joining owner properly standing or moving on his own soil. He was liable for an unreasonable use of his own land, causing an injury to one exercising a right of an owner of adjoining land. This liability seems to have been inadvertently taken in Scott v. Simons as a liability of a landlord to keep leased premises in repair. It is expressly said that he would be liable for not repairing a drain, although it is expressly held in the same case that, when he is not bound by express contract to keep leased premises in repair, no such contract is implied by law. Whether the grant is of the fee, or of a term of years or days, the rights of the grantee and those claiming under him may be those of adjoining owners, if the grantor owns adjoining land; but the rights of the grantee and those claiming under him in the granted premises are derived from the grant, and if the grant does not require the grantor to change the structure of buildings or drains on the granted premises, or repair them, he is under no obligation to the grantee so to do. In Church of the Ascension v. Buckhart, if the owner of the dangerous wall had leased the lot, with the dangerous wall upon it, to the traveler upon whom it fell, and the wall had fallen upon the lessee while at work on the lot, cultivating it as a garden, the lessor would not have been liable, unless for deceit in not disclosing a hidden defect, or on some other ground not presented by this case; although he would be liable for damage done an adjoining lot by the fall of the wall, if his allowing the wall to stand in a dangerous condition was an unreasonable use of his land, as the nuisance caused by a defective drain might be if it invaded the adjoining lot with poisonous exhalations. On the question of liability, it might not be material whether the invasion were of bricks or of polluted atmosphere. A tenant would assume, the risks of a dangerous condition of the leased premises, unless there were deceit, special rights created by express contract, or some cause of action that does not appear In this case. Aside from the errors of Scott v. Simons, the plaintiff's chief contention is that a tenant, or a person claiming under him and having his rights, also has, against the landlord, the rights of an adjoining owner, a doctrine that we are unable to adopt. Demurrer sustained.

PARSONS, J., did not sit. The others concurred.

STATE ex rel. THORNDIKE et al. v. COLLINS et al.

(Supreme Court of New Hampshire. Merrimack. July 26, 1895.)

INTOXICATING LIQUORS-DIRECTING VERDICT - REMOTE EVIDENCE-PUBLIC RECORDS FORMER CONVICTION-PETITION TO ABATE NUISANCE-CIVIL PROCEEDING.

1. It is not error to deny a motion for a nonsuit and to direct a verdict for defendant, when

there is some evidence to support the allegations of the petition.

2. In a proceeding for the abatement of an alleged liquor nuisance, testimony was introduced that, on the date named in the petition, witness was on the premises described therein, and saw a bar, glasses, bottles, a bartender, men drinking at the bar, and barrels, which one of defendants told them contained liquor. Another witness testified that he was on the premises two months prior to the date set forth in the petition, and saw liquor sold there; and, while it was not directly shown that defendants sold it or knew of it, there was evidence that one of the defendants had for a long time used the premises for a saloon, and that the other defendant lived over the saloon, and had his place of business in plain view of the rear door of the saloon. Held, that it was for the jury to determine by whom the sales between the dates mentioned were made, and whether they were made with the knowledge of the defendant who owned the building and lived over the saloon.

3. The question whether evidence of sales of liquors made two months before the illegal sales charged in the petition is too remote to be admissible is to be determined by the trial judge.

4. The contents of a public record that cannot be removed, or certified copies of which cannot be furnished by the custodian thereof, may be proven by an examined copy, sworn to by an unofficial witness.

5. In a proceeding for the abatement of an alleged liquor nuisance, testimony by a witness that he had received a blank application for a United States liquor license from an internal revenue official, which application contained an explanation of certain abbreviations used by the department, is competent to explain corresponding abbreviations found in the record of a reve nue collector.

6. In a proceeding to abate a liquor nuisance, evidence that one of defendants had been convicted of the illegal sale of liquors in the city where the traffic sought to be suppressed is alleged to be carried on, is competent, in connection with testimony that he had no place of business other than the one described in the petition, as it is for the jury to determine whether the illegal sales were made on the premises described in the complaint, and it is immaterial what his plea was at the time of the former conviction.

