competent; or he might have given his opinion upon a similar case, hypothetically stated.

The next ground of error to be noticed is the refusal to permit the counsel for the defendant below to read from medical books. This is a matter generally within the discretion of the court, and therefore not the subject of a writ of error. In many cases, no doubt, it would be proper to allow books of science to be read, though generally such a practice would lead to evil results. But certainly counsel have no right to read indiscriminately what books they may choose, as is contended by the counsel for the plaintiff in error. The latitude to be given to counsel in argument is always under the control and in the discretion of the court.

The other assignments of error to be noticed are in the charge to the jury, and upon the motion in arrest of judgment. The counsel for the defendant below asked the judge to charge that, as the dam in question was erected under the act of the territorial assembly authorizing the construction of mill-dams across streams not navigable, no indictment could be sustained by the state for a public nuisance created by such dam. Though that act has been decided by this court, in the case of Newcomb v. Smith, 2 Pinn. 131, to be valid, yet it can not be conceived that by erecting a dam in accordance with its provisions, license is thereby given to create and continue a nuisance. Such a construction of the power given in that act, to owners of mill property, would be utterly inconsistent with the right of every citizen to call in the authority of the state for protection against the unlawful encroachments of others.

How far soever the privileges given to mill owners may be held to extend, most certainly no such immunity as is here claimed exists. The right is given to any person to build a dam, and flow the water upon the lands of others; but if he thereby creates a public nuisance, he is as liable to an indictment in that regard as if no such statute were in existence: Mountjoy v. Oldham, 1 A. K. Marsh. 535; Taylor v. Major, Id. 552.

This is the only point in the charge given to the jury that it is necessary to examine, and this, as well as the rest of the charge, was correct. One of the grounds on which the motion in arrest was founded, is, that it does not appear that the indictment was found in the name and by the authority of the state. This point is settled by this court in the case of the State v. Delue, 2 Pinn. 204.

Judgment reversed.

OPINIONS OF WITNESSES, WHEN RECEIVABLE IN EVIDENCE: See the prior cases in this series cited in note to Donnell v. Jones, 48 Am. Dec. 73. Opin. ons of non-experts, when admissible to prove insanity: See Dickinson v. Barber, 6 Id. 58, and note; Grant v. Thompson, 10 Id. 119; Doe v. Reagan, 33 Id. 466; Clark v. State, 40 Id. 481; Commonwealth v. Rogers, 41 Id. 458, and note citing prior cases in this series. In this latter case it was decided that professional witnesses are not to judge of the truth of testimony upon which their opinions are based. Also, Beaubien v. Cicotte, 12 Mich. 506, citing the principal case.

DAMMING UP WATERCOURSE CONSTITUTES A NUISANCE, BY POISONING ATMOSPHERE: Neal v. Henry, 33 Am. Dec. 125.

KNOWLTON ET AL. v. CULVER ET AL.

[2 PINNEY, 243; 1 CHANDLER, 214.]

ACTION OF REPLEVIN FOR SPECIFIC QUANTITY OF MINERAL ORE can not be commenced until such mineral has been converted from real into personal property by being severed from the earth.

FRACTIONS OF DAY WILL NOT, IN GENERAL, BE CONSIDERED, and the prima facie presumption is that the several acts in the course of a legal proceeding, when done on the same day, were performed in the order necessary to give them legal effect. But whenever an inquiry into the priority of such acts becomes necessary in order to protect the rights of parties, the ordinary presumption must give way to the facts of the case. BILL OF EXCEPTIONS, WHEN THERE IS CONTROVERSY AS TO WEIGHT, effect, or admissibility of evidence, should set forth the evidence given or offered at length, and contain an averment that such evidence was all that was given or offered. When there is no dispute as to the facts, it is sufficient for the bill to state that such facts were proved.

REPLEVIN for a specific quantity of lead ore. under the instructions of the court, had a verdict. facts appear in the opinion.

J. H. Knowlton, for the plaintiffs in error.

Culver, for the defendants in error.

The plaintiffs,

The further

By Court, HUBBELL, J. This is an action of replevin for five thousand pounds of lead ore. There are several allegations

of error, of which the third is as follows:

"The court erred in charging the jury that the day could not be divided; and that, although the suit was commenced a few hours before the mineral, taken on the writ of replevin, was dug loose or severed from the earth, yet, if the jury were satisfied that the said mineral was dug loose during any hour of the said eighth day of February, so as to become personal property, so far as this point was concerned, they (the jury) must find for the plaintiffs, as this was the day laid in the plaintiffs' declara

tion, which must be the guide; and no fraction of a day could be inquired into for the purpose of showing that the suit was commenced before the mineral was dug loose, upon the same day; that this was not a case in which such an inquiry could be made."

The bill of exceptions contains the following among other matters: "And upon the trial of that issue, said defendants, to maintain the issue on their part, and to defeat the said plaintiffs, gave in evidence and proved that the mineral, taken on the writ of replevin in this suit, was dug loose from the earth after three o'clock in the afternoon on the eighth day of February last, and raised to the surface and placed in a pile by eight o'clock in the forenoon of the ninth of the same month; from which place it was replevied about noon of the said ninth. And the said defendants further proved that the said suit was commenced in the forenoon of the said eighth day of February last."

