"That court, however, in the same case held further that it was unnecessary to prove the specific intent by direct, positive, and independent evidence, but, as the court remarked by quoting from one of its own earlier decisions, 'the jury may draw the inference, as they draw all other inferences from any facts in evidence which to their minds fairly prove its existence,' and then added, 'and in considering the question they may and should take into consideration the nature of the defendant's acts constituting the assault, the temper or disposition of mind with which they were apparently performed,

whether the instrument and means used were naturally adapted to produce death, his conduct and declarations, prior to, at the time, and after the assault, and all other circumstances calculated to throw light upon the intention with which the assault was made.'"

The court erred in giving the instruction in this kind of a case.

[5] 3. The defendant contends that the admission of the evidence of absent witnesses given at the preliminary examination over his objection was error. The objection was as follows:

"Mr. Blydenburgh. I object to the reading of this evidence before the jury at this time for the reason that it does away with the constitutional right of the defendant to be faced with the witnesses against him, and for this reason, further, that this testimony was taken in a hearing in which the same matters are not at issue. The question before the justice is whether a crime has been committed, and if there is probable cause that the defendant or the one accused is guilty. The question before this court for this jury is whether he is, beyond a reasonable doubt, guilty of the crime charged in the information, which is a different proposition. And the further reason that this testimony would show that there were objections to questions on cross-examination propounded by myself that were sustained by the justice, that there were objections made by myself that were overruled by the justice, and that I was unable to go into a full cross-examination, as I would have been allowed to do before this court. And there is still further objection-that a proper foundation has not been laid for the introduction of this testimony."

The defendant was present at the preliminary examination with his counsel, was confronted by the witnesses, was given an opportunity to cross-examine, and subjected the witnesses to a searching cross-examination. We discover nothing in the transcript of the evidence, the correctness of which is not questioned, which would indicate that defendant's latitude in cross-examination was narrowed to his prejudice in the manner of conducting the same. The right to use the evidence of absent witnesses given upon a former trial was held by this court in Meldrum v. State, 146 Pac. 596, and by the great weight of authority the same right prevails when the evidence is given before a committing magistrate, providing suffi

[6] It is said in section 336 (339), vols. 1 and 2, Jones on Evidence, that, when the foundation is laid, the hearsay character of the evidence so offered is removed, and that: "It has long been settled as one of the exceptions to the general rule excluding hearsay that the testimony of a witness given in a former action or at a former stage of the same action is competent in a subsequent action or in a subsequent proceeding in the same action, where it is shown that the witness is dead or that a valid legal reason exists for his nonproduction, that the parties and questions in issue are substantially the same, and that such former testimony can be substantially reproduced upon the second hearing. It is necessary, therefore, to consider the question having regard to these prerequisites."

The proof in the case here was solely by an ex parte affidavit of the county and prosecuting attorney which was admitted without objection. The deponent was present in court, and, had the defendant objected to the affidavit for the purpose for which it was offered, the state could have proved the same matters covered by the affidavit by oral testimony of the deponent.

[7] Conceding that the showing of the facts necessary to the admission of such former evidence should have been made by oral testimony, instead of by ex parte affidavit of the prosecuting attorney, the introduction and reading of the affidavit was not objected to. The only objection was after it had been read; such objection being that a sufficient foundation had not been laid. This we understand to refer to the sufficiency of the facts stated in the affidavit, and not to the competency of the affidavit itself to show such facts, and therefore the question as to the admissibility of the affidavit is not before us. It is not pointed out wherein the facts stated in the affidavit are insufficient as a foundation for admitting the evidence, otherwise than as to the alleged incompetency and form of the proof to which defendant directed his argument.

Other assignments of error are here presented, but, as the questions may not arise in another trial of the case, we do not deem it necessary to discuss them.

The judgment will be reversed upon the erroneous instruction above discussed, and the case remanded for a new trial. Reversed and remanded.

POTTER, C. J., and BEARD, J., concur.

(24 Wyo. 18) STOCKGROWERS' BANK OF WHEATLAND V. GRAY (two cases). (Nos. 786, 790.) (Supreme Court of Wyoming. Feb. 5, 1916.) 1. APPEAL AND_ERROR 1074-REVERSAL PREJUDICIAL ERROR.

If it was not prejudicial error for the trial court to allow amendment to the bill of exceptions, the Supreme Court cannot disturb the judgment on such ground.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4248-4252; Dec. Dig. 1074.]

2. EXCEPTIONS, BILL OF 59-AMENDMENT.

Where the trial court predicated its action in allowing amendments to the bill of exceptions upon the record, files, and what appeared therein, and in no instance relied upon the memory of a witness or his individual recollection, its action was proper.

