made while he was owner of the land and upon the land, introduced by a party claiming adversely to the grantee, cannot be explained or contradicted by evidence of such grantor's declaratious made on other occasions in behalf of the same title, whether the last declarations were made before or after the conveyance to the grantee. It was not a legal contradiction. It was unsworn evidence. The fallacy of the idea of allowing the testimony to be received consists in looking upon the former owner as a witness in the cause. The first declarations were made by him while standing in a condition the same as if a party to the present suit. His admissions against his own title were of the same quality of evidence as if spoken by the plaintiff himself. If a man's conversation in his favor be admitted against what he has said against his interest, then he would certainly be allowed to corroborate one statement by consistent statements made at other times, and no limit could be fixed in respect to such evidence. Opening the door so widely would lead to mischievous results. The question involved in the ruling does not appear to have received attention in our own State. It has been several times considered in Massachusetts, aud is there in each instance disposed of unfavorably to the plaintiff here. The case of Baxter v. Knowles, 12 Allen, 114, meets the point exactly, where it is said: "The declarations of the defendant's testator, from whom he claimed title, were not made admissible in his favor by the fact that his declarations at other times were given in evidence by the plaintiff as admissions." Pickering v. Reynolds, 119 Mass. 111, is also precisely in point. Me. Sup. Jud. Ct., March 8, 1887. Royal v. Chandler. Opinion by Peters, C. J.

INSANE PERSON.

JUDGMENT SETTING ASIDE Where a judgment by default is taken against a person of unsound mind, presumably after due service of process, by a good-faith holder of a commercial note obtained by fraud and without consideration by the original payee, the judgment defendant never having been judicially declared of unsound mind, and the plaintiff having no knowledge thereof, it will be set aside, and the guardian or administrator let in to defend, by simply showing that the defendant was of unsound mind when the note was executed and the judgment taken, and that it was without consideration. That the holder of the note and judgment plaintiff was an indorsee for value without notice does not alter the

case.

The maker of the note being at the time of unsound mind, he had no capacity to bind himself by contract. A purchaser of commercial paper is affected with notice of the status of disability of the maker. That the note was purchased in good faith before maturity presents no obstacle to a disaffirmance in case the maker had not the mental capacity to bind himself by contract, unless the note was originally taken in good faith upon a consideration which was reasonably necessary for or actually beneficial to the maker. Baxter v. Earl of Portsmouth, 5 Barn. & C. 172; Dane v. Kirkwall, 8 Car. & P. 679; Seaver v. Phelps, 11 Pick. 304; Boswell Insanity, § 290; Physio-Medical College v. Wilkinson, 108 Ind. 314. The protection of persons who are so unfortunate as to be bereft of reason, and incapable of managing their own estates, is of higher obligation, and an object more to be cherished by the courts, than is the protection of holders of commercial paper however innocent they may be. McClain v. Davis, supra; Moore v. Hershey, 90 Penn. St. 196; Wirebach v. First Nat. Bank, 97 id. 543; Van Patton v. Beals, 46 Iowa, 63; Mutual Life Ins. Co. v. Hunt, 79 N. Y. 541; 1 Dan. Neg. Inst. §§ 209, 210; Hull'v. Louth, 109 Ind. 315; Boswell Insanity, $$ 300, 301. There can be no contract unless there be a meeting of minds, and there can be no meeting of minds if one party has

