« PreviousContinue »
The parallel between A
jury. It is not improper to aver it by way of recital from the dock to the witness stand, but a companion or description. The interest and motives of the wit- in guilt, included in the same indictment not on trial, ness must be the same whether he is to be afterward be excluded therefrom. tried under the same or another indictment. As said Exceptions were taken to some portions of the by Beasley, J., in a convincing argument of the ques-charge of the judge to the jury. No argument has tion in State v. Brien, 3 Vroom, 414: “The only rea been submitted in their support. They are clearly son for the rejection of such a witness is, that his own untenable, and require of us only a passing word. accusation of crime is written on the same piece of pa
Exceptions overruled. por with a charge against the culprit whose trial is in Walton, Virgin, Libbey, Emery and Haskell, JJ., progress.'
concurred. 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
MARRIAGE - HUSBAND AND WIFE – PARTNERleast interest. But that reason failed sometimes. In
SHIP. many civil cases a party had no interest. Then decided that public policy or expediency prevented CITY COURT OF BROOKLYN, GENERAL TERM, 1885. the reception of the testimony A party to the record was not permitted to testify, whether interested or
NOEL V. KINNEY. not. If only a nominal plaintiff, he could not testify
A married woman is not authorized to form and carry on a either for the plaintiff or defendant. Kennedy v. Niles 14 Me. 54. Without much reasoning upon the subject,
business partnership with her husband, and she is not liable on
a note given in the course of the business the law pronounced against it. The rule was general.
thereof. But as stringent as the rule was, it did not apply to indictments to its full extent.
CTION on a firm note. The opinion states the civil and criminal cases was not kept up. If a man
point. was indicted and pleaded guilty, he could testify for N. P. O'Brien, for plaintiff. his co-defendant. State v. Joncs, suprat. If however
G. Storm Carpenter, for defendant. he was sued for the same cause, and became defaulted, he could not testify for his co-defendant. Gilmore v. REYNOLDS, C. J. The respondent and her husband Bowden, 12 Me. 41... Courts seemed inclined not to are sued as partners upon a note sigued by her husregard a co-chefendant in a criminal case as a party, band in the firm name of J. P. Kinney & Co. As the unless a party to the issue on trial.” That distinc- complaint is now framed, the action is not opon the tion is taken in the English cases before cited. To be consideration for which the note was given, nor are incompetent to testify, the defendants must be in any facts alleged for the purpose of charging the decharge of the same jury. Mr. Starkie struck the fendant as a married woman, but the claim rests same key, who declared that an indictment against simply upon the written instrument, and the case several is several as to each.'' It is plaivly seen that therefore presents the question whether a married there is much authority and reason for regarding an woman may carry on business as a partner with her indictment of two
persone as in effect husband. As this question has been ruled both ways, a joint and several indictment; joint when the ac and able and exhaustive opinions have been given, it cused are tried jointly; and several when tried sep will only be necessary for us to give a general statearately.
ment of our reasons for the conclusion at wbich we But as before intimated, we are not to look upon have arrived. the question before us as exclusively one at common It must be conceded that at common law the unity law. Our statutory enactments bear upon it. They of husband and wife was such as to preclude the exhave weakened is not abrogated the argument of pub- istence of a business co-partnership between themi; lic policy. It was no doubt the design of the Legisla- and such is still the rule unless it has been changed by ture that the objection to the competency of parties some statute. The only statutes claimed to have efas witnesses should be removed in both civil and fected such a result are the married woman's act of criminal cases. In civil cases the door is opened 1848, as amended by chapter 375 of the Laws of 1819, wide. In criminal cases the provision is this: “In and the act of 1860 as amended by that of 1862. all criminal trials the accused shall, at his own re The idea of a co-partnership involves the holding of quest, buí not otherwise, bo a competent witness. property in common, and the transaction of business
* * The husband or wife of the accused is a com together by the partners. First as to property. The petent witness.” R. S., ch. 1:31, $ 19. While this enact provisions pertinent to the question are section 3 of ment.does not cover tho present question with literal the act of 1818 as amended, and section 1 of the act of exactness, it approaches it, affects and influences it, 1860. The note in suit was made before the passage of and requires us to examine the matter in the light of the act of 1884. the legislative policy declared by it. If both defend By these statutes "any married female may take by ants were on trial at the same time, either could tes inheritance, or by gift, grant, devise or bequest from tify. Com. v. Brown, 130 Mass. 279. If the argument any person other than her husband and hold to her sole for the defendant is sound, then the common-law rule (ind separute usl, and convey and devise real and perhas become reversed. Defendants can testify against sonal property, and any interest or estate therein, and each other when tried together, and cannot so testify the rents, issues or profits thereof, in the same manuer when tried apart. We do not assent to such a propo aud with liko effect as if she were unmarried, and the sition.
