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jury. It is not improper to aver it by way of recital or description. The interest and motives of the witness must be the same whether he is to be afterward tried under the same or another indictment. As said by Beasley, J., in a convincing argument of the question in State v. Brien, 3 Vroom, 414: "The only reason for the rejection of such a witness is, that his own accusation of crime is written on the same piece of paper with a charge against the culprit whose trial is in progress.'


The reason at first given for not allowing a party to testify was his interest. The old common law shuddered at the idea of any person testifying who had the least interest. But that reason failed sometimes. In many civil cases a party had no interest. Then it was decided that public policy or expediency prevented the reception of the testimony. A party to the record was not permitted to testify, whether interested or not. If only a nominal plaintiff, he could not testify either for the plaintiff or defendant. Kennedy v. Niles 14 Me. 54. Without much reasoning upon the subject, the law pronounced against it. The rule was general. But as stringent as the rule was, it did not apply to indictments to its full extent. The parallel between civil and criminal cases was not kept up. If a man was indicted and pleaded guilty, he could testify for his co-defendant. State v. Jones, supra. If however he was sued for the same cause, and became defaulted, he could not testify for his co-defendant. Gilmore v. Bowden, 12 Me. 412. Courts seemed inclined not to regard a co-defendant in a criminal case as a party, unless "a party to the issue on trial." That distinction is taken in the English cases before cited. To be incompetent to testify, the defendants must be in charge of the same jury. Mr. Starkie struck the same key, who declared that "an indictment against several is several as to each." It is plaiuly seen that there is much authority and reason for regarding an indictment of two or more persons as in effect a joint and several indictment; joint when the accused are tried jointly; and several when tried separately.

But as before intimated, we are not to look upon the question before us as exclusively one at common law. Our statutory enactments bear upon it. They have weakened if not abrogated the argument of public policy. It was no doubt the design of the Legislature that the objection to the competency of parties as witnesses should be removed in both civil and criminal cases. In civil cases the door is opened wide. In criminal cases the provision is this: "In all criminal trials the accused shall, at his own request, but not otherwise, be a competent witness. * * *The husband or wife of the accused is a competent witness." R. S., ch. 134, § 19. While this enactment does not cover the present question with literal exactness, it approaches it, affects and influences it, and requires us to examine the matter in the light of the legislative policy declared by it. If both defendauts were on trial at the same time, either could testify. Com. v. Brown, 130 Mass. 279. If the argument for the defendant is sound, then the common-law rule has become reversed. Defendants can testify against each other when tried together, and cannot so testify when tried apart. We do not assent to such a proposition.

The admission of the evidence did no injustice. It bore less heavily upon the defendant than it would have if the witness had not been himself indicted. As Lord Hale says, the indictment against him "doth much weaken and disparage his testimony." It would present a singular inconsistency in criminal procedure, if even one's wife may be compelled to testify against him, and a co-defendant on trial may be called

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N. P. O'Brien, for plaintiff.

G. Storm Carpenter, for defendant.

REYNOLDS, C. J. The respondent and her husband are sued as partners upon a note signed by her husband in the firm name of J. P. Kinney & Co. As the complaint is now framed, the action is not upon the consideration for which the note was given, nor are any facts alleged for the purpose of charging the defendant as a married woman, but the claim rests simply upon the written instrument, and the case therefore presents the question whether a married woman may carry on business as a partner with her husband. As this question has been ruled both ways, and able and exhaustive opinions have been given, it will only be necessary for us to give a general statement of our reasons for the conclusion at which we have arrived.

It must be conceded that at common law the unity of husband and wife was such as to preclude the existence of a business co-partnership between them; and such is still the rule unless it has been changed by some statute. The only statutes claimed to have effected such a result are the married woman's act of 1848, as amended by chapter 375 of the Laws of 1849, and the act of 1860 as amended by that of 1862.

The idea of a co-partnership involves the holding of property in common, and the transaction of business together by the partners. First as to property. The provisions pertinent to the question are section 3 of the act of 1848 as amended, and section 1 of the act of 1860. The note in suit was made before the passage of the act of 1884.

