plainant was a resident of Scotland, and had real estate there. A gambling contract was void in Scotland as well as in England; but, as the court had better means of determining both the law and the facts of the case than the Scotch court, it thought that justice required that it ought to try the case, and enjoin the suit in Scotland. In Portarlington v. Soulby, 3 Mylne & K. 104, Lord Brougham enjoined a suit in Ireland on a gambling contract in England. It is not questioned that by the law of New York Miller and Wilson could sue Gittings in the State of New York. The question in the cases where equity has intervened has not been whether the plaintiffs at law had a right to sue at law, but whether there were not equitable circumstances which ought to prevent the exercise of such a legal right. If they had no right to sue according to the course of the local law, there would have been no necessity for equitable relief. The suit here is not only brought on a contract made in a gambling transaction, but, although the bonds and stock were delivered to Gittings with the express intention and expectation that he should hypothecate them, it is alleged that he bad wrongfully hypothecated them without the knowledge and consent of Miller and Wilson, and on this allegation an order has been obtained for Gittings' arrest. In the long line of cases on this subject, beginning at Lord Hardwicke's decision in Mackintosh v. Ogilvie, cited in 4 Term R. 193, and coming down to the present time, it has been uniformly held that a suitor shall not, by impleading a fellow citizen or fellow subject in the court of a foreign country, deprive him of a right or benefit given to him by the laws of their own country. When they owe a duty to each other, this duty must be observed both abroad and at home. And on this footing courts of equity exert their jurisdiction to give the relief which cannot be obtained in a court of law. The further prosecution of the suits in New York ought to be enjoined, and the controversy ought to be determined by the court granting the injunction which has power to do full and complete justice between the parties. If the suits should be continued against Allen alone, and result in a judgment against him, it could be enforced against the partnership property, and would thus affect the interest of Gittings in the partnership effects as fully as if the judgment had been rendered against him. Johnston v. Mathews, 32 Md. 368; Folsom v. Fertilizer, etc. Co. (Oct. Term, 1896), 36 Atl. Rep. 446. WATER City TAXATION -TAXABLE PROPERTY POWER.-In Union Water Power Co. v. of Auburn, 37 Atl. Rep. 331, it was held that water, as an element, is not property, any more than air; but when used, its potential power becomes actual, by operating upon real property, thereby giving it value, and that value is the basis for the purposes of taxation; that the plaintiff's dam and the land upon which its stands, within the city of Auburn-the established place of business of the plaintiff corporation being in the city of Lewiston, and where the power from the dam is applied-may be properly taxed in Auburn at a reasonable valuation, exclusive of the water power created thereby. Such water power is potential, and not taxable, except indirectly, in the valuation of mills with which it is used. The court said in part: The first case brought to our notice is Boston Mfg. Co. v. Newton (1839), 22 Pick. 22; the facts of which were precisely like the facts in the case at bar in all material particulars. The plaintiff owned a dam across Charles river, one-half in Newton and the other half in Waltham. The mills were wholly in Waltham. Newton assessed one-half the dam and one-half the water power. The tax was paid under protest, and suit brought to recover it back as an unlawful assessment upon the water power. Mr. B. R. Curtis was of counsel for the plaintiffs, and Mr. Rufus Choate counsel for the defendants. The opin ion of the court was by Chief Justice Shaw, and the court says: "Water power for mill purposes is not a distinct subject of taxation. It is a capacity of land for a certain mode of improvement, which cannot be taxed independently of the land. "But the objection to this mode of taxation is not the only or the principal objection to the tax in question. The court are of opinion that the water power had been annexed to the mills; that it went to enhance the value of the mills, and could only be taxed together with the mills, as contributing to increase their value. As the mills were wholly situated in Waltham, and were taxable there, they were not lia ble to be taxed in Newton." That doctrine has been recognized in Massachusetts ever since. In Lowell v. Commissioners, 6 Allen, 131, a corpora tion owned certain canals, with appurtenances, whereby it was enabled to furnish certain mills, owned by its stockholders, water for power. For nine months in the year it had a surplus of water for sale to other takers, and the court held that the canals were as sessed in the valuation of the mills to the proportion of the power furnished to them, and that their value for retaining the surplus of water, if any, might be directly assessed