« ПретходнаНастави »
120. MORTGAGES — Priority Between Subsequent Mortgagees.- Where one releases a deed of trust, and takes a new one for his debt, a lienor subsequent to the first deed of trust takes priority over the second deed.-Atkinson y. Plum, W. Va., 40 S. E. Rep. 587.
121. MORTGAGES-Putting Notes in Judgment.-Plac. ing in judgment of mortgage notes is but another form of evidence of the debt, and does not extinguish the right of action on the mortgage.-Hanna v. Kag. son, Wash., 67 Pac. Rep. 271.
122. MORTGAGES-Rescinding for Inadequacy of Price.-Mere inadequacy of price held not to show fraud in a purchase which would justily a rescission. -Opie v. Pacific Inv. Co., Wash., 67 Pac. Rep. 231.
123. MONICIPAL CORPORATIONS-Crossing a Street at Wrong Place.-Crossing a street and stepping on a sidewalk at a place other than a crossing was not nogligence per se.-Bell y. Town of Clarion, Iowa, 88 N. W. Rep. 821.
124. MONICIPAL CORPORATIONS-Regrading Street.The right to damages done real estate by the regrad. ing of a street is personal, and will not pass by a sub. sequent sale of the premises under foreclosure.- In re City of Seattle, Wash., 67 Pac. Rep. 250.
125. MONICIPAL CORPORATIONS Repairing Fire Alarm System.-A city engaged in the legal duty of repairing its ire alarm system in its corporate capac. ity held liable for injuries received by a workman therein.-Wagner v. City of Portland, Oreg., 67 Pac. Rep. 300.
126. NAME8-Difference in Spelling.- Difference in spelling of a name in an indictment for forgery of warrants and that appearing on a warrant introduced in evidence held immaterial, as idem sonans.-Leath v. State, Ala., 31 South. Rep. 108.
127. NEGLIGENCE - Contributory Negligence in At. tempting to Save Life.-Where a father, seeing his two year old child on a rallroad track in front of a rapidly advancing train, runs on the track in an attempt to save it, he is not a trespasser on the track.-San An. tonio & A. P. Ry. Co. v. Gray, Tex., 66 S. W. Rep. 229.
128. NEGLIGENCE-Failure to Look and Listen.-Fall. ure of plaintiff's decedent to look in either direction for an approaching street car before stepping on de. fendant's tracks held not contributory negligence per se. - Bass' Admr. y. Norfolk Ry. & Light Co., Va., 40 S. E. Rep. 100.
129. NEGLIGENCE-Look and Listen Rule.- A traveler at a highway railroad crossing held guilty of cop. tributory pegligence as a matter of law in not stopping to look and listen.-Cleveland, O., C. &st. L. Ry. Co. v. Heipe, Ind., 62 N. E. Rep. 455.
130. NEGLIGENCE- Malpractice of Physicians.- In an action against a physician for malpractice, plaint. iff must allege his own freedom from contributory negligence.-Decatur v. Simpson, Iowa, 88 N. W. Rep. 839.
131. NEGLIGENCE-Taking Question of Contributory Negligence from Jury. - Before the court will be tustifitd in taking from the jury a question of con tributory negligence, the acts done must be so pal. pably negligent that there can be no two opinions concerning them.- Burian v. Seattle Electric Co., Wasb., 67 Pac. Rep. 214.
132. NOVATION-Assumption of Debt by Defendant.Assumption by defendant of debt due from third party held not to amount to a payment of the third person's claim against defendant, without payment of debt actually made.-In re Lemerise, Vt., 50 Atl. Rep. 1062.
133. NUISANCE-Private Stable.- The erection of a private stable near a church will not be enjoined as a nuisance.-Albany Christian Church v. W. lborn, Ky., 69 S. W. Rep. 285.
134. OFFICER8-Diminishing Salary.- The action of the county commissioners in fixing the salary of the deputy district attorney at one dollar a year held not within Const. art, 5, $ 30, forbidding the enactment of
a law diminishing the emoluments of a public officer after his election.-Merwin v. Board of Comrs. of Boulder County, Colo., 67 Pac. Rep. 285.
