prohibiting such taxation at a greater rate than is imposed by the State upon other moneyed capital in the hands of individual citizens of such State, in so far as it does not permit a stockholder of a national bank to deduct the amount of his just debts from the assessed value of his stock, while the owner of all other taxable property is allowed to make this deduction; but the assessment made under this act, and without this deduction is not invalid for that reason, unless the stockholder has shown the assessors what his just debts are, and has taken the requisite steps to have his assessment made out in accordance therewith. (2) The rule adopted by the board of assessors of the city of Albany, to assess all shares of stock in State and national banks in the city of Albany at par, without regard to the actual or market values, but making the requisite reduction for real estate owned by the banks, is not in conflict with the act of Congress providing that the taxation of shares of national banks, by authority of the State in which such institutions are situated, shall not be at a greater rate than upon other moneyed capital in the hands of individual citizens of such States. (3) Excessive assessments should be corrected by the course provided by law for such correction, or where over valuation has arisen from the adoption of a rule of appraisement which conflicts with a constitutional or statutory provision, by resorting to equity to enjoin the collection of the excess upon payment or tender of the amount due upon a just valuation. To recover in this case the plaintiff was required to prove, under the decision when the case was first here, that "the assessors habitually and intentionally, or by some rule prescribed by themselves, or by some one whom they were bound to obey, assessed the shares of the national banks higher in proportion to their actual value than other moneyed capital generally." The court below specially found the negative of this; that the assessors did not, at any of the times in question, habitually or intentionally, or by any rule prescribed by themselves, or by any one whom they are bound to obey, thus assess the shares of national banks. The counsel for the plaintiff insists however, notwithstanding this finding, that the inference of such habitual assessment at a higher rate follows from the findings that within the city of Albany there were nine banks, and that the actual value of the shares in all of them except one exceeded their par value, varying in that respect from ten to seventy per cent premium, and yet the value of all was assessed at par. The actual value of shares of the National Albany Exchange Bank was thirty-five per cent above par, and the actual value of the shares of some of the other banks was above and some below that figure. The court found that the method pursued by the assessors was generally satisfactory to the owners of national bank stock in the city of Albany, with the exception of a few stockholders in the National Albany Exchange Bank, and that such method was pursued by the assessors with no purpose or intention of unduly assessing shares of national banks, but simply because it was thought by them to be the most satisfactory one to the owners of such property, and the best in itself. A different method might have led to perplexing difficulties, owing to the great fluctuations to which shares in banking institutions are subject, their value depending very much on the skill and wisdom of the managers of those institutions. Intelligent men constantly differ in their estimate of the value of such property, aud the stock market shows almost daily changes. Presumptively the nominal value is the true value; any increase from profits going, in the natural course of things, to dividends to the stockholders. This method, applied to all banks, national and State, comes as near as practicable, considering the nature of the property, to securing as be

