was held that a statement of a conductor of railroad train, made immediately after an accident, and before he had time to contrive or devise a falsehood by which to exonerate himself from blame, is admissible as part of the resgestæ in an action by the widow of an engineer killed by the accident. The court cited Hanover R. Co. v. Coyle, 55 Penn. St. 402; Aveson v. Kinnaird, 6 East, 188; King v. Foster, 6 C. & P.; Commonwealth v. McPike, 2 Cush. 281; Rawson v. Haigh, 2 Bingh. 99; Beaver v. Taylor, 1 Wall.; Insurance Company v. Mosley, 8 id. ; and said: "It was important to show what Fish and Ginther thought of the meaning of the dispatch, while they were acting under it, as the negligence in this case consists of the wording of the dispatch, so as to mislead them; and they were bound by the rules of the company to understand it alike before acting under it. The declaration of Fish (that he "had until 10:10 to make Beard's ") was made within a few seconds after the casualty, in view of the wrecked train, and amidst the search for persons whose fate was then unknown, and while Ginther, who lived but thirty minutes, was dying from the injuries he had received. He had no time to contrive or devise a falsehood, by which to exonerate himself from blame; and his declaration was so connected with the circumstances then surrounding him, and which form a part of this case, as to give it importance in determining the fact that he and his engineer had run the engine in the honest belief that they had until ten minutes after ten o'clock to reach Beard's station. The declaration related alone to the declarant's state of mind when he received the dispatch, and the continuance of that state of mind while he was acting under it, and it was made before the expiration of the fatal ten minutes in question, and prior to any knowledge on his part that he, and not the conductor and engineer of the west bound train, had misconstrued the dispatch, the first information of that kind being communicated by Waters' response, 'No, you had not,' to his declaration." See McDermott v. Hannibal, etc., R. Co., 73 Mo. 516; S. C., 39 Am. Rep. 526. In Penn. Co. v. Rudel, 100 Ill. 603, it was held that evidence of what a flagman of a railroad company said and did at the time and just before a person about to take passage on a train was struck by another train passing on another track at a rapid speed, is pertinent in an action to recover for the injury.

A curious exemption case is Davison v. Sechrist, 28 Kans. 324, holding that an iron safe, one set of abstracts, and a cabinet and table are "tools and instruments" exempt from execution against an ab

stracter of titles. The court said: "As often stated by this court, the exemption laws must receive a liberal construction for the purpose of carrying out their object and design, and one of the main objects of exemption laws is that every person shall have the means of carrying on some useful business, and thereby of obtaining an honest livelihood. If the property in the present case is not exempt, then the plaintiff will be stripped of all means of carrying on his business, and of thereby procuring a livelihood, and will be compelled to seek some other mode of obtaining a subsistence. This would not be in accordance with the beneficent design of the exemption laws."

The same court held, in Noel v. Drake, 28 Kans. 265, that a contract, with the director and president of a National bank, to buy of him shares of the bank at a certain price, on condition that the buyer should be made cashier of the bank, is void as against public policy. Horton, C. J., said: "In the relation of trust and confidence which Drake

occupied as a director and president of the bank, which required him to look only to the best interests of the bank and its stockholders, it was improper for him to be influenced by agreements with or considerations from a stranger to the association in the selection of a cashier, or in the discharge of any of his other official duties. The appointment of officers by the directors of a National bank ought not to be made a matter of bargain and sale between applicants and members of the board. Guernsey v. Cook, 120 Mass. 501; Noyes v. Marsh, 123 id. 286; Merchants' National Bank v. State Bank, 10 Wall. 604-650; Railroad Co. v. Ryan, 11 Kans. 602; S. C., 15 Am. Rep. 357; Haas v. Fenlon, 8 Kans. 601; Tool Co. v. Norris, 2 Wall. 45." But an agreement by a bank to give stock in consideration of services as director and continuance of patronage, is valid; Rich v. State National Bank of Lincoln, 7 Neb. 201; S. C., 29 Am. Rep. 382. But specific performance will not be decreed of a contract to sell shares of a National bank, to give control of the bank; Foll's Appeal, 91 Penn. St. 434; S. C., 36 Am. Rep. 671; S. C., 21 Alb. Law Jour. 27.

