jury upon the subject upon its own motion, it is said that it would appear to be against the letter of the law, but not against its spirit; that "it would seem not to be in contravention of the spirit of the statute if the judge, who may have seen the effect produced upon the jury by the failure of the defendant to testify in a particular case, should instruct them as to what the law requires of them in such case." In Missouri the statute provides that such failure to testify shall not "be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place." The supreme court of that state say there was no error in refusing such an instruction, and that, if the court had given it, it would have disobeyed the spirit, if not the letter, of the law. State v. Robinson, 117 Mo. 663, 23 S. W. 1066. The case of Farrell v. People, 133 Ill. 244, 24 N. E. 423, is also relied upon by counsel. But in that case the codefendant of plaintiff in error had testified, and the court had given an instruction on behalf of the state as to the weight to be given to his testimony, by which the attention of the jury was directed to the statute making defendants in criminal trials competent to testify in their own behalf. By this circumstance the instruction was made necessary for the protection of the defendant in his rights under the statute. In another case the same court say: "The statute has, in unmistakable terms, declared, in effect, the omission of the accused to testify shall not be used to his prejudice, or taken as an evidence of his guilt, and in such case court and counsel should studiously avoid all allusions to the subject." Baker v. People, 105 Ill. 458. In People v. Fitzgerald, 156 N. Y. 253, 50 N. E. 846, cited by plaintiff in error, the error was not in refusing to give an instruction upon the subject, but the instruction given was held to be erroneous and prejudicial to the defendant. In that state the statute does not forbid reference to the subject, but simply provides that his neglect to testify shall not create a presumption against him; yet in the case of Ruloff v. People, 45 N. Y. 222, where the judge, in the course of his charge, had alluded to the failure of the defendant to testify, the court of appeals held that it was error, as authorizing an inference to the prejudice of the prisoner, but as, upon his attention being called to it, he had explained to the jury that no inference was to be drawn against him from the fact of his not being sworn, the error was cured. And the court say that neither the prosecuting officer nor the judge has the right to allude to the fact that a person has not availed himself of the statute.

But not to prolong the discussion of authorities, the history of the legislation permitting defendants to testify in their own behalf shows that its wisdom was originally

very much questioned, and the privilege was regarded as one of very doubtful benefit to the prisoner. In the case last mentioned the court say, "Discreet counsel will hesitate before advising a client charged with high crimes to be a witness for himself, under all the disadvantages surrounding him." And in Vermont the supreme court say, "In the great body of cases, no wise practitioner would permit his client, whether he believed him guilty or innocent, to testify when upon trial on a criminal charge." And they add, "His testimony is far more likely to injure him seriously than to help him a little." State v. Cameron, 40 Vt. 565. In this view of the probable operation and effect of the statute, it was attempted by every available means, while giving him the privilege, at the same time to protect him from the apprehended dangers if he did not elect to avail himself of it. In this and other states the method adopted was to prohibit any reference to the matter from the beginning to the end of the trial, and to let the case be tried, as at common law, as if the defendant's testimony, owing to his interest in the result, would be entirely valueless, and not to be taken into account. This being plainly the purpose of the language used, we think the statute should have a reasonable construction to carry this purpose into effect. If counsel for the state should comment upon defendant's failure to testify, or if anything should occur in the course of the trial to make it appear that it was operating to create a prejudice against him, it would become the duty of the court to protect him in his legal rights, as far as possible, by proper instructions. In the absence of any such circumstances, we are unable to perceive how the court can err by complying with the letter of the law. There is no claim in this case that anything had occurred during the trial to call for the action of the court, beyond the mere failure itself of the defendant to testify; and therefore, while it would not have been error of which the defendant could complain to give the instruction, it was not error to refuse it. The general instruction of the presumption of innocence was sufficient.

