the objection overruled. It was perfectly competent for him to give the substance of the testimony of the deceased witness. Greenlf. on Ev., § 165; 42 Iowa, 573; 43 Iowa, 177. 7. That the jury were properly instructed that they could infer from the preponderance of the evidence (if such were the fact), that the fire was originated by defendant's engine, that they should be governed by their sound judgment and in the light of their experience as individuals in the ordinary affairs of life in drawing such inferences. 8. That the fire being communicated from the engine to the Libby Elevator, and thence directly to the property in question, the damages were not too remote. Affirmed. Appeal from Jasper Circuit Court. Opinion by ROTHROCK, J.-Small v. Chicago, etc., R. Co. PRINCIPAL AND SURETY-GUARANTY-CONTINUING GUARANTY.-Holwell had been agent for the Home Insurance Company, fell behind in his accounts, resigned, but finally paid up. Some time afterward he was again appointed agent, giving bond with Upton and Marshall as sureties. which bond was accepted by Page, general agent for the company. The bond was executed by the sureties at the request of Holwell without any communication with plaintiff or its agent Page, and no notice was given to them by any one of Holwell's former delinquency. It was held: 1. That it was error for the trial court to instruct the jury that if plaintiff accepted the bond, knowing that Holwell had formerly been a defaulter, as its agent, and failed to notify the securities on the bond that such was the case, plaintiff cannot recover. 2. That plaintiff was under no obligation to inform the sureties that Holwell had formerly been a defaulter, unless the securities had made an inquiry on the subject. 3. That if neither the plaintiff nor Page, its agent, had made statements to the sureties, nor did any act to prevent them from finding out that Holwell had been a defaulter, plaintiff was entitled to recover. The court below should have so instructed the jury, and for these errors the judgment is reversed. Appeal from Howard District Court. Opinion by DAY, J.-Home Insurance Co. v. Holwell et al. PRINCIPAL AND AGENT-CONTRACT-MONEY HAD AND RECEIVED-PLEADING.-Heider was secretary of the Burlington Mutual Loan Association, and plaintiff deposited with him as such, certain sums of money as a loan to the association, and took from him papers by which defendant became bound to pay these sums of money and ten per cent. interest. Plaintiff sues on these instruments and in another court for money had and received. The answer consisted of a denial, and states that Heider had no authority to borrow money, that his acts in that respect were null and void, that he was a defaulter, and if he placed the money to the defendant's credit [it was to make good his own shortage]. These words in brackets were on motion of the plaintiff stricken out. The evidence showed that the money received by Heider went to the credit of defendant. The case was tried by the court, who found on the count for money had and received for the plaintiff. It was held, 1. That no prejudice could have possibly resulted from the court sustaining the motion to strike out the clause in brackets. 2. That as the court found only for the plaintiff on the count for money had and received it is equivalent to a finding against him on the count based upon the instruments of writing. The error alleged to have been caused by the admission in evidence of the instruments of writing is not material, because the plaintiff has not appealed. 3. Neither Heider nor any other officer of the association, nor all combined, had any express power by the charter to borrow money. 4. The evidence is not seriously conflicting, and it sustains the view of the trial court that the money was had and received by the defendant as the money of the plaintiff, and not that of Heider. Affirmed. Appeal from the Des Moines District Court. Opinion by SEEVERS, J. - Leonard v. Burlington Mutual Loan Association. RECENT LEGAL LITERATURE. JACOB'S FISHER'S DIGEST. An Analytical Digest of the Law and Practice of the Courts of Common Law, Divorce, Probate, Admiralty and Bankruptcy, and of the High Court of Justice. and of the Court of Appeal of England, comprising the reported cases from 1756 to 1878. with reference to the rules and statutes, founded on the digests of Harrison and Fisher. By Ephraim A. Jacob, of the the New York Bar. Volumes 5 and 6. New York, 1881: George S. Diossy, Publisher. The 5th and 6th volumes of this excellent digest are now before us, bringing the reader down to the title of "Payee." We have already frequently spoken of this work. See 9 Cent. L. J. 201; 10 Cent. L. J. 299, and 11 Cent. L. J. 399. Nothing need be added to our statements there made. except that it is a matter of congratulation that the work is approaching completion. ever, he may recover, provided he had no The Central Law Journal. knowledge of the lunacy, and the note was ST. LOUIS, JUNE 24. 