interest. This is all of the evidence which the master has specified, on which he bases his finding that $200 of usury entered into the notes of May 23, 1872. It is true the intestate's book showed due from the defendant on April 1st, $2,400. This is balanced, when the notes were given, by two items of cash aucunting to $100, and by part of notes given for deed of house, $2,300. But the master does not speak of this entry as influencing him in this finding. It is to be observed that the question be. fore the master was not whether the defendants, between 1863 and 1872, or after the date last named, paid the intestate sums of money as usury, eo nomine. Such sums would become barred at law, by the statute of limitations, in six years. While this statute does not apply, strictly speaking, to suits in equity, yet equity follows the law, generally, in regard to such payments. In ascertaining the sum due in equity, the orator could well have replied that payments of usury of more than six years' standing, if found by the master, should be disallowed. But no such payments were found established, either from the intestate's books or otherwise. Yet while the evidence of the two witnesses, and the defendants' allegations in the cross bill, are to the effect that the defendant paid the intestate usury, eo nomine, it does not tend to show that such usury was included in the notes of May 23, 1872. Nor does the fact that banks took 8 per cent. have any such tendency. None of this evidence related directly to the giving of the notes of May 23, 1872, or to the indebtedness which was their consideration. Such an inference can rest only upon a presumption. Then, if it related to this indebtedness, it was to the effect that usury was paid, not that it was included in the notes, to be paid when the indebtedness was extinguished. That such is not legitimate testimony to establish that usury was included in the notes of May 23, 1872, is decided in Hammond. Smith, 17 Vt. 231. That was ejectment upon a mort. gage. The defense was that the notes were void for usury. Testimony was given that the defendant, while the debt was running, was heard to say to the intestate that he could not afford to pay him 12 per cent., as he had been paying; to which the intestate replied that money was worth 12 per cent., and, if the defendant did not wish to pay it, he might return the money. The court said this testimony had no tendency to show a usurious agreement when the mortgage was given. No more did the testimony of these witnesses, which related to transactions long before the giving of the notes of May 23, 1872, if it related to the indebtedness which was then secured by mortgage, have any legitimate tendency to show that usury was included in the notes. At most, it tended to show that usury had been paid on some of the indebtedness which went into those notes. If any presumption arose from that fact, it was that the defendant continued to pay usury on the other notes, not that usury was included in them. The fact that banks took a higher rate per cent. of interest than was lawful, some portion of the time, had no tendency to

show that the intestate took it; much less, that he included it in these notes. What there was in the kind of transactions between the parties which indicated some consideration other than legal rate of interest, the master has not informed us. We observe nothing in these transactions which has a tendency to establish that usury was included in the notes. That the intestate purchased a livery stock, paid for its feed, and helped sell it again, might indicate that the intestate would deserve, and perhaps demand, something for his services and trouble, but does not indicate that the demand took the form of usury, nor that, if it took such form, it was included in the notes. It could not have entered into the notes, for the livery transactions were subsequent to giving the notes. The master has left us in the dark in reference to what he discovered in the transactions which indicated that $200 of usury entered into these notes. We discover nothing in them having a tendency leading to such a result. We do not find any thing in the evidence referred to by the master, as all the evidence which influenced him in finding this fact, which had a legitimate tendency to establish it. The pro forma decree is reversed, and cause remanded, with a mandate to enter a decree for the orator in accordance with the views heretofore expressed.

TAFT, J., dissenting on first point.

STATE v. DEWEY. (Supreme Court of Vermont, General Term. Feb. 24, 1893.)

LIQUOR NUISANCE-FORMER ACQUITTAL.

On a trial for maintaining a liquor nuisance, evidence that defendant had been acquitted on a charge of keeping the identical liquor with intent to sell, etc., though not a bar to the present prosecution, was admissible in evidence, since a judgment on a particular point is, as between the parties, conclusive in relation to such point, though the subjectmatter of the two suits be different.

Exceptions from Washington county court; Thompson, Judge.

