It is an inherent element in a contract of affreightment under a bill of lading, that the vessel shall enter on the voyage named, and begin the carriage of the goods shipped, or as it is technically called, break ground, before a claim to freight money can arise, unless the shipper of the goods, the vessel remaining ready to enter on the voyage, undertakes to reclaim the goods. In the latter case, the circumstances under which the contract was entered into continuing substantially the same so far as respects the vessel, the shipper cannot reclaim the goods without paying at least full freight. But subject to this qualification, it is a principle of the maritime law, that if a ship does not begin her voyage at all, does not break ground, no freight can be payable. This was laid down and applied in the early case of Curling v. Long, 1 Bos. & Pul. 634. That case has never been overruled, and no case holding to the contrary is cited or has been found. It is a case directly in point in two particulars, and it will be useful therefore briefly to examine it. Some hogsheads of sugar were shipped, under bills of lading, on a vessel while lying in a port in Jamaica, bound for London. Before the vessel sailed she was cut out by privateers and carried to sea, but was recaptured and taken into another port. Under a libel for salvage in the Admiralty Court of Jamacia the cargo was sold by order of the court, and the net proceeds were remitted to the defendants for the owners of the cargo. The ship-owners had expended money in lading the cargo, according to the usage of the Jamaica trade. They sued the defendants to recover the freight money or the expenses. It was held that they could not recover any thing; that the inception of freight was breaking ground, and that the expenses incurred were to be reimbursed in the freight money or not at all. The case of Jones v. Holm, L. R., 2 Ex. 335, was a different case. By a charter-party, a vessel was to go to a specified port and take a specified cargo and deliver it at Liverpool for a specified freight. She went to the port and was partly laden, when she was so damaged by fire that she was scuttled. The cargo was injured and sold, except a small part not on board, which was forwarded to Liverpool by the master. The vessel was repaired and tendered to take the remainder of the cargo. The charterer refused to supply more cargo, and the vessel obtained a cargo and carried it to England at a less freight than she would have earned for a full freight under the charter-party. In a suit to recover damages for a breach of the charter-party it was held that the charterer was bound to complete the lading of the vessel. The authority of the case of Curling v. Long is recognized in Bailey v. Damon, 3 Gray, 94; Burgess v. Gun, 3 Harr. & Johns. 225; Clemson v. Davidson,5 Binn. 392; and in various text-books. 3 Kent Com. 223; 1 Parsons on Ship. & Adm. 220; Abbott on Shipping (11th Lond ed.),407; Maclachlan on Shipping,2d ed.458; Smith's Mercantile Law (3d Am. ed.), 400. On principle this case falls within the rule that where the stipulations of a contract are interdependent, a defendant cannot be sued for the non-performance of stipulations on his part which were dependent on conditions which the plaintiff has not performed. The ship-owner was entitled to freight only for carrying the cargo and delivering it at Liverpool, with the implied covenant that this particular vessel was to take it on board and enter on the voyage. Before that event occurred this vessel was substantially put out of existence, by no fault of the shipper, and he had and could have no benefit from the contract. He had a right therefore to treat the contract as rescinded, so far as any liability for freight was concerned. In Taylor v. Caldwell, 3 Best & Smith, 826, it is laid down as a rule, that "in contracts in which the performance depends on the continued existence of a given person or thing, a condition is implied, that the impossibility of performance arising from the perishing of the person or thing shall excuse the performance." The reason given for the rule is that without "any express stipulation that the destruction of the person or thing shall excuse the performance," "that excuse is by law implied, because from the nature of the contract, it is apparent that the parties contracted on the basis of the continued existence of the particular person or chattel." The rule was there applied to excuse the owner of a music hall, which had been burned, from fulfilling a contract to let the use of it. The principle was extended farther in Appleby v. Myers, L. R., 2 C. P. 651. There the plaintiffs contracted to erect cer tain machinery on the defendant's premises at specific prices for particular portions, and to keep it in repair for two years, the price to be paid upon completion of the whole. After some portions of the work had been finished, and others were in the course of completion, the premises, with all the machinery and materials thereon, were destroyed by an accidental fire. It was held