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the defendants that the plaintiff was guilty of contributory negligence, and for that reason, if for no other, the verdict should be permitted to stand. The contributory negligence suggested is that the plaintiff erected her buildings within a hundred yards or so of defendants' mill, after this dangerous burner had been put up, and did not cover them with metallic roofs. It is not suggested that the buildings were exceptionally combustible, or that the roofs were of different material to that made use of by the plaintiff's neighbors; but it is said, that in view of the danger to which she was exposed from the burner, she should have incurred the extra expense of a metallic roof for protection, and was negligent in not doing so. This strikes us as a most extraordinary proposition. The defendants, not because it is a necessity to their business, but as a means of saving expense in getting rid of the refuse, erect this dangerous burner, and having done so, it is argued that by this contrivance of money-saving to themselves they have imposed a burden upon all the property in the neighborhood, and subjected all lot-owners to the necessity of incurring extra expense in any future erections which they may make in the vicinity. To state the argument boldly, it seems to be that by erecting a neighborhood nuisance to save cost to themselves, the defendants have imposed upon everybody in the neighborhood an obligation of expense for protection against it, so that no one can be permitted to complain of the nuisance who declines to incur this expense. We are aware of no principle of law which will justify this species of ecouomy at the expense of others. In Beauchamp v. Saginaw Mining Co., 50 Mich. 163, it was suggested that the defendant could not afford to take certain precautions in the management of its business, which seemed necessary for the protection of the public; but the court was of opinion, that if the business at the particular place could not be profitably carried on, and the rights of third parties at the same time respected and protected, then it must either be carried on at a loss or abandoned. And this, we still think, is perfectly reasonable. Alpern v. Churchill. Opinion by Cooley, C. J.

[Decided June 4, 1880.]

VERMONT SUPREME COURT ABSTRACT.*

QUO WARRANTO-DISCRETION OF COURT-SCHOOL COMMITTEE. It is now settled law that the granting or withholding leave to file an information, at the instance of a private relator, to test the right to an office or franchise, rests in the sound discretion of the court to which the application is made, even though there be a substantial defect in the title by which the office or franchise is held. State v. Fisher, 28 Vt. 714; State v. Smith, 48 id. 266; High Ex. Rem., §§ 605, 628, and the cases there cited. And this on the ground that he was eligible to the office and competent; that he had hired teachers in good faith, and made provision for a school; that it was an annual office without emoluments; and that the best interests of the district required that he should be allowed to continue through his term. The grounds upon which courts have exercised discretion by denying the petition have been the same as those established by the evidence in this case. In the exercise of the discretion reposed in the court, and independent of the question of the alleged defect in Mead's title, which is sharply controverted by the defendant, and by no means clearly established by the relator, we think every consideration demands a dismissal of the complaint. State v. Mead. Opinion by Veazey, J.

*To appear in 56 Vermont Reports.

CHATTEL MORTGAGE-NOT GIVEN TO SECURE DEBTINVALID.-To constitute a valid chattel mortgage, if given to secure a debt, it must be one due from the mortgagor to the mortgagee; if a liability, it must be a liability incurred by the mortgagee for the mortgagor; or any other agreement, it must be one between the parties to the mortgage; the oath must conform to the purpose of the mortgage, verifying the truth, validity, and justice of the debt; and the debt or obligation be specifically described and with substantial truth; thus the affidavit in the mortgage alleging that the debt secured was "due and owing," etc., was wholly false. But the plaintiff insisted that he had an equitable right to the property, claiming that prior to the execution of the mortgage he had agreed to loan the mortgagor $1,500, to be secured on the printing press in question; that at the time the mortgage was given he had advanced about $200, and that it was understood this was secured by the mortgage; that he, the plaintiff, entered into an arrangement with one T. to pay such portion of the $1,500, as he himself should be unable to furnish, and so the note and mortgage were executed to T., and placed in the hands of a third party, to become the property of T. when the money was paid; that T. never paid any thing; that the mortgagor fraudulently misrepresented the value of the press; that in a short time it was attached and sold by the defendant, an officer, on an execution in favor of an attaching creditor against the mortgagor: that the plaintiff never advanced any thing more on the note; that the holder of the note and mortgage, by direction of the mortgagor, delivered them up to the plaintiff, though there was no transfer made by T. Held, that the chattel mortgage was invalid, and that an action of trover would not lie. Tarbell v. Jones. Opinion by Veazey, J.