Peter G. Dewey was convicted of maintaining a common nuisance, in violation of R. L. § 3836, and excepts. Exceptions sustained.

Zed S. Stanton, State's Atty. John H. Senter, for respondeut.

TYLER, J. This was an information for keeping and maintaining_a_common nuisance, under section 3836, R. L., which is as follows: "Every saloon, restaurant, grocery, cellar, shop, billiard room, barroom and every drinking place or room used as a place of resort where intoxicating liquor is unlawfully sold, furnished, or given away, or kept for selling, furnishing, or giving away unlawfully, and every place or room used or resorted to for gambling, shall be held to be a common nuisance, kept in violation of law." It was conceded at the trial that the place mentioned in the information was a place

of public resort, of which the respondent | was the proprietor and keeper; and the state's evidence tended to show that intoxicating liquor was kept by the respondent at the time and place charged, with the intent to sell, furnish, or give away the same, in violation of law, so as to render the place a common nuisance, under the section mentioned. The respondent's counsel offered to prove that the respondent had been tried and acquitted on the charge of keeping the identical liquor with intent to sell, etc., and claimed that the fact of keeping was res judicata. The state conceded the facts to be as stated in the offer, but claimed that the offenses were not the same in law, but separate and distinct, and that an acquittal or conviction of one was not a bar to a prosecution for the other. The respondent's counsel does not claim that a conviction or acquittal upon an information for keeping or selling intoxicating liquor is a bar to a prosecution for keeping or maintaining a nuisance, but that a judgment of another court upon the question whether this identical liquor, upon this identical occasion, was kept for sale, was competent evidence, and was either conclusive, or tended to show that it was not so kept as alleged in this information. The state's attorney relies upon State v. Lincoln, 50 Vt. 644: State v. Jangraw, 61 Vt. 39, 17 Atl. Rep. 733; and State v. Wheeler, 62 Vt. 439, 20 Atl. Rep. 601. In the first of these cases the complaint was for keeping a room used as a place of public resort, where intoxicating liquor was unlawfully kept. The respondent pleaded in bar that she had been prosecuted in the same court for owning, keeping, and possessing intoxicating liquor with intent to sell, etc., and had been convicted thereof for selling a half pint of whisky to one John Root, and that the crime charged in the complaint and the crime of which she had been convicted were one and the same act, namely, the sale of the half pint of whisky to Root. It was held that the two crimes were different in kind and degree, and created by distinct and independent statutes; that evi. dence that would have justified a conviction under one complaint might not justify a conviction under the other; that a plea of a former conviction or acquittal must be for the same act and crime; and that the offense charged in both cases must be the same in fact and in law. demurrer to the plea was sustained. The other cases were decided upon the same ground. In each of them a plea of a former acquittal, or a former conviction of a different statutory offense, was interposed, and was held insufficient. In this case the record of a former acquittal of the charge of the same keeping as alleged in the information was offered in evidence, as bearing upon one material fact that must be established in each case to obtain a conviction. The evidence was admissible, upon the principle that will be found to run through nearly all the American cases, -that the judgment of a court of competent jurisdiction directly upon a particular | point is, as between the parties, conclusive in relation to such point, though the purpose and subject-matter of the two suits

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be different; hence a judgment may not only be evidence, but conclusive evidence, in relation to such point, and still be no bar, strictly and technically speaking, to a second action. See cases cited in respondent's brief; 2 Starkie, Ev. 183, 184; Spencer v. Dearth, 43 Vt. 102; Lindsey v. Danville, 46 Vt. 144; Gayer v. Parker, (Neb.) 39 N. W. Rep. 845. Exceptions sustained, sentence vacated, judgment reversed, and cause remanded.

GILSON v. DELAWARE & H. CANAL CO. (Supreme Court of Vermont, General Term. Dec. 22, 1892.)

NEGLIGENCE-PROXIMATE CAUSE OF INJURY.