1881. CURRENT TOPICS. The Supreme Court of Pennsylvania recently rendered a very important decision upon the question of a lunatic's contracts. The facts of the case (Wirebach v. Bank of Easton), were as follows: A lunatic, became the indorser for accommodation upon a negotiable promissory note which was subsequently negotiated and came into the hands of an innocent holder for value. Said Trun key, J., in delivering the opinion of the court: "Where a person fairly and in good faith, sells property, or loans money to a unatic who appears to be sane, and is not nown by the vendor or lender to be insane, and who has not been found to be a lunatic by judicial proceedings, and the lunatic receives and uses the same, whereby the contract becomes so far executed that the parties can not be placed in stutu quo, such a contract can not afterwards be set aside, or payment refused by the lunatic, or his representatives. La Rue v. Gilkyson, 4 Barr, 375; Beals v. See, 10 Barr, 56; Lancaster County Bank v. Moore, 28 P. F. S. 407; Wilder v. Weakley, 34 Ind. 181; Elliott v. Ince, 7 DeG. M. & G. 475, 487." After further discussing these authorities the opinion then proceeds to say that the question presented is: will an action lie on the accommodation indorsement of a promissory note by a lunatic? and in support of the view that the presumption in favor of commercial paper, is inapplicable to the case, quoted the opinion of Paxon, J., in Moon v. Hershey, 9 Nor. 196, as follows: "We place our ruling upon the broad ground that the principle of commercial law above referred to does not apply to commercial paper made by madmen. The true rule applicable to such cases is, that while the purchaser of a promissory note is not bound to inquire into its consideration, he is affected by the status of the maker, as in the case of a married woman or a minor. In neither of these cases can he recover against the maker. In the case of a lunatic, howVo! 12-No. 25 obtained without fraud, and upon a proper consideration.” "There must be a limit to the civil responsibility of persons of unsound mind, otherwise their property would be at the mercy of unscrupulous and designing men." A statute recently passed in Pennsylvania makes an important change in the law of evidence, as applicable to the admission of testimony in life and fire insurance cases, of which mention here, may be of some value as a suggestion to the law makers of some of the western States. Where reference is made in an insurance policy to the application of the insured, or to any by-law or other rule of the company, as part of the contract, a correct copy of the by-law or other rule referred to, must be attached to the policy itself. Otherwise these instruments can not be used as evidence in any preceeding affecting the rights of the respective parties to the contract as set forth in the policy. The law applies to foreign companies as well as to those organized under the laws of Pennsylvania, and went into efWe think the idea a good fect on May 11th. one, and believe that the practical effect of such a law will be to prevent many cases of mistake or fraud. EXEMPLARY DAMAGES. III. Exemplary damages are given in cases of trespass against either real or personal property whenever the injury is prompted by malice, and especially when the act of offense is accompanied by circumstances of insult, outrage or contumely. It is not necessary, however, that these circumstances should be present, it is sufficient that the act should be malicious. In Devaughn v. Heath, it was held not to be necessary to recover such damages that the plaintiff should prove that the trespass had been committed in a "rude, 1 37 Ala. 595. aggravating and insulting manner;" that rudeness, insult and aggravation were only concomitants of the offense from which malice might very properly be inferred. Of course, however, where such. facts appear in the evidence they not only render the retribution inflicted upon the wrong-doer more certain, but far more severe. In Jasper v. Parnell,2 plaintiff's premises were invaded at night, the house torn down, and the materials moved into the street. It was held that a verdict of $600 damages was sufficiently moderate, although plaintiff was only a holding-over tenant, his term having expired, and his building of very little value. It was further held that the fact that the principal defendant had been advised by counsel that he had a right to evict plaintiff, could not be permitted to go to the jury in mitigation of damages. A similar case was that of Carpenter v. Barber,3 in which it was held that title and right of possession will not justify a forcible entry into a dwelling-house, and the expulsion of the tenant wrongfully holding over, and that it is not admissible to prove in mitigation of damages that defendant had been advised by counsel that he had a right to enter, if he could find plaintiff and his family absent; and further, that evidence that defendant was in collusion with plaintiff's housekeeper to secure a quiet entrance into the premises, is inadmissible in mitigation of exemplary damages. In Hufftalin v. Misner, defendant, at the head of a number of persons, invaded plaintiff's premises at night, blowing horns and firing guns, and drove her and her children into the cellar, and, in fact, dispossessed her of the premises. A judgment for $1,100 exemplary damages was affirmed by the court, and it was held that defendant could not in mitigation of damages introduce evidence impugning plaintiff's title to the land. In Smalley v. Smalley,5 a house was maliciously burned, exemplary damages given, and it was held that the commission of the wrong might be proved by circumstantial evidence, and although the act itself, being arson, was a felony in a criminal point of view, yet in the civil suit it was sufficient to prove the guilt of the defendant by 4 2 67 Ill. 358. 3 44 Vt. 441. 4 70 Ill. 55. 