430
FEDERAL REPORTER ,
.vol.
course has been in.,fact pUl'$l:!.ed, but, now bE1fore .us. fails to wea.re compelled to. dismiss the appeal, because it show it, and is not made to appear that Louis has any interest in the contake an theofder directing paytroversy, or any right ·· ment to be made oi !Pc qlaim of Mrs. Evans.
LAST OnANCE
MIN. Co.tI.
BUNKER HILL &; ING .00.
S.
MINING &; CONCENTRAT-
<Cflrcuit Court, D. Id.aho.February 29,.18l12.)
The appropriator of water, to be used at 'a specified plllll8 for tbe purpose of operating machinery anq otbElr works, after. so using and returning it ,to its original c)iannel, cannot change the place of U8e. to the damage Of. subsequent appropriator lower down on thelltreiLm. (SlllliabtuJ lrlI the 001'71.)
OP
PLA.01iI OP
USE; .
W. B. Heyburn, for. plaintiff. McB'T'ifU AUen, for defendant. . BEA'l"l'Y, District Judge. This capse ls 8n statement of factS, from, which it,apHears that the defendant, during the montlls of February, April, and May, 1886, located three water-rights on Milo creek, in Shoshone county, Idaho, the water of wnich was conducted by separate ditches to ore miUiQg plant, known as after there used,for the purpose of ,the "OM Qoncentrator;" the machinconcentrating the ore from defendant's mine, and ery connecte.d with the .mine and works, it was turn,ed. back into the natural channel ofsaid creek; ,that it thereafter cOf,tinued to flow therein unclaimed, u,ntH in, the. month of June, 1889, the plnintiff, at a point on said creek :some distapce below where defendant so returned it, 10catlld 2,000 inches thereof, and thereafter continucqtouse it for milling purposes, concentrating the ore from its mines, UJ:ltil July, 1891, when the defendant, at a point on one of its ditches above its mill,so constructed a flume as to carryall the water of said creek, during the of apprl,priation and season of .low water, around and beyond the from any use diversion by plaintiff, apd thereby prevented, therllof; .a lid that aU and water-rights I1re situated upon can the publi(llands of the United States. .Under as the priQr ll.ppropriator. now. so change the place of use the to deprive the plaintiff thereof? iii! the,question for deof . . . termination. With t!;\efirst development oLtl1e Pacific coastpy, the American w!'!<ter becl!-llle an indispensable factor in mining, agricultural, interests,. and with its. early use began the formularules for its. regulation. rules were by ,the, courts and
LAST CRANCE MIN. CO. V. BUNKER RILL
&;
S. MINING & C. CO.
431
legislatures first' f6Uowed,then adopted as laws, and subsequently were ratified by congress by act of! lS66. Among the first of such rules, which has ripened into law, was that favoring the prior actual appropriation ma-de for lIomeuseful'purpose.The use; however, was to be a reasonable one, a1'l.d;Rs far as possible, be consistent with a use by others Prior possession didnot imply authority to take what was not needed, or, by prodigality, waste what others might profitably utilize. That such equitable rule might be enforced, it became necessary that some notice, or acts equivalent to notice, should be made of the claim. To this in time were added the positive requirements of a written notice, with full details of the amount, nature,and place of diversion and use. These general principles were, prior to the inception of the rights involved in this action, incorporated into the laws of this state, which, in pursuance of those of congress, must govern all water-rights located upon the:pubJic lands and streams of the general government. By section' 3160, Rev. St. Idaho, it is provided that the appropriator of water nIust post"a notice in writing * * * stating therein" the amount claimed, "thepurpose for which he claims it, and the place of intended use." ,This requirementis designed less for his protection than as a notifi· cation to 'otbersof what is left; unclaimed which they may appropriate. It would follow that when an,appropriation is 'made with full knowl" edge of prior rights, and in entire subordination thereto, ids as milch entitled to protection against 'the aggressions of a prior claimant as the latter would be against subsequent intrusions. Also it is' provided, by section 3156 of said statute, that "the appropriation nlUst be for some useful or beneficial purpose,ilnd when the appropriator ceases to use it for such purpose the right ceases." These sections together would seem to lead to the conclusion that, when an appr.opriator ('eased to use the water at the place and for the purpose by him designated, he would be precluded from using it elsewhere or otherwise,and his