[Ed. Note.-For other cases, see Exceptions, Bill of, Cent. Dig. §§ 106-111; Dec. Dig. 59.]

3. MASTER AND SERVANT 316 CONTRACTORS-STATUS AS EMPLOYÉS.

Where there was no contract, between a bank and parties erecting a new building for it, for the erection of the building, such parties were not independent contractors, but employés merely of the bank, and doing the work under its supervision.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. 88 1242, 1243; Dec. Dig. 316.]

4. MASTER AND SERVANT

316-INDEPENDENT CONTRACTORS-CHARACTER AS SUCH. The mere fact that parties, erecting a new building for a bank, were contractors therefor, with the bank, was not sufficient to give them the character of independent contractors, or to establish that they were treated as such, unless the contract itself was susceptible of such construction.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1242, 1243; Dec. Dig. 316.]

5. Master anD SERVANT

318-INDEPENDENT CONTRACTORS-ACTUAL RETENTION OF

CONTROL-LIABILITY OF MASTER.

Where, by the terms of their contract with a bank to erect a building for it, builders became independent contractors, but the bank, nevertheless, in fact retained control and supervision of the work, any negligence of the builders, resulting in injury to an adjoining landowner, was imputable to the bank.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1257, 1258; Dec. Dig. 318.]

6. Master and SERVANT ~330-INJURIES TO THIRD PERSON WORK OF INDEPENDENT CONTRACTOR-CONTRACT-BURDEN OF PROOF. In an action by an adjoining landowner against a bank for damages caused by its excavation for a new building, where the bank alleged as a defense that the excavating was done by independent contractors for the erection of the building, the burden was on the bank to prove the contract alleged.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. 330.]

7. MASTER AND SERVANT

support a jury finding that the bank had no contract to erect the building with both of two builders.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1270-1272; Dec. Dig. 330.1

8. Master and SERVANT 320-INJURIES TO THIRD PERSON-INDEPENDENT CONTRACTOR -LIABILITY FOR NEGLIGENT SELECTION.

Where a bank was negligent in making such a contract with unskillful and careless builders for the erection of its new building as to constitute them joint independent contractors, it was nevertheless liable to an adjoining landowner injured by the carelessness of the contractors in excavating, since the proxinegligence of the bank in procuring the work to mate cause of the injury was imputable to the be done by unskillful parties.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 1261; Dec. Dig. 320.] 9. MASTER AND SERVANT 316-INJURY TO THIRD PERSON WORK OF INDEPENDENT CONTRACTOR.

A bank employing a skillful and careful independent contractor to make an excavation not in its nature dangerous to adjoining properfor any injury to the adjoining owner in consety if done with reasonable care is not liable quence of the negligence of the contractor or his employés in excavating.

[Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 1242, 1243; Dec. Dig. 316.]

10. ADJOINING LANDOWNERS 4-RIGHT TO BUILD.

ing on its land, having due regard to the rights A bank had the right to construct a buildthe support of her building. of the adjoining lot owner so as not to weaken

[Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38-44; Dec. Dig. 4.]

11. ADJOINING LANDOWNERS 4-LATERAL SUPPORT-LIABILITY FOR EXCAVATION.

A bank, which employed builders to erect its new building, who excavated unskillfully, carelessly, and negligently without giving notice extent of the excavation in a time within which to an adjoining landowner of the character and such landowner could protect her building from impending danger, was liable for the damages resulting from its negligence and that of its

servants.

ROR.

THIRD PERSON-INDEPENDENT CONTRACTOR STATUS OF BUILDERS SUFFICIENCY OF

EVIDENCE.

In an action by an adjoining landowner against a bank for injuries from the excavation

882.]

14. APPEAL AND ERROR 1050-HARMLESS ERROR-ADMISSION OF EVIDENCE.

by excavating for its new building, caused the collapse of plaintiff's wall, the admission of evidence as to a conversation between plaintiff's husband and a vice president of the bank, in which the vice president guaranteed not to damage plaintiff's wall, which evidence failed as an express undertaking of the bank by reason of failure to show authority of the vice president as agent to bind the bank, was harmless to it in view of findings that it was negligent, etc., because such conversation neither enlarged nor imposed any greater obligation or duty on the bank than existed at the time it occurred.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. 1050.]

15. CORPORATIONS 491-ULTRA VIRES. Corporations are liable for ultra vires

torts. [Ed. Note.-For other cases, see Corporations, Cent. Dig. § 1902; Dec. Dig. 491.] 16. ADJOINING LANDOWNERS 4-DUTY OF EXCAVATORS-"TIMELY NOTICE."

