It may be noticed that we have copied the coupons from "defaulted" bonds. We have done so with this object in view: Owners of bonds sometimes wish to dispose of their overdue coupons, even for the small sums for which they have sometimes been salable-often, if, indeed, they will bring any price. And sometimes bankers and others purchase such overdue coupons from the holders, without careful inquiry into their ownership. In neither case, whether the coupons belong to the one class or the other, will a good title be obtained, free of the equities, if the coupons are more than three days overdue; but, if the coupons are just due, then the distinction into the classes, as above indicated, should be carefully observed.

Another question which may now, under the ruling of the Court of Appeals, present itself to those paying "Interest Warrants," will be: Shall they not, for their own protection, pay them only to the identified and responsible bona fide owners of the bond?

And still another question which may arise is this: Should a banker purchase from a thief a negotiable bond, to which per se he would acquire title if bought bona fide, but to which overdue "Interest Warrants are attached, would he acquire a good title to the bond with all its overdue coupons, or would he acquire title only to the bond and such coupons as had not yet become due? Boss v. Hewitt, 15 Wis. 260; Newell v. Gregg, 51 Barb. 263; Texas v. Hardenberg, 10 Wall. 68; Vermilyea v. Admr., 21 Wall, 145; and see First Nat. Bk. v. County Comms., 14 Minn. 79; Arents v. Commonwealth, 18 Gratt. 750.

We throw out these suggestions in the hope that Mr. Evertsen's experience may be a warning to others.

1. FOREIGN JUDGMENT-JURISDICTION NEED NOT BE ALLEGED.-In bringing suit upon a judgment recovered in a sister state it is not necessary to allege in the complaint that the court, in which the judgment was rendered, had jurisdiction either of the subject-matter of the action, or of the defendant. Want of jurisdiction is matter of defense.

2. PRACTICE ACT.-If section 59 of the practice act applies to foreign judgments, then the complaint is sufficient in this case, for the reason that it conforms to the provision of this section.

To appear in 11 Nevada Rep.

APPEAL from the District Court of the First Judicial District, Storey County.

T. W. W. Davies and Thos. Wells, for appellant; Lewis & Deal, for respondent.

BEATTY, J., delivered the opinion of the court:

This is a suit upon a judgment. There was a general demurrer to the complaint, which was overruled, with leave to answer. Failing to answer in time, the defendant was defaulted, and judgment thereupon entered for the plaintiff. On appeal from the judgment, the only question presented is this: Does the complaint state facts sufficient to constitute a cause of action? The specific objection to the complaint urged upon the argument is, that it does not show that the court in which the judgment is alleged to have been recovered had jurisdiction, either of the subject-matter of the action, or of the defendant. The portion of the com. plaint to which this objection applies is as follows: "That on, etc., at the city and county of San Francisco, state of California, in the District Court of the Fourth Judicial District of the State of California, in and for the said city and county of San Francisco, in an action therein pending between plaintiff and defendant, said court last above-mentioned, duly adjudged that plaintiff should have and recover," etc.

In support of the demurrer, we have been referred to a great many cases in which it has been held that a judgment has no validity outside of the state in which it has been obtained, unless the court by which it was given had jurisdiction of the subject-matter, and of the parties. This proposition is not disputed; and there can be no doubt that, in an action of this kind, where the fact of jurisdiction is put in issue by proper pleadings, the plaintiff must fail at the trial, unless he can show the facts necessary to confer jurisdiction. But whether jurisdiction must be alleged in the complaint, either in general terms, or by specific averment of the facts necessary to confer it, is another question. Very few of the cases cited by appellant touch this question; and there was but one in which it was directly involved and decided. That was the case of McLaughlin v. Nichols (reported in 13 Abb. Pr. R. 244), decided by the Supreme Court of the Second District of New York. No other case that has fallen under my observation goes to the same extent; and that case is scarcely reconcilable with the decisions of other courts of higher authority in New York. It has, however, led both Wait and Abbott, in their works upon forms and practice, to state the rule to be, that the complaint, in this class of actions, must at least show that the court in which the judgment was rendered was a court of general jurisdiction. Estee states the rule otherwise. In view of this diversity of opinion, it be comes important to inquire what were the approved precedents for declarations upon foreign judgments in England, before the new rules of pleading introduced by the adoption of the Code.