tween them uniformity and equality of taxation; it cannot be considered as discriminating against either. Both are placed on the same footing. In Mercautile Nat. Bank of New York v. City of New York, re cently decided, the court said: "The main purpose of Congress in fixing limits to State taxation on investments in the shares of national banks was to render it impossible for the State, in levying such a tax, to create and foster an unequal and unfriendly competition by favoring individuals or institutions carrying on a similar business and operations and investments of a like character. The language of the act of Congress is to be read in the light of this policy." The method pursued could in no respect be considered as adopted in hostility to the national banks. It must sometimes place the estimated value of their shares below their real value, but such a result is not one of which the holders of national bank shares can complain. It must sometimes lead also to overvaluation of the shares; but if so, no ground is thereby furnished for the recovery of the taxes collected thereon. It is only where the assessment is wholly void, or void with respect to separable portions of the property, the amount collected on which is ascertainable, or where the assessment has been set aside as invalid, that an action at law will lie for the taxes paid, or for a portion thereof. Overvaluation of property is not a ground of action at law for the excess of taxes paid beyond what should have been levied upon a just valuation. The courts cannot in such cases take upon themselves the functions of a revising or equalizing board. Newman v. Supervisors, 45 N. Y. 676687; National Bank of Chemung v. Elmira, 53 id. 4952; Bruecher v. Village of Port Chester, 101 id. 240244; Lincoln v. Worcester, 8 Cush. 55-63; Hicks v. Westport, 130 Mass. 478; Balfour v. City of Portland, 28 Fed. Rep. 728. In nearly all the States, probably in all of them, provision is made by law for the correction of errors and irregularities of assessors in the assessment of property for the purposes of taxation. This is generally through boards of revision or equalization, as they are often termed, with sometimes a right of appeal from their decision to the courts of law. They are established to carry into effect the general rule of equality and uniformity of taxation required by constitutional or statutory provisions. Absolute equality and uniformity are seldom, if ever, attainable. The diversity of human judgments, and the uncertainty attending all human evidence, preclude the possibility of this attainment. Intelligent men differ as to the value of even the most common objects before them-of animals, houses and lands in constant use. The most that can be expected from wise legislation is an approximation to this desirable end; and the requirement of equality and uniformity found in the Constitutions of some States is complied with when designed and manifest departures from the rule are avoided. To these boards of revision, by whatever name they may be called, the citizen must apply for relief against excessive and irregular taxation, where the assessing officers had jurisdiction to assess the property. Their action is judicial in its character. They pass judgment on the value of the property, upon personal examination and evidence respecting it. Their action being judicial, their judgments in cases within their jurisdiction are not open to collateral attack. If not corrected by some of the modes pointed out by statute, they are conclusive, whatever errors may have been committed in the assessment. As said in one of the cases cited, the money collected on such assessment cannot be recovered back in an action at law any more than money collected on an erroneous judgment of a court of competent jurisdiction before it is reversed. When the overvaluation of property has arisen from the adop

tion of a rule of appraisement which conflicts with a constitutional or statutory direction, and operates unequally, not merely on a single individual, but on a large class of individuals or corporations, a party aggrieved may resort to a court of equity to restrain the exaction of the excess, upon payment or tender of what is admitted to be due. This was the course pursued and approved in Cummings v. National Bank, 101 U. S. 153. In that case it appeared that the officers of Lucas county, Ohio, charged with the valuation of property for the purposes of taxation, adopted a settled rule or system by which real estate was estimated at one-third of its true value, ordinary personal property about the same, and moneyed capital at three-fifths of its true value. The State board of equalization of bank shares increased the valuation of them to their full value. Upon a bill brought by the Merchants' National Bank of Toledo against the treasurer of the county in which the bank was established to enjoin him from collecting taxes assessed on the shares of the stockholders, payment of which was demanded of the bank under the law, it was held that the rule or principle of unequal valuation of the different classes of property for taxation adopted by the board of assessment was in conflict with the Constitution of Ohio, which declares that "laws shall be passed taxing by a uniform rule all moneys, credits, investments in bonds, stocks, joint-stock companies, or otherwise, and also all the real and personal property according to its true value in money," and worked manifest injustice to the owners of shares in national banks; and that the bank was therefore entitled to the injunction against the collection of the illegal excess, upon payment of the amount of the tax which was equal to that assessed on other property. That decision was rendered upon a disregard by the assessing officers of a rule prescribed by the Constitution of the State, but the same principle must apply when their action in assessing the shares of national banks is in disregard of the act of Congress. The plaintiff below did not think proper to resort to this method of obtaining relief, which would have given him all he was entitled to, if in fact his shares were assessed at a greater rate than was assessed on other moneyed capital, because of their illegal overvaluation. May 2, 1887. Stanley v. Board of Supervisors of Albany. Opinion by Field, J.

ABSTRACTS OF VARIOUS RECENT DECISIONS.

COMPROMISE-VALIDITY FRAUD. In an action against a railroad company for injuries caused by its negligence, a settlement for a grossly inadequate sum obtained by misrepresentations by the company that the plaintiff would be brought "into disgrace, and would get nothing in the end," if she sued for the injury, and at a time when she was sick and nervous, and in great need of money, and repudiated by her the next day, held, no bar to an action for the injury. Advantage was taken of the loneliness, poverty and sickness of the plaintiff to make a settlement with her for a pitiful and insignificant sum. Her ignorance was also played upon by one in whom she relied and whom she trusted. He was employed because of his relationship and influence over her. There can be no doubt but the woman was imposed upon and wronged, and courts should not hesitate in such cases to speak plainly and give relief. The defendant cannot complain of the action of the court below. The jury were instructed in its behalf: "If she was induced to make the settlement by reason of wanting money to buy medicines for her children, and made it understandingly, and without fraud or undue influence upon the

part of those acting for the defendant inducing such settlement, then the settlement is binding upon her, and a bar to this action." Mich. Sup. Ct., May 5, 1887. Stone v. Chicago & W. M. Ry. Co. Opinion by Morse, J.

