the plaintiff, and not to the defendant, Philip M. Hildebrand, trustee; and that Beals & Orr owe to the plaintiff $936.48."

Into how many distinct propositions of law that particular language necessarily resolved itself under the mental touchstone of the Appellate Court of Indiana, their opinion, as written and filed, does not disclose.

That opinion does disclose, however, that "appellant excepted to the conclusions of law as follows: "To which conclusions of law the defendant, Philip M. Hildebrand, trustee, now here at the time excepts;" and at the end of this come the court's pregnant sentences: "This alone is assigned as error. The exception is to the conclusions of law jointly, and if any one of them is right, the exception must fail," citing four cases, which will be looked into further on in the order of their citation.

On the concession that the language of the conclusions of law so excepted to and so assigned as error by a single party to the cause, and he the sole appellant, necessarily resolves itself into, say, three distinct propositions of law, the point remains whether, so far as the validity of the exception as taken is concerned, under the rule upon which the Appellate Court of Indiana takes their stand, any more than one of those propositions of law was open to question by the exceptor as being a proposition of law in any wise affecting his interests?

For if there were three distinct propositions of law involved in the trial court's statement of its conclusions of law, it is as "plain as a pike staff " that one of them pertained exclusively to a separate issue formed between the appellee and George Anthony, in which the appellant had in no wise participated, and on which the appellee's several judgment against George Anthony for $122.97 proceeded; and that another of them pertained exclusively to a separate issue formed between the appellee and Beals & Orr, in which the appellant had in no wise participated, and on which the appellee's several judgment against Beals & Orr for $936.48 proceeded.

Of course, the soundness of that proposition of law which so pertained to George Anthony being settled as to George Anthony, on the soundness of that proposition of law which so pertained to Beals & Orr being settled as to Beals & Orr, might settle its soundness as to "all the world and the rest of mankind," under the doctrine of res adjudicata, or some other doctrine convenient for its lucidity or obscurity, as the case might be. But the pinch is to understand how that sort of a settlement could preclude examination by the Appellate Court of Indiana into a proposition of law distinct from and independent of either of those two, on the appeal of a party incompetent to question either of those two, whether competent

or not to question such distinct and independent proposition.

Unquestionably it is horn-book law: (a) That a demurrer to a declaration must fail where the declaration contains several counts, one of which states a cause of action; (b) that if more parties than one join in a demurrer it must fail as to all of them if it is not well taken as to any of them; (c) that if more parties than one join in an exception, or in an assignment of error, neither the exception nor the assignment of error will present any other than such question as involves the rights of all of the parties, or avail as to any unless as to all of the parties. But suppose, under (a), the

cause of action which one of the counts states is a cause of action, not against the demurrant, but against some one who, perchance, figures in the suit as a co-party, but comes not forward as a codemurrant. Is it to be said that the demurrer is a challenge of the declaration for a cause of action not as against the challenger, but as against any one who might have joined him in the challenge? Or suppose, under (b), the demurrer was not joined in by some one so figuring in the suit as a co-party, but who, that demurrer having been disposed of by the court, comes forward as a sole demurrant. Is it to be said that this demurrer by him is a challenge of the declaration for a cause of action, not as against him, the challenger, but as against him jointly with any one who might have joined him in the challenge? Or suppose, under (c), but one of all who chance to figure in the suit as co-parties ventures upon the exception or the assignment of error. Is it to be said that the exception or assignment of error presents no question in the interest of the exceptor or plaintiff in error because there was a question in the interest of some one else who chanced to figure in the suit as a co-party as to which the decision of the trial court had been correct?

Unless principle and authority enforce an affirmative answer to one or more of these queries, trying to understand the logic of the above shown application of a rule by the Appellate Court of Indiana is not so very unlike trying to understand how" passional attraction" left out of the score the master of Cleveden should, of necessity, feel the twinges of a case of gout located in some foot fortunate enough to bestow itself under the mahogany of the master of Sandringham.

But speaking of principle and authority recalls the matter of the four cases cited by the Appellate Court of Indiana in support of the rule as they so apply it, and suggests the propriety of looking into such cases for more light.