3. One of the witnesses for the prosecution was permitted to state, over objection, that he had received a telegram from the Denver News stating that the defendant was not authorized to act as their agent. The evidence should have been excluded. But the business manager of the paper was upon the witness stand, and testified to the same fact. The error was not material or prejudicial to the defendant.

The other errors complained of were sufficiently considered in the former opinion of the court. Rehearing denied.

POTTER, C. J., and KNIGHT, J., concur.

(17 Colo. App. 491) BURLINGTON & M. R. R. CO. IN NEBRASKA v. BURCH.

(Court of Appeals of Colorado. May 12, 1902.) RAILROADS-INJURIES BY FIRE-SUFFICIENCY OF EVIDENCE-MISNOMER OF DEFENDANT

WAIVER-HARMLESS ERROR.

1. In an action against a railroad, evidence that the fire which caused the damage occurred immediately after the passage of a train, that the fire started at the track, and that before the train passed no fire was there, was suflicient to warrant the submission to the jury of the question whether the fire was caused by the train.

2. Such evidence was sufficient to sustain a finding that the fire was caused by the train.

3. The Chicago, Burlington & Quincy Railroad Company owned and operated the line of road along which a passing train started a fire, causing damage to the owner of the adjacent land. Suit was brought against the Burlington & Missouri River Railroad in Nebraska, the designation under which, for convenience, the Q. road operated its lines west of the Missouri river, but which was not the name of any corporation or legal entity. The summons was served on an agent of the Q. road, and it appeared and defended the suit on its merits in the justice's court, and took an appeal to the county court. Held, that the error as to its name had been waived, and that a judgment against the Burlington & Missouri River Railroad in Nebraska was binding on the Q. road.

4. In an action against a railroad for damages to hay by a fire set by a passing train, the plaintiff was allowed to testify that there were small trees between the haystack and the railroad. The plaintiff claimed nothing on account of the trees. Held, that the admission of such evidence was harmless error.

5. Error in not allowing a witness to answer a proper question was cured by afterwards permitting other witnesses to prove the same fact.

Appeal from Boulder county court.

Action by W. W. Burch against the Burlington & Missouri River Railroad Company in Nebraska. From a judgment for plaintiff, defendant appeals. Affirmed.

Wolcott & Vaile and William W. Field, for appellant. H. M. Minor, for appellee.

THOMSON, J. The appellee brought suit before a justice of the peace against the appellant to recover damages for injury to property occasioned by fire charged to have been set out by the defendant. Judgment went against the latter, and it appealed to the county court, where judgment was again given against it, and from this it appeals to this court.

It was proven that the fire from which the plaintiff suffered occurred immediately after the passage of a freight train over the track of a railroad running through his farm, that the fire started at the track, and that prior to the passage of the train no fire was there. The evidence was sufficient to warrant a submission to the jury of the question whether the fire was chargeable to the passing train, and to sustain a finding that it was. Railway Co. v. De Busk, 12 Colo. 294, 20 Pac. 752, 3 L. R. A. 350, 13 Am. St. Rep. 221;

Cressy & Fowler Lumber Co. v. Denver & R. G. R. Co. (Colo. App.) 68 Pac. 670.

