him and the defendant corporation, which had appropriated a portion of the street and bed of the river adjoining, that the grantees took only to the center of the street, leaving in him the fee of the other half, to which were attached valuable riparian rights, not common to the public, including the use of the river, to the navigable portions of the stream, for wharves, piers, or other useful or necessary purposes in connection with the navigation on the river, together with the right of accretion. Union Depot, etc., Co. v. Brunswick, 31 Minn. 297. Matter of Robbins. Opinion by Vanderburgh, J.

RECENT ENGLISH DECISIONS.

MORTGAGE-EQUITABLE-AGREEMENT TO CHARGEPOWER OF ATTORNEY.-De T. being given up to the authorities of a foreign country under an extradition treaty, to be tried on a charge of murder, assigned all his property to P., and executed a general power of attorney in favor of P. and T. The object of these instruments was, as the court held, to enable money to be raised for his defense. T. was co-trustee with the plaintiff of a marriage settlement, and proposed to him that consols belonging to the trust should be sold out, and the proceeds advanced on the security of a charge on De T.'s property. The plaintiff assented, and the consols were sold and the proceeds paid to T., who produced to the plaintiff a document purporting to be a memorandum of deposit of the assignment and power of attorney, and an equitable charge to secure the advance. The court held on the evidence that P. knew of the charge, and either actually authorized it, or left T. to do as he liked. Held, that the money had been advanced upon the faith of an agreement to charge the property of De T.; that such agreement was within the powers of P. and T.; and that if the agreement had not been fully carried out, the plaintiff was entitled to have the charge carried into effect. It is clear beyond all question upon the documents, as well as upon the evidence of the plaintiff and Cotton, that the plaintiff allowed T. and his firm to receive the 2,9921. upon an express bargain. Security was to be given for that sum upon the property comprised in the deed of assignment, for which a formal mortgage was to be given. It was said that a mere agreement to give a

charge is not itself a charge, and the case of Ex parte Coombe, 4 Madd. 249, was cited as an authority to that effect. But that case does not seem to me to help the defendants. The question there was whether a parol agreement to deposit a lease when granted was an equitable mortgage of the land to be leased. It is obvious that it could not be a mortgage by deposit if the lease did not exist, and it could not otherwise affect the land, because it was by parol only, and the intention was that the security on the land could only be created by the deposit of the lease when granted. The present case is one in which the security was agreed on before, or when the advance was made, though a formal mortgage for it was afterward to be given, and is more like the case of Tebb v. Hodge, L. R., 5 C. P. 73. According to the authorities a valid charge upon personalty can be created by parol, and it is only as against personal property that the charge is now sought to be enforced. See Tibbits v. George, 5 Ad. & El. 107; Gurnell v. Gardner, 4 Giff. 626; Riccard v. Prichard, 1 K. & J. 277. I think what was done was within the power of Poole and Turner; and even if not, a person who has been informed of his agent's exceeding his powers, and has not complained cannot afterward dispute what he has done. Perry v. Holl, 2 De G. F. & J. 38. Ch. Div., Aug. 12, 1884. Parish v. Poole. Opinion by North, J. (53 L. T. Rep. [N. S.]35.)

EMINENT DOMAIN-RAILROAD PURCHASING LANDS SUBJECT TO RESTRICTION-ITS GRANTEE BOUND-THEY

NOT.-By an act for inclosing certain commons in the parish of Lambeth, passed in 1807 (46 Geo. 3, ch. lvii) it was enacted that "no buildings or erections above the surface of the earth shall at any time hereafter be erected upon the narrow strip of waste land lying in front of Brixton place." By section 39 of the same act the commissioners were empowered to sell this land, and it was subsequently sold in lots to the owners of the houses in Brixton place as an addition to their forecourts. No part of the waste lands in front of Brixton place was built on prior to 1864. In 1865 the London, Chatham and Dover Railway Company purchased certain houses in Brixton place under their compulsory powers. In 1868 the company sold one of those houses, then known as 423A, Brixton road, with its forecourt, to the defendant's predecessor in title as surplus land. In 1885 the defendant began to build shops upon the forecourt of this house. The plaintiff, who was the owner of land on the opposite side of the road, on which he himself had erected shops, brough this action to restrain the building. Held, that though the railway company could have themselves erected buildings necessary for their undertaking, in spite of the restrictions in the Inclosure Act, they had no power to convey the land, when sold as surplus land, free from the restrictions, and therefore in the hands of a purchaser it was still subject to those restrictions; that a change in the character of the neighborhood did not prevent the plaintiff's enforcing the act. Ch. Div., June 2, 1885. Bird v. Ponsford. Opinion by Pearson, J. (53 L. T. Rep. [N. S.] 87.)

