to maintain an action for damages, in the absence of some statute affecting the question.

In case of the death of an adult child, by the negligence of a corporation or person, who had assumed some duty to it which was violated by such neglect, in the absence of a statute authorizing it, no action could be maintained for such injury to the feelings of a parent, or other relative, and yet but few causes could be productive of deeper mental distress, and even in action under statutes permitting recovery in cases where death has resulted, no recovery can be had for mental suffering, unless the statute permits it in terms or authorizes the recovery of exemplary damages. Field on Damages, 630.

This is upon the theory that no cause of action accrues to the parent, or other relative, unless given by the statute, and when thus given it will not extend to embrace elements of damages not given by the statute. The effect of the acts of the several States, and of the English acts, authorizing recovery, for the death of persons, is to remove the technical difficulty at common law, interposed to the maintenance of actions in such cases; and they certainly do not withdraw from any one any right which could have been asserted, as the law formerly stood, for an injury to the person bringing an action, grounded upon any reason personal to himself, and other than the pecuniary loss suffered by death.

Yet in actions under statutes of the several States, and under the English statutes, it has been uniformly held that the injury to the feelings of the person or persons entitled to maintain such action was not an element of damage which could be considered. This could not well be held, if it had ever been true that an action could be maintained for an injury to feelings alone, which is a matter personal to the aggrieved party, for which an action would not have been denied upon the technical ground upon which recovery for the loss of a life was denied.

In cases of seduction no action is maintainable by the parent, guardian or master, upon the ground of injury to the feelings or mental distress, but the loss of services is made the basis of the suit, and if there was no such loss there could be no recovery, however great the mental suffering induced by the wrong.

The same principle applies to cases for criminal conversation. In cases for libel or slander, unless words used be such as in law are held to entitle the person against whom they are used to damages, at least nominal, special damages must be averred and proved or the action cannot be maintained, and this without reference to the degree of mental distress, which may be inflicted by the language.

In all these classes of cases, where a pecuniary injury is shown, mental distress resulting from the same act which produced the pecuniary damages becomes an element in aggravation for which damages may be given.

The cases in which damages have been allowed for mental distress, resulting from injuries to persons, will be found to be cases in which the mental distress was the incident to a bodily injury suffered by the distressed person, or cases of injury to reputation or property, in which pecuniary damage was shown, or the act such that the law presumes some damage, however slight, from the act complained of, and not cases in which bodily injury or other wrong was suffered by one person and the mental distress by another, or where cases in which a direct pecuniary damage had been shown, and the element of mental distress had been admitted in aggravation of the injuries for the purpose of recovering damages other than such as are only compensatory.

The rule is thus stated in Wood's Mayne on Damages, 74 (1st Am. Ed.): "But we do not apprehend

that the rule has any such force as to enable a person to maintain an action where the only injury is mental suffering, as might be thought, from a reading of the loose dicta and statements of the court in some of the cases. So far as I have been able to ascertain the force of the rule, the mental suffering referred to is that which grows out of the sense of peril, or the mental agony, at the time of the happening of the accident, and that which is incident to and blended with the bodily pain incident to the injury and the apprehension and anxiety thereby induced. In no case has it ever been held that mental anguish alone, unaccom panied by an injury to the person, afforded a ground of action."

The following authorities bear upon the question: Canning v. Inhabitants of Williamstown, 1 Cush. 452; Joch v. Dankwardt, 85 Ill. 333; Lynch v. Knight, 9 H. L. Cases, 577, 598; Johnson v. Wells, Fargo & Co., 6 Nev.225; Shearman & Redfield Neg., §§ 606, 606b; Freese v. Tripp, 70 Ill. 503; Meidell v. Anthis, 71 id. 241; Blake v. Midland R. Co., 10 Eng. L. & E. 442.

No actual damages being shown to sustain the action, evidence which in favor of the plaintiff in this case, could only bear upon the question of exemplary damages, and averments of a like kind, can be of no avail, for unless some actual damage had been sustained by the plaintiff he is not entitled to exemplary damages. Flanagan v. Womack, 54 Tex, 50; Freese v. Tripp, 70 Ill. 500.