In Corr v. Sellers, Pennsylvania Supreme Court, it was very recently held that an account book, containing only a lumping account without items, is not admissible in evidence. The court said: "The general rule is well established that books of original entries properly proved are evidence of work and labor performed and of goods sold and delivered. Yet to this general rule several exceptions have been recognized. Among them that the invoice book of an agent is not evidence of the sale and delivery of goods. Cooper v. Morrel, 4 Yeates, 341. Nor of goods to be delivered at a future day. Rheem v. Snodgrass, 2 Grant, 379. Nor of work done, in an action for part performance under a special contract, Alexander v. Hoffman, 5 W. & S. 382; Eshleman v. Harnish, 26 P. F. Smith, 97. Nor of the sale of a

horse not in the course of the parties' business. Shoemaker v. Ellis, 1 Jones, 310. Books of original entry were formerly received in evidence from necessity. Where the transaction from its nature admits of more satisfactory proof they should not be received. Id. Now, since the parties are competent witnesses in their own behalf, great care should be taken that there be no enlargement of the rule. * * * In Leighton v. Manson, 14 Me. 208, the book of original entries was held incompetent to prove an account of two charges for beef, bearing date the same day, one for 355 pounds the other for 360 pounds. The exclusion appears to have been sustained by reason of the articles having been of such bulk and weight that they were not delivered without assistance, and therefore better evidence than the book was attainable. In Thomas v. Dyott, 1 Nott & McCord, 186, it was declared that this species of evidence ought not to be allowed where it is in the power of the party to produce other evidence. Hence, in Pelzer v. Cranston, 2 McCord, 328, it was held that a schoolmaster's books, though regularly kept, were not evidence to prove his account, as he must have had many witnesses at command, and the evidence of his books was therefore not necessary. The rejection of the book to prove the sale of the horse, in Shoemaker v. Ellis, supra, appears to have been ruled chiefly on the ground that from the nature of the transaction there must have existed other and better evidence of the sale. The charges must be reasonably specific and particular. This is the more necessary, inasmuch as when received the books are prima facie evidence both of the item charged and the price or value carried out. Ducoign v. Schreppel, 1 Yeates, 347; Baumgardner v. Burnham, 12 Norris, 88. A general charge for work and labor of a mechanic, without any specification but that of time, cannot be supported by evidence of an entry on the book. Therefore a bricklayer's charge of '190 days' work' was rejected. Lynch's Adm'rs v. Petrie, 1 Nott & McCord, 130. So a charge of 'thirteen dollars for medicine and attendance on one of the general's daughters in curing the whooping cough,' was rejected as too indefinite. Hughes v. Hampton, 2 Const. Rep. 745. An item in an account of 'seven gold watches, $308,' was held insufficient. Bustin v. Rogers, 11 Cush. 346. In the present case the objection was special and specific. It was to the lumping form of the charge. There was nothing therein to indicate the number of days, weeks, or months of labor, claimed to have been performed on the machine, nor the price charged for any of them; nothing to show the kind, quantity or value of the materials furnished, nor the price charged therefor. No item is given whereby the value of any thing which entered into the repairs can be ascertained, and its correctness be tested. What share or proportion of the aggregate sum charged is for work or what for materials, if any, is not stated. A lumping charge of nearly $2,000 was thrown into the jury-box, and the opposite party, without proof and without information,

* * *

as to the items of which it was composed, required to defend against it. We think the learned judge erred in admitting this book entry as evidence to charge the plaintiff in error with the amount thereof."

SLANDER-IMPUTATION OF CRIME.

Two

TWO interesting cases of slander, recently decided, seem on a careless reading to lay down a novel doctrine, but on careful examination may be found well decided.

