bar of justice for trial might, by disorderly conduct, forever defeat a trial and conviction, and thus effectually defy the power of the State. That the court would have the power and right to exclude a prisoner under such circumstances, there can be no reasonable doubt.

Such is the view taken by Judge Benedict of the United States District Court, in the case of The United States v. Davis, 6 Blatchf. 446. The prisoner was tried for the crime of perjury. During the opening of the case he commenced interrupting the district attorney, and persisted in denying his statements in a loud voice, although admonished by the court to refrain. "The action of the prisoner"-quoting from the decision" continuing to be such as to make it impossible to proceed in the trial with due decorum, he was ordered to be removed from the court-room by the marshal, and to be detained in an adjoining room, with the liberty of access for his counsel."

The next day the prisoner was permitted to be present at the trial, which proceeded without further disturbance, he having concluded to comply with the condition upon which he held the right. He was convicted; and on a motion in arrest of judgment, and for a new trial, the prisoner's exclusion from the room was assigned as error. Judge Benedict, in his opinion denying the motion, said among other things, "The right of a prisoner to be present at his trial does not include the right to prevent a trial by unseemly disturbance. * * * It does not lie in his mouth to complain of the order which was made necessary by his own misconduct, and which he could at any time have terminated by signifying his willingness to avoid creating disturbance."

Judge Benedict was clearly right; and so might Judge Cox have excluded Guiteau from the courtroom until he would yield becoming submission to the rules of court and the demands of decency. Had he made such an order, and enforced it with dignified firmness, Guiteau would undoubtedly have submitted.

The fact if fact it be that Guiteau acts as counsel for himself affords no warrant for his conduct, nor does it excuse the extraordinary indulgence of the court. A counselor is an officer of the court, and subject to its rules and authority.

The suggestion that Guiteau is permitted to make a disgusting exhibition of himself for the purpose of aiding the experts and the jury in deciding intelligently upon his mental condition, is not entitled to favorable consideration. In the first place it is by no means clear that such purpose is subserved by his conduct. It may possibly give some aid to the experts; but it is a reflection upon their intelligence to suggest the necessity of such assistance. To an unscientific jury it can only prove a source of confusion and perplexity. They may mistake the excited and malignant outbursts of "devilish depravity," or the grotesque antics of simulated insanity for the manifestations of real mental alienation.

But conceding for the argument that his self-revelations may aid in determining the plea of insanity, is the court justified in adopting such a method of trial? Where is the authority for it? By what rules is it governed, and what are its limitations? Would it be a safe precedent to establish? Manifestly not. On the contrary, its tendency is to dethrone law in the popular esteem, and to bring the administration of justice into contempt.

It is a most unfortunate and deplorable thing that a tragedy which excited the sympathies of all civilized nations should terminate in a judicial farce which compels their contempt!

ALBANY, N. Y., Dec. 21, 1881.

HORACE E. SMITH.

TEMPORARY INJUNCTION MERGES IN JUDGMENT.

NEW YORK COURT OF APPEALS, NOVEMBER 22, 1881.

GARDNER V. GARDNER.

In an action of divorce, defendant was enjoined from doing certain acts until "the further order of the court." Held, that a judgment in the action was the further order of the court, and superseded the injunction, and the latter became merged in such judgment, even though the defendant had taken an appeal therefrom.

PPEAL by defendant from an order of the General Term, affirming an order made in an action of divorce, after judgment, in proceedings for contempt, on the ground that defendant had disobeyed an order of injunction made while the action was pending and previous to judgment. Sufficient facts appear in the opinion.

William G. Crea, for appellant.

C. F. Whittemore, for respondent.

PER CURIAM. The question presented upon this appeal is whether the injunction order granted prior to the judgment was in force at the time the alleged contempt was committed. By the terms of the order it was to continue in force until the further order of the court. No provision is made in the final judgment or order entered upon the referee's report allowing alimony, continuing the injunction, nor was any reference made in said judgment to the injunction, nor was any further or other injunction granted thereby. The claim of the appellant rests upon the theory that the injunction being unconditional and to continue in force only until a further order is made, no such order having been granted, it was abrogated by the final judgment. It is no doubt the general rule that the judgment should control; but the question to be determined upon this appeal is whether this principle applies when the defendant has appealed from the judgment and refused to abide by its requirements. It is well settled that a judgment, until reversed, is conclusive between the parties to the record upon all matters directly adjudicated. So long as it is in force it must be deemed to have determined their respective rights, and the courts are bound to give effect to its determination. Fellows v. Heermans, 13 Abb. (N. S.)