THE GROWTH OF CODIFICATION. - The American methods of legislation have gone far beyond the English law in reducing rules of jurisprudence to statutory form. Our system seems to require written law. Even our organic law-the Constitution-owes much of its peculiar efficacy to the fact that it is a written Constitution. Our statutes share the same tendency. While the discussion of codification goes on, and its opponents conceive that they are preventing codification, the process of codifying goes steadily on in the multiplicity of special statutes and local efforts. The great schemes of doing it all at once seem to halt, but meanwhile, like crystallization, the process is seen to start into operation spontaneously, as it were, in every part of the mass. The law of municipal corporations, so far as needed for the wants of a praticular city, is recast every year for some city or other. The law of savings banks, the law of insurance companies, the law of half a dozen other subjects, already shows the same movement. The desire for and appreciation of such statutes outruns their growth. Who would be willing to give up the New York City Consolidation Act? Very few, we imagine, if indeed any, who have any thing to do with business under it. Notwithstanding its futile and sometimes misleading duplication of general laws, merely for the sake of an ideal completeness, it is a great convenience, and although it gives rise to frequent questions of construction, it settles and precludes a great many more. This process is continually necessitated by the increase of incongruous laws, which multiply faster than the profession can master them. The materials for the revisory part of the work grow faster than the present efforts to meet it. All abstract discussions of the expediency of codification will sooner or later be superseded by a sense of necessity; and the school of philosophers who declare it chimerical will be silenced by their own efforts here and there to aid or promote it. -New York Daily Register.

Y. 369, the learned judge says the opinion expressed in Clark v. Davenport, 95 N. Y. 477, was only a side blow put by way of argument.' As side blows appear to be obiter,' would it not be well for the judges to advise, in some way, when they intend to strike direct from the shoulder?" What can you expect, so long as law is made up of the dicta of the judges?

Another correspondent, who does not favor us with his name, informs us that it was Opie, and not Turner, who said he mixed his paints with brains. At all events Turner ought to have said it, for he had more of the solvent at command.

America, i. e., the United States, is the paradise of married women. Here is a touching decision, in Spear v. Hiles, 67 Wis. 350, an action for malicious prosecution, holding that where husband and wife were wrongfully arrested and jailed, and the hardhearted jailer, according to the rules, kept them in separate cells, this may be considered in the award of damages. We should say so, decidedly; the idea of thus treating a timid, tender-hearted woman! We wonder however if the defendant ought not to have been allowed to show that she was in the habit of delivering Caudle lectures?

In Penny v. Hanson, 18 Q. B. D. 478, Penny, known to his admirers as "Neptune the Astrologer," had been convicted of unlawfully pretending to tell fortunes and deceive and impose on one Khurt, and the conviction was affirmed. Against this magisterial conviction he appealed, but with no success. Denman, J., observed: "Res ipsa loquitur. It is absurd to suggest that this man could have believed in his ability to predict the fortunes of another by knowing the hour and place of his birth and the aspect of the stars at such time. We do not live in times when any sane man believes in such a power. I think the magistrate was right, and that there was an intention to deceive on the part of the appellant in professing his ability to tell the fortune of Khurt." The Law Quarterly Review, says: "These words of Mr. Justice Denman should be noted by Mr. Lecky whenever he publishes another edition of his History of Rationalism. They mark the fall of an old belief. It is certain that two centuries ago men of first-rate ability believed that fortunes could be foretold from the aspect of the stars. We may even doubt whether his lordship's enlightenment does not mislead him as to the average condition of modern belief.

Not many years have passed since excellent persons believed in table-turning. Educated men have supposed that they could learn a good deal from what a child saw, or said he saw, in a crystal ball. The belief in astrology is more venerable, and certainly not more irrational, than the belief in the miracles at Lourdes. From a theoretical point of view Mr. Penny might have a good deal to say for himself; practically, it is no doubt desirable that Neptune the Astrologer

and the like should be treated as the rogues which they are generally found to be by their dupes." The Review need not have used the past tense in respect to table-turning. The "spiritualists" in this country to-day number millions-literally millions-and "seances" are regularly held all over the land, in which the deluded believers imagine themselves in conversation with the spirits of dead friends. "Mind cure" and "faith cure" are the latest craze. One of the exponents of these ridiculous fantasies, a woman, issues a pamphlet entitled "Personified Unthinkables." Another one, still a woman, makes a larger income at the cultured "Hub" than the president of the United States, and writes that to deny her miraculous power is to commit the unpardonable sin. Most of the disciples of these humbugs are women. It is not many years since the "blue glass craze died out. Railway statistics show that travel on Friday is very much less than on any other day in the week-attributable, beyond question, to the superstition about the unlucky day. Superstition is common; it has simply lost its power to persecute for disbelief.

NOTES OF CASES.