7. In a proceeding to abate an alleged liquor nuisance, evidence that one of defendants claimed certain liquors which were seized under a libel, and taken from the premises described in the complaint, on the day defendant was charged to have sold liquors, is admissible as an admission that he owned the place.

8. Under Pub. St. c. 205, §§ 4, 5, which provide that any building that is used for the sale of intoxicating liquors is a common nuisance, which the supreme court may abate by injunction on petition of 20 legal voters, a petition for an injunction is a civil proceeding, and the issues thereunder are to be determined by a preponderance of the evidence.

To

Exceptions from Merrimack county. Proceeding by the state, on relation of one Thorndike and others, against James Collins and another, to abate a liquor nuisance. a refusal to grant defendants' motion for a nonsuit and a dismissal at close of plaintiffs' case, and to the evidence introduced by petitioners, defendants excepted. Exceptions overruled.

For former opinion, see 36 Atl. 550.

Petition of 20 legal voters of Concord for the abatement of an alleged liquor nuisance, under Pub. St. c. 205, §§ 4, 5, filed March 2, 1894. Verdict for the state. Evidence was introduced tending to show that the premises

described in the petition on March 2, 1894, were used by the defendant Collins for the illegal sale of liquor, with the permission and by the sufferance of the defendant McShane. At the close of the state's evidence the defendants moved for a nonsuit and for a verdict. The motions were denied, and the defendants excepted. The defendants introduced no evidence, but excepted to evidence admitted, the argument of counsel, and the charge of the court, as follows: Witnesses were permitted to testify that they were on the premises March 2, 1894, and saw there bottles, glasses, a bar, a bartender, men drinking at the bar, and barrels in the cellar, which Collins told them contained liquor. A witness testified that about two months before March 2, 1894, he was on the premises, and "saw two men behind the bar selling out the rum pretty fast." The use of the premises and sales of liquor prior to March 2, 1894, and as remote as April 20, 1893, were shown, without any direct evidence that the sales were made by Collins or under his direction, or with the knowledge of either Collins or McShane. Thorndike, one of the petitioners, testified that he examined the records of the internal revenue collector at Portsmouth, and made a copy thereof, as follows: "Collins, J. M., W. M. L. D., Concord, July 1, 1893, $50, July 14, 1893, No. 2189, 13 Warren St." "Collins, J. M., R. L. D., Concord, July 1, 1893, $25, July 14, 1893, No. 7277, 13 Warren St." There was no other evidence tending to show that Collins had paid a special revenue tax. Wheeler, another petitioner, who was not in any way connected with the internal revenue bureau, testified that he received from an official of that bureau at Washington, D. C., a blank application for a license, which gave the rules for filling the same, and the definition of the abbreviations used; and he read that portion of the blank showing that the letters "R. L. D." stand for retail liquor dealer, and "W. M. L. D." for wholesale malt liquor dealer. The clerk of the Concord police court testified that the record of that court showed the conviction of Collins for illegally selling liquor on May 20 and August 26, 1893; but the record did not show, nor was there any evidence, that such sales were made on the premises described in the petition, except that Collins had no other saloon in Concord. On August 26, 1893, Collins' plea was nolo contendere. It appearing that the liquors seized on March 2, 1894, as the property of Collins, were returned to him, as claimant, by order of the court, the libel in State v. Spirituous Liquors, 68 N. H. 47, 40 Atl. 398, Collins' motion to dismiss, in which he was alleged to be the owner, the agreed case, and the opinion of the court therein were introduced in evidence. In his closing argument, the state's counsel commented upon the fact that the defendants did not testify, argued that their silence was to be considered and weighed against them, and remarked that, if the defendants were

doing a legitimate business, they could have taken the stand and explained it. The court instructed the jury that, the action being civil and not criminal, the result was to be determined upon a balance of probabilities, and further said: "The defendants have put in no evidence whatever, and therefore the only question is whether the evidence before you makes it more probable than otherwise that the allegations of the petition are true; and in weighing the testimony you may properly consider the fact that the defendants have not testified in their own behalf, and give it such weight as you may deem it to be entitled."