The English cases held substantially that a person to whom a message is sent, cannot maintain an action, notwithstanding pecuniary injury may result to him by the failure of a telegraph company correctly or within a reasonable time to transmit it, unless the sender sustains to the person to whom the message is sent the relation of agent, through which privity of contract is established. Playford v. United Kingdom Tel. Co., 4 Q. B. 706.

This doctrine has not been accepted by the courts of this country, but none of them have gone to the extent of holding that the person to whom the message is sent may maintain an action for the negligence of a telegraph company in transmitting, without averment and proof of some actual pecuniary injury sustained thereby.

We are referred to the case of So Relle v. W. U. Tel. Co., 55 Tex. 310, as an authority for the proposition that an action for mental suffering alone may be maintained. The opinion in that case does not seem to contain the proposition necessary to sustain this action; but we are of the opinion that it cannot be sustained upon the principle, nor upon the authority of adjudicated cases.

The other assignments need not be considered, in the view which we take of the case. The demurrer to the petition in this case should have been sustained, but as it was overruled the judgment will be reversed and the cause remanded, that an opportunity to amend the petition may be given and a case stated, if possible, which appears unlikely from the evidence, upon which the action may be sustained.

Reversed and remanded.

UNITED STATES SUPREME COURT

ABSTRACT.

REVENUE-DRAWBACK-RIGHT TO, NOT DEPENDENT ON OFFICIAL REGULATIONS BUT ON LAW JURISDICTION-COURT OF CLAIMS.-A statute of the United States provided thus: "That there shall be allowed, on all articles wholly manufactured of materials imported, on which duties have been paid, when exported, a drawback equal in amount to the duty paid

if there is doubt as to the construction of what is enacted, this fact may be resorted to in aid of interpretation. But Vattel's first general maxim of interpretation is that "it is not allowable to interpret what has no need of interpretation," and he continues: "When a deed is worded in clear and precise terms, when its meaning is evident and leads to no absurd conclusion, there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but to elude it." Vattel's Law of Nations, 244. Here the words are plain and interpret themselves. The directors may establish such by-laws as they please, provided they are not repugnant to the Constitution and laws, and they may by their by-laws regulate the rates of fare and freight. As their by-laws must conform to the laws of the State, so must their rates. If the State had not the legislative power to regulate the charges of carriers for hire, the case would be different. But that question has been settled, and the amended charter which this company secured from the Legislature must be construed in the light of that established power. Ruggles v. People of Illinois. Opinion by Waite, C. J. [Decided May 7, 1883.]

JURISDICTION-FEDERAL QUESTION-PROTEST-NEGOTIABLE INSTRUMENT.-In an action against M., who resided at Alexandria, Va., as indorser of a promissory note the court below charged that "if on the 30th of May, 1861, and prior to the maturity of the note, M., having previously sent his family, went himself within the Confederate military lines with the intention of not returning to Alexandria during its occupation by the United States forces, and accordingly remained with his family continuously within the Confederate military lines throughout the whole period of the war, and did not return to Alexandria with his family until the year 1874; that such absence at the maturity of said notes, respectively, was known, or by the exercise of reasonable diligence, must have been known to the Exchange Bank of Virginia, at Alexandria; that at the time of said maturity the armed forces of the United States and of the Confederate States confronted each other on lines immediately intervening between the city of Alexandria and the said M., so as to cut off and prevent actual intercourse between the two, and such intervention continued down to the end of the war, the notice of dishonor shown by the notarial certificates of protest is not sufficient to fix the liability of M. as indorser, and the jury must find for him." Held, that the charge presented no Federal question giving this court jurisdiction. This instruction is substantially the same as that considered in the Bank of the Old Dominion v. McVeigh, 98 U. S. 332, and which was held not to present a Federal question. The only difference, even in language, between the instructions in the two cases consists in what is said in this about the establishment and maintenance of the opposing lines of military forces and the prevention of actual intercourse, which was not in the other. No importance was given in the argument however to this difference, and it may as well be said now, as it was before, that "all the court below decided was, that by the general principles of commercial law, if during the late civil war, an indorser of a promissory note abandoned his residence in loyal territory, and went to reside permanently within the Coufederate lines before the note matured, a notice of protest left at his former residence in the loyal territory was not sufficient to charge him, if his change of residence was known, or by the exercise of reasonable diligence might have been known, to the holder of the note when it matured." Under the question raised by the

charge as given, therefore, this court has no jurisdiction. Allen v. McVeigh. Opinion by Waite, C. J. [Decided April 16, 1883.]