to the corporation, but does not authorize the assessment of water power per se. In this State, very likely, the canals would be assessed wholly to the owner, and the power included in the assessment of the mills only. In Pingree v. Commissioners, 102 Mass. 76, it was held that a dam and structures were taxable inde pendent of the water power which they had created. The court says: "They are capable of being estimated by a reasonable valuation, not dependent upon nor including the worth of the water power with which they are connected." It explains Lowell v. Commissioners, supra, by saying: "There was no diversity of right or jurisdiction in that case, which made it necessary to determine whether the canals and land adjoining them could be taxed to the mill owners as water power against a conflicting interest." Fall River v. County Comrs., 125 Mass. 567, holds that right of flowage is an easement in land that can not be taxed indépendently, and the court say that it forms part of the water power which is taxed in connection with the mills, as enhancing their value. Water Co. v. Lynn, 147 Mass. 31, 16 N. E. Rep. 742 holds that one who owns the right to maintain a dam and sluiceways upon the land of another, and is in the enjoyment thereof, may be deemed as in posses sion of real estate for the purposes of taxation, and that the soil may properly be taxed to him. This is the doctrine of Paris v. Water Co., 85 Me. $30, 27 Atl. Rep. 143. Lowell v. Commissioners, 152 Mass. 381, 25 N. E. Rep. 469, holds that land enhanced by the ownership and use of the water power appurtenant thereto may be so taxed, notwithstanding existing statutes. The plaintiff's dam and the land upon which it stands, within the city of Auburn, may be properly there taxed at a reasonable valuation, exclusive of the water power created thereby. That is potential, and not taxable, except indirectly, in the valuation of mills with which it is used. The doctrine held in Paris v. Water Co., supra, is analogous. We are aware that a different doctrine prevails in New Hampshire, but do not think it so well comports with our State polity, and would give so just and equal basis for taxation as the one we are constrained to adopt. Cocheco Co. v. Strafford, 51 N. H. 455; Manufacturing Co. v. Gilford, 64 N. H. 337, 10 Atl. Rep. 849; Amoskeag Manufg. Co. v. Town of Concord, 66 N. H. 562, 34 Atl. Rep. 241. -- FOLLOWING TRUST FUNDS THEFT FROM BANK-EQUITY.-It is decided by the Supreme Court of Nebraska in Nebraska Nat. Bank v. Johnson, that a plaintiff, in order to recover the proceeds of property stolen by the defendant, is not required to prove the guilt of the latter beyond a reasonable doubt. It is sufficient if he establish the allegations of his petition by a preponderance of the evidence that equity will, as against a servant charged with the care of the offices of the plaintiff, a banking corporation, and the preservation of the property therein, declare a trust in favor of the latter with respect to the proceeds of money stolen from it by the former while in the discharge of his said duty, and that conventional relation of trustee and cestui que trust or other fiduciary relation is not essential to the jurisdiction of a court of equity to declare and enforce trust with respect to the property stolen from the beneficial owner. The court says in part: The first proposition argued on this appeal is that, inasmuch as plaintiff's right of action depends upon the alleged criminal conversion by the defendant, the same degree of proof is required in order to establish the commission of such act as would be necessary to sustain a conviction upon an indictment or information therefor. That the authorities bearing upon the subject are not altogether harmonious, we must confess. It is, for instance, said in 2 Greenl. Ev. § 408, on the authority of Thurtell v. Beaumont, 1 Bing. 339, that "where," in an action on a policy of insur. ance, "the defense is that the property was willfully burned by the plaintiff himself, the crime must be as fully and satisfactorily proved to the jury as would warrant them in finding him guilty on an indictment for the same offense." It is, however, observed in a note to the thirteenth edition of that work that the doctrine of the text above quoted, if supported by the case cited, has been very generally disapproved. There are, it is conceded, American cases which tend to support the contention of counsel, although opposed to the overwhelming weight of authority in this country, and this is particularly true of recent ut terances on the subject. As illustrating the trend of judicial opinion upon the question may be cited Welch v. Jugenheimer, 56 Iowa, 11, 8 N. W. Rep. 673, in which it is said, referring to an earlier case in the same court: "A more careful examination of the books satisfies us that, whatever may be the rule in actions of slander or libel, where a crime is charged, and a justification is pleaded, the rule in Barton v. Thompson, 46 Iowa, 30, is in conflict with the weight of authority, and cannot be sustained on principle, and is therefore overruled." And in Kane v. Insurance Co., 39 N. J. Law, 697, the