William H. Sawyer and Burleigh & Adams, for the State. John M. Mitchell and Albin, Martin & Howe, for defendants.

CLARK, J. There was evidence tending to show that the premises described in the petition on March 2, 1894, were used by the defendant Collins for the illegal sale of liquor, with the permission and by the sufferance of the defendant McShane. This was sufficient to sustain the denial of the motions for a nonsuit and for direction of a verdict for the defendants. The evidence was properly submitted to the jury.

The evidence of witnesses who testified that they were on the premises on March 2, 1894, and saw bottles, glasses, a bar, a bartender, men drinking at the bar, and barrels which Collins. told them contained liquor, was competent and material upon the question of the use of the premises, which was submitted to the jury. The evidence of the witness who testified that he was on the premises two months before March 2, 1894, and "saw two men behind the bar selling out the pretty fast," and that as to the use of the premises for the sale of liquor prior to March 2, 1894, and as remote as April 20, 1893, was also competent on the the question of use. While it was not directly shown that the sales prior to March 2, 1894, were made by Collins or under his direction, or with the knowledge of either Collins or McShane, there was evidence that Collins had long used a part of the building for a saloon, over which McShane had lived for several years, and that the latter occupied a place of business near the saloon, and in plain view of its rear entrance. Upon all this evidence, it was for the jury to determine by whom the sales between the dates mentioned were made, and whether the premises were used for the illegal sale of liquor during that time with the knowledge of McShane. The question whether evidence of sales prior to March 2, 1894, should have been excluded on the ground of remoteness, was one of fact, to be determined by the presiding justice.

Thorndike testified that he examined the records of the internal revenue collector at Portsmouth, and made a copy thereof, which he produced and read to the jury. The copy

showed that Collins had paid the special revenue tax as a wholesale malt liquor dealer and as a retail liquor dealer, at 13 Warren street, Concord, from July, 1893, to July, 1894. In State v. Loughlin, 66 N. H. 266, 20 Atl. 981, evidence of the same character regarding the same public record was offered. and it was held that a public record may be proved by an examined copy sworn to by an unofficial witness. In State v. Loughlin it appears that the records of the internal revenue collector are required by law to be kept open to public inspection, and that the collector cannot remove them or furnish copies. The evidence of Thorndike as to his examination of the record, and the copy made by him, were competent to show that Collins had paid the special tax. State v. Loughlin, supra; Whitehouse v. Bickford, 29 N. H. 471. If it were necessary to show the impossibility of producing the original record in order to render the copy admissible, that could be done

So, also, the testimony of Wheeler was properly admitted. The blank application for a United States license procured from the internal revenue bureau, showing the rules for filling out the same, and the definition of the abbreviations used, came from the proper source, and was competent to explain the corresponding abbreviations which appeared in the copy of the record testified to by Thorndike.

The record of the police court was competent to show illegal sales of liquor by Collins in Concord. There was evidence that Collins had no place of business in Concord, other than that on the premises described in the petition; and whether the sales on May 20 and August 26, 1893, were made on those premises, was for the jury to determine. The judgment was the material fact shown by the record. It is immaterial whether the plea was, "Guilty," "Not guilty," or "Nolo contendere." State v. Fagan, 64 N. H. 431, 14 Atl. 727.

It having been shown that the liquors seized on March 2, 1894, were subsequently returned to Collins, as claimant, by order of court, the evidence of what he did in the action (State v. Spirituous Liquors, 68 N. H. 47, 40 Atl. 398) was admissible as an admission and claim on his part.

A petition for an injunction under the "Nuisance Act," so called, is a civil proceeding. State v. Saunders, 66 N. H. 39, 25 Atl. 588; Rancour's Petition, 66 N. H. 172, 20 Atl. 930. This fact is an answer to the defendants' exception to the argument of counsel and charge of the court. Being a civil proceeding, the questions at issue were to be determined upon the balance of probabilities, and the jury were at liberty to draw such inferences as they reasonably might from the fact that the defendants did not testify. Carter v. Beals, 44 N. H. 408, 413. Exceptions overruled.