1, 10.

In the case at bar the judgment settled the rights of the parties and made provision for the payment of alimony amicably. It thus adjudicated upon the subject of the controversy without containing any provision by which the right to the possession and occupancy of the premises was given to plaintiff. This certainly disposed of the injunction and provided for an allowance in its place for the plaintiff's maintenance and support. If the judgment covered the whole case, as is quite manifest, then it superseded the order of injunction and was a substitute for the same, and the order became merged therein. If the judgment was upheld plaintiff would be deprived of no rights, as security was given upon the appeal. That it might be reversed does not add to the plaintiff's right to uphold the injunction if it was abrogated thereby. There can be no question that the injunction was abrogated by the judgment, if no appeal had been taken, and the bringing up of such appeal cannot change its legal effect upon any sound principle. The judgment might perhaps have provided for the plaintiff's occupation of the premises if the court had so determined, and as it did not so adjudge it must stand, subject to the application of legel rules as to its effect upon the rights of the parties.

In the case of People v. Randall, 73 N. Y. 416, it was

This

held that when in proceedings supplementary to execution an order was issued restraining a third person from disposing of property in his possession belonging to the judgment debtor "until further order in the premises," an order appointing a receiver is such further order and the final order, and any restraint thereafter desired should be inserted in that order. decision is directly in point as the case involved the effect on the order. Some cases are cited by the respondent's counsel as upholding a different doctrine, but upon an examination of them we are satisfied that they are not in conflict with the rule laid down, and they relate to actions where the injunction was the principal subject in controversy, and where it would be eminently proper for the court, pending an appeal, to interpose its power to command respect to its judgments and obedience to its authority. Sixth Ave. R. Co. v. Gilbert E. R. Co., 71 N. Y. 430; Erie Railway Co. v. Ramsey, 45 id. 637; Power v. Village of Athens, 19 Hun, 169.

It follows from the discussion had that the final judgment was the further order of the court, and the appeal taken therefore did not affect the same so as to restore or reinstate the injunction.

The order appealed from should be reversed and the motion on which the same is founded be denied with costs.

All concur except Miller, J., not voting.

IMMUNITY OF WITNESS FROM PROCESS.

VERMONT SUPREME COURT, FEBRUARY, 1881.
IN RE HEALEY.*

A., a resident of New York, had pending in a Vermont County Court a suit in the name of another person against B., and came into Vermont for the sole purpose of testifying in said suit, and was a material witness, and as such and as party plaintiff in interest was in attendance at the trial. Within twenty minutes after A. left the court room B. caused a summons to be served on him in a suit in B.'s favor against A., returnable before a Vermont justice of the peace for substantially the same claim B. had pleaded in defense to the suit against him by A. Held, that B. was guilty of contempt of court, and an order was made committing him, unless he discontinued said suit brought by him.

PETITION by William Healey that the service of

process in a suit brought by one Howe against him be adjudged a contempt of court. The facts appear in the opinion. The case was tried in the Windham County Court.

E. J. Ormsbee and A. F. Walker, for petitioner.

J. J. Wilson, for respondent.

VEAZEY, J. William W. Healey, of Danville, N. Y., a man of financial responsibility, and good standing, became by purchase the owner of two promissory notes, one against the defendant Howe, and the other against another party, both residents of Vermont. These notes not being paid when due, Healey sent them to the petitioner, Ormsbee, an attorney, for collection; and he brought suit on them in his own name, but for the benefit of Healey; and these suits were pending and came on for trial in this court at the September Term, 1880. Healey was a material witness in said suits, and was in attendance at the said trial as a witness and as the party plaintiff in interest, though not in name; and testified as such witness, and was in the State for no other purpose. The trial of said cause was had on the forenoon of the 12th day of October; and within twenty minutes after said Healey left the court-room after so testifying, and within a few rods *Appearing in 53 Vermont Reports.

of it, and while on his way to his hotel, and before a decision had been rendered, and before the leaving of any train by which said Healey could have returned to his home in the State of New York, the defendant Howe, through his attorney, caused process of summons to be served on Healey in a suit in favor of the defendant against Healey, returnable before a justice of the peace in Sharon, Windsor county, on the 1st day of November, 1880, demanding $200 damages for an alleged conspiracy the same as alleged in the defendant's plea in said cause in this court. Whereupon this petition was brought charging the facts, and motion was made that this court take notice of the same as of a contempt of this court.