A bank about to excavate for its new building was under legal duty to give due and timely notice to an adjoining landowner or her agent, "timely notice" being notice for a reasonable time before the proposed excavation for plaintiff to take the necessary measures to protect the wall and foundation of her building.

[Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38-44; Dec. Dig. 4.]

17. ADJOINING LANDOWNERS 4-DUTY OF EXCAVATOR-NOTICE.

Notice to an adjoining landowner that an excavation was to be made was not notice that it would be made in a negligent manner, but that ordinary and reasonable care and prudence would be used, and that the excavation would be made in a workmanlike manner.

[Ed. Note.-For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38-44; Dec. Dig. 4.]

18. ADJOINING LANDOWNERS 4-LATERAL SUPPORT-ACTION FOR INJURY TO BUILDING -EVIDENCE.

In an action by plaintiff for injury to her building through an excavation on adjoining land by a bank, where it was in issue under the pleadings whether timely notice that an excavation would be made was given plaintiff, evidence of a conversation between her husband and the vice president of the bank, in which the latter guaranteed that no injury would result to plaintiff, was admissible.

[Ed. Note.-For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38-44; Dec. Dig. 4.]

19. ADJOINING LANDOWNERS 4-LATERAL SUPPORT NEGLIINJURY TO BUILDING

GENCE.

In an action against a bank by an adjoining landowner for injuries to her building from an excavation, it was proper to consider on the issue of negligence the fact that the

soil had been soaked and rendered soft with rainwater from the roofs of the plaintiff's and the bank's buildings and the weight of the material of which plaintiff's building was constructed.

[Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38-44; Dec. Dig. 4.]

20. ADJOINING LANDOWNERS 4-LATERAL SUPPORT-DUTY OF EXCAVATOR.

The ordinary care required in excavating toward an adjoining landowner is the care and skill to meet the conditions which are apparent or known to the owner or contractor at the time of commencing the excavation, and, if the ex

cavation or the manner of making it is reasonably liable to injure the adjoining lot or building thereon, its owner is entitled to reasonable notice, so that he can protect his property. [Ed. Note. For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38-44; Dec. Dig. 4.]

21. ADJOINING LANDOWNERS 4-LATERAL SUPPORT-DUTY OF EXCAVATOR.

Where an excavation is made, the excavator cannot rely upon the inherent defects in the construction of an adjoining building to excuse him from liability for injury to it, in the absence of timely notice to the owner before excavating to give the latter opportunity to protect his property.

[Ed. Note.-For other cases, see Adjoining Landowners, Cent. Dig. §§ 21-36, 38–41; Dec. Dig. 4.]

22. DAMAGES 138 EXCESSIVENESS JURY TO REAL PROPERTY.

Where the jury is required to find the different items of damage to an adjoining landowner's property from an excavation, and to return them separately, and the amounts so found are within the proof, and, in the aggregate, are within the issues, the verdict is not excessive.

[Ed. Note.-For other cases, see Damages, Cent. Dig. §§ 397, 398; Dec. Dig. ~138.] 23. APPEAL AND ERROR 1011-REVIEW— QUESTIONS OF FACT.

The appellate court cannot review the finding of the trial court upon issues of fact as to which the evidence was conflicting.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3983–3989; Dec. Dig. → 1011.]

24. NEW TRIAL 49-CONDUCT OF PARTY TOWARD Juror.

The conduct of the husband of plaintif, who acted as her agent during the trial, in handing a cigar to a juror while leaving the court room at a recess, was reprehensible and sufficient ground for the trial court to set aside the verdict.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 97-99; Dec. Dig. 49.1 25. NEW TRIAL 49 PARTY.

MISCONDUCT OF

Whether the act of plaintiff's agent during trial in giving a juror a cigar was misconduct justifying new trial does not depend only on the intention with which the cigar was given, or whether he knew the donee was on the jury, but rather on the impression the occurrence would make on the mind of the juror.

[Ed. Note. For other cases, see New Trial, Cent. Dig. §§ 97-99; Dec. Dig. 49.] 26. APPEAL AND ERROR 1026-HARMLESS ERROR.

The Supreme Court can only reverse for prejudicial error appearing upon the record. [Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 4029, 4030; Dec. Dig. 1026.]

27. APPEAL AND ERROR

ARY RULINGS-NEW TRIAL.

978-DISCRETION

Where the appellate court cannot say from the record that the ruling of the trial court on its motion for new trial on account of the alleged misconduct of plaintiff's agent with a juror abused its discretion or erred in denying the motion, the ruling will not be disturbed.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. §§ 3866-3870; Dec. Dig. 978.]