These precedents will be found in the second volume of Chitty's pleadings, pp. 244 and 413; and neither those in debt (which was the proper form of action on the judgment of a sister state), nor those in assumpsit, contain any allegation as to the jurisdiction of the court. These precedents are founded upon decisions made before and about the time of the Revolution, by the courts of highest authority in England. In framing them, Mr. Chitty had the case of Walker v. Witter, 1 Doug. 5, decided by Lord Mansfield, in the King's Bench, in 1778, directly in view; and the form he gives of a declaration in debt upon a Jamaica judgment is taken from that case, leaving out what the court there decided to be surplusage; among other things, the statement, that the court in Jamaica was a court of record.

The authority of Mr. Chitty upon questions of plead

ing has always been very high, and there can be no doubt that his precedents have been generally followed in this country in the numerous actions upon state judgments that have been brought since their publication. The fact that but one case can be found, in which the form of declaration sanctioned by him has been held substantially defective, is the best sort of proof that it is generally esteemed sufficient. In fact, it is clearly to be implied from the language of the cases that want of jurisdiction is matter of defense. It seems to be established that defendant can take advantage of it by pleading the general issue; but there never could have been any question of this, as there frequently has been, if it had been considered necessary that the declaration should allege jurisdiction.

The case of Kibbe v. Kibbe (Kirby, 119) was decided in Connecticut in 1786, before Chitty wrote, but after Lord Mansfield's decision in Witter v. Walker, supra. The attorneys in that case certainly did not understand the rule to be as contended for. For, the defendart having pleaded specially want of jurisdiction in the foreign court, the plaintiff replied the facts which he claimed gave jurisdiction. Issue in law was finally joined upon demurrer to the sur-rejoinder.

Of course, under the rule that judgment must be given upon the whole record against the party who has committed the first fault in pleading, it was proper for the court to pronounce upon the sufficiency of the declaration. This they did, and decided that it was fatally defective, because it did not allege facts necessary to confer jurisdiction. It is evident, however, that this point was not necessarily in question, because the pleadings subsequent to the declaration showed affirmatively that the foreign court did not have jurisdiction.

The case of Thurber v. Blackbourne (1 N. H. 242) was also decided upon the ground that the record did not show jurisdiction in the foreign court. But I am inclined to infer, from the language of the opinion, that the judgment in that case had been pleaded with a profert, and set out upon oyer demanded, and that the record spoken of was not the pleadings in that case, but the exemplified judgment of the foreign court. But, however this may be, there are no other cases that support the appellant, and the authority of these cases is very weak against the strong negative testimony in favor of the correctness of Chitty's forms.

The case of Newell v. Newton (10 Pick. 470) is not in point; for that involved the sufficiency of a plea in abatement, upon the ground of the pendency of another action for the same cause in another case. Pleas in abatement are judged by stricter rules than declarations; they must be certain to every intent, and defects in them may be reached by general demurrer, which in declarations can only be reached by special demurrer.

The case of Wheeler v. Raymond (8 Cowen, 311) also involved the sufficiency of the same plea, and it was sustained. A fortiori, a declaration in substance the same would have been held good. Yet, in that case it was not alleged that the Vermont court was one of general jurisdiction; neither were all the facts necessary to confer jurisdiction alleged. This was one of the objections taken to the plea, and in reference to which the court says (p. 314): "In pleading the judgments of courts of limited jurisdiction, it is necessary to state the facts upon which the jurisdiction of such courts is founded; but with respect to courts of general jurisdiction, such averments are not necessary." From which it appears that in the absence of any allegation on the subject the court in Vermont was presumed to be a court of general jurisdiction. This was certainly in conflict with the case of McLaughlin v. Nichol, supra. (See also 27 Wend. 485.)

