Page:Harvard Law Review Volume 12.djvu/453

RECENT CASES. 433 Insurance, ad ed., § 460. What consideration of policy or principle of law Is offended by such a condition does not seem clear. The Statute of Limitations confers no new right of action but merely restricts the time, otherwise unlimited, within which an existing right may be asserted. It seems to be wholly within the spirit of this enact- ment, if not in actual furtherance of its design, that parties, in forming a contract, should still further limit the time allowed them for bringing actions thereon. Cf. Riddlesbarger v. Hartford Ins. Co., 7 Wall. 386. The holding in the principal case places an apparently unwarranted restriction on a person's freedom to contract. Criminal Law — Arson. — A house was blown up with dynamite, and splinters were torn from the roof and fired by the explosion. Held, that this does not constitute arson. Landers v. State, 47 S. W. Rep. 1008 (Tex., Cr. App.). The case raises a novel point. It is clear that the burning of parts of a house already detached, is not arson. Mulligan v. State, 25 Tex. App. 199. In the principal case, however, the splinters were set on fire and detached simultaneously. The court, doubtless, reaches a sound result, for even if it could be said that the spUnters were fired while a part of the house, still there was no burning of them in the sense of that term as used in connection with arson, till after they were detached. 2 Bish. Cr. L,, § 10. Criminal Law — Constitutional Lavv^ — Absence of Judge from Court Room during Trial. — During a trial for felony the judge left the court room for twenty minutes without suspending proceedings. Held, that a defendant convicted under such circumstances was deprived of his liberty without due process of law, and a new trial must be granted. People v. Tupper, 55 Pac. Rep. 125 (Cal., Sup. Ct.). It is generally held that when the judge has first obtained the consent of the defend- ant's counsel to leave the court room, or where his absence could not possibly have been prejudicial to the defendant's interests, a new trial will not necessarily be granted. Pritchett v. State, 92 Ga. 65; Tuberville v. State, 56 Miss. 793. With these excep- tions, the courts in such cases uniformly order a retrial. O'Brien v. People, 17 Colo. 561; Hayes v. State, 58 Ga. 35. From the brief statement of facts it does not appear whether the present case was within the recognized exceptions to the rule; but it seems better, both on theory and in practice, to limit the exceptions as much as pos- sible. The judge is essentially a component part of the court, and anything done in his absence is done in the absence of a complete court and, therefore, without due process of law. Criminal Law — Larceny — Venue. — A thief stole goods in one county and carried them with him into another. Held, that the venue was properly laid in the latter county State v. Williams, 47 S. W. Rep. 891 (Mo.). See Notes. Damages — Action for Death. — Plaintiff sues under a statute to recover dam- ages for the death of his mother, caused by defendant's negligence. Not being able to show any pecuniary damage, held, plaintiff cannot recover nominal damages. La- zelle V. Town of Newfane, 41 Atl. Rep. 311 (Vt.). Under similar statutes allowing recovery for death, it is almost universally the rule, that no recovery can be had for mental suffering, and no exemplary damages are allowed. Pennsylvania R. R. Co. v. Vandever, 36 Pa. St. 298; Louisville R. R. Co. v. Coodykoontz, 119 Ind. in. The courts generally treat these statutes as providing merely a compensative remedy for the pecuniary loss, and under such an interpretation the principal case seems manifestly correct. Holton v. Daly, 106 111. 131. It is hard to see why nominal damages should be given when no actual damage can be shown, unless the statute declares that death caused by negligence is a cause of action per se. Yet most of the American cases hold, contrary to the principal case, that nominal damages can always be recovered. Howard v. Canal Co., 40 Fed. Rep. 195; Chicago R. R. Co. V. Swett, 45 111. 197. The principal case is, however, in accord with the English rule, and seems correct on principle. Duckworth v. Johnston, 4 Hurl. & N. 653. Evidence — Burden of Proof — Directing Verdict. — Held, that where one party offers testimony to sustain his burden of proof, the other party, although offer- ing nothing to contradict it, is entitled to have the jury pass upon the case, and a direc- tion of a verdict against him is improper. Gannon v. Laclede Gas Light Co., 46 S. W. Rep. 968; 47 S. W. Rep. 907 (Mo.). Three judges dissenting. The decision practically overrules the case of Reichenbach v. Ellerbe, 115 Mo. 588, and follows the earlier and sounder adjudications in the same State. It is universally held that the court should direct a verdict only when a contrary finding by the jury would be set aside as against the evidence. Profatt, Jury Trial, § 354. The dissent- ing judges necessarily take the position that where the burden of proof is sustained by