same shall not be subject to the disposal of her husband The admission of the evidenco did no injustice. It nor be liable for his debts" (1848). boro less heavily upon tho defendant than it would “ The property both real and personal which any have if the witness had not been himself indicted. As married woman now owns as her sole and separate Lord Ilale says, the indictment against him “doth property; that which comes to her by descent, derise, much weaken and disparago his testimony.” It would bequest, gift or grant; that which she acquires by her present a singular inconsistency in criminal proco- trade, business, labor or services carried on or perdure, if even one's wife may be compelled to testify formed on her sole or separate account" shall remain against him, and a co-defendant on trial may be called her sole and separate property, not subject to the con
(commenting on the acts of 1818, 1819 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 ou 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 Fairlre v. Bloomingdale, 141 Abb. N. ('. 311; 29 Alb. L. J. 285, that a further discussion would seem to be out of place.
Exco ons overruled and judgment for defendant, Frederica M. Kimey, with custs.
NEGLIGENTE-DISTIVCT CAUSES OF ACTION
ENGLISHI COURT OF APPEAL, JULY 12, 1884.
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 is to him, her property must be sole and separate and held to her sole aud 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 separato use of such partuer, nor freo from the control or disposal of the other or from liability for his debts.
Iu 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
says: “So the common-lay 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 ou of business. “A married woman may bargain, sell, assign, and transfor her separate personal property, and carry on any trule 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 bo her solo and separate property, and may be used or invested by her in her own name.' Laws of 1860, ch. 90, $:2.
This is tho enabling statute from which the married woman derives whatever power sho has to carry on a trade or business. Where is the provision which allthorized her to enter into co-partnership with her husband? She may sell her "separato personal property," not the partnership property, as she might have occasion to, from day to day in the course of trade.
She may carry on trade or busines or perform labor or services on her sole or separato account; not on joint account with her husband partner. Judge Brown in the case of Girall v. Kinney Kings ('o. Specinl Term), suggests that the words “sole and separate" relate to “labor or services"and not
"cradle 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 solo anil separate property. This plainly refers to the following section which goes on to authorize her to carry on traclo or business. (ne 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 can be made harmonjous 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
BRUNSDEX V. IIUMPHREY. Plaintiff sued defendant to recover damages for injury done
to plaintiff's cabin a collision caused by the negligence of
defendant's servant, and obtained judgment. Afterwarıl painuift sued defenılant to recover damages for
personal injury which he hall suffered in the same col
lision. Halil, that the damage to the cab and the personal injury con
stituted two distinct causes of action, and therefore the judgment recovered for injury to the cab was no bar to the subsequent rution for the personal injury, and plaint
ifr was entitled to recover. IIE
ing his cab a two-horso van driven by the defendant's servant came into collision with the cab, and the plaintill was thrown from the box.
The plaintiff'sued the defendant in the Whitechapel ('ounty ('ourt to recover the amount of the damago done to the cal.
The defendant paid the amount claimed, and costs, into court.