5 81 Ill. 70. a preponderance of testimony, and that "threats immediately preceding the burning, verified by the fact of the burning, were sufficient to justify the jury in finding the defendant guilty." Cutting down a bois d'arc hedge by an official, under color of changing a public road with an apparent design to harass and annoy the plaintiff, is a trespass for which a jury may give exemplary damages. And such recovery may be had, although the land was at the time in possession of tenants holding under a contract to pay as rent one-third of the crops, for the injury inflicted was an injury to the inheritance. Weston v. Gravelin,7 was an action of trespass by a tenant for defacing walls, breaking windows, and the like, and it was held that exemplary damages were properly given, because the malicious intention was evident that the injuries were such as a tenant might sue for, that proof of the bad character of the house was not admissible in mitigation of damages, and that plaintiff need only prove his case by a preponderance of testimony, for the rule in civil cases is not to be varied, because the act complained of might subject the defendant to a criminal prosecution. Exemplary damages may be recovered for a trespass in cutting and carrying off timber from plaintiff's land, although plaintiff was not in possession, but he was held authorized to maintain the action because his title was generally known and recognized, and the discontinuance of his possession was explained in such a manner as to raise no presumption against his right. The unnecessary stepping upon another man's land is usually a trifle which the law would disregard, but if the motive is bad, and the act has been attended by matters of aggravation, the least entry is a trespass, and exemplary damages may be lawfully given by a jury.9 Where a squatter intruded upon the lands he had recently occupied, and removed the orchard which he had planted, and the fence rails which he himself had made and put on the land, and the removal was attended with circumstances of aggravation, such as indecorous and insulting language, he was held reponsible for the trespass in ex 6 Parker v. Shackleford, 61 Mo. 68. 7 49 Vt. 507. Kolb v. Bankhead, 18 Tex. 228. 9 Johnson v. Hannahan, 3 Strobh. (S. C.) 425. emplary damages. 10 It was held, further, that the orchard and the rails, when set up as a fence, were attached to the freehold, and their removal was an injury to the inheri tance. To justify exemplary damages there must be shown, in all cases of trespass to lands, either positive malice, or that wanton and reckless negligence which is generally held to be equivalent to it.11 Where there is no malice, insult, or deliberate oppression, exemplary damages can not be given;12 for wherever a defendant acts in good faith, and under an honest belief that he was legally entitled to do the act complained of, which, however, proved to be a trespass, he can not be subjected to exemplary damages. 13 To justify such a finding it is necessary that the entry be made with an unlawful intent on the part of the defendant. 14 It was even held that exemplary damages will not be permitted in a case where a holding-over tenant, having promised to vacate the premises, afterward refused to do so, and the building was pulled down to make room for a new edifice. 15 Exemplary damages are also given where the personal property of the plaintiff is injured or destroyed by the malice or gross negligence, or wanton mischief of the defendant or his agents. Vicksburg, etc. R. Co. v. Patton, 16 was a case of this character in which the engineer of a train run his locomotive over the horses of the plaintiff and killed them, and a like case was that of Byram v. McGuire, 17 in which defendant's servants, by his orders, or in his presence, tied an animal of the plaintiff's in so imperfect and careless a manner that it was choked to death. The case of Merrills v. Tariff, etc. Co.,18 was for injury to the personal property of the plaintiff under color of legal right to the premises in which the property was, and as the object of the, injury appeared to be to break up the business of the plaintiff which competed with that of the defendant, the jury were instructed 10 Mitchell v. Billingsley, 17 Ala. 391. 11 Cutler v. Smith, 57 Ill. 252. 12 Moore v. Crose, 43 Ind. 30. 13 Allison v. Chandler, 11 Mich. 542. 14 Brown v. Allen, 35 Iowa, 306. 15 Farwell v. Warren, 70 Ill. 28. 16 31 Miss. 156. 17 3 Head (Tenn.) 530. 18 10 Conn. 384. that they might give exemplary damages. If, however, it appear by the pleadings and the testimony admissible under them, that the question is merely one of title, the damages allowed must be purely compensatory. Such a case was that of Plumb v. Ives, 19 in which some tobacco claimed by Mrs. Plumb, but which had been sold by her husband to defendant, had been carried off by him. The declaration was in the usual form de bonis asportatis, and it was held that under it the issue was only a question of title; that plaintiff could not give in evidence an assault upon her in the carrying away of the tobacco, no allegation of such assault appearing in the declaration, and that exemplary damages were not permissible. In Selden v. Cashman,20 goods were seized under a void judgment, and it was held that if the evidence showed that defendant, who acted under the advice of counsel, had apparently no suspicion that the judgment was invalid and exhibited no malice, the plaintiff could not recover exemplary damages. Exemplary damages may also be recovered for injuries to plaintiff's estate, growing out of the wanton or malicious abuse of legal process by the defendant. In Floyd v. Hamilton, 21 an attachment was procured against plaintiff, who, upon the failure to prosecute the attachment suit with effect, commenced proceedings upon the statutory bond, and upon appeal it was held by the Supreme Court that if the attachment were only wrongfully sued out the plaintiff could recover on the bond merely actual damages, but if it had been vexatiously sued out he could recover vindictive damages. 