COPYRIGHT PIRACY - DIRECTORY.- The parties are the proprietors aud publishers of rival "society" directories, which purport to give the names and addresses of those persons in New York city who are supposed to be people of fashion. The complainant asserts that its copyright directory, "The List," is infringed by the defendant's directory, the " "Social Register," and has made a motion for a preliminary injunction. The question in the case is whether the defendant, in compiling his directory, has done so by his own original labor, or whether, in order to spare himself time and expense, he has copied the names and addresses given in the Social Register from the List. If he has copied any part of the complainant's book, he has infringed the copyright. He has no right to take, for the purposes of a rival publication, the results of the labor and expense incurred by the complainant, and thereby save himself the labor and expense of working out and arriving at these results by some independent road. Morris v. Ashbee, L. R., 7 Eq. 34. It was held in Kelly v. Morris, L. R., 1 Eq. 697, where the publication in controversy was a general directory, that the only legitimate use which a subsequent compiler can make of a copyrighted directory already published is for the purpose of verifying the correctness of the results reached by his own independent efforts in obtaining information. In the latter case of Morris v. Wright, L. R., 5 Ch. App. 279, it was held that the subsequent compiler can use a directory previously published for the purpose of directing himself to the persons from whom such information is obtained. No compiler of a book such as directories, guide-books, road-books, statistical tables, can acquire, by a copyright, a monopoly of, the matter published; but the subsequent compiler must investigate for himself from the original sources of information which are open to all. It has been said that in the case of a road-book, he must count the mile-stones for himself, and in the case of a map of a newly-discovered island he must go through the whole process of triangulation, just as if he had never seen any for mer map; and generally, he is not entitled to take one word of the information previously published without independently working out the matter for himself, and the only use he can legitimately make of a previous publication is to verify his own calculations and results when obtained. It is not necessary to adopt this statement unqualifiedly, but it is safe to say that the compiler of a general directory is not at liberty to copy any part, however small, of a previous directory, to save himself the trouble of collecting the materials from original sources. Otherwise, as the matter of rival publications of this kind is identical, there would be practically no copyright in such a book. It is not necessary or reasonable to apply so strict a rule to publications like the present. They are designed to provide a catalogue, in convenient form, of the names and addresses of a selected class of eligible persons. They are original to the extent that the selection is original. Their commercial value depends upon the judgment and knowledge of the author respecting the social standing and society relations of a limited class of the general public. When the selection is made, each compiler must of necessity reproduce the same names and addresses, so far as the selections coincide, and must arrange them in alphabetical order. The law of copyright only requires the subsequent compiler to do for himself that which the first compiler has done. The same sources of original informa

tion are open to each. Either of the present parties could lawfully use the general city directory to obtain the correct addresses of the selected persons; nor is it doubted that the defendant had the right to use the complainant's book for the purpose of verifying the orthography of the uames, or the correctness of the addresses, of the persons selected. But if the defendaut has used the List to save himself the trouble of making an independent selection or classification of the persons whose names appear in the Social Register, although he may have done so only to a very limited extent, he has infringed the complainant's copyright. In a case like this, when a close resemblance is the necessary consequence of the use of common materials, the existence of the same errors in the two publications affords one of the surest tests of copying. When it is shown that thirty-nine errors in complainant's book, consisting of misprints, erroneous addresses, insertion of names of persons who never existed, and insertions of names of deceased persons, are repro. duced in the defendant's book, although it was not published until more than a year after the complainant's book was published, a strong presumptive case of piracy is made out. U. S. Cir. Ct. S. D. New York, April 12, 1887. List Pub. Co. v. Keller. Opinion by Wallace, J.