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By these statutes any married female may take by inheritance, or by gift, graut, devise or bequest from any person other than her husband and hold to her sole and separate use, and convey and devise real and persoual property, and any interest or estate therein, and the rents, issues or profits thereof, in the same manuer aud with like effect as if she were unmarried, and the same shall not be subject to the disposal of her husband nor be liable for his debts" (1848).

"The property both real and personal which any married woman now owns as her sole and separate property; that which comes to her by descent, devise, bequest, gift or grant; that which she acquires by her trade, business, labor or services carried on or performed on her sole or separate account" shall remain her sole and separate property, not subject to the con

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trol of her husband or liable for his debts; except in one case, not material to be considered here (1860).

We cannot carry her powers or liabilities beyond these statutes. The essential ideas of co-partnership property seem to be carefully excluded so far as her husband is concerned as to him, her property must be sole and separate and held to her sole and separate use, not subject to his control or disposal or liable for his debts. But the interest of one partner is not sole or separate from the others, nor held to the separate use of such partuer, nor free from the control or disposal of the other or from liability for his debts.

In Bertles v. Nunan, 92 N. Y. 152, the court says the statutes have not gone so far as to destroy the common-law unity of husband and wife, and make them substantially separate persons for all purposes. Judge Earl says: "So the common-law incidents of marriage are only swept away by express enactments. The ability of the wife to make contracts is limited. Her general engagements are absolutely void, and she can bind herself by contract only as she is expressly authorized to do by the statute." And in that case it was held that under a conveyance to a husband and wife jointly, they take not as tenants in common, or as joint tenants, but as tenants by the entirety. This is not the way partners take or bold.

Second, as to the carrying on of business. "A married woman may bargain, sell, assign, and transfer her separate personal property, and carry on any trade or business, and perform any labor or services, on her sole and separate account, and the earnings of any married woman from her trade, business, labor, or services shall be her sole and separate property, and may be used or invested by her in her own name." Laws of 1860, ch. 90, § 2.

This is the enabling statute from which the married woman derives whatever power she has to carry on a trade or business. Where is the provision which authorized her to enter into co-partnership with her husband? She may sell her "separate personal property," not the partnership property, as she might have occasion to, from day to day in the course of trade.

She may carry ou trade or busines or perform labor or services on her sole or separate account; not on joint account with her husband partner. Judge Brown in the case of Graff v. Kinney (Kings Co. Special Term), suggests that the words "sole and separate " relate to "labor or services" and not to trade or business." I think this is a mistake. The second section should be construed in connection with the first of the same act. The first declares that what she acquires by her trade or business carried on, on her separate account, shall be her sole and separate property. This plainly refers to the following section which goes on to authorize her to carry on trade or business. One section was plainly intended to be as broad as the other.

The first meant to give her as her separate property all her acquisitions from the business authorized by the second, and yet the first only operates upon what she gains in business conducted on her sole and separate account. Besides it is only upon this construction that the latter part of section 2 can be made harmonious with the former part of the section or with section 1. Trade, business, labor, and services are there all joined together without a repetition of the qualifying words, and it is declared that her earnings from all these sources shall be her sole and separate property, meaning, I think, in the language of section 1, "trade, business, labor, or services carried on or performed on her sole and separate account." Any other coustruction makes confusion in the act.

In Coleman v. Burr, 93 N. Y. 17, Judge Earl says

(commenting on the acts of 1848, 1849 and 1860): "The statutes referred to touch a married woman in her relations to her husband only so far as they relate to her separate property and business, and the labor she may perform on her sole and separate account."

It may be as contended by Judge Brown in the case referred to, that a married woman can carry on a partnership with a person other than her husband, but if she can do so with him, the words "sole and separate " in the statutes we have been considering, seem to have little or no use.