135. OFFICERS - Retention of Salary.-The retention by a de facto collector of taxes of the exact amount of the salary, as had been the custom for 20 years, he and the city believing he was de jure collector, should be construed as a payinent of the salary to him.-Cough. lin v. McElroy, Cond., 50 Atl. Rep. 1025.
136. OFFICERS-Right to Fix Salary.-Where the legislature has not prescribed any definite compensation for district attorneys, but has conferred on the county commissioners power to fix their salaries, the courts cannot themselves fix the amount. -Merwin v. Board of Comrs. of Boulder County, Colo., 67 Pac. Rep. 295.
137. PARENT AND CHILD-Right to Wiges.-Unless there has been an emancipation, the payment of his wages by an infant to his parents is no consideration for a transfer of land by one of them to him.-Crary v. Hoffman, Iowa, 88 N. W. Rep. 833.
138. PARTIES - Wrong Name.-Where defendant an. gwered and defended without objection that she was not sued by the right name, she cannot object that the judgment is not against the rigbt person.-Schreiner v. Stauton, Wash., 67 Pac. Rep. 219.
139. PARTITION-Claimant Under Invalid Tax Deed. -In a suit for partition by one claiming under an in. valid tax deed, defendant may allege in bis answer defects in the sale and deed, and ask that the same may be set aside.-Collins v. Sherwood, W. Va., 40 $. E. Rep. 603.
140. PARTNERSHIP Rule of Accounting.-10 deter. mining the accounts of each partner, where the firın is composed of two members, and one has taken all the assets and assumed the payment of the debts, each should be credited with what the firm owes him, with what he has agreed to pay, with his capital con. tributed, and with his share of the profits, and charged with what he owes the firm and with whatever assets he bas taken; the balance to show what is due to ard from the co-partners.-Koelz v. Brinkman, W. Va., 40 S. E. Rep. 578.
141. PAUPERS-Liability of Town for Support.-A town not liable for the support of a pauper is not ren. dered liable therefor by voluntarily furnisbing such support for a number of years.-Town of Danville v. Town of Hartford, Vt., 50 All. Rep. 1082.
142. PAYMENT-Application. Where the obligor in a note proved a credit, the burden was on plaintiff to show that a part of the amount was paid on some other account.-Hill v. Pettit, Ky., 66 8. W. Rep. 188.
143. PRINCIPAL AND AGENT - Defenses Against Prin. cipal Good Against Agent.-In an action by an agent for an undisclosed principal on a contract made by the agent in his own name, any defense good against the principal is available against the agent.-Holden v. Rutland R. Co., Vt , 50 Atl. Rep. 1096.
144. PRINCIPAL AND AGENT Responsibility of Prin. cipal for Agent's Exaction of Usury.- Where principal intrusts agent with money to loan, he is responsible for the agent's unlawful exaction of usury.-Robin. son v. Sims, Minn., 88 N. W. Rep. 845.
145. PRINCIPAL AND SURETY-Contractor's Bond to Railroad.-A bond given to a railroad company by contractors erecting buildings for a railway beld an indemnity bond to the railroad, and not to give a right of action to the laborers against the sureties on the bond.-National Bark of Cleburne v. Gull, C. & S. F. Ry. Co., Tex., 66 S. W. Rep. 203.
146. PRINCIPAL AND SURETY Extension of Time as a Release of Surety.-The act of a creditor of a partner: ship in extending time to one partner, who bag ag. gumed the partnership debts, without the consent of the other, operates to release the latter from liability thereof.- Lozelle v. Miller, Oreg., 67 Pac. Ri p. 307.
147. PRINCIPAL AND SURETY-Surety an Note.- A surety on a note is not a fiduciary to the payee, or un. der any obligation to disclose to him any facts within his knowledge as to the value of such note or of the security thereof.-Opie v. Pacific Iny. Co., Wash., 67 Pac. Rep. 231.
