left wing of the French army, another ending for the war would have been written.

By 6:00 o'clock on the night of the 15th we knew twenty-five German divisions were gone. The high command knew the big battle had been delivered on that front and that there was nothing to be feared on the British front. The French reserves were free. And two days later General

Foch broke loose with his offense at Sois

sons.

We pulled out of line on Friday, the 21st, and began to entrain to go close down to Paris. They said they were going to give us two weeks' rest. We had lost more than two thousand men during the spring and had lost two thousand men in the Champagne battle. Our men had been fighting since the middle of February and it was then the 21st of July and we needed rest. We started to detrain our infantry thirtyfive miles outside of Paris in the morning. At 4:00 o'clock the next afternoon we got telephone orders to load them into trucks. and get them up north of Chateau Thierry and relieve the 26th Division. We had two regiments in then, the Iowa and the Alabama. By midnight they were moving in trucks up the road to Chateau Thierry. The roads were packed with troops going up and trucks and ambulances going down. We got our headquarters into Trugny about 4:00 o'clock in the morning. The Germans had been there the morning before. We were about four miles back of the battle line. Our infantry arrived at dawn and we got them up in the woods right back of the fighting that afternoon. The Germans were holding south of the Ourcq and the key to their position was a French farm, the Red Cross farm. Every farmhouse in France is a good fort, they are all built of stone with stone outbuildings; most of them dating back to the Middle Ages, and this Red Cross farm was particularly strong. It had a north and south road in front, a raised macadam road, with machine-guns all along back of the road and in the farm house and all along the edge of the woods. We did not

have our artillery; it was horse-drawn; while the infantry had come in trucks. We were ordered to attack at dawn and we

jumped off into thick woods just before dawn. The Alabama regiment went in three thousand strong and lost over a thousand men the first hour. I saw a company at noon that had gone in with two hundred and fifty men and had seventy-five men left. Iowa suffered equally. They fought all the morning and couldn't take the farm. About 4:00 o'clock in the afternoon they finally got into it, cleaned the machine-guns out and by sunset they had the Germans back to the edge of the woods. They fought all night through the woods and the next morning our other two infantry regiments came up in trucks, Ohio and New York. We fought all day and the Germans steadily went back towards the Ourcq, and at night they crossed the Ourcq and took up a position on the other side. The Ourcq River we would call a creek over here; it is only ten or twelve feet wide and a foot or two deep. On the other side there was a semi-circular crest and the two ends came down to the river. It was all open, no cover, no woods on either side. From the nearest woods on our side there was a slope of about six yards to the river, then say 600 yards up to the crest on the other side. At each point where the crest neared the river there was a French village of fifty or a hundred stone houses and they were very strong places. The Germans were in these villages and all along the crest with machine guns. We were ordered to force a

passage of the Ourcq.

passage of the Ourcq. The freshest regiment was the New York regiment. One battalion crossed at dawn in a thick mist. It started up the slope and every officer that went up the slope battalion and every officer in that did-was killed or wounded. Out of one thousand men that went across there were less than three hundred left at noon. But we had a battalion for each regiment across by the afternoon of that day, and we had our own artillery. Then the fighting became fierce. We were under German artillery

fire and machine-gun fire. We could not go forward or back. The Iowa regiment was ordered in to take the village of Sergy on our right. When they got in they found we had a fresh division against us. We had fought the 6th Bavarian, the 10th German and the 201st German Divisions; when we got to Sergy we found that they had brought up one of their best divisions, the 4th Imperial Prussian Guard, and put it in position to hold us; and they did hold us there a while. We took Sergy and they took it back. In the next three days' fighting we took and retook it five times and the fifth time we held onto it.

On the left we had to take the town of Seringes. The Ohio regiment took it the second afternoon. The Germans drove us out and we retook it again three times and then held on to it. The New York regiment was fighting at the right of the Ohio regiment and the Alabama regiment was between New York and Iowa. The Alabama regiment couldn't go forward or back; they were completely exposed to fire from both flanks. The men would go forward and be raked by machine-gun fire and die. They couldn't move. They lost three majors and a lieutenant colonel wounded, and out of three thousand men that went into the battle they had about seven hundred men left when it was over.