rights concern.. ing it would 1 think, however, a more liberal' construction is justified, and, to rander these rights of any permanent or material value, is demanded. The use for which the water is appropriated and to which it is applied. is an important factor in the construction of the statute. ThecontrollinF; question, in any case, is whether subsequent locators have had such notice of prior rights, and their extent and effect, as would guard them against making invalid locations. In illustration,suppose some certain amount of water is appropriated to be used as a power by Hs conversion into Bteam; or, by combination with other elements, is to be, converted into articles of merchandise; or to be used upon some certain tract of land. for the purpose of irrigl1tlon. Should the appropriator he from thereafter changing either or both ,-its use, or the place thereof? The reply must be in the negative; for in all such cases the purpose of the appropriation is such that no subsequent appropriatorcah thereby be misled to his injury· Distinct hotice is given in such cases, not only that so much water is drawidrom the public llupply, buttbat its appropriation is such that it cannot be used a second time. It isa that so much water is practically destroyed,
432
FEDERAL REPORTER.
vol. 49.
A subsequent locator has act· ual notice that this amount of water is withdrawn from all public claim, is absorbed, and has become a vested right. He cannot base any claim upon it, or upon any ex:aectation that. some time in the future, it will become the subject of appropriation. Should such prior right be subsequently forfeited, he gains nothing thereby, as his rights are uleasured alone by what he could, and actually did, claim at the time of his appropriation. Neither does he lose anything, nor is he in any way damaged, should the first appropriator change his use, or the plabethereof, for, in either .event, he still has left all he ever claimed, or was entitled to claim. The appropriation ofwaterJor placer mining purposes, at some. specified place, involves a somewhllt similar principle. It is such an actual appropriation of a definites..mount, and for such purpose, as, in the nature of things, must operate as a notice to all that its place of use must, from time to time, as the ground is worked, be changed. Should one USe 'the water after it paElses ,from the works ofthe prior claimant, he must do so at his own risk, l1.nd he cannot complain that changes are made which he bad full notice would likely occur; In this action, however, the facts are quite different. In 1886 the defendant located thewater,specifying that it was to be used at its mill for the purpose of power iqoperatingmachinery and in concentratingores. and in pursuance of such notice conducted it tosuch mill, and, after there so using, returned it to the origina). channel of the stream fromwbich it had been taken, and practically undiminished in quantity or .deteriorated. or changed in quality. The use made of it was purely usufructuary, and in· no sense partaking of the nature of ownership in the water. The defendant, by its declarations and acts, in effect said to the world that the only use it had for the water was at the,pJace and in the manner specified, and that, when so used, it had no further claim upon and abandoned it. Under such circumstances, there was neither direct nor implied notice that it would be used elsewhere or for other purposes by defendant. On the contrary, the public was Justified in believing that defendant had made .the only use thereof intended; that thesarne would continue; and that in the future it would be returned to the creek as it had been. Would it not follow, from such facts, that plaintiff. in claiming the water after its return to the then protection creek, was fully justified? If justified in such thereofm.ust follow. If the defendant's position. is sustained by the law, it: would follow that the prior appropriator would, in all cases, so absolutely control the ,vater, to the extent of such appropriation, that no other person could thereafter attempt any permanent use of it, exceptat great risk of loss, even when such use would not damage the first appropriator. Suppose, in this case, the strealXl below defendant's milL were lined with ore-mills, all operated by the same water, as it passed from the wheels of one mill to the next and all byappropriations subsequent to defendant. Upon defendant's theory. all such mills may. be closed, and utterly destroyed, whenever the latter concludes to modifyits plans,and divert the water. elsewhere. Such a
-is eliminated from existence as water.