148. PUBLIC LANDS-Sale of Land Under Forfeited Title.- A sale of land under a forfeited title which does not cover such land is void, and a deed made by vir. tue thereof is also void, and vests no title in the pur. chaser.-Bowman v. Dewing, W. Va.,:40 S. E. Rep. 576.
149. QUO WABRANTO–Relator Having No Interest.- 1 14
Where an information in quo warranto agaipet a school trustee is presented by one having no interest, the court may refuse to permit it to be bled, and should refuse to remove the respondent.-Deaver v. State, Tex., 66 S. W. Rep. 256.
150. RAILROADS Ejecting Trespasser. - Where plaintiff was injured by being forcibly ejected from a rapidly moving train, the fact that he was a trespasser on such train does not constitute contributory negligence, which deprives him of remedy.- Job ngon v. Chicago, St. P., M. &0. Ry. Co., Iowa, 88 N. W. Rep. 811.
151. RAILROAD8-Frightening Children by Blowing Off Steam.-Where a rallroad engineer blows off steam to frighten children, and a child falls and breaks a leg, the company is liable.- Alsever v. Minneapolis & St. L. R. Co., Iowa, 88 N. W. Rep. 841.
152. REGISTRATION Leaving Mortgege in Clerk's Office.-Leaving a mortgage covering both realty and personalty in the town clerk's office for record held no notice of its existence as a real estate mortgage, in absence of intent to record it as such.-Hunt v. Allen, Vt., 50 Atl. Rep. 1103.
153. RELIGIOU8 SOCIETIES – Appeal from Expulsion of Members.- Where the majority had control by the terms of the organization, and there was no right of appeal from their decision, their action in expelling the minority from membrship is binding on the courts.- Bennett v. Morgan, Ky., 66 S. W. Rep. 287.
154. REPLEVIN - Effect of Traverse.-The traverse of a plea and notice in replevin for impounded cattle held to put in logue the legality of the detention, and not merely whetber or not defendapt was pound keeper.- Farrar v. Bell, Vt., 50 Atl. Rep. 1107.
155. SALES-Non. Delivery of Bill of Sale.-The nondelivery of a bill of sale of property sold on condition that the title sbould not pass until the delivery of the bill of sale is not a defense to an action for the purchase price.- Yori v. Cohn, Nev., 67 Pac. Rep. 212.
156. SPECIFIC PERFORMANCE- Modification of Con. tracts.-Where contract to convey by warranty deed is modified, so as to require deed satisfactory to third person named by purchaser, specific performance of original agreement cannot be enforced.-Smith v. Hogle, Iowa, 88 N. W. Rep. 820.
157. STREET RAILROADS - Care as to Children.Where a motorman in charge of an electric car comes where he has reason to expect children at play, he must exercise a high degree of watchfulness in the operation of the car.- Sample v. Consolidated Light & Ry. Co., W. Va., 40 S. E. Rep. 597.
158. TENDER – Refusal to Accept Tender.-A vendor is not liable for damoges for his refusal to release bis lien on a tender by the purchaser, where the accounts between them were so complicated that even the court, with the aid of a commissioner, had difculty in adjusting them.-Hill v. Pettit, ky., 66 S. W. Rep. 189.
159. TORT8-Inducirg One to Break His Contract.Where one wantools and maliciously ii duces a per. son to violate his coutract with a third person, to the latter's injury, it is actionable.-West Virginia Transp. Co. v. Standırd Oil Co., W. Va., 40 S. E. Rep. 591.
160. TRESPASS TO TRY TITLE-Justification by Con. dempation.- Where a county, sued in trespass to try
title, justifies Its entry and claim by virtue of a con. demnation proceeding, proof of service of notice therein 18 admissible without special proceeding8.Bowie County v. Powell, Tex., 66 S. W. Rep. 237.
161. TH STS-Resulting Trusts in Cases of Fraud.-A party who, through fraud and condivance with an executrix, prccured a decree of the probate court whereby he received a portion of the estate devised to testator's ipfant children, held to hold title to such estate as trustee for such children.-Sohler v. Sobler, Cal., 67 Pac. Rep. 282.