In Schmidt v. Witherick, Minnesota Supreme Court, May, 1882, 14 Rep. 20, the words were, "he swore falsely in the case with my brother," and the innuendo was, "meaning in a certain action between defendant and his brother." Held, not actionable. The court, Mitchell, J., observed: "To render words actionable per se they must impute a crime to the person of whom they are spoken in such terms, that without the aid of an innuendo, the nature of the offense charged is obvious. They must carry upon their face an open and direct imputation of a crime. The crime here attempted to be charged is perjury. Perjury is the willful giving, under an oath or affirmation, legally imposed, of false testimony material to the issue or point of inquiry. The following elements are essential to constitute this crime: First, the oath must be false; second, it must have been legally imposed; third, the intention must have been willful. Now the words charged contain the first of these elements, and the innuendo supplies the second, but the third is lacking, unless the term 'falsely' implies and includes it. But these words 'swear falsely,' alone, do not necessarily include the idea of willful intention. They may mean perfidiously or merely not truly. Swearing to that which is false, says Kent, C. J., does not necessarily imply that the party has, in judgment of law, perjured himself. It may mean that he has sworn to a falsehood without being conscious, at the time, that it was false. Of course, to say that a man swore falsely may be intended to convey to the minds of the hearers the imputation of perjury, and when this is so, with the proper averments, they are actionable. This is all that is meant by some of the cases cited by respondent, in which it is said that these words are actionable. This is precisely what is said in Morgan v. Livingston, 2 Rich. 573. That in some of the cases cited they were considering a question of evidence and not of pleading, is evident from the fact that the pleadings actually contained the usual innuendo, 'thereby meaning that the plaintiff had committed the crime of perjury.' This is so in Rue v. Mitchell, 2 Dall. 58, and Fowle v. Robbins, 12 Mass. 498. In other cases these words did not stand alone, but were coupled with other words, which included or implied the element of willful intention; as for example, where, after a charge of false swearing, the defendant added, 'I will attend to the grand jury about it,' or 'for which you stand indicted,' or

'done it meaning to cut my throat.' This was the ground upon which the words were held actionable per se in Brace v. Brink, 33 Mich. 91, cited by respondent. It seems to be the general doctrine that to say that a man swore falsely 'is not actionable per se unless coupled with some other words which imply, first, that he did so willfully; second, that he did so under oath legally imposed.' Upon the first of these the innuendo in this case does not aid the pleader, as it is but a repetition of the words charged."

We take it that the court meant to say that if the complaint had contained an averment or innuendo to the effect that the defendant thereby meant to charge that the plaintiff had committed the crime of perjury, it would have been sufficient.

In McFadin v. David, 78 Ind. 445, the words were, "Old lady, you gave my father four double doses of morphine on the day he made his will; you said, 'old man you had better be fixing up your business; if it hadn't been for you giving morphine, your daughters would not have gotten what they did." The innuendo was, "meaning that the said plaintiff had unlawfully administered poison to the said McFadin in his life-time, which caused his death." Here there was no implication or charge of malice nor of murder. The court said: "The words are not actionable per se. They do not, in their usual sense, either import a charge of murder or of manslaughter. They do not amount to a charge that death ensued from the administration of the morphine, or that it was administered either improperly or feloniously. Indeed, it does not appear that any harm resulted from its administration. It is true that it is stated by the innuendo that the defendant meant, by the language spoken, that the plaintiff had caused the death of Noah McFadin by the unlawful administration of poison, but an innuendo cannot enlarge the meaning of words. If the words themselves do not warrant the signification imputed to them, an innuendo cannot. Words not actionable per se cannot be rendered so by an innu

endo.

"The absence of a colloquium, showing by extrinsic matter that the words charged are actionable, is not supplied by an innuendo attributing to those words a meaning which renders them actionable.' Schurick v. Kollman, 50 Ind. 336.