By the end of the sixth day we were very weak. We had relieved the 26th American Division, a brigade of the 28th, and two French divisions and were spread out on a front of about three miles. The morning of the seventh day we went forward again and rolled on up over the crests of the Ourcq. There wasn't much left of us, but there wasn't anything left of the 4th Imperial Prussian Guard. We went on through the woods that day and that night we were relieved and came out and camped on the Ourcq battlefield. We had fought there for six days and had lost over six thousand men. It was hot and we had not had a chance to bury our dead and the German dead and we had to do it then. But a battlefield is inspiring; the fighting is inspiring

and the battlefield after the fighting is over is inspiring. It is wonderful to see the dead and to see what they have done and what they accomplished. I never saw a dead American on the field of battle, except those who had been wounded and turned on their back to bandage themselves, who wasn't dead pointing head-on straight toward the enemy and with every muscle set to go forward. And on the battlefield there, where the New York regiment had gone up the hill the first morning we crossed the Ourcq every man lay in perfect attack formation all dead and all headed straight forward.

We stayed there a week about ten miles behind the battle front. Tired as we were they had to hold us in reserve. Finally, a week later, we were ordered out and marched back through Chateau Thierry and entrained near Paris. They took us back to Eastern France and said they were going to give us a month to rest up, and we needed it. It was then nearly the last of August and we had been fighting since February. We had lost more than ten thousand men out of our twenty-five thousand, and we needed replacements. The evening of the sixth day of our rest we received orders to pick up the division and start marching again.

We had information that we were going up towards St. Mihiel, that the American army was going to attack the St. Mihiel Salient. We couldn't march in the daytime on account of enemy aerial observation. We had to start the men at dark and get them into the woods out of sight before dawn. That sounds easy, but a division in column takes up about thirty miles of road space and there were about 300,000 other men moving in that same area.

The St. Mihiel operation was the first operation of the American army; before that we had fought as separate divisions, but in August they formed the army. They gathered all the American divisions over there together and gave us this big job to

do; and we used over 400,000 men in the St. Mihiel operation.

We received orders to march and we marched for nine nights. And the night we started to march it started to rain and it rained for nine nights and days. When we got up to the St. Mihiel country, the country was very wet. That is the Woevre country and it is very flat and muddy. The men were tired and wet and the trenches on our front were knee deep in water. We lay there in the woods and the night of the 11th of September we went into position. The artillery preparation opened up at midnight. The French had tried twice to wipe out the salient and they had had two bloody reverses. They were not sure the Americans could do it. They knew the men we had were fighters, but they did not think we had staff officers that could handle a big army.

We jumped off at 5:30 in the morning to the most successful operation the American army had. The Germans were trying to pull out of the salient in retreat and we turned the retreat into rout. On our front we took over 1,000 prisoners the first hour of the fight. We went in and reached our day's objective at 10:00 o'clock in the morning. We were to reach the Hindenburg line at 6:00 o'clock the next night. We had it before noon the next day. We captured men, artillery, ammunition, stores, clothing, food of all kinds. And that was the first taste our men had of loot, and from that time on they wanted to get into Germany and do a good job. The St. Mihiel advance was very successful, but it wasn't hard fighting such as we had had in the Champagne and on the Ourcq.

They kept us in that sector for two weeks to organize the new position. They then took us into the Argonne fight. That started on September 26, was the final offensive of the war, and continued until the armistice on November 11.

On September 26 the Americans jumped off on the whole front between the Meuse

River and the Argonne Forest. They went through for six miles, then stopped on the German second position. There the fighting became very bitter. All during the month of October you heard about the terrific fighting up on the British front and the French front, how the Germans were pushed back from the ocean; how Ypres and Valenciennes had fallen. You did not hear very much about the Americans, except that they were having hard fighting, and we were. The country was tremendously rough, with a forest on our left and the river on our right. We had no large towns to attack, but it was a very important position for the Germans to hold. They were trying to pull their line back to Germany pivoting on that particular section from Verdun to the Argonne Forest. If the Americans were able to push them back on that front and cut the railroad at Sedan they would have no railroad communication back to Germany, and for that reason they threw in all they had to try and stop

us.