It has long been a well-settled rule of law that all persons who have any relation to a cause which calls for their attendance in court, and who attend in the course of that cause, though not compelled by process, are for the sake of public justice protected from arrest in coming to, attending upon and returning from the court. Tidd's Prac. 196; 1 Greenl. Ev., §§ 316, 317, 318, and cases cited. This protection is granted for the sake of public justice.

The question has often been raised whether the remedy would be the absolute setting aside of the process in case of arrest, or in other words, whether the immunity extends to process of summons. case of a resident suitor or witness, the authorities differ. In the case of a non-resident suitor or witness, the weight of authority is to the effect that the immunity is absolute from the service of any process, unless the case is exceptional. Person v. Grier, 66 N. Y. 124; Norris v. Beach, 2 Johns. 294; Sanford v. Chase, 3 Cow. 381; Hopkins v. Coburn, 1 Wend. 292; Seaver v. Robinson, 3 Duer, 622; Merrill v. George, 23 How. Pr. 331; Van Lieuw v. Johnson, not reported, but referred to in Person v. Grier, supra; Bridges v. Sheldon, Fed. Rep., May 31, 1881, p. 36; Halsey v. Stewart, 1 Southy, 366; Miles v. McCullough, 1 Binn. 77. In Hall's case, 1 Tyler, 274, the court say that a writ of protection which neither establishes nor enlarges the privilege, but merely sets it forth and commands due respect to it, suspends all civil process. In the above causes and others the proposition is announced in various forms, but in substance that this immunity is one of the necessities of the administration of justice. The language of Wheeler, J., in Bridges v. Sheldon, supra, is: "A party who could not attend to his suit without being liable to such service would be under personal restraint from which those engaged in the administration of justice have a right to be free." In Person v. Grier, Allen, J., says: "Courts would often be embarrassed if suitors or witnesses, while attending court, could be molested with process. Witnesses might be deterred and parties prevented from attending; and delays might ensue and injustice be done." In Sanford v. Chase, the court say: "The privilege of a witness should be absolute."

*

The provision of our statute is: "Any party or witness * * * shall not be liable to be arrested or imprisoned or detained *." Has this limited the power of the court to interfere? It seems to me not. As stated by Wheeler, J., in Bridges v. Sheldon, supra, and in other cases, "this privilege arises out of the authority and dignity of the court where the cause is pending, and protection against the violation of the privilege is to be enforced by that court and will be respected by others." Hurst's case, 4 Dall. 387. also says: "The proceeding rests upon the idea that what was done was a contempt which the court should punish." In Thinder v. Williams, 4 T. R. 377, it is said that the discharge of the party privileged is founded on the contempt of the court by arresting him while giving his necessary attendance upon it. It is deemed as a contempt to serve process upon a witness, even by summous, if it is done in the immediate or construct

He

ive presence of the court upon which he is attending. 1 Greeul. Ev., § 316; Cole v. Hawkins, Andrews, 275; Blight v. Fisher, 1 Peters, C. C. 41; Miles v. McCullough, supra; see also, Montagu v. Harrison, 91 Eng. Com. Law (3 C. B. N. S.), 291.

The act of Howe would have been a plain disobedience of the order of this court if it had caused a subpœna to be served upon Healey and had given him a writ of protection. The case stands, as before shown by the authorities cited, precisely the same without such subpoena and writ. The protection does not depend upon the writ. It grows out of the privilege which the law has established. It constitutes a continuing order. Moreover, it has been held that punishment of a party for contempt is sometimes a remedial process to which the opposite party is entitled, though it may not be necessary for the vindication of the authority of the court. Howard v. Durand, 36 Ga. 346.

Our statute was first enacted before imprisonment for debt was abolished, and when service by arrest was common. It was not intended to restrict the right of courts to punish for contempt or properly protect the administration of justice. In the exercise of the power vested in courts to punish for contempt they should proceed with great caution, and especially in a case of this kind, with a view to promote, not defeat, justice.

