that tendency, and consequently is proper to be admitted. This evidence of the prosecution, in my apprehension, stands exactly on the same footing with the evidence of the kidnapping, for I can by no means enter into the distinction of lawful and unlawful acts, which seems to have so much weight with my lord chief baron. That unlawful act was not therefore, in my apprehension, to be admitted in evidence because unlawful, but because it had a tendency to show such a consciousness as Thave mentioned in the defendant; and if the carrying on the prosecution (which must be admitted to be a very extraordinary, though lawful, act of the defendant) hath the same tendency, it ought upon the same principle to be admitted. [The evidence was admitted.]. BowES, C. B. [charging the jury]: . . You will also consider whether these acts [above testified to] are not evidence to satisfy you that the defendant, in his own thoughts and way of reasoning, considered the staying of the boy here as what might some way prejudice his title. But whether, as insisted upon by the plaintiff's counsel, you ought to take this as an admission on the part of the defendant that the plaintiff was the lawful son of Lord Altham [earl of Anglesea], will deserve further consideration. Undoubtedly, there is a violent presumption, because no man is supposed to be wicked without design, and the design in this act must be some way or other relative to the title; but whether or no it was the opinion of the trouble he might have from this lad that induced him to do the act, or a consciousness that the lad was the son of Lord Altham, must be left to your determination. 268. ROE DEM. HALDANE & URRY v. HARVEY IN ejectment for certain premises in Newton, alias Frankville, in the Isle of Wight. The demises were laid on the 6th of October, 1768. The cause was tried before Mr. Justice ASTON at Winchester. He reported, that the title opened for the plaintiff was under Mrs. Haldane, as devisee of Robert Holmes. . . . Then the will of Robert Holmes was produced and proved, dated 24th of January, 1738. It appeared that he died the 9th of April, 1751, and by his will devised all the rest and residue of his estate whatsoever and wheresoever to his wife Elizabeth, her heirs, executors, and administrators. It was proved that Mrs. Elizabeth Holmes married Captain Haldane, and that he was dead. There was no proof of any receipt of rents since the Blachfords: and William Clark, a witness produced for the plaintiff, upon his cross-examination, said, "that Mrs. Haldane had, before the 6th of October, 1768, conveyed away her interest in the premises to Mr. Thomas Urry, and that the deed was in Court." 60635 Upon this it was insisted by Mr. Serjeant Burland, for the defendant, "That the plaintiff's own witness proving the title out of Mrs. Haldane, and that the deed of conveyance to Urry was in Court, it ought to be produced in evidence, to show a title in Thomas Urry, the other lessor of the plaintiff." The deeds being in Court, or at least in the plaintiff's power, was not controverted. But, for the plaintiff, it was insisted “that no notice having been given by the defendant, for the plaintiff to produce this deed, they were not obliged to do it. . . . It was answered, “That this was not a case which required notice, that the defendant did not claim under this deed; it was only then disclosed by the plaintiff's own evidence; and to be produced, to complete his title derived from Urry." Under the above circumstances, Mr. Justice ASTON thought "the plaintiff ought to give further evidence, to ascertain the title, under which he was to recover the term." But the plaintiff rested his case, and was nonsuited; the defendant agreeing "that the plaintiff should be at liberty to move for a new trial, without payment of costs." A motion was accordingly made; a rule to show cause, and cause now shown. This case was strenuously argued at the bar, by several eminent counsel on both sides. It was urged, on behalf of the defendant, that the deed being confessedly in Court, and in the power of the plaintiff, ought to have been produced by him, in order to show that Urry had a title. For, his own witness (William Clark) had proved that no title remained in Mrs. Haldane; she having conveyed it away: and none appeared in Urry; as they refused to produce the deed, though actually in Court, upon which they pretended that his title was founded. So that instead of showing that Urry had a title, this refusal to produce the deed was a good ground of presumption "that in fact he had none;" and that there was "some defect in this deed, or something or other contained in it, which, if it had been produced, would have shown that he had none; and that they did not dare to produce it, because it would destroy their title instead of proving it." On the other hand, it was argued by the plaintiff's counsel - That even admitting "that there was no need of their having had notice to produce it," or taking it upon the same footing as if such notice had been actually given to them; yet they were not under any obligation to produce it. They laid it down as a known and established rule of evidence, "That though a party had regular and full notice to produce a deed, the only consequence of his not producing it, was, that the adverse party should be let in to prove the contents of it by an inferior species of proof, as, for instance, by reading a copy of it, or by parol evidence;" which the defendants had not, in the present case, either done or attempted to do. And as to the pretended presumption "that there might be some defect in it, or something contained in it which destroyed the validity or effect of it," it was grounded upon mere imagination. . . . They insisted, with great vehemence, that instead of being nonsuited, the plaintiff ought to have had a verdict; for, that his title appeared to be a good one, without the assistance of this deed. He had laid a double demise; one from Mrs. Haldane, the other from Urry. The evidence given by William Clark was, that Mrs. Haldane had had an interest, but had conveyed it to Mr. Urry." Therefore, most manifestly, there was an interest remaining in one of the two lessors of the plaintiff; and it was indifferent to the plaintiff, in which of the two it subsisted. Lord MANSFIELD, C. J., reasoned from the nature of an ejectment, and the course of proceeding upon it. He laid it down as a position, that in this action, the plaintiff cannot recover, but upon the strength of his own title." He cannot found his claim upon the weakness