My conclusion is, that the complaint in this case is sufficient, without reference to any of the provisions of our pactice act. If section 59 applies to suits upon foreign judgments, as is held in Halstead v. Black (17 Abb. Pr. R. 227), and there is no decision to the contrary, it is sufficient, for the reason that it conforms to the provisions of that section. Judgment affirmed.

NEGLIGENCE-LIABILITY OF OWNER FOR ESCAPE OF WATER-VIS MAJOR OR ACT OF GOD PROXIMATE CAUSE OF DAMAGE. NICHOLS v. MARSHLAND.*

English Court of Appeal, December 1876.

1. LIABILITY OF ONE WHO STORES WATER ON HIS OWN LAND-ACT OF GOD OR VIS MAJOR.-One who stores water on his own land, and uses all reasonable care to keep it safely there, is not liable for damages effected by an escape of the water, if the escape be caused by the act of God, or vis major, e. g., by an extraordinary rainfall, which could not reasonably have been anticipated, although, if it had been anticipated, the effect might have been prevented.

2. CASE IN JUDGMENT-THE RULE IN FLETCHER V. RYLANDS.-On the defendant's lands were ornamental pools containing large quantities of water. These pools had been formed by damming up with artificial banks a natural stream which rose above the defendant's land and flowed through it, and which was allowed to escape from the pools successively by weirs into its original course. An extraordinary rainfall caused the stream and the water in the pools to swell, so that the artificial banks were carried away by the pressure, and the water in the pools, being thus suddenly let loose, rushed down the course of the stream and injured the plaintiff's adjoining property. The plaintiff having brought an action against the defendant for damages, the jury found that there was no negligence in the maintenance or construction of the pools, and that the flood was so great that it could not reasonably have been anticipated; though, if it had been anticipated, the effect might have been prevented. Held, affirming the judgment of the court of Exchequer, that this was in substance a finding that the escape of the water was caused by the act of God, or vis major, and that the defendant was not liable for the damage. Rylands v. Fletcher, Law Rep. 3 H. L. 330, distinguished.

APPEAL from a judgment of the Court of Exchequer (Kelly, C. B., Bramwell and Cleasby, BB.), making absolute a rule to enter the verdict for the defendant. The facts are fully set out in the report of the case in the court below. Law Rep. 10 Ex. 255.† For the present purposes they are sufficiently stated in the judgment.

June 13, 14, Cotton, Q. C., (McIntyre, Q. C., and Coxon, with him), for the plaintiff, appellant.

Assuming the jury to be right in finding that the defendant was not guilty of negligence, and that the rainfall amounted to a vis major, or the act of God, still the defendant is liable, because she has, without necessity and voluntarily for her own pleasure, stored on her premises an element which was liable to be let loose, and which, if let loose, would be dangerous to her neighbors. One who keeps a mischievous animal, with knowledge of its propensities, is bound to keep it secure at his peril, and if he does not, is liable for the damage caused, though innocent of negligence. May v. Burdett, 9 Q. B. 101, 112, 16 L. J. (Q. B.) 64, 67. The House of Lords has decided that water is in the same category. Rylands v. Fletcher, Law Rep. 1 Ex. 265, 279; affirmed Law Rep. 3, H. L. 330, 339, 340. So, though a railway company, when authorized by statute to use locomotives, is not liable for damage done by * L. R. 2 Ex. D. (C. A.) 1.

The full report of the argument and judgment in the Court below will be found in 2 Cent. L. J. 523.

sparks of fire, if they have taken all reasonable precautions and are not guilty of negligence, (Vaughan v. Taff Vale Ry. Co., 5 H. & N. 679, 29 L. J. (Ex.) 247), yet they are liable when not expressly authorized by statute. Jones v. Festinog Ry. Co., Law Rep. 3 Q. B. 733. These authorities were all discussed in Madras Ry. Co. v. Zemindar of Carratenaqurem, Law Rep. 1 Ind. App. 364, 385, where the defendant was held not liable on the ground that it was his duty to maintain reservoirs on the premises. The present defendant was under no such duty. Even if she be considered innocent of wrongdoing, why should the plaintiff suffer for the defendant's voluntary act of turning an otherwise harmless stream into a source of danger? But for the defendant's embankments, the excessive rainfall would have escaped without doing injury. The fact of the embankments being so high caused the damage. They ought to have been much higher or less, or the weirs ought to have been much larger and kept in order. Even if vis major does excuse from liability, the vis major must be the sole cause of the damage, which it was not here. Such a storm as this occurs periodically, and may be foreseen, and is therefore not the act of God or vis major in the sense that it excuses from liability.