Under the law as established in New York, the State of the residence of Healey, a resident of Vermont being in that State under the circumstances that Healey was here, would be absolutely protected. Person v. Grier, supra. While the parties were trying in this court the very issues that would be involved in the justice suit, and when Healey was here for the sole purpose of testitying in this court, Howe seized upon the opportunity to entangle him in further litigation upon the same question before another court in a distant part of the State. It is difficult to see how this would promote justice, or to see any other purpose than to harass and annoy Healey. It does not appear that Howe has not had his day in court fairly, or that he has not had all the benefit which the law can give him, or even that he could reasonably expect a different result before another just court. Upheld, his proceeding would tend to deter witnesses from coming here from another State to testify. Its tendency generally would be to obstruct the administration of justice. Healey had a right to be here unmolested by such process, not on his own account, but because the privilege is established in law in order that courts may not be obstructed in the administration of justice. As stated in some of the earlier cases, the privilege of the witness was not considered the privilege of the person attending, but of the court which he attends. Cameron v. Lightfoot, 2 W. Bl. 1190. Healey's presence was deemed essential, and so far as appears was essential to a just determination of the cause. No proper motive seems to have inspired Howe's act, but the reverse. The authorities cited above and other cases establish that the service upon Healey was under the circumstances an act in contempt of this court. Whether regarded as an act in violation of the order of the court, or as an act interfering with the administration of the court, it was not essential in order to be a contempt that it be done in the immediate presence of the court. See authorities supra; also, 11 East, 439; 2 Bl. Rep. 1, 113; Gibb case, K. B. 308; 1 Cranch, C. C. 287; Strange, 1094; 2 Bish. Cr. L., § 252.

If the writ had been made returnable to this court, where the former motion was pending, it would have been dismissed on motion. The court would not have taken jurisdiction of a party whose rights were thus invaded. It would be in effect a withdrawal of the shield and protection which the law uniformly

gives to witnesses. As the court cannot exercise authority directly over the justice case, it ought to apply the only remedy left, which is to punish Howe for his contempt.

It is therefore adjudged, that unless the defendant Howe discontinues said justice suit at the next term of Windsor County Court, to which it has been appealed, he pay a fine of $30 to the clerk for the State of Vermont, and that he be committed until said order be complied with and said suit discontinued.

OVERSEER OF MINERS PERFORMING WORK OR LABOR UNDER LIEN LAWS.

UNITED STATES SUPREME COURT, NOV. 21, 1881.

FLAGSTAFF SILVER MINING Co. v. CULLINS.

An overseer and foreman of a body of miners, who plans and personally superintends and directs the work of the mine, the miners doing the manual labor, performs "work and labor" so as to entitle him to a lien on the mine, under a statute giving a lien to one "who shall perform any work or labor upon any mine."

N error to the Supreme Court of the Territory of

Nemo. The opinion states the case.

WOODS, J. George Cullins, the defendant in error, brought suit against the Flagstaff Silver Mining Company of Utah, the plaintiff in error, in the District Court of the Third Judicial District of the Territory of Utah, to recover wages which he claimed to be due him from the defendant in error for services rendered it, and to subject its property to a lien therefor in his favor, which he claimed attached by virtue of the statute of the Territory. The statute declared as follows:

"Any person or persons who shall perform any work or labor upon any mine or furnish any materials therefor in pursuance of any contract made with the owner or owners of such mine or of any interest therein, shall be entitled to a miner's lien for the payment thereof, upon all the interest, right and property in such mine by the person or persons contracting for such labor or materials at the time of making such contract. Said lien may be enforced in the same manner and with the same effect as a mechanic's lien, as provided by the laws of Utah." Compiled Laws of Utah, § 1221.

The answer of the mining company denied that any thing save a small balance was due the plaintiff, and denied that the statute of the Territory gave him a lien on its property for the sum due him.

The case was submitted to the District Court upon the issues of fact as well as of law. The court found that the defendant below was a corporation organized under the laws of Great Britain, and at the time the services of the plaintiff below were rendered was the owner of and engaged in working a mine called the Flagstaff Mine, situate in Salt Lake county, in the Territory of Utah, and that one J. N. H. Patrick was its general agent and the manager of its mining and smelting business in America.