SURETY-CONTRIBUTION-STATUTE OF LIMITATIONS. -The plaintiff and defendant were co-sureties ou a promissory note. All the parties to the note, the payee, the principal, and sureties were residents of this State. After the statute of limitations became a bar here, the plaintiff voluntarily and without the knowledge of the defendant, but with no fraudulent intent, went to New Hampshire, where there was no defense to the note, and there was sued by the payee, judgment rendered against him, and he was compelled to pay. Held in an action for contribution, that the payment was compulsory, and not voluntary, and that the defendant was liable. The legal right of sureties as against each other is not governed by the lex loci contractus; neither is there any implied obligation that they shall reside or remain in any particular locality. The right to contribution among co-sureties is not founded on the contract of suretyship, but is based on an equity arising from the relation of the co-sureties. The right of action for contribution accrues when one has paid more than his proportion of their liability. It is an equity which arises when the relation of co-sureties is entered into, and upon which a cause of action accrues, when one has paid more than his proportion of the debt for which they were bound. Burge Sur 384; Theo. Pr. & S. § 158; Camp v. Bostwick, 20 Ohio St. 337; Peaslee v. Breed, 10 N. H. 489; Boardman v. Paige, 11 id. 431; Sibley v. McAllaster, 8 id. 389. Aldrich v. Aldrich. Opinion by Royce, C. J.

PROXIMATE

NEGLIGENCE-INJURY ON HIGHWAYCAUSE-KNOWLEDGE OF DANGER.-Knowledge of existing danger is not per se negligence; but it is a fact to be weighed by the triers as bearing upon the question of negligence. Clarke v. Holmes, 7 H. & N. 987; Senior v. Ward, 1 E. & E. 385; Nave v. Flack, 90 Ind. 205; S. C., 46 Am. Rep. 205. Thus in an action to re cover for injuries received on the highway, it appeared that from a certain point there were two highways of

about equal length leading to the place where the plaintiff wished to go; that one was very near the railroad, and the other more remote; that the plaintiff being acquainted with both roads, and knowing that he was liable to meet a train of cars about that time, took the one nearest to the railroad, but he did not know of its insufficiency; that his horse became frightened at an approaching train, and that he was injured by reason of want of repair of the highway. Held, that the plaintiff had a right to presume that the highway was sufficient, and that his knowledge did not reach the proximate cause of the injury, and so did not contribute to it. Templeton v. Montpelier. Opinion by Royce, C. J.

RECENT ENGLISH DECISIONS.

PARTNERSHIP-JOINT LIABILITY-JUDGMENT-MERGER-PROOF AGAINST ESTATE OF ONE PARTNER.-The

firm of D. having been employed by the executors of B. to sell certain crops, etc., paid over a part of the proceeds, but were adjudicated bankrupt on the petition of the executors of B. in 1880 upon a judgment for the balance. The executors of B. proved as creditors of the joint estate. Subsequently H. S. D., one of the partners in the bankrupt firm, became entitled to a legacy and to other moneys, and the executors of B. attempted to withdraw the proof against the joint estate and prove against the separate estate of H. S. D. The trustee rejected the proof on the ground that the creditors were bound by their election, and his decision was reversed by the County Court judge. On an appeal from his decision, held, that the ground upon which the trustee had rejected the proof was wrong, but that in order to entitle them to prove against the separate estate of H. S. D., the respondents must prove that they had a separate cause of action against him. Held, also, upon an argument that the separate cause of action was merged in the joint judgment, that it was not so merged. Q. B. Div., March 31, 1884. Matter of Davison. Opinion by Cave, J. (50 L. T. Rep. [N. S.] 635.)

there is any thing else than an absolute gift to the legatees in the first instance, followed by a modification of the mode of enjoyment. Under those circumstances I am of opinion that the brothers and sisters take under the gift in the will merely an estate for life. I do not intend to decide any thing as to the interests of the children, as they are not before me. The case has been argued on behalf of two members of the family, who at all events had it as their interest that I should give a contrary decision to the one I have given. All I decide is, that under the gift in the will the brothers and sisters take a life estate only. Ch. Div., April 3. Matter of Houghton. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 529.)