LAST CHANCE MIN. CO·.
v.
BUNKER HILL & S. MINING & C. CO.
433
rule, I am firmly convinced, is counter to the policy of the law. Instead of developing the country, it would block its progress. Instead of utilizing, as generally as possible, nature's elements for the public good, it would subject them to the arbitrary will of any individual who might first assume a claim to them. It would be an extension of the maxim," firstin time, first in right," far beyond the limits of equity or justice. In this case the facts are not limited simply to the appropriation ofthe water, its use and return to the stream, by defendant, but such status continued for over three years before plaintiff located, and thereafter continued for over two years to use it, without obje(ltion by defendant, and before the latter attempted, through the means stated, to interfere therewith. Even if defendant's original claim of the water, its use and return to thestream,without any notice or reservation, direct or implied, of any otheru:ee"liid not constitute a release of further claims, it certainly should be held· that the corttinuation of such status for over five years must operata as an abanClonment of any further or different claim than that exercised. In view of all the facts, the doctrine urged by the defendant cannot be acceded to, unless it is sustained by most potent juqicialaothority. From those cited, and from others, it appears, in v. B.icknell, 7 Cal. 261" that the court distinctJy held that a prior appropriator could change the place of use as against a subsequent appropriator, but how this question was involved is not apparent; for the impoI1;ant Q\1estion, as stated by the courl,-and the only one shown by the facts,---was whether the plaintiff, who had cut a ditch for drainage, could, defendants hadeut another to appropriate the water, use the water as against defendants. It was held he could not, because, prior to defendants' appropriation, he had neither used nor avowed any intentions to use it. In Davis v. Gale, 32 Cal. 26, and Correa v. Frieta8, 42 Cal. 342, the prior appropriation was for the purpose of working placer mining ground, and it was held that the place of use could be changed as against subsequent appropriators. In Woolman v. Garringer, 1 Mont. 535,. the defendants having located water to be conducted 27 miles for mining purposes, the plaintiffs, within three months thereafter, located the same, upon the theory that defendants had not made an actual use thereof, or cond.ucted it from the stream, or given due notice of their intention to do so, prior to plaintiffs' appropriation. The cases above cited were quoted and. approved, and the court further added that"The notice posted on the stream, of the appropriation of so much water for general mining purposes, and the immediate entering upon the ... ... ... construction of the dam and ditch, ... ... ... were to put the plaintiffs on ,their 'guard, ... ... ... and to apprise them of ... ... ... defendants' superior rights. .The plaintiffs could acquire no other than a mere priVilege Of right to the use of the waste water, or, at most, but a secondary and subordinate right to that of the first appropriators, and only such as was liable to· be determined by their action at any time, unless the water had been tumed back into the original channel after it had been used, and aD.swered v.49F.no.6-28 '
bDEnAL REPORTER;'voL49.'