Clearly, no cause of action existed until the mineral was converted from real into personal property, by being severed from the earth. And this was not done until three o'clock in the afternoon of the eighth day of February. If, therefore, the suit was commenced in the forenoon of the eighth, as the bill of exceptions shows, the suit was brought, in point of time, before the cause of action arose. This, on general principles, would be a fatal error, and would be good cause for demurrer, special or general, and for reversing the judgment on writ of error: Lowry v. Lawrence, 1 Cai. 69; Bemis v. Faxon, 4 Mass. 263; Id. 11 [miscited].

It is alleged, however, that the law recognizes no fractions of a day, and the learned judge, in the court below, expressly charged the jury that this was not a case in which fractions of a day could be inquired into. In this, I think, he erred. In general, it is true that, in computing time in respect to the service of papers, the issuing of process, the calculation of interest, the running of statutes, and many other like matters, the fraction of a day will not be considered. And in reference to the commencement of suits, in particular, it may be admitted that the precise hour or moment of issuing the process or handing it to the sheriff will not, in ordinary cases, be inquired into. Prima facie, the presumption of law is that the several acts or steps in the course of a legal proceeding take place in the order necessary to give them legal effect. But, whenever an inquiry into the priority of acts, on the same day, becomes necessary

in order to protect the rights of parties, the ordinary presumption must give way to the facts of the case: Pearpoint v. Graham, 4 Wash. C. C. 232; Allen v. Stage Company, 8 Greenl. 207.

This is not properly dividing a day, or taking notice of parts of a day; it is simply taking notice of time, and giving effect to particular acts, according to their actual occurrence. The books abound in examples of this sort. The precise times of entering judgments, recording deeds, serving attachments, levying under executions, and issuing policies of insurance, are always deemed proper subjects of inquiry when the rights of parties are affected by the priority of the acts.

My attention has been called to the case of Badger v. Phinney, 15 Mass. 346 [8 Am. Dec. 105], as an authority showing that courts will presume an act to have occurred at such hour of the day as may be necessary to give validity to the proceeding, or to effectuate purposes intended. For the prevention of wrong, in extremes cases, such presumptions have been indulged. A similar ruling prevailed in Clute v. Clute, 3 Denio, 263. But these cases must be regarded as exceptions to the general rule, ex debito justitiæ; and while they sufficiently establish the fact that fractions of a day, or, rather, points of time, may be the subject of judicial notice, they show that, had justice required it, the ruling would have been different. In the present case, the writ of replevin must have been procured by an affidavit of the plaintiffs, setting forth their right to the mineral afterwards replevied. But, in point of fact, the mineral was not severed from the freehold at the time the writ issued. Aside from the practical absurdity involved in the assumption that the affidavit can have been properly made, there is nothing in the whole case presented to the court which should induce a straining of the rule of law to give validity to the writ.

I have looked into the two other questions raised in the assignment of errors, to wit, whether the mineral taken was the proper subject of replevin, and whether the interest of McCluskin was fatal to the plaintiffs' action; and I find in them no strong ground of justice which varies my views of the point already decided, and as this point is fatal to the plaintiffs' suit, I need not enter upon a discussion of those questions. It was urged in argument that the bill of exceptions was defective in not stating that it contained all the evidence on the points in controversy, or in not setting forth, in fact, all the testimony given on the trial. The general rule in regard to bills of ex

ceptions is this: where there is no dispute about the facts proved, the bill should state that such facts were proved on the trial; and that is the form of the present bill. In that respect, it is correct in form and sufficient in substance, saving the court much trouble and time in examining the details to arrive at the admitted conclusion. Where, however, there is a controversy as to the weight, effect, or admissibility of evidence, the bill should set forth the evidence given or offered at length, and should aver that it was all the evidence given or offered at the trial, or on the point in question.

On the whole, I am satisfied that there was error in the instructions of the court below, and the judgment must be reversed, with costs.

Judgment reversed.

REPLEVIN, WHEN LIES: See Marshall v. Davis, 19 Am. Dec. 463, and note; Dunham v. Wyckoff, 20 Id. 695, and note. Such action does not lie for the product of lands held adversely to plaintiff: De Mott v. Hagerman, 18 Id. 443, and note; Bruen v. Ogden, 20 Id. 593, and note.

TIME, HOW COMPUTED, AND WHEN FRACTIONS OF A DAY WILL BE CONSIDERED: See the prior cases in this series cited in note to Jones v. Planters' Bank, 42 Am. Dec. 474; also Smith v. Cassety, 48 Id. 420.

BILL OF EXCEPTIONS, WHAT MUST STATE: See Peden v. Moore, 21 Am. Dec. 649; Nesbitt v. Dallam, 28 Id. 236; Neal v. Saunderson, 41 Id. 609; Brewer v. Strong, 44 Id. 514; May v. State, 45 Id. 548. When the bill of exceptions states certain facts to have been established, the appellate court will take such facts as undisputed or conceded: Beach v. Packard, 33 Id 185.

WINNE V. ELDERKIN.

[2 PINNEY, 248; 1 CHANDLER, 219.]

AWARD MADE UPON PAROL SUBMISSION TO ARBITRATION IS BINDING & common law and in Wisconsin, although in Wisconsin statutes have provided for submissions to arbitration, which require the agreements therefor to be in writing.

EVIDENCE OF AWARD IN FAVOR OF DEFENDANT IS ADMISSIBLE in an action of assumpsit, under the general issue.

ASSUMESIT. The opinion states the facts.

George Gale, for the plaintiff in error.

M. M. Strong, for the defendant in error.

By Court, WAITON, J. This cause was tried in the late district court of Walworth county, and the error alleged to have been committed on the trial is, that the district judge refused to