Some of the views above expressed, and others equally conclusive, are so fully and forcibly presented by Judge Westbrook in Fairlee v. Bloomingdale, 14 Abb. N. C. 341; 29 Alb. L. J. 285, that a further discussion would seem to be out of place.

Exceptions overruled and judgment for defendant, Frederica M. Kinney, with costs.




Plaintiff sued defendant to recover damages for injury done to plaintiff's cab in a collision caused by the negligence of defendant's servant, and obtained judgment. Afterward plaintiff sued defendant to recover damages for personal injury which he had suffered in the same collision.

Held, that the damage to the cab and the personal injury constituted two distinct causes of action, and therefore the judgment recovered for injury to the cab was no bar to the subsequent action for the personal iujury, and plaintiff was entitled to recover.

THE plaintiff was a cab-driver, and while he was driv

ing his cab a two-horse vau driven by the defendant's servant came into collision with the cab, and the plaintiff was thrown from the box.

The plaintiff sued the defendant in the Whitechapel County Court to recover the amount of the damage done to the cab.

The defendant paid the amount claimed, and costs, into court.

Afterward the plaintiff discovered that he had sustained more serious personal injury owing to the collision than he had at first been aware of, and he wrote to the defendant asking for compensation; his request was refused, and he thereupon commenced the present action in the High Court to recover damages for the personal injury which he had suffered by being thrown from the box of the cab in the collision.

At the trial before Grove, J., the jury found a verdict for the plaintiff for 3501. damages.

A rule was afterward obtained calling on the plaintiff to show cause why there should not be a new trial or judgment entered for the defendaut, on the ground of misdirection in not holding that the proceedings in the County Court were a bar to the present action.

On the 5th of July, 1883, the Divisional Court (Pollock, B., and Lopes, J.,) made the rule absolute to render judgment for the defendant,and from this decision the plaintiff now appealed.

Waddy, Q. C., and Crispe, for plaintiff.
Murphy, Q. C., and Hannen, for defendant.

BRETT, M. R. It was argued on behalf of the defendant that the plaintiff could not succeed in the second action because he had already recovered damages in respect of the collision, and no person can sue twice

*S. C., 51 L. T. Rep. (N. S.) 529.

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for the same cause of action. Upon the other side it was said that the two injuries, although one part of the cause of action was common to both, were in reality two different causes of action, and no rule exists against bring separate actions for two separate and distinct causes of action. It was admitted that it may be oppressive to bring several actions, but it was said that if they were brought oppressively the court would have power to stop them, but that in this case, where there was an undeveloped injury, an action is brought bona fide, and is not oppressive. Therefore the question is whether the causes of action are the same, because the law is that a person cannot in different actions recover successive amounts of damages for the same cause of action, but he must when he first brings the action recover all the damages to which he is entitled in respect of that cause of action. When this rule is applied to damages which are or must be known to the plaintiff at the time of the first action, I have always thought it a good rule; but when applied to cases where the damage is not known at the time of the first action, but develops itself afterward, and when the claim is made bona fide for ulterior damages, and could not in fact have been made at the time of the first action, because the further damage was not known, I have always been of opinion that it is a harsh rule, and if it were to be established now for the first time it could not have my concurrence. It is based upon the maxim that it is for the benefit of the State that the litigation of individuals should come to an end. To my mind that is one of those maxims which appear to be the less true the more one looks into them. It cannot matter to the State, and the maxim is never vouched except in cases where the subsequent litigation would be just if it were not for the maxim. In these cases of undeveloped injury the maxim if not only untrue, but also unjust as between individuals. However the rule exists, and I have not the smallest intention of cavilling at it. It must remain, although the subsequent injuries are unknown, and cannot be known. Nevertheless in cases where there has already been a trial, one is to suppose that which is not the truth, viz., that the first jury tried the case, when the subsequent damage or injury could not be known to them, and that they have in contemplation of law given damages for the prospective injury. The question is whether the cause of action in this case is the same as that in the former action.. The cause of action alleged is an injury to the plaintiff's person by reason of the negligent driving of the defendant's servant. The existence of that negligence and the collision alone do not give any cause of action. Supposing that by negligent driving the wheel of a cart is run against a carriage, and there is no injury caused, the owner of the carriage could not succeed in an action for nominal damages; such an action would not lie. The cause of action in such a case is the negligence which causes appreciable injury to the vehicle. There must be both the negligence and the appreciable injury. Therefore in the first action the cause of action was the negligent driving and the appreciable injury to the plaintiff's cab. Suppose that in the days of strict pleading he had relied upon that cause of action, and had pleaded it, he could not have given evidence of the personal injury. The cause of action in such a case is injury to property. That is the cause of action, and is in respect of a right of property. Now the plaintiff brings an action in which he says that he has been injured in his person. That is a different right. He has a perfect right by law to have his person unmolested by the negligence of another man's servant. The mere fact of the defendant's vehicle having touched or shaken the person of the plaintiff would give no cause of action if no appreciable damage had been caused. Therefore it is clear that the cause of action is the negligent

