It

number of years; and for the purpose of concealment and fraud, did not insert the names in the index or alphabet. was held that the deed was not recorded, and was not notice to after-purchasers. This is indorsed by the Missouri case, on account of the fraud that was perpetrated. But it seems to us that it makes little difference, so far as the equities of the innocent purchasers are concerned, whether the obscurity of the record was the result of fraud or negligence on the part of the recorder. Certainly, there is no logical basis for such a discrimination. The rights of the purchaser must depend upon something more tangible and more easily ascertained than the motive of the officer. Evidently the idea upon which the decision in this case was based was, that the searcher of title had been misled by the state of the record. But as a practical fact, he would have been no more liable to have been misled by reason of the deed being recorded in an unused book, than if it had been recorded in the proper book and not indexed. The recording in the unused book was an unnecessary act of caution on the part of the recorder in his attempt to deceive. In Chatham v. Bradford, 50 Ga. 327, 15 Am. Rep. 692, while the court to a certain extent argues the general proposition, insisting that an index is only a means of access to the record, and that ease of access is wholly a question of degree, it says that many of the records of that state have no index; that their acts for the recording of deeds do not, any of them, require the clerk to keep an index; and states, in conclusion, that they put their decision mainly on their own statutes, and on the condition of the records and the uniform practice of that state. They also approvingly cite Sawyer v. Adams, 8 Vt. 172; 30 Am. Dec. 459. Curtis v. Lyman, 24 Vt. 338, 58 Am. Dec. 174, cited by plaintiffs on this point, we have been unable to obtain; but from reference to it in other cases, we conclude that their statute is different from ours in reference to indexing. Considering the difference in the statutes, we think that none of the cases cited are directly in point.

While it is true that Devlin, in his work on deeds, section 696, seems to imply that an index is not necessary to give constructive notice, yet he evidently bases the idea, not so much on the theory that the index is not a part of the record, as from his general conclusion that the obligation of the grantee as to notice ceases when he has filed his deed for record. And he qualifies this general statement by saying, "Unless the language of the statute necessarily leads to a different con

clusion,”—a qualification, it seems to us, which renders meaningless the general statement; for as constructive notice is purely statutory, it must necessarily follow that it is the language of the statute" that leads to one or the other of the conclusions. He cites Barney v. Little, 15 Iowa, 527, but says that "the decision in that case was founded upon the express language of the statute of that state," intimating that in consideration of the statute the conclusion of the court was correct; and inasmuch as our statutes make the index a more important factor in the system of registration then does the Iowa statute, we may fairly conclude that under a statute like ours this learned author would consider the index an essential part of the record. Indeed, upon painstaking investigation, not only of all the cases cited by plaintiffs (except the Vermont case, above referred to), but of many others, we have been unable to find a case reported which decides that an index is not an essential part of the record, upon a statute substantially like the registry laws of 1869. It is true that in numerous cases it has been decided that where an instrument affecting realty was not indexed as required by law, that the title of the grantee should not be disturbed. The greater part of such decisions, however, will be found, on examination, not to be based on the theory that the index is not a part of the record, but upon the broad principle that the recording officer is the agent of the subsequent purchaser, and that the grantee is acquitted when he places his deed for record in the hands of the proper officer,-a position which, we think, is untenable for the reasons above given. It is urged by the court in Schell v. Stein, 76 Pa. St. 398, 18 Am. Rep. 416, in deciding the case adversely to the interest of the purchaser, that the provision for indexing the records is of comparatively modern origin, and that such provisions did not exist in the early registry laws. This, we think, is a good argument, but the application by the learned judge was, in our judgment, bad. The law was no doubt suggested by the necessity of some such provisions, as the records accumulated; and at the present day, considering the accumulations of deeds, mortgages, and liens of all kinds affecting real estate, and the rapidity with which titles are changing every day, if we give the effect of constructive notice to the record at all, the only practical way by which the public can obtain the benefit of that notice is through the medium of the index. Laws are enacted for the benefit of the citizen, not only in theory, but

in practice. They are not intended as pitfalls for the feet of the unwary. The state provides, in express terms, for the keeping of this index, and its mandate to the auditor is to enter in said index, in alphabetical order, the names of the grantors and grantees. This law the citizen is aware of; he has a right to presume that the law has been obeyed. If there was no such law, and he had abundance of time and untold patience, he might devote himself to the task of examining the vast accumulations of records, page by page; but with the law in effect, and the universal custom recognized of examining the record through the index, if the instrument is not indexed, the law, instead of aiding and protecting the citizen, becomes a delusion and a snare, and a ready vehicle for collusion and fraud. It would be a policy worthy of the consideration of the ancient tyrant who wrote his laws in small characters and posted them so high that his subjects could not read them, while at the same time he held them accountable for their strict observance. In this connection we cannot refrain from quoting the language of the court in Barney v. McCarty, 15 Iowa, 510, 83 Am. Dec. 427, "that a deed might as well be buried in the earth as in a mass of records without a clew to its whereabouts." In Speer v. Evans, 47 Pa. St. 141, the court says: "As a guide to inquirers, the index is an indispensable part of the recording, and without it, the record affects no party with notice." This, we think, is the better view of the law.

In this case there is no question of actual notice, and applying the law as we have found it to be to the case at bar, it follows that the judgment of the lower court must be reversed. The case is remanded to the lower court, with instructions to reverse the judgment.