In an action for damages for flooding plaintiff's quarry, it appeared that defendant railway company, by an embankment, diverted a water course into two abandoned quarries just above plaintiff's, and separated from it by what appeared to be a solid wall of rock. From these quarries the water ordinarily had an exit, but at the time of the damage in question it rose unusually high, and the pressure caused the wall of rock to give way, letting the water into plaintiff's quarry. Defendant attempted to show contributory negligence in plaintiff, in that his predecessors, previous to the construction of defendant's road, had, in the excavation of their quarry, encroached on the lands of the quarry above, thereby weakening the dividing wall. Held, that this was not the proximate cause of injury, and did not constitute negligence, for plaintiff's predecessors could not have anticipated the building of defendant's road and the wrongful diversion of the brook, and their act in working out of bounds was not wrongful as to defendant, to whom they owed no duty, even if it was so as to the owner of the abandoned quarry.

Exceptions from Rutland county court; Thompson. Judge.

Action by E. P. Gilson, receiver, against the Delaware & Hudson Canal Company, to recover damages for the diversion of a water course, whereby plaintiff's quarry was flooded. Judgment was entered in favor of plaintiff, and defendant excepts. Judgment affirmed.

The plaintiff brought suit as the receiver of the Dorset Marble Company. His evidence tended to prove that the defendant had, by the construction of its railroad embankment, diverted an ancient water course from its accustomed channel into his quarry, and had also collected and discharged surface water into said quarry. The railroad of the defendant, at the point complained of, was constructed in 1884, along a steep hillside. At one point there had been for many years a water course which drained at certain seasons of the year a considerable territory, but which during a considerable portion of the year was entirely dry. From the point where this water course crossed the line of the defendant's railroad the land gradually descended towards the quarry of the plaintiff. In constructing its railroad the defendant made no provision for the passage of the water running in this water Course underneath its track, and the complaint of the plaintiff was that the defendaut had thereby diverted this water course, and discharged it, together with the surface water which was collected by

this embankment, into his quarry. The land, at the point where the water course crossed the line of the defendant's railroad, belonged to the Vermont Marble Company, as did the land between that point and the plaintiff's quarry. Upon this land of the Vermont Marble Company, and in close proximity to the defendant's quarry, were two abandoned quarries, owned by said Vermont Marble Company, and these abandoned quarries were partially filled with water at all times. The effect of the defendant's embankment, as constructed, was to deflect whatever water ran in the water course and whatever surface water ran down the sidehill, and to conduct it along the side and into the first of these abandoned quarries. When this quarry became filled with water the water would overflow into the second abandoned quarry, which lay adjacent to the quarry of the plaintiff. This quarry was separated from the plaintiff's quarry by what appeared to be a solid wall of rock, and this dividing wall rose to such a height upon the surface that the water would flow over the track of the defendant before passing into the quarry of the plaintiff. From the depression around the first abandoned quarry a culvert was constructed underneath the defendant's track. The claim of the defendant was that this culvert was sufficient to carry off the water which was conducted as above described into the first abandoned quarry, and there was no question but what it had proved sufficient from 1884, when the embankment was constructed, down to the time of the injury. In January, 1888, occurred a freshet which the witnesses described as the most serious ever known in that locality. In the course of this freshet large quantities of water ran down the hillside, were turned by the defendant's embankment, and discharged into the first abandoned quarry. This quarry was filled up by the unusual flood of water, and thereupon the water overflowed into the second abandoned quarry, rising in that quarry to a point considerably above that at which it ordinarily stood. From this quarry it burst through the dividing wall which separated it from the plaintiff's quarry, whereby the damage complained of was done. The evidence of the defendant tended to show that the ancestors of the plaintiff, at some time previous to the construction of the defendant's railroad, had, in the excavation of the plaintiff's quarry, encroached some 8 or 10 feet upon the lands of the Vermont Marble Company, and thereby so weakened the dividing wall that it had burst through under the pressure of the water. The defendant clained that if the ancestors of the plaintiff had trespassed upon the lands of the Vermont Marble Company, and in so doing so weakened the dividing wall as to occasion the injury in question, the plaintiff could not recover, and requested the court to so instruct the jury. This the court declined to do, and instructed the jury that, in determining the issue involved, it was immaterial whether the plaintiff's ancestors had or had not worked over onto the land of the Vermont Marble Company, and that, if they had, it

would be no defense to this action, to which the defendant excepted.