that both parties were excused from the further performance of the contract, and that the plaintiffs were not entitled to sue in respect of those portions of the' work which had been completed, whether the materials used had become the property of the defendant or not. See Benjamin on Sales, 3d Am. ed., § 570; Wells v. Calnan, 107 Mass. 514, and cases there cited. These principles are so well established that it is only necessary to refer to one case in this court, Jones v. United States, 96 U. S. 24, which recognizes them, in which it is said: "Where an act is to be performed by the plaintiff before the accruing of the defendant's liability under his contract, the plaintiff must prove either his performance of such condition precedent, or an offer to perform it which the defendant rejected, or his readiness to fulfill the condition until the defendant discharged him from so doing, or prevented the execution of the matter which the contract required him to perform. *** A contract may be so framed that the promises upon one side may be dependent on the promises upon the other, so that no action can be maintained, founded on the written contract, without showing that the plaintiff has performed, or at least has been ready, if allowed by the other party, to perform his own stipulations, which are a condition precedent to his right of action." On a full consideration of the case, we are of opinion that the decree of the Circuit Court must be affirmed. BANKRUPTCY RECEIPT OF PAYMENT FROM FAILING DEBTOR. A creditor dealing with a debtor whom he may suspect to be in failing circumstances, but of which he has no sufficient evidence, may receive payment or security without violating the bankrupt law. "He may be unwilling to trust him further; he may feel anxious about his claim and have a strong desire to secure it, yet such belief as the act requires may be wanting. Obtaining additional security or receiving payment of a debt under such circumstances is not prohibited by law." See Grant v. National Bank, 97 U. S. 80. Stucky v Masonic Savings Bank. Opinion by Miller, J. ceive any part of his principal or dividend without producing the original book that such payment may be entered thereon." A. making a deposit assented to the by-laws and received a deposit book. After the death of A. his administrator was unable to obtain the deposit book from A.'s family, and on the refusal of the bank to pay A.'s deposit without a presentation of the book, brought suit against the bank. Held, that the administrator was entitled to recover. See Warhus v. Bowery Bank, 21 N. Y. 543; Hall v. Provident Institution, 6 Allen, 320. Held, further that as no claim as to the deposit had been made by any third person, the administrator should not be compelled to give a bond of indemnity to the bank. Rhode Island Sup. Ct., Jan. 27, 1883. Palmer v. Providence Institution for Savings. Opinion by Matteson, J. (14 R. I.) FOURTEENTH AMENDMENT CONSTITUTIONAL LAW REMOVAL OF INDICTMENT JURISDICTION-CONFLICT OF LAW - HOMICIDE.-(1) Where a negro was indicted in a State court for an offense against a State Law and the case was removed to the Federal court on the ground that he was denied rights secured him under the Federal Constitution and the indictment was quashed in the Federal court, held that the removal did not under U. S. R. S., section 641 operate to divest the State court of all jurisdiction thereafter, under any circumstances whatever, to try him for the crime charged. Such a construction of section 641 is wholly inadmissible. The prosecution could only have commenced in the judicial tribunals of the State. The crime for which he was indicted is an offense against the laws of the State, not against those of the United States. It is not one originally cognizable in the courts of the union. The removal of the first indictment into the Federal court was competent only because at that time the accused was denied, by the statutes of the State, rights secured to him by the Constitution and Laws of the United States. And when the Federal court in that mode acquired jurisdiction to proceed with the prosecution as if there commenced, its authority was limited to the trial of the indictment so removed. The court had pending the prosecution therein the same power over the indictment that the State court could have exercised had there been no removal. When therefore the Federal court in the exercise of the discretion, which it unquestionably had, quashed the indictment, it was without jurisdiction further to proceed against the defendant for the crime. United States v. McBratney, 104 U. S. 624; Coleman v. Tennessee, 97 id. 519; United States v. Cisnh, 1 McLean, 265. (2) Where a State statute excluded all but white persons from grand and petit juries, thus authorizing the removal of an indictment for crime against a negro to the Federal court, held that after a decision by the highest court of the State that the statute was unconstitutional, and that thereafter all officers charged with the duty of selecting or summoning juror