CORPORATIONS - -SALE OF STOCK IMPLIED WARRANTY.- One who sells certificates of stock in a corporation does not thereby impliedly warrant that the corporation by which they were issued is a corporation de jure. It is sufficient, so far as any implied warranty is concerned, if they are issued by a corporation de facto. In a case involving municipal bonds issued without statutory authority, and in speaking of the implied warranty in the sale of such securities, the Supreme Court of the United States, in the case of Otis v. Cullum, 92 U. S. 447, said: "The seller is liable ex delicto for bad faith, and ex contractu there is an implied warranty on his part that they belong to him, and that they are not forgeries. Where there is no express stipulation, there is no liability beyond this. If the buyer desires special protection, he must take a guaranty." A less liberal rule clearly cannot be applied to the sale and transfer of certificates of stock. It was held in the case of People's Bank v. Kurtz, 99 Penn. St. 344, as stated in the syllabus, that the vendor of a share of stock impliedly warrants that the same is issued by the duly-constituted officer of the company, and that he does not impliedly warrant that such a share has not been fraudulently issued by the officers in excess of the charter limit. We have been unable to find any authority holding that the vendor of shares of stock impliedly warrants that the corporation by which the certificates of stock were issued was a corporation de jure. Ind. Sup. Ct., May 24, 1887. Harter v. Elzroth. Opiniou by Zollars, C. J.

her. The purpose of the writer could be fulfilled only by his offensive epithets being brought to the knowledge of the object of his malignity. Mrs. Conover resided with her husband at Copper Hill, near Ringoes. The communication was inclosed in a sealed envolope directed to the husband, David Conover, Copper Hill post-office. The envelope had on it the post-office stamp, "Lambertville, January 30, 1885." Jonathan Conover, a son living at home, got the letter from the post-office at Copper Hill. David Conover, the husband, was sick at home at that time. The son brought the letter home, and handed it to his mother. She opened it, and read it to the members of the household. Inclosed in the same envelope was another communication addressed, "To his Conovership, the Prince of the Conover Hell, near Copper Hill, Hunterdon Co., N. J., Greeting," and intended for the husband. It had affixed to it a postscript: "P. S. Please hand the inclosed paper to your consort, Dame Conover, the honored princess of your establishment." The writing on which the indictment was founded, was intended for Mrs. Conover. It was sent to her husband, with a request that it should be handed to her. It was received and read by her. Was the communication "sent to " her, within the meaning of the statute? In Rex v. Wagstaff, Russ. & R. 398, the indictment was on the statute 27 Geo. II, chap. 16, for sending a threatening letter to Richard Dennis. The letter was directed to Richard Dennis, and was dropped by the prisoner in the yard of the residence of Dennis. It was picked up by the wife of the prosecutor, who first read the letter herself, and then read it to her husband. The judge instructed the jury that if the prisoner carried the letter and dropped it, "meaning that it should be conveyed to Dennis, and that he should be made acquainted with its contents," the letter was sent within the meaning of the statute. The conviction was sustained. The judges thought a letter dropped near the prosecutor, with intent that it might reach him, was a sending to him. In Lloyd's case, which was an indictment for sending a letter to one Salway demanding money, the prisoner dropped the letter in the vestry-room which Salway frequented every Sunday, from whence the sexton had picked it up and delivered it to him. Mr. Justice Yates, before whom the case was tried, reported to the court that "it seemed to him to be very immaterial whether the letter was sent directly to the prosecutor, or put into a more oblique course of conveyance, by which it might finally come to his hands." The court in banc expressed no opinion on this point, the judgment being arrested on another ground. 2 East P. C. 1123. In Rex v. Paddle, Russ. & R. 484, the indictment charged the prisoner with sending a letter to William Kirby, threatening to burn the house of one Rodwell, and the stacks of hay, corn and grain of one Brook. Kirby received the letter by post, and it was communicated very soon after to Rod well and Brook. It was objected that it was indispensably necessary that the indictment should charge the sending of a threatening letter to the party threatened; whereas it was stated in the indictment, and appeared upon the evidence, that the letter was sent to a stranger, who might have destroyed the letter without the party threatened knowing any thing about it. The court in banc considered that the sending the letter to Kirby, as he was not threatened, was not within the statute, and on that account judgment was arrested, manifestly on the ground of a defect in the indictment; but the court intimated that if Kirby had delivered it to Rodwell or Brook, and the jury should think that the prisoner intended he should so deliver it, that would be a sending by the prisoner to Rodwell or Brook, and would support a charge to that effect. In Reg. v. Grimwade, 1 Denison, Cr. Cas. 31, reported also in 1