The American army fought during the Argonne-Meuse offensive from September 26 until the armistice on about one-twentieth of the entire Western front, and during those forty days' fighting we met on that twentieth of the front more than one-fourth of the entire German army. The fighting was terrific. We relieved the First Division on October 12. They had lost 8,500 men the week before. The country was very wet, everywhere mud and it rained all the time. I have seen our tired horses fall down on roads so muddy that the driver would have to jump off and hold the head of his horse up out of the mud so he would not drown.

Finally, on the first of November, the Americans broke through all along the line. In four days we made more than twenty kilometers and hit the Meuse River on the 7th of November, our division holding the heights that overlooked the town of Sedan.

We

That last drive was terrific. Our men were terribly exhausted and the horses were more exhausted than the men. had only horses enough left in the artillery regiment of our division to pull up in that last advance three batteries per regiment instead of six. We had then been in the fight continuously since February and it was now November; the men's vitality was gone. We went down between the 15th of October and the 1st of November from about 12,000 rifles in the division to a little over 5,000, about half casualties and the rest from exhaustion and sickness. When we reached Sedan we were very tired.

On the 10th of November we were relieved and pulled back from Sedan and on the 12th we started to march to Germany. The armistice did not make much difference except that the shell fire and the bombing stopped. The roads were still terrific. The first visible signs that war was over were seen at night when the motor trucks began to light up. Before that time we couldn't show a light at night because of the bombing planes.

On the 12th the march began and our division was finally billeted close to Coblenz. We had been in the line for 264 days. We had been under fire, actually fighting, for 184 days; we had been in reserve just behind the line and marching from front to front seventy days, and in all that time we had had six days' rest. That division was in line more days than any American division and made a further advance into enemy territory.

It was not American resources or wealth that won the war; it was the American doughboy with his bayonet that did it. It was just the men who went through the carnage of battle, battles like these and at the end still had their bayonet at the German breast that brought this war to a conclusion. NOBLE B. JUDAH.

Chicago, Ill.

INSURANCE-FAILURE TO TAKE APPEAL.

MCALEENAN v. MASSACHUSETTS BONDING & INS. CO.

Supreme Court, Appellate Division, First Department. February 6, 1920.

180 N. Y. S. 287.

Where a liability insurer, defending an action against insured, resulting in a judgment against him, assured him that an appeal would be taken, thereby leading him to take no appeal until the time for appealing had expired, it was estopped from asserting that an appeal would not have resulted in a reversal, or that he was not damaged in the full amount he was compelled to pay.

MERRELL, J. The plaintiff, Joseph A. Mc Aleenan, was insured by the defendant, Massachusetts Bonding & Insurance Company, against liability for damages for injuries to third persons caused in the operation of said plaintiff's automobile. Under the contract of insurance the liability of the defendant company was lim ited to $5,000. The plaintiff met with an accident, as the result of which one Pietro Cimino lost his life as the result of an injury received from plaintiff's said automobile. An action was brought by the administratrix of Cimino to recover damages based upon the alleged negligence of the plaintiff herein. Under the terms of the policy of insurance issued by the defendant to the plaintiff, the defendant bonding company assumed the defense of the action. The defendant herein furnished its attorney, Holmes, and trial counsel, Heermance, to defend the Cimino action against the plaintiff. The trial resulted in a judgment in favor of the administratrix of Cimino against this plaintiff for $13,131.98. No appeal was taken from that judgment. The defendant bonding company paid the administratrix the limit of its liability, $5,000, besides interest and costs of the action. The plaintiff in this action was compelled to pay the balance of the recovery, amounting to $7,826.58. Thereupon the present action was brought by McAleenan against the bonding company to recover the moneys thus paid by him to satisfy the judgment rendered against him. The basis of the action was the alleged negligence and failure of the defendant to take and prosecute an appeal from the judgment recovered against this plaintiff in the Cimino action.