must select without regard to race or color, such an indictment was no longer removable to the Federal court. After that decision, so long as it was unmodified, it could not have been properly said in advance of a trial that the defendant in a criminal prosecution was denied or could not enforce in the judicial tribunals of the State the rights secured to him by any law providing for the equal civil rights of citizens of the United States, or of all persons within their jurisdiction. The last indictment was consequently not removable into the Federal court for trial under section 641 at any time after the decision in the State court had been pronounced. This point was distinctly ruled in Neal v. Delaware, 103 U. S. 392, and is substantially covered by the decision in Virginia v. Rives, 100 U. S. 319. If any right, privilege, or immunity of the accused, secured or guaranteed by the Constitution or Laws of the United States, had been denied by a refusal of the State court to set aside either that indictment, or the panel of petit jurors, or by any eroneous ruling in the progress of the trial, his remedy would have been through the revisory power of the highest court of the State, and ultimately by that of this court. (3) But where the State courts overruled a motion made before the trial to set aside the indictment because found by a grand jury selected and formed upon the basis of excluding therefrom because of their color all citizens of the African race resident in the county where the indictment was found and eligible for such service, and the court of last resort affirmed the judgment of the inferior court, this court will reverse the action of the State courts and set aside the indictment. Bush v. Commonwealth of Kentucky. Opinion by Harlan, J. Waite, C. J. and Field and Gray, JJ., dissented. [Decided Jan. 29, 1883.] MARITIME LAW - WHEN DEMURRAGE ALLOWED ON VESSEL CLAIMED AS PRIZE.-Where a vessel was seized by the United States forces for an alleged breach of neutrality, and was detained by the govern ment for the express purpose of use an unreasonable time, before she was delivered up for adjudication. Held, that the government was liable for demurrage where she was adjudged not a prize. The duty of a captor is to institute judicial proceedings for the condemnation of his prize without unnecessary delay, and if he fails in this the court may, in case of restitution, decree demurrage against him as damages. This rule is well settled. 2 Wheat. App. 11. The Appollon, 9 Wheat. 377; The Lively, 1 Gall. 327; The Corier Maritimo, 1 Rob. 287. United States v. Steamer Ninstra Senova de Regla, Opinion by Waite, C. J. [Decided March, 5, 1883.] MUNICIPAL CORPORATION - - VALIDITY OF MUNICI PAL BONDS.-A statute of Georgia conferred upon the mayor and alderman of the city of Savannah plenary power "to obtain money on loan, ou the faith and credit of said city, for the purposes of contributing to works of internal improvement." Held, that this authorized a guaranty by the city authorities named of bonds issued by a railroad company, although the money therefrom was not paid to the city but to the railroad company. Held, also that a recital in the bonds that they were authorized by a public meeting as if they were issued under another statute, such meeting having been held to quiet doubts, did not impair the validity of the action of the city authorities, especially after the lapse of twenty years, in which no such question had been raised. It would, in the language of Grier, J., in Mercer County v. Hacket, 1 Wall. 83-94, "be contrary to good faith and common justice to permit them to allege a newly discovered construction of au equivocal power." Van Hostrup v. Madison City, 1 Wall. 291; Meyer v. City of Musca tine, 1 id. 391; James v. Milwaukee, 16 id. 159. Mayor of Savannah v. Kelly. Opinion by Mathews, J. [Decided March 30, 1883.] MUNICIPAL CORPORATION-UNDER GENERAL CHARTER POWERS MAY NOT LEND CREDIT FOR IMPROVING LOCAL WATER POWER. Under a charter conferring upon a city only the power usually granted to a city for the purposes of local government, held that an ordinance authorizing the issue of bonds of the city to be "expended in developing the natural advantages of the city for manufacturing purposes, "and directing the delivery to an individual named, "to be used by him in developing the natural resources and surroundings of the city," and authorizing and directing him “to expend the same in the improvement of the water-power upon rivers, within the city and in the immediate COURT ABSTRACT.* CONSTITUTIONAL LAW-STATE LAW AS TO NAVIGABLE WATERS.