CRIMINAL LAW- SENDING INDECENT LETTER. -Exception was taken to the refusal of the court to charge that there was no evidence that the defendant did send or convey to Henrietta Conover the alleged writing or communication. To make the sending of such a communication indictable it must by the statute be sent to a female. The indictment charges that it was sent to Mrs. Conover. Proof that it was sent to her in a legal sense is necessary to sustain the conviction. The evidence tended to show that the communication was in the defendant's handwriting. It is prefaced by these words: "Soliloquy of Dame Conover, Princess Consort of the Conover Hell, in Conover-Dale, near Copper Hill, Hunterdon Co., N. J." The communication contains indubitable evidence that the writer intended that it should be seen and read by Mrs. Conover. Every line of the writing evinces a fixed purpose to traduce, defame and insult

Car. & K. 502, the case was considered upon the second count of the indictment, which charged the prisoner with sending to one Brown a letter directed to Sir Joshua Rowley, threatening to burn the barn of Brown. At the trial it was proved that the letter was left by the prisoner at a gate in the public road near Sir J. Rowley's house, directed to him as described in the indictment, and sealed. Having been found there by one of the witnesses, it was forwarded by him to Sir J. Rowley's house, and there deposited in the steward's room. There it was opened by the steward, who was authorized by Sir Joshua Rowley to open and read such letters. The steward, having opened and read it, did not deliver it to Sir Joshua Rowley, but handed it over to a constable, who afterward showed the letter to Brown and to Sir J. Rowley. The learned baron directed the jury to consider whether the prisoner, in leaving the letter as before described, intended that it should not only reach Sir Joshua Rowley, to whom it was directed, but that it also should reach Brown; and then, if they thought so, the learned baron was of opinion that it would be a sending to Brown, and then the prisoner might be found guilty upon the second count. The court affirmed the conviction on the ground that it was properly left to the jury to say whether the dropping was a sending. In all the cases I have found the principle is either affirmed or recognized, that under statutes similar to that under which this indictment was found, a letter is sent, within the meaning of the statute, when it is put in the course of transmission by the accused with the intent that it should reach the person to whom it is charged in the indictment to have been sent, provided that in fact it reaches such person. Jepson's case, 2 East C. P. 1115; Heming's case, id. 1116; Girdwood's case, id. 1120, and 1 Leach, 142; Queen v. Williams, 1 Cox Crim. Cas. 16; Queen v. Carruthers, id. 138; Reg. v. Jones, 2 Car. & K. 398; 2 Whart. Crim. Law, § 1666a. Nor is the effect of the decisions referred to impaired by the fact that they were made upon statutes which did not specifically require the letter to be sent to any particular person; for by legal construction, such statutes are held to require that the letter should be sent to the person threatened, and the indictment thereunder must so allege. Rex v. Paddle, Russ. & R. 484. That the communication was inclosed in an envelope directed to the husband cannot alter the case. The writer intended that it should come to the wife's knowledge, and requested that it should be handed to her. When these communications were received, that the husband should have shown them to the wife, with a view to discover the writer, was from the character of the communications, natural and to be expected. Where the criminal animus is exhibited, and the offender has taken such steps to carry it into effect as would probably produce the result contemplated, the court should not resort to over-nice or strained constructions to shield the party from the consequences of a criminal act which in fact had been accomplished by the very means he selected. The judge properly refused to charge as requested. N. J. Sup. Ct., May 24, 1887. Larison v. State. Opinion by Depue, J.

TRIAL- DEFENDANT'S PRESENCE. In North Carolina, where a defendant indicted for a felony less than capital is under recognizance for his appearance, and presents himself when the trial begins, but before the verdict is rendered, voluntarily and on purpose absents himself by fleeing the court, he must be deemed to have waived his right to be present during the remainder of the trial; and on being recaptured, will not be entitled to be discharged, or to have a new trial, because he was so absent when the verdict was rendered. In such a case, if the defendant flee pending the trial, the court is not bound to stop the trial, and