'N Milton v. State, Texas Court of Appeals, March

rape by means of the use of chloroform comes within the meaning of fraud, and cannot be construed to be force. The court said: "The charge in the indictment is an assault with intent to commit rape by means of force alone. It is very clearly shown by the evidence that the means used to accomplish the intended crime was fraud, and not force. It was by means of the use of chloroform upon the sleeping woman that the rape was attempted, and intended to be accomplished. Such a means comes within the meaning of 'fraud,' as defined by the statute, and cannot be construed to be force. Penal Code, arts. 529–531. The court in its charge properly limited the jury to a consideration of the offense charged in the indictment; that is, an assault with intent to commit rape by means of force. There is not sufficient evidence to warrant a conviction for the offense charged in the indictment; and although the evidence is amply sufficient to sustain a conviction for the offense of an attempt to commit rape by means of fraud, this conviction cannot stand, because the indictment does not allege such offense. It is not competent to indict for an assault with intent to rape, and convict upon evidence establishing an attempt to rape by fraud. An assault with intent to rape can only be established by proof of force, or attempted force. This offense cannot be committed by means of threats or fraud. offense of an attempt to commit rape may however be committed by the use of such means. Burney v. State, 21 Tex. App. 565." What technical nonsense!

The

In Texas P. Ry. Co. v. Richards, Texas Supreme Court, May 30, 1887, it was held that a statute of one

State, by which a right of action for personal injuries survives, will not be enforced by the courts of another State, where the common law, by which such cause of action dies with the person is unchanged. The court said: "There are three classes of cases in which the question may arise as to whether a right given solely by the statutes of one State will be enforced in the courts of another. (1) Cases in which a right given by the statute of one State is sought to be enforced in the court of another, in which laws exist giving a like right under the same facts; and in this class of cases, while there is some conflict of decision, it seems to be generally held that courts of the latter State will recognize and enforce the right given by the statutes of another State. Dennick v. Railroad Co., 103 U. S. 17; Boyce Railroad Co., 63 Iowa, 72, Leonard v. Navigation Co., 84 N. Y. 48. The facts of the case before us do not bring it within this rule, and it becomes necessary to consider what, if any, qualifications ought to be made to it. (2) When facts transpire in a State whose laws give no right of action upon them, and an action based on those facts is brought in another State under whose laws a right of action would exist had the facts transpired within its jurisdiction. In this class of cases it is held that no action can be maintained. Within this class fall the following cases: Willis v. Railroad Co., 61 Tex. 432; Whitford v. Railroad Co., 23 N. Y. 465; Needham v. Railroad Co., 38 Vt. 295; State v. Railroad Co., 45 Md. 41; Le Forest v. Tolman, 117 Mass. 109. (3) Cases in which a right of action given by the statutes of one State is sought to be enforced in a State whose laws deny the right given by the statutes of another; and in this class of cases it would seem necessarily to follow that the courts of the State in which the action is brought would be compelled to follow the law of the State in which it sits, whose laws only it has the power to enforce. This would seem to be true whether the law of such State affected the right or only the remedy. We know of no rule of law which would authorize a court of this State to give effect to the laws of another State conferring such right as is claimed in this case, when the laws of this State declare that the same facts, transpiring here, as are made the basis of the appellee's claim, could confer no right whatever to the relief sought. The most liberal State comity cannot, in reference to such a matter as that before us, require our State to enforce the laws of another when in conflict with its own law." See Davis v. N. Y. & N. E. R. Co., 143 Mass. 301; S. C., 35 Alb. L. Jour.; 58 Am. Rep. 138, and note, 143.