-The State of Illinois, in the absence of National legislation upon the subject, can improve the navigable waters within its limits in such mode and to such extent as to it seems best. The statutes authorizing tolls to be exacted for the use of the locks on Illinois river are not in conflict with that clause in the National Constitution which forbids a State, without consent of Congress, from laying duties of tonnage. U. S. Circ. Ct., N. D., Illinois, Jan., 1883. Huse v. Glover. Opinion by Harlan, J. vicinity thereof," was invalid. Municipal corporations UNITED STATES CIRCUIT AND DISTRICT are created to aid the State government in the regulation and administration of local affairs. They have only such powers of government as are expressly granted them, or such as are necessary to carry into effect those that are granted. No powers can be implied except such as are essential to the objects and purposes of the corporation as created and established. 1 Dill. Mun. Corp., § 89, (3d ed.) To the extent of their au thority they can bind the people and the property subject to their regulation and governmental control by what they do, but beyond their corporate powers their acts are of no effect. Undoubtedly the development of the water-power in the rivers that traverse the city would add to the commerce and wealth of the citizens, but certainly power to govern the city does not imply power to expend the public money to make the water in the rivers available for manufacturing purposes. It is because railroads are supposed to add to the general prosperity that municipalities are given power to aid in their construction by subscriptions to capital stock, or donations to the corporations engaged in their construction, but in all the vast number of cases involving such subscriptions and donations that have come before this court for adjudication since Commissioners of Knox v. Aspinwall, 21 How. 539, it has never been supposed that the power to govern of itself implied power to make such subscriptions or such donations. On the contrary, it has been over and over again held, and as often as the question was presented, that unless the specific power was granted, all such subscriptions and all such donations, as well as the corporate bonds issued for their payment, were absolutely void even as against bona-fide holders of the bonds. Thompson v. Lee County, 3 Wall. 330; Marsh v. Fulton County, 10 id. 676; St. Joseph's Township v. Rogers, 16 id. 659; McClure v. Township of Oxford, 94 U. S. 432; Wells v. Supervisors, 102 id. 630; Allen v. Louisiana, 103 id. 86. City of Ottawa v. Carey. Waite, C. J. Opinion by ISSUE OF BONDS BE- Where a corporation, VALID- EX POST FACTO LAW. and used the money received for them for corporate purposes, held, that an act of the Legislature passed thereafter declaring such bonds valid obligations of the corporation was not in violation of a constitutional provision forbidding an ex post-facto law, nor of one declaring that "the Legislature shall pass no special at conferring corporate powers." Clark v. Saline County, 9 Neb. 516; Louisiana v. Wood, 102 U. S. 294; Hitchcock v. Galveston, 96 id. 341. As was said by Field, J., in New Orleans v. Clark, 95 U. S. 644: A law requiring a municipal corporation to pay a demand which is without legal obligation, but which is equitable and just in itself, being founded upon a valuable consideration received by the corporation, is not a retroactive law, no more so than an appropriation act providing for the payment of a pre-existing claim. The constitutional inhibition does not apply to legislation recognizing or affirming the binding obligation of the State, or of any of its subordinate agencies, with re spect to past transactions." Read v. City of Plattsmouth. Opinion by Mathews, J. [Decided March 5, 1883.] MARITIME LAW-LEGAL TITLES ALONE WITHIN JURISDICTION OF ADMIRALTY. Petitory suits must be based upon legal titles; admiralty has no jurisdiction of such suits to enforce a merely equitable title, based upon the respondent's breach of trust. Where the libel alleges the employment of the respondent to procure a concession " from the French government in the libellant's name to remove guano; that the respondent fraudulently procured such concession in his own name; and that the cargo of guano attached, and which the libellant sought to recover in this action, had been removed without the authority of the libellant. Held, that upon such facts respondent had a legal title to the cargo; that the contract or employment was not maritime, but only preliminary thereto, aud that in both respects admiralty has no jurisdiction, and the libel must be dismissed. Ward v. Thompson, 22 How. 330; Kellum v. Emerson, 2 Curt. 79, 81, 82; Davis v. Child, 2 Ware, 78, 87; The Rice, 3 id. 134; The Ives, Newb. 205. In the case of Andrews v. The Essex, etc., 3 Mason, 6, Story, J., says: "Courts of admiralty have no general jurisdiction to administer relief as courts of equity. They cannot entertain an original bill or libel for specific performance, or to correct a mistake, or to grant relief against a fraud." U. S. Dist. Ct., S. D., New York, Feb. 19, 1883. Wenberg v. Cargo of Mineral Phosphate. Opinion by Brown, J. MARITIME LAW-BOTTOMRY BOND-MORTGAGE.