IOWA SUPREME COURT ABSTRACT. JUNE, 1883.

CERTIORARI-IN DISCRETION OF COURT.-Where the writ of certiorari is sought to correct a mere irregularity, not shown to have resulted in prejudice, the court may in its discretion refuse it. In Duggen v. McGruder, 12 Am. Dec. 530, note, it is said: The writ is to be refused, or if improvidently granted, is to be quashed, unless substantial justice and equity will be promoted by the exercise of the supervisory authority of the superior tribunal." Bannister v. Allen, 1 Blackf. 414; Bath Bridge Co. v. Magoun, 8 Greenl. 293; Drowne v. Stimpson, 2 Mass. 445; Lees v. Clilds, 17 id. 352; Huse v. Grimes, 2 N. H. 210; Munro v. Baker, 6 Cow. 396; People v. Sup'rs, 15 Wend. 198; Farmington R. Co. v. County Com'rs, 112 Mass. 206; Keys v. Marin Co., 42 Cal. 252; People v. Andrews, 52 N. Y. 445. Johnson v. Supervisors of Clayton. Opinion by Adams, J.

LIEN-MECHANICS' LIEN NOT INTEREST IN REAL ESTATE.-The right to enforce a mechanics' lien is not an "interest in real estate." It is not a jus in rem or a jus in re, a right to the property in question, but is a right to a remedy against the property whereby the real estate is subjected by the specific lien to the payment of plaintiff's claim. See 1 Story Eq. Jr., § 506; Connard v. Atlantic Insurance Co., 1 Pet. 386; Meany v. Head, 1 Mason, 319. An interest in real estate is something more than a right to a remedy against it. The word "interest," means share, portion, part. See Webst. Dict. When applied to land it means the estate, right, or title held in or to it. See Bouv. Dict.; Co. Lit. 245. A lien special or general is not an interest in lands. Andrews v. Burdick. Opinion by Beck, J.

MISJOINDER-WHEN NEED NOT BE RAISED BY DEMURRER- APPEAL - CERTIORARI.- In an action of certiorari brought to test the validity of taxes voted, there was both a misjoinder of plaintiffs and of causes of action. The defendant did not demur. The court below quashed the writ. Held, that defendants on appeal were entitled to insist upon the defense of misjoinder. It may be that if they had been unsuccessful, and were now appellants, they could not be allowed to insist upon it as a ground of reversal; but the case is quite different when all they ask is that the action of the court below should be sustained. It is said, in equity practice, that "where the defendant omits to demur for multifariousness, the court may sua sponte take the objection and dismiss the bill," Chew v. Bank of Baltimore, 14 Md. 316. See also Oliver v. Piatt, 3 How. 412; Nelson v. Hill, 5 id. 127. In an action of certiorari, the object of which is to annul the action of an inferior tribunal, board, or officer, it is peculiarly the duty of the court to scrutinize the petition and interfere only in a case properly made, and even then it is said that the court may exercise a certain measure of discretion. Drowne v. Stimpson, 2 Mass. 445; Lees v. Childs, 17 id. 352; People v. Sup'rs, 1 Hill, 200; People v. Stillwell, 19 N. Y. 532; and in general should exercise its power sparingly, Farrell v. Taylor, 12 Mich. 115. It is not bound to grant the writ on mere technical grounds, and where no prejudice is shown. Woodworth v. Gibbs. Opinion by Adams, J.