The defendant in the present action, upon the trial, offered in evidence the minutes of the trial in the personal injury action against this plaintiff, for the purpose of showing that no grounds existed upon which to obtain a reversal of the judgment in that action. Under

objection of counsel for the plaintiff herein the trial court refused to receive said minutes of trial in evidence, the court holding that the defendant, through its attorneys and agents, having refused to permit an appeal to be taken by the plaintiff herein from the judgment in the personal injury action, and in agreeing and assuming to prosecute an appeal from said judgment, took away from the plaintiff valuable rights which he had, and was estopped from denying that there were reversible errors upon the trial, and from asserting that the plaintiff herein suffered no damages by reason of the failure of the defendant to bring an appeal from said judgment. The defendant insists upon this appeal that as a part of plaintiff's case, showing that he suffered damages by rea son of the failure to bring said appeal, it was incumbent upon him to introduce in evidence the record and minutes of the trial of the personal injury action, showing the commission of error on said trial, or that the verdict rendered was against the weight of the evidence, and that a reversal would have resulted from such appeal, had one been taken.

It seems to me that the court properly held that in view of the attitude of the representatives of the defendant bonding company, and of its assurance to the plaintiff herein that an appeal would be taken and that a reversal would result, thus lulling him into security and depriving him of his right to appeal, defendant is precluded from asserting that an appeal would have been without effect, and that a reversal would not have resulted, had such an appeal been taken. Aside from the question as to whether or not errors were committed upon the trial requiring a reversal, had an appeal been taken it might thereon have been determined whether or not the verdict rendered was against the weight of the evidence. The amount of the verdict also might have been tested, and a determination reached whether or not the recovery was, under the circumstances, exces sive. Not only that, but the failure of the defendant to bring an appeal precluded any possible compromise of the recovery which might have been effected, had an appeal been taken. Furthermore, there was lost to the plaintiff herein the privilege of paying up the amount of the judgment recovered promptly and stopping the accumulation of interest thereon. All of these were valuable rights, which the plaintiff herein lost as the result of the failure of the defendant to keep and perform its representation and promise to bring an appeal from said judgment.

The case of Globe Navigation Co., Ltd., v. Maryland Casualty Co., 39 Wash. 299, 81 Pac.

826, seems to be exactly in point. In that case it was held that estoppel to deny liability on the part of the appellant to respond in damages arose from a similar act of the defendant. In the course of its opinion in that case, the Court said:

*

"It is insisted that estoppel does not arise unless it is shown that respondent has been actually prejudiced, and that it does not appear that the judgment of the Hawaiian court was wrong, and would have been reversed on appeal. That is a matter this court cannot determine. The respondent, therefore, had the absolute right to have the cause reviewed on appeal. It was induced to abandon that right by the conduct of appellant, and the latter should not now be heard to say that respondent was not prejudiced because of mere absence of a positive demonstration that it would have secured a reversal on appeal. No one except the Infinite Mind can determine that question to a certainty at this time. Not even the court that would have reviewed the case can now know whether in its view reversible error would have appeared or not. But the certain fact does appear that, by reason of appellant's conduct, respondent did not have the benefit of the wisdom and experience of the learned judges of the appellate tribunal, the United States Circuit Court of Appeals. We therefore think appellant is now estopped to deny its liability to pay as it promised, which included both the amount of the judgment and the subsequently incurred costs."

It is of course impossible, in the case at bar, to say what would have been the result, had an appeal been taken; but by reason of the con. duct of the defendant bonding company, plaintiff was deprived of opportunity of review, in the appellate court, and the defendant, whose act deprived plaintiff of his rights, is, it seems to me, estopped to deny its liability to reimburse plaintiff for the full amount which he was compelled to pay. Affirmed.

NOTE-Proof of Injury Which from Failure to Perform Is Incapable of Estimation.-There is a maxim omnia praesumuntur contra spoliatorem, but it has been said, "There is great danger that the maxim may be carried too far." For example, where the maxim has reference to the contents of a paper destroyed or withheld if the contents are proved, there is no need for resort to the maxim. Bote v. Wood, 56 Miss. 16; Jones v. Knauss, 31 N. J. Eq. 609. But the destruction of a receipt may presume payment of money. Downing v. Plate, 90 Ill. 268. And where agreement is made to keep strict account of the working of a coal mine extending under adjoining land, this may raise the presumption that the entire mass, or no part of the same, according as it was the interest of his adversary to contend, was from under the adjoining land. Dean v. Thwaits, 21 Beav. 621.

And so where it was the duty of a member of a firm to keep its books, the other partner may claim he used more in his family expense