When the plaintiff rested, the defendant asked an instruction directing the jury to return a verdict for the defendant. As appears from the argument, the ground of the motion was that no proof had been made showing that the railroad was operated by the defendant. The request was denied. Witnesses were then examined for the defendant by whom it was proved that the owner and operator of the road was the Chicago, Burlington & Quincy Railroad Company. In relation to the ownership and operation of the road, and kindred matters, we give the language of the witnesses themselves, as found in the transcript of the record. The following occurs in the examination of E. Hanson, one of the defendant's witnesses: "Q. What is your business? A. Claim agent for the Chicago, Burlington & Quincy. Q. Are you or have you been in the employ or pay of the Burlington & Missouri River Railroad Company in Nebraska? A. No, sir; I have never drawn any salary from the Burlington & Missouri River Railroad Company in Nebraska. Q. Do you know whether or not the Burlington & Missouri River Railroad Company owns any property in the state of Colorado? A. I do. Q. You may state whether or not during the month of February of the present year the Burlington & Missouri River Railroad Company in Nebraska owned or operated any property in the state of Colorado? A. It did not. Q. You may state who, if an individual, or what corporation or company, owns and operates the railroad known as the Burlington & Missouri River Railroad in Nebraska, or that portion which runs across Boulder county, Colorado? A. The Chicago, Burlington & Quincy Railroad Company operates the line of road running through Longmont and Hygiene and into Lyons, in this county, formerly known as the Denver, Utah & Pacific road. Q. What was the significance, if you know, of the name the Burlington & Missouri River Railroad Company in Nebraska? A. It is for the convenience of keeping the accounts separate from the accounts of the road east of the Missouri river. Q. And that portion of the line east of the Missouri river and the portion west of the Missouri river, designated as the Burlington & Missouri River Railroad in Nebraska, are parts of what railroad system? A. Of the Chicago, Burlington & Quincy Railroad Company. Q. How long, if you know, has the Chicago, Burlington & Quincy Railroad Company owned and operated these two portions of the system that you have spoken of? A. To my knowledge, since 1891 up to the present time. Q. Mr. Hanson, did you or were you instrumental in appealing this case from the justice court to this court? A. I was." Another witness for the defendant (J. W. Williams) was examined as follows: "Q. What is you business? A. An agent for the Chicago, Burlington & Quincy. Q. Where are you located? A. At Longmont.

Q. What was your business during the month of February, 1898? A. I was located at Longmont, Colorado, and occupied as agent for the Chicago, Burlington & Quiacy Railroad Company. Q. Were you during the month of February, 1898, agent or employed by the Burlington & Missouri River Railroad Company in Nebraska?. A. I was not. Q. How long have you been employed by the Chicago, Burlington & Quincy Railway Company? A. About twelve years. Q. Were you at any time since the 26th day of February, 1898, served with a summons in the case of W. W. Burch v. The Burlington & Missouri River Railroad Company in Nebraska? A. Yes, sir. Q. Do you remember when? A. I think along about the 1st of May, if I am not mistaken. Q. Were you employed by the Burlington & Missouri River Railroad Company in Nebraska in any capacity? A. No, sir. Q. Have you been since? A. No, sir. Q. Are you familiar with the line of railroad owned by the Chicago, Burlington & Quincy Railroad Company in Boulder county, Colorado? A. Yes, sir. Q. You may state to the jury the termini of that railroad in this county? A. The Chicago, Burlington & Quincy operates that line of road known as the Burlington & Missouri River Railroad in Nebraska. It runs from Denver to Lyons, through Longmont and Hygiene.

Q. What did you do when you had the summons served on you? A. I took it and sent it into the superintendent's office at McCook, Nebraska. Q. If you represent the Chicago, Burlington & Quincy Railroad, and had nothing to do with the Burlington & Missouri River Railroad Company in Nebraska, why did you pay any attention to it? A. For this reason: I was satisfied it had reference to our road. I took the summons, and had it sent in to the superintendent. Q. Is not it a fact that that road of which you are agent of is known as the Burlington & Missouri River Railroad in Nebraska? A. Yes, sir. Q. And that on their printed matter they have that name,-the name of the Burlington & Missouri River Railroad in Nebraska? A. They have that printed matter, a large share of it, at the top of which is, "The Burlington & Missouri River Railroad in Nebraska, and, in parenthesis under it, 'Chicago, Burlington & Quincy Railroad Company, Owners.'"