driving and the injury to the plaintiff's person; that is, the injury to the right to have his person unmolested. That is a distinct cause of action, and therefore the plaintiff is entitled to maintain the second action. That in itself seems to me to be sufficient reasoning upon which to found a decision that the two causes of action are different. But different tests have been applied by judges at different times. They are not grounds of judgments, but tests by which to determine sometimes, but not always, whether the causes of action are the same or different. A very good, though not always a very accurate, test is to see whether the same sort of evidence would prove both cases. It is plain that where damage to a vehicle is in question persons who know about vehicles should be called to show what the injury was, but in the case of injury to the person doctors are called to show what was the external or internal damage to the person. The cases would be tried with two different sets of witnesses. In my opinion that is only a test, and not always an accurate one, but here it is sufficient to show that the causes of action are different. Therefore in my opinion we are not called upon in this case to apply the maxim I have mentioned, which for my part I think the law ought never to apply except in cases where it has already been determined that it must apply. It ought not to be stretched, and it is not applicable in this case. Therefore I am of opinion that the plaintiff is entitled to recover the sum awarded to him by the jury. Two different actions may be brought for different causes of action, but not to recover damages for the same cause of action. It follows that the judgment of the Divisional Court caunot be supported, and this appeal ought to be allowed.

BOWEN, L. J. The plaintiff in this case has recovered a verdict for 350l. damges for personal injuries sustained by him through the negligence of the defendant's servants in driving a van, which had come into collision with the plaintiff's cab, thrown the plaintiff from his box, and seriously injured him in his legs. Previously to bringing the action the plaintiff had sued the defendant in the County Court for damages done to his cab in the collision, and the particulars delivered under this plaint had been confined to the damages which the cab had sustained. The defendant in the County Court action paid 4l. 3s. into court, together with 6s. costs, upon which the plaintiff had discontinued the County Court plaint. The present action was now brought in the High Court for personal injuries, of the importance and extent of which the plaintiff alleged that he had been ignorant at the time of the County Court proceedings. On a motion for a new trial the court below have entered a verdict of the defendant, on the ground that the recovery in the County Court of damages in respect of the cab is a bar to any further action for injury to the plaintiff's person. The rule of the ancient common law is, that where one is barred in any action, real or personal, by judgment, demurrer, confession, or verdict, he is barred as to that or the like action of the like nature for the same thing forever. "It has been well said," says Lord Coke in a note to Ferrer's case (6 Coke, 9 a), Interest reipublicæ ut sit finis litium, otherwise," says Lord Coke, "great oppression might be done under color and pretense of law." See also Sparry's case, 5 Coke, 61; Higgen's case, bid. 45 b, Year-book, 12 Edw. 4, p. 13, 9. Accordingly in Hudson v. Lee, 4 Co. 43, it was held to be a good plea in bar to an appeal of mayhem that the appellant had recovered damages in an action for trespass brought for the same assault, battery and wounding. So in Bird v. Randall, 3 Burr. 1346, it was decided to be an answer to an action for seducing a man's servant from his service that penalties had previously been recovered by the master in satisfaction of the injury done him. So too in Phil