Afterward the plaintift discorered that he had sus. tained more serious personal injury owing to the col. lision 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 bus of the cab in the collision.
At the trial before Grove, J., the jury found a verdict for the plaintiff for 3301. camages.
A rule was afterward obtained calling on the plaintili to show cause why there should not be a new trial or judgment entered for the defendant, on the ground of misdirection in not holding that the proceedings in the County Court were a bar to the preseni action.
On the 5th of July, 1883, the Divisional Court (Pula lock, B , and Lopes, J.,' made the rule absolute to rene der judgment for the defendant,and from this decision the plaintiff
' now appealed. l'audily, Q. C., and (rispe, for plaintiff. Murphy, Q. (., and Tunnen, for defendant.
BRITT, 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 gue twico
"S. C., 51 1.. T. Rep. (X. S. 1529).
for the same cause of action. Upon the other side it driving and the injury to the plaintiff's person; that was said that the two injuries, although one part of is, the ivjury to the right to have his person unmothe cause of action was common to both, were in real- lested. That is a distinct cause of action, and thereity two different causes of action, and no rule exists fore the plaintiff is entitled to maintain the second against bring separate actions for two separate and dis action. That in itself seems to me to be sufficient reatinct causes of action. It was admitted that it may be soning upon which to found a decision that the two oppressive to bring several actions, but it was said that causes of action are different. But different tests have if they were brought oppressively the court would have been applied by judges at different times. They are power to stop them, but that in this case, where there not grounds of judgmeuts, but tests by which to dewas an undeveloped injury, an action is brought bona termine sometimes, but not always, whether the fidle, and is not oppressive. Therefore the question is causes of action are the same or different. A very whether the causes of action are the same, because the good, though not always a very accurate, test is to see law is that a person cannot in different actions recover whether the same sort of evidence would prove both successive amounts of damages for the same cause of cases. It is plain that where damage to a vehicle is in action, but he must when he first brings the action re question persons who know about vehicles should be cover all the damages to which he is entitled in re called to show what the injury was, but in the case of spect of that cause of action. When this rule is ap- injury to the person doctors are called to show what plied to damages which are or must be known to the was the external or internal damage to the person). plaintiff at the time of the first action, I have always The cases would be tried with two different sets of thought it a good rule; but when applied to cases witnesses. In my opinion that is only a test, and not where the damage is not knowu at the time of the always an accurate one, but here it is sufficient to show first action, but develops itself afterward, and when that tbe causes of action are different. Therefore in the claim is made bona file for ulterior damages, and my opinion we are not called upon in this case to could not in fact have been made at the time of the apply the maxim I have mentioned, which for my part first action, because the further damage was not I think the law ought never to apply except in cases known, I have always been of opinion that it is a harsh where it has already been determined that it must aprule, and if it were to be established now for the first ply. It ought not to be stretched, and it is not applitime it could not have my concurrence. It is based cable in this case. Therefore I am of opinion that the upon the maxim that it is for the benefit of the State plaintiff is entitled to recover the sun awarded to him that the litigation of individuals should come to an by tho jury. Two different actions may be brought for end. To my mind that is one of those maxims which different causes of action, but not to recover damappear to be the less true the more one looks into ages for the same cause of action. It follows that the thom. It cannot matter to the Stato, and the maxim judgment of the Divisional Court cannot be supported, is never vouched except in cases where the subsequent and this appeal ought to be allowed. litigation would be just if it were not for the maxim. BOWEN, L. J. The plaintiff in this case has recovered In these cases of undeveloped injury the maxim if not a verdict for 3501. damges for personal injuries susonly untrue, but also unjust as between individuals, tained by him through the negligence of the defendIlowever the rule exists, and I have not the smallest ant's servants in driving a van, which had come iuto intention of cavilling at