whole. The bond has been paid in full. Surely the public can have no interest in exacting the pound of flesh.

Ordinarily, the administration of the laws is divided into two distinct jurisdictions, the civil and the criminal, each governed by rules of procedure, and by rules governing the admission and weight of testimony different and distinct from the other. The province of the civil court is, as its name indicates, to investigate civil rights. There its jurisdiction ends, or ought to end; while the province of the criminal court is, as its name imports, to investigate and punish crime and restrain its commission. And it is to the criminal and not to the civil jurisdiction that society looks for its protection against criminals. The object of punishment is not to deter the criminal from again perpetrating the crime on the particular individual injured, but for the protection of society at large; and as the state is at the expense of restraining and controlling its criminals, and as fines are imposed for the double purpose of restraining the offender and of reimbursing the state for its outlay in protecting its citizens from criminals, we are at a loss to know by what process of reasoning, either legal or ethical, the conclusion is reached that a plaintiff in a civil action, under a complaint which only asks for compensation for injuries received, is allowed to appropriate money which is supposed to be paid for the benefit of the state. It is to be presumed that the state has fully protected its own interests, or as fully at least as they could be protected by laws, when it provides for the punishment of crime in its criminal statutes, and fixes the fine at a sum which it deems commensurate with the crime designated; hence punitive damages cannot be allowed on the theory that it is for the benefit of society at large, but must logically be allowed on the theory that they are for the sole benefit of the plaintiff, who has already been fully compensated,-a theory which is repugnant to every sense of justice.

Again, while jurors should be the judges of the character and weight of testimony, that judgment should be exercised under some rule, and be amenable to some law, so that an abuse of discretion could be ascertained and corrected; but, under the doctrine of punitive damages, where the whole question is left to the unguided judgment of the jury, and where, under the very nature of the doctrine, no measure of damages can be stated, and hence no limits compelled, where there are no special findings provided for, it would not be often that a

court would be warranted in interfering with a verdict, if indeed it could do so at all, if the verdict fell within the amount asked as compensatory damages. Take the case at bar, for instance, and the court has no way of ascertaining whether the jury found that the plaintiff had actually been damaged to the full amount of two thousand five hundred dollars, or whether they found her actual damages to be five hundred dollars, and assessed the other two thousand dollars by way of punishment. It seems to us that a practice which leads to so much confusion and uncertainty in the administration of the law, and that is always liable to lead to injustice, the correction of which is impracticable, cannot be too speedily eradicated from our system of jurisprudence. In this connection, we quote approvingly the language of the supreme court of Indiana in Stewart v. Maddox, 63 Ind. 51. Says the court: "The doctrine of exemplary or punitive damages rests upon a very uncertain and unstable basis. It is almost equivalent to giving the jury the power to make the law of damages in each case; and in a case where the defendant is a commanding, popular, influential person, and the plaintiff of the opposite character, and the local and temporary excitement or prejudice of the time happens to be in favor of the defendant and against the plaintiff, the jury is apt to be reluctant in giving even pecuniary compensation without adding anything by way of exemplary or punitive damages; while in a case in which the character of the parties and the circumstances are reversed, the jury will be liable to push their power to an unwarranted and unconscionable extent, dangerous to justice and the security of settled rights."

Says the court in Murphy v. Hobbs, 7 Col. 541, 49 Am. Rep. 366: "The reflecting lawyer is naturally curious to account for this 'heresy' or 'deformity,' as it has been termed. Able and searching investigations made by both jurist and writer disclose the following facts concerning it, viz., that it was entirely unknown to the civil law; that it never obtained a foothold in Scotland; that it finds no real sanction in the writings of Blackstone, Hammond, Comyns, or Rutherforth; that it was not recognized in the earlier English cases; that the supreme. courts of New Hampshire, Massachusetts, Indiana, Iowa, Nebraska, Michigan, and Georgia have rejected it in whole or in part; that of late other states have falteringly retained it, because committed so to do; that a few years ago it was cor

AM. ST. REP., VOL. XXVI. — 54

rectly said: 'At last accounts, the court of queen's bench was still sitting hopelessly involved in the meshes of what Mr. Chief Justice Quain declared to be "utterly inconsistent propositions"; and that the rule is comparatively modern, resulting in all probability from a misconception of impassioned language and inaccurate expressions used by judges in some of the earlier English cases." And in support of this theory, the Colorado court quotes Mr. Justice Foster in Fay v. Parker, 53 N. H. 342, 16 Am. Rep. 270, who concludes a discussion of the expression "smart-money," as used by Grotius and jurists contemporary with that author, in the following language: "It is interesting, as well as instructive, to observe that 120 years ago the term 'smart-money' was employed in a manner entirely different from the modern signification which it has obtained, being then used as indicating compensation for the smarts of the injured person, and not, as now, money required by way of punishment, and to make the wrong-doer smart." Some courts have held that it was in violation of the constitutional guaranty "that no person should be twice put in jeopardy for the same offense," where the criminal code provided a punishment for the same offense, and some have restricted or limited its abrogation to cases where the act charged to have been committed was made punishable by law; but without expressing any opinion on the constitutional question, we believe that the doctrine of punitive damages is unsound in principle, and unfair and dangerous in practice, and that the instruction of the court on the subject of punitive damages was erroneous. With this view of the law, it is not necessary to examine the further objection urged by defendant, "that this was not a proper case for the application of the doctrine of punitive damages."