"Treating the paragraph in question as unaided by the averment of extrinsic facts, the innuendo cannot supply a meaning that the words themselves do not warrant. Taken in their usual and ordinary sense, they do not charge that the plaintiff caused the death of Noah McFadin by the administration of morphine or otherwise, and as they do not they are not actionable per se. Unless they constitute such charge, they impute no crime to the plaintiff. "In Ford v. Primrosè, 5 D. & R. 287, the language was: 'I think the present business ought to have the most rigid inquiry, for he (meaning the plaintiff) murdered his first wife, that is, he administered, improperly, medicines to her for a certain complaint, which was the cause of her death.' Upon a motion

in arrest of judgment, Abbott, C. J., said: 'Admitting it to be doubtful whether these words import the charge of a crime upon the plaintiff, that doubt has been removed by the verdict; for the declaration alleges that the defendant uttered these words with an intention to cause it to be believed that the plaintiff was guilty of murder or manslaughter, and if the jury were of opinion that they were uttered with that intention we cannot say that the plaintiff is not entitled to a verdict. But I cannot say that these words may not, in reasonable construction, import a charge of murder or manslaughter, especially after the finding of the jury.' Bayley, J., said: 'I take it that if a man, by the improper administration of medicines to another, cause his death, that would be manslaughter. And if he administers medicines with an intent to produce death, it would be murder. I think the words slaughter. The language of these judges was addeclared upon import, at least, a charge of mandressed to words not only charging the plaintiff by the improper administration of medicines. with causing the death of his wife, but causing it

In

this case the words neither charge that the mor

phine was improperly administered or that its administration produced death.

"In Jones v. Diver, 22 Ind. 184, the words were these: 'In my opinion the bitters that Diver fixed for Smith were the cause of his death,' and it was averred that the words were used in a criminal sense, intending to charge Diver with the murder of Smith, which was understood by the hearers. The import a charge of murder; and there is no colloquium showing that they were used in a conversation about Smith as having been murdered, etc., so as to give the words a particular signification as used in

court said: "The words do not, in their usual sense,

the given case.'

"A charge that one person caused the death of 2 Bulst. 10; Peake v. Oldham, 1 Cow. 275. In the another is not actionable per se. Miller v. Buckdon, light of these authorities we think it clear that the language declared upon is not actionable per se.”

These are the principal cases. Let us look at the cognate authorities. Charging another with having sworn falsely, and with having been indicted therefor, is actionable per se. Brace v. Brink, 33 Mich. 91. The court said: "To charge another with having been indicted before the grand jury for false swearing is a direct charge that he has been judicially accused of having committed the crime of perjury, and has been indicted therefor. When a person is indicted by the grand jury, it is generally considered to be for some supposed criminal offense. And when charged with having sworn false, and with being indicted for false swearing, it is a direct charge that the person has sworn falsely in reference to some material matter in a court of competent jurisdiction, and has thereby committed the crime of perjury, for which he has been indicted. The charge of being indicted therefor clearly and sufficiently indicates the nature and place of the false swearing charged. To charge another with swearing falsely might not be sufficient standing alone, but when

coupled therewith the charge is also made that the person has been indicted therefor, this characterizes the other part of the charge, and raises it to that grade which makes it a criminal and indictable offense. Otherwise we can attach no meaning to the fact of the party's having been indicted therefor. See Crone v. Angell, 14 Mich. 340; Jacobs v. Fyler, 3 Hill, 572; Roberts v. Camden, 9 East, 93; Pelton v. Ward, 3 Cai. 73; Gilman v. Lowell, 8 Wend. 573." Roberts v. Camden, Pelton v. Ward, and Gilman v. Lowell, support this ruling.

In Jacobs v. Fyler, 3 Hill, 572, the charge was, "he has sworn false to my injury six or seven hundred dollars." Held, actionable. Cowen, J., said: "As a general rule, it is intended that what a witness has sworn to is material, and when he is charged with having sworn falsely in a judicial proceeding, the charge imports perjury. If the defendant mean to escape on the ground that the plaintiff's testimony was in truth immaterial, and so not perjury, he must show that fact on his part. Indeed, he must go much further. He must prove that the slanderous words themselves were so qualified as to come short of imputing the crime of perjury. The injury consists in the fact that the defendant ostensibly charged the plaintiff with perjury. The hearer can know nothing of what actually passed in court to qualify the real nature of the falsehood imputed. Of what possible effect, by way of exculpation or mitigation can it be, after telling the plaintiff's neighbors that he had been guilty of a crime, to go further and show that he was innocent? The proposition comes to that. The plaintiff is sworn as a witness. The defendant says he swore falsely. No hearer can presume that he had been telling an idle story having no connection with the cause, for no court would listen to such a story; and therefore the charge must be interpreted as one of perjury." "No one would understand this to be extra-judicial swearing, or telling a white lie. The words themselves import perjury." This dwells on the materiality and not on the malice.