discharge the jury, and thus give the defendant a new trial. The Constitution (art. 1, §§ 11-13), provides, in respect to persons charged with crime, that "in all criminal prosecutions, every man has the right to be informed of the accusation against him, and to confront the accusers and witnesses with other testimony, and to have counsel for his defense;" that he shall be put to answer a criminal charge only by "indictment, presentment, or impeachment," except in cases of petty misdemeanors; and that he "shall not be convicted of any crime but by the unanimous verdict of a jury of good and lawful men, in open court." These embrace all the provisions of the Constitution bearing upon the subject, and surely they cannot be reasonably interpreted to imply that it is essential that the party "put to answer any criminal charge" shall be continuously present at his trial at all events. They do not have such meaning, in terms or effect. The just and reasonable implication is that the party accused of crime shall have fair opportunity to defend himself in all respects as allowed and secured by the principles of law, procedure, and statutory provisions applicable to and regulating criminal trials. While it is settled in this State that the prisoner has the right to be so present during his trial upon a charge for a felonious offense not capital, there is neither principle nor statute nor judicial precedent that makes it essential that he shall be; nor in our judgment, is there any common principle of justice essential to the security of personal right, safety, and liberty that so requires. Unquestionably a party "put to answer any criminal charge" may plead guilty, or nolo contendere. In such cases he waives a trial altogether. The law allows him to do so, presuming that he has capacity and intelligence to know and be advised as to his rights, and that he will not voluntarily refuse to make defense, if innocent. The law in such cases will not compel him to make defense for himself, nor will it make defense for him. It will only afford him just opportunity to do so for himself, and he could not reasonably expect or ask more, nor is there any thing in the nature of personal safety or liberty that requires more. If the prisoner may thus waive his right to a trial altogether, why may he not waive his right to be present at his trial, if he shall for any cause see fit to do so? We can conceive of no just reason why he may not, especially when he is represented by counsel, as he has the right to be, who it is presumed, is fully advised by him, and can generally take care of his rights better than he could do himself. He may deem it of advantage to him not to be present, or it may be inconvenient for him to be. He may choose to rely upon the skill and judgment of his counsel, and expect that the court will see that the trial is conducted according to law,as it will always do. He may do this, but the waiver should appear to the satisfaction of the court, either expressly or by reasonable implication, from what he says or by his conduct. His counsel cannot waive his right for him. State v. Epps, 76 N. C. 55; State v. Paylor, 89 id. 539; State v. Sheets, id. 543; Price v. State, 36 Miss. 531; Fight v. State, 7 Ohio, 181; 28 Am. Dec. 626, aud numerous cases there cited. Generally, if not in all cases, the State will require the prisoner's presence when the judgment is entered; especially when the punishment to be imposed requires it. The court will always require the presence of the prisoner in court during the trial, as already indicated, if he be in close custody of the law, unless in case the prisoner expressly himself, and not by counsel, waives his right to be present; but the court may require it, if it shall deem advisable to do so. When however the prisoner is not in close custody, but is only under recognizance for his appearance, the court will not begin a trial in his absence, unless he expressly waives his right to be

present. If however he be under recognizance for his appearance, is present when the trial begins, and afterward pending it, he voluntarily and on purpose absents himself, as when he flees the court, he must be deemed to have waived his right to be present during the remainder of the trial, while he is so absent, and will not be entitled to be discharged, or to have a new trial, because he was so absent. In such case he has fair opportunity to be present; he stipulates, might and ought as matter of duty to be. If he is not, by the stringent, if not conclusive, implication, he consents to be and is voluntarily absent, and waives his right. He has no right to flee. He is bound not to do so. He flees at his peril, and is justly held to take the consequences of his unlawful conduct. It would savor of absurdity and positive injustice, where a party charged with crime thus flees, to allow him to take advantage of his own wrong, and obtain his discharge or a new trial. A party charged with a felony less than capital has the right to give bail, and be at large unless at the trial the court shall order him into close custody. In such cases, if the defendant flee pending the trial, the court is not bound to stop the trial, and discharge the jury, and thus give the defendant a new trial. To do so would compromise the dignity of the court, trifle with the administration of justice, and encourage guilty parties to escape. The defendant has no right, fundamental or otherwise, that renders such absurd practice and procedure necessary. It appears that the defendant in this case was not in close custody; that he was under recognizance for his appearance, and present when his trial began. In the course of the trial, when the jury were going into court to render their verdict, he fled the court, and was not present when it was received and entered by the court. The court properly held that this was not ground for a new trial. In such a case, it might in its discretion grant a new trial for just cause, as when the defendant is ignorant and frightened, and is prompted by fear to flee, if it appear that be might have suffered prejudice by such flight. N. C. Sup. Ct., May 2, 1887. State v. Kelly, Opinion by Merrimon, J., Smith, C. J., dissenting.