162. USURY Extension of Mortgage.-Contract for extension of mortgage to pay sum in excess of inter. est held usurious.-- Gantz v. Lancaster, N. Y., 62 N. E. Rep. 413.
163. VENDOR AND PURCHASER- Notice of Uprecorded Mortgage.- On an issue whether a grantee of land had notice of a prior unrecorded mortgage, the burden of showing such notice is on one claiming under the mortgage.- Walter P. Brown, Iowa, 88 N. W. Rep. 832.
164. WATER AND WATER COURSE8-Proof of Inter. ference with Waters for Irrigation.-In a suit to enjoin interlerence with waters appropriated for irrigation, failure of plaintiff to furnish satisfactory proof of the amount of water required by his lands will not defeat his remedy, but the case will be remanded for further prool.-Longmire v. Smith, Wash., 67 Pac. Rep. 246.
165. WILLS-Election of Widow.-Action of widow in taking possession of realty held not to constitute an election to take under the will, under Code, $ 3376.– Bailey v. Hughes, Iowa, 88 N. W. Rep. 804.
166. WITNESSES - Cross-Examination.-De fendaris should have been permitted by cross-examination to test the accuracy of a statemept made by a witness for plaintiff.-O'Daniel v. Smith, Ky., 66 $. W. Rep. 281.
167. WITNESSES - Duty to Ipform Witness of lig Privilege Against Incrimination.- The grand juiy, ex amiping a witness under oath, need not inform the witness of his constitutional privilege to refuse to testity in matters tending to incriminate himn.-State v. Comer, Ind., 62 N. E. Rep. 452.
168. ITNESSES - Husband Testifying for Wife.-In replevin by a wife who impounded cattle, the husband was properly allowed to testify to acts done by him 88 his wife's agent in obtaining a return of the catile.Farran v. Bell, Vt., 50 Atl. Rep. 1107.
169. WITNESSES- Privilege Against Incrimination.The filth amendment of the federal constitution, providing that witnesses peed pot incriminate them. selves, relates to the federal power, and has no app'i. cation to the states.-State v. Comer, Ind., 62 N. E. Rep. 452.
170. WITNESSES - Showing Delense on Cross-Exam. ination.-Where, in an action on a note, defendants allege that the pote is secured by an upforeclised mortgage, it is irregular to how euch defense by cross examination of plaintiff's witness.- Biophy v. Dowrey, Mont., 67 Pac. Rep. 312.
171. WITNESSE 8-Superintendent of Insane Asylum as to patient.-Admission of the evidence of the superintendent of the ipsane asylum as to the conduct of a person confined therein pending trial for homicide, as authorized by Acts 1898, No. 48, held not a violation of Declaration of Rights, art. 10.- State v. Eastwood, Vt., 50 At). Rep. 1077.
172. WORK AND LABOR Compensation for Extra Work.-Where the parties to a contract agree to leave to a third party to determine what, if any, compensa. tion is to be allowed for extra work, the determination of such arbitrator therhon is conclusive.-Jones & Hotchkiss Co, v. Davenport, Conn.,50 Atl. Rep 1028.
173. WORK AND LABOR Contract for Nursing -A petition alleging that at request of defendant plaintiff pursed and supported defendant's mother curing a certain period of siekoess, and that defendant pri n. ised to pay therefor, states an enforceable contract.Montgomery v. Downey, Iowa, 88 N. W. Rep. 810.
Central Law Journal.
the proceeds of which reverted to the insured's estate. Counsel for the administra
tor of the insured relied almost exclusively ST. LOUIS, MO., APRIL 4, 1902.
on the article in the CENTRAL LAW JOURNAL
already referred to, and the court adopted LIFE INSURANCE DISTRIBUTION OF PRO the argument and reasoning the rein set forth CEEDS OF POLICY WHERE INSCRED AND BENE almost verbatim. FICIARY PERISH IN A COMMON Disaster.-In
Our argument in that article was that the & recent article in the CENTRAL LAW JOURNAL
principles applicable to the distribution of (53 Cent. L. J. 184), we discussed very ex trust funds should be applied to the solution haustively the interesting question taken as of this question rather than the rules of law the subject of this editorial. Since that time
app'icable to choses in action.