it. It must remain, although collision with the plaintiff's cab, thrown the plaintiff the subsequent injuries are unknown, and cannot be from his box, and seriously injured him in his legs. kuown. Nevertheless in cases where there has al Previously to bringing the action the plaintiff had ready been a trial, one is to suppose that which is not sued the defendant in the County Court for damages the truth, viz., that the first jury tried the case, when done to his cab in the collision, and the particulars dethe subsequent damage or injury could not be known | livered under this plaint had been confined to the to them, and that they have in contemplation of law damages which the cab had sustained. The defendant given damages for the prospective injury. The ques in the County Court action paid 41. 3s. into court, totion is whether the cause of action in this case is the gether with 6s. costs, upon which the plaintiff had dissame as that in the former action. Tho cause of action continued the County Court plaint. The present acalleged is an injury to the plaintiff's person by reason tion was now brought in the High Court for personal of the negligent driving of the defendant's servant. injuries, of the importance and extent of which the The existence of that negligence and the collision plaintiff alleged that he had been ignorant at the time alone do not give any cause of action. Supposing that of the ('ounty Court proceedings. On a motion for a by negligent driving the wheel of a cart is run against new trial the court below havo entered a verdict of the a carriage, and there is no injury caused, the owner of
defendant, on the ground that the recovery in the the carriage could not succeed in an action for vomi- | County ('ourt of damages in respect of the cab is a bar nal damages; such an action would not lie. The cause to any further action for injury to the plaintiff's perof action in such a case is the negligence which causes
The rule of the ancient common law is, that appreciable injury to the vehicle. There must be both
where one is barred in any action, real or personal, by the negligence and the appreciable injury. Therefore judgment, demurrer, confession, or verdict, he is in the first action the cause of action was the negligent
barred as to that or the like action of the like nature driving and the appreciable injury to the plaintiff's for tho same thing forever. “It has been well said,” cab. Suppose that in the days of strict pleading ho says Lord Coke in a noto to Ferrer's oase (6 Coke, 9 a), had relied upon that cause of action, and had pleaded Interest reipublicæ ut sit finis litium, otherwise,” it, he could not have given evidence of the personal in says Lord Coke, “ great oppression might be done unjury. The cause of action in such a caso is injury to
der color and pretense of law." See also Sparry's property. That is the cause of action, and is in re case, 5 Coke, 61; Iliggen's case, 6 id. 45 b, Year-book, spect of a right of property. Now the plaintiff brings 12 Edw. 4, p. 13, 9. Accordingly in Hudson v. Lee, 4 an action in which he says that he has been injured in Co. 43, it was held to be a good plea in bar to an appeal his person. That is a different right. IIe has a perfect of niayhem that the appellant had recovered damages right by law to have his person unmolested by the in an action for trespass brought for the same assault, negligence of another man's servant. The mere fact battery and wounding. So in Bird v. Randall, 3 Burr. of the defendant's vehicle having touched or shaken 1346, it was decided to be an answer to an actiou for the person of the plaintiff would give no cause of ac seducing a man's servant from his service that penaltion if no appreciable damage had been caused. There ties had previously been recovered by the master in fore it is clear that tho causo of action is the negligent satisfaction of the injury done him. So too in Phil
lips v. Berryman, 3 Doug. 286, a recovery in replevin been combined in one suit, could it have been said was held to be a good bar to an action on the Statute that the subject-matter of each grievance was tho of Marlbridge for au excessive distress, on the ground same? Applying the test of identity furnished by De that the plaintiff had already had his remedy, and that Grey, C. J., in 1litchin v. Campbell, the first matter a recovery in one personal action is a bar to all other that is obvious is, that the same evidence would not personal actions on the same subject. Tho principle have supported an action for trespass to the person is frequently stated in the form of another legal prov- and an action for trespass to the goods. In the one erb: Nemo (lebet bis 1'xuri pro eadem cusca. It is a
