ute gave jurisdiction, if the demand, exclusive of interest, did not exceed $100. In the present code, the words 'exclusive of interest' are omitted, and we cannot supply them without a departure from the plain letter of the statute. It is suggested in argument, that interest may accumulate after the commencement of a suit, so as to oust the jurisdiction of the justice if this view prevails. If such were the case, it would not change the language; but

must be taken to mean the amount due the plaintiff, or the value or amount of his claim, or the value of the property sought to be recovered at the time of bringing the action. (Inhabitants, etc., v. Weir, 9 Ind., 224; Barber v. Kennedy, 18 Minn., 226; Stone v. Murphy, 2 Iowa, 237; Klein v. Allenback, 6 Nev., 159; Sherman v. Clark, 3 McLean, 91.) And in an action for a money recovery, where the principal sum draws interest, if the amount due at the time of the commencement of the suit, including principal and interest, does not exceed $2,000, the county court has jurisdiction, and the accumulation of interest during the

To the same effect is the ruling in the case af Dowling v. Stewart, 3 Scam., 194, and followed in the case of Welch v. Karstens, 60 Ill.,

118.

In the case of Scott v. Russell, 8 Mo., 407, where, on appeal to the District Court in a suit before a justice of the peace for the recovery of a horse, the value of the horse, at the time of the trial on appeal, was proved to be greater than the amount of the justice's jurisdiction, it was held that the value of the property at the time of the trial before the justice was the test of the jurisdiction, and that a subsequent increase in value would not oust the jurisdiction. The same principle is also laid down in the case of Sweeny v. Lowe, 6 B. Monroe, 314.

Jurisdiction is defined to be the power to hear and determine. When, therefore, the jurisdiction is clearly acquired at the commencement of the action, it would seem to follow logically that the power to hear and determine the matter in controversy carries with it the implied power to render judgment for the amount found, by such hearing and determination, to be due at the time of the rendition of judgment, although that amount be then in excess of the amount specified in the statutory limitation under which the jurisdiction attached.

The jurisdiction of a court to render judgment in a cause is co-extensive with its authority to inquire into the facts. Fensier v. Lommer, 6 Nev., 214.

In the case at bar, the court had unquestionable jurisdiction as to the amount claimed by the plaintiff when the action was brought. In fact, the original judgment was not in excess of $2,000, and the present excess comes from accrued interest since the rendition of that judgment, and pending the appeal to

this court.

For the reasons above expressed, and supported by the authorities cited, we conclude that the amount specified as the statutory limitation of the jurisdiction in question,

diction.

The court below having authority to render judgment, as heretofore directed by this court, there is no ground for-a re-hearing, and the petition is therefore dismissed.

THE BALTIMORE & OHIO RAILROAD COMPANY v. SCHWINDLING.

(Pennsylvania Supreme Conrt. Nov. 20, 1882.) NEGLIGENCE-Dnty of Railway Co. to Persons not Passengers.-A child of tender years, was standing upon the platform of a railroad company, where he claims that he was struck by a projection from the side of a passing train, pulled from the platform, and thrown under the wheels of the train and so injured. He was not a passenger, nor had he business of any kina with the railroad company, or its agents or employes, but was simply loitering upon the platform for his personal enjoyment. Held, that there was no right of recovery against the railroad company for the injuries sustained. It makes no difference whether it be a child or an adult, the question of trespass remains the same.

Error to the Court of Common Pleas No. 1 of Allegheny County. GREEN, J.

At the time the plaintiff received his injury he was standing on the platform of the defendant, so close to its edge, that, according to the theory upon which the case was tried for the plaintiff, he was struck by a slight projection from the side of a passing freight car.

He was not a passenger, he had no business of any kind with the defendant, or any of its agents or employes; in fact. he was a boy of five or six years of age, amusing himself looking at the moving train. He was not invited upon the platform by any agent of the defendant, and he was not engaged in the act of crossing either the track or the platform at the time of the accident. He was simply loitering upon the edge of the platform, with no other purpose or motive than his own personal enjoyment. Fis elder brother, his principal witness, tes ified that he told him to come back from where he was standing, but he refused to do so. A passing car, moving at at a very slow rate of speed, not exceeding three or four miles an hour, with an iron step projecting a few inches from the side of the