In Price v. Supreme Lodge Knights of Honor, Texas Supreme Court, it was held that the assignment by one of an insurance policy issued upon his own life to his cousin who lives with him as an adult male member of his family, and is independent of the insured for employment and support, upon an agreement by the assignee to pay the assessments necessary to keep the policy in force, is void. The court

said: "It is almost universally conceded that policies procured by persons having no interest in the life of the insured are void at common law, as against public policy. The policyholder has nothing to lose for which he can claim indemnity; on the contrary, his interest is in early death of the insured. When that occurs he ceases to pay premiums, and receives the amount of the policy. This creates a temptation to destroy human life, and the common law forbids the contract. These are the grounds upon which such policies are held to be void. Are they applicable to a case where the policy is first taken out by the person whose life is insured, and then transferred by him to one who has no interest in his life?. It is pretty generally held that if a person effects insurance upon his own life, and in pursuance of a previous agreement, immediately, and without consideration, transfers the policy to one who has has no interest in his life, but who agrees to pay the premium upon the policy, it will be void. Swick v. Ins. Co.. 2 Dill. 160; Stevens v. Warren,'101 Mass. 564; Mowry v. Ins. Co., 9 R. I. 346. And it has been held by the Supreme

Court of the United States that a transfer would not

be enforced under such circumstances, though the insured were indebted to the assignee in a small sum disproportionate to the amount of insurance on his life; but the policy would be deemed security for the debt, and such advances as might afterward be made on account of it. Cammack v. Lewis, 15 Wall. 643. Is there such difference between the principles upon which these decisions rest, and those applicable to the sale of a policy already procured to an assignee having no interest in the assured, as to make the latter lawful, while a policy procured without interest, and an assignment in pursuance of a previous agreement, are held invalid? The Supreme Court of the United States, in the case of Warnock v. Davis, 104 U. S. 775, says it cannot see any such difference; and proceeding upon this view, many of the State courts have held such assignments void, or treated the assigned policies as mere securities for the moneys actually advanced by the assignee. Ins. Co. v. Hazzard, 41 Ind. 116; Ins. Co. v. Sefton, 53 Ind. 380; Ins. Co. v. Sturges, 18 Kan. 93; Gilbert v. Moose, 104 Penn. St. 74; Basye v. Adams, 81 Ky. 368. This too is the conclusion to which many eminent text writers have arrived. May Ins., § 398; Greenh. Pub. Pol. 288. On the contrary, the courts of several States have held such assignments valid, though the assignee could not have taken out for his own benefit an original policy upon the life of the assignor. Clark v. Allen, 11 R. I. 439; Marcus v. Ins. Co., 68 N. Y. 625; Clark v. Durand, 12 Wis. 223; Ins. Co. v. Allen, 138 Mass. 24. We think those decisions which hold these assignments invalid are based upon the more satis factory reasoning. When the policy is transferred it becomes the property of the assignee. He is subject to all the obligations imposed by it, and entitled to all its benefits. He becomes the holder of a policy upon the life of a person whose early death will bring him pecuniary advantage. The tempta

tion to bring about this death presents itself as strongly to him as to a party who originally effects insurance for his own benefit upon the life of another. Public policy removes the temptation to take human life, and it cannot matter how that temptation is brought about. If by reason of a contract between two persons, the one is tempted by pecuniary interest to destroy the other, the form of the contract is of no importance in testing its invalidity. The law looks to the substance of the matter- the relation which the parties will bear to each other after the contract is executed; and if its natural effect is to encourage crime, it will be avoided, no matter in what shape it may be presented. Those courts holding a contrary view say that a policy of insurance is a chose in action, and the owner may dispose of it as he pleases. But when it is asserted that the owner of property may dispose of it at his pleasure, the assertion must be taken with the qualification that he does not thereby violate any provisions of law, or contravene public policy. It is further said, that because a contract is speculation, though human life be the subject of the speculation, it is not necessarily invalid; for instance, it is not unlawful to transfer an annuity, or an estate in remainder after a life-estate. If this reasoning be good, it would validate a policy taken by one having no interest in the life insured, as well as an assignment of a policy to such a person, for it is not unlawful to grant or create an annuity, or an estate in remainder after a life-estate, any more than it is to transfer one of these after it is created. Yet wager policies are almost universally held void, while annuities are sustained. Why this should be it is not necessary to discuss. It is sufficient that no analogy drawn from annuities or life-estates can be used to uphold policies procured in violation of public policy, and hence no such analogy of this kind can sustain an assignment of the same character." See Bloomington Mut. Life Ins Co. v. Blue, 35 Alb. L. Jour. 442.