tbepurpoIJes'of the,ftrst appropriators,without. Rny intention Of recapture, and thereby became,publtc£.jU1'is.";: .· .; , In Eddy v. Simpson, 3 Cal. 249, defendants, after using 'water for mining purposes, let it escape into plaintiffs' creek, and subsequently reclaim it, whieh it was held could not be donea;fter tiffs :began uf!ling it. In OrlIrria,ri, v.: Dixon, 13 Cal. 36, the,defendants first'apptopriatedthe wate:r asamill-power. Plaintiffs ' subsequently, by a ditch above the mill, used the 'water for mining purposes when the mill was fiotrunning. Still later defendants took out a ditch above plaintiffs, and conducted thewlI.ter, away for mining purposes. The court held defendants could ·notthus change its use; that':""The measure of the right, as to extent, follows the nature of the appropriation, or the use: for whichit'itUaken., If A.. el'ectsa mill on a running stream, this shows an appropriatloDof the water, for the jb,ut, if he sufthe water, ,or: the,bqdy of it. af;ter runnil)S, mill, to go fers may not as down its acclllltOJIled course, we do not. see why persons .· weH appropriate this residulim ,l;18 he'could appropriate the' tirst use. It may be true, as' ... .· · argued; that' be may change the llse,and even the 'place of using; but th'econcession does the' lu'gument;forthe question is not how he may use his own, but whatiahis own." ; In W'aterCo. v.Powelf" 34 Cal. 1'09, theplaintitr having first con'" structed adam to litilizethe watedt Claimed, the defendants then took up the creek;abqvesueh dam..' 'I'he bed of the creek beeameso fllled",ith debris'fr6m the mining operations of third parties. that it' for to raise its darntl> make any use of'the :waterit bad 'fil'st appropriated, and this resulted in backing the water,' overdefendante' mining' ground. In holding that plaintiff could not so raise its darp, the court said: "Ita right to and use said water In the, manner adopted, and to the extent of the appropriation; would not' pNlvent other parties from acquiring rIghts lothe surplus water, orin tqe bed and banks of the stream, or in the adjacent any extellt which should not interfere with the rights before acquired. ·,. · .· ·Whell the right has once, vested in the defendl/onta. the plaintiff ia..'no more by extending its own claim, or changing the measure of appropriation, or interfering with 'the full enjoyment of the right vested in the defendants,than defendants would be in encroaching'ilponthe prior 'rights of plaintiff." ' In' P'rQc{Or Jenning8,:g Nev. 87, it is held:';'" . each' (appropriator] are to be determined by the condiat the time he makellhisappropriation. So far is this rule tions of carried that those who were prior to him can in no way change in extent thEl.ir his 'p.rejudice·. but are lilIlited to t\leright enjoyed by them when ' be secured.hlEl." !It may be'urged, as to some abovenoted casef!l, that theyonly cannot be molested, 'and do not establish any by can be held, in,thiscase,that plaintiff's aplawful., Certainly it must J?e conce4:edthat, if it waS runlawful,.it.eannotbe.protected, and defendant may do with the water 1what it will'; &ut,:withoutrestating the factsjif undedhem the plaintiff
LAST CHANCE MIN.; 90, t1. BUNKEIt HILL &
s.
MINING &: C. CO.
435
was not justified in making the claim it did, it would be difficult to imagine a case in which the water of a stream, once used as it was by defendant in this case, could' ever be safely appropriated by a second party for any use whatever. When defendant's water locations were made, section 3 of the act approved F:ebruary 10, 1881, (11 Sess. Laws Idaho, 267,) was in force, as follows: "The appropriator, or his or their successors in interest. may change the place of diversion. if the acquired by others are not thereby interfered with, and no injury to others therefrom result. and may also extend any ditch. canal. flumt:', pipe. or other conduit to points or places beyond such as may have been dt'signated or first used, saving t.he rights which may have accrued prior to such extension." The plaintiff claims that, as defendant's rights were acquired under this section,its rights now are so controlled, as against plaintiff, by the last clause, that no change of the place of use can .be made. But long before plaintiff made its location this section wa9 revised into section 8157, Rev. St. Idaho, as follows: "The pemon entitled to the use may change the place of diversion. if othem are .not injured by such change. and may extend tile dilch, flume, pipe, or aqueduct, by which the diversion is made, to places beyond that where the ' first use was, made. " Whatever rights this revised section confers would accrue to defend,. ant, and the defendant now relies upon this section in support of its the change complained of. This position is fortified by right to the fact that the in the old statute prohibiting such change is omitted in the new. While it.ie evident that the legislaturewaBsimply to exactly adopt section 1412, Civil Code Cal., I think thatit designed" by the statutory change, to permit the prior appropriator to change the place of use, as against a subsequent approp,ri; ator; but that it intended tllis to be done in all cases, regardless of the facts, is quite a different proposition. I still think it was designed that this extended liberty should include those cases, as above stated, in which the use of the water amounted to its absorption, or it was such as to implynoHce to all that<such could be reasonably expected, and to exclude cases like the present, where it is appropriated and used for a specific purpose, and then abandoned. 'fhat the waters of the country may be monopolized by the few first comers, when they may be made to serve the many, would be an imputation of such imprOVident and inequitable legislation as should not be indulged, save upon overwhelming conviction. It niustbe concluded that plaintifl' is entitled to protection lor its water-right claim, its right thereto quieted, and defendant perpetually enjoined from interfering therewith, and it is now 80 ordered.