WILL-SPECIFIC LEGACY-ADEMPTION.-A testatrix by her will directed her trustees to stand possessed of 1,500l. now invested in the Bombay, Baroda, and Central India Railway Company, upon trust, in case her brother, who had not been heard of for some years, should present himself to the trustees within a period of five years, to pay him the income during his life, and after the period of five years, or the death of her brother, whichever event should first happen, the testatrix bequeathed 500l., "being part of the said Bombay, etc., stock," to the treasurer of the Asylum for Destitute Sailors, in the neighborhood of the East India Docks. The testatrix was not possessed of any Bombay, etc., stock, at the time of her death, and her brother had never been heard of since the date of the will. Held, that the legacy to the asylum was specific, and the gift failed. Ch. Div., March 27, 1884. McClelan v. Clark. Opinion by Pearson, J. (50 L. T. Rep. [N. S.] 616.)

FINANCIAL LAW.

NEGOTIABLE INSTRUMENT-NOTE UNDER SEAL, NOT. -An instrument in the form of a negotiable promissory note, but with the device "[Seal]" after and opposite the signature of the maker, is, though there be no reference to a seal in the body of the instrument, a sealed instrument, and not a negotiable promissory note. Undoubtedly where there is a scroll or device upon an instrument there must be something upon the instrument to show that the scroll or device was intended for and used as a seal. The scroll or device does not necessarily, as does a common-law seal, establish its own character. Such words in the testimonium clause as "witness my hand and seal" or "sealed with my seal," would establish that the scroll or device was used as a seal. No such reference in the body of the instrument was necessary in the case of a common-law seal. 2 Coke, 5a; 3 Bac. Abr. 163. Nor is there any reason to require it in the case of the statutory substitute, if the instrument anywhere shows clearly that the device was used as and intended for a seal. It would be difficult to conceive how the party could express that the device was intended for a seal more clearly than by the word seal," placed within and made a part of it. Sup. Ct. Minn., May 31, 1884. Brown v. Jordhal. Opinion by Gilfillan, C. J. (19 N. W. Rep.)

WILL-CONSTRUCTION--GIFT OF RENTS--LIFE ESTATE. -A testator bequeathed leaseholds to a trustee upon trust to give yearly equal portions of the rents to the two brothers and three sisters of the testator; that was to say, each to receive one-fifth part of the net proceeds of rent, and he directed that on the decease of any or all of his brothers and sisters, "the same should go to their children." Held, that the brothers and sisters of the testator took life interests only. In Scawin v. Watson, 10 Beav. 200, affirmed by Lord Cottenham, C., 9th of July, 1847, the last case referred to upon this subject, there were words of absolute gift of the 1,000l.; but the master of the rolls considered the whole direction to amount to a gift of the 1,000l. for the benefit of the daughter, to pay her the interest for life, with remainder to her children; and upon appeal I concurred in this opinion, and affirmed his lordship's order. I have therefore to consider here whether upon the construction of this will this was intended to be an absolute gift of one-fifth share in these houses to each of the testator's brothers and sisters; or whether NEGOTIABLE INSTRUMENT-TITLE OF PURCHASER it is a gift over, in case they had children, then to AFTER MATURITY-SUBJECT TO EQUITIES.-The title of those children; or whether under the terms of this the owner of personal property or things movable canwill this is only a gift for life to each of the brothers not be divested except by his consent or by operation and sisters, with a gift over to the others of them in of law. To this rule there are exceptions arising out case any of them had no children. I am of opinion that of the character of the property, among which are the latter is the right construction. I can see nothing bank notes, checks payable to bearer which pass by whatever here in the shape of an absolute gift of these delivery and circulated as money, and drafts, bills and two houses. The houses are given, in the first in-negotiable promissory notes transferred before matustance, not to the legatees but to the executors, to hold on the trusts following. I think there is nothing ou the face of this will authorizing me to say that

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rity. But if transferred after maturity for value and in due course of business, such drafts and promissory notes in the hands of the holder are subject to the