-A bottomry bond executed in a foreign port for repairs to a vessel putting back in distress, by the master, who is also the sole legal owner, cannot be declared void for mere want of authority to execute it as against a mortgagee not in possession, whatever his equities. Where such mortgagee however has claims exceeding the value of the vessel, and the lenders on bottomry know that fact, or are chargeable with knowledge of it, one of them being the agent of the ship, and arrangements having been first made with them by which the mortgagee should accept drafts for the repairs, and near the close of the repairs a bottomry bond is demanded, without further communication or notice to the mortgagee, and the master thereupon executed the bond, with a premium of 20 per cent, under a promise of some compensation to himself, which was afterward paid, held, that the bottomry was unnecessary, and in bad faith upon the part of the master and lenders, as respects the mortgagee, and that the premium of 20 per cent included in the bond should be wholly disallowed. The Augusta, 1 Dod. 283; The Hero, 2 id. 143; The Hamburg, Brown & L. 253; The Lizzie, L. R., 2 Adm. 254; The Oriental, 7 Moore, P. C. 398; The Onward, L. R., 4 Adm. 38. U. S. Dist. Ct., S. D., New York, Jan. 30, 1883. Archer. Opinion by Brown, J. The REMOVAL OF CAUSE-ARBITRATION NOT TRIAL--PREVENTING.-Before a suit was triable in court, or at * Appearing in 15 Federal Reporter. issue, the plaintiffs entered a rule of reference under the Pennsylvania compulsory arbitration act, and the cause was tried out of court before arbitrators, who made an award, which under the act was binding on the parties only by their mutual acquiescence. The plaintiffs appealed from the award, and after the jurisdiction of the court had reattached, petitioned for the removal of the suit to the Circuit Court of the United States. Held, that the proceedings before the arbitrators were not such a trial as precluded the removal, and the plaintiffs had not waived their right to remove by entering the rule of reference. U. S. Circ. Ct., W. D., Pennsylvania, Dec. 30, 1882. Thorne v. Towanda Towing Co. Opinion by Achison, J. REMOVAL OF CAUSE TERMINATION OF RIGHT BY CHANGING DOMICIL.- (1) Under the prejudice and local-influence act a party, to have the right of removal, must be a non-resident when the petition for removal is filed. So where a party having a right to remove a suit into the Federal court from a State court, fails to exercise that right, and subsequently removes into and becomes a citizen of the State where suit is brought, the right of removal is defeated and terminated by the change of citizenship. (2) Where a non-resident, having a right to the removal of suit into the Federal court, fails to exercise that right, and removes into the State where suit is brought and becomes a citizen thereof and there dies, his executor or administrator substituted for him in the suit cannot remove it into the State court. U. S. Circ. Ct., N. D., Iowa, Jan. 1883. Goodnow v. Grayson. Opinion by Shiras, J MISSOURI SUPREME COURT ABSTRACT.* ELECTIONS-MANDAMUS TO COMPEL BOARD OF CAN VASSERS TO COUNT RETURNS" FOR CONGRESS."-(1) Where it appeared that a board of canvassers of election returns had completed the canvass and made out an abstract of the votes before the expiration of the time limited by law for the performance of these duties, but the abstract was still in the custody of a member of the board when notice was given them of an alternative writ of mandamus sued out within that time, requiring them to count certain votes which they had illegally rejected, held, that the writ was properly issued and should be made peremptory, and this though it might have been true that the board had finally adjourned when the notice was served. (2) Election returns designated the office for which rival candidates received votes thus: "For Congress;" upon objection made that this was not the proper designation of any office, held, that it could by no reasonable intendment have reference to any other office than that of representative in Congress and should be so construed. (3) Election returns otherwise proper will not be invalidated by reason of the fact that they include something to which the returning officers are not by law required to certify. Hence where judges of election were not by law required in certifying the votes received by the several candidates for representative in Congress to designate the congressional district by number or otherwise, held, that certificates of an election in the ninth Congressional district, which in addition to everything else required by the statute to be certified contained the following, For Congress," were not void, and should be canvassed and counted for the ninth District. State of Missouri v. Berg. Opinion by Norton, J. FIXTURES-BUILDING ERECTED PENDING CONDEMNATION PROCEEDINGS-EMINENT DOMAIN. -The law is well settled that if a building be erected upon land *To appear in 76 Missouri Reports. without the assent and agreement of the owner of the land, it becomes at once a part of the realty, and is the property of the owner of the freehold. Hence where a railroad company, having obtained a decree for the condemnation of a tract of land, without the knowledge of the owner erected upon it a