car (as alleged by the plaintiff, though denied by the defendant), struck him and pulled him from the platform under the wheels of the car, so that he was run over and injured. In these circumstances was there any right of recovery? We think clearly not. We held, in the case of Gillis v. Pennsylvania Railroad Co. 9 P. F. S. 141, that "the platform of a railroad company at its station or stopping-place, is in no sense a public highway; there is no dedication to public use as such; it is a structure erected expressly for the accommodation of passengers arriving and departing in the train. Being uninclosed, persons are allowed the privilege of walking over it for other purposes, but they have no right to do so. * Still, even a trespasser on the land of another can maintain an action for a wanton or intentional injury inflicted on him by the owner." Again, on p. 143: "The plaintiff may not have been technically a trespasser; the platform was open; there was a general license to pass over it; but he was where he had no legal right to be; hie presence there, was in no way connected with the purposes for which the platform was constructed. *

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*As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it; as to all others they were liable only for wanton or intentional iujury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity, or to give vent to his patriotic feelings. The defendant had nothing to do with that." Upon the foregoing principles, and upon the authority of many adjudicated cases cited in the opinion, and which it is therefore not necessary to review here, it was held there could be no recovery, although the platform was insufficient to bear the weight of the persons who were upon it. It was conceded that there would have been a right to recover if the persons on the platform had been there as passengers, or upon business connected with the defendant.

In the latter case there would have been a violation of a duty owing by the defendant to the plaintiff. But there was no such duty because of the absence of the relation, and hence there was no right of action. The controlling feature of the inquiry in all such cases is, what was the duty which was violated by the defendant. If there was none, there is no legal liability; this was essentially the distinction on which Railroad v. Hummel, 8 Wr. 375, was decided. On page 379, Strong, J., said: "Yet a jury cannot hold parties to a higher standard of care than the law requires, and they cannot find anything negligence which is less than a failure to discharge a legal duty. If the law declares, as it does,

that there is no duty resting upon any person to anticipate wrongful acts in others, and to take precautions against such acts, then the jury cannot say that a failure to take such precautions, is a failure in duty and negligence." * * * "Blowing the whistle of the locomotive, or making any other signal, was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown nor a signal made was no evidence of negligence."

It will be perceived that it is entirely immaterial, in solving this question, whether the person injured is an adult or a child.

There is no question of contributory negli gence involved in the inquiry or essential to its consideration. If the defendant did not owe the duty of protection against the injury suffered in the particular case, the omission to furnish such protection is not negligence, and there is no liability on that ground. Take the present case as an illustration.

The only duty which is or can be claimed as having been violated was a duty to protect the plaintiff, when standing upon the edge of the defendant's platform, from injury from a car step projecting a few inches beyond the side of a slowly passing car.

But how can any such duty arise out of such circumstances. The plaintiff had no right to place himself in the position in which it was possible for him to be injured in such a manner, and the defendant was not bound to take precaution against such injury.

It is not denied that this would be true if the plaintiff was an adult; how then can it be otherwise than true as to a child? The absence of duty is precisely the same in either case, and the consequent absence of liability must be the same in both. It is quite true that young children can recover for injuries in circumstances in which adults cannot. But even children cannot recovor unless there is negligence, and there can be no negligence without a breach of duty.

In Kay v. Pennsylvania Railroad Co., 15 P. F. S. 276, we said: "If there be no negligence on the part of the company, then the incapacity of the child creates no liability, and its injury is its own misfortune which it must bear."

In Philadelphia and Reading Railroad Co. v. Spearen, 11 Wr. 300, where a child five years old suddenly ran across the track in front of an approaching engine, and was struck and injured, we said on page 303: "The engine in this case having safely passed the crossing appropriated to travelers, the engineer was under no duty to suppose any one would attempt to cross the track suddenly right in front of the engine. He had a right to suppose a clear track, and was not guilty in fail

ing to use precaution where he had no reason to expect interruption." In Hargures v. Deacon, 25 Mich. 1, the court said: The plaintiff being a child of tender years, "we have found no support for any rule which would protect those (child or adult) who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in no way connected with business or other relations with the occupant." In Morrisey v. Eastern Railroad Co., 126 Mass. 377, the action was brought by a child four years of age, who was injured while playing upon the track of the defendant.

The court said: "The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger, nor on his way to become one, but was there merely for his own ainusement, and was using the track for a play-ground. The defendant corporation owed him no duty, except the negative one, not maliciously or with gross and reckless carelesness to run over him."

