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Lane, a woman who was employed by his wife as a sempstress, who sold the Hygeian medicines; and subsequently Mr. Salmon's aid having been claimed, on account of his suffering from rheumatism in the knee, he recommended increased and still-increasing doses, until at length. the deceased became so ill as that his life was placed in jeopardy. Medical aid was now called in, but it was too late, and death soon put an end to his sufferings. A postmortem examination left no doubt that the medicine prescribed by the prisoner had been the cause of this termination of the case, and the present indictment was in consequence preferred.

On the part of the defendant a great many persons were called from all parts of the kingdom, who stated that they had taken large quantities of these pills, with the very best

results, as a means of cure for almost every species of malady to which the human frame is subject. One person stated that he had taken no fewer than twenty thousand of them in two years, and that he had found infinite relief from swallowing them in very large doses.

Mr. Justice PATTESON left the case to the jury, who had to decide upon the facts which had been proved; and after about half an hour's consideration they found a verdict of "Guilty," with a recommendation to mercy, upon the ground that the defendant was not the compounder, but the vendor only of the medicines.

The trade in Morison's pills is, however, still carried on to a very great extent, and Mr. Salmon continues one of the largest agents for the sale of the medicine in the metropolis.

6. BRADFORD v. INSURANCE CO. [Printed post, as No. 49.]

7. EIDT v. CUTTER. (1879. SACHUSETTS. 127 Mass. 522.)

Tort for injuries to the plaintiff's house and fence, alleged to have been caused by the fumes, vapors, and gases escaping from the defendants' copperas works, and discoloring the paint on the house and fence.

At the trial in the Superior Court, before DEWEY, J., it appeared that the premises of the parties were in the southerly part of the city of Worcester, and in close proximity to an open sewer maintained by the city; and there was evidence tending to show that from this sewer, and from the piles of filth dug from it and laid on its banks, there were foul exhalations of gases containing ammoniacal salts. The evidence of the defendants' experts tended to show that the gases and substances escaping from the copperas works would not of themselves produce the discoloration visible on the plaintiff's house, but that the discoloration as seen was produced by the

SUPREME JUDICIAL COURT OF MAS

union of the gases and substances from the defendants' works with the ammoniacal gases escaping from the sewer. The defendants' experts testified that copperas deposited on a painted surface did not break through or abrade the paint; and exhibited to the jury a board, upon which they had atomized copperas in large quantities, and changed its color by ammonia, from which the copperas had been brushed, and the painted surface was shown intact underneath. This experiment was offered only to show the fact that copperas did not penetrate paint.

The evidence of the plaintiff's experts tended to show that the condition of the plaintiff's house and fence could be, and was, brought about by the gases and substances coming from the defendants' works; that the gases coming from the open sewer probably accelerated and intensified the effect, but that there

is a sufficient quantity of ammonia in ordinary atmosphere to account for the present discoloration. These experts stated that they formed their judgment from their general knowledge of chemistry, from experiments heretofore made, and from a series of experiments recently made by them, both at the house of the plaintiff, and in the city of Providence, Rhode Island, and elsewhere. The experiments made at the house of the plaintiff were upon boards, papers, etc., exposed for six weeks to the atmosphere, and to the fumes, vapors, and substances therein contained, and were acted upon thereby under the same circumstances and conditions as the plaintiff's house during the time they remained on the house. The experiments made at Providence and elsewhere consisted mainly of atomizing copperas upon boards, papers, glass, etc., and exposing the same to the atmosphere and were made under conditions and circumstances which, as the plaintiff's experts stated, were, in their opinion, as near like those surrounding the plaintiff's house, in the absence of the sewer, as was possible, and were made for the purpose of ascertaining the effect of copperas gases where the atmosphere was otherwise pure. The boards, papers, etc., thus used by these witnesses of the plaintiff in these experiments, were brought into court and exhibited, and explained to the jury, and a detailed account of the experiments given to the jury by the witnesses. The defendants objected to the introduction before the jury of any of the experiments, and the evidence given explanatory thereof, made by the plaintiff's experts at Providence, Rhode Island, and at other places other than the plaintiff's house. The judge admitted these lastnamed experiments and the evidence relating thereto on the ground that,

the experts, having first stated their judgment as to the character and effect of the gases and substances from the defendants' works alone, and when in union with ordinarily pure air, and when in union with the gases coming from the city sewer, might state the grounds on which they based their judgment; and, they having stated that, among other things, the grounds on which they based their judgment were certain experiments made by them, the judge allowed the witnesses to testify as to the experiments made. by them, limiting them to the statement of the experiments on which they said they had, in part, based the judgment and opinion as to which they had testified.

The jury returned a verdict for the plaintiff; and the defendants alleged exceptions.

