1894, § 5138, subd. 2, as amended by Laws 1895, c. 30, to two years. And the court should reconsider Brown v. Village, 67 Minn, 146, which declares a contrary doctrine.

An amended statute is to be understood, as far as future acts are concerned, in the same sense as if it had read from the beginning as it reads as amended. Sutherland, St. Const. § 133.

If an act deals with matters affecting everybody generally its words have a meaning according to the common or ordinary use of language, but if the act has reference to a particular trade, business or transaction, then its words have the meaning that appeals familiarly to persons conversant with that trade, business or transaction, though that meaning may differ from the common or ordinary meaning. 23 Am. & Eng. Enc., 298, 299; Unwin v. Hanson (1891) 2 Q. B. 115; 1 Greenleaf, Ev. § 278; Holt v. Collyer, 16 Ch. Div. 718. The same doctrine is stated by Lord Denman in Nuth v. Tamplin, 8 Q. B. Div. 247, and by Jessel, M. R., in the same case page 253.

This action "for tort resulting in personal injury," is therefore prima facie governed by section 8. The first and most elementary rule of construction for a legislative enactment is that it is to be assumed that words and phrases are to be used in their popular and common acceptation unless the subject matter indicates that they are used in a technical sense. 23 Am. & Eng. Enc. 298, note 1 and cases. Sutherland, St. Const. § 279. The language used expressly excludes and makes inapplicable the doctrine invoked in Brown v. Village, supra. Actions for personal injuries such as this, and actions for assault, battery, false imprisonment or malicious prosecution are of the same genus or class. Com. v. Rice, 9 Metc. (Mass.) 253; Swift v. Union, 122 Mass. 573; 4 Elliott, R. R. § 1638; Mechem, Ag. § 741.

Frank E. Putnam and John A. Lovely, for respondent.

In the Heron Lake case the amendment of 1895 impliedly was supposed to conflict with G. S. 1894, tit. 2, § 5136, subd. 5, which provides for acts of negligence, carelessness and omission generally. Now while this action charges the negligence of appellant, it also charges the same to have been through the acts of respondent's fellow servants in negligently backing another train against the

car upon which he was at work, acts for which a limitation is prescribed under G. S. 1894, § 5136, subd. 2, which provides that suits may be brought within six years "upon a liability created by statute, other than those upon a penalty or forfeiture." Lavallee v. St. Paul, 40 Minn. 249. But the amended statute of 1895 does not affect either subdivision of the previous section. Brown v. Village, 67 Minn. 146; Potter, Dw. St. 156; Sedgwick, St. Const. 123. If the clear language of the statute be in accordance with the plain policy and purview of the whole statute, the interpretation of a particular part inconsistently with that is a wrong interpretation. King v. Poor, 6 A. & E. 7; Perry v. Skinner, 2 M. & W. 471; Broom, Leg. Maxims, 586. When an affirmative statute expresses no purpose to repeal a prior law, it does not repeal it unless the two acts are in irreconcilable conflict, or the later statute covers the whole ground of the earlier, and is clearly intended as a substitute for it; and the intention of the legislature to repeal must be clear and manifest. Red Rock v. Henry, 106 U. S. 596; Goddard v. City, 20 Pick. 407; Kerlinger v. Barnes, 14 Minn. (398) 526; Moss v. City, 21 Minn. 421; State v. Archibald, 43 Minn. 328; Bryant v. American, 69 Minn. 30.

PER CURIAM.

This case is ruled by that of Ott v. Great Northern, infra, page 50. The order appealed from is affirmed.

E. O. DAVIS v. NEW YORK, ONTARIO & WESTERN RAILWAY COM

PANY.1

November 9, 1897.

Nos. 10,731-(92).

Attorney at Law-Privileged Communication Stokoe v. St. Paul, 40 Minn. 545, Followed.