In Gillespie v. McGowan, 39 Leg. Intel. 313, we held that the owners of unenclosed lots in Philadelphia owed no duty of protection, even to children, against the danger of falling into an open well on the premises, although the field in question was crossed by frequented paths and used as a place of resort by children and adults. In Moore . Philadelphia and Reading Railroad Co., 39 Leg. Intel. 290, we held there could be no recovery for the death of a boy ten vears of age who was struck by an engine while walking on and along the track, on the end of the cross-ties. We said: "The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult." In the case of Philadelphia aud Reading Railroad Co. v. Heil, 5 W. N. C. 91, a child four years of age was struck, as it was claimed, by the projecting axle-box of a car, which extended one foot six inches beyond the outside of the rail and three inches over the line of the street curb. He was on the public street-walk, where he had a right to be, but he was so close to the car that he was struck, as was supposed, by the projecting

axle.

We held that there was no sufficient evidence of negligence in these circumstances to submit the case to a jury. The cases of injuries to persons while crossing the track at permissive crossings are not analogous and have no application. When the right to cross at a particular place is established, by permission or otherwise, the duty of ordinary care is in

cumbent upon the company. But in the present case, the plaintiff was not engaged in the act of crossing the track, or even the platform, when he was injured, and therefore the cases on this subject are not in point. Upon the whole case, we discern no evidence of any breach of duty owing by the defendant to the plaintiff. There was no pretence of wanton injury, and therefore the first and second points of the defendant should have been affirmed.

Judgment reversed.

PERRY v. LOVEJOY.

(Michigan Supreme Court. Jan. 1883.) ENTICING WIFE TO LEAVE HUSBAND- Wife's Letters-Illicit Intercourse-Wife's Letters.-1. In actions for tortiously enticing a wile to desert her husband, letters of the wife written to the husband before she left him are competent evidence to show the state of her mind and affection towards the plaintiff. 2. In such actions it is not competent to show ilicit intercourse between the wife and the defendant, that being a matter not embraced within the issue. 3. In such actions it is competent for the defendant to show, by letters of the wife, which are part of the res geste, that she left the plaintiff because of his own conduct.

Action on the case, the substance of the declaration being that Lovejoy tortiously enticed and procured Perry's wife to desert him, whereby he lost her affection, comfort, etc. Certain letters written by the wife, before she left him, to the husband were offered in evidence by him and admitted. The plaintiff had judgment, and the defendant assigned error.

GRAVES, C. J., in delivering the opinion of the court, said: The gist of the action is the plaintiff's loss of his wife's society, services and comfort by means of the tortious conduct of the defendant (Winsmore v. Greenbank, Willes, 577; Bennett v. Smith, 21 Barb. 439; Barnes v. Allen, 1 Keyes, 390), and among the questions which pertain to the issue are these: Was the loss attributable to the misconduct of the plaintiff, or was it owing to the voluntary doings of the wife, or was it effectuated or induced by the illegal behavior of the defendant? If it occurred, and the defendant was not guilty of any tortious conduct to bring it about, then the action could not be maintained, and as bearing on the question it was pertinent to inquire into the state of the wife's mind and affection towards the plaintiff, and on that subject her letter was legitimate evidence. Thompson v. Trevanion, Skin. 402; Aveson v. Lord Kinnaird, 6 East, 188; Walton v. Green, 1 Car. & P. 621; Houlston v. Smyth, 2 Ib. 22; Jones v. Thompson, 6 Ib 415; Wilton v. Webster, 7 Ib. 198; Hoare v. Allen, 3 Esp. 276; Trelawney v. Colman, 2 Stark. 191; S. C. 1 B. & A. 90; Willis v. Bernard, 8 Bing. 376; Park v. Hopkins, 2 Bail. Law, 408; Bennett v. Smith, supra; Edwards v. Crock, 4 Esp. 39; Preston v. Bowers, 13