NOTES.

The Columbia Jurist has adopted a heading for one of its departments which would form a very appro priate motto for the whole publication-" De minimis non curat lex."

The Albany Law Journal.

THE

ALBANY, NOVEMBER 14, 1885.

CURRENT TOPICS.

HE flood of cheap reporting continues and increases. In addition to the new Eastern, Northeastern and Atlantic, now come the Southern and the Georgia. Of course all of them cannot live, and it is fortunate for the busy and distracted lawyer that they cannot. It will become a question of the survival of the fittest, and the less fit will sink a great deal of money. Even if they all should live we do not fear that they will diminish the prosperity and influence of the ALBANY LAW Journal, for that has characteristics, independent of its reporting, which we hope will continue to commend it to the profession. The advertising zeal of one at least of these new-born periodicals outstrips the exact truth. It says the publishers "have perfected elaborate machinery of publication designed to meet the peculiar needs of the 'reporter' business, and unique in the world. Other publishers can secure promptness only at the expense of accuracy, or accuracy only at the expense of promptness, but they cannot combine the two." This is rank non

sense.

We will say nothing of the comparative merits of publications printed here and elsewhere, but we will say that there is no publishing house in the country better equipped for such work than ours, nor more accustomed to promptness and accuracy in great publishing enterprises.

One other point in these new reporters we wish to comment on. That is the pretense of "annotation." One of them makes a great parade of this. As examples, we select two at hazard. Under a decision that a gift in good faith, and solvency by husband to wife is valid as against subsequent creditors, we find a note of eight pages on the general subject of fraudulent transfers; and under a decision that partners assigning for creditors may not claim partnership property as exempt from execution, we find a note of seven pages on the general subject of partnership assignments for creditors. This is not the way to annotate. This is annotation run mad, and degenerating into padding. Annotation should generally be restricted to the particular point of decision. What should we say, for instance, of an editor who under a decision about waiver of protest, should give a note on the general subject of protest, or who under a decision about scientific testimony on insanity, should give a note on the general subject of expert testimony? And yet we have known these precise things to be done. The practitioner in searching for light on a particular point does not want light on other points, but wants the light focused on the point in question. There is a vast amount of pretense and humbug on this subject of "annotation." With digests and VOL. 32-No. 20.

scissors and paste-pot an editor may easily construct a long note, full of citations, nine-tenths of which shall not only be useless, but positively vexatious, to the student, if he reads it, which probably he rarely does. Annotation of reports cannot take the place of text-books and digests, and ought not to attempt it.

One of our London exchanges copies the story told by our New York correspondent of Emory A. Storrs, and the levy by his creditor on the dinner which he gave Lord Coleridge, and manages to leave the point out by saying that Mr. Storrs remarked "that it was the first time he ever heard of a lord's dinner being attached for debt." What he said was "lord's supper." But perhaps our editorial brother thought the correct version impious.

We have often had occasion to comment on the

ingenuity of counsel, and possibly we may have remarked that no code could be made so plain as to put a stop to the quibbles of the lawyers. One of the points of counsel in the Riel case was that a "provision of the Canadian Act of 1880 requiring that the stipendiary magistrate shall, on any such trial, take or cause to be taken down in writing full notes of the evidence and other proceedings thereat,' ' had not been complied with, inasmuch as at Riel's trial the magistrate had directed a short

hand writer to take notes of the evidence. Short

hand, it was contended, was not 'writing,' because it was not legible to any one but a shorthand writer." The Solicitors' Journal remarks: "On the same principle, of course, the longhand notes taken by certain learned English judges, which they themselves have difficulty in reading, and which must be utterly illegible to any one else, must be taken not to be notes in writing. The judicial committee, it need hardly be said, had no difficulty in rejecting the application for leave to appeal," and the Law Journal says: "If shorthand is not writing, what is it? In the middle ages it would' perhaps have been called magic, but in these prosaic times it is writing. * * No other result than the rejection of the petition could follow, without prejudice, as we are glad to see, to the question of the right of appeal to the Privy Council in criminal cases generally." Our brethren are right about "writing," of course, but the government will do a very unnecessary and foolish thing if it hangs Riel. Our government did not hang a single rebel, and it was the best thing it never did.

*

It seems incredible that we should ever be quoted as advocating the idea that judges ought to cater in their decisions to public opinion. But our remarks about the late Justice Westbrook seem to have been in danger of being so misunderstood by the Kansas Law Journal. The Journal quotes our remarks that "his very worst fault, it seems to us, was his indifference to public opinion. A judge