In Spooner v. Keeler, 51 N. Y. 527, the words charged false swearing, but the innuendo averred that the defendant thereby meant to charge perjury. This was held sufficient. To this effect is Crookshank v. Gray, 20 Johns. 344; Mc Claughry v. Wetmore, 6 id. 82.

In Sherwood v. Chace, 11 Wend. 38, the words were, "I cannot enjoy myself in a meeting with Sherwood, for he has sworn false, and I can prove it, and if you do not believe it, you can go to Esquire Bassett's and see it in a suit between," etc.; and the allegation was that the defendant contrived "to cause it to be suspected that he had been guilty of perjury." The court said: "And where the defendant alleged that the plaintiff swore false - so false that he could not enjoy himself in a religious meeting with him he negatives the idea that the oath was false by mistake; of course it was willful and corrupt-in other words, perjury." "A charge of false swearing is actionable when it necessarily

conveys to the mind of the hearers an imputation of perjury, otherwise it is not." So, "you have sworn to a lie and I can prove it” (Hopkins v. Beedle, 1 Cai. 347), or "he swore false before 'Squire Andrews, and I can prove it" (Stafford v. Green, 1 Johns. 505), or "he has taken a false oath in 'Squire Jamison's court (Ward v. Clark, 2 Johns. 10), is not actionable. But "what he has sworn to is a damned lie" (in a discourse about a certain trial) is actionable; Nevin v. Munn, 13 Johns. 48; Chapman v. Smith, id. 77; but this was after verdict. "After verdict, we must conclude that the malice was proved."

In Coons v. Robinson, 5 Barb. 625, the words, "he has sworn to a lie, and done it meaningly to cut my throat," were held actionable; so in Kern v. Powsley, 53 id. 385, where the words were: "Any man who professed to be a christian as you do, and went into the box and swore false as you did at that trial, had better join the church once more.'

In Power v. Price, 16 Wend. 450, the defendant had told the plaintiff that he had sworn false on a certain trial, in swearing that he did not recollect a certain fact, "when in truth he did recollect it." This of course imported intentional perjury, but the chancellor remarks, upon the point of presumption of materiality, that it was incumbent on the defendant to prove the immateriality, "and that he did not intend to impute perjury to the plaintiff;" and that it would be presumed, in the absence of proof of materiality, "that he intended to impute. perjury to the witness;" and quoting from Mr. Justice Ashurst, in Coleman v. Godwin, 3 Doug. 91, that "if a party charges a witness with having sworn false in respect to a particular fact in a cause, which fact would not necessarily be immaterial and irrelevant, the natural effect of the words spoken is to convey to those who hear them the impression that the witness has committed perjury; and if the defendant wishes to show that he did not intend to impute the crime of perjury to the plaintiff, but merely that he has perverted the truth in relation to an immaterial fact, as to which his oath did not bind him to tell the truth, the burthen of showing that the fact testified to was not material to the issue, and that it was not intended to impute to the plaintiff false swearing in the suit, in the ordinary sense and meaning of the term, rests upon the defendant."

In Morgan v. Livingston, 2 Rich. 573, the words "you swore a lie," were not only charged as having been spoken in reference to a certain suit, but as having been uttered in connection with certain other words clearly importing larceny, as "you stole a beef," etc. The case does not show whether the declaration contained an averment or innuendo of intent to charge perjury, but it is clear that the

words meant that.

"You are forsworn," is insufficient; Stanhope v. Blith, 4 Rep. 15; Holt v. Scholefield, 6 T. R. 691; Hall v. Wendon, 8 D. & R. 140; but “ you are forsworn in a court of record" is sufficient; Ceely v. Hoskins, Cro. Car. 509. "Forsworn" meaning