BLODGETT, J., did not sit. The others concurred.

44 A.-32

COMMONWEALTH V. BROWN. (Supreme Court of Pennsylvania. Nov. 6, 1899.) HOMICIDE-THREATS-EVIDENCE-INSANITY

-OPINION EVIDENCE-ADMISSIBILITY.

1. On a trial for uxoricide, a magistrate before whom the prisoner was tried shortly before the homicide for breach of the peace, on information of his wife, may testify to a threat by the prisoner against his wife made in his presence, over objection that as the statement did not appear on the magistrate's docket, which was put in evidence, it was inadmissible, as contradictory of the record; for the statement was no part of the record, and if it had been, and was omitted by the magistrate, he could still testify to it.

2. On a defense of insanity on a trial for murder, a nonexpert witness, who, though having no personal acquaintance with the prisoner, had seen him frequently and observed his conduct, may testify whether he believed him to be in

sane.

Appeal from court of oyer and terminer, Philadelphia county.

Robert W. Brown was convicted of murder in the first degree, and he appeals. Affirmed.

M. Luther Nicholas, for appellant. P. F. Rothermel, Jr., Dist. Atty., S. A. Boyle, and T. D. Finletter, Asst. Dist. Attys., for the Commonwealth.

DEAN, J. The defendant was convicted of murder of the first degree on June 20, 1899, and sentenced to death. The evidence showed that on 31st December, 1898, he had stab bed to death his wife, Lucinda Brown. Be cause of domestic trouble, they had been separated for about three years. From the evidence, the jury found all the elements of murder of the first degree. They could not have found otherwise. We now have this appeal, with six assignments of error.

The first alleges error in the admission of the testimony of Magistrate Cunningham. On October 12, 1898, the prisoner had been arrested on a charge of breach of the peace, on information made by his wife. At the hearing he was committed. ing he was committed. On leaving the magistrate's office, he announced publicly he "would get even with her as soon as he got out." Very soon after he was released from prison, he committed the murder. It is objected that no note of what was said by the prisoner appears on the magistrate's docket, which was offered in evidence solely for the purpose of showing the date and nature of the proceedings. Therefore, it is argued, the testimony contradicted the record, and was inadmissible. It was wholly immaterial whether the prisoner testified at the hearing, or, if he did, that the magistrate had made no minute of his testimony. The purpose was to show that the prisoner had threatened his wife, and the cause that prompted the threat. The evidence was properly no part of the record; and even if it was, and the officer had omitted it, he could still testify from recollection as to what the prisoner said. And the magistrate's docket, although not that of a court of record, was also clearly admissible to show the date

and nature of the proceeding, especially when its verity was supported by the testimony of the officer who made the entries. This assignment is overruled.

The second, third, fourth, and fifth assignments allege error in admitting the testimony of four witnesses,-Sheldon, Hamilton, Fuller, and Miller. The prisoner set up the plea of insanity, and, to sustain it, offered the weakest sort of testimony,-such as that he was continually talking of his marital trouble to those of his friends who would listen to him, and complaining of the obduracy of his wife, who, on account of his ill treatment of her, persisted in living apart from him. In their opinion, he was insane on this subject. It was undoubtedly defendant's right to adduce such testimony, although the witnesses were not experts, but only acquaintances. But in answer thereto the commonwealth called the four witnesses mentioned. All but Sheldon were well acquainted with him from one to three years. They testified, after stating their opportunities for observation, that in their opinion he was entirely sane. Sheldon had no personal acquaintance with the prisoner, but he was an officer, and patrolled the street where the wife lived; had frequently seen the prisoner looking in the vicinity, apparently seeking an opportunity to meet her; had been present at the hearing at the magstrate's, and there witnessed his conduct. It will be noticed that the plea only alleged insanity on the one subject, to wit, his marital troubles. It was on the occasion when seeking his wife, and in her presence, that this monomania, if it existed at all, would make itself apparent. Under such circumstances the witness saw him, and noticed no indication of insanity, but, from what he had seen, believed he was sane. This was competent testimony. It is not personal acquaintance alone that is a basis for the opinion of nonexpert witnesses, but personal observation also, under circumstances favorable to correct judgment. Whart. Cr. Ev. § 417. There is no merit in these assignments, and they are overruled.