436
DDPJRAL nEPoRTER', vol.
49. & TRANSFER
MARVIN tI. MAYSVILLE
ST.
RAILROAD
Co.
(Circ:uit Court, D. Kentucky. January 18,1899.) L DUTH BY· WRONGFtiL.Aoor-,-RIGHT OIl' AOTION-PARTIES.
The right of action for damages given by Gen. St. Ky. o. 57, p. 550, to the perBanal representative of "any person" whose life is lost by the negligence of a railroad oompany, etc., to lle pursued "in the same manner that the person himself have done for any injury where death did not ensue, " is not confined to dewho were citizens or residents of Kentucky. nor to personal representatives appointed in and by the state of Kentuc.li:y. '
2. SAJlIE-AsSETS-ADMINtSTRATION.
. ,ight of recovery is not an asset. upon which administration,in the 08lje of a non-resident, can be obtained in KentucKy.
At Law. On demurrer to complaint. Overruled. William M.Tugman, G.' Bambach; and L. W. Robertson, 'for plaintiff. A.MJ J. Oochran and Wm. Wa:dswcirth, for defendant. BARR, District Judge. This is a suit by the plaintiff, as adminis. trat6r ofMarionWilsQn, deceased,who wasat·thetime of his death a citizen. of tl1esta:teof: Ohio, and who is alleged 'to have been killed·in MaYsVille,of this state;'in :N?veinber, 1890; by the o.fan employe of the defendant. The plaIntlff' has" beenappointed 'by the proper court: in the state of Ohibas the administratdr of decedc;mt" and is himself a: citizen of Ohio, and the defendant is a Kentuckycorpotathm, and, as snch, a citizen of this state. The plaintiff claims his:i'i?;ht of action, both u11der the' Kentucky and Ohio statutes" and the defendant has filed general and special demurrer. The grounds of thespecia1 demurrer ate that this court has no jurisdiction of the defendant, or the subject of the action, and that plaintiff has not legal capacity to sue.' The action is for the death of the decedent uuder St., and not under chapter 10 of the first section of chapter 57, said statutes. ' That section enacts:' "If the life of any perSon not in the employment of Ii railroad company shall be lost in this commonwealth by reason of the negligence or carelessness of the proprietor or proprietors of any railroads, or: by the unfitness or negli. gence or carelessness of their servan,tsor agents. the personal. representative of thtl person whose life is so lost may institute s,uit and recover damages in the saUle manner. that the person himself might have done for any injury where death did not ensue." Gen. St. c. 57. p. 550. . If the life of any person is lost in. thi!lstate by reason of the negH. gence, carelessness, or unt1t:ness of the agentl3 or servants of a proprietor .of a rll.ilroad, or by his .own negligence or carelessness, a right is given hispersollal representative torec()v,er damages. Evidently there is noth· ing in this section that confines this right to citizens or residents of the state of Kentncky, but the right is given to any person without regard to residence or citizenship. The remedy is given to the personal repre. sentative of the person thus killed, and he may pursue the remedy thus given "in the same manner that the person himself might have done for any injury where death did not ensue." As a mere matter of construe-
HARVIN
V.
MAYSVILLE
&
TRANSFER CO.