W. S. B. Hopkins & A. G. Bullock, for the defendants. J. R. Thayer, for the plaintiff, was not called upon.

BY THE COURT. The question in controversy, and upon which both parties had introduced the testimony of experts was whether the injury to the plaintiff's house was caused by the fumes and gases from the defendants' works, or by the emanations from a sewer. The grounds and reasons of the opinions of the experts, including the details of experiments made by them under conditions and circumstances which, as they testified, were as nearly as possible like those surrounding the plaintiff's house in the absence of the sewer, were rightly permitted to be stated by the experts, in order to assist the jury in understanding their testimony and applying it to the case. Lincoln v. Taunton Copper Co., 9 Allen 181. Commonwealth v. Piper, 120 Mass. 185, 190. Williams v. Taunton, 125 Mass. 34. Exceptions overruled.

8. EAST ST. LOUIS v. WIGGINS FERRY CO. (1882. APPELLATE COURT OF ILLINOIS. 11 Ill. App. 254.) Error to the City Court of East St. Louis; the Hon. CHARLES T. WARE, Judge, presiding. Opinion filed September 29, 1882. . . .

BAKER, P. J. This was a suit by the Wiggins Ferry Company against the City of East St. Louis to recover damages sustained by it as owner of certain lots of land, occasioned by the building of the approaches to the Illinois & St. Louis Bridge over and along Crook Street in said city. See Stack v. City of East St. Louis, 85 Ill. 377. A jury trial resulted in a verdict and judgment for $10,610. ... A portion of the claim of plaintiff was for damages occasioned by the passage of loaded wagons, locomotives, cars, and trains over the superstructure of the bridge approach, whereby its lots were so shaken as to be greatly injured for building purposes. Plaintiff had introduced testimony tending to prove this claim. Thereupon defendant offered to prove how the bridge approach was constructed on the other side of the river in the city of St. Louis, and that there is more vibration there to the adjoining property on account of the operation of trains which cross the bridge than there is on the Illinois side, and that the three-, four-, five- and six-story brick buildings in St. Louis, close to the bridge approach, are not injured by the

vibrations. This testimony was objected to and the objection sustained. This was error, more especially in view of the character of the evidence that had gone to the jury on behalf of plaintiff, bearing on this issue. Differences arising from diversity of soil or geological formation, if any, or otherwise, could readily have been ascertained on cross-examination, or by the introduction of rebutting testimony. Besides, the proffered testimony included the proposition that the vibrations were greater on the west than on the east side of the river.

Defendant also proposed to prove that the vibrations caused by the Belt Railway are greater in the vicinity of Crook Street than the vibrations of the bridge approach. This testimony was not permitted by the court to go to the jury. If, as some of plaintiff's witnesses had testified, buildings, walls, plastering, and chimneys on plaintiff's lots, and on other lots on Crook Street and in the immediate vicinity of plaintiff's property had been cracked and damaged by vibrations, then surely it was competent to show the greater part of these vibrations were occasioned by trains on the Belt Railway, and not by travel over the bridge approach. The ruling of the court in this regard was erroneous. Reversed and remanded.

9. KNOWLES v. STATE. (1885. SUPREME COURT OF ALABAMA. 80 ALA. 9.)

Appeal from Wilcox County Court. Tried before Honorable JOHN PURIFOY.

Mat Knowles was indicted, and tried in the Wilcox County Court, for selling intoxicating liquors in violation of a local statute. The case was tried by the court, on the plea of "not guilty"; the defendant was found guilty, and a fine of one

thousand dollars adjudged against him. One of the witnesses for the State testified that he had bought of the defendant three bottles containing fruit, with liquid around the fruit; that he and another had eaten of the fruit, and drunk the liquid that was in the bottles; that the effect of this eating and drinking upon witness was like the effect of

drinking whisky; that he felt like he was intoxicated. After the State had closed, the defendant introduced a witness, Dock Griffith, who testified that he had many times bought of the defendant the same kind of fruit and liquid in bottles, described by the witnesses for the State, and had eaten the fruit and drunk the liquid without feeling any intoxicating effect, or any such effect as he experienced from drinking whisky. The solicitor moved to exclude this testimony of defendant on the ground that it was irrelevant; and, the same was excluded by the court. The defendant introduced a number of other witnesses, who testified, substantially, as the witness Griffith, that they had purchased of the defendant fruit and liquid, such as was testified about by the witnesses for the State, had eaten the fruit and drunk the liquid, without feeling any intoxicating effects. Their testimony was also, upon motion of the solicitor, excluded by the court. Defendant excepted to these several rulings of the court, and, on appeal, assigns the same as error.

the statements of the several witnesses, who testified as to the effect upon themselves of the beverage for the sale of which the State had elected to prosecute the defendant.