The Chicago, Burlington & Quincy Railroad Company being at the time of the fire the owner and operater of the railroad on the line of which the fire originated, whatever responsibility for the fire and its results there may be attaches solely to that corporation; and because it was from its train, and from no other train, that the fire proceeded, and it, and not another, is liable for the loss, it is insisted that the judgment against the Burlington & Missouri River Railroad in Nebraska cannot stand. If the defendant were a corporation distinct from the Chicago, Burlington & Quincy Railroad Company, we might

be compelled to agree with counsel. See Railroad Co. v. Loveland (Colo. App.) 64 Pac. 381. But the fact is not so. It appears abundantly from the evidence produced for the defendant that the Burlington & Missouri River Railroad Company in Nebraska is not the legal name of any corporation, but that, for its own convenience, the Chicago, Burlington & Quincy Railroad Company has designated that portion of its line west of the Missouri river as the Burlington & Missouri River Railroad in Nebraska. The purpose of this suit was to obtain a judgment against the owner of the line of railroad from which the fire proceeded, but the owner was misnamed. Instead of being sued by its proper corporate appellation, it was called by a name derived from a designation which it applied to a particular portion of its line. The summons in the case was served on the agent of the Chicago, Burlington & Quincy Railroad Company, and in response to its notification that company appeared and conducted the defense. As a legal entity, the Burlington & Missouri River Railroad Company in Nebraska had no existence, summons could not be served on it, it had no agents, it could not employ counsel, and it could not make a defense. But the summons brought a party into court by which defense was made, and evidently that party was the Chicago, Burlington & Quincy Railroad Company, upon whose agent summons was served. The simple fact, which the record clearly discloses, is that the Chicago, Burlington & Quincy Railroad Company was sued by an erroneous name. It was competent to that company to submit to a suit against it by that name. It could have taken advantage of the error upon its appearance in response to the summons, but it offered no objection, and participated in a trial of the case upon its merits. It therefore waived the error in its name. Its failure to show the misnomer at the proper time concludes it, and, if the plaintiff move properly, the judgment is as effective against it as if it had been correctly named. Insurance Co. v. French, 18 How. 404, 15 L. Ed. 451; Pond v. Ennis, 69 Ill. 341.

Error is assigned upon the admission and exclusion of evidence. It is not shown in argument how the defendant was injured by the rulings. In some instances they seem to have been proper enough. In others, the evidence rejected was afterwards received, and it is upon that very evidence that this opinion largely rests. Two examples will serve to show the nature of the rulings of which complaint is made: The plaintiff was asked by his counsel whether or not in the inclosure where the hay was stacked, and on the ground where it was cut, there were small trees growing. The answer was that there were small trees between the stack and the railroad. It was objected by the defendant that the question was immaterial, incompetent, and irrelevant. The question does not seem to us to be very important. It probably be

longs to a class of questions not infrequently asked witnesses for the purpose of obtaining an acquaintance with the situation or circumstances related to the occurrence out of which the litigation arose. Such acquaintance may lead to a clearer understanding of the principal facts, or it may not; but how it can be harmful, is not explained to us. The plaintiff claimed nothing on account of the trees. There was no evidence that any of them were injured, and, except as descriptive of the ground through which the fire passed on its way to the stack, nothing was said about them. We hardly think the court erred in allowing the question. John A. Webber was a witness for the defendant. He testified that he was an agent for the company whose track passed through the plaintiff's farm. He was then asked, "What company is that?" The plaintiff objected to the question as not being cross-examination, and the objection was sustained. The question was proper, and the answer should have been received. But the defendant was allowed by other witnesses to prove what company that was, and the evidence was uncontradicted, so that it had the full benefit of the fact it desired to establish, and was therefore unharmed by the particular ruling.

Complaint is made of an instruction to the effect that if the defendant appeared and defended the suit, and appealed from the judgment of the justice to the county court, it was estopped to deny its corporate existence. That instruction states the law. Decorating Co. v. Ham, 3 Colo. App. 559, 34 Pac. 484. As the defendant was the Chicago, Burlington & Quincy Railroad Company, sued by a wrong name, it was its corporate existence to which the instruction referred. We see no necessity for the instruction, but neither do we see how the defendant could be injured by it. The instructions offered by the defendant which the court declined to give advanced propositions directly opposite to views expressed to us in this opinion, and were properly refused. Some of the instructions for the plaintiff were too favorable to the defendant, but that they were so furnishes the defendant with no ground of complaint.