This we several cases bave arisen involving this regarded as necessary to overcome the docidentical question in which counsel bave relied trine of vested interest, wbich bas been spon this article very strongly. The recent plied to the right of the beneficiary under a Galveston disaster produced several of these regular life policy. For, giving the word cases, one of which has just reacbed the "vested its full logical meaning, the beneTexas Court of Civil Appeals,-Hildenbrandt ficiary would have such a present interest in v. Ames, 66 S. W. Rep. 128,—where it was the proceeds of the policy, while livirg, that held that where a life policy provided that it even where the enjoyment of the fund is should be payable to a certain beneficiary, if conditional on her survivorship, such condiliving, otherwise to the executors of tbe
tion, or, in fact, any other condition, annexed insured, in a suit by the administrator of the to her right to take under the policy, would beneficiary against the insurance company be a condition subsequent, and the burden and the administrator of insured to recover of proving survivorship would be, not on the the proceeds of the policy, the burden was on beneficiary or her representatives, but upon plaintiff to show that his decedent had sur those who would seek to controvert her vived the insured. In this case insured and
prima facie title to the proceeds of the the beneficiary, who was the wife of insured,
policy. It was so beld in the case of Cow. both perished in the flood wbich swept over man v. Rogers, 73 Md. 403. But, on the the city of Galveston recently. The adminis-band, applying the trust fund doctrine and trator of the beneficiary sought to show that giving to the words “vested interest” bis decedent had survived the insured. It ap- limited meaning-that of an irrevocable right peared that on the day of the storm insured to demand the proceeds of the policy upon bad started out in a wagon, saying that be the happening of all contingencies and comwas going home to get his wife; and about pliance with all the conditions of the policy4 o'clock, while the storm was raging, a wit. the beneficiary would acquire no vested ness saw the wagon going along a street in interest in the proceeds until the death of which the water was running as high as the the ingured, and the distribution of the furd horse's belly, the horse moving as though he would then be governed by the ordinary were being driven, but witness could not rules of construction, and the bereficiary see whether there was any one in the wagon. could take nothing until all contingencies The bouse where the beneficiary lived was and conditions of the policy had happened or not blown down or washed away until about been complied with, the burden of proof in 7:30. Held, that the evidence was insuffi such case res!ing upon her or her
resepiaciept to raise an issue as to the survivorship. tives. It was so held in Fuller v. Linzee, The court thus practically distributed the 135 Mass. 468. It is thus seen tbat the proceeds of the policy as if bo'h insured and application of the trust fund docrine easily beneficiary had died simultaneously, not disposes of the whole question. Under this because there was any presumption to that view of the case the beneficiary is regardid effect, but because there was no evidence to as the cestui que trust, and the insurance the contrary. Therefore, the administrator
company as the trustee of the fund repre. of the beneficiary, who was only to take "if sented by the policy, of which the ipsuied surviving," took nothing under the policy, may be regarded as the grantor. The fund
is to be paid over to the beneficiary, or cestui eficiary to show that such contingency has
WATERS AND WATER COURSES—WRONGFUL tions complied with, before any title to the
DIVERSION OF A STREAM IN DIFFERENT STATES fund vests in her, and unless her right to the FOR IRRIGATION PURPOSES.—Water is the sine fund is so proven there is a failure of the qua non of the great arid region of the west. trust and reversion of the fund to the in
Controversies over a twenty-five foot creek assured or his representatives. This is prac
sume an extravagant importance. Such was the
recent case of Conant v. Deep Creek & Curlew tically a synopsis of our argument in the
Valley Irrigation Co., 66 Pac. Rep. 188. In this article referred to, which was "mildly'' case plaintiff, who resided in Utah, claimed pricriticised by some of our contemporaries ority of right to the use of a stream which arose who insisted that ihe problem could be satis
in Idaho and flowed south through Utali, as factorily worked out under the ordinary