of the defendant's title. He principally laid stress upon the plaintiff's refusing to produce the conveyance from Mrs. Haldane, which was in Court. The want of notice was no objection in this case; because they had the deed in Court. The refusal to produce it was an unfair attempt to recover, contrary to the real merits; and being a deliberate refusal, by the advice of counsel, contrary to the recommendation of the judge, warranted the strongest presumption "that the deed would show that neither of the lessors of the plaintiff had any title." Mr. Justice YATES thought the plaintiff sought to have had a verdict. Mr. Justice ASTON. I was not called upon to leave it to the jury. I thought the refusing to produce the deed was a want of fairness; and that the plaintiff had not made a complete title, without it. But if there is any doubt in the Court, I have no objection to a new trial. Mr. Justice WILLES thought the direction was right. In ejectment the plaintiff must recover upon the strength of his own title. The only proof here is, "that the witness said that Mrs. Haldane had conveyed to Urry;" but he would not produce the deed of conveyance to Urry, though actually in Court. I do not say that the Court could oblige them to produce this deed. But I think the title of the plaintiff was not complete; the deed not being produced. . . . Lord MANSFIELD observed, that in civil causes, the Court will force parties to produce evidence which may prove against themselves, or leave the refusal to do it (after proper notice) as a strong presumption to the jury. The Court will do it in many cases, under particular circumstances, by rule before the trial; especially, if the party from whom the production is wanted applies for a favor. But in a criminal or penal cause, the defendant is never forced to produce any evidence, though he should hold it in his hands in Court. (1 Tidd, 515. 1 T. R. 689.) Per Cur. Rule discharged. 269. MORSE v. MINNEAPOLIS & ST. LOUIS R. CO. SUPREME COURT OF MINNESOTA. 1883 30 Minn. 465; 16 N. W. 358 2.7.647 APPEAL by defendant from an order of the District Court for Freeborn County, FARMER, J., presiding, refusing a new trial. J. D. Springer, for appellant. Gordon E. Cole and J. H. Parker, for respondent. MITCHELL, J. This was an action to recover damages for the alleged negligence of defendant, causing the death of plaintiff's intestate while employed as an engineer on its railroad. One of the acts of negligence alleged to have contributed to the injury was defendant's allowing its track to become and remain out of repair; the defects in that respect consisting of a broken rail and defective switch, which caused the engine upon which deceased was to be thrown from the track and upset. The rail and switch referred to were situated in the yard of defendant at Albert Lea, and near the water-tank, at which point the accident occurred. Plaintiff was also permitted to show that, after the accident, defendant repaired the switch alleged to have been defective. The Court held in O'Leary v. City of Mankato, 21 Minn. 65, that such evidence was, under certain circumstances, competent. This case was followed in Phelps v. City of Mankato, 23 Minn. 276, and Kelly v. South. Minn. Ry. Co., 28 Minn. 98, and this position is not without support in the decisions of other Courts. But, if competent, such evidence is only so as an admission of the previous unsafe condition of the thing repaired or removed; and, to render it admissible as such, the act must have been done so soon after the accident and under such circumstances as to indicate that it was suggested by the accident, and was done to remedy the defect which caused it. All Courts who admit the evidence at all so hold. In the present case the change in this switch was made over a year after the accident, and after it had been removed to another place. Under such circumstances the repairs were, presumably, merely an ordinary better ment. Under such a state of facts such evidence would not be admissible under any rule, and its admission was, therefore, error. But, on mature reflection, we have concluded that evidence of this kind ought not to be admitted under any circumstances, and that the rule heretofore adopted by this Court is on principle wrong; not for the reason given by some Courts, that the acts of the employees in making such repairs are not admissible against their principals, but upon the broader ground that such acts afford no legitimate basis for construing such an act as an admission of previous neglect of duty. A person may have exercised all the care which the law required, and yet, in the light of his new experience after an unexpected accident has occurred, and as a The measure of extreme caution, he may adopt additional safeguards. We discover no other error, but for those already referred to a new 270. BROCK v. STATE SUPREME COURT OF ALABAMA. 1898 123 Ala. 24; 26 So. 329 APPEAL from Circuit Court, Lauderdale county; JAMES J. BANKS, Judge. Polly Brock was convicted of living in adultery with Bill Coppin, and appealed. Reversed. Under the opinion on this appeal, it is unnecessary to set out in detail any of the facts relating to the rulings of the trial Court to which exceptions were reserved, except that in reference to the argument of the solicitor. In reference to this ruling the bill of exceptions contains the following recital: In the course of his argument the solicitor stated to the jury that Bill Coppin had failed to take the stand and deny his illicit intercourse with the defendant, or explain what he was doing out in the woods. Defendant objected, and excepted to this statement of the solicitor, because Bill Coppin was one of the defendants, and his failure to testify could not be made the subject of comment. The Court refused to sustain this exception, but stated that the argument was legitimate, and to this action of the Court the defendant then and there duly excepted. Emmett O'Neal, for appellant. Chas. G. Brown, Atty. Gen., for the State. SHARPE, J. . . . The defendant and one Bill Coppin being indicted jointly, a severance of the trial was obtained. The solicitor, in his argument to the jury, commented upon the fact that Coppin "had failed to take the stand and deny his illicit intercourse with the defendant, or explain what he was doing out in the woods." Upon objection by defendant's counsel to this comment, the Court stated that the argument was legitimate. There is a recognized rule of evidence which authorizes a presumption unfavorable to a party failing to produce a witness having |