lips v. Berryman, 3 Doug. 286, a recovery in replevin was held to be a good bar to an action on the Statute of Marlbridge for au excessive distress, on the ground that the plaintiff had already had his remedy, and that a recovery in one personal action is a bar to all other personal actions on the same subject. The principle is frequently stated in the form of another legal proverb: Nemo debet bis vexari pro eâdem causa. It is a well-settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all. The difficulty in each instance arises upon the application of this rule. How far is the cause which is being litigated afresh the same cause in substance with that which has been the subject of the previous suit? "The principal cousideration," says De Gray, C. J., in Hitchin v. Campbell, 2 Wm. Bl. 827, "is whether it be precisely the same cause of action in both, appearing by proper averments in a plea, or by proper facts stated in a special verdict, or a special case; and one great criterion," he adds, "of this identity is that the same evidence will maintain both actions." See per Lord Eldon in Martin v. Kennedy, 2 Bos. & Pull. 71. "The question," says Grose, J., in Seddon v. Tutop, 6 T. R. 607, "is not whether the sum demanded might have been recov⚫ ered in the former action; the only inquiry is whether the same cause of action has been litigated and considered in the former action." Accordingly, though a declaration contain counts under which the plaintiff's whole claim might have been recovered, yet if no attempt was made to give evidence upon some of the claims, they might be recovered in another action. Thorpe v. Cooper, 5 Bing. 129. It is evident therefore that the application of the rule depends not upou any technical considerations of identity of cause of action, but upon matters of substance. I have now to consider the application of the above doctrine to the present action; and the question to be decided is, whether the damage done by the negligent driving of the defendant's servant to the plaintiff's cab is in substance, the same cause of action as the damage caused by such negligence to the plaintiff's person. Nobody can doubt that if the plaintiff had recovered any damages for injuries to his person, he could not have maintained a further action for fresh bodily injuries caused by the same act of negligence, merely because they had been discovered or developed subsequently. See Fetter v. Beal, 1 Lord Raymond, 339. "The jury," says the court in that case, "have in the former action considered the nature of the wound and given damages for all the damage that it had done to the plaintiff." This authority however leaves still open the point we now have to determine, whether the cause of action arising from damage to the plaintiff's cab is in substance identical with that which accrues in consequence of the damage caused to his person. In order clearly to elucidate this question, let me assume for the sake of argument that the damage had been caused by some act of the defendant himself, and not merely an act of his servant. According to the old distinctions of forms of actions, which still have a historical value as throwing light upon the priuciples and definitions of the common law, the form of action upon such a hypothesis would have been trespass to the person for the personal injury-trespass to goods for the age to the vehicle. Injury would have been doue to the plaintiff in respect of two absolute and independent rights, the distinction between which is inveterate both in the English and the Roman law. Every one in this country has an absolute right to seourity for his person. Everybody has further an absolute right to have the enjoyment of his goods and chattels unmeddled with by others. In the hypothetical case I am assuming both these rights would have -been injured, and though the two injuries might have