MUNICIPAL CORPORATION-WHEN NOT LIABLE ON INSTRUMENT EXECUTED BY OFFICER.-The trustees of

a township sent to a corporation which manufactured scrapers this order: "You will please ship to us, on or before the first day of May, 1878, nine of your scrapers, for which the undersigned agree to pay you, or your order, $144, on or before May 1, 1879, with interest. This time is to be extended until the assessment can be made and taxes collected for 1879." This was signed by the names of the trustees and appended was a statement, that they were trustees. The credit of the township could not lawfully be pledged for the scrapers. Held, that the persons who signed the instrument were liable individually. In Haverhill Mut. Ins. Co. v. Newhall, 1 Allen, 130, a promissory note was signed, "Cheever Newhall, President of the Dorchester Avenue R. R. Co." As the note contained no words in the body thereof purporting to bind the Dorchester Avenue Railroad Co., it was held to be the personal obligation of Newhall. To substantially the same effect are Fiske v. Eldrige, 12 Gray, 476; Sturdivant v. Hull, 59 Me. 172; Barker v. Mechanics' Fire Ins. Co., 3 Weud. 94; Powers v. Briggs, 79 Ill. 493; Moss v. Livingston, 4 N. Y. 208. Revolving Scraper Company v. Tuttle. Opinion by Adams, J.

NORTH CAROLINA SUPREME COURT

ABSTRACT.

FEBRUARY TERM, 1883.*

ATTACHMENT-DOES NOT LIE ON CLAIM FOR UNCERTAIN DAMAGES.-An attachment may be had in support of any demand arising ex contractu, the amount of which is ascertained or is susceptible of being ascertained by some certain standard referable to the contract itself, but otherwise where the claim is for purely uncertain damages. Therefore where the plaintiff sought to recover compensation for the loss of profits, alleged to have resulted from the failure of defendant to furnish certain goods which the plaintiff was to sell as his agent, held, that an attachment would not lie. Price v. Cox, 83 N. C. 261. Wilson v. Lewis Cook Man. Co. Opinion by Ruffin, J.

CONSTITUTIONAL LAW-IMPRISONMENT FOR DEBT.— The provision of the Constitution, art. 1, § 16, prohibiting "imprisonment for debt, except in cases of fraud," has no application to actions for tort; it is confined to causes of action arising ex contractu. Moore v. Green, 73 N. C. 394; Bridges v. Harris, 57 Ga. 407; McCook v. State, 23 Ind. 127; Lathrop v. Singer, 39 Barb. 396; People v. Cotton, 14 Ill. 414. Long v. McLean. Opinion by Ruffin, J.

INJUNCTION-WHERE ANOTHER SUIT PENDING AS TO MATTER.-An injunction will not be granted where the matter is involved in another pending suit between the same parties, in which relief can be there had. A party in such case is not allowed to seek redress from the action of one court through the conflicting action of another court, or in a different and distinct proceeding in the same court. Council v. Rivers, 65 N. C. 54; Faison v. McIlwaine, 72 id. 312; Chambers v. Penland, 78 id. 53; Lord v. Beard, 79 id. 5; Murrill v. Murrill, 84 id. 182; Parker v. Bledsoe, 87 id. 221. Grant v. Moore. Opinion by Smith, C. J.

LEASE-TENANT NOT ENTITLED TO PAY FOR IMPROVEMENTS.-The relation of landlord and tenant being established, the tenant is not entitled to compensation for improvements put upon the land during his occupation as lessee, where he believed he was entitled to the possession for the lessor's life, when under the contract he was not; nor is the rule modi-. fied by the fact that the lessor silently acquiesced in *Appearing in 88 North Carolina Reports.

the putting up the improvements. Dunn v. Bagby. Opinion by Smith, C. J.