FUTURE DAMAGES.

I.

N actions ex delicto, when future damages may and

presents a question that has not been at all times satisfactorily answered by the authorities if principle is to be the guide.

The determination of this question whether future damages must be recovered becomes important when the statute of limitations or the doctrine against dividing a cause of action is invoked as a defense.

We will first discuss the question whether and when a subsequent action may be brought to recover future damages. The cases all seem to agree that if the act which ultimately causes the future damages is a wrong in and of itself, and if actionable immediately and irrespective of the damages which flow from it, then a recovery of even the slightest damages will constitute an absolute bar to any further recovery, even though the future damages have occurred, since the judgment in the first suit, and could not have been foreseen. On this point we find practically no conflict. Nat. Copper Co. v. Minnesota Mining Co., 57 Mich.

83; S. C., 58 Am. Rep. 333; S. C., 32 Alb. L. J. 227; Williams v. Pomeroy Coal Co., 47 Ohio St. 583; Kansas Pa

cific Railway v. Mihlman, 17 Kan. 224; S. C., 4 Cent.

L. J. 108; Cumberland v. Hutchins, 65 Me. 140, and cases cited; Clegg v. Dearden, 12 Q. B. 576; City of North Vernon v. Voegler (Ind. Sup. Ct.), 25 Am. Law Reg. 101; Fowler v. New Haven, etc., 112 Mass. 334; Executors of Lord v. Carbon Iron Mƒ'y. Co., 6 Atlantic Rep. 812. This is too elementary to justify the collating of any more cases on the point. The foregoing are cited because they are all important authorities on this general subject. These cases all rest upon solid rock. They are founded upon the manifest but often ignored distinction between damages and injury. Both must concur to give a cause of action. It is true that in some cases the mere absence of proof of damages will not affect the action, an injury for which the law affords redress having been established; but in such cases the law presumes that at least nominal damages have been inflicted. Therefore the cases which are apparently, are not really exceptions to this rule. In no case has this distinction, and its importance in the determination of the question we are considering, been so clearly, so succinctly and yet so exhaustively discussed as in City of North Vernon v. Voegler, supra. Elliott, J. (and his name is a guaranty that the views expressed are sound), says: "There is a material distinction between damages and injury. Damages are allowed as an indemnity to the person who suffers los8 or harm from the injury. The word 'injury' denotes the illegal act, the term 'damages' means the sum recoverable as amends for the wrong. The words are sometimes used as synonymous terms, but they are in strictness words of widely different meaning. There is more than a mere verbal difference in their meaning, for they describe essentially different things. The law has always recognized a difference between the things described, for it is often declared that no action will lie because the act is damnum absque injuria. In every valid cause of action two elements must be present, the injury and the damages. The one is the legal wrong which is to be redressed; the other the scale or measure of the recovery. As there may be damages without an injury so there may be an injury without damages. It has been many times said that no action will lie because the injury produced no damages, or as the law phrase runs, the wrong is injuria sine damno. The distinction between injury and damages is an important one in this instance, and for this reason we have been careful to mark the difference and enforce our statement by references to authorities, although the principle is a rudimentary one. The distinction is important for the reason that the law is that fresh damages without a fresh injury will not authorize a second or subsequent action."

Let us now examine the authorities. Probably the most valuable decision on this subject is Nat. Copper Co. v. Minnesota Mining Co., supra. The eminent jurist who wrote the opinion in this case discusses the question with that grasp of first principles which is the distinguished "ear mark" of all of his decisions. The facts so far as they are important to an understanding of the decision were as follows: Plaintiff and defendant owned adjacent mines. Plaintiff, in carrying on its mining operations, did not excavate up to the dividing line between the two mines, but left standing between them a wall of rock about fifteen feet thick, on the other hand the defendant, not only left no such wall, but actually trespassed on the plaintiff's property, and broke through this wall into the plaintiff's mine. This was in 1869. Subsequently and in 1882 water flowed through this opening from the defendants mine into the mine of the plaintiff. An action was brought to recover the damages sustained thereby, and the defendant relied on the two years