been combined in one suit, could it have been said that the subject-matter of each grievance was the same? Applying the test of identity furnished by De Groy, C. J., in Hitchin v. Campbell, the first matter that is obvious is, that the same evidence would not have supported an action for trespass to the person and an action for trespass to the goods. In the one case the identity of the man injured and the character of his injuries would be in issue, and justifications might conceivably be pleaded as to the assault, which would have nothing to do with the damage done to the goods and chattels. In the other case the plaintiff's title to the goods might have been in issue, in addition to the question of the damage done to them. Different provisions of the statute of limitations might possibly have applied in each case. And finally the damage in one case might have been directly due to the wrongful act complained of; in the other case it might not. There is no authority, so far as I know, in the books for the proposition that the recovery in an action for a trespass to the person would be a bar to the maintenance of an action for any trespass to goods committed at the same time. In the present instance, as the defendant himself was not driving, but his servant, trespass would not have lain under the old law, and the plaintiff's remedy would have been in an action on the case for negligence, based on the negligent management by the servant of his master's horses, a negligence for which in the eye of the law the master or employer is responsible. Now what is the gist of such an action on the case for negligence? If the whole of the plaintiff's case were to be stated, and the entire story told, it seems to me that it would have comprised two separate or distinct grievances, narrated, it is true, in one statement or case. Actions for the negligent management of any animal, or any personal or movable chattel, such as a ship or machine or instrument, are all based upon the same principle, viz., that a person who contrary to his duty conducts himself negligently in the management of that which contains in itself an element of danger to others, is liable for all injury caused by his want of care or skill. Such an action is based upon the union of the negligence and the injuries caused thereby, which in such an instance will as a rule involve, and have been accompanied by specific damage. Without remounting to the Roman law, or discussing the refinements of scholastic jurisprudence, and the various uses that have been made either by judges or juridical writers of the terms "injuria" and "damnum," it is sufficient to say that the gist of an action for negligence seems to me to be the harm to person or property negligently perpetrated. In a certain class of cases the mere violation of a legal right imports a damage. "Actual perceptible damage," says Parke, B., in Embrey v. Owen, 6 Ex. 353, "is not indispensable as the foundation of an action; it is sufficient to show the violation of a right, in which case the law will presume damage." But this principle is not as a rule applicable to actions for negligence which are not brought to establish a bare right, but to recover compensation for substantial injury. "Generally speaking," says Littledale, J., in Williams v. Morland,2 B. & C. 916, "there must be temporal loss or damage accruing from the wrongful act of another, in order to entitle a party to maintain an action on the case. See Fay v. Prentice, 1 C. B. 835, per Maule, J. This leads me to consider whether in the case of an accident caused by negligent driving, in which both the goods and the person of the plaintiff are injured, there is one cause of action only, or two causes of action which are severable and distinct. This is a very difficult question to auswer, and I feel great doubt and hesitation in differing from the judgment of the court below, and from the great authority of the present chief justice of England. According to the popular


use of language the defendant's servant has done one act and one only-the driving of the one vehicle negligently against the other. But the rule of law which I am discussing is not framed with reference to loose opul expressions of the sort, but for the sake of preventing an abuse of substantial justice. Two separate kinds of injury were in fact inflicted, and two wrongs done. The mere negligent driving in itself, if accompanied by no injury to the plaintiff, was not actionable at all, for it was not a wrongful act at all till a wrong arose out of the damage which it caused. One wrong was done as soon as the plaintiff's enjoyment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff's persou. Both causes of action, in one sense, may be said to be founded upon one act of the defendant's servant, but they are not on that account identical causes of action. The wrong consists in the damage done without lawful excuse, not the act of driving, which if no damage had ensued, would have been legally unimportaut. It certainly would appear unsatisfactory to hold that the damage done in a carriage accident to a man's portmanteau was the same injury as the damage done to his spine, or that an action under Lord Campbell's act by the widow and children of a person who had been killed in a railway collision is barred by proof that the plaintiff recovered in his life-time for the damage done to his luggage. It may be said that it would be convenient to force persons to sue for all their grievances at once, and not to split their demands; but there is no positive law (except so far as the County Court acts have from a very early date dealt with the matter) against splitting demands which are essentially separable (see Seddon v. Tutop, 6 T. R. 607), although the High Court has inherent power to prevent vexation or oppression, and by staying proceedings, or by apportioning the costs, would have always ample means of preventing any injustice arising out of the reckless use of legal procedure. In the present case the plaintiff's particulars in the County Court were confined to the damage done to his cab; the injury to his person therefore was neither litigated nor considered in the County Court. The real test is not, I think, whether the plaintiff had the opportunity of recovering in the first action what he claims to recover in the second. See Seddon v. Tutop, 6 T. R. 607. With all respect, I do not see how it can be said that Nelson v. Couch, 15 Com. Bench (N. S.) 99, so decides. That case establishes only the converse rule, viz., that the maxim nemo debet bis vexari cannot apply where in the first action the plaintiff had no such opportunity of satisfying his claim. The language of Coleridge, J., and the other members of the court in Hodsoll v.Stellebrass, 11 Adol. & El. 301, must, I think, be read by the light of the special circumstances of that case, and so read is not inconsistent with the view at which I have here arrived. I am in no way departing from the language of this authority in holding, as I do in the present instance, that the damage for which the plaintiff is now suing accrues from a different injury, and therefore a different wrong, from that for which he recovered damages in the County Court. The view at which I have arrived is in conformity with the reasoning of the judgment recently pronounced by this court in the case of Mitchell v. Durley Main Colliery Co., where it was held (reversing Lamb v. Walker, 3 Q. B. Div. 389; 28 Moak Eng. Rep. 332) that each fresh subsidence of soil in the case of withdrawal of support gave rise to a fresh cause of action. Nor do I feel called upon to extend the application of the sound and valuable principle of law that none shall be vexed twice for the same cause of action to a case to which it has never yet been applied, and to which it can only be applied by pursuing aualogy to