Now, Royse v. Bourne (149 Ind. 187, 47 N. E. 827) turns out to be a case where co-parties had joined in excepting to the conclusions of law, as also in assigning error, on appealing, and where the court, in disposing of their appeal as was done, were clearly either within the reason of the

doctrine that a declaration, if good as against any of the defendants, is, under the test of a joint demurrer from all, good as against all; or of the doctrine that an exception joint as to the exceptors, or an assignment of error joint as to the plaintiffs in error, is, like a joint declaration or joint demurrer, not good as to any if not good as to all who join; not to say a case where the court uses the word "joint" in relation to the exceptors or plaintiffs in error, and treats the tie which that word implies as the cause of which its disposition of the appeal is the effect.

66

As to Kline et al. v. Board, etc. (152 Ind. 321, 51 N. E. 476) that turns out to be a case where, to quote from the opinion of the court, the court made a special finding of facts and stated its several conclusions of law thereon. Appellants did not except to these conclusions severally, but excepted jointly. The rule is, under such circumstances, that all of the conclusions must be wrong in order to render such an exception available. It cannot be successfully insisted in this case that all of the conclusions are wrong, and it must therefore follow that the exception to the conclusions does not serve to raise any question for our consideration." Now whoso will but stop a moment over the concise sentence that the present quoter has ventured to put in italics, and consider how possible it was for "appellants" to individually and collectively "except" to the "conclusions" distributively and in mass, instead of collectively excepting to them as a body of conclusions, must, it should seem, understand the court to have simply meant, in their use of that sentence, that, in respect of the exceptors, the exception was by each of them for himself and all of the others, so to speak, and, in respect of the "conclusions," a challenge by each of the exceptors for himself and all of the others of the validity of said conclusions, considered in the bunch, not distributively; and, so understanding, concede that the court, in the disposal of that appeal, was within the reason of the doctrine that a declaration good as against one is good as against all of the co-demurrants, under a demurrer which they interpose collectively and not distributively.

Heaston et al. v. Board, etc. (153 Ind. 439) proves to be a case where the appellants, proceeding upon the theory that they were joined together in unity of interest, together excepted to conclusions of law, not as conclusions of law which they were seeking to bring under review distributively, but under review in their collective form; and where, as the error particularly pressed for correction occurred in one of the conclusions only, the court accordingly held that they could not consider that particular one of the conclusions apart from the rest, under such an exception as challenged their validity in their collective form only; and the court treated the appeal as

practically disposed of when they decided Kline et al. v. Board, etc. (supra). So it may be said of Heaston et al. v. Board, etc., that its application of the rule finds the same support in the reason of the rule that the application made in Kne et al. v. Board, etc., does.

Evansville, etc., R. R. Co. v. The State, ex rel., etc. (149 Ind. 277), the remaining one of the cited. acses, proves to be a case where there had been and was but one party to the side, and where, therefore, any conclusions of law possible of being drawn by the court on any special finding of facts of necessity left the party who might competently except to such conclusions of law throughout, or to one or more of them only, according as all or one or more of them might affect some substantial right of the party to determine for itself the scope of its challenge in the premises, and abide whatever might be the legal consequences of its choice. As will be seen from the opinion of the court, the trial court made a special finding of the facts, and stated two conclusions of law thereon, the first in favor of the appellant, the second in favor of the appellee. The court say: "Appellant excepted to them jointly, and not severally, and it is well settled that if either is good the exception must fail." If the law of procedure were so elastic that the pleader might at once face about and become the demurrant to his own pleading, it would not be hard to understand why a litigant might not at once face about on a conclusion of law in his favor, and, by exception, present it for review on appeal; to say nothing about understanding how a litigant by failing, in his exception, to discriminate that particular conclusion of law from another and distinct conclusion of law squarely against him, and involving whatever there could be in the way of possible injury to his rights, should be denied the benefit of the exception in respect of the latter conclusion of law, on the ground that having excepted to the "conclusions jointly, and not severally," his "exception must fail if either is good." But be this such stumblingblock as it may, it must be conceded here and now that the decision of the Supreme Court of Judicature of the State of Indiana in this case is, for all practical purposes, sufficiently "on all fours" with that of the Appellate Court of the State of Indiana in the principal case to be an authority in point. Still, when the former tribunal conclude their written opinion with the paragraph: “No objection is pointed out to the first conclusion, and we think it is correct. The first conclusion being correct, under the rule stated, appellant's exception to both conclusions must fail," the reader, if an attorney, will perhaps be thankful that it never fell to his lot, whether as appellant or appellant's attorney, to try to point out an objection to a conclusion of law so essentially harmless to his side of the controversy, if he is not inclined to doubt whether it may not, after all, be rank legal

heresy to say that a demurrer by a single demurrant is merely a challenge of the sufficiency of the pleading as confined to the demurrant.