REGISTRATION OF INSTRUMENTS NOTICE IMPARTED. The question as to when constructive notice is given by the filing, recording, and indexing of a conveyance is fully discussed in a note to Green v. Garrington, 91 Am. Dec. 106-110, in which are collected the authorities both for and against the rule as laid down in the principal case. See also Marlet v. Hinman, 77 Wis. 136; 20 Am. St. Rep. 102. In Belbaze v. Ratto, 69 Tex. 636, Bassett v. Brewer, 74 Tex. 554, note to Beebe v. Morrell, 15 Am. St. Rep. 295, 296, the rule seems to be followed which considers an instrument as duly recorded so as to impart constructive notice when it is deposited with the proper officer for record.

RECORD OF CONVEYANCES. NECESSITY FOR AN INDEX: See note to Green v. Garrington, 91 Am. Dec. 109, 110; note to Hibbard v. Zenor, 9 Am. St. Rep. 503, 504. In some states the index constitutes an essential part of the proper registration of an instrument: St. Croix etc. Co. v. Ritchie, 73 Wis. 409; Prin

gle v. Dunn, 37 Wis. 449; 19 Am. Rep. 772. And in Michigan, entry in the entry-book must be made before a conveyance can be deemed recorded: Balen v. Mercier, 75 Mich. 42. The remedy for failure to record, or for mak. ing a defective record, is against the recorder: Green v. Garrington, 16 Ohio St. 548; 91 Am. Dec. 103.

REGISTRATION OF INSTRUMENTS-PROOF OF. -The recorder's certificate that a conveyance is properly registered is not conclusive: Johnson v. Burden, 40 Vt. 567; 94 Am. Dec. 436, and note.

ILWACO RAILWAY AND NAVIGATION Co. v. HEDRICK,

-

[1 WASHINGTON, 446.]

NEGLIGENCE-INJURY TO CHILD UNLOCKED TURN-TABLE MEASURE OF DAMAGES. In an action against a railway company for negligently causing the death of a child in leaving a turn-table unfastened, the measure of damage is the loss occasioned by the death; and his health, mental and physical condition, and expectancy of life are proper sub. jects to be submitted to the jury for their consideration in estimating the damage sustained. NEGLIGENCE-INJURY TO CHILD FROM UNLOCKED TURN-TABLE EVIDENCE. — In an action against a railway company for negligently causing the death of a child in leaving its turn-table unfastened, expert medical tes timony that the child was frail and weak, and that he died from the injury received at the turn-table, is admissible on the issue as to his health and physical condition at the time of the injury; but such testimony as to "whether or not, if the child had been a healthy child, it would have survived the injury" is inadmissible under such issue. NEGLIGENCE-INJURY TO CHILD - EVIDENCE OF CUSTOM IN REGARD TO TURN-TABLES. In an action against a railway company for negligently causing the death of a child in leaving a turn-table unlocked, evidence of a custom of railways to leave their turn-tables unlocked and un fastened at all times, whether in actual use or not, no matter whether inclosed or in a public place, is inadmissible on the issue as to whether or not the turn-table was secured, at the time of the injury, as careful and prudent men would ordinarily fasten it under similar circumstances. NEGLIGENCE- UNFASTENED TURN-TABLE-INJURY TO CHILD. — It is the

duty of a railway company to so fasten its turn-table as to prevent injury to those who, by reason of their tender years, are incapable of comprehending its dangerous character, either by locking it, or in some other way preventing access to it. A failure to take such precaution is negligence on the part of the company, for which it must respond in damages. In such case, the fact that prior to an accident the turn-table had been secured by a rope, which might be untied by children play. ing upon it, and in the past had proved to be an insecure fastening, will not exonerate the company from liability. NEGLIGENCE AS TO UNFASTENED TURN-TABLE

QUESTION FOR JURY. Whether or not a railway company is guilty of negligence in leaving its turn-table unfastened, thereby injuring a child of tender years, is a question for the jury to determine under all the facts and circumstances of each particular case.

Fulton Brothers, for the appellant.

Watson, Hume, and Watson, for the appellee.

ANDERS, C. J. This was an action by appellee, as administrator, to recover damages for the death of his son, a child between five and six years of age, alleged to have been caused by the negligence of appellant in not properly securing a turntable situated upon its own premises, in an open area, near one of the principal streets and close to the business portion of the town of Ilwaco, in this state. It appears that the turntable had been constructed but a short time previous to the accident to the child, and that up to that time it had not been used by appellant for the purpose for which it was designed. A considerable number of the children of the town had been in the habit of playing upon and revolving it previous to the accident to deceased. It was tied to a stake the day before, with a piece of rope by one Hoffman, not in the employ of the railroad company, but was soon after untied by one of the children, and play resumed upon it. The managing agent of appellant, whose office and place of business was in close proximity to the turn-table, testified, in substance, that he also tied it, or caused it to be tied, with a rope two days before the boy was injured; that the next day he noticed it was unfastened, and tied it with the same rope and in the same place; that it remained tied all that day; that he saw the children again on the table the evening before the accident; that they had untied it, and were revolving it and riding on it; that he drove them away and told the men working on the track to keep them away from the turn-table; and that he tied it four times in all with the same piece of rope. But that the table was ever tied or fastened at all, except by Hoffman, is disputed by other testimony in the case. The deceased child had never been to this turn-table before the time he was injured, but on that day he was sent by his mother on an errand to the store, about three hundred yards distant from his home, and close to the turn-table. Returning from the store, he was attracted by the children at play upon the turn-table, and stopped and sat down to watch them on the abutment, on or near the rails of the track connecting with the turn-table, in such a manner that his feet hung down on the side next to the turn-table. While in that position the children turned the table so that his legs were caught between it and the abutment, and so injured that the flesh of both legs, from his knees down, was