Gorst Q. C. and Hughes, (Dunn with them), for the defendant, cited Carstairs v. Taylor, Law Rep. 6 Ex. 217; McCoy v. Danley, 20 Penn. St. 85; Tennent v. Earl of Glasgow, 1 Court of Session Cases, 3rd Series, 103.

Cur. adv. vult.

Dec. 1. The judgment of the court, Cockburn, C. J., and Mellish, L. JJ., and Baggally, J. A., (Archibald, J., who was a member of the court when the case was argued, died before the judgment was rendered), was read by

MELLISH, L. J.-This was an action brought by the county surveyor, under 43 Geo. 3, c. 59, s. 4, of the County of Chester against the defendant, to recover damages on account of the destruction of four county bridges, which had been carried away by the bursting of some reservoirs. At the trial before Cockburn, C. J., it appeared that the defendant was the owner of a series of artificial ornamental lakes, which had existed for a great number of years, and had never, previous to the 18th day of June, 1872, caused any damage. On that day, however, after a most unusual fall of rain, the lakes overflowed, the dams at their end gave way, and the water out of the lakes carried away the county bridges lower down the stream. The jury found that there was no negligence either in the construction or the maintenance of the reservoirs, but that, if the flood could have been anticipated, the effect might have been prevented.*

Upon the finding, the Lord Chief Justice, acting on the decision in Rylands v. Fletcher, supra, as the nearest authority applicable to the case, directed a verdict for the plaintiff, but gave leave to move to enter a verdict for the defendant. The Court of Exchequer have ordered the verdict to be entered for the defendant, and from their decision an appeal has been brought before us.

The appellant relied upon the decision in the case of Rylands v. Fletcher, supra. In that case the rule of law on which the case was decided was thus laid down by Mr. Justice Blackburn in the Exchequer Chamber. "We think the true rule of law is, that the person

* The judgment of the court below, read by Bramwell, B., states the finding thus: "In this case I understand the jury to have found that all reasonable care had been taken by the defendant, that the banks were fit for all events to be anticipated, and the weirs broad enough; that the storm was of such violence as to be properly called the act of God, or vis major.

who for his own purposes brings on his lands, and collects and keeps there, anything likely to do mischief if it escapes, must keep it at his peril, and if he does not do so, is prima facie answerable for all the damage which is the natural consequence of its escape. He can excuse himself by showing that the escape was owing to the plaintiff's default; or perhaps, that the escape was the consequence of vis major; or the act of God; but as nothing of the sort exists here, it is unnecessary to inquire what excuse would be sufficient." It appears to us that we have two questions to consider. First, the question of law, which was left undecided in Rylands v. Fletcher: Can the defendant excuse herself by showing that the escape of the water was owing to vis major, or, as it is termed in the law books, the act of God? And, secondly, if she can, did she in fact make out that the escape was so occasioned?

Now, with respect to the first question, the ordinary rule of law is that, when the law creates a duty and the party is disabled from performing it without any default of his own, by the act of God, or the King's enemies, the law will excuse him; but when a party by his own contract creates a duty, he is bound to make it good, notwithstanding any accident by inevitable necessity.