Error to District Court, Laramie County: William C. Mentzer, Judge.

Actions by Rachael E. Gray against the Stockgrowers' Bank of Wheatland. To review a judgment for plaintiff and to review a denial of its petition after term to set aside the verdict and judgment and for new trial, defendant brings error. Judgments affirmed.

bill so as to make it appear that all of the affidavits in support of and in opposition to the motion for a new trial were included in the bill. The court refused to make this amendment upon the ground that it had no sufficient memoranda upon which to base the same. It appears that the lower court predicated its action in allowing the amend

ant in error.

SCOTT, J. These cases are docketed as separate cases, although they grew out of the same litigation and will be considered in this opinion in the order of their docket number. The bank was the defendant below and will here be referred to as the "bank," and Rachael E. Gray was plaintiff and in both cases will be referred to as such. Rachael E. Gray brought the action in the court below to recover damages for alleged negligence of the bank in excavating its lot which adjoined plaintiff's lot on which there was a one-story brick building, and causing the wall of her building to fall, to her damage. The issues were tried to a jury, which found a general verdict in plaintiff's favor, assessing her damages at the sum of $5,540, and at the same time returned answers to certain interrogatories which the court submitted to them at the request of the bank. Judgment was rendered upon the verdict, and the bank brings error.

[1, 2] 1. The bill of exceptions when first filed failed to disclose certain exceptions, among which was the exception to overruling the motion for a new trial, an exception to the refusal to give certain instructions requested by the defendant, and exceptions to the giving of certain instructions over the bank's objection and exception, as a predicate for this court to permit the withdrawal of the bill and present the same to the trial court for amendment in accordance with the facts. Permission was accordingly granted. 22 Wyo. 482, 144 Pac. 294. The trial court permitted the proposed amendments in part and denied them in part. The plaintiff now moves to strike the amendments so allowed from the bill. It is unnecessary to enter at any great length into the discussion of this question, for, if it were not prejudicial error to have allowed the amendment, we would be precluded from disturbing the judgment on that ground. It is conceded and no question is here urged that the amendment carrying the exception to the overruling of the motion for the new trial into the bill by amendment was properly allowed. The requests, objections, and certain exceptions in the matter of the instructions were carried into the bill upon proof independent of verbal testimony or the recollection of the judge. Among other matters which it was sought by the motion was to amend the

peared therein, and in no instance relied upon the memory of a witness or his individual recollection, and, that being so, we are of the opinion that that court acted clearmotion is denied. ly within its power, and for that reason the

2. It is assigned as error that the general verdict and special findings are not supported by the evidence, are contrary to law, and that the court erred in admitting cer

tain evidence over defendant's objection. These assignments involve an examination of the evidence and for convenience may be considered together. The special interrogatories were submitted to the jury at the bank's request, and the jury returned answers to all but the second and fourth. The interrogatories so submitted and answers, in so far as the jury made answers thereto, are as follows, viz.:

dom have a contract with the bank for the erection of the new bank building? No.

"(1) Did Charles Goodrich and Frank Win

"(2) If your answer to the above question is 'yes,' state whether the making of the excaterms of said contract. No answer. vation on the bank's lot was included in the

"(3) Did the bank have any control of the mode or manner in which said Goodrich and Windom were to do the work, other than to accept or reject the work as being in compliance or noncompliance with the terms of the contract? Yes.

"(4) Were the plans and specifications for the struction of said building, including the making bank building sufficient to secure a safe conof the excavation? No decision.

"(5) Were Goodrich and Windom careful and prudent contractors? No.

"(6) Was the work of excavating for said cellar a work that was necessarily dangerous to plaintiff's building situated on the adjoining lot? Yes.

Gray, have knowledge of the proposed excava"(7) Did plaintiff or her agent, Irad W. tion to be made on the bank's lot, before said excavation was begun? No.

they were going to excavate at or about the time such excavation was begun? Yes.

"(8) Did Mr. Goodrich notify Mr. Gray that

"(9) Was reasonable and ordinary care used in making the excavation on defendant's lot? No.

“(10) Would the soil of plaintiff's lot have slipped and fallen into the excavation, if there had been no building erected on plaintiff's lot? No.

"(11) If your verdict is for the plaintiff in any amount, please answer the following additional questions: (a) What amount, if any, do you allow plaintiff as damages for injuries to any, do you allow plaintiff as damages for in(b) What amount, if her building? $1,240. jury to her furniture and fixtures? $500. (c) What amount, if any, do you allow plaintiff as damages for injury to her stock in trade? $3,200. (d) What amount, if any, do you allow plaintiff as damages for injury to her business? $600."