Page:Harvard Law Review Volume 10.djvu/156

I30 HARVARD LAW REVIEW, in different occupations and contracts since the breach, i Sedgwick on Damages, 8th ed., § 208. This distinction does not appear to be taken in England. The rule as to the general duty to mitigate damages, stated in Frost v. Knight, L. R. 7 Ex. iii, and Roper V. Johnson^ L. R. 8 C. P. 167, would seem to be contrary to the principal case ; as would Roth v. Taysen, 12 The Times, L. R. 211. But while the English law might not compel the plaintiff to seek other contracts {Smith v. McGuire, 3 iri. & N. 554, at p. 567), it is quite probable that whatever could be proved to have been gained would be deducted. Mayne on Damages, 5th ed., p. 174. Damages — Trespass to Land by Wrongful Deposit. — The defendant, a coal company, dumped refuse on the plaintiff's land, the value of which for agricultural pur- poses was £200, but for the use made by the defendant about ;,^iooo. IJeld, the latter is the true measure of damages, for the defendants would otherwise be qualifying their own wrong. IVhitwham v. Westniinster &^c. Co., 12 7he Times L. R. 318. The case is plainly right by the quasi-contractual principle on which it is based, but it is submitted that it may also be supported on the ordinary rule of compensation. The value of the land must be assessed with reference to all the circumstances, among which its availability for disposing of this refuse is one. A leading case on this element of value is Boom Co. v. Patterson, 98 U. S. 403. Evidence — Admissions. — Defendant was indicted for perjury in having falsely sworn that one Chandler did not commit a certain assault. To prove that Chandler did in fact commit the assault in question, a witness was permitted to testify that Chandler had admitted that he had made the assault. Held, that it was error to admit this testimony. Reavis v. State, 44 Pac. Rep. 62 (Wyoming). The testimony admitted was mere hearsay. As the admission of Chandler, it could have been used against him. But the admission was not that of defendant nor of one identified in interest with him, and therefore it could not be used as an admission against defendant. A common interest for or against the existence or non-existence of a particular fact is not an identity of interest in the technical sense of that word. Thus in divorce proceedings the admissions of the defendant that she has committed adultery with the co-respondent, can be used against her, but not against the co- respondent. Robinson v. Robinson, I Sw. & Tr. 362. There is a seeming absurdity in admitting or excluding certain testimony according as one or another person's interest will be affected by proof of the fact admitted. The explanation of this logical ab- surdity seems to be that, on grounds of public policy, one is not heard to say that the jury may not take into consideration what he apparently thought was the truth in regard to a material point in the case, even though what he was heard to say could not be used to establish against another that the fact asserted was true, i Greenleaf on Evidence, §§ 169-17 1. Moriarty v. Raihvay Co., L. R. 5 Q. B. 314. Evidence — Fraud — Res Inter Alios Acta. — A made certain false represen- tations to an insurance company, in applying for a policy. The question was whether these misstatements were fraudulent or innocent. Held, that the fact that declarations equally untrue in similar respects were made by the same person to two other insurance companies was admissible evidence. Pejtn Mutual Life Ins. Co. v. Mechanics' Bank (Sr» Trust Co., 72 Fed. Rep. 413. The case is an illustration of a well recognized exception to the rule of evidence which excludes collateral matters from consideration. The facts here pointed to a regular scheme to defraud. In these circumstances, to determine whether one misrep- resentation is by accident or by design, others are received to show that such misrepre- sentation was intentional. Stephen's Digest of Evidence, arts. 11 and 12. One recent case indicates an inclination to reject this sort of evidence. Commonwealth y. Jackson, 132 Mass. 16. But the authorities generally favor it. Greenleaf on Evidence, § 53, note b. These collateral events must usually be closely connected in point of time with the main transaction. But that a good deal of latitude in this particular may sometimes be allowed is shown by the extreme case of Mining Co. v. Watrotis, 61 Fed. Rep. 163, in which the occurrences were separated by a period of two years. Earl, J., in People v. Shidman, 80 N. Y. 373, note, and Lindley, in Blake v. Albion Life Assurance Co., 4 C. P. D. 94, 106, clearly state what is essential for the rece])tion of evidence of this nature, viz. that such a connection between the acts be established that it is a reason- able inference that they proceed from the same motive. ■Evidence — Hearsay. — In an action against the defendants, as executors of the deceased maker of a promissory note, declarations of the deceased were offered in evi- dence, in which he had stated that the debt for which this note v/as given had been paid. Held, this evidence was admissible. Moore v. Palmer et ol., 44 Pac. Rep. 142 (Wash.). Dunbar, J., dissented from this decision, and his dissent seems clearly justified. The evidence offered was pure hearsay, coming within none of the recognized ex-