The judgment will be affirmed. Affirmed.

(26 Nev. 382)

GOTELLI et al. v. CARDELLI et al. (Supreme Court of Nevada. May 29, 1902.) DIVERSION OF WATER-IRRIGATION PURPOSES -IMPROPER EVIDENCE-FACTS AFTERWARDS ADMITTED EVIDENCE WITHDRAWN-HARMLESS ERROR-EXTENT OF RIGHT TO USE WATER.

1. In an action for damages for the diversion of water, the admission in evidence of the judgment roll in a former action between the same parties for the purpose of showing the plaintiffs' right to maintain a dam and ditch over the defendant's land was not error; it being afterwards admitted that the plaintiffs were the owners of the dam, and had the prior right to use the water for irrigation purposes.

2. Where findings of fact in a former case were introduced, but afterwards withdrawn,

4. In an action for damages for the diversion of water, an instruction that, if it was found necessary to have a ditch full of water to irrigate certain land during either of two preceding years, then the owner was entitled to fill the ditch to its capacity during each season in the future, was improper, as the owner of land is only entitled to so much water as is necessary for that particular year, which amount necessarily varies according to the humidity of the season and the number of acres under cultivation.

Appeal from district court, Lyon county; C. E. Mack, Judge.

Action by John Gotelli and others against Orlando Cardelli and others. From a judgment and decree for plaintiffs, defendants appeal. Decree modified.

Torreyson & Summerfield, for appellants. W. E. F. Deal and John Lothrop, for respondents.

1. The first assignment of error is the admission in evidence of the judgment roll in a former action between the same parties. The purpose of this evidence, as shown by an instruction of the court, was to establish respondents' right to maintain a certain dam and ditch over appellants' lands. Afterwards it was admitted that respondents were the owners of the dam and ditch, with the prior right to the use of so much of the water as was necessary to irrigate the quantity of land as the proof should establish. Appellants having admitted the facts which this evidence tended to prove, its admission was not prejudicial.

2. The findings of fact in the former case were also introduced in evidence, but were withdrawn by respondents, and the court instructed the jury not to consider them. A similar motion and instruction were made and given touching evidence of damages accruing since the commencement of the suit.

3. Respondents' instruction No. 5, as modified, reads as follows: "If you believe from the evidence that it was necessary that plaintiffs should have sufficient of the waters of the Carson river to fill their ditch to its full capacity during the irrigating season of 1898 and 1899, or either of said years, in order to have irrigated their crops properly on the lands irrigated for crops for five years prior to the commencement of this action, then your verdict should find that the plaintiffs

are entitled to sufficient of the waters of Carson river to fill their ditch to its capacity during the irrigating season; and, in determining the matter, it is your duty to compare your knowledge and experience with the evidence in the case, and determine what the fact is." It was shown that the amount of land under cultivation in the years 1898 and 1899 was 142 acres. The carrying capacity of the ditch was about 1,200 miners' inches. Some of plaintiffs' witnesses testified that a full ditch of water was necessary to irrigate the growing crops. This liberal allowance may not be necessary in seasons of more humidity, or in years when the cultivated area is less. The law is that an appropriator is only entitled to so much water, economically used, within his appropriation, as is necessary to irrigate his land. The necessary amount of water varies with the seasons. The decree, as entered, in effect allows respondents all the water their ditch will carry during the irrigating season of each year, irrespective of its necessity, and enjoins appellants' interference therewith. In this respect the decree is erroneous, and must be modified by eliminating therefrom all directions touching any fixed quantity or volume of water to be taken in plaintiffs' ditch. The error in the Instruction does not affect the verdict returned by the jury, and will not necessitate a reversal of the case.