Anent the principal case, then, it is submitted: The court first decide that the defendants in two of the three judgments in the record are not necessary parties to appellant's appeal, but that his appeal can stand without their joinder, or notice to them to join, on the ground that there is no necessary privity of interest between the appellant and any of them, and no privity of interest in the result of the appeal, since the affirmance or reversal of the judgment which is against appellant alone can in no wise affect any of them, all of which strongly argues, to say the very least, a flat elimination from appellant's appeal of all questions affecting the correctness of any judgment against Beals & Orr alone, or against George Anthony alone, with nothing left save the question of the correctness of the conclusions of law as pertinent to the judgment against appellant alone.

Though appellant's exception was to the conclusions of law, it would have been idle of him to except to them distributively, save in case of a particular one of them.

General as the exception was, the rank folly of the exceptor, in attempting to except to what in no wise affected or pertained to his own interests, was enough for the court to understand the exception as pertaining wholly to the one of the conclusions which affected the exceptor's interests -- affected the judgment against himself alone. and not that other one against Beals & Orr alone, or yet that other one against George Anthony alone.

Assuredly the court could not, in the teeth of the exception, excusably say that they needed to be shown which one that was.

The upshot of the whole case seems to be pretty much as if the court had said to appellant: You were entirely right in taking your own appeal on your own hook; but then, good sir, you have not established the foregone conclusion that you were appealing on your own point alone, and not on some other people's points also. Therefore we must assume that you have not brought up your own point, but brought up some other people's | points. We will decide one of these points of the other people, not for you, but for the other people, for it is a point which the other people, not being before us, have not brought before us, and which you could not bring before us, and we will not decide your point, though the only point you could bring before us, inasmuch as you have, in bringing it before us, brought along, cheek-byjowl with it, the aforesaid point that we will decide. U. J. HAMMOND,

INDIANAPOLIS, IND.

NEW YORK COURT OF APPEALS. Decided June 19, 1900.

ARCANGELO CAPASSO, Respondent, v. EDWARD G. WOOLFOLK et al., Appellants.

A contractor who undertakes to do work which includes the picking up of loose stone and rock thrown out by blasting has the right to intrust the duty of making inspection of the place where the work is being performed, as well as the other details of the work, to a skillful foreman and competent workmen; and if one of the workmen thus employed is injured on account of a failure to make inspection, or by any negligent act of commission or omission in the progress of the work, such negligence is that of a fellow-servant, for which the master is not liable.

Whether the servant is ordered to go to the place where he is subsequently injured, by the master in person or by some superintending agent, is unimportant; for in either case the duty of the master to his employe is the same. The principal witness for the plaintiff gave testimony of a general nature that no inspection of the work had ever been made. Defendant's foreman then gave direct and precise evidence to the effect that on the night in question he had carefully inspected the place. Afterwards the plaintiff and the said principal witness were recalled in rebuttal, but did not contradict in any way such testimony of the foreman. Held, that upon such testimony the evidence that inspection had taken place was undisputed, and that there was, therefore, no question to be submitted to the jury.

Plaintiff brought this action for personal injuries, received by him while employed by the defendants and which he alleges to have been caused by the negligence of the latter. The defendants, as contractors, were engaged in lowering the tracks of the New York & New Haven R. R., a work which had been going on for some two years. During that time the plaintiff had been working for them, and at the time when he received the injuries in question he was a member of what was called the "night gang." The duty of those belonging to the night gang was to pick up and remove loose stone and rock which had been left in the cutting after blasts. Upon the evening in question, plaintiff says that one of the defendants gave him orders to go to work, and that at about half-past three in the morning a large stone, becoming loosened, fell from the top