Where a

MERGER-DEBT MERGED IN JUDGMENT. judgment is recovered for a debt due by bond, the debt is thereby changed into a matter of record, and the plaintiff's remedy is upon the latter security, while it remains in force. The pendency of such judg ment may be set up by the defendant as a bar to another action upon the same bond. So long ago as the time of Lord Coke in Higgins' case, 6 Rep. 45, it was resolved, that whenever a judgment was recovered upon a bond, and the same maintained in force, then the obligee in the bonds could not have a new action upon it-the principle of the decision being, as expressed in the maxim transit in rem judicatum, that the cause of action is thereby changed into a matter of record of a higher nature, and the inferior remedy is merged therein. In Broom's Commentaries, 269, this doctrine of merger is thus explained: "So if judgment be recovered for a debt due by bond, the debt thus becomes, by judicial proceeding and act in law, transformed into a matter of record, upon which latter security, whilst it continues in force, the plaintiff's remedy must be had;" and in King v. House, 13 M. & W. 494, it was held that the pendency of such a judg ment was pleadable, not in abatement merely, but as an absolute bar to another action brought upon the same bond. The same rule obtains in the courts of this country. In Wagner v. Cochrane, 35 Ill. 152, it is said that by judgment the contract upon which it is based becomes entirely merged-loses all its vitalityand ceases to be obligatory upon the parties. Its force and effect are wholly expended, and all remaining liability is transferred to the judgment, which then becomes the evidence, and the only evidence that can be used in a court, of the existence of the original debt. In Platt v. Potts, 11 Ired. 266, this court declared that a note upon which judgment had been taken was defunct-that it no longer had any existence as a thing, either in fact or in contemplation of law; and in Gibson v. Smith, 63 N. C. 103, it is said that there is no exception to the rule that a judgment merges the debt upon which it is rendered. So inflexibly is the doctrine enforced by the courts that the Supreme Court of Pennsylvania declared, in Jones v. Johnston, 3 W. &. S. 276, that no expression of intention by the parties would control the law, which prohibits distinct securities of different degrees for the same debt, and no agreement on their part would prevent an obligation from merging in a judgment on it, or passing in rem judicatum; and in United States v. Price, 9 How. 83, a court of equity even, which pays no regard to mere fictions, refused to take cognizance of a bill seek. ing to enforce a bond upon which a judgment at law had been previously rendered, holding that it was merged in and extinguished by the higher security. Grant v. Bugwyn. Opinion by Ruffin, J.

DISSERTING ON MORAL

TRIAL CHARGE TO JURY QUESTIONS.-There is no law which prohibits a judge, in his charge to the jury, from pronouncing a dissertation upon such moral questions as are suggested by the incidents of the trial, provided the language used is without prejudice to either party. The case at bar was replevin for a horse and the testimony was conflicting. The plaintiff excepted to this language in the charge: “The question of dollars and cents is of very small moment in this cause, but the greater and momentous question is the character of the men who testify. This case involves more in its consequences than the value of fifty horses. A good character which a man has established is the most precious heritage he could leave his children." Stilley v. Mc Cox. Opinion by Ashe, J.

NEBRASKA SUPREME COURT ABSTRACT. MAY 23, 1883.

DAMAGES FOR FAILURE TO CONSTRUCT FLUME FOR MILL ON TIME.-Plaintiff agreed to construct for defendants a flume, which was to supply water to a cornfeed mill which they intended to build, within a specified time. The flume was not completed until several months after the specified time. No corn-feed mill was ever built. Held, that defendants were not entitled to claim as damages the loss of business they would have had if the flume had been completed as agreed. The case did not come within the rule laid down in Hadley v. Baxendale, Exch. 341; Booth v. Spayten Duyvil Rolling Mill Co., 60 N. Y. 487; Griffin v. Colver, 16 id. 489. Bridges v. Lanham. Opinion by Cobb, J.