EVIDENCE- PARTY'S DECLARATIONS CONFIRMING HIS TESTIMONY.- The plaintiff was permitted to give in evidence her own declaration, made to third persons in the absence of the defendant, in her own favor, and not under oath. Those declarations are as to the very substance of her cause of action. They are mere repetitions to others of the alleged breach of contract by the defendant. But she was a competent witness in her own behalf, and was examined as such, and testified before the jury under the sanction of an oath, and subject to the cross-examination of her opponent, to whatever facts she had to relate. Why then should she be permitted to prove that she had told the same story to other persons out of court, and in the absence of the defendant? The declarations of a party in his own behalf are not evidence. No rule is clearer than this. We can perceive nothing in the declarations received in this case but the mere assertions made by the plaintiff as to the defendant's breach of contract. They are her own statements of her cause of action to the witnesses, who simply repeat what she told them. Certainly she cannot do this. The learned court below thought they tended to show that her story was not of recent fabrication, and therefore were admissible upon the very exceptional and narrow ground upon which in certain peculiar circumstances a previous statement made by a witness may be given in evidence to corroborate his statement made on the trial. But the difficulty with the present case is that those exceptional circumstances are all wanting. Where it is important to know whether the statement

*

made by a witness on the trial of a cause is of recent fabrication, it is sometimes competent to show that upon some former occasions, when there was no reason to suspect the motives, he stated the matter in the same way as upon the trial. The subject is thus presented in 1 Whart. Law Ev., par. 570: "When a witness is assailed on the ground that he narrated the facts differently on former occasions, it is ordinarily incompetent to sustain him by proof that on other occasions his statements were made in harmony with those made on the trial. * *On the other hand, where the opposing case is that the witness testified under corrupt motives, or where the impeaching evidence goes to charge the witness with a recent fabrication of his testimony, it is but proper that such evidence should be rebutted. It has consequently been ruled that statements made by a witness corroborating his evidence upon the trial, such statements being uttered soon after the transaction in litigation, and at a time when the witness could not have been subjected to any disturbing influences, are competent, where proof has been offered to impeach him by showing that he had recently fabricated the narrative, or that he testified corruptly." In the case of Craig v. Craig, 5 Rawle, 91, Chief Justice Gibson discusses the matter at some length, and says: "But statements by a witness at another time, though admissible to contradict him, are not equally so to confirm him. They are certainly not receivable before his credibility has been assailed, but it is a vexed question whether they may not be used to rebut evidence of self-contradiction by showing him to have been sometimes consistent." After citing some authorities pro and con, and stating the rule as expressed by Starkie, Judge Gibson proceeds: "Adopting then the rule of Mr. Starkie, with its exception, that consonant declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of a recent date, and to show that the same statement was made before its ultimate effect on the question trying could have been foreseen, we come to an inquiry," etc. In McKee v. Jones, 6 Penn. Stat. 425, Burnside, J., says: "Statements by a witness at another time. though admissible to contradict, are not equally so to confirm him. This the general rule. But consonant declarations may be given in contradiction of evidence tending to show that the testimony at the bar is a fabrication of recent date, and to show that the same statement was made before its ultimate effect on the question trying could have been foreseen." Tested by these considerations, it will be seen at once that the declarations in question are clearly incompetent. They were made almost immediately before the present suit was commenced, and contemporaneously therewith. They do not tend to show therefore that they were not a fabrication of recent date, but rather to confirm that theory, since they cannot rationally be dissociated from the plaintiff's immediately following action. Nor do they show that they same statements were made before their ultimate effect on the question trying could have been foreseen. On the contrary, they were made in such close connection with the bringing of the suit that they have much the appearance of being made for the very purpose of affecting the question to be tried, by making evidence in support of the plaintiff's claim. It would be very dangerous practice, in our opinion, to permit a party who is about to commence an action against another to go about making declarations to third persons as to the substance of his cause of action, and then, on the trial of that same actiou, to give those declarations in evidence for any purpose. Penn. Sup. Ct., May 23, 1887. Clever v. Hilberry. Opinion by Green, J.

DECLARATIONS OF GRANTOR.- Evidence of a grantor's declarations in disparagement of his title,