22 A like case was that of Barnett v. Reed,23 in which an execution had been issued upon a judgment rendered for a debt that had been previously paid. It was held that the wanton and malicious issuance of the execution and sale of property under it, fully justified exemplary damages. When a distress warrant was issued for $339, and it appeared that the defendant's 19 39 Conn. 120 20 20 Cal. 56. 21 33 Ala. 235. 22 See, also, McCullough v. Walton, 11 Ala. 492; Kirksey v. Jones, 7 Ala. 622; Donnell v. Jones, 13 Ala. 490, 509. 23 51 Pa. 190. actual and rightful debt was only $53, it was held,2 that the question whether or not the process had been maliciously issued, and whether in consequence, the plaintiff could be allowed exemplary damages, was one for the jury. It was further held that one acting in good faith, under the advice of a respectable attorney, ought not, even though the advice be wrong, be subjected to vindictive damages, but to escape such consequences he must show that he acted in good faith, and that the attorney advised with a full knowledge of all the facts. Where an attachment, however, has been sued out in good faith without malice or wantonness, neither exemplary damages nor compensation for the expenses of the suit can be given to the party injured.25 In actions of replevin exemplary damages may be awarded, provided there exist in the case the circumstances of malice, fraud, oppression or insult, which in other cases are necessary to justify such damages. To this effect was the decision in the case of Donald v. Schaife,26 and those of Brizbee v. Maybee,27 and Single v. Schneider, 28 and that of Schofield v. Ferris.29 In Hotchkiss v. Jones, 30 on the other hand, it was held that in replevin exemplary damages cannot be recovered. Akin to the abuse of legal proceedings by vexatious and groundless civil suits, is the like perversion of criminal process by false and malicious prosecution for pretended offenses against the law. Exemplary damages Exemplary damages are awarded without question in all proper cases where actions are brought for malicious prosecution. In Malone v. Murphy,31 the court makes some difficulty as to the propriety of allowing exemplary damages at all, considering the Greenleaf theory of damages the more logical, but accepts the opposite view as established law, and concedes that exemplary damages may be given in action for malicious prosecution, provided the plaintiff proves both malice and want of probable cause, the former of which is not necessarily to be inferred from the latter. 24 Dye v. Denham, 54 Ga. 224. 25 Dibble v. Morris, 26 Conn. 416. 26 11 Pa. 381. 27 21 Wend, 144. 28 30 Wis. 570. 29 46 Pa. 438. 30 4 Ind. 260. 312 Kan. 250. To a like effect was the case of Cooper v. Utterback,32 in which the court holds that if the prosecution originated without probable cause and in malice, the jury may well give exemplary damages; and further, that proof that the defendant acted under professional advice will not relieve him from such liability, unless he can show in addition that the advice was based on a full disclosure of all the facts known to the defendant; that he had used due diligence to ascertain all the material facts, in order to take the opinion of counsel upon them, and that he had acted throughout bona fide and without malice. In Zeigler v. Powell, 33 it was held that a complaint for malicious prosecution need not allege that the defendant "falsely," as well as "maliciously without probable cause" made the accusation. The three points to be established are malice, want of probable cause and the prosecution ended. When plaintiff has averred and proved these points, his right to a recovery is complete, and unless circumstances are proved extenuating the offense, exemplary damages will follow. It is almost superfluous to say that corporations are liable for damages for malicious prosecution, provided the injury be done by their servants acting in the course of their business. It has even been held in a very recent case in Massachusetts (March, 1881) Reed v. House Savings Bank,34 that institutions of that character are liable in damages for malicious prosecution. ment. Exemplary damages are given very certainly and very freely in cases of false imprisonMalice is the most indispensable ingredient in making up a case for such damages. It is so uniformly present in cases of illegal imprisonment that it is always hard to persuade a jury that an innocent man can be unlawfully put into jail by any mistake, however extraordinary. The sympathy of the jury is always strong in favor of a plaintiff who has been thus wronged, and in cases of this kind it is more likely to exceed than fall short of its duty, The case on this subject most frequently cited is that of Huckle v. Money, 35 in which for a few hours' detention, during which he was very civilly treated with 32 37 Md. 282. 33 54 Ind. 173. $4 12 Cent. L. J., 353. 35 2 Wils. 205. |