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203 NOTES. 203 The right of the Legislature to change the ordinary rule of proced- ure, so that a verdict may be rendered by less than the whole of the jury, has been embodied in the constitutions of at least three States (Cal- ifornia, Texas, Nevada), and the new practice has been found to work well. In criminal cases where guilt must be proved beyond a reason- able doubt there is a distinct reason for requiring unanimity which does not exist in civil cases, where proof needs only to be by preponderance of evidence. In this country and in England, therefore, there has been scarcely a suggestion of any change in the criminal jury. In Scotland and France, however, it is interesting to note that in criminal cases a majority verdict convicts, France having no civil jury, and Scotland discharging its civil jury after six hours' deliberation, if in that time it does not reach a unanimous verdict. " If it could be assumed," says Judge Pitman, in a magazine article, 1 speaking of the rule of unanimity, "that the dissentient jurors were fairer or wiser than the majority, we could tolerate it well ; but unfor- tunately the alliance between ignorance and obstinacy well known of old continues. ... In civil cases where a preponderance of evi- dence alone is required, it would seem that sooner or later the practical American mind would conclude that when this preponderance was made out to the satisfaction of at least three-fourths of the jury and of the court it was time to make an end of litigation, especially when we consider that this state of things would almost certainly foreshadow the ultimate result, the present acceptance of which would merely avoid one of those calamitous delays of the law which have tired out sturdier natures than that of Hamlet." Liability of Elevated Railway Companies to Abutters. — The case of Pappenheim v. The Metropolitan Elevated Railway Company has recently been decided in the New York Court of Appeals. In this case plaintiff purchased property on the line of the road after the road was fully established. He then brought this action for damage done to his property by the operation of the road. The defendant contended that as soon as the railroad went into operation, the damage to the property of abutters was completed once for all. That, as the plaintiff bought sub- sequently to this time, he received, in the lower price which he paid for the property, a due allowance for the damage inflicted by the defendant, and therefore his recovery, if any, should be for nominal damages only. Peckham, J., in deciding for the plaintiffs, took the ground that the defendant's act in maintaining their railroad in the highway was a contin- uing trespass on the abutter's property. The grantor of the plaintiff undoubtedly had a right of action against the defendant, but that fact made the defendant's act no less a wrong to the plaintiff. Nor was the fact material that the plaintiff acquired the property at a lower price because of the trespass. The defendant's act was still a wrong against the plaintiff, for which the latter was entitled either to an injunction restraining the defendant from operating its road or to substantial dam- ages. The defendant's line of argument would result in preventing gran- tees from stopping trespasses which had begun while the property was in their grantor's hands. This decision seems a necessary result of the previous decisions on the subject. (For a full treatment of these cases see the able article of Mr. 1 Juries and Jurymen, 139 No. Am. Rev. 1.