against upper riparian owners, some residing in
Utah and some in Idabo, for wrongful diversion rules applicable to choses in action. The
of water. A judgment obtained in a court of court in the principal case repudiates this Idaho determining the rights of the respective suggestion and practically adopts our posi owners, both of Utah and Idaho, was attempted tion as already outlined. The court, through to be enforced against a riparian owner in Utah. Justice Pleasants, said:
The Supreme Court of Utah held tbat where a
stream rises in the state of Idaho and flows into "We think the contract in its nature is
the state of Utab. a court of the former state bas analogous to that of an express trust. The no jurisdiction to try and determine the title and insured is the grantor or creator of the trust, right to the use of the water flowing in that por. the insurance company the trustee, and the tion of the stream wbich is situated in Utah, and beneficiary the cestui que trust. Wbile the
there diverted and used for irrigation of lands
tberein. The court makes the following clear trust fund out of which the beneficiary is to
argument: receive the amount named in the policy can "It is insisted on behalf of the respondents that, not, strictly speaking, be said to bave been if this court should hold that the Idaho court was created by the insured, by the terms of the without jurisdiction to enter the decree bere sued contract be secures an interest in a fund pro
on, then the Utah parties would have no court to
resort to that could protect their property rights, vided by the insurance company equal to the
and that the Idaho settlers could with impunity amount named in the policy, payable at bis
divert the waters from this stream in Idabo, and death; and under this contract, which be the Utah parties would be remediless. With this obtains and keeps alive by the payment at contention we cannot agree. It is a recognized stated times during his life of certain spec
rule of law that a person who has appropriated ified amounts to the insurance company, the
water at a certain point in a stream is entitled to
have so much of the waters of said stream as be amount named in the policy held
bas appropriated flow down to him to the point by the insurance
in trust of bis diversion; and if the settlers higher up on for the beneficiary. If
consider the stream, in another state, whose appropriathe policy of insurance of partaking of the tions are subsequent, divert any of the waters of
the stream which have been so first appropriated, nature of a trust, rather than a cbose in
then the courts of the latter state will protect the action, it is at once seen that the interest of
first settler in his rights. Howell v. Johnson (C. the beneficiary is not a "vested" interest, in
C.) 89 Fed. Rep. 556. The Idaho courts, therefore, the broadest sense of that term, and the have ample and complete jurisdiction to protect trustee cannot be compelled to execute the the rights of respondents to have the waters trust until the contingency bappens which
which they have appropriated, and which they
divert in Ulab, flow through the channel of tbe entitles the cestui que trust to its execution.
stream, and to limit and determine ibe rights of It follows that the burden is upon the ben
the Idaho appropriators with reference thereto;
and by tbe decree entered in the suit in the dis on the part of the writer as to render defendant trict court of Idaho, such rights were fully pro. wanting in ordinary care in sending the article tected, and may be enforced by proper proceed. without warning as to its dangerous properties. ings in that court. But this rule of law cannot Counsel cited a numbe of authorities, be so extended as to give to the Idaho court but it must be admitted that they are not jurisdiction to adjudicate and determine the exactly in point. Elkins v. McKean, 79 Pa. 493, rights, as between tbemselves, of the several ap was a case in wbich the manufacturers of illumipropriators who divert water from said stream in nating oil branded it as bearing a fire test of l'tah, and use the same for irrigation upon lands 110°, when in fact it only tested 61° or 65o. In in this state, and to quiet their titles thereto. Carter v. Towne, 98 Mass. 507, 96 Am. Dec. 682, Sucb matters are exclusively within the jurisdic gunpowder was sold to an 8-year-old boy. And tion of tbis state, and, in so far as the decree of in Dixon v. Bell, 5 Maule and S. 198, a loaded the Idabo court attempted to determine and gun was given to a girl 13 or 14 years old; and quiet the title to sucb waters, it was a nullity, while in her hands it was discharged, injuring and could not form a foundation for this suit." another. In Schubert v. J. A. Clark Co. (Mipn.),