The rule laid down in Stokoe v. St. Paul, 40 Minn. 545,-that an attorney is not obliged to produce a writing intrusted to him by his client or to disclose its contents, without the client's consent,-applied in this case.

1 Reported in 72 N. W. 823.

Held, that the trial court erred when it compelled defendant's attorney to produce certain writings that they might be introduced in evidence.

Same Writing not Obtained Directly from Client.

This rule does not extend to writings obtained by attorneys from other sources than their clients, or from third parties, whether strangers or opponents.

Same-Presumption as to Character of Holding.

Defendant's attorney received certain telegrams and letters in relation to the matters in controversy from one B., who had been defendant's attorney in the case, but for whom the attorney first mentioned had been substituted. A part of these communications were addressed to defendant's general freight agent, and a part to the officials of another common carrier. Held, that the presumption is that those addressed to the defendant's agent were intrusted to B. by his client, the defendant, and that those addressed to the officials of the other carrier were obtained by B. from them, and were not intrusted to him by his client.

Bill of Lading-Initial Carrier-Negligence in Packing.

The bill of lading involved in this action, there being a number of connecting carriers, contained a stipulation that no carrier should be liable for loss or damage to the described property not occurring on its own road or its portion of the through route. Held, that if the injury or damage to the property in question (boxes of lemons) resulted, as plaintiff claimed, from the unskillful, improper, and negligent manner in which defendant, the initial carrier, piled the boxes in the cars in which they were transported to their destination, it would be liable for the total injury or damage.

Same-Damages-Charges for Transportation-Shea v. Minneapolis, 63 Minn. 228, Modified.

The bill of lading also contained a condition that the amount of any loss or damage for which any carrier became liable should be computed at the value of the property at the place and time of shipment,—a condition identical with that construed in Shea v. Minneapolis, 63 Minn. 228, and there held to be unjust, unreasonable and contrary to public policy, because freight charges paid or incurred by a consignee had been ignored. Held, modifying Shea v. Minneapolis, that in this condition there is nothing which excludes from a computation of damages charges for transportation paid or incurred by or on behalf of a consignee; that such charges-paid or unpaid-may be taken into consideration when fixing the damages; and that, so interpreted, the condition is not on its face unjust, unreasonable, or opposed to public policy.

Appeal by defendant from an order of the district court for Hennepin county, Elliott, J., denying its motion for judgment notwithstanding the verdict or for a new trial. Reversed.

George B. Young, for appellant.

As to what is a bill of lading, see "Bill of Lading," Black, Law Dict.; Bouvier, Law Dict.; Minneapolis v. Home, 55 Minn. 236. Where the contract appears to be in writing, its terms are provable only by the instrument itself, if that is obtainable. Ortt v. Minneapolis, 36 Minn. 396; Lowry v. Harris, 12 Minn. 166 (255).

As a general rule the cause of action or the defense as proved must correspond with that averred in the pleading. If the case is otherwise, there is no room for amendment; a dismissal of the complaint or rejection of the defense is the only result. Pomeroy, Code Rem. §§ 553-557; Cowles v. Warner, 22 Minn. 449; Cummings v. Long, 25 Minn. 337; Benson v. Dean, 40 Minn. 445; Dennis v. Spencer, 45 Minn. 250; Baker v. Dessauer, 49 Ind. 28; Jeffersonville v. Worland, 50 Ind. 339; Long v. Doxey, 50 Ind. 385; Boardman v. Griffin, 52 Ind. 101; McKown v. Furgason, 47 Iowa, 636; York v. Wallace, 48 Iowa, 305; Burns v. Iowa, 48 Iowa, 279; Proctor v. Reif, 52 Iowa, 592; Flynn v. Des Moines, 63 Iowa, 490; Wernli v. Collins, 87 Iowa, 548; Arnold v. Angell, 62 N. Y. 508; Harris v. Kasson, 79 N. Y. 381; Southwick v. First National, 84 N. Y. 420; Reed v. McConnell, 133 N. Y. 425; Burdsall v. Waggoner, 4 Colo. 256; Mondran v. Goux, 51 Cal. 151; Hopkins v. Orcutt, 51 Cal. 537; McCord v. Seale, 56 Cal. 262; Distler v. Dabney, 3 Wash. 200; Clark v. Sherman, 5 Wash. 681; 2 Greenleaf, Ev. § 209; Ireland v. Johnson, 1 Bing. (N. C.) 162; Latham v. Rutley, 2 B. & C. 20. In case pleadings and proof show defendant to be a common carrier the law itself determines the extent and degree of his liability; in the other case the terms of his undertaking must be proved by plaintiff. In either case an express contract, if there be one, must be relied on. 2 Greenleaf, Ev. § 210; Ortt v. Minneapolis, 36 Minn. 396; Ferguson v. Cappeau, 6 Har. & J. (Md.) 394; Flynn v. Des Moines, supra; Mondran v. Goux, supra; Burdsall v. Waggoner, supra; Baker v. Dessauer, supra; Jeffersonville v. Worland, supra; Reed v. McConnell, supra; Southwick v. First National, supra.