building of a permanent character for a depot, and afterward the decree was adjudged to be void, held, that the building had become a part of the realty, and could not be removed by the company, and it made no dif ference that it was set upon posts and could be taken away without injury to the ground. Hunt v. Missouri Pacific Railway Co. Opinion by Hough, J. HIGHWAY-DAMAGES FOR OBSTRUCTIONS -Where adjoining proprietors by agreement closed a dedicated highway, and in place of it opened a road upon another site. Held, that whether the road so opened was a public highway or a private right of way, they and those claiming under them had such an interest in it as entitled them to recover damages from a railroad company crossing it in such a manner as to obstruct its free use. Kansas City, St. Louis & Chicago Railroad Co. v. Farrell. Opinion by Henry, J. LIEN-AGAINST RAILROADS-SERVICE OF NOTICEFOREIGN COMPANY-STATION AGENTS.-The station agents of a foreign railroad company operating a railroad in this State are the representatives of the company in such a sense that service of notice upon them of claims for work and labor done, or materials furnished upon the road, is service upon the company within the meaning of the statute providing the mode of obtaining and enforcing liens against railroads. R S. 1879, §§ 3200 to 3216. Morgan v. Chicago & Alton Railroad Co. Opinion by Ray, J. MARRIAGE-PARTY TO SUIT FOR WIFE'S LAND. During marriage the husband has the exclusive right to his wife's real estate not held to her sole and separ ate use, and is the only proper party plaintiff in a suit to recover possession thereof; and if he has acted in respect to such real estate in such a manner as to estop him from asserting his right to the possession, neither he nor she can recover, whatever right she or her heirs may have after the dissolution of the marriage by the death of one of the parties or otherwise. Bledsoe v. Simms, 53 Mo. 308; Wilson v. Garaghty, 70 id. 518; Hunt v. Thompson, 61 id. 153. Kanaga v. St. Louis, Laurence & Western Railroad Co. Opinion by Henry, J. REAL ESTATE-MARRIED WOMAN-CONTRACT FOR LAND SUBSEQUENT PURCHASER WITH NOTICE-A vendor who has contracted in writing to convey land to a married woman, and has received part of the purchase-money, is so far bound that he cannot rescind without tendering back the mouey; and one purchas ing from him with notice of the contract will take subject to her equitable right, so that if the vendor afterward conveys to her, she may maintain an action against him for the title. Neef v. Redmon Opinion by Henry, J. OHIO SUPREME COURT ABSTRACT. JANUARY TERM, 1883.* MASTER AND SERVANT RAILROAD TRACK REPAIR ERS AND TRAINMEN-NEGLIGENCE.-As between employees of a railroad company, whose duty it is to repair its track while trains are using the same, and the company and its representatives, who are engaged in running trains over the same where the trackmen are * Appearing in 38 Ohio State Reports. so employed, it is the duty of the latter, as far as is practicable, to adopt such precautions as will guard its employees on the track from dangers incident to their employment. Where the liability of a railroad company for injury to one of its track repairers, by the careless manner of running a train, is in issue, evidence tending to show that the train causing the injury was in charge of a conductor and engineer, and was at the time engaged in a race, at a high and dangerous rate of speed, with a train on a parallel road, over several public crossings, on a curve on which the track repairer was at work in a city limits, and where trains should be run with care corresponding with the circumstances, without sound of bell or whistle, or slack of speed, or any other precaution to warn the men engaged at work on the track of approaching danger, is competent to go to the jury, and should be submitted to it under proper instructions upon the issue joined; and it was error in the court to grant a nonsuit, on the assumption that the negligence and carelessness causing the injury was that of a co-employee in the same service, and not that of the company. See Whalen v. Mad River R. Co., 8 Ohio St. 249; Manville v. Cleveland, etc., R. Co., 11 id. 417; Railroad Co. v. Webb, 12 id. 475; Railway Co. v. Lewis, 53 id. 196; Railroad Co. v. Ranney. 