court of errors and appeals, in reversing the judgment of the supreme court, declare that the decision in Thurtell v. Beaumont, supra, was made without much consideration, and has never received approval in the English courts. See, also, Monoghan v. Insurance Co., 53 Mich. 238, 18 N. W. Rep. 797; Finley v. Widner (Mich.), 70 N. W. Rep. 433; Thoreson v. Insurance Co., 29 Minn. 107, 12 N. W. Rep. 154; Express Co. v. Jenkins, 73 Wis. 471, 41 N. W. Rep. 957; 2 Whart. Ev. § 1246; Cooley, Torts, 208. IS WHAT A JURY SEES EVIDENCE WHEN Upon this subject there is a disagreement among the text book writers. The question here to be discussed may be more correctly stated as follows: Is what a jury sees evidence in law which they are at liberty to consider in connection with the testimony in a case, or is it simply explanatory of evidence. In other words must a jury rely and decide upon the testimony and not what they may see when "making a view." At the outset it may be best in order to properly distinguish the cases, to separate the different kinds of juries and viewers. There are, under the statutes of different States, fence viewers, and road viewers, drainage juries, insanity juries, coroners' juries, and there are boards in the nature of juries, such as condemnation and right of way commissioners. What such juries see is undoubtedly evidence and in many cases is about all the evidence they have; but their functions must not be confounded with those of a regular nisi prius jury. Views by Juries at Common Law.-The viewing of places by juries is a procedure as 1 Dr. Wharton, a recognized authority, seems to maintain the view that what the jury sees is evidence. He calls it "primary evidence," but he does not argue the question and his citations are all criminal cases. Wharton on Evidence, § 346; Wharton on Criminal Law, § 3160. Judge Seymour D. Thompson in his work on Trials holds that what the jury sees is evidence, and he calls the contrary theory the "nonsense of reason." Thompson on Trials, § 7. old as jurisprudence.2 Long afterwards, in 1705, the whole matter of views by juries was reduced to a system by statutes, and juries were permitted to view "lands or places in question in order to their better understanding the evidence that will be given upon the trial of such issues." It remained for an Iowa court to correctly interpret the common law, as we shall hereafter see. So here we begin with the common law and the statute of 1705 in affirmance of the common law, that the view is not for the purposes of evidence, but to a "better understanding the evidence." The question was early raised in a collateral way in Kansas. There a jury was sent out to make a view. The prisoner, charged with a felony, did not go along with the jury, but made no objection. The prisoner insisted that the court erred in permitting the jury to view the premises in his absence, and cited the section of Wharton's Crim. Law before referred to, and argued with great force that if what the jury saw was evidence, then the prisoner had not met "the witnesses face to face," as he had a right, and had not been "personally present during the trial." The supreme court overruled the point. As often happens with courts, the right conclusion was reached, but the wrong reason given. The court saw intuitively what was the proper thing to do, but its reasoning is weak and incoherent. The court had only to say, "What the jury saw was not evidence." Modern History of the Doctrine.-The attack upon the principle itself began in 1869, in Iowa, and was decided by a divided court.5 It has become the leading case, and has been followed until the doctrine of Dr. Wharton and Judge Thompson is now entirely overthrown. It would seem at first thought that there should be many cases on the subject, but investigation shows not so very many. A majority of the States have not passed upon it one way or the other, but the reason is that there have been so many restrictions thrown around view by jury that the procedure has in many States become obsolete. The cases 2 Bacon's Abridgment, Juries, H. 3 Stat. 4 Anne. Chap. 16, § 8; Stat. 6 Geo. 4, Chap. 50, § 23. 4 State v. Adams, 20 Kan. 311. 5 Close v. Samm, 27 Iowa, 503. 6 As stated by Wait in his New York Practice, vol. 3, p. 124. from seven States found in the reports in favor of the law here contended for will be separately considered. 8 In Close v. Samm, it was held by the Supreme Court of Iowa that the object of the statute which provides for the inspec tion of the premises in certain cases by the jury, was to enable them the better to apply the testimony disclosed on the trial, and not to base their verdict in any degree upon such examination itself, or become silent witnesses as to facts in relation to which neither party has an opportunity to cross-examine. The court says: "This inspection by the jury was ordered under the revision, section 3061. 