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equities existing between the maker and payee which inhere in or grow out of the note. Now, do the same equities exist in favor of the true owner? that is, can he recover it from the holder as he could a horse or other personal property? In 1 Daniel, Neg. Inst., § 782, it is said that "in the fourth place the holder, in order to acquire a better right and title to the paper than his transferrer, must become possessed of it before it is due. ** *And if it were not paid at maturity it is then considered as dishonored, although still transferable in like manner and form as before, yet the fact of its dishonor, which is apparent from its face, is equivalent to notice to the holder, and he takes it subject to its infirmities, and can acquire no better title than his transferrer." The late case of Greenwell v. Haydon, 78 Ky. 333, is like the case at bar, and it was there held that the holder did not acquire title to the note as against the owner. The opinion is well considered, and the authorities cited commented on and explained. To the same effect are the cases of Texas v. White, 7 Wall. 700; Vermilye v. Adams Express Co., 21 id. 138; and Hinckley v. Union Pacific R., 129 Mass. 52. In the last case, it is said, "It is an elementary principle of commercial law that negotiable paper overdue carries with it on its very face notice of defective title sufficient to put the transferee on inquiry. In Earhart v. Gant, 32 Iowa 481, it was held that an assignment of a note by the sheriff, under the statute, has the same effect as if made by the payee, and the holder acquires the same rights as if the note had been indorsed and transferred to him, in due course of business, in accordance with the law merchant. The note in that case, as we understand, was transferred before maturity, and it was held the plaintiff was entitled to recover unless the defendant established that the plaintiff had notice of the defense pleaded of mistake and fraud. In the subsequent case of McCormick v. Williams, 54 Iowa, 50; S. C., 6 N. W. Rep. 138, the note was transferred by the officer after maturity, and it was held that his transferee acquired no title or interest in the note. The authorities cited establish, we think, that a person who acquires a promissory note after maturity acquires no better right or title than the party had from whom he obtained it. And on principle we think this must be so. The purchase of paper by the indorsee must be in the usual course of business. By this is meant according to the customs and usages of commercial transactions. If the paper is purchased before maturity it is such a transaction. Kellogg v. Curtis, 69 Me. 212. If paper is purchased after maturity it is not in accordance with commercial transactions. It is dishonored and regarded with suspicion; and if the maker can avail himself of equities and defenses he could not have done if the paper had been acquired before maturity, we are unable to see why the owner may not do so; that is, he may pursue it and recover it from any one in the same manner and to the same extent as he can other personal property. Sup. Ct. of Iowa, June 6, 1884. Wood v. McKean. Opinion by Seevers, J. (19 N. W. Rep.)

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Term reversed; that of Special Term affirmed, with costs-First National Bank of Oswego, appellant, v. John Dunn and another, respondents; Second National Bank of Oswego, respondent, v. John Dunn, appellant.—Judgment affirmed, with costs-Peter D. Platz, respondent, v. City of Cohoes, appellant; Hugh Dillon, appellant, v. Sixth Avenue Railroad Company, respondent; William Green, appellant, v. John Banta, impleaded with Edward Clark, respondent.-Motion to open default granted on payment of $20-Samuel F. Edwards, appellant, v. New York and Harlam Railroad Company, respondent.-Motion to open default granted, without costs to either party; printed cases to be served within five days after entry of this order-George Jackson and another, respondents, v. Horace D. Tupper and another, appellants.-Motion to correct remittitur denied without costs-Herman Veeder v. Norman H. Galusha and others. -Motion to amend return granted without costs—Patrick H. Whelan, respondent, v. Ansonia Clock Company, appellant.-Motion denied without prejudice to application for additional time upon the argument on appeal from the order-In re Application of Union Ferry Company of Brooklyn, to acquire title.

NOTES.

A LEGAL LAMENT.
AIR-"Ye Mariners of England.

Ye litigants of Ireland

Who doze at home in ease, Ah, little do you think upon

The smallness of the fees Which, after all our wit and wile, Our dash and splash and "go," We take from the cake

Where the legal currants show, While the mighty judge bethunders "fudge," And the grand old bigwigs blow.

Ye litigants of Ireland!

Oh, did you know what lies We're apt to tell on your behalf.

You could not then despise
The men who do their best for you,
Thro' toil and moil and woe,
And catch or else snatch

From the talons of the foe
A verdict true that tells for you
Howe'er the bigwigs blow.

Ye litigants of Ireland,

We make no false pretence.
We're not devoid of mother wit,
Perhaps we are of pence;
But we'll ask you (the task you
Will find an easy one),
When we're named and defamed,
Slay the offspring of a gun,

Who has sneared at our beard,

And then-why then, cut and run.

-By the late John Rea, from the Irish Law Times. The American Law Review for September-October contains the following leading articles: Corporate Taxation, by Edward C. Moore, Jr.: Sunday and Sunday Laws, by J. G. Woerner; Law Reforms in Ger many, by C. W. Ernst; Suing the State, by George M. Davie; Are Persons Born within the United States ipso facto Citizens thereof, by George D. Collins. It seems to us that our digest-makers do not put half enough law under the head of "Poor Law."