It is, of course, the rule that the courts of one 51 N. W. Rep. 1103, 15 L. R. A. 818, 32 Am St. state are without jurisdiction to hear and deter Rep. 559, the plaintiff was injured by the breakmine suits affecting the title to lands in another ing of a stepladder upon wbich he was standing state. Nelson y. Potter, 50 X. J. Law, 324, 15 while at work. The ladder was constructed of 111. Rep. 375; Carpenter v. Strange, 141 U.S. 105, rotten wood, wbicb was concealed by paint and 11 Sup. Ct. Rep. 966. In this last case it was varnish. Thomas v. Winchester, 6 N. Y. 397, 57 said: "While, by means of its power over the Am. Dec. 455, is an early case in this country, person of a party, a court of equity may, in a and is often cited, but it is a case in wbieb a poi. proper case, compel him to act in relation, to sonous drug was falsely labeled. In Wellington property not witbin bis jurisdiction, its decree v. Oil Co., 104 Mass. 64, the defendant sold dandoes not operate directly upon the property, nor gerous oil, not safe for illuminating purposes, to affect the title, but is made effectual through the a customer whom it knew bad no knowledge of coercion of the defendant. Hence, although, in its dangerous character, and intended to sell it cases of trust, of contract, and of fraud, the juris for illuminating purposes. Railroad Co. v. diction of a court of chancery may be sustained Shanly, 107 Mass. 568, though not cited by counover the person, notwithstanding lands not witbin sel, is a case in wbich gunpowder manufacturers the jurisdiction may be affected by the decree, shipped over the plaintiff's road what was alret it does not follow that such a decree is in it. leged to be “new, dangerous, explosive, comsell necessarily binding upon the courts of the bustible, and intlammable compound, recently state where the land is situated."
discovered and manufactured, called by a pew
name, not generally known, now new in the marNEGLIGENCE-LIABILITY OF SELLER OF Ex ket, and the qualities were and are not generally PLOSIVES FAILING TO GIVE NOTICE OF DANGER known, made in part of nitroglycerine, itself an ou's PROPERTIES.-It would seem hardly possible exceedingly dangerous explosive and combustiat this stage of development of Englisb and Amer ble substance." The substance was sbipped as iean common law to run upon a case upon which "Dalin," and it was alleged in the declaration the test books and decided cases can furnish no that not only was the plaintiff railroad company authority. Such, however, according to the not notified of its dangerous character, but, on statement of the court, is to be found in the re the contrary, it was assured that it was safe, and cent case of Gibson v. Tarbert. 88 V. W. Rep. not of a dangerous nature. A demurrer to the 443. In tbis case, plaintiff, who was a poorly declaration on the ground that it did not state a educated man, ordered a quantity of pbosphorus cause of action was overruled. of defendant, a druggist. Defendant sent three After reviewing the authorities, the court, sticks, properly packed in water and labeled. throngb Sberwin, J., lays down what it considers Plaintiff removed the phosphorus from the pack the proper rule: “We believe the true rule deage, and dropped one stick, which ignited, and, ducible from reason and from autborities is that on his attempting to pick it up, caused the ex when a person who bas reached the age of displosion of the remaining sticks in plaintiff's cretion, and who is apparently in the possession hands, injuring him severely. Tbe Supreme of his mental faculties, applies to a druggist for Court of Iowa held tbat the article ordered was a certain drug, he represents to tbe dealer, by not such a new and unknown substance, with implication, at least, tbat he knows its properthe dangerous qualities of wbich the general ties and rises, and that he is a fit person to whom public, and therefore the plaintiff, was not ac sale thereof may be made, and that unless there quainted, as to render defendant negligent in is something connected with the transaction. or selliog it without specific warning. The court something previously known to the seller, indifurther beld that the fact that the letter ordering cating that the would-be purchaser cannot safely the phosphorus was badly spelled, incorrectly be intrusted with the substance, a sale of the capitalized, and ungrammatical did not show substance called for may be made without exsuch unfamiliarity with the nature of the drug 1 plaining its properties or the manner in which it