The court further found "that on or about the 14th day of December, 1873, the said company, by said J. N. H. Patrick, its agent, for that purpose duly authorized, employed the plaintiff for an indefinite time thereafter to direct the work in its said mine, and with authority to employ and discharge miners, and procure and purchase supplies for working said mine, and that it was the duty of the plaintiff, by virtue of said employment, to plan, oversee and direct the work in said mine, direct the shipping of ore, and generally to control and direct the actual working and development of the mine; that the plaintiff, while in the employ

ment of said company, performed said duties, and in the performance thereof did some manual labor."

The court also found that at the commencement of the suit there was due the plaintiff from the mining company, for wages earned by him under said employment, the sum of $1,530, for which sum the court gave judgment, and declared it to be a lien upon the mining company's mine. From this judgment an appeal was taken to the Supreme Court of the Territory, by which it was affirmed.

This writ of error is prosecuted to reverse the judgment of the Supreme Court.

The plaintiff in error alleges that the District Court of the Territory erred in declaring the judgment in favor of the defendant in error to be a lien on its mine, and that the Supreme Court of the Territory erred in affirming that decision, The precise question presented by the writ of error is whether the services found by the District Court to have been performed by the defendant in error, for the mining company, were such "work and labor" as under the statute of the Territory entitled him to a lien therefor upon the mine.

Statutes giving liens to laborers and mechanics for their work and labor are to be liberally construed. Davis v. Alvord, 94 U. S. 545. The finding of the District Court makes clear the character of the services rendered by defendant in error. He was not the general agent of the mining business of the plaintiff in error. That office was filled by Patrick. He was not a contractor. The services rendered by him were not of a professional character, such as those of a mining engineer. He was the overseer and foreman of the body of miners who performed the manual labor upon the mine. He planned and personally superintended and directed the work, with a view to develop the mine and make it a successful venture. He appears from the findings to have performed duties similar to those required of the foreman of a gang of track hands upon a railroad, or a force of mechanics engaged in building a house. Snch duties are very different from those which belong to the general superintendent of a railroad, or the contractor for erecting a house. Their performance may well be called work and labor; they require the personal attention and supervision of the foreman and occasionally in an emergency, or for an example, it becomes necessary for him to assist with his own hands. Such duties cannot be performed without much physical exertion, which while not so severe as that demanded of the workmen under the control of the foreman, is nevertheless as really work and labor. Bodily toil as well as some skill and knowledge in directing the work is required for their successful performance. We think that the discharge of such duties may well be called work and labor, and that the District Court rightfully declared the person who performed them entitled to a lien, under the law of the Territory.

We have examined all the cases cited by the plaintiff in error. None of them seem to be inconsistent with the views we have expressed. They decide that an architect and superintendent of a building; that a person employed to cook for men engaged in constructing a reservoir; that a contractor for the building of a railroad, or the erection of a house; that an agent employed to disburse money and pay off the hands who are building a house; that the assistant chief engineer of a railroad company, are not, under laws similar to the statute of Utah, entitled to a lien for their services. Fousher v. Grigsby, 12 Ky. (Bush) 75; McCormick v. Los Angelos Water Co., 40 Cal. 185; Aikin v. Wasson, 24 N. Y. 482; Blakey v. Blakey, 27 Mo. 39; Caldwell v. Bower, 17 id. 564; Brockway v. Innes, 39 Mich. 47; Peck v. Miller, id. 594.

The case which comes nearer supporting the contention of plaintiff in error than any other cited by him

is Smallhouse v. The Kentucky, etc., Co., 2 Mont. 443. But in that case the court says, that "from the nature of the plaintiff's employment, as averred by himself, it does not appear that he was an architect or laborer, or that he labored directly in the construction of the buildings, but rather that he was employed by tho corporation at a fixed salary to manage and superintend its affairs at the place named." This case is fairly distinguishable from the one now under consideration, but even if it fully supported the contention of the plaintiff in error, is entitled to no more weight than the decision of the Supreme Court of Utah in the present case.

Views similar to those we have expressed were declared by Williams, C. J., in Willamette Falls Co. v. Remick, 1 Oregon, 169, and by the Supreme Court of Nevada in Capon v. Strout, 11 Nev. 309.