'Whenever, in the opinion of the court, it is proper for the jury to have a view of the real property which is the subject of controversy, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall be shown to them by some person appointed by the court for that pur pose; while the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.' The question then arises as to the purpose and intent of this statute. It seems to us that it was to enable the jury, by the view of the premises or place, to better un derstand and comprehend the testimony of the witnesses respecting the same; and thereby the more intelligently to apply the testimony to the issues on trial before them, and not to make them silent witnesses in the case, burdened with testimony unknown to both parties, and in respect to which no op portunity for cross-examination or correction of error, if any, could be afforded either party. If they are thus permitted to include their personal examination, how could a court ever properly set aside their verdict as being against the evidence, or even refuse to set i aside without knowing the facts ascertained by such personal examination by the jury? It is a general rule, certainly, if not universal, that the jury must base their verdict upon the 7 Close v. Samm, 27 Iowa, 503; Heady v. Turnpike Co., 52 Ind. 117; Wright v. Carpenter, 49 Cal. 607; Brakken v. Ry. Co., 29 Minn. 41; Washburn v. By. Co., 59 Wis. 364; Fox v. Ry. Co., 34 West Va. 466; Morrison v. Ry. Co., 84 Iowa, 663; Columbus v. Bid lingmeier, 7 O. Cir. Ct. R. 136; Machader v. Williams (Ohio), 43 N. E. Rep. 324. 8 27 Iowa, 503. evidence delivered to them in open court, and they may not take into consideration facts known to them personally, but outside of the evidence produced before them in court. If a party would avail himself of the facts known to a juror, he must have him sworn and examined as other witnesses." the cause and cannot be considered in rendering their verdict." In the case of Wright v. Carpenter, 10 it was held by the Supreme Court of California that if on the trial of an issue in ejectment, as to whether the demanded premises were swamp or dry land on a certain date previous thereto, the jurors are sent by the court to view the premises in controversy, they cannot take into consideration the result of the examination in determining the character of the land, as swamp or dry, but must render their verdict on the testimony of witnesses given on the stand, and use the inspection of the land only as means of enabling them to understand and apply the evidence. The court said that the instructions given by the lower court are erroneous in so far as they authorized the jury to take into consideration the result of their own examination of the land, in determining its character as swamp and overflowed, or otherwise. In authorizing the court to send the jury to view the premises in litigation, it was not the purpose of the statute to convert the jurors into silent witnesses, acting on their own inspection of the land but only to enable them the more clearly to understand and apply the evidence. If the rule were otherwise, the jury might base its verdict wholly on its own inspection of the premises, regardless of an overwhelming weight of evidence to the contrary, and the losing party would be without a remedy by motion for a new trial. It would be impossible to determine how much weight was due to the inspection by the jury as contrasted with the opposing evidence, or (treating the inspection as in the nature of evidence) whether it was sufficient to raise a substantial conflict in the evidence. The cause would be determined not upon evidence given in court, to be discussed by counsel and considered by the court in deciding a motion for a new trial, but upon the opinions of the jurors founded on a personal inspection, the value or the accuracy of which there would be no method of ascertaining. The statute could not have intended to produce such results as these, in authorizing the jury to view the premises. In the case of Brakken v. Ry. Co., it was held that where a view of the premises is allowed to In the case of Heady v. Turnpike Co.9 it was held by the Supreme Court of Indiana that the impressions made upon the minds of jurors by the examination of premises to which the jury has been sent for such examination do not constitute a part of the evidence in the cause; and, therefore, it was error to instruct the jury, on the trial of a proceeding to condemn the right of way for a turnpike company, that, in determining the damages, the information derived from the view had by the jury of the premises through which it was proposed to construct the road should be considered as a part of the evidence. The court says: "The giving of the second instruction is complained of. The portion complained of is as follows: 'You must determine the question of damages from the evidence before you, giving the same and each part thereof the weight you think it entitled to, and no more; as a part of the evidence in the case, such information as you derived from the view you had of the premises through which the road is proposed, and of the line of the said proposed road.' We think the portion of the instruction above set out cannot be sustained. In The Evansville, etc. R. R. Co. v. Cochran, 10 Ind. 560, where a jury was sent to examine the premises, and the record contained nothing in relation to the impression produced upon the minds of the jury by the examination, it was held that the evidence was not all in the record, though the bill of exceptions stated that it contained all; in other words, it was held that the impression made upon the minds of the jurors by such examination constituted a part of the evidence in the cause, and that is just what the jury were told in the present case. The ruling in the above case was followed in several sub.sequent cases. But in The Jeffersonville, etc. R. R. Co. v. Bowen, 40 Ind. 545, the above case was overruled. It results that the impression made upon the minds of the jurors does not constitute a part of the evidence in 9 52 Ind. 117. 