The cause is remanded to the district court, with directions to modify and amend its decree in compliance with these views, and when so amended the judgment and decree will be affirmed. Each party to pay his own costs in this court.

MASSEY, C. J., and FITZGERALD, J.,

concur.

(28 Wash. 734)

METLER V. METLER.1 (Supreme Court of Washington. May 21, 1902.)

APPEAL ORDER VACATING JUDGMENT. An order vacating a judgment is not appealable.

Appeal from superior court, King county; Geo. Meade Emory, Judge.

Action by Charles K. Metler against Mattle K. Metler. From an order vacating the Judgment, plaintiff appeals. Dismissed.

Herbert E. Snook, for appellant. Gray & Tait and Byers & Byers, for respondent.

PER CURIAM. The appeal in this case is from an order vacating a judgment, and motion is made by the respondent to dismiss the appeal for the reason that such order is not an appealable order. Under the rule announced in Freeman v. Ambrose, 12 Wash. 1, 40 Pac. 381, and Nelson v. Denny (Wash.) 67 Pac. 78, the motion must be sustained and the appeal dismissed.

1 Rehearing denied September 21, 1902.

(28 Wash. 618)

DOSSETT v. ST. PAUL & T. LUMBER CO. (Supreme Court of Washington. May 20, 1902.)

APPEAL-OVERRULING OF DEMURRER-REFUSAL OF NONSUIT-REFUSAL TO DIRECT VERDICT-DISAGREEMENT OF JURY-RETRIAL ORDER GRANTING NEW TRIAL THEORY OF APPEAL.

2 Ballinger's Ann. Codes & St. § 6500, subd. 6, provides that an appeal may be had from any order affecting a substantial right in a civil action which "(3) grants a new trial." Section 5070 defines a new trial as a re-examination of an issue (of fact) after trial "and decision" by a jury, etc.; and section 5071, enumerating grounds for a new trial, omits disagreement of the jury. Sections 5006, 5007, provide for the discharge of the jury when it satisfactorily appears that they cannot agree, and that the action shall be for trial anew. Defendant demurred, at the close of plaintiff's evidence moved for a directed verdict and a nonsuit, and at the close of all the evidence again asked a directed verdict, all of which were overruled. The jury, failing to agree, were discharged, and the cause referred to the assignment list. Plaintiff moved for leave to amend his complaint, but before the motion was heard defendant appealed. Held, that the appeal was not sustainable under section 6500, subd. 6, and must be dismissed.

Appeal from superior court, Pierce county; W. O. Chapman, Judge.

Action by Isaac Dossett against the St. Paul & Tacoma Lumber Company. From orders overruling a demurrer and refusing a directed verdict and a nonsuit, defendant appeals. Dismissed.

Wm. P. Reynolds, Herbert S. Griggs, and Arthur Remington, for appellant. Ellis & Fletcher, for respondent.

WHITE, J. On motion to dismiss appeal and for other relief. The record shows that this action was commenced by respondent against appellant for its alleged negligence causing injuries to respondent while in the employ of appellant. Appellant filed a demurrer to the complaint. This demurrer was, after argument, overruled. Appellant, after filing an answer, got leave of the court to file an amended answer. Appellant then filed an amended answer, which, after certain denials to allegations in respondent's complaint, set up defenses that respondent assumed the risk, that the injury was caused by the act of a fellow servant, and that respondent was guilty of contributory negligence. Respondent then filed a reply to the amended answer, pleading, in effect, a general denial. Respondent then gave notice of assignment for trial. The cause was then, on the 7th day of April, 1902, brought on regularly for trial before the court and a jury, respondent and appellant both appearing. Trial not being completed on the 7th, the cause was continued until the 8th at 10 o'clock, at which time it was again taken up. Respondent, on this day, completed the introduction of testimony on his behalf, whereupon the defendant moved the court that the court, as a matter of law, direct the jury to return a verdict