of the bank above him upon his foot. A witness in his behalf, who was one of the workmen, was examined as to the manner in which the blasting was generally accomplished and how many holes were drilled for a blast. He was then asked this question: "Now, after the blastings occurred, or went off, what did they do, if anything, with regard to the examination of the rocks before sending the men to work?" The answer given was: · The contractors never did anything. They never sent anybody around." No other evidence was given on the part of the plaintiff with respect to the work of inspection. On behalf of the defendants it was testified by the foreman in charge of the blasting that, after the blasts of the day preceding the accident, they had barred down anything that was loose or dangerous; that it was customary to do it; that he had it done on that day, and that there was nothing when he left at six o'clock that was dangerous or likely to fall. The foreman of the night gang, in which the plaintiff worked, testified concerning this stone, or rock, on the evening in question, that he had called the men up and tried to turn the rock with bars, but could not move it; that an effort was made to pull the rock over with the derrick, but neither by using the derrick nor by the men with bars could the rock be moved. At the conclusion of the case, the request of the plaintiff to go to the jury upon certain questions was denied, and the defendants' motion to dismiss the complaint was granted, to which the plaintiff excepted. At the Appellate Division, where the exceptions were ordered to be heard in the first instance, the pliantiff's exceptions were sustained and a new trial ordered. From the order of the Appellate Division the defendants appealed to this court, giving the usual stipulation for judgment absolute in the event of affirmance.

Perry D. Trafford for appellants; T. F. Hamilton for respondent.

GRAY, J. I am unable to distinguish this case from that of Perry v. Rogers, decided by us since the decision of the Appellate Division in this case (157 N. Y. 251). In that case the plaintiff was directed by the foreman in charge of the men to go up "on the bench," which had been created in the side of a ledge of rock by blasting, for the purpose of cleaning it off. While so engaged a large stone fell out of the wall, some six or seven feet above the bench, and inflicted upon him the personal injury for which he recovered a judgment. The judgment was reversed in this court, upon the ground that the master had furnished everything that he was obliged to, including competent employes and a skilled foreman; that any omission on the part of the foreman to notify the plaintiff to pry off the piece of rock that fell upon him was not attributable to the master, as it related to an ordinary detail of the work in which the foreman

and the others were engaged, and that the negligence of the foreman in that respect was the negligence of a fellow-servant. The theory of

the court below, in that case, that the duty of the defendant to provide a reasonably safe place for his workmen was continuous, so that in every change in the situation, occasioned by the blasting, the master's duty of providing a reasonably safe place for his workmen attached, was negatived in the opinion of this court. It was observed, with respect to the master's duty towards the plaintiff to remove threatening fragments of stone. that "it formed one of the many details of the work incident to the removal of this rocky cliff, which the defendant had a right to intrust to a skillful foreman and competent workmen, after providing them with the necessary and proper machinery, appliances and tools." The conclusion reached by us in that case was predicated upon the prior decisions of Loughlin v. State of New York (105 N. Y. 159) and Cullen v. Norton (126 N. Y. 1). The principle of that decision is applicable to the present case, and, in my opinion, calls for a reversal at our hands. It is true that the plaintiff testified that one of the defendants directed him to go to work, and in the opinion of the Appellate Division stress is laid upon that feature. But I am quite unable to perceive how it in anywise affects the case. Assuming, as we must, the truth of the fact so testified to, it was no more than what would be always implied in a direction given to an employe to perform his work in a designated place. Whether the direction is given by the master in person, or by some superintending agent, is unimportant; for, in either case, the duty of the master towards his employe is the If the master gave the plaintiff the order to enter upon the work that evening, the former had the right to intrust its details to the foreman, whose competency is not quetsioned, and to the night gang, whose members, in the absence of evidence to the contrary, were, presumably, competent workmen. The master, in such a case, is not supposed to watch for supervening conditions in the progress of the work on which his workmen are engaged. If his measure of duty had been performed by sending them off to the work under right conditions, with an experienced foreman and competent workmen, nothing further was incumbent upon him. If the accident happened during the performance of their work, due to some negligent act of commission or of omission in their midst, then the negligence was that

same.

of a fellow-servant, and that was a risk which the plaintiff assumed in entering upon the employ

ment.