The judgment is reversed, and the case remanded for a new trial.

NEGLIGENCE - WHAT CONSTITUTES. -Negligence in a legal sense is the failure to observe, for the protection of another person, that degree of care, precaution, and vigilance which the circumstances demand, to avoid injury to him: Barrett v. Southern Pac. Co., 91 Cal. 296; 25 Am. St. Rep. 186, and note. Ordinary care means that degree of care which an ordinarily prudent and careful person would exercise under like circumstances: Winters v. Kansas City etc. R'y Co., 99 Mo. 509; 17 Am. St. Rep. 591; Tetherow v. St. Joseph etc. R'y Co., 98 Mo. 74; 14 Am. St. Rep. 617, and note; Dreher v. Fitchburg, 22 Wis. 675; 99 Am. Dec. 91, and note, citing cases where ordinary care is defined. Railroads are required to use such care and diligence in moving their trains as ordinarily prudent men would use under

the circumstances: Gulf etc. R'y Co. v. Hodges, 76 Tex. 90. A master must exercise such care to avoid injury to his servant as a person of ordinary prudence would use under the circumstances: Hoffman v. Dickinson, 31 W. Va. 142.

PUNITIVE DAMAGES — WHETHER Allowable in CIVIL ACTION. — In Fay ▼. Parker, 53 N. H. 342, 16 Am. Rep. 270, it is questioned whether punitive damages are ever allowable in civil actions.

REED V. TACOMA BUILDING AND SAVINGS ASSOCIA

TION.

12 WASHINGTON, 198.]

BOUNDARIES, PRESUMPTION THAT COURSES IN, ARE RUN ACCORDING TO TRU MERIDIAN. - Where a deed describes the boundary line of the land conveyed thereby as commencing at a point west of the northeast corner of a certain section, the presumption is, that the point is due west, notwithstanding the north line of the section is not on the true meridian. But this presumption may be rebutted by extraneous testimony. EJECTMENT. The opinion states the case.

Doolittle, Pritchard, and Stevens, and R. B. Lehman, for the appellants.

Garretson, Bracket, and Rosling, and Galusha Parsons, for the appellee.

DUNBAR, J. The description of the lands in the deed to plaintiff's grantor of that tract of land which is claimed to have been platted into Cavender's first addition is in the words and figures following to wit: "Situate, lying, and being in the county of Pierce, Territory of Washington, and bounded and described as follows, to wit: Commencing at a point 60 rods west of the northeast corner of section 8, in township 20 north, of range 3 east; running thence west 20 rods, south 8 rods; thence east 20 rods; thence north 8 rods, — containing

one acre."

The plaintiff proved a straight title to the premises in question from the United States patent, down to and including the the deed received by him from his grantor; but owing to the fact that the north line of said section 8 did not run due west, as indicated by the true meridian, or in other words, did not run parallel with the meridian line, but diverged from the true west line to the north, the main questions are as to the actual location on the face of the earth, of the north line

of the notheast quarter of section 8, as the same runs west from the northeast corner of said section, and whether the deed should be construed to mean west according to the true meridian, or west according to the government survey. On this question the court instructed the jury as follows: "Plaintiff also introduces in evidence a duly certified copy of the several deeds and plats under which it claims title to said lots of land. I instruct you as a matter of law, therefore, that according to the meaning of the language in those deeds, the north line of Cavender's first addition to Tacoma, Washington Territory, in Pierce County, should be laid out on an east and west line starting from the northeast corner of section 8, in township 20 north, of range 3 east, and running thence west according to the United States survey; and that when those deeds upon which the plaintiff relies for its title mentioned, as a beginning point, sixty rods west of the northeast corner of said section 8, the construction in law is, that such beginning point is on the north line of section 8 according to the United States survey thereof"; which instruction defendant duly excepted to, and assigns as error herein. There were some subsequent instructions that might tend somewhat to modify the rule laid down by the court in the instruction quoted; but that the court substantially instructed the jury that the presumption was conclusive; that west in said deed meant west according to the government survey, and that that was plaintiff's theory of the case, is borne out by the oral argument of the attorneys for the appellee, as well as by the statement in its brief that "unless defendant's counsel can maintain their claim upon the main question of a right to controvert the government's surveys, the rulings and instructions are clearly right. If they can maintain that claim, it would be a waste of time to discuss the rulings, as they assume the contrary." We think it is clear that under the description above set forth the government surveys may be contradicted, or, probably more properly stated, ignored. Of the many cases cited by counsel, we have been unable to find any that will elucidate or throw any light on the very practical question involved in this case.

We do not think that the mere reference to the northeast corner of section 8, as it is referred to in the deed, is sufficient to raise the presumption that the parties intended to be governed by the United States surveys, but that it was referred to simply as a known point, the same as any monument or spe