The most available mode of testing the nature and properties of a fluid or drug, next to that of chemical analysis, is by its effects on the human system. That a liquor when taken in certain quantities intoxicated or failed to intoxicate the person taking it, is as competent to prove or disprove its intoxicating qualities, as it would be to prove the poisonous nature of a drug by the effect following its administration. Negative testimony of this kind may often be very weak and inconclusive, because of the comparison involved in determining the relative facility with which different persons may or may not become intoxicated or drunk. But we cannot say what would have been the effect of this evidence upon the mind of the judge, who was substituted for the jury as the trier of the facts of the cause. We decide nothing more than the admissibility of this evidence, leaving to the County

T. N. McClellan, Attorney-Gen- Court itself to decide what shall be eral for the State.

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its weight or credibility. The judgment is reversed and the cause remanded.

97 FED. 413.)

10. GOLDEN REWARD MINING CO. v. BUXTON MINING CO. (1899. FEDERAL CIRCUIT Court of APPEALS. In error to the Circuit Court of the United States for the District of South Dakota.

The Buxton Mining Company, an Iowa corporation, brought this action against the Golden Reward Mining Company, a corporation of South Dakota, to recover damages for a wrongful entry upon its property, situated in the state of South Dakota, known as the "Bonanza Lode Mining Claim," and for the removal therefrom and conversion to its own use of a large amount of gold- and silver-bearing ore, alleged to be of the value of

$200,000. The Golden Reward Mining Company, the defendant below (the plaintiff in error here, referred to hereafter as the defendant) filed a general denial, which merely put in issue the commission of the alleged trespass, and did not seek to justify it. There was a lengthy trial before a court and a jury, lasting from February 9, 1898, until March 18, 1898, when the jury returned a verdict against the defendant below in the sum of $61,500, on which verdict a judgment was subsequently entered in favor of the plaintiff below. The proceed

ings at the trial are brought before us for review by a writ or error.

William L. McLaughlin and William R. Steele, for plaintiff in error.

Eben W. Martin (Norman T. Mason, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges. THAYER, Circuit Judge, after stating the case as above, delivered the opinion of the Court.

Preliminary to any discussion of the numerous errors that have been assigned, it will be advantageous to state certain facts which are practically undisputed. The parties to the suit are the owners of adjoining mining claims in the state of South Dakota. It will suffice to say generally concerning the location of the claims that the Bonanza claim, which belonged to the plaintiff below, and on which the trespass was committed, lay immediately to the west and south of two claims the Silver Case and the Tilton, which belonged to the defendant company. Prior to August, 1891, the defendant had done a great amount of mining, not only on the Silver Case claim, which lay to the east of the Bonanza claim, but also on another claim which it owned, known as the "Golden Reward Claim," which latter lay immediately to the east of the Silver Case, and on certain other claims not necessary to be mentioned. It had extensive underground workings on both of the last-mentioned claims, consisting of tunnels, stopes, and levels, whereas the Bonanza claim was at that time practically undeveloped, no work of importance having been done thereon or thereunder. Subsequent to July, 1891, the defendant company extended two of the drifts or tunnels on its own property across the boundary line, and underneath the Bonanza claim, and there excavated two stopes, known as "Stope No. 2 West' and "Stope No. 3 West," from which it extracted a large amount of mineral-bearing

ore between the months of August, 1891, and August, 1892. The trespass so committed was not discovered by the plaintiff company until shortly prior to November 20, 1895, when the present action was brought; and the discovery at that time was due to the fact that the excavation of the aforesaid stopes ultimately caused the superimposed earth to settle, making depressions on the surface. As soon as the depressions became visible, the plaintiff company set on foot an investigation, which speedily developed the extent of the trespass. While the defendant company by its answer denied the trespass, yet on the trial such defense was practically abandoned, and the trial resolved itself into a consideration of three issues of fact: First, what was the quantity of the mineral taken from stopes Nos. 2 and 3 west, underneath the Bonanza claim? Second, what was the value of the mineral so abstracted? And, third, was the trespass committed knowingly and willfully? A large amount of testimony was taken on these issues, very little of which has been preserved in the bill of exceptions.

During the progress of the trial, counsel for the defendant company inquired of a witness how many men were employed by the defendant in its mines upon the Golden Reward and the Silver Case claims at the time when ore was being extracted from stopes Nos. 2 and 3 west, underneath the Bonanza claim. This question was objected to, whereupon counsel for the defendant made the following statement, in substance: That they proposed to show that during the period in question, from September 1, 1891, to August 1, 1892, the defendant kept an accurate account of the number of men employed in all of its mines located within the territory which it was then working, and that they were all worked together, as constituting one property; that the

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