The sixth assignment is not pressed in the argument. Therefore we do not notice it. further than to say it is wholly groundless. The judgment is affirmed, and it is directed that the record be remitted to the court below, that it may be carried into execution according to law.

COMMONWEALTH v. BRENNAN. (Supreme Court of Pennsylvania. Nov. 6, 1899.) INDICTMENT-MOTION TO QUASH-TIME OF MAKING.

A motion to quash an indictment because it was not found after an information subscribed before the committing magistrate, while it may have been heard on a proceeding to be discharged from custody for an illegal commitment, is too late after indictment found on the trial of the cause.

Appeal from court of oyer and terminer, Schuylkill county.

Thomas Brennan was convicted of murder in the first degree, and he appeals. Affirmed.

James Flannigan, George Dyson, and Charles N. Brumm, for appellant. Edgar W. Bechtel, Dist. Atty., for the Commonwealth.

PER CURIAM. The defendant was tried upon an indictment found regularly by the grand jury upon examination of witnesses after information made before a magistrate. A trial was had upon the merits, and the defendant was duly convicted of murder of the first degree. On the trial a motion was made to quash the indictment because it was not found after an information sworn to and subscribed before the committing magistrate. While the defendant might have been heard on that subject upon a proceeding to be discharged from custody on the ground of an illegal commitment, it is certainly too late after indictment found upon the trial of the

In re LINCOLN AVE.
Appeal of ROSEBURG.

(Supreme Court of Pennsylvania. Oct. 30,
1899.)

STREET PAVING ASSESSMENTS. Though a turnpike company, when in possession of a road, stoned a portion of it onefourth to one-half of its width, still such stoning, which was in a ruinous and unsafe condition when the road ceased to belong to the company and became a borough street, and removed by the borough in paving, and never used or adopted by it, is not such a paving as will preclude assessment on the abutting properties of the cost of paving by the borough.

Appeal from court of common pleas, Allegheny county.

In the matter of the improvement of Lincoln avenue in the borough of Bellevue. From decree dismissing exceptions to report of viewers, William Roseburg appeals. Affirmed.

The following is the opinion of the court below (Shafter, J.): "Lincoln avenue in the borough of Bellevue was graded and paved under an ordinance of the council, and this proceeding is for the assessment of the cost of the improvement. The viewers have made a report whereby the cost of the improvement has been assessed against the owners of the abutting properties according to the frontage on the avenue. To this a large number of the parties assessed have filed exceptions; all, so far as we can see, in the same words. There are nine exceptions, the substance of which is that the cost of the paving should not be borne by the abutting property, because: (1) The street is a main thor

(3)

oughfare, and the paving of it a benefit to persons outside the borough and in the borough, not on this avenue. (2) That the avenue was formerly a turnpike, and was taken by the county commissioners from the turnpike company by condemnation proceedings, and therefore belongs to the county. That the proceedings to widen and improve the avenue have never been ended. (4) That this is a rural district, and the foot-front rule does not apply to it. (5) That the turnpike company macadamized the road, and that the paving by the borough is a repaving, and not an original improvement.