lengths which would involve practical injustice. The present case is one in which 1 am couscious that lawyers of great authority do differ and will differ. But on the whole, in my opinion, the judgment of the Court of Queen's Bench ought to be reversed, and the judg ment entered at the trial for the plaintiff be restored, with costs to the plaintiff, including the costs below and of this appeal.

Lord COLERIDGE, C. J., dissenting. In this case I am, with much regret, unable to concur in the judg ment of my brother Bowen, to which I understand the master of the rolls to assent. I should have been glad in the face of this difference of opinion, to have given reasons at length for my inability to agree in the judgment. But the plaintiff very naturally presses for judgment, and I am unable to do more than shortly to express my dissent. It appears to me that whether the negligence of the servant or the impact of the vehicle which the servant drove be the technical cause of action, equally the cause is one and the same. That the injury done to the plaintiff is injury done to him, at one and the same moment, by one and the same act, in respect of different rights--i. e., his person and his goods-I do not in the least deny; but it seems to me a subtlety not warranted by law to hold that a mau cannot bring two actions if he is injured in his arm and in his leg, but can bring two if besides his arm and leg being injured, his trousers, which contaiù his leg, and his coat-sleeve, which contains his arm, have been torn. The consequences of holding this are so serious, and may be very probably so oppressive, that I at least must respectfully dissent from a judgment which establishes it. I think that the court below was right, and that this appeal should be dismissed.

Judgment reversed.


SURETY-ACTION ON BOND-NOTICE OF DEFAULT.— A bond by a principal and a surety was conditioned that the principal should pay to V. all indebtedness existing or to exist from the principal to V. under existing or future contracts between him and V., and waived notice of non-payment on all notes executed, indorsed or guaranteed by the principal to V. In a suit on the bond against the obligors to recover the amount of the notes executed by the principal to V., and other notes indorsed and guaranteed by him to V., held, that it was not necessary to allege or show any notice to the surety of a default by the principal in paying V. Murphy v. Victor Sewing Machine Co. Opinion by Blatchford, J. [Decided Jan. 5, 1885.]


AGENCY-SALE OF SEWING MACHINES AND ATTACHAGENT-LIABILITY OF SURETY-STATUTE OF LIMITATIONS.- (1) A written agreement between a company making sewing machines and a consignee to receive and sell them on commission, provided that the commission should be calculated on the retail prices for which the machines should be sold, as reported by the consignee, and that attachments should be sold to the consignee at the lowest wholesale rates. The proceeds of sales of machines beyond the commission belonged to the company. In a suit by it against the consignee, and a person liable with him on a boud for his indebtedness, to recover such proceeds, and the sale price of attachments, the complaint set forth schedules showing the retail price of each machine as so reported, and the excess of money, beyond commission, retained by the consignee, and the price of each attachment sold to the consignee. Held, that the complaint was sufficient. (2) The con

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