Nor can it be said of this case, as it was considered at the Appellate Division, that there was any evidence for the consideration of the jury that there had been an omission in the duty of in

spection. The only evidence on the part of the plaintiff bearing upon inspection was general in its nature and with no especial reference to the situation upon the night in question. It was to the effect that after the blastings occurred, which had been previously described by the witness, 'the contractors never did anything; that they never sent anybody around.” On behalf of the defendants it was testified by the day foreman that, after the blasts of the day preceding the night in question, he and his men had gone over the loose stone and had barred down all that seemed dangerous. The foreman of the night gang, particularly, testified that he had noticed this particular stone, or rock, which fell upon the plaintiff, and that he had tried to move it by use of the derrick, as well as by bars, without success. After the evidence was closed the plaintiff was recalled, as was his principal witness who had given the evidence concerning the blastings and the custom of the contractors; but neither of them contradicted in any way the testimony of the foreman of the night gang. The effect of this direct and precise evidence given by the foreman of the plaintiff's gang and the failure to contradict it by the plaintiff and his witnesses, when recalled in rebuttal, did not seem to have been appreciated in the court below. I regard them as determining

features of the case.

As the case was left upon all the testimony, there was no question to be submitted to the jury; for the evidence that there had been an inspection

of the work and that care had been exercised to remove the threatening danger was undisputed. If, therefore, it could be said that the master, in personally directing the plaintiff to perform his work at the place in question, had assumed some extraordinary duty of care, which I do not admit, it was not shown that he failed in its requirements. The order of the Appellate Division should be reversed, and judgment should be entered dismissing the complaint, with costs to these appellants in all the courts.

PARKER, Ch. J.; O'BRIEN, HAIGHT, MARTIN, LANDON and WERNER, JJ., concur. Order reversed, &c.

FORTUNE TELLING AND THE LAW.

W

E often hear of comparatively obscure persons being prosecuted and convicted for fortune-telling; but the police do not seem to trouble fortune-tellers who charge high fees, occupy expensive rooms, and find their dupes in the higher classes of society. Yet it is notorious that such persons flourish, and one has this week been brought to justice who was making an income that many a professional man would consider princely, but it seems to have been left to a private person to take proceedings against her. It is idle for fortune-tellers nowadays to attempt to defend

themselves on the ground that they believe in their own arts. The Vagrancy Act makes punishable "every person pretending or professing to tell fortunes or using any subtle craft, means or device by palmistry or otherwise to deceive or impose on any of her majesty's subjects." Now, from Reg. v. Entwistle (1899, 1 Q. B. 846) it appears that a person who, without any intent to deceive, pretends to tell the fortune of a person who knows that it is merely a game and is party to the pretence, is not guilty of an offense; but otherwise the intention to deceive is included in the words "pretending or professing," and it is not necessary that the intent should be specifically alleged. The case of Penny v. Hanson (35 W. R. 379, 18 Q. B. D. 478) is much stronger. It was contended for the accused in that case that no evidence had been given against him that he did not believe in what he professed to do. answer, Denman, J., said: "In this case, res ipso loquitur. It is absurd to suggest that this man could have believed in his ability to predict the fortunes of another by knowing the hour or place of his birth and the aspect of the stars at such time. We do not live in times when any sane man believes in such a power." And Mathew, J., said: "I am entirely of the same opinion." But if it is absurd to think that the fortune-teller himself

In

should believe in his own powers, it is unfortu

nately the fact that many persons of good position

and education do believe in the powers of some of these adventurers. In the recent case it was

said in court that the woman's clients included persons of all sorts and conditions. "Bishops" were expressly mentioned, but nothing was said about judges or police magistrates. It may be hoped, therefore, that none of these latter gentlemen have laid themselves open to the risk of being classed as insane by Mathew, J. At all events, as such persons do exist, it is clearly right that they should be protected from deception, even though it is due to some mental weakness on their own part that they are deceived. It is a crime for the fortune-teller to take advantage of this weakness, and that crime should be punished. — Solicitors' Journal.

Legal Notes.

A Concord, N. H., judge has decided that soda water is one of the necessaries of life and may be sold on Sunday.

Two Christian Scientists were found guilty recently in a Milwaukee court of practicing medicine in violation of a State medical law. In giving his decision Judge Neelen cited the decision of the United States Supreme Court in the Mormon case, holding that a man's religion is subordinate to the laws of the land, and that he cannot go contrary to the laws of the State. An appeal was taken.