The Albany Law Journal.

AN

ALBANY, NOVEMBER 8, 1884.

CURRENT TOPICS.

N interesting question of constitutional construction is under discussion in this State. Our constitution retires judges at the age of seventy, but provides that "the compensation of every judge of the Court of Appeals, and of every justice of the Supreme Court, whose term of office shall be abridged pursuant to this provision, and who shall have served as such judge or justice ten years or more, shall be continued during the remainder of the term for which he was elected." Being asked his opinion by the comptroller, Attorney-General O'Brien expresses the opinion that the service of ten years must have been wholly in the term abridged, and that the pension can in no case extend beyond four years. He says: "The reference throughout this entire provision is evidently to the single official term which is shortened by the limitation of age, and the ten years or more of judicial service, required in order to entitle the retiring judge to claim compensation for the remainder of his term, cannot be made up by resort to previous official terms during which he may have served. There is nothing in this section of the constitution to indicate that either the legisla tors who proposed it or the people who adopted it had in mind cases where ten years or more of service might occur through the re-election of the incumbent. The word 'term' is used both at the beginning and the close of the sentence, and references in each case is made to the 'term abridged.' And when it declares that the compensation of the judge shall continue during the 'remainder of the term for which he was elected,' the natural and obvious meaning of the word 'remainder,' is what is left of the term after deducting therefrom the ten years or more of service. *** Any other construction would lead to results clearly not contemplated by the people when they adopted this provision. If the applicant for constitutional bounty under it is permitted to avail himself of years of service during previous terms, there is no limit to the time when such service shall have been rendered. If at any period during his lifetime, no matter how remote, he may have served as judge a number of years sufficient, with the fragment of the term of service abridged by the constitution, to make up ten years, he would be entitled to full compensation for the remainder of the term for which he was elected, which might in some cases still have thirteen years to run. An interpretation yielding such unreasonable and illogical results ought not to be adopted unless imperatively required by the plainest language in the constitutional enactment."

We cannot agree with the attorney-general. We think the Constitution means just what it says, and VOL. 30 No. 19.

that if any judge shall have served ten years at any time he is entitled to the retiring pension on the abridgment of his final term. The pension is a reward for judicial service, no matter when rendered, and if the people do not want to bestow it, the remedy is easy-they need not elect a judge who cannot serve out his term. The attorney-general's construction might operate very unequally, for a judge who had served only ten years might get the pension, and a judge who had served much longer might not get it.

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We have never seen the subject of the overcrowded state of the legal profession so sensibly commented on as in the following from the Philadelphia Times, under the heading "Too Many Law| yers: "Out of the fifteen hundred lawyers in this city it is perfectly safe to say that not more than five clear $30,000 and upward a year, not more than thirty $10,000 and upward, not more than one hundred $5,000 and upward, and that more than one thousand of the whole number do not average $500 a year each from legitimate fees. When it is remembered that the majority of the latter class do not earn even that small amount, that all of them must defray office expenses, that many of them have no other means of subsistence, and that some of them must unavoidably be forced by extreme necessity to steal or starve, it is not to be wondered at that clients are so frequently found complaining of extortion, or that the pitiful spectacle is occasionally seen of a lawyer sitting with bowed head, hopelessly dishonored, inside the criminal dock. The wonder is that so few unsuccessful lawyers, admonished by these examples, and by years of personal experience, amounting almost to practical starvation, ever seem to think of leaving the bar for some equally honorable pursuit, in which at least a decent living can be honestly and easily earned. But the greatest wonder is that when the universal voice of the profession bears testimony to the extreme difficulty of earning even a bare livelihood by the practice of the law, lawyers will go on multiplying in numbers as though the bar, like an omnibus, can never be so crowded as not to afford a precarious standing room for one more innocent. Times can earn $1,000 a year by eight hours daily labor; when any competent and industrious carpenter or brick-layer or machinist can easily earn a larger income than is earned by one-half of those already at the bar, it is high time for young men who contemplate studying law to halt and consider well before attempting to elbow a way into the ranks of an already greatly overcrowded profession, in which so few fortunate ones can ever earn more than a decent living, after possibly a quarter of a century of incalculable toil and hardships, and in which, for the great majority, there is only the certainty of disappointed ambition and semi-respectable penury." But the trouble is that so-called "labor" is not deemed respectable by the crowd of young men pushing into the legal profession. Why do

When any good printer on the

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not more of them go into the clerical profession? It is not nearly so crowded as ours, and indeed we hear constant complaint of a scarcity of ministers. We fear it is the chimerical idea of making money, or the unworthy idea of getting political preferment that determines so many toward the bar.