We can see no good reason why that rule should not be applied to the case before us. The duty of keeping the water in and preventing its escape is a duty imposed by the law, and not one created by contract. If, indeed, the making of a reservoir was a wrongful act in itself, it might be right to hold that a person could not escape from the consequences of his own wrongful act. But it seems to us absurd to hold that the making or the keeping a reservoir is a wrongful act in itself. The wrongful act is not the making or keeping the reservoir, but the allowing or causing the water to escape. If, indeed, the damages were occasioned by the act of the party without more, as where a man accumulates water on his own land, but, owing to the peculiar nature or condition of the soil, the water escapes and does damage to his neighbor, the case of Rylands v. Fletcher, (Law Rep. 3 H. L. 330) establishes that he must be held liable. The accumulation of water in a reservoir is not in itself wrongful; but the making it and suffering the water to escape, if damage ensue, constitute a wrong. But the present case is distinguished from that of Rylands v. Fletcher, Law Rep. 3 H. L. 330, in this, that it is not the act of the defendant in keeping this reservoir,—an act in itself lawful, -which alone leads to the escape of the water, and so renders wrongful that which, but for such escape,would have been lawful. It is the supervening vis major of the water caused by the flood, which, superadded to the water in the reservoir (which of itself would have been innocuous), causes the disaster. A defendant can not, in our opinion, be properly said to have caused or allowed the water to escape, if the act of God or the Queen's enemies were the real cause of its escaping, without any fault on the part of the defendant. If a reservoir was destroyed by an earthquake, or the Queen's enemies destroyed it in conducting some warlike operation, it would be contrary to all reason and justice to hold the owner of the reservoir liable for any damage that might be done by the escape of the water. We are of opinion, therefore, that the defendant was entitled to excuse herself, by proving that the water escaped through the act of God.

The remaining question is, did the defendant make out that this escape of the water was owing to the act of God? Now the jury have distinctly found, not only that there was no negligence in the construction or the maintenance of the reservoirs, but that the flood was so great that it could not reasonably bave been antici

this form is as important to them, as is that of a person who deals in his individual capacity to him. On the other hand, the public mischief, the danger to good order and to the peace of the community arises as well from malicious defamation of private corporations, as from libelous attacks on natural persons. Moreover, as business acts and relations involve moral and personal conduct, it is not merely in reference to their business that persons might be defamed without redress, were libels on private corporations permitted. It would be against the reason of the law, if, under the guise of attacking a mere legal entity, a libeler should be allowed to do a wrong to many, which he could not safely perpetrate in reference to an individual. The objection, in truth, arises from conceptions, which the different functions now accomplished by the corporate form have rendered obsolete, and we have no hesitation in holding that a person may be criminally prosecuted for libel upon a business corporation. See Bishop on Crim. Law, 6th ed., vol. 2.. § 934; Wharton on Crim. Law, 7th ed., vol. 2, § 2540; 23 N. J. (Law) 407; 9 Minn. 133. It is next urged that there was no averment of special damage suffered by the corporation. But the rule invoked by the appellant, that, where the words are not in themselves actionable, special damage must be averred, is not applicable to a criminal prosecution for libel. Here the ground of the proceeding is not any damage sustained by the subject of the libel, nor is it even any injury actually done to the public. If it should appear that no damage was done to the person or corporation libeled, and that the public peace was not in fact disturbed, this would not defeat the prosecution. The ground of the criminal prosecution is the public mischief which the libel is calculated to produce, not that which it actually produces.

The points next to be considered are, whether the counts, charging separate and distinct offenses, may be joined in one information, and whether, the jury having separately found the defendant guilty on three of these, and assessed distinct penalties, the court could render judgment to the full extent of the penalties so awarded. It is claimed that there was error in these respects, and we are referred to the cases: People ex rel. Tweed v. Lipscomb, 60 N. Y. 599, and U. S. v. Maguire, 3 Cent. L. J. 273. The supreme court of this state appears to have come, many years ago, to an opposite conclusion to that arrived at by the New York Court of Appeals, as to what was the common law of England on these points, and an examination of the English authorities will confirm the opinion of our supreme court. It is noticeable that the language used by Lord Ellenborough, in Rex v. Jones, 2 Camp. 131, though the case is not referred to, is substantially adopted by the supreme court in Storrs v. State, 3 Mo. 9. Lord Ellenborough said: "In point of law there is no objection to a man being tried on one indictment for several offenses of the same sort. It is usual, in felonies, for the judge in his discretion to call upon the counsel for the prosecution to select one felony and to confine themselves to that, but this practice has never been extended to misdemeanors. It is the daily usage to receive evidence of several libels, and of several assaults, upon the same indictment,' "" etc. No English cases appear to have been found denying this rule, and many are found which directly or indirectly confirm it, and show clearly that in cases of misdemeanor, at least, counts for distinct offenses may be joined in the same indictment, and the defendant sentenced as for more than one offense at the same trial. Rex v. Wilkes, 4 Burr. 2527; Young v. The King, 3 T. R. 98, per Lord Kenyon, The King v. Johnson, 3 M. & S. 539; Reg. v. Chamberlain, 10 Cox Cr. Cases, 489. In The Queen v. Castro, alias Orton,