The plaintiff must establish that the goods were in good condition when they came to the possession of the defendant as part of the evidence that they have been injured while in the carrier's custody. Ray, Neg. Imp. Dut. (Freight) 1030; Smith v. New York, 43 Barb. 225; Ortt v. Minneapolis, 36 Minn. 396. The establishing of joint or through rates or the issuing of through bills of lading does not make the different carriers in the continuous line joint carriers for the line or make any one of the carriers liable for the defaults of any other. Wehmann v. Wehmann v. Minneapolis, 58 Minn. 22; Ortt v. Minneapolis, supra. Where goods pass over a line of several different carriers, there being no direct evidence to the contrary, the presumption is that they reached the last carrier in the line in the same condition as when delivered to the first carrier in the line. Shriver v. Sioux City, 24 Minn. 506; Leo v. St. Paul, 30 Minn. 438; Louisville v. Jones, 100 Ala. 263; Savannah v. Harris, 26 Fla. 148; 2 Jaggard, Torts, 1072. If defendant used ordinary care in loading, he is not liable for the injury, if any, and the test is the amount of care ordinarily used by men in general in similar circumstances. Kolsti v. Minneapolis, 32 Minn. 133; Armstrong v. Chicago, 45 Minn. 85; Flanders v. Chicago, 51 Minn. 193; Lawson v. Truesdale, 60 Minn. 410. When it is not certain that the damage resulted from the transportation. Shea v. Chicago, 66 Minn. 102.

As to the duty of attorneys to produce papers entrusted to them by their clients, see Stokoe v. St. Paul, 40 Minn. 545; Brandt v. Klein, 17 John. 335; Mitchell's Case, 12 Abb. Pr. 249; Coveney v. Tannahill, 1 Hill, 33; 1 Greenleaf, Ev. §§ 233, 241. Shaw, C. J., in Hatton v. Robinson, 14 Pick. 416, 422. Barnes v. Harris, 7 Cush. 576; 1 Greenleaf, Ev. § 240; Coveney v. Tannahill, supra; Robson v. Kemp, 5 Esp. 52; Brard v. Ackerman, 5 Esp. 119; 1 Greenleaf, Ev. § 241, and cases cited; 3 Phillips, Ev. (Cowen & Hill Notes) 182 (3d Ed.); Linde v. Judd, 3 Day, 499; Jackson v. Denison, 4 Wend. 558; Anonymous, 8 Mass. 370; State v. Squires, 1 Tyler, 147; Parker v. Yates, 12 J. B. Moore, 520; Jackson v. Burtis, 14 John. 391; 3 Phillips, Ev. C. & H. Notes, 191, (3d Ed.). This rule is in full force in this state by virtue of G. S. 1894, § 5662.

An agent's statements as to transactions of which he never had personal knowledge are hearsay and not evidence, if offered either by