We have lately learned that a revolver may be a necessary for an infant, and now we are informed that a bicycle may be. Such was the finding of the jury in St. George's Foundry Co. v. Duncan, the defendant being a professional bicyclist. This is much like holding a race horse a necessary for an infant horse-racer. But we have always supposed that stock in trade was not embraced in the description of necessaries.

We have received a very handsome pamphlet, containing the "Constitution, By-laws and Proceedings of the Grafton and Coos County Bar Association, at its annual meetings held at Lancaster, December 29, 1882, and January 28, 1884." This comes from New Hampshire. It contains several interesting papers and addresses, some poetry, and some very irreverent criticism of the 58th New Hampshire-not altogether undeserved, we should

say.

motion presents therefore is upon what shall the al lowance be computed, upon the amount of the verdict only, or upon such amount with interest added from the date of the death? The language of the section (3253) giving the allowance, and which is applicable to this case, requires it to be computed ' upon the sum recovered.' The claim of the plaintiff was that 'the sum recovered' is the amount of the damages which he recovers by the action; while the claim of the defendant is that the expression only refers to the amount awarded by the verdict. The point involved has not been directly decided to my knowledge, and must therefore be treated as an original question. In an action of this character when the plaintiff recovers, the jury, the court, or the referee, to whom the question is submitted, may award 'such a sum not exceeding $5,000,' as they or he deem or deems to be a fair resulting from the decedent's death, to the person and just compensation for the pecuniary injuries or persons for whose benefit the action is brought.' The same section of the Code (1904), from which the quotation has just been made, further provides: 'When final judgment for the plaintiff is rendered, the clerk must add to the sum so awarded interest

thereupon from the decedent's death, and include it in the judgment. The inquisition, verdict, report or decision may specify the day from which the interest is to be computed; if it omits so to do, It will be seen from Mr. Theodore Bacon's letter davits. From the section of the Code just referred the day may be determined by the clerk upon affiin another column that he disclaims the implication to it seems reasonably clear that 'the sum recov of the Century that he had delivered a recent dis-ered' in this action is not only the amount of the course on Lawyers' Morals." We had not forgotten that he had once read a paper on that subject before the Social Science Association, and one before our State Bar Association, and we supposed that he had been reading another quite recently, and that was the reason why we spoke of him as having apparently taken the morals of lawyers in charge. Certainly we have never spoken evil of Mr. Bacon, and certainly we did read his paper two years ago, but we shall read it again with respect and pleasure, for he is a man always to be listened to with respect and pleasure, if not always with agreement.

A

NOTES OF CASES.

PRACTICE question of a good deal of interest to the profession was decided by Judge Westbrook at Special Term in September, in Bord v. New York Cent., etc., R. Co. The plaintiff had a verdict of $2,000 for the death of his son. The plaintiff moved for an extra allowance under section 3253, and asked that it be computed upon the sum awarded by the jury, with the interest thereon added from the date of the decedent's death (January 19, 1877), which interest the clerk is required by section 1904 to "add to the sum awarded" by the jury, "and include it in the judgment." The court said: "The question which this

verdict, which represented the judgment of the jury as to what would be 'a fair and just compenresulting from the decedent's death,' but also the sation for the pecuniary injuries' to the plaintiff interest upon such amount from the date of the death. That such interest is required by express statutory enactment to be added does not make such addition any thing other or different than a part of the sum recovered.' If the Code had authorized the jury to make the interest a part of the verdict, and that in fact had been done, the point

that the allowance should be confined to the jury's estimate of the 'pecuniary injuries' resulting from the death would not probably have been made. That the Code has by plain words made the interest a part of the sum recovered,' and has not left its allowance or non-allowance to the discretion of the jury, cannot alter or change the words of sec tion 3253. That section does not provide that the allowance shall be based upon the amount of a verdict, a decision of a court, or the report of a referec, but upon the sum recovered.' In other words the allowance shall be made upon the damages which are awarded to the party by the action. These damages may be such only as a jury, a court or a referee may compute, or may be given solely by statute, or may depend, as in this case, partly on both; but whether given in either of the ways mentioned, so long as they represent 'the sum re

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