10 49 Cal. 607. 11 the jury, such view is not for the purpose of furnishing evidence upon which a verdict is found, but to enable the jury better to understand and apply the evidence given in court. It was therefore, error to instruct the jury that they might use their own examination and judgment, as well as the judgment of the witnesses, in estimating the damages. The court said: "The second branch of the case relates to questions of damages. At the request of the plaintiff's counsel, the jury were allowed to view the premises. The court instructed the jury: 'You, gentlemen of the jury, have examined the premises for the purpose of coming to an opinion. You are to use your own examination and judgment, of the witnesses, in estimating the damages. Some of you are, perhaps, as well qualified to determine that as some of the witnesses who have been called here.' The defendant excepted to this instruction. In Chute v. State, 19 Minn. 271, 281, it is said: 'The view is not allowed for the purpose of furnishing evidence upon which a verdict is to be found, but for the purpose of enabling the jury to better understand and apply the evidence which is given in court.' The instruction made the independent judgment of each juror, derived from the view, an element in arriving at the amount of the damages, without its being introduced into the case for the benefit of the others, or for the information of the parties litigant, and was clearly obnoxious to the objections pointed out in the case last cited." In Washburn v. Ry. Co.,12 decided of Wisconsin it by the Supreme Court of was held that instructions from which the jury might reasonably have understood that they were to assess the compensation according to their own knowledge, judgment, and good sense, aided by their view of the premises, and that they might do so without regard to the testimony or in opposition thereto, are held erroneous, citing with approval the the case of Close v. Sammer, supra. In the case of Fox V. Ry. Co.,13 it was held by the Supreme Court of West Virginia that when the jury have been properly permitted to view the premises in dispute, it is not improper to refuse a re 12 59 Wis. 364. 13 34 W. Va. 466. quest which requires the court to instruct the jury that "they are not to take into consideration anything, or any impression they saw at the view of the premises, in determining the rights of the parties to this suit." The court said that "the object of such view must be to acquaint the jury with the situation of the premises, and the location of the property, so that they may better understand the evidence, and apply it to the local surroundings of the case. To instruct them to disregard everything they saw, and every impres sion they derived from the view, would be to mislead them, because it is apparent that the view would be absolutely useless, and would not conduce to a 'just decision,' if both sight and apprehension were to be closed against the results naturally to be derived from an inspection of the premises." In the case of Morrison v. Ry. Co., it was held by the Supreme Court of Iowa that where under Code, sec. 2790, providing that the court in its discretion may permit the jury to view "the place in which any material fact occurred," the court allowed the jury to view the gate, an instruction that the only purpose of the examination was to aid the jury "in determining the issue, with the other evi dence in the case, as to whether the material was defective," was erroneous, as permitting the jury to give weight to their own observa. tion. the In the case of City of Bidlingmeier," the court among other things charged the jury as follows: "The question whether the grade was a reasonable one at the time it was fixed, is one which you must decide upon evidence given in this case, and all the facts and circumstances detailed, including your personal examination of the property and street." This portion of the charge was duly excepted to by the city, which claims that the court erred in telling the jury that they might take into consideration in deciding the case what they had learned by a personal inspec tion of the property. It was held error for the court below to so charge. "We are aware," says the court, "that a contrary view is expressed in Wharton on Evidence, Sec. 346, and in Thompson on Trials, Sec. 895, but an examination of the authorities cited by those authors satisfies us that they are either 14 84 Iowa, 663. 15 7 O. C. C. Rep. 136. |