As

Ohio St. 1; Snover v. Blair, 25 N. J. Law, 94. The next point is on a ruling that the plaintiff might show that the defendant had been guilty of illicit intercourse with Mrs. Perry. The defendant objected to going into evidence on that topic because the declaration alleged no such wrong, and any attempt to prove it would be a departure from the issue. We think the objection was well taken. stated formerly, the plaintiff alleged as the cause of his injury the wrongful enticement and procurement of the defendant, and not the offense of adultery. When the latter is When the latter is relied on the suit is for criminal conversation, and whether the form of action is case or trespass, the criminal intercourse must be substantially averred. The present is a recognized action wholly distinct from one for criminal conversation, and the issue is narrower and the proof of marriage demanded is less strict. Direct proof of a formal marriage. is not requisite. But evidence of cohabitation and repute and of defendant's admissions that the plaintiff and his alleged wife were married may be allowed to satisfy the jury. Abbott on Trial Ev. 681, and authorities cited. On the other hand, where the action is for conversation, an actual marriage must be proved, and such evidence of cohabitation and repute as would maintain the other suit will not answer in this. Hutchins v. Kimmell, 31 Mich. 126; Birt v. Barlow, 1 Doug. (Eng.) 162; Morris v. Miller, 4 Burr. 2057; Hemmings v. Smith, 4 Doug. (Eng.) 33; Dann v. Kingdom, 1 Thompson & C. 492; Campbell v. Carr, 6 U. C. Q. B. O. S. 482; Kibby v. Rucker, 1 A. K. Marsh. 391; 2 Greenleaf on Ev. §461, and cases cited.

A further distinction between the actions is that while the fact of adultery is a necessary ingredient in the suit for criminal conversation, it has no place in the action for enticement in case there is no charge of illicit intercourse. If the plaintiff should be allowed to prove adultery in one case as well as in the other the proper distinction between the actions would be subverted, and it would be at his election to prosecute in the form here adopted and thereby escape the rule for strict proof of marriage and yet obtain a recovery as in an action for criminal conversation. The defendant is not bound to meet a case for adultery when the plaintiff has not charged him with it.

We next come to defendant's offer of a letter written by Mrs. Perry to her parents in August, 1879, which represented that her husband was unkind to her, and to such a degree that she had become" sick of [her] home." It was objected to as "incompetent ana immaterial," and the objection was sustained. The court is not able to concur in

this ruling. The letter was a part of the res gestae and original evidence. Whether the plaintiff before the alleged enticement had by means of his cruel treatment caused his wife to be "sick" of her "home" was certainly a pertinent and material question. If the separation and loss of his wife's comfort, society and services was in consequence of his fault, he has no ground of action against the defendant, and this letter was a valid piece of evidence on the subject in so far as it would reveal and illustrate her state of mind and feeling towards him, and the same principle which let in the other letter in his favor was not irrelevant. The authorities seem to leave no doubt. 1 Greenleaf on Ev. §§102-108; Wharton on Ev. §262; Bennett v. Smith, supra; Barnes v. Allen, supra; Caughy v. Smith, 47 N. Y. 244; Schuneman v. Palmer, 4 Barb. 225; Palmer v. Crook, 7 Gray, 418; Winter v. Wroot, 1 Mood & R. 404; Gilchrist v. Bale, 8 Watts, 355; Hadley v. Carter, 8 N. H. 40. Judgment reversed.-Reporter.

LOVING V. COMMONWEALTH.

(Kentucky Court of Appeals. Filed December 7, 1882.) EVIDENCE-Cross-examination on ifrelevant matter for purpose of contradiction not permitted.-1. A witness cannot be cross-examined as to facts which are collateral and irrelelant to the issue, for the purpose of contradicting him, his answers about such facts being conclusive against the party calling for them. 2. A witness cannot be asked if he has not made statements to others out of court that certain substantive facts exist, for the purpose of proving that he has made such statements, when he has not testified as to the existence of such facts as that would transform declarations made out of court into substantive testimony.

Appeal from Warren Circuit Court.

Chief Justice Hargis, in delivering the opinion of the court, said:

On the afternoon of the twenty-second of February, 1881, John Loving, a single man thirty-one years old, living about three miles from Bowling Green, in which his mother resided, came into that town without any "special business."

After being about town in different public places, and drinking two glasses of beer, near midnight he stopped in at Johnson's saloon, where he found a man by the name of Hines and the bar-keeper, Grubbs. They soon engaged in throwing dice for beer, and he then drank two glasses of beer.

