Page:Harvard Law Review Volume 8.djvu/445

429 RECENT CASES. 429 was committed " at the town of F., in said county," was held to be a sufficient allegation of the county in which the offence was committed, because the court will take judicial notice that F. is in a certain county. That case is distinguished from the principal case on the ground that here there is no allegation that the offence was committed at the town of Westminster, but simply at Westminster. For this flimsy and technical dis- tinction the court relies upon Commonwealth v. Barnard, 6 Gray, 488. The court admits that it " knows that there is a town named Westminster in the county of Wor- cester." Would it then be too great a relaxation of the rule requiring an indictment to be certain, if the court were to interpret " at Westminster " as meaning " at the town of Westminster " ? Damages — Injury to a Fish-net from Floating Logs.— Evidence of the value of fish usually caught is admissible in an action for damages to a trap caused by float- ing logs. Gwaltney v. Scottish Carolina Timber ^i' Land Co., 20 S. E. Rep. 465 (N. C). This case illustrates the importance to the practising lawyer of a correct understanding of the law of damages in order to enable him to get before a jury the several items of his client's loss. There is a great tendency to forget that evidence of this kind is simply to be regarded as bearing on the amount of the loss, and to claim that it should be ad- mitted or rejected by some hard and fast rule of law. There is no question but that this evidence, if offered simply as showing the profits which the plaintiff had been mak- ing from his trap would have been promptly excluded as irrelevant. If testimony in regard to previous profits was the only evidence presented that bore on the damage suffered, it might also be rejected as speculative and conjectural. Wright. Miilvaney, 78 Wis. 89. But the plaintiff is undoubtedly entitled to the cost of repair of his net, and also to its value during the time the defendant has deprived him of its use. One perfectly legitimate method of showing its value is to show what it has been worth from day to day in the fish-catching way, and it is believed that if evidence of the amount of fish caught were to be offered as bearing on this point, other testimony being submitted to show a continuance of former conditions, it could not be rejected. Damages — Wages of Operatives not Recoverable from a Contractor in Default. — Where a contractor does not furnish mill machinery at the agreed time, and the owner thereby is obliged to pay wages to his operatives during a period of enforced idleness, held, such wages are not an item recoverable in damages from the contractor when the workmen were hired after the making of the contract, as the loss of their wages could not have been in the contemplation of the parties. Fraser v. Mining Co., 28 S. W. Rep. 714 (Texas). The court in this case reach the correct result that prospective profits which might have been earned during the period of delay cannot be recovered. But the doctrine in regard to wages seems to have received little consideration, and not to be justified by author- ity. It is submitted that notice is given by the nature of the agreement itself, that ope- ratives will be under contract to begin work as soon as the machinery is in place, and the loss of their wages to the employer therefore follows as a natural and proximate result of the breach. This is held in A''ew York Syndicate v. Fraser, 130 U. S. 611, a leading case which does not seem to have been called to the attention of the court. Equity — Mandamus — Interference by Civil Courts in the Affairs of a Religious Society. — Where a bishop acting under his discretion, in accordance with the canons of the church, refuses to allow a clergyman to officiate, held, a mandamus will not issue at the suit of the rector, wardens, and vestry, to remove such inhibition. Rector, d^^c, of St. yames Church v. Huntington, 31 N. Y. Supp. 91. Under the New York statute, the plaintiff (which would ordinarily be a voluntary association, and sue in the name of trustees) is an organized corporation, and sues in its corporate name. 2 Rev. Stat, of 1813, p. 212. Its rights however are in no way more extended than those of any other private corporation, and the present case is to be decided simply on the principles of the common law applicable to such bodies. Tyler, Am. Ecc. Law, §§ 104, 105 ; Calkins v. Cheney, 92 III. 463. Accordingly, the power of a civil court to interfere in an ecclesiastical suit is very limited. It has no general visitorial capacity, and can take cognizance only in cases of abuse of trust, fraud, rival claims to church property, and where civil rights are directly involved. O' Hear v. De Goesbriattd, 33 Vt. 593; Church 0/ Hartford v. Witherell, 3 Paige Ch. 296. Thus mandamus will not lie to compel a religious society to reinstate an expelled member if such sentence does not affect his civil rights. Sale v. Church of Maso7i City, 62 la. 26. It has also been held that want of authority in the judicial body, and a mis- construction of the canon on which the defendant is being tried furnish no ground for interference. Chase v. Cheney, 58 111. 527. The canon requires a clergyman to procure the assent of the bishop to his mduction into a new parish, and allows the latter to de- cline to give this for probable cause. If such assent is withheld no binding contract with