437
tion, the remedy seems to be as broad as the right whioh is given by the statute; but does "personal representative" mean anyone who may be appointed by bhis state, oraoy other state,oris it only a personal representative appointed in and by the state of Kentucky? This is the question raised by the demurrer, and one oot free from difficulty. It may be assumed as settled that, had the decedent not died from his injuries, his action would have been a transitory one, which he could have enforced in this or any state where he could have obtained actual service. MOBtyn v. Fabrigas, 1 Cowp. 161; McKenna v. Fisk. 1 How. 241; Watts v. Thomas, 2 Bibb, 458. We think it is the law of.this state that actions like this one are transitory, unless made local by the act of the state which gives the right and remedy. Dennick v. Railroad, 103 U. S. l1;Bruee v. Railroad 00., 83 Ky. 174. l It is argued that as non-residents of tbis state who are killed by negli. gence and carelessness, asiudicated in this section, usually have no personal estate in the state, a construction of the act, so as to confine the remedy to personal. representatives appointed by and in the state of Kentucky, would deprive those non-residents of all' remedy. ': iThis, it is claimed, would be in contravention ofisection 2, art.4,ofthe con-. stitution, which provitles"thatcitizensof each state shall be elltitledto. all the privileges and immunities of citizens of the several Justice WASHINGTON inOor.field v. 0arye1J" 4 Wash. C. C. 381,in consider.; ing this section, says: "We feel no hesitation in confining these expres-. sions to those privileges and immunities which are, in their nature, fundamental;" and then enumerates some privileges which are. clearly fundamental, and among these he puts the right" to institute and maintain actions of any kind in the courts of the state" which a citizen of the state could. It becomes, therefore, important to inquire whether the right given under this section (chapter 57, § 1) is sufficient to give Kentucky county courts jurisdiction to appoint a personal representative for a non-resident of the state who was killed in this state by the negligence or carelessness described in said section. In Thwmb v. Gresham, 2 Mete. (Ky.) 308, the courtofappeals. of this state declare: "Where there are no assets in this state belonging to a decedent who resided in another state, to be administrated here, the county courts have no jurisdiction to grant administration; and any such grant is void, and confers no power. or authority on the person appointed as administrator." The broadest definition of "assets" that I have seen isthat given by Justice Story, who 8ays: "In an accurate and legal sense, all the personal property of the deceased, which .is or a salable naturll, and may be converted into ready money, is deemed ·assets.' But the rrorll; is not confined to sucll property; for all other which is chargeable with his debts or legac.ies, and property of the is applicable to the purpoRe, is, in a large senlle, assets. ". Story, Eq. Jur. 531. The right given under this (chapter 57, § 1) never belonged to the decedent. It was never his property, if property it be, nntil re.covery; but both the right and the remedy are given by the express
438
FEDERAL REPORTER,
language or the' section to his personal representative, who ever: that might bel after his death. Itls quite true that this recovery, if obtained. is a part of the personal estate of the decedent, and as such is subject, in this state, to the of 'his debts, and goes to his distributees under the statute of the state as other personal property. This is, however, by force of the fltatute,and not because it ever belonged to the decedent. It is compensation for his death when recovered, which becomes a part of his personal estate by force of the statute, and could as well have been given to his wife, if one survived him, or any kinsman or connection of the decedent, if the statute had so provided. We think, therefore, that the right to recover for the death of a decedent given by thisseotioll is not assets upon which an administration of anon-resident decedent could be obtained in this state. And this,even though it be conceded that a right of action for personal injuries during a decedent's life, and which is made to survive his de.ath by statute, (chapter 10,) might be sufficient assets ta obtain administration upon his estate here. This isa remedial statute, and should beconstriled liherally for the purpose of carrying , out the legislative intent. And certainly, if the language is doubtful, and one cOllstruction,would make the law unconstitutional and the other constitutional, the latter construction should be given. But, aside from the constitutional question, it seems to me that the legislature did not intend, in this section, to confine either the right or the remedy therein given to personal representatives appointed by the courts of this state. The plaintiff, by reason of his appointment by a proper court in Ohio, is within the description of the persons entitled to sue by the Kentucky statute, and ,may maintain this action. " But he must conform to Kentucky law as to the manner, of recovery, and the dii'lposition of the recovery. This recovery becomes liable to decedent's debts due to citizens and:residents of Kentucky, because, when recovered, itbecomps part of the personal estate of deoedent. Alter these are paid, the balance is to be distributed and disposed of according to the la ws of the state of which decedent was an inhabitant. Sections 6-,.8, art. 2, c. 39, Gell. St. This disposition of any recovery that may be had, should be secured by a bond similar to the bond provided for by sections 43, 44"art. 2, c. 39, Gen. St. It is true that this action is not for a debt, nor is it due the decedent, andtherefore it is not within the terms of these sections; yet the court, under its general powers, has the authority to require such a bond, so as to protect the creditors who may be entitled to subject this recovery, if any, to the payment of their debts under the Kentucky laws. The conclusion reached by the court is not free from doubt,but it to be the only practical solution of the question so as to make the law unilorm in and' constitutional. The demurrers should be , overruled, anditis so
CUNNINGHAM: tI. NEW YORK'CENT.