F. G. Swinington, for plaintiff. C. A. Prouty, for defendant.

ROWELL, J. It is a maxim of the law that the immediate, not the remote, cause of an event is regarded. In the application of this maxim, the law rejects, as not constituting ground for an action, damage not flowing proximately from the act complained of. In other words, the law always refers the damage to the proximate, not the remote, cause. It is laid down in many cases and by leading text writers that, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury, it must appear that the injury was the natural and probable sequence of the negligence or the wrongful act, and that it was such as might or ought to have been foreseen in the light of the attending circumstances; but this rule is no test in cases where no intervening efficient cause is found between the original wrongful act and the injurious consequences complained of, and in which such consequences, although not probable, have actually flowed in unbroken sequence from the original wrongful act. This is well illustrated by Stevens v. Dudley, 56 Vt. 158, which was this: Defendant was a marshal at the fair, and, in chaining the track for a race, he turned off a man's team so negligently that the man was thrown from his wagon, his horse broke loose, and ran against plaintiff's wagon, and injured him. The court below charged that defendant was not liable unless he might reasonably have expected plaintiff's injury to result from his act. Held error, and that the court should have charged that if the defendant negligently turned the team off the track, and thereby the team was deprived of the control of a driver, and became frightened, and ran over plaintiff's team, and caused the injury, without any superior, uncontrollable force, or without the negligence of a responsible agent, having intervened, the defendant would be liable, although he did not anticipate, and might not have anticipated, such consequences from his negligent act; in other words, that the court should have charged that if defendant's act was negligent, and in the natural order of cause and effect the plaintiff was injured thereby, the defendant was liable. Smith v. Railway Co., L. R. 6 C. P. 14, in the exchequer chamber, is to the same effect. There the company's workmen, after cutting the grass and trimming the bedges bordering the railway, placed the trimmings in heaps between the hedge and the line, and allowed them to remain there for several days during very dry weather, which had continued for some weeks. A fire broke out between the hedge and the rails, and burned some of the heaps of trimmings and the hedge, and spread to a stubble field beyond, and was thence carried by a high wind across the stubble field and over a road, and burned plaintiff's cottage, 200 yards away from where the fire began. There was evidence that an engine

had passed the spot shortly before the fire was first seen, but no evidence that it had emitted sparks, nor any further evidence that the fire originated from the engine; | nor was there any evidence that the fire began in the heaps of trimmings, and not on the parched ground around them. The court below held that the plaintiff could not recover, because no reasonable man would have foreseen that the fire would consume the hedge, and pass across a stubble field, and so get to plaintiff's cottage, at a distance of 200 yards from the railway, crossing a road in its passage. In the exchequer chamber, Chief Baron Kelly said that he felt pressed, at first, by this view, because he then and still thought that any reasonable man might well have failed to anticipate such a concurrence of circumstances as the case presented; but that, on consideration, he thought that was not the true test of defendant's liability; that it might be that defendant did not anticipate, and was not bound to anticipate, that plaintiff's cottage would be burned as the result of its negligence; but yet, if it was aware that the heaps were lying by the side of the rails, and that it was a dry season, and that, therefore, by being left there, the heaps were likely to catch fire, defendant was bound to provide against all circumstances that might result from this, and was responsible for all natural consequences of it; and with this agreed all the judges. Channell, B., said that, where there is no direct evidence of negligence, the question what a reasonable man might foresee is of importance in considering whether there is evidence for the jury of negligence or not; and Mr. Justice Blackburn said that what the defendant might reasonably anticipate was material only with reference to the question whether it was negligent or not, but could not alter its liability if it was negligent. In Rylands v. Fletcher, L. R. 3 H. L. 332, (in the house of lords,) Lord Cranworth says that, in considering whether a defendant is liable to a plaintiff for damage that the latter has sustained, the question in general is not whether the defendant has acted with due care and caution, but whether his acts occasioned the damage; that this is all well explained in the old case of Lambert v. Bessey, T. Raym. 421, reported by Sir Thomas Raymond; that the doctrine is founded in good sense, for where one, in managing his own affairs, causes, however innocently, damage to another, it is obviously only just that he should be the party to suffer; that he is bound so to use his own as not to injure another. In Smith v. Fletcher, L. R. 7 Exch. 305, defendants' mines adjoined and communicated with plaintiff's mines, and on the surface of defendants' land were certain hollows and openings, partly caused by defendants' workings, and partly made to facilitate them. Across the surface of defendants' land there ran a brook, which they had diverted from its original course into an artificial channel they had made, and which, by reason of exceptionally heavy rains, overflowed its banks, and quantities of water poured from it into said hollows and openings, where already the rains had caused an un.