37 id. 665; Pittsburgh, etc., R. Co. v. Dewinney, 17 id. 197; Gutrich v. Wilson, 14 id. 566; Railroad Co. v. Henderson, 37 id. 552. Dick v. Railroad Company. Opinion by Johnsou, J. RAILROAD-FENCE- DUTY OF ADJOINING OWNER AGREEING TO MAINTAIN -NEGLIGENCE-ANIMAL. An owner of land through which a railroad passed agreed with the railroad company to maintain and keep in repair a line of fence on the south side of the road, and the company agreed to do the like on the north side. Afterward the company, for its own convenience in rebuilding a bridge over a stream of water there situate, removed a portion of the fence on the south side of the road, and when the bridge was completed, instead of restoring the portion of fence removed, constructed as a substitute therefor wing fences from the abutments of the bridge over its right of way to the ends of the old fence, so as to prevent the passage of stock from the adjacent fields to the railroad. The portions of fence thus substituted for the part of the old fence which had been removed were accepted by the land-owner as an inclosing fence to his fields. Held, that by accepting the new wing fences as a part of the line of fence inclosing his adjacent fields, it became the duty of the land-owner to keep the same in repair. Occasional repairs of the new wing fences by the company did not release the land-owner from his duty to keep the same in repair. Such land-owner is without remedy where his stock passes, by neglect to make such repairs, to the track of the railroad and is killed by a passing train, unless it be shown that the killing was caused by negligence in running the train. The burden of proving such negligence rests on the plaintiff. It cannot be inferred from the fact of killing. Railroad Co. v. McMillen, 37 Ohio St. 554. Railway Co. v. Hieskill. Opinion by McIlwain, J. in the policy, the deed of constitution of the insurer contained peculiar provisions. One article declared that in case of the death of any member his interest "shall survive to his executors, administrators, or assigns, who shall be possessed of the policy." The lord chancellor, in deciding the case, says: "It seems to me perfectly clear, upon the plan of the society, that it is not like the other insurance offices since established. No person can have the benefit of the policy but the personal representative with whom they make up the account, and who is entitled to the dividend. The article is very intelligible. The foundation is a partnership between the different persons insuring each other in a society established upon a constitution by which they mutually engage to each other to answer all losses any one of them may incur. You cannot make a partnership for yourself and heirs, but you may for yourself and your executors." The only case tending to sustain the assertion referred to is Wyman v. Prosser, 36 Barb. 368. This is not the decision of a court of last resort. Moreover much that was said in that case was mere dictum, because upon the facts of the case the personal representative was, in any event, entitled to retain the proceeds of the policy as against the heir, because the estate was insolvent, and hence the whole fund was needed to pay debts. The position that the proceeds of the policy belong to those beneficially interested in the property, is not without authority to sustain it. In Barry v. Ashley, 3 Simons 97, the testator charged his real estate with an annuity to his widow, and subject thereto devised it to A. in fee, and appointed A. executrix. The testator had insured the property in his own name. The policy expired a few months after his death, and was renewed by A. Soon after the property burned. The widow filed a bill against A. for an ac. count, and security of the annuity. The court ordered the insurance money to be paid into court, it being taken that A. had renewed in the character she was entitled to renew, viz.: as executrix; the vice-chancellor remarking: "The inclination of my opinion is that the proceeds of the policy cannot be considered as a part of the testator's general personal estate, but that they are affected with a trust for the benefit of the parties interested in the real estate, and prima facie there is much ground for holding that the proceeds of the policy are a substitution for the property charged." In Durant v. Friend, 11 L. & Eq. 4, the facts were that the testator, a sea-faring man, bequeathed chattels to certain persons. He and the chattels perished together. These chattels he had previously insured, and the executors received from the insurance company the amount of the policy. The question was whether the legatees were entitled to the money. It was decided that as the testator and the chattels perished together, the legatees never had any vested interest in the chattels, and hence were not entitled to the insurance money; but the chief justice in his opinion remarked: "If the testator had died leaving the goods in existence, the legatees would have had an interest in them, and it would have been quite reasonable that the executors should have held the policy in trust for them." See also Norris v. Harrison, 2 Ward. 268. In Haxall v. Shippen, 10 Leigh, 136, one Shore died, leaving a plantation by will to his widow for life and remainder to his children. He had taken out a policy of insurance on the buildings, running to himself, his heirs, and assigns. After his death, and during the life of the policy, the buildings burned. The personal representative was held not entitled to the proceeds of the policy because a decree in a former suit was held conclusive upon the rights of the parties, and because the policy ran to the deceased and his heirs and assigns. But the reasoning of the court in the case fully sustains the decision in the case at bar |