alias Tichborne, 92 E. Law R. 250, the indictment was for perjury, and contained counts for two distinct offenses, one committed on the Tichborne trial before Bovill, C. J., in the common pleas, and the other before a commissioner in chancery. The defendant was found guilty and sentenced to seven years' penal servitude on each count of the indictment. In State v. Ambs, 20 Mo. 214, where the indictment charged two distinct misdemeanors in different counts, and the defendant was fined upon each count, the point was made that the sentence was erroneous and could not be corrected, but the court held it proper. There is no doubt that this is the law of the state with regard to misdemeanors. As to felonies, Judge Napton said, in State v. Porter, 26 Mo. 206: "If the several counts refer to different transactions in point of fact, it is a matter of discretion with the court to compel the prosecution to elect upon which count he will proceed, and the power ought to be exercised in cases where the offenses are distinct and of a different nature, and calculated to confound the defense." Hildebrand v. The State, 5 Mo. 548; State v. Jackson, 17 Mo. 544; State v. Leonard, 22 Mo 449. In regard to sentences, it has been said that in case of felonies separate sentences can be passed upon a prisoner only in the cases and in the manner pointed out by the statute. Wag. St. 513, § 9; Ex parte Myers, 44 Mo. 279. In cases of misdemeanors like the present, the jurisdiction is under the common law, and there appears to have been no question in England, since the case of Wilkes, that for similar offenses the court may sentence for several distinct terms or penalties in succession. In Wilkes' case there were distinct informations for libel, one for No. 45 of the "North Briton," and another for the "Essay on Woman;" but the sentence for both was pronounced as one sentence and by it the term of imprisonment for the second offense was to begin at the expiration of the first term awarded upon the first offense. The punishment, however, was separately awarded to the separate offenses in the sentence; and where, as in the case at bar, the jury make separate findings and separate awards, the judgment should not lump the punishment, but should apply each penalty to its own offense. (See the authorities above cited.) Had this been done in the present case, it would have appeared upon the face of the judgment that section 2 of chapter 86 (Wag. St., p. 886), in regard to the punishment of commonlaw offenses, was not violated by the award of an excessive fine. Taking the verdict and the judgment, together with the information, it is obvious that this point of the appellant is not well taken. It is not claimed that there were not three distinct offenses.

It is next contended that the judgment is erroneous because it assumes to assess a further punishment, namely, hard labor in the workhouse. This, it is said, is in violation of the section last referred to. It is sufficient to say that there is nothing in the judgment or in this record showing that the defendant was sentenced to hard labor. The words are, "that he be imprisoned in the workhouse of the City of St. Louis for the term of two months," etc. We are referred to the 32d section of the act in regard to the court of criminal correction, which is to be found on page 199 of the session acts of 1869, providing for imprisonment in certain cases in the workhouse of the City of St. Louis. It is claimed that this section, or a part of it, is unconstitutional. But there are no facts before us to raise any such point, and obviously we can not go beyond the record to pass upon questions of this kind. Upon the face of the record, the only irregularity is that the judgment appears to award a fine of $150, and this is explained by the verdict. As to the place of confinement, it has been held by this court to be imma terial. In re Jilz, 4 Cent. L. J.189. Even if it should be true,