case the identity of the man injured and the character well-settled rule of law that damages resulting from of his injuries would be in issue, and justifications one and the same cause of action must be assessed and might conceivably be pleaded as to the assault, which recovered once for all. The difficulty in each instance woull have nothing to do with the damage done to the arises upon the application of this rule. How far is goods and chattels. In the other case the plaintiff's the cause which is being litigated afresh the same title to the goods might have been in issue, in addition cause in substance with that which has been the sub to the question of the damage done to them. Ditlerject of the previous suit? “ The principal considera ent provisions of the statuto of limitations might postion,” says De Gray, ('. J., in litchin 4. Campbell, 2 sibly have applied in each case . And linally the damWm. Bl. 8:27, “is whether it be precisely the same age in one case might have been directly due to tho cause of action in both, appearing by proper averments wrongful act complained of; in the other case it might in a plea, or by proper facts stated in a special ver not. There is no authority, so far as I know, in the dict, or a special case; and one great criterion," he books for the proposition that the recovery in an acadds, “of this identity is that the same evidence will tion for a trespass to the person would be a bar to the inaintain both actions." See per Lord Elon in Mar maintenance of an action for any trespass to goods tin v. Kennedy, 2 Bos. & Pull. 71. “The question, committed at the same time. In the present instance, says Grose, J., in Seddon v. Tutop, 6 T. R. 607, “is not as the defendant himself was not driving, but his serwhether the sun demanded might have been recor. vant, trespass would not have lain under the old law, ered in the former action; the only inquiry is whether and the plaintiff's remedy would have been in an acthe same cause of action has been litigated and con tion on the case for negligence, based on the negligent sidered in the former action.” Accordingly, though management by the servant of his master's horses, a a declaration contain counts under which the plaint- | negligence for which in the eye of the law the master itf's whole claim might have been recovered, yet if no or employer is responsible. Now what is the gist of attempt was made to give evidence upon some of the such an action on the 'case for negligence? If the claims, they might be recovered in another action. whole of the plaintiff's caso were to be stated, and the Thorpe v. Couper, 5 Bing. 129. It is evident therefore entire story told, it seems to me that it would have that the application of the rule depends not upon any comprised two separate or distinct grievances, narratechnical considerations of identity of cause of action, ted, it is true, in one statement or case. Actions for but upon matters of substance. I have now to con the negligent management of any animal, or any persider the application of the above doctrine to tho pres sonal or movable chattel, such as a ship or machine or ent action; and the question to be decided is, whether instrument, are all based upon the samo principle, viz., the damage done by the negligent driving of the de that a person who contrary to his duty conducts himfendant's servant to the plaintiff's cab is in substance self negligently in the management of that which conthe same cause of action as the damage caused by such tains in itself an element of danger to others, is liablo negligence to the plaintiff's person. Nobody can doubt for all injury caused by his want of care or skill. Such tbat if the plaintiff had recovered any damages for an action is based upon the imion of the negligence injuries to his person, he could not have maintained a and the injuries caused thereby, which in such an infurther action for fresh bodily injuries caused by the stance will as a rule involve, and have been accompansame act of negligence, merely because they had been ied by specific damage. Without remounting to the discovered or developed subsequently. See Tetter vi Roman law, or discussing the refinements of scholastic Beal, 1 Lord Raymond, 339). "The jury," says the jurisprudence, and the various uses that have been court in that case, ' have in the former action con made either by judges or juridical writers of the terms sidered the nature of tho woud and given damages ‘injuria" and " damnum,” it is suflicient to say that for all the damage that it had done to the plaintiff." the gist of an action for negligence seems to me to be This authority however leaves still open the point we the harm to person or property negligently perpetranow have to determine, whether the cause of action ted. In a certain class of cases the mere violation of a arising from damage to the plaintiff's cab is in sube legal right imports a damage. “Actual perceptible stance ideutical with that which accrues in conse clamage," says Parke, B., in Embrey v. Quin, 6 Ex. quence of the damage caused to his person. In order 35:3, is not indispensable as the foundation of an acclearly to elucidate this question, let mo assume for tion; it is sufficient to show the violation of a right, in the sake of argument that the damago had been which case the law will presume damage." But this caused by some act of tho defendant himself, and not principle is not as a rulo applicable to actions for negmerely an act of his servant. According to the old ligence which are not brought to establish a bare right, distinctions of forms of actions, which still have a his but to recover compensation for substantial injury. torical value as throwing light upon the priuciples and “Generally speaking," say's Littledale, J., in 1’illiams definitions of the common law, the form of action v. Vlorlund, B. & ('. 