JURY-TAKING WRITTEN INSTRUCTION INTO ROOM NOT MATERIAL ERROR.-ln the absence of statutory direction, it is in a great measure left to the sound discretion of the court as to what papers, books, or other matters of evidence or instruction, the jury will be permitted to carry with them to their room upon retiring to consider of their verdict; and when by mistake or inadvertence on the part of a juryman or the court, or even through error of judgment on the part of the court, a paper has been taken to their room by the jury which ought not to have been, then before a verdict will be set aside and a new trial granted for that cause, it must appear, either from an examination of the objectionable paper itself, or from facts properly presented by the bill of exceptions, that such paper must have been in the nature of the case, or in point of fact was considered by the jury in arriving at the conclusion reached by their verdict. The taking of a written instruction into the jury room by the jury, held, not ground of reversal of judgment. The law books furnish some curious reading as to what a jury may be allowed to take with them to their room upon their retiring to consider of their verdict. It was at one time held generally that all sealed instruments which had been admitted as evidence in the case, as well as all records in the case and all matter of record which had been admitted in evidence in the case, might be carried by the jury to their room, while sworn copies of papers and unsealed instruments admitted in evidence could not be carried to their room by the jury. At a later date the rule was stated by a high authority in an English court as follows: "The jury, after going out of court, shall have no evidence with them but what was shown to the court as evidence, nor that without the direction of the court. The court may permit them to take with them letters-patent and deeds under seal, and the exemplification of witnesses in chancery, if dead, but not a writing without seal, unless by consent of parties." Buller N. P. 308. The practice of allowing documentary evidence to be carried to their room by the jury, was severely condemned by Cowen, J., in Farmers', etc., Bank v. Whinfield, 24 Wend. 419. He says: "The evidence of the law, as it stands upon authority and practice, seems to be all one way, and that is against loading the jury with papers which they often will not understand, and sometimes perhaps cannot even read. As a general rule it seems much safer that the contents should be communicated to them only by counsel in presence of the court." On the other hand, the Supreme Court of Pennsylvania, in the case of Alexander v. Jameson, 5 Bin. 238, say: "It has been our custom to deliver to the jury all written papers, except depositions, taken under rule of court. These have been withheld, because it has been thought unequal, that while the jury were not permitted to call the witnesses before them who had been examined in court, they should take

with them the depositions of other witnesses not examined in court. After the uniform practice which has prevailed in this State, I have witnessed the trial of many cases, particularly of the mercantile kind, in which the jury could not decide, without the aid of unsealed papers, causes which required the minute and laborious investigation of a variety of books and papers in which long calculations were necessary, founded on accounts and entries. To tell the jury that they must form their verdict on the recollection of what had passed at the bar, would be imposing on them a most unreasonable duty. Under such circumstances, they could do no more than make a vague guess at the truth, and their verdict might be an abuse rather than a satisfactory administration of justice." While it is believed to be the law, in the absence of statutory directions on the subject, that the instructions given by the court to the jury in writing may be taken by them to their room where they deliberate, yet this doubtless is a matter of discretion with the court. In Hurley v. State, 29 Ark. 17, which was a capital case, the deposition of one Bevans, a witness, taken down in writing and subscribed by him before the committing magistrate, and returned to the clerk of the court, and which witness was absent from the State at the time of the trial, was read as evidence on the part of the State, and when the jury were about to retire the court detached the deposition of Bevans from the other depositions, etc., returned by the committing magistrate, which had not been read in evidence, and they took it with them on retiring, against the objection of the appellant; also when jury were about to retire to consider of their verdict, the court refused to permit them to take from the bar the written instructions given them by the court. The verdict of murder in the first degree was upheld. In State v. Tompkins, 71 Mo. 613, the court say: "And there was no error in permitting the jury to take the instructions with them to the jury room, since this was a matter within the discretion of the court, and it is the constant practice in many of the Circuits of this State for this to be done, and there has been no ruling of this court that we are aware of to the contrary; nor do we see that any error was committed in permitting the jury to take with them the documentary evidence in the cause. The law constitutes them the triers of the facts. For those facts, so far as testified by witnesses, they will obviously have to depend upon memory. But why should the jurors be deprived, when they retire to make up their verdict, of the very papers and documents upon which their verdict must to a great extent depend? We are unable to discover any substantial reason." The Code of Iowa provides (section 1783), that upon retiring for deliberation, the jury may take with them all papers, except depositions which have been received as evidence in the case. In Shields v. Guffey, 9 Iowa, 322, it was assigned for error that the jury took a deposition with them to their room, and had it there while deliberating on their verdict. The court, in the opinion by Chief Justice Wright, say: "But in the second place, suppose he (the plaintiff, who was also plaintiff in error) did not know it, or knowing it made no objection, and that he was not bound to, then it should appear that he was prejudiced by the proceedings.' The judgment was affirmed. This case is approved and followed in State v. Delong, 12 Iowa, 453. In the case of Langworthy v. Myers, 4 id. 18, it was assigned for error that the instructions (of defendants), 20 in number, were not read to the jury, but handed to them by the court, with the remark that they were given as asked, and allowed to be taken by the jury to their room. The court say: "Either party is, without doubt, entitled to have the instructious read to the jury before they