Hines settled for what he lost and went out, and Loving then went to settle with Grubbs for what he lost, and an altercation ensued between them which attracted the attention of his brother the appellant, L. L. Loving, who came from the billiard room to the door of the saloon and enquired what was the matter. On being informed, he said in substance if there was any fighting to do he

would do it, or he would settle it, or "let me settle it."

He then returned to the billiard saloon apparently to resume the game in which he was engaged. The witnesses differ widely as to the conduct of Grubbs, the evidence of some of them tending to prove that so soon as the appeilant made the statement that he would do the fighting, or settle it, Grubbs looked angrily at him, went behind the bar counter and reached under or above it, and immediately came out and across a small room located between the saloon and billiard room, saying in a loud tone, "I can clean out the whole damn kit;" (( you can't scare me," with his hand in his pocket, and while approaching the door of the billiard and across the hall which separated it from the small or "stove" room, through which he had passed, Grubbs was shot and killed by the appellant, who was in or near the billiard room door, and towards whom Grubbs was advancing at the time. Buckner Duncan, a young man twenty-one years old, a clerk in his father's store, testified that "Grubbs appeared in the door of the stove room and said, 'now God damn you, if both of you want to jump on me, I can clean out the whole kit.' Defendant turned around immediately and asked Grubbs what he said, and Grubbs repeated it, and kept coming straight towards the defendant, who was standing in the pool room (billiard room) door. I thought from Grubbs' manner there was to be a fight and I jumped behind the wall and grabbed defendant to pull him also behind the wall, telling him he might get hurt. Just as I did this defendant pulled his pistol and fired."

Other evidence in the case tends to prove that Grubbs had his hand up with palm extended at the time he was shot, and that his words were not so offensive or threatening as detailed by the appellant's witnesses.

Whether the witnesses for the Commonwealth or those for the appellant correctly stated what was said and done, is a question belonging to the province of the jury and we only suggest its conflicting character for the purpose of an intelligent understanding of the questions of law raised upon this appeal.

It appears that the door opening into the hall where Grubbs was shot was the only door to the billiard room; that a pistol was kept in a drawer behind the saloon counter, and that one of the attendants about the establishment slept in a small room cut off from the "stove" room, with a pistol under his head.

When Grubbs' body was examined by the coroner there was no pistol found on it.

In view of the circumstances of this case, it becomes important for the appellant to show when Grubbs was shot, that he had a

pistol on his person and there was reasonable grounds to believe that he intended to use it on the person of the appellant.

And for the purpose of showing that Grubbs had a pistol the appellant introduced as a witness a man by the name of Taylor, who testified that he was present immediately after Grubbs was shot and sat up with the body that night; that before the coroner came J. B. Johnson, the owner of the saloon, and uncle of Grubbs, came in "and walked once or twice back and forth, and then went up to the body, reached over the body, felt under it and when he straighted up he had a pistol in his right hand, he then put the pistol up his left sleeve, and as he did so he said, 'boys, say nothing about this,' and went into the bar room behind the counter." He also stated that J. A. Jackson was present, sitting on a beer keg rather in the corner at the time Johnson took the pistol from Grubbs' body.

Jackson was then introduced as a witness and testified as follows:

"I was sitting on a keg in the hall, Taylor was standing up near the corpse and between me and the body. Johnson came in the hall up to the body and leaned over it and seemed to be fumbling' some little time-two or three minutes-just as he straightened up he said, 'say nothing about this, boys,' and went into the next room. I was on a keg in the corner next to State street and Johnson's back was to me, I did not see the pistol, Taylor was between me and Johnson when the latter leaned over the body."

On cross examination, in response to a question by the Commonwealth, Jackson said:

"I did not say to M. L. Low, after the killing of Grubbs, that no pistol was taken from Grubbs' person."

The Commonwealth introduced M. L. Low in rebuttal who testified "that J. A. Jackson told him that he knew nothing about a pistol on Grubbs."

To the testimony of Low the defendant. properly reserved exceptions, and we are now compelled to decide whether that portion of his evidence quoted was relevant.

It is a rule of evidence that a witness cannot be cross-examined on facts which are collateral and irrelevant to the issue for the purpose of contradicting him, his answers about such facts being conclusive against the party calling for them.

Nor can a witness who fails to testify to substantive facts be asked if he has not made statements to others out of court that such facts exist, for the purpose of proving that he had made such statements as that would transform declarations made out of court, and not under the sanction of an oath, into substantive testimony.