H. R. R. 00.
439
CUNNINGHAM: 1l. NEW YORK .GENT.
& H. R. R. Co.
(OirouU Oourt. B. D. New Yark. .February 10, 18112.) DAMAGES-OPINION EVIDENOE-}l'uTURE El!'l!'ECT QJ' INIURIBS.
In an action to recover damages for personal injuries, the opinions of medioal experts a.s to the permanence and probable future effect of those injuries m.ay be received. .
At Law. Action by Edward H. Cunningham against the New York C,entral & Hudson River Railroad Company to recover damages for personal injuries. There was'a verdict for plaintiff, and defendant moves for a.new trial. Motion Qve.rruled. Dani& Nason, for plaintiff.
A'U8tim G.
WHEEJ,ER, District Judge. The plaintiff got a verdict for injuries to his person while 8; passenger on one of the defendant's freight trains. The principal questions saved at the trial, and relied upon now,relate to the· testimony of expert physicians who attended upon him, and have since examined him, as to the permanency and probable futureefl'ects of the injuries, and to· his right to recover damages for what these effects are likely to be. "The opinions of medical men are constantly admitted as to the cause of disease or of" death, or the consequences of wounds,and as to the sane or insane state of a person's mind as collected from a number of circumstances, and as to other subjects of professional skill." 1 Greenl.Ev.§. 440. Theqllestions objected to -Were allowed bec/mse thought to be within this rule, and' they are still thought to be so. The principal objection to answers allowed to stand is that they were not posi. tive, but more or less conjectural. They could not, however, from the nature of tbesubject, be absolutely positive, but, being as to opinion, must be more or less uncertain. Their weight, according to their positiveness, with other respects, was for the jury, and was left to the jury. Fetter v. Real, 1 Ld. Raym. 339,692, I.Salk.H, 12 Mod. 542, was for the coming out of part ofthe plaintiff's skull in consequence of a battery, after recovery for .the battery; and, on demurrer to a plea of the former recovery, Lord HOLT, O. J., said: II If this matter had been given in evidence as that which in probability might have been the consequence of the battery, the plaintiff would have recovered damages for it;" and the demurrer was sustained. This case is not shown nor seen to have been overruled or questioned, but seems to have been approved, and to be correct in principle. Sedg. Dam. 104; Whitney v. Olarendon, 18 Vt. 252; F'lilRome v. Ckmcord, 46 Vt. 135; Stutz v. Railway CO., 73 Wis. 147, 40N. W. Rep. 653; TreadtOeU v. Whittier, 80 Cal. 575, 22 Pac. Rep. 266. The ruling on this sub· jeot seems to ,be within this principle. Another point suggested now, as to expenses of treatment and of joumey home, does not appear to have been saved at the trial, perhaps because not of much importance, and it could bavebtlen belpedby amendment. Motion for new trial over· ruled. '