usual amount of water to collect, and thence, through fissures and cracks, water passed into defendants' mine, and so into plaintiff's mine. If the land had been in its natural condition, the water would have spread over the surface, and done no harm. The defendants tendered evidence to show that they had taken every reasonable precaution to guard against ordinary emergencies, and that they had, by diverting and improving the watercourse, and otherwise, greatly lessened the chance of water escaping from the surface of the land into their own mines, and thence into the plaintiff's mine; and contended that they were not liable for the consequences of an exceptional flood. It was conceded that they had not been guilty of any personal negligence; but the court ruled that they were absolutely liable for the consequences, and rejected the evidence, and a verdict was taken for the plaintiff, which was allowed to stand. Baron Bramwell, in disposing of the case in banc, said that the defendants, for their own purposes, and without providing the means of its getting away without hurt, brought the water to the place whence it escaped, and did the mischief, and that that made a case against them calling for an answer, and that they answered: "We brought the water there, indeed, and did not provide a sufficient outlet for it; but, had we not altered the original course of the stream, it would have escaped in greater quantities, and done more mischief, "which, he said, was no answer. See Cahill v. Eastman, 18 Minn. 324, (Gil. 292.)

In the case at bar the defendant, for purposes of its own, wrongfully turned the brook from its natural channel, and let it flow towards plaintiff's quarry, not knowing what would happen, whereby large and unusual quantities of water were brought to and accumulated in the marble company's abandoned quarries, and it was the duty of the defendants to see that no damage was thereby done; and the fact that it did not know, and had no reason to suspect, that the plaintiff's predecessors had worked their quarry out of bounds, and thereby weakened the wall between it and the adjacent quarry, makes no difference, unless such fact constitutes contributory negligence imputable to the plaintiff. Now, an act or omission of a party injured, or of those for whose acts and omissions he is responsible, in order to constitute contributory negligence, must have related to something in respect of which he or they owed to the defendant, or to those in whose shoes he stands, the duty of being careful, and have been negligent, and, in the production of the injury, have operated as a proximate cause, or as one of the proximate causes, and not have been merely a condition. It follows, therefore, that when there is no duty there can be no negligence. In working their quarry, the plaintiff's predecessors did not know, and could not possibly anticipate, the then nonexistent circumstances,-that years afterwards the defendant would build a new road where it did in 1884, and wrongfully turn the brook into the quarries above, whereby their quarry would be endangered if they weakened the wall

by working out of bounds. Their act in this respect was not wrongful as to the defendant, and they owed the defendant no duty concerning it, and therefore negligence is not predicable of it, even though it was wrongful as to the marble company, with the rights of which the defendant in no way connects itself. The state of the wall, legally considered, was not a proximate cause of the injury, but was merely a condition that made the injury possible. Judgment affirmed.

STATE v. HORNER et al. (Court of General Sessions of the Peace and Jail Delivery. New Castle County, Delaware. Feb. 14, 1893.) OBSTRUCTING JUSTICE-INDUCING WITNESS TO ABSENT HIMSELF.

Where a person who it is known will be a witness on the trial of an indictment, he having been the most important witness before the grand jury, is solicited and bribed to absent himself from the place of trial, those so persuading him are guilty of an attempt to obstruct public justice, whether or not he has been summoned or recognized to appear on the trial.