916, there must be temporal loss upou such a hypothesis would have been trespass to or damage accruing from the wrongful act of another, the person for the personal injury-trespass to goods in order to entitlo a party to maintain an action on the for the damage to the vehicle. Injury would have been case." See F'iy r. Prentice, 16. B. 8:3), per Jaule, J. doue to the plaintiff in respect of two absolute and in- This leads me to consider whether in the case of an dependent rights, the distinction between which is in- accident caused by negligent driving, in which both veterate both in the English and the Roman law. the goods and the person of the plaintiff are injured, Every one in this country has an absoluto right to se there is one cause of action only, or two causes of accurity for his person. Everybody has further an abso tion which are severable and distinct. This is a very lute right to have the enjoyment of his goods and chat. difficult question to answer, and I feel great doubt and tels unmeddled with by others. In the hypothetical hesitation in differing from the judgment of the court case I am assuming both these rights woulil have below, and from the great authority of the present been injured, and though the two injuries might have chief justice of Eugland. According to the popular
lengths which would involve practical injustice. The present case is one in which lam conscious that lawyers of great authority du differ and will differ. But on the whole, in my opinion, the judgment of the Court of Queon's Bench ought to be reversed, and the judgment 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 judgment 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 sanie 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 contaiu 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.
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 popular expressions of the sort, but for the sake of preventing an abuse of substantial justice. Two separate kinds of injury were in fact iuflicted, 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 enjoy. ment of his property was substantially interfered with. A further wrong arose as soon as the driving also caused injury to the plaintiff's person. Both causes of action, in one sense, may be said to be founded upou 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 unimportant. 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 acı 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 ('ounty Court acts have from a very early date dealt with the matter) against splitting demands which are essentially separable (see Seidon v. Tutop, 6 T. R. 607), although the Iligh 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 tho opportunity of recovering in the first action what he claims to recover in the second. Seo Sedilon v. Tutop, 6 T. R. 607. With all respect, I do not see how it can be said that Nelson v.Couch, 15 ('om. Bench (N. S.) 99, so decides. That case establishes only the converse rule, viz., that the maxim ncmo debrt, bis vexuri cannot apply where in the first action the plaintifr_had no such opportunity of satisfying his claim. The language of ('oleridge, J., and the other members of the court in Ilodsoll v.Stcllebruss, 11 Adol. & El. 301, must, I think, be read by the light of the special circumblances 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 Juin ('olliery ('0., where it was held (reversing Lamb v. Muller, 3 Q. B. Liv. 389); 28. Moak Eng. Rep. 33:2) 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 analogy to
UNITED STATES SUPREME COURT AB
ETY-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 recorer the amount of the notes executed by the principal to V., and other notes indorsed and guaranteed by him to V., hold, that it was not necessary to allege or show any motico to the surety of a default by the principal in paying V. Jurphy v. Victor Sewing Machine Co. Opinion by Blatchford, J. [Decided Jan. 5, 1885.]
AGENCY-SALE OF SEWING MACHINES ANI) ATTACHMENTS- PLEADING-BOND OF AGENT-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 tho 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 bond 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 80 reported, and the excess of money, beyond commission, retained by the consignee, and the price of each attachment sold to the consignee. I/cld, that tho complaint was sufficient. (2) The con