(6) That

a part of the avenue was not included in the improvement. The first, second, and sixth of these reasons do not require notice. As to the third, it appears that some appeals from the assessments for the widening of the street have not been finally disposed of. That is no reason why the street should not be paved, and the paving paid for by those to whom it may be chargeable. As to the fourth, we find from the evidence that this is not a rural district, but that the avenue is practically a city street. The fifth is that on which the exceptants principally rely. We find from the evidence that, while the turnpike company was in possession of the road, they stoned a portion of the road one-fourth to one-half its width, leaving a dirt road on one side at least, if not on both; repairing the same from time to time with broken stone. At the time the road ceased to be the property of the company, such stoning or macadamizing as had been done was in a ruinous and unsafe condition, and it was removed by the borough in paving, and never used or adopted by it. Under this state of facts it is too plain for argument that under the rules laid down. in Philadelphia v. Eddleman, 169 Pa. St. 454, 32 Atl. 639, the so-called 'macadamizing' of the avenue was not, either in its physical character or its origin, such a paving or improvement as will preclude the assessment of the cost of the present improvement on the abutting properties. It did not change 'an ordinary clay road into a good, reasonably smooth, and substantial highway, practically equivalent to an ordinary well improved street paved with cobblestones or other materials then used for paving, nor was it put down originally, or adopted, or acquiesced in subsequently by the municipal authority for the purpose and with the intent of changing an ordinary road into a street.' tions of all parties exceptant are dismissed." James Fitzsimmons, J. S. Ferguson, and David L. Starr, for appellant. Geo. H. Quaill, for appellee.

The excep

PER CURIAM. We find no error in this record that requires us to sustain any of the specifications of error. For reasons given in the opinion of the learned judge of the court below, he was clearly right in dismissing appellant's exceptions. Decree affirmed, and appeal dismissed, at appellant's costs.

McCAHILL et al. v. MAGUIRE. (Supreme Court of Pennsylvania. Oct. 30, 1899.)

EXECUTION SALE-RIGHTS TO PROCEEDS.

Sureties on the liquor bond of M., conditioned to be void if she observed the liquor laws and paid all damages that might be recovered against her for violation thereof, having had a judgment confessed to them by M., to indemnify them against any loss as such sureties, under which there was execution sale of M.'s property, are entitled to the proceeds, as against one thereafter recovering judgment for damages against M. for violation of the liquor laws; there being nothing to show a superior equity in the latter judgment creditor.

Appeal from court of common pleas, Allegheny county.

Action by William McCahill and another against Margaret Maguire. There was execution sale on judgment for plaintiffs, and from decree distributing the proceeds to Charles J. Butterwick, a judgment creditor of defendant, appeals. Affirmed.

There was the following agreement as to facts:

"By agreement between counsel for the plaintiffs in the above-entitled action and the attorneys for the exceptants to the sheriff's return, the following statement is admitted as the facts in the case: At No. 1,160 of March sessions, 1896, of the court of quarter sessions of Allegheny county, Margaret J. Maguire was granted a license to sell vinous, spirituous, malt, and brewed liquors at 'Our House,' on the Elizabeth road in the village of Williamsburg, in Lower St. Clair township, in the county of Allegheny, from the 1st day of May, 1896, to the 1st day of May, 1897; and in accordance with an act of the general assembly of this commonwealth, approved May 13, 1887, she gave a bond to the commonwealth of Pennsylvania in the sum of two thousand ($2,000) dollars, with William McCahill and Fred Goedecke as sureties, and the condition of the bond is as follows: "That if the said Margaret J. Maguire shall faithfully observe all the laws of this commonwealth relating to the selling or furnishing of vinous, spirituous, malt, or brewed liquors, or any admixture thereof, and pay all damages which may be recovered in any action which may be instituted against her, under the provisions of any act of assembly, and all costs, fines, and penalties which may be imposed upon her, under any indictment for violating the above mentioned act of assembly, "An act to restrain and regulate the sale of vinous and spirituous, malt or brewed liquors, or any admixture thereof" (approved May 13, 1887), or any other act of assembly relating to selling or furnishing liquors as aforesaid, then this obligation to be void, otherwise to be and remain in full force and virtue'; which bond was dated the 16th day of January, 1896. That on July 23, 1896, Charles J. Butterwick brought suit against Margaret J. Maguire, in the court of common pleas No. 2 of Allegheny county, at No. 131 of October term, 1896, to recover dam