Jobn J. Horner and John T. Spring were indicted for attempting to obstruct public justice. Motion by defendants that the jury be instructed to return a verdict of not guilty. Denied.

John R. Nicholson, Atty. Gen., for the State. H. H. Ward, for defendants.

ROBINSON, C. J. Gentlemen: We are now ready to deliver our opinion upon the motion made yesterday by Mr. Ward, but before doing so it will be necessary for us to review the facts which, under this motion, must be accepted as proved.

On or about the 29th day of June last one James W. Horner was charged before *the municipal court of this city with selling intoxicating liquors to Jerry Sullivan, a minor, and was then required to, and did, enter into recognizance" to be and appear before the next court of general sessions of the peace and jail delivery to be held at Wilmington, in and for New Castle county," there to answer said charge. At the same time Jerry Sullivan, the minor to whom the liquor was alleged to have been sold by said James W. Horner, also entered into a recognizance to appear at said court, as stated therein, "as a witness in the case of the State of Delaware vs. James W. Horner,-selling liquors to minors." The September term was the then next term of the court of general sessions for this county, and Jerry Sullivan, in compliance with the terms of his recognizance, appeared at the court, and testified before the grand jury, and upon his testimony, with that of others, a true bill of indictment was found against said James W. Horner for the offense of selling liquor to said Jerry Sullivan, a minor. The case was not tried at that term, but was continued to the November term. At the November term James W. Horner pleaded guilty to the indictment. But in the mean

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time, as Jerry Sullivan says, (and what he says must at this time be taken as true,) he, at the suggestion of Charles H. Clayville, a police officer in this city, met John Horner, one of the defendants, at Eleventh and Kirkwood streets, in this city, on Wednesday, the 16th of November,-being the Wednesday before the court which began on Monday the 21st. Horner asked him if he bad anything against Jim. He answered "No, I have nothing against Jim." "Well," said Horner, "how would you like to make it easy on him?" and asked him how he would like to go away until after court, and said, "Then go away until after this November court is over. Witness said he did not know; hewas under bail. They then parted, after making an engagement to meet there that night. In the evening John T. Spring, the other defendant, met witness, instead of John J. Horner, and went with him to Horner's barber shop, in this city. There Horner called him aside, and said in a whisper, "Jerry, did you make up your mind yet?" Witness said, "No," he had not made up his mind. Horner said to him, "I will give you $25 to go away until after court," and said, "When you are away, you write to me or Jim; if you want any more money we will send it to you. By "Jim" the witness says he understood John J. Horner's brother, James W. Horner. To that offer the witness replied, "All right," but said also that he did not know. During the conversation Horner asked Spring, When do the warrants come out?" Spring said he did not know, but that he would go up to the courthouse to find out. Then John T. Spring, one of the defendants, and witness, left the barber shop, and made an appointment to meet again at Eleventh and Church, at 6 o'clock the next evening, which would be Thursday evening. They met at the time and place appointed, and went to the depot, where Spring gave witness two sums of five dollars each, and witness bought a ticket for Philadelphia, and left for that city and New York. In consequence of a message he received while in New York, witness came back to this city on Monday, reaching here Monday evening, and appeared in the court room on Tuesday morning.

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The state insists that by establishing these facts they have proved the offense of obstructing public justice by persuading a witness to absent himself, and that the defendants are guilty in manner and form as they stand indicted. But Mr. Ward has requested us to direct the jury to return a verdict of not guilty, because, he says, at the time of the solicitation Jerry Sullivan was neither bound by recogni. zance to appear, nor was he under subpœna to appear. His contention is that, in order to constitute the offense of spirit. ing away a witness, the party persuaded must have been summoned or recognized to appear. The learned counsel does not deny that the offense of spiriting away a witness is an indictable offense at com. mon law. It was early recognized as being absolutely essential to the existence of courts and their efficiency in performing the functions for which they were created that such offenses against them should be