RECENT CASES. 221 Court had power to resentence the prisoner notwithstanding that part of the void sen- tence had been executed. United States v. Harmon, 68 Fed. Rep. 472. Ihe effect at common law of the reversal of an erroneous sentence is a question upon which authorities have divided very evenly. The earlier and more orthodox view was that it discharged the prisoner completely. Bourne v. Rex, 7 A. & E, 58, 2, Nev. & P. 248; Sumner v. CommonweaLh, 3 Cush. (57 Mass.) 521 ; McDonald v. Slate, 49 Md. 90; Elliott V. People, 13 Mich. 365; Howell . State, i Or. 241; State v. Child^ 42 Kan. 611 ; People V. T^aylor., 3 Den. (N. Y. ) 91. In England, Massachusetts, and N< w York this ! as no V b en change d by statute to correspond with the view of the principal case, which is also the common law ruling of A'^'/Zy v. 5/(7/(?, 11 Miss. 518; Terr v. Conrad, I Dak. 363; Beale v. Comm. 25 Pa. 11 ; People . Riley, 48 Cal. 549 ; State v. Sha-u', 23 Iowa, 316; BrLwnv. State, 13 Ark. 96; State v. Nicholson, 14 La. 785. See also Re Ponner, 151 U. S. 242, 14 Sup. Ct. 323, controlling the principal case. The present tendency toward disregarding legal technicalities is likely to make cour s prefer the latter op nion where the point is yet open. Damages — Exemplary Allowed in Civil Actions. — Defendant is sued in tort under a statute allowing suit by a wife for the wrongful sale of liquor to her hus- band. J/eld, exemplary damages should be awarded. Mayer v. Frobe, 22 S. E. Rep. 58(W. Va.). This decision overrules the cases of Pegrajn v. Stortz, 31 W. Va. 220, and Beck v. Thompson, 31 W. Va. 459, in so far as they hold that exemplary damages in a proper case, cannot be inflicted by way of punishment in a civil suit upon a wrongdoer, and places West Virginia among the list of States which allow exemplary damages. Damages — Unlawful Expulsion of Passenger. — Plaintiff was evicted from a car because he would not pay his f ar • instead of his ticket, which the conductor thought bad. Plaintiff resisted. The ticket proved good, and plaintiff now sues the company and c'aims to recover damages for a nervous disorder brought on because of the force used by the conductor i overcoming plaintiff's resistance. Jield, that plaint ff can re- cover damages for the injury, though caused by his resistance, because he rightly resisted. Pittsburgh C., C. df' St. L. A'y. Co. v. Puss, 67 Fed. Rep. 662. This decision rendered by the Circuit Court for the District of Indiana is manifestly fair, provided the plaintiff does not resist a wrong ul expulsion for the express purpose of increasing the amount of damages. The conductor committed a trespass in putting him off the train. If the plaintiff resists too much, then t e conductor may have an action for assault against him, but plaintiff's action will still remain, and the conductor be responsible for all natural consequences. In the case at bar no such unreasonable resistance was made, and the injury to the plaintiff was, as resistance was rightful, the natural consequence of the conductor's act. 2 Sedgwick on Damages, 865. Equity — Partnership — Rights of Creditors. — X, one of the partnership creditors, held a mortgage security for the payment of his claim, executed by one mem- ber of the firm and his wife on the property of the latter, who was in no way connected with or responsiblefor the partnership debts other than by the execution of this mortgage. He'd, that X could not be compelled to first resort to his mortgage security and thus leave the partnership assets to the other creditors. State Bank of Florida v. Roche et al., 17 S. E. Rep. 652 (Fla.). It is a well established rule in Equity that where one creditor holds security on two funds, with liberty to resort to either, and another creditor has a junior security on only one of the funds, the former will be compelled to exhaust the fund which he alone can reach before resorting to the other fund. Cheesborongh v. Millard, i Johns Ch. 409. In the principal case the court limits the rule and refuses to apply it where the effect would be to preju^'ice the rights of a third party. This limitation is an equi- table one and supported by authority. AfcClaskeyv. O' Brien, 16 W. Va. 79: ; McArthur V. Martin, 23 Minn. 74 ; Aldrich v. Cooper, 2 W. and T. Leading Cases in Equity, 82. Evidence — Declarations of Intention — Res Gesta. — In an action for breach of contract of marriage, the plaintiff's intention, as showing consent on her part to the contract, was material. She offered evidence of a statement by her, that she was going to bs married in October. Held, that it was not admissible because not part of the res gesta:. Wilson v. Smelser, 41 N. F. Rep. 76 (Ind. ). See Notes. Evidence — Physician's Testimony. — Defendant-in-error told his physician that at the time of his injury he was leaning over the edge of a car-top. Held, that physic'an might give the statement in evidence, for it was not a communication made by a patient with reference to any physical disease nor know ed^e obtained by a personal examina- tion of the patient, and as such privileged by the Kansas Code. Kansas City, etc., R. R, Co. v. Murray, 40 Pac. Rep. 646 (Kan.).