It is somewhat difficult to draw the line between that kind of work and labor which is entitled to a lien, and what is mere professional or supervisory employment, not fairly to be included in those terms. Some courts have held, under laws similar to those of the Territory of Utah, that an architect who furnishes plans and superintends the erection of a building, acquires a lien thereon, as for work and labor. Stryker v. Cassiday, 76 N. Y. 50; Mutual Benefit Life Ins. Co. v. Rowand, 26 N. J. Eq. 389; Jones v. Shawhan, 4 W. & S. (Penn.) 257; Bank of Pennsylvania v. Gries, 35 Penn. St. 423; Knight v. Morris, 13 Minn. 473.

It is not necessary in this case to go so far as these decisions would warrant. But we are clearly of opinion that upon the facts found by the District Court the defendant in error, under the statute of Utah, was entitled to a lien upon the mine to which his services were applied. The judgment of the Supreme Court of Utah must therefore be affirmed.

DAMAGES ON BREACH OF CONTRACT TO FURNISH STABLE ROOM.

ENGLISH COURT OF APPEAL, JUNE 17, 1881.

MCMAHON V. FIELD. 45 L. T. Rep. (N. S.) 381. The plaintiff hired certain stables of the defendant, in order to put some horses there which he wished to dispose of at a fair held in the town. Soon after the horses arrived they were turned out of the stables in consequence of the defendant having also let the stables to another person, and as the defendant did not supply the plaintiff with other accommodation for the horses, the plaintiff was compelled to obtain it elsewhere. The plaintiff claimed damages for the breach of contract, and alleged that the horses were injured by being thus suddenly turned out of the stables and exposed to the weather while he was seeking other stables for them. The jury gave him 251. for the loss consequent on his not having the use of the stables, and 501. for the injury to the horses. Held (reversing the judgment of Fry, J.), that the plaintiff was entitled to the damages for the injury to the horses. Hobbs v. London and South-Western R. Co., 32 L. T. Rep. (N. S.) 252; L. Rep. Q. B. 111, questioned and distinguished.

A

PPEAL by the plaintiff from the judgment of Fry, J., on further consideration (reported 44 L. T. Rep. [N. S.] 175).

The plaintiff was a horse dealer in Ireland, and the defendant a hotel keeper at Rugeley, in Staffordshire. In May, 1880, the plaintiff wrote to the defendant asking for stalls for his horses during the horse fair then about to be held at Rugeley; the defendant replied that the plaintiff could have the stalls. The plaintiff sent a cheque, and the defendant replied that he would keep him certain specified stables.

The plaintiff arrived at Rugeley with his horses the day before the fair began, having previously advised the defendant that he might be expected about that

time. On his arrival he found the stables occupied by horses belonging to other persons, but they were removed by the defendant's servants, and the plaintiff's horses were put in their places. The horses were then stripped of their bandages and clothing, for the purpose of being cleaned, but shortly afterward they were turned out and other persons' horses put in their place. A servant of the defendant assisted in turning the plaintiff's horses out of the stables.

The plaintiff then demanded that room should be made for his horses, but this was not done, and he then discovered that the defendant had not reserved the stalls for him, but had let them to other persons. The plaintiff was therefore obliged to seek other stables, and after some trouble obtained some outside Rugeley, but could not obtain the necessary accommodation in the town itself.

While the plaintiff was engaged in finding accommodation the horses were kept standing exposed to the weather, and four of them caught cold, which depreciated their value.

At the trial before Fry, J., at the assizes at Chester, the jury found that the plaintiff's horses caught cold in consequence of the defendant's breach of the contract, and assessed the damages at 501. They also awarded the plaintiff 251. in respect of the loss occasioned by his not having the use of the defendant's stables for the fair.

Fry, J., heard the case argued on further consideration, and gave judgment, holding, on the authority ot Hobbs v. The London and South- Western Railway Co., 32 L. T. Rep. (N. S.) 252; L. Rep., 10 Q. B. 111, that the damages for injury to the horses by catching cold were too remote, and that the plaintiff was only entitled to recover 251.

The plaintiff appealed.

BRAMWELL, L. J. This is an embarrassing case, and even now I do not know the facts accurately. This however is clear, the plaintiff's horses were received into the defendant's stable; then another person turned them out of the stable, and stood at the stable door with a pitchfork to prevent their being put in again. It appears that the defendant was a party to these proceedings, or at least ratified them. Who kept the horses' clothing when they were turned out (for they were not turned out with their clothing on them) does not appear, nor does it appear that any application was made for the clothing. The horses being unclad stood in the defendant's yard while the plaintiff was looking for other stables for them. According to the finding of the jury the plaintiff did not act unreasonably in doing what he did. The horses caught cold, and the damage thereby caused to the plaintiff has been estimated by the jury at 50l. I do not know whether possibly the horses caught cold in consequence of being suddenly turned out of a warm stable; if it were so I do not think the defendant would be liable; but I do not think the evidence points to this. I think the effect of the evidence is that the horses caught cold in consequence of having remained for three hours in the defendant's yard while the plaintiff was engaged in trying to find stabling accommodation for them. I find a difficulty in saying that the defendant is liable. It seems to me to be like the case of the cabman (Clayards v. Dethick, 12 Q. B. 439), which has been referred to in the argument, where the action was held to be maintainable. I think that decision was wrong, for the criterion is not whether the plaintiff behaved reasonably. He may have behaved reasonably under the circumstances, just as it may be said that a man who leads a forlorn hope behaves reasonably. But in this case the plaintiff might have had the horses led about while he was looking for other stables for them, but he chose to leave them standing in the yard, and the result is that they caught cold.

I think that if the question were left to my unassisted judgment I should come to the conclusion that the plaintiff was not entitled to these damages; but knowing that my learned brothers are of a different opinion I will not dissent from their judgment. I wish to say one word as to the case of Hobbs v. London and S. W. R. Co., 32 L. T. Rep. (N. S.) 252; L. Rep., 10 Q. B. 111. I think that decision does not govern the present case. Suppose a person in the position of the plaintiffs in that case had put his foot in a hole in the dark and injured himself, I should doubt if he could not recover, and so if he caught a cold through having to walk home at night; but it would be otherwise if he were attacked and robbed by footpads on his way home. The question in all these cases is, was the mischief caused by the defendant's breach of contract? Here what happened could not have happened but for the breach of contract. Therefore, I will not dissent from the judgment of the other members of the court, but agree that the appeal must be allowed.

BRETT, L. J. Since the decision in Hadley v. Baxendale, 9 Ex. 341; 23 L. J. 179, Ex., the question whether damage is too remote has in my opinion been one of the greatest difficulty. According to the rule in Hadley v. Baxendale it must be considered, first, whether the damage was the necessary consequence of the breach of contract, and then whether it was the probable consequence, and then whether it might reasonably be in the contemplation of the parties. The last two questions are really matters of fact, but the courts have to decide them as questions of law. The question here is, did the fact of the horses catching cold come within any part of the rule? It was not the necessary consequence of the defendant's breach of contract, but I should certainly say that it was the probable consequence if I had to decide the question, and I think it follows that it might reasonably have been in the contemplation of the parties. Here the jury found that the contract had been broken, and that the result of the breach was the damage which the plaintiff suffered. We are asked to say that this is unreasonable, and that the question ought not to have been left to the jury. Now let us consider the facts. The plaintiff brought his horses over from Ireland; he took stabling for twelve horses at Rugley, and arrived at Rugley during fair time, and went into the stables, the horses then having their clothes on. The defendant had let the stables to another man before the plaintiff's arrival, and the other man's horses were in the stables when the plaintiff arrived; thereupon the plaintiff turned those horses out and put his own horses into the stables. Afterward the man who owned the other horses returned, and with the assistance of a servant of the defendant he turned the plaintiff's horses out of the stables, and put his own horses in. No other stabling could then be found for the plaintiff's horses. The defendant knew that these horses had been brought by rail to the fair, and they were turned out hot from the stable. Any one who knew any thing about horses would have known that there was a great probability that they would catch cold. So far from thinking as matter of law that this is not a probable consequence, I am convinced as matter of fact that it is. Then there is the decision in Hobbs v. London and S. W. R. Co., which it is contended governs this case. As to that decision I can only say that if I acquiesce in it I cannot bring my mind to agree with it. There a man took tickets for himself and his wife by a midnight train to Hampton Court; his house was two miles off from Hampton Court; he was taken to Esher, which was between four and five miles from his